Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sant Kumar Mishra on 25 November, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav, B.K. Shrivastava
1
Writ Appeal No.1184/2017
THE HIGH COURT OF MADHYA PRADESH
(Division Bench)
WA-1184-2017
State of Madhya Pradesh and others
versus
Sant Kumar Mishra and another
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Shri Akhil Singh, learned Govt. Advocate for appellants/State.
Ms. Malti Dadariya, learned counsel for respondents.
CORAM :
Hon'ble Mr. Justice Sanjay Yadav, Judge
Hon'ble Mr. Justice B.K. Shrivastava, Judge
ORDER
(Jabalpur, dated : 25.11.2019) Per : Sanjay Yadav, J :-
This appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 11.04.2017 passed in Writ Petition No.21362/2015.
2. The issue raised in the petition, at the instance of the petitioner No.1, was as to counting of the service rendered on daily wages in the Work Charged Contingency Paid Establishment for pension on retirement after regularization in the Work Charged and Contingency Paid Establishment. Whereas the issue raised by the petitioner No.2 was grant of family pension.
2 Writ Appeal No.1184/20173. Evidently, the Rules which governs the pension are Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979. Petitioner No.1 was initially appointed as Chowkidar on 14.02.1979 on Work Charged and Contingency Paid Establishment. He was regularized on 01.05.2013. And, retired on attaining the age of 62 years with effect from 31.08.2015. As to petitioner No.2 her husband was appointed as Chowkidar in Contingency establishment on 01.05.1984 and was regularized with effect from 01.05.2013. He died on 10.10.2013. The petitioner were denied pension/family pension on the ground that they did not have minimum qualifying service under Rule 6 of 1979 Rules.
4. Learned Single Judge relying upon the decision in Writ Petition No.2698/2003 (Lallan Bai vs. State of Madhya Pradesh and others) decided on 17.11.2004 held thus :
8. Thus, the services rendered by the petitioner No.1 and husband of the petitioner No.2 for a period of 2 years and 5 months respectively after their regularization are inconsequential what is relevant is that the tenure of their service prior to their regularization which is 34 years and 29 years respectively for both the petitioners.
9. In the result, this petition also deserves to be and is hereby allowed on the same terms as in the case of Lallan Bai (supra). It is further directed that the respondents shall determine the pension in accordance with law in terms of the above direction within 3 months from today and make the payment of the same along with interest of 6% per annum from the date the pension 3 Writ Appeal No.1184/2017 has been wrongfully deprived to the petitioners. No order as to costs.
5. In Lallan Bai (supra), it is held :
"10. M.P. Work charged and Contingency Paid Employees Pension Rules, 1979 defines the contingency paid employees to mean an employee who is paid on monthly basis. Work charge employees means a person employed upon the actual execution, as distinct from general supervision of a specified work or upon subordinate supervision of the departmental labour excluding the daily paid labour and muster-role employee employed on the work. It is not in dispute in the instant cases that Bal Kishan Patel was regularized and brought under the purview of the Rules of 1979 w.e.f. 13.2.1997 and deceased Jagmohan Singh Gond was brought under the purview of the above rules w.e.f 13.6.1992. Rule 2(c) defines the permanent employees thus:-
"Permanent employee" means a contingency paid employee or a work-charged employee who has completed fifteen years of service or more on or after the 1st January, 1974:
Provided that in respect of a contingency paid employee who has attained the age of superannuation or on after 1-4-1981 Permanent employee means an employee who has completed ten years of service on or after the 1st January, 1974.
11. Rule 4(A) which has been amended w.e.f. 29.11.1996 with retrospective effect provides that in case any permanent employee has died while in service or after retirement on pension on or after 1-4-1981 shall be entitled to family pension under Rule 47 of M.P. Civil Services Pension Rules, 1976, Earlier the embargo which was created as per original rule 4-A which was incorporated on 30.1.1996. The Rule has been given retrospective effect w.e.f. 24.1.1984 Rule 4-A of M.P. Work charged and Contingency Paid Employees rules, 1979 was incorporated on 30.1.1996.
