Madhya Pradesh High Court
Amarsingh Chouhan vs The Jawaharlal Nehru Krishi ... on 16 March, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
SINGLE BENCH : HON'BLE SHRI JUSTICE VIVEK RUSIA
W.P. No.21975/2018
Petitioner : Amarsingh Chouhan S/o Late Bherusingh Chouhan
Respondent : Jawaharlal Nehru Krishi Vishvidyalaya & Others
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Petitioner by Shri Amit Raj, Advocate.
Respondent No.1 by Shri Gurmit Chawala, Advocate.
Respondents No.2 & 3 by Shri Umesh Gajankush,Advocate
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O R D E R
(Passed on 16.03.2020) Petitioner has filed the present petition against the order dated 13.07.2018 and 09.02.2018; whereby the respondent has declined to count the past service of the petitioner from 1980 till regularization on 17.04.1990 and further service rendered in Work Charge Paid Establishment from 17.04.1990 to 14.07.2003, for the purpose of calculating the pension. The petitioner was initially appointed in the year 1980 as dailywager under the establishment of respondents No.1 & 2. The respondents issued a Circular for regularizing the daily-rated employees appointed prior to 1988 and has completed 240 days of service in a calendar year. Vide order dated 16.04.1990, the petitioner had been fixed in time scale of Rs.725-10-755-12-855-15-900/- as a temporary employee and he shall be entitled for increment after completion of one year. Thereafter vide order dated 11.07.2003 the petitioner was appointed as a Lab Keeper in the pay scale of Rs.2550-3200/- for the period of 2 years probation under the special recruitment drive to fill the backlog/carry forward post.
22. After attaining the age of superannuation the petitioner retired from service w.e.f. 31.01.2018. Vide order dated 09.02.2018, the respondent No.2 has sanctioned the provisional pension @ 90% and also sanctioned the release of 90% of gratuity amount and since then the petitioner is getting 90% of pension. According to the petitioner, the respondents have calculated the pension by counting his service from 25.07.2003 to 13.01.2018; whereas his past services from the date of initial appointment in the year 1980 are liable to be counted.
3. After notice the main contesting party respondents No.2 & 3 have filed return by submitting that the respondent No.3 has rightly taken into consideration only 14 years 6 months and 7 days as qualifying service for the purpose of pension. The petitioner was engaged in the year 1980 as dailywager and in the year 1990 he was given the minimum pay scale payable from the contingency fund but same cannot be treated as appointment in the contingency establishment. The petitioner was regularly appointed on the post of Lab Keeper in the pay scale of Rs.2550-3200/-, therefore, his service is liable to be counted for pension from 11.07.2003 under the Madhya Pradesh Civil Services (Pension) Rules, 1976. However, the pension case of the petitioner is under process as evident from letter dated 01.11.2018.
4. The petitioner has filed the rejoinder to the return by submitting that respondents had created the post of Time Scale Labour in the year 1990 looking to the regular requirement of the service of dailywager and later on the respondents had revised the Time Scale of Labour from 06.09.1990. The petitioner had worked from 16.04.1990 to 13.07.2003 continuously and he was paid from the contingency fund. Hence, the petitioner is entitled to receive the pension by counting his entire service.
5. Shri Amit Raj, learned counsel for the petitioner .;has placed reliance 3 over the judgment passed by the Apex Court in case of Ram Kumar Agrawal V/s. State of M.P. reported in 1995 Supp (3) SCC 67, in which it has been held that, "the qualifying service for the pension is liable to be reckoned from the date of initial appointment in case of appointment in Work Charge Establishment." In a recent case of Prem Singh V/s. State of Uttar Pradesh & Others reported in 2019 (7) Supreme 354, the Apex Court has held that, "services rendered even prior to regularization in the capacity of work-charged employees, contingency paid fund employees shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment."
"As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non-discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularization in the capacity of work-charged employees, contingency paid fund employees or non-pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment."
In the case of Habib Khan V/s. State of Uttarakhand & Others reported in (2020) 1 SCC (L&S) 28, the Apex Court has again directed that, "the period of work-charged service can be reckoned for purpose of computation of qualifying service for grant of pension."
"As already observed, the provisions of Rule 370 of the Civil Service Regulations applicable to the State 4 of Uttarakhand are pari materia with the provisions of Rule 3.17(ii) of the Punjab Civil Services Rules, discussed above. If that is so, we do not see as to why the period of service rendered on work- charged basis by the Appellants should not be counted for purposes of computation of 'qualifying service' for grant of pension. The pari materia provisions of Rule 3.17(ii) of the Punjab Civil Services Rules having been interpreted and understood in the above manner by this Court in Narata Singh (supra) we do not find any room for taking any other view except to hold that the Appellants are entitled to reckon the period of work-charged service for purposes of computation of 'qualifying service' for grant of pension. We order accordingly; allow these appeals and set aside the impugned orders passed by the High Court."
He has also placed reliance over the judgment passed by the co- ordinate Bench of this Court in the case of Gopi Pillai V/s. M.P.E.B., Jabalpur & Another, in which this Court has held that, "harmonious interpretation of the Rules of M.P. Civil Services (Pension) Rules, 1976 and M.P. (Work-Charged and Contingency Paid Employees) Pension Rules, 1979 has to be made, therefore, service rendered in Work Charge Establishment prior to absorption in a regular post service has to be counted as qualifying service."
