Jhamaklal vs The State Of Madhya Pradesh on 17 January, 2020

[Cites 8, Cited by 1]

Madhya Pradesh High Court

Jhamaklal vs The State Of Madhya Pradesh on 17 January, 2020

The petitioners before this Court have filed this present writ petition being aggrieved by the order dated 26/11/2012 by which the respondents have rejected the claim of the petitioners for counting of their past services w.e.f. 03/10/1958, 01/02/1964 and 12/09/1961, respectively ie., the period of service rendered by them prior to their absorption.

The undisputed facts of the case reveals that petitioner Nos. 1 and 2 were appointed on 3/10/1958 on the post of Gram Secretary and petitioner No.3 was appointed on 1/2/1964 and petitioner No.2 was appointed on 12/9/1961. They were absorbed on the post of Gram Sahayak on 1/2/1982.

This is their third visit before this Court. Earlier Writ Petition preferred by them ie., W.P.No. 1627/2011(s) was disposed of by directing the Competent Authority to consider the case of the petitioners in the light of the order passed in the case of Mangilal Pal Vs. state of MP and others (W.P.(S) No. 885/2006, decided on 22/1/2008). In the light of the earlier order passed by this Court the respondents have rejected the claim of the petitioners by order dated 26/11/2012.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W P No. 1715 / 2014 JHAMAKLAL AND OTHERS VS. STATE OF MP & OTHERS

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Learned counsel for the petitioner has drawn attention of this Court towards the order dated 30/7/2007 passed in W.A.No. 328/2006 (Gwalior) (State of MP & Others Vs. Laluram Sharma) and his contention is that the controversy involved in the present case stands concluded by order dated 30/7/2007. The order dated 30/7/2007 reads as under :

W.A.No. 328 / 2006

30/07/2007 Appellants State by Shri Vivek Khedkar, Government Advocate.

Respondents by Shri jai Prakash Mishra, Anii Sharma and Deepak Chandna, Advocates.

Heard counsel for the parties.

This Order shall govern the disposal of thirteen Writ Appeals viz. 328, 326, 327, 329, 330, 524, 525, 526, 258, 521, 523, 522, and 527, all of the year 2006, as common question of law and fact is involved in all these appeals.

2. Writ Appeal No.328/06 shall be the leading case.

3. Brief facts of the case are that the petitioner in W.P.5720/03 was appointed to the post of Group Secretary in Panchayat Department vide order Annexure A/1 dated 15/1/1958 issued by the Secretary, Panchayat Circle Bhind. He was re-designated as Panchayat Secretary vide order Annexure A/2 dated 8/6/1965, whereby all the group secretaries Panchayat were re-designated as Panchayat Secretaries. Panchayat Act was amended in the year 1981 and new Act came into force. After coming into force of 1981 Act, all the Panchayat Secretaries were re-designated as village assistants and order dated 17/10/1983 Annexure A/3 was issued in this respect, whereby the petitioner in W.P.No.5720/03 was appointed as village assistant in the pay scale. of Rs.155-252.

4. Subsequently a circular was issued by the State Government on 12/8/1987 which provides that the services of Panchayat Secretaries which are taken over on 1/2/1982 shall be absorbed as village assistants. However, so far as, their seniority is concerned, they shall be placed below the persons who are already working in the department and they will have to fulfill the minimum qualification prescribed by HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W P No. 1715 / 2014 JHAMAKLAL AND OTHERS VS. STATE OF MP & OTHERS

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the aforesaid circular.

5. Petitioner retired somewhere in the year 1991 and he submitted his claim for pensionary benefit. This benefit was rejected by the State government on the ground that the petitioner has not completed the qualifying service required for payment of pensionary benefit, as his services prior to 27.1.1982 could not be counted.

6. Only question involved in all these appeals was whether those employees who are absorbed in the department as per the circular dated 12/8/1987 are entitled for counting of their services rendered prior to 27/1/1982. As they were denied the benefit by he State. Government, they approached by filing different writ petitions.

7. Learned single Judge, after hearing the parties, allowed the petitions vide the impugned order, hence, all these appeals are filed by the State Government.

8. Common question involved in all these writ appeals is whether the employees who had worked prior to 27/1/1982 are entitled for benefit of their previous service for the purpose of pensionary benefit and whether that period can be counted as qualifying period for pensionary benefit.

9. Learned single Judge relying upon a Division Bench decision of this Court in the case of Panchavat Karmachari Sangh vs. State of Madhya Pradesh and another, 1985 JLJ 609 has allowed the petitions holding that the petitioners are entitled for pension and their previous services should be counted towards the qualifying service required for pensionary benefit. This order is under challenge in these writ appeals.