4-A. Notwithstanding anything contained in rule, the family of a permanent employee who dies 4 Writ Appeal No.1184/2017 while in service or after retirement of pension on or after 1-4-1981 shall be entitled to family pension at the rate of 30% of death/retirement subject to a minimum of Rs. 40 per month and maximum of Rs. 100 Per month subject to other conditions of Rule 47 of the M.P. civil Services (Pension) Rules, 1976 except sub-rule (3) of the said rule.
Later, Rule 4-A was amended with effect from 29.11.1996. Rule 4-A as amended on 29.11.1996 is quoted below:-
"fu;e 4 ¼d½& fu;e 4 fdlh ,sls LFkk;h deZpkjh ftldh lsok esa jgrs ;k lsok fuo``fRr gksus ds i'pkr~~ 1 vçSy 1981 dks ;k mlds i'pkr~~ e``R;q gks tkrh gS] dk ifjokj] e/; çns'k flfoy lsok ¼isa'ku½ fu;e 1976 ds fu;e 47 dh fofgr njksa ij rFkk vU; 'krksZ ds v/;k/kkhu jgrs gq, isa'ku ikus dk gdnkj gksxkA" "
12. Rule (6) of the Pension Rules, 1979 relating to the work- charged and contingency paid employees provides for commencement of qualifying service. It is clearly provided under Rule 6(3) that on absorption of temporary employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1974 onwards, if such service is of not less than six years shall be counted for pension as if such service was rendered in a regular post. Rules 6 is quoted below:-
6. Commencement of qualifying service.-(1) Subject to the provisions of chapter III of the Madhya Pradesh Civil Services (Pension) Rules, 1976 of section IV of Madhya Pradesh New Pension Rules, 1951, as the case may be for calculating qualifying service of a permanent employee who retired as such, the service rendered with effect from the 1st january, 1959 on wards shall be counted.5 Writ Appeal No.1184/2017
(2). On absorption of a permanent employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1959 on wards shall be counted for Pension as if such service was rendered in a regular post.
(3). On absorption of temporary employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1974 onwards, if such service is of not less than six years shall be counted for pension as if such service was rendered in a regular post.
13. Rule 47 of the M.P Civil Services Pension Rules, 1976 is quoted below:-
47- Contributory family pension. -
(1) to a Government servant entering service in a pensionable establishment on or after 1st April, 1966, and
(b) to Government servant who was in service on 31st march, 1966 and came to be governed by the provisions of the Family Pension Scheme for State Government Employees, 1966 contained in Government of Madhya Pradesh Finance Department Memo No. 1963/C.R. 903-IVR.II dated 17th August, 1966 as in force immediately before the commencement of these rules.
(2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3)(a) Where a Government servant, who is not governed by the Woekman's Compensation Act, 1923 (No. 8 of 1923), dies while in service after having rendered not less than weven years continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn or twice the family pension 6 Writ Appeal No.1184/2017 admissible under sub-rule (2), whichever is less, and the amount so admissible shall be payable from the date following the date of death of the Government servant:-
(I) for a period of seven years; or
(ii) up to the date on which the deceased Government servant would have attained the age of 67 years had he survived, whichever period is less.
(b) Where a Government servant who is not governed by the Workmen's compensation Act, 1923 (No. 8 of 1923) dies after retirement after having rendered not less than seven years continuous service., the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn by the pensioner before retirement or twice the family pension admissible under sub-rule (2), whichever is less, and the amount so admissible shall be payable from the date following the date of death of the pensioner:-
(i) for a period of seven years; or (ii) till the date on which the pensioner would
have reached the age of 67 years had he remained alive, whichever period is shorter:
Provided that the amount of family pension shall not exceed the pension sanctioned to the Government servant at the time of retirement. In cases where the amount of family pension as admissible under clause (b) (i) of sub-rule (2) of this rule exceeds the pension sanctioned at the time of retirement, the amount of family pension sanctioned under this sub-rule shall not be less than that amount. The term 'pension sanctioned at the time of retirement' shall mean 'the pension inclusive of the part of the pension which the 7 Writ Appeal No.1184/2017 retired Government servant may have commuted before death.'