"Thus, the decision of the Supreme Court squarely covers the field and cannot be said to be per incuriam. Sub-rule (2) of Rule 6 of Rules of 1979 clearly provides that on absorption of a "permanent employee" without interruption against any "regular pensionable post", the service rendered with effect from 1st of January, 1959 onwards shall 5 be counted for pension as if such service was rendered in a regular post. These rules have been framed by the State of M. P. in the year 1979. Harmonious interpretation of the Rules of 1976 and Rules of 1979 has to be made. It is not disputed in the instant cases on facts that there were no interruption and when the petitioners were taken in the regular pensionable post, they were rendering the service in the work-charged establishment. The submission of fact that permanent employee under Rule 2(c) is one who had rendered minimum 10 years service in the work-charged establishment only then such service can be counted as per Rule 6(2) of the Rules of 1979 towards qualifying service under Rule 42 of M. P. Civil Services Pension Rules, 1976 is not acceptable as the Supreme Court has held that such service has to be counted. In view of Rule 6(2) of 1979 Rules when once a person is absorbed in a regular post service rendered in work charged establishment, has to be counted as qualifying service. Not only the Supreme Court's decision holds the field but also the stare decisis requires consistency. This Court way back in the year 1995 in WP No. 1569/94, M. D. Dubey and others vs. M.P.E.B. directed period of workcharged to be computed as pensionable under Rule 42 of the Rules of 1976. In M. T. Joseph vs. M.P.E.B. WP No. 4097/1997 decided on 14-9-1998 similar view was taken. In WP No. 2967/1999 K. C. Alexander vs. M.P.E.B., M. T. Joseph's case was relied on which was affirmed in LPA No. 229/1998 by a Division Bench of this Court decided on 20th of November, 1998 which decision was affirmed as reflected in Annexure P/14 by the Hon'ble Supreme Court and was implemented with respect to M. T. Joseph and his services rendered on work-charged establishment were found as qualifying service under Rule 42 of the Rules of 1976. On facts, it is not disputed that case of M. T. Joseph and present incumbents are 6 same, thus a different view is not permissible to be taken applying the principle of stare decisis."
6. Shri Umesh Gajankush, learned counsel for the respondents No.2 & 3 submits that the services rendered by the petitioner from 1980 till 14.03.2003 shall not be counted for pensionery benefit as he was not working against the regular and sanctioned post. As per M.P. Civil Services (Pension) Rules, 1976, the qualifying service means the period between the date of joining pensionable service under the State Government and retirement therefrom which shall be taken into account for the purpose of pension and gratuity, hence, the petition is liable to be dismissed.
7. The appointment of the petitioner as dailyrated employee since 1980 has not been disputed by the respondents, which is also evident from the revised calculation-sheet prepared for DCRG and pension (Annexure P/1). The petitioner was engaged as a dailywager in VV Campus (M & AP Project), thereafter vide order dated 16.04.1990 he was given the benefit of Time Pay Scale of Rs.725-10-755-12-855-15-900/- as temporary employee. In this order it is specifically mentioned that he was working as a dailyrated employee paid from contingency fund. The language of the order is reproduced below :-
^^fo'ofo|ky; esa dk;Zjr~ fuEufyf[kr nSfud osruHkksxh deZpkfj;ksa dks ftUgsa vkdfLedrk fuf/k ls Hkqxrku fd;k tkrk gS] dk;ZHkkj xzg.k djus dh frfFk ls :-
725&10&755&12&855&15&900 ds VkbZe Ldsy esa vLFkkbZ deZpkjh ds :i esa Hkqxrku gsrq Lohd`fr iznku dh tkrh gS A**
8. Thereafter Vice Chancellor of the Jawaharlal Nehru Krushi Vishvavidyalaya, Jabalpur issued a Circular for regularization of dailyrated employees. Under the special backlog drive the petitioner was appointed as Lab 7 Keeper in the payscale of Rs.2550-3200/-. From 1980 to 16.04.1990 the petitioner worked as a dailyrated employee and paid under the contingency establishment and from 16.04.1990 to 14.07.2003 he worked as a temporary employee in a Time Pay Scale and paid from the contingency fund. From 1980 to 2003 he was governed under the Madhya Pradesh (Work-Charged and Contingency Paid Employees) Pension Rules, 1979.
9. As per the definition 2(a), "Contingency paid employee" means a person employed for full time in an office or establishment and who is paid on mothly basis and whose pay is charged to office contingencies.
10. As per the definition 2(c), the contingency paid employee becomes a permanent employee after completing of 15 years of service or more and becomes eligible to get the pension.
11. As per rule 6 for calculating the qualifying service of permanent employee the service rendered after 1st January, 1959 shall be counted subject to the provisions of Chapter 3 of the M.P. Civil Services Pension Rules, 1976. As per Sub Rule (2) of 6 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. Rules 6 is reproduced below :-
Rule 6 - Commencement of qualifying service -
(1) ........................
(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.
12. As per definition 2(p) of Pension Rules, 1976 the qualifying service 8 means the period between the date of joining pensionable service and the retirement therefrom which shall be taken into account for the purpose of pension and gratuity, therefore, as per the co-joint reading of 2(p) and 6(2) of Rule 79 the entire service of the petitioner is liable to be counted for the period of pension, because in the year 2003 he was absorbed in a service which is pensionable under the Rule 76. From 1980 till 2003 he was being paid from the contingency fund, therefore, he was a contingency paid employee under 2(a) of Rule 79 and after becoming permanent employee and absorption in pensionable service, he becomes entitled for pension by counting his entire service from 1980 till retirement, hence, the petition is allowed. Respondents are directed to issue a revised calculation-sheet for DCRG and pension. Pension and gratuity of the petitioner be revised and he be paid 100% of gratuity and pension within a period of 60 days from today. He shall also be entitled for arrears of pension from the date of retirement till payment along with interest @ 6% per annum.
( VIVEK RUSIA )
JUDGE
ns
NEERAJ NEERAJ SARVATE
2020.03.19
SARVATE 18:37:55 +05'30'