Madhya Pradesh High Court
Rajmata Vijyaraje Scindia Agriculture ... vs Amarsingh Chouhan on 8 July, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT APPEAL No. 1103 of 2021
BETWEEN:-
1. RAJMATA VIJYARAJE SCINDIA
AGRICULTURE UNIVERSITY THRU. IST
REGISTRAR GWALIOR (MADHYA PRADESH)
2. COLLEGE OF AGRICULTURE THR DEAN
INDORE (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI VIVEK KHEDKAR- ADVOCATE)
AND
1. AMARSINGH CHOUHAN S/O LATE SHRI
BHERUSINGH CHOUHAN, AGED ABOUT 62
YEARS, OCCUPATION: RETIRED, EMPLOYEE
232/15, PIPALYAHANA, RING ROAD, INDORE
(MADHYA PRADESH)
2. JAWAHARLAL NEHRU KRISHI
VISHVIDYALAYA THR ITS VICE
CHANCELLOR JABALPUR (MADHYA
PRADESH)
3. JOINT DIRECTOR LOCAL FUND AUDIT
MAHARAJA COMPLEX, DIST INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT RAJ- ADVOCATE )
...................................................................................................
Reserved on : 19.04.2024
Pronounced on : 08.07.2024
...........................................................................................................
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 7/9/2024
6:28:10 PM
2
This appeal having been heard and reserved for orders, coming
on for pronouncement this day, Justice Subodh Abhyankar passed
the following:
JUDGEMENT
Heard finally, with the consent of the parties.
2] This writ appeal has been filed by the appellant Rajmata Vijyaraje Scindia Agriculture University, Gwalior, as also the College of Agriculture, Indore as appellant No.2, under Section 2(1) of Madhya Pradesh Uchya Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, against the order dated 16.03.2020 passed in W.P. No.21975/2018 (Amarsingh Chouhan Vs. Jawaharlal Nehru Krishi Vishwavidyalaya) by this Court, as well as the order dated 23.10.2021, passed in R.P. No.813/2021.
3] The facts of the case, in brief, are that the respondent petitioner herein (hereinafter referred to as the „petitioner‟), had filed a writ petition before this Court assailing the order dated 13.07.2018, and 09.02.2018, whereby, the appellant/respondent (hereinafter referred to as the „respondent‟) had declined to count the past service of the petitioner from 1980 till his regularization on 17.04.2019, and further service rendered in work charge paid establishment from 17.04.2019 to 14.07.2003, for the purpose of calculating the pension. The aforesaid petition was allowed, and it was directed that the petitioner was entitled to revised calculation for DCRG (Death-cum-Retirement Gratuity) and pension and it was also directed that 100% of gratuity and pension be paid within sixty days from the date of order. The aforesaid order was also the subject matter of review before the Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 3 learned Single Judge in R.P. No.813/2021 at the instance of the respondent, as earlier, W.A. No.496/2021 was also filed by the respondents, however, the same was withdrawn, with liberty to file a review petition.
4] The aforesaid review petition was also dismissed by the learned Single Judge vide its order dated 23.10.2021. Hence, the present appeal has been preferred against both the aforesaid orders passed by the learned Single Judge dated 16.03.2020 and 23.10.2021 respectively.
5] Shri Vivek Khedkar, learned counsel appearing for the appellant has submitted that the impugned order passed by the learned Single Judge runs contrary to the documents filed on record, is contrary to law and thus, is liable to be set aside. It is submitted that the petitioner has suppressed various facts before the writ Court that the grant of time scale by Jawaharlal Nehru Krishi Vishwa Vidyalaya (hereinafter referred to as „JNKVV‟) was without any sanction from the State Government, as is disclosed by the documents filed by the appellant University as Annexure-AW/4 and AW/5, which clearly demonstrates that the grant of benefit of time scale was without any authority of law or approval or sanction of the post. Thus, it is submitted that it cannot be submitted that the petitioner‟s services were regularized under the time scale, under the work charge contingency. It is submitted that the initial grant of time scale itself, was contrary to the rules, hence, the benefit of counting of service could not have been granted.
Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 46] Counsel has also relied upon the decision rendered by the Full Bench of this Court in the case of Mamta Shukla Vs. State of M.P. reported as 2011 (3) MPLJ 210, in which it is clearly held that the Pension Rules 1979 are not the independent rules regulating the conditions of service of work charge and contingency paid employees recruitment rules with regard to condition of service including appointment qualification, procedure for recruitment and promotion, seniority list, conduct and procedure for imposing penalty. It is also submitted that since the petitioner was a daily wager upto 1990, and thereafter, he was granted the time scale, but not against any specific post, hence, the service rendered by him cannot be counted for the purposes of pension.
7] Counsel has also submitted that even in the order, Annexure- P/3 dated 16.04.1990, it is clearly mentioned that the emoluments would be paid from the contingency fund, as earlier, to the daily wager employee and although there was no sanctioned post available with the then University, but, looking to the poor financial condition of the daily wagers, the benefit was extended to them, but it does not mean that the services of the employees were regularized under the work charge contingency establishment, especially when the rules framed by the Government for the employees of work charge contingency was not adopted and applicable to the appellant University. Counsel has also relied upon the Pension Rules, 1976 as well as Pension Rules, 1987 framed by JNKVV and it is submitted that the Rules framed by the JNKVV clearly demonstrate regarding the qualifying services and the earlier service rendered as daily wager, Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 5 or even under the time scale, would not be counted as qualifying service, whereas, the learned Judge of the writ Court has wrongly relied upon the Pension Rules, 1979, which have been rendered as not applicable in the judgement delivered in the case of Kanhaiyalal Vs. Jawaharlal Nehru Krishi Vishwavidyalaya and Others, passed in W.P. No.19762/2018 dated 12.09.2019, considering the Jawaharlal Nehru Krishi Vishwa Vidyalaya Services Pension Rules, 1987 (Pension, Gratuity & Commutation) framed by JNKVV. 8] Counsel has also submitted that while passing the order in the review petition, the learned Single Judge has also distinguished the judgement given in the case of Kanhaiyalal Vs. Jawaharlal Nehru Krishi Vishwavidyalaya and Others, passed in W.P. No.19762/2018 dated 12.09.2019 and it has been held that as per Rule 6(2) of the M.P. Civil Services (Pension) Rules, 1976, the employees‟ past uninterrupted service is liable to be counted as if such service was rendered in the regular post. It is submitted that the aforesaid reasoning is erroneous for the reason that the past services rendered by the petitioner was not against regular post, hence, the petitioner could not have been held to be entitled to get the benefit of past service.
9] Thus, it is submitted that both the orders are liable to be set aside. It is also submitted that Pension Rules of 1979 were not adopted by the University, as has already been held by this Court in the case of Kanhaiyalal (supra), and the Rule 6(2) of the Pension Rules, 1979 would not be applicable in the facts and circumstances of the case.
Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 610] Counsel has also submitted that in the impugned orders, on many places learned single judge has erroneously referred to Rule 6(2) of the Pension Rules, 1976 which is actually the Rules of 1979. Shri Khedkar has also drawn the attention of this Court to the Rule 6(2) of the Rules of 1979 to submit that since the petitioner was never absorbed on permanent post vide order Annexure-P/4, he was appointed as a fresh appointee only in a process of special recruitment drive in respect of backlog/carry forward post for reserved category on the recommendation of the Selection Committee. It is also submitted that Annexure-P/4 is not an absorption order as the petitioner never worked against the post of lab keeper. 11] It is also submitted that even though the writ Court has held that Rules of 1979 were not adopted by JNKVV, but has also held that as per the Pension Rules, past services were required to be counted. Thus, the finding is contrary to the Rules, and it is also submitted that Rule 3(q) of Pension Rules, 1976 which provides for the definition of „retirement benefits‟, is also not applicable in the present case and on this ground only, the order is liable to be set aside. 12] Lastly, it is submitted that the cost of Rs.25,000/- imposed on the University is also erroneous, for the reason that that the appellants are contesting the matter on merits by adopting the legal procedure only and thus, the cost of Rs.25,000/- in the review petition was not justified and no delay has been caused by the review petitioner over and above the delay which has been caused due to Covid-19. It is submitted that the judgement of Gopi Pillai Vs. M.P.E.B., Jabalpur and Another on which the writ Court has relied upon, is Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 7 distinguishable, including the applicability of Pension Rules, 1979, as in the aforesaid case, no question was raised regarding the applicability of Pension Rules, 1979 and thus, it is submitted that the impugned order be set aside.