(c)(i) Where a Government servant who is governed by the workmen's Compensation Act, 1923 (No. 8 of 1923) dies while in service after having rendered not less than seven years continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn or one and a half times the family pension admissible under sub-rule (2) whichever is less.
(ii) where a Government servant who is governed by the Workmen's Compensation Act, 1923 (No. 8 of 1923) dies after retirement after having rendered not less than seven years continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of pay last drawn by the Government servant or one and half times the family pension admissible under sub-rule (2), whichever is less.
(iii) The family pension so determined under sub-clause(i) or (ii) shall be payable for the period mentioned in clause (a) or clause (b) as the case may be :
Provided that where a compensation is not payable under the aforesaid Act, the Head of office shall issue a certificate ot the Audit Officer to the effect that family of the deceased Government servant. Is not eligible for any compensation under the aforesaid Act and the family shall be paid family pension on the scale and for the period mentioned in clause (a).
(d) After the expiry of the period referred to in clause (a) or (b), the family, in receipt of family pension under those clauses or clause (c)c, shall 8 Writ Appeal No.1184/2017 be entitled to family pension at the rate admissible under su-rule(2).
14. It is apparent that for the purpose of family pension Rule 4-6 of the Pension Rules of 1979 read with Rule 47 of the Rules of 1976 makes it clear that if an incumbent has rendered not less than 7 years continuous services, family of incumbent is entitled for the family pension. It is not in dispute that deceased Jabmohan Singh Gond had rendered the continuous service for more than 7 years. Rule 6(3) of the Pension Rules of 1979 clearly provides that without interruption for not less than 6 years such services shall be counted for pension as if such services has rendered on regular post, qualifying service has to be given effect to while considering the length of the service, as specified in Rule 2(c) of the Rules of 1979 otherwise the purpose of fiction created of Rule 6(3) stands defeated. Thus the submission raised by the respondents that as per Rule 6(3), services cannot to be computed towards qualifying service, cannot be accepted. The services which has been rendered, as qualifying service, under Rule 6(3) of the Pension Rules of 1979 has to be counted, as rendered on a regular post. Thereafter entitlement has to be determined by the respondents in accordance with law."
6. In view whereof, the findings arrived at by learned Single Judge cannot be faulted with.
7. As regard to pension for the personnel who are initially engaged on daily wagers in Work-Charged and Contingency Paid Establishment and later regularised, the services rendered prior to regularisation is counted for the purpose of pension. For an authority, please see decision rendered by a co-ordinate Bench of 9 Writ Appeal No.1184/2017 Indore in the case of State of M.P. vs Ramchandra Singh : Writ Appeal No.179/2010 decided on 05.08.2013, wherein it is held :
"7. Considering the entire controversy, we find that the stand of the appellants/State is severely lopsided and misguided. Considering the case of the petitioner that he was a Gangman and for his services rendered pension to be paid, would be regulated by the M.P. Pension Rules of 1979. The appellants/State have not denied the fact that the petitioner was working as a daily wager in the respondent/Public Works Department from 1/6/1957 to 31/12/1995 and after more than 25 years of service he was regularized on the post w.e.f. 1/1/1996. Then undoubtedly the case of the respondent/petitioner would fall under Rule 6(3) of the M.P. (Workcharged and Contingency Paid Employees) Pension Rules 1979.