10. First contention raised by the learned Government Advocate for the appellant State is that the order impugned is illegal and contrary to law. Counsel for the appellant, in support of his argument, has relied upon Division Bench decision of this Court in the case of Panchavat Karmachari Sangh vs: State of MP, 1988 JLJ 675. From perusal of the said judgment, we find that this judgment is quite distinguishable. In that case, a petition was filed by Panchayat Karmachari Sangh praying for issuing a writ of mandamus directing. the State to declare the Panchayat Secretaries as Government Servants. Question of counting their previous. service was not involved in that case. Hence, HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W P No. 1715 / 2014 JHAMAKLAL AND OTHERS VS. STATE OF MP & OTHERS

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the said judgment is quite distinguishable.

11. Another judgment relied upon by the learned counsel for the appellants is the case of State of Punjab vs. Dev Dutt Kaushal etc., 1995 AIR SCW 3743. From perusal of the said judgment, it appears that in that case the question involved was whether the employees who were working in a private college are entitled for counting of their previous services rendered in a private college towards qualifying services for pensionary benefit. The Apex Court in that case has held that they are not entitled for counting of their previous service. From perusal of the said judgment, it appears that in the private college in which those employees were in service, their services were not pensionable. The Apex Court has also considered that there was a gift deed whereby services of the employees were transferred. In the said gift deed, it was clearly mentioned that the employees of the private college shall be treated as new entrants and therefore, the Apex Court, considering the terms and conditions of the gift deed, has held that the petitioners in that case are not entitled for counting of their services in the private college.

12. Next judgment relied upon by the learned counsel for the appellants State is the case of State of Punjab Vs. Tara Singh Shahi. (1996) 8 SCC 448. That is also a case of taking over staff of a private college by the State Government. Gift deed was executed between the parties whereby terms and conditions of the employees of private college were laid down and she Apex Court in Para 8 of the said judgment has held that gift deed in respect of the matter does not provide for applying rules for retirement at the age of 58 years. This judgment also depends upon the language of the gift deed.

13. Another judgment cited by the learned counsel for the appellants State is the case of State of Puniab vs. Harbans Singh Gill, (2000) 9 SCC 410. This judgment was delivered by the Apex Court relying upon the earlier judgment in the case of Dev Dutt Kaushal (supra), hence, the said judgment is also distinguishable.

14. In the judgment in the case of Government of Tamil Nadu vs. M. Ananchu Asari. and .others, (2003) 10 SCC 503. cited by the learned counsel for the appellants State, the question involved was fixation of cut off date for entitlement of pension. This question is not directly involved in these appeals.

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15. Last judgment relied upon by the learned counsel for the appellant State is the case of State of Punjab and others vs. Harnam Singh and others, (1997) 3 SCC 32 which relates to question. of seniority on taking over an educational institution by the Government. 'This question. is also not relevant for decision of these appeals. Circular dated 1218/1987 itself provides that the persons who are already working as Panchayat Secretaries shall be placed below the persons who are already working in the department. Hence, the question of seniority is not involved in these appeals.

16. The case totally depends upon the circular dated 12/8/1987 issued by the State. Government. On perusal of the aforesaid circular; it is apparent that the Government was treating these Panchayat employees as Panchayat Secretaries who were working earlier to 1/2/1982 and they were absorbed. The Government never treated them as fresh employees nor fresh appointment by the said circular. Once it is held that services of the employees are absorbed: then, they are entitled for counting of their previous service towards pensionary benefit.

17. Similar question was considered by this Court in the case C.A.Bhakre vs. State of M.P. And others, 1987 M.PLJ 509 and in that case; services of Municipal teachers who were absorbed in the Government service was under

consideration and this Court has held that municipal teachers who are absorbed in the Government service are entitled to pensionary benefit by counting their previous service.

18. The Division Bench of this Court in the case of State of MP Vs. Champa Soni and another, 2001(2) MPLJ 333 has held that persons who were initially appointed in Integrated Women and Child Development Project established by the State and were absorbed in the Department of Panchayat and Social Welfare of the State of Madhya Pradesh, on abolition of the project are entitled for counting of their past service on the ground that they were absorbed in the State Government services, and therefore, they are entitled for counting their past service.

19. In view of the aforesaid discussions, we do not find any merit in these appeals. Hence, all the appeals stand dismissed with no order as to costs.

In the light of the aforesaid judgment as well as the judgment delivered in W.A.No. 493/2012 and W.P.No. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W P No. 1715 / 2014 JHAMAKLAL AND OTHERS VS. STATE OF MP & OTHERS

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3979/2007, decided on 22/8/2012 and 2/12/2010, respectively, the present Writ Petition also stands allowed. The petitioners shall be entitled for the benefit flowing out of the order passed in W.A.No. 328/2006. Respondents are directed to take into account the past services of the petitioners. The exercise of conferring the benefits to the petitioners be concluded within a period of four months from the date of receipt of certified copy of this order.

(S. C. SHARMA) JUDGE KR Digitally signed by Kamal Rathor Date: 2020.01.20 11:36:27 +05'30'

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