13] Counsel for the appellant has also submitted that the present appellant is an Agriculture University and does not have any independent source of income and although, its functioning is autonomous, but in all matters which have financial implications, prior sanction or approval of the State Government is necessary. Hence, it is submitted that in the absence of sanction or approval or financial aid, no post of time scale labour, in all 625 posts, could be created either in the year 1990 or thereafter, but only taking sympathetic view, the respondent University has placed the employees in particular time scale, but without any sanctioned post or designation, and the expenditure was to be borne out of contingency fund. It is submitted that the aforesaid facts were not brought before the Court by the respondent No.1 JNKVV, Jabalpur and, hence, since the official appointment of the petitioner in time scale was not in accordance with law, on a sanctioned post, as has been held by the Full Bench of this Court in the case of Mamta Shukla (supra), the benefit of calculating the length of earlier service as daily wager or as a time scale labourer could not have been granted, especially when the University has not adopted the Rules.
14] It is submitted that although the JNKVV, in a meeting held on 03.12.1994 had adopted grant of pension Rules, 1987 and Pension Rules, 1976, but the Pension Rules of 1979 have not been adopted.
Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 8Thus, it is submitted that the learned Judge of the Writ Court has erred in holding that the decision rendered in the case of Gopi Pillai (Supra) is applicable in the present case.
15] Counsel for the appellant has also referred to Rule 13 of the Rules of 1976, which provide for conditions subject to which service qualifies, and provides that service means service against a post under the Government and paid by the Government from the consolidated fond of the State, which has not been declared as non pensionable. 16] Counsel for the appellant has relied upon the decisions in the cases of Kanhaiyalal Vs. The Jawaharlal Nehru Krishi Vishwavidyalaya & Ors. passed in W.P. No.19762 of 2018 dated 12.09.2019; State of M.P. and others Vs. Bhanwarlal passed in W.A. No.1313 of 2018 dated 20.09.2019; Kala Bai Prajapati Vs. State of Madhya Pradesh and others passed in W.A. No.623 of 2010 dated 09.08.2011 - 2012 (2) MPLJ 115; Mamta Shukla (Smt.) Vs. State of M.P. and others passed in W.P. No.2902/2009 dated 19.04.2011 - 2011 (3) MPLJ 210; Mathura Prasad Yadav Vs. State of M.P. passed in W.P. (s) No.601 of 2009 dated 09.07.2010 - 2010(3) MPLJ 323; Badri Vs. State of M.P. and others reported as 2011 (4) MPLJ 86; Saiyad Julfakar Ali Vs. State of M.P. and others passed in W.P. No.24365 of 2018 dated 06.12.2019; T. M. Sampath and others Vs. Secretary, Ministry of Water Resources and others reported as (2015) 5 SCC 333; State of Maharashtra and Anr. Vs. Bhagwan and Ors. reported as AIR 2022 SC 345; Manmohan Dubey Vs. The State of Madhya Pradesh and Ors. passed in W.A. No.43 of 2023 dated 12.01.2023; Chhotelal Kushwaha Vs. State of Madhya Pradesh Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 9 passed in W.A. No.41 of 2023 dated 13.01.2023; and Kiran Kaole and Ors. Vs. The State of Madhya Pradesh and others passed in W.P. No.153 of 2015 dated 15.02.2023.
17] On the other hand, the prayer is opposed by Shri Amit Raj, learned counsel for the respondent, and it is submitted that no case for interference is made out. It is submitted that the writ Court has already considered all