8. Dealing with the matter in detail we find that the petitioner was a Gangman working on a daily wage basis and not working against any permanent post as alleged and the dispute that he cannot be extended the benefit of the M.P. Pension Rules 1979 is however, finally set at rest in the matter of Vishnu Mutiya and others vs. State of M.P. And others : 2006(1)MPLJ 23 whereby a Full Bench of this Court has held thus:
"While deciding the Gulabsingh's case the 1977 Rules and Pension Rules of 1979 were not brought to the notice of the Court. Under Rule 6 of 1976 Rules the employees who were in service for at least fifteen years on 1.1.1974 were eligible for the status of permanent work charged or contingency paid employees. This has been made 10 Writ Appeal No.1184/2017 more liberal by the 1979 Rules. Rule 2(c) of the 1979 Rules lays down that a contingency paid employee or a workcharged employee becomes permanent employee wherever he completes fifteen years of his service though it may be after 1.1.1974."
And further "in such circumstances we hold that the services of gangmen are governed by the Rules applicable to work charged and contingency paid employees even though the gangman is not included in the schedule of 1976 Rules and the age of superannuation is 62 years as other Class IV employees of the Statement Government because they are in comparable category."
9. Thus, we find that the entire controversy hinges on the period that the employee has served prior to regularization as a work charged employee and whether such services should be counted for pension as already stated above. We find that the ratio laid down in the case of Mamta Shukla (supra) would not be applicable in the present case simply for the reason that the case of the respondent/petitioner is fully covered by the sub-rule (3) of Rule 6 as amended vide notification dated 30th January, 1996 in the M.P. (Workcharged and Contingency Paid Employees) Pension Rules 1979 vide FD No.B25/ 17/95/PWC/IV which provides for counting of six years service rendered in the Work-Charged Establishment without interruption prior to regularization in the regular department.
10. We also find that the point of discrimination has been raised by the learned Counsel for the 11 Writ Appeal No.1184/2017 respondent/petitioner stating that similar relief was granted to other gangmen in Writ Appeal No.279/2009 (State of M.P. Vs. Dhanna), W.A. No.253/2011 (State of M.P. vs. Nanuram) and W.A. No.400/2011 (State of M.P. vs. Ratanbai). We find that the petitioner has rendered blemishless service of almost 43 years in the Public Works Department of the State and therefore, in a welfare State where retiral benefit is the obligation of the State, such bureaucracy and mulish behaviour is not to be accepted. This Court had already imposed cost of Rs.40,000/on the State. Moreover the case of the applicant does not come within the purview of Mamta Shukla (supra) since his case is completely covered by sub rule (3) of Rule 6 of the M.P. (Workcharged and Contingency Paid Employees) Pension Rules 1979 is already stated above.
11. In the present case although the respondent was appointed as a gangman on muster role on 01/06/1957 he was regularized w.e.f. 01/01/1996 and he retired on 30/06/2000 and six years uninterrupted services prior to the regularization shall be taken into consideration by the appellant/department while calculating the pension of the respondent/petitioner. We have no hesitation in holding that the State is misguided in its appeal and it deserves to be dismissed as such.
12. Consequently, it is hereby declared that the services of the respondent/petitioner would be governed by sub rule (3) of Rule 6 of the M.P. (Workcharged and Contingency Paid Employees) Pension Rules, 1979 and the case is squarely covered 12 Writ Appeal No.1184/2017 by several judgments of the earlier Division Bench and no error has been committed by the learned Single Judge in allowing the writ petition. If the petitioner/respondent has not been paid the pension and other consequential benefits the appellant/State shall do so within two months from the date of this order and it is directed in the interest of justice the amount shall be paid with interest at the rate of 6% per annum."
8. In view whereof, the petitioner No.1 was entitled for counting of his past service under Rule 6(3) of 1979 Rules.
9. Now coming to family pension. The issue, in our opinion, has been duly considered and decided in the case of Smt. Sampat Bai vs State of Madhya Pradesh : Writ Petition No.17240/2012 on 05.02.2013, wherein it is held :
"Question is whether the respondents are justified in rejecting the claim and whether the proposition of law laid down in Mamta Shukla (supra) and the provisions of M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979 and M. P. Civil Services (Pension) Rules 1976, supports the rejection order.
And whether rendering 10 years of service in a work charged establishment will also be condition precedent for granting of family pension, could be ascertained after examining the relevant provision of 1979 Rules and that of 76 Rules.
Rule 4 A of the Rules of 1979 and Rule 6 thereof respectively provide for:
"4 A. Notwithstanding anything contained in rule 4 the family of a permanent employee, who dies while in 13 Writ Appeal No.1184/2017 service or after retirement on pension on or after the 1st April 1981 shall be entitled to family pension at the rate of 30% of his/her pay drawn at the time of death/retirement subject to minimum, of Rs.40/- per month and maximum of Rs. 100/- per month subject to other conditions of Rule 47 of Madhya Pradesh Civil Services (Pension) Rules, 1976 except sub-rule (3) of the said Rules.
6. Commencement of qualifying service - (1) subject to the provisions of Chapter III of the Madhya Pradesh Civil Services (Pension) Rules, 1976 or section IV of the Madhya Pradesh New Pension Rules, 1951 as the case may be, for calculating qualifying service of a permanent employee who retires as such, the service rendered with effect from the 1st January, 1959 onwards shall be counted.
(2) On absorption of a permanent employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1959 onward shall be counted for pension as if such service was rendered in a regular post.
(3) On absorption of temporary employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1974 onwards, if such service is of less than six years shall be counted for pension as if such service was rendered in a regular post.
When the aforesaid two Rules are read together, it is clear as crystal that the provisions which govern the family pension has a different field of operation than the provisions regarding pension to an employee who retires from the work-charged establishment and are governed by Rule 6 of Rules of 1979.
By virtue of Rule 4 A the provisions as contained under Rule 47 of the M.P. Civil Services (Pension) Rules, 1976 are attracted. The said Rule provides for
47. Contributory Family Pension - (1) The provisions of this rule shall apply:- (a) to a Government servant entering service in a pensionable establishment or on after 1st April 1966, and (b) to a Government servant who was in service on 31st March, 1966 and came to be governed by the provisions of the Family Pension Scheme for State Government Employees, 1966 contained in Government of Madhya Pradesh Finance 14 Writ Appeal No.1184/2017 Department memo No.1963/C.R903-IV-R. II dated 17th August, 1966 as in force immediately before the commencement of these rules.
(2) Subject to the provision of sub-rule (5) and without prejudice to the provisions contained in sub rule (3), where a government servant dies-
(a) during the period of service he was found medically fit at the time of appointment.
(b) after retirement from service and was on the date of death in receipt of a pension or compassionate allowance, referred to in Chapter V other than the pension referred to in Rule 34, on the date of death, the family of the deceased shall be entitled to a contributory family pension (hereinafter in this rule referred to as Family pension) the amount of which shall be determined as follows:-
Pay of Government Servant Amount of monthly Family Pension
(i) Below Rs.400 30 per cent of pay subject to minimum of Rs. 60 and a maximum of Rs. 100.
(ii) Rs.400 and above but not 15 per cent of pay subject to minimum exceeding Rs. 1200 of Rs.100 and a maximum of Rs. 160.
(ii) Above Rs. 1200 12 per cent of pay subject to a minimum of Rs. 160 and a maximum of Rs. 250.
A harmonious reading of Rule 4 A of Rules, 1979 and Rule 47(2) (a) of Rules, 1976 would fresco that if a person employed in a regular work-charged establishment dies while in service, his family cannot be deprived of the pension which it would be entitled for by virtue of Rule 4 A of Rules, 1979.
As to the law laid down by Full Bench in Mamta Shukla (supra) the issue before the Full Bench was-
"(i) Whether the decision of the Division Bench in W.A. No. 725/2007, Smt. Rahisha Begum vs. State of M.P. and others is not a good law in view of the decision of the earlier Division Bench of this Court vide order dated 18-7-2005, passed in W.P. No. 1273/2000, State of M.P. And others vs. Ram Singh and another ?
(ii) Whether an employee is eligible for the benefit of family pension in accordance with the provisions of 15 Writ Appeal No.1184/2017 Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 after completing qualifying service in accordance with the provisions of Recruitment Rules framed by the concerned Department for work charged and contingency paid employees or in accordance with the definition of Rule 2 of Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 in regard to "contingency paid employee", "work-charged employee" and permanent employee" ?
(iii) Whether for counting qualifying service of an employee for the purpose of grant of benefit of pension it is necessary that the employee has to be appointed in accordance with the provisions of contingency paid employees recruitment rules framed by the concerned department in regard to work charged and contingency paid employees ?"
The reference was answered in the following terms -
"24- On the basis of above discussion, we hold in regard to the substantial questions of law Nos: 2 and 3 that an employee is eligible to count his past service as qualifying service in accordance with Rule 6 of the Pension Rules, 1979, if he was appointed in accordance with the provisions of Recruitment Rules of 1977. We further hold that an employee, who was not appointed in accordance with the provisions of Recruitment Rules framed by the concerned department, i.e., the Recruitment Rules of 1977, would not be eligible to count his past service as qualifying service for the purpose of grant of pension in accordance with the Pension Rules of 1979 and we answer the substantial questions of law Nos. 2 and 3 accordingly.
25. In regard to substantial question of law No. 1 Earlier Division Bench of this Court in W.P. No. 1273/2000, State of M.P. vs. Ramsingh and another, as held that a daily wager employee would not fall within the definition of work charged and contingency paid employee, hence his case would not be covered by Madhya Pradesh Workcharged and Contingency Paid 16 Writ Appeal No.1184/2017 Employees Pension Rules, 1979, has not been noticed by the subsequent Division Bench of this Court in Rahisha Begum vs. State of M.P. And other, 2010(4) MPLJ 332. However, in the subsequent case, the Division Bench has held that if an employee comes within the definition of work charged and contingency paid employee as defined the Pension Rules of 1979, then he is eligible to count his past service for the purpose of qualifying service in accordance with the Rules of 1979. In our opinion, there is no conflict between the Division Bench judgments, because the findings of the Division Benches are based on different factual aspects. Accordingly, we answer the substantial question of law No. 1 that there is no conflict of opinion between the two Division Bench judgments. Hence, the decision of the Division Bench in the case of Rahisha Begum vs. State of M.P. and others, 2010(4) MPLJ 332, is not per incuriam. We answer substantial question of law No. 1 accordingly."
Apparent, it is from the above pronouncement that, the issue as to grant of family pension to a widow of an employee of work charged who are apparently covered by Rule 4A of Rules of 1979 was not the term of reference and nor was the same dwelt upon by the Full Bench.
In view of above, the respondents are not justified in denying the family pension to the petitioner only on the ground that the petitioner's husband did not complete 10 years of service in Regular Work Charged Establishment.
In view whereof, the impugned order dated 07.05.2012 is quashed. The respondents are directed to grant family pension to the petitioner from the date of entitlement. Petitioner shall also be entitled for the interest @ 7.5% on the difference till its final payment."
10. In view of the above discussion, since we perceive no illegality in the impugned order, we decline to cause an indulgence.
17 Writ Appeal No.1184/201711. The appeal filed by State of M.P. and its functionaries is dismissed.
(SANJAY YADAV) (B. K. SHRIVASTAVA)
JUDGE JUDGE
Loretta/vinod
Digitally signed by LORETTA RAJ
Date: 2019.12.29 23:22:37 -08'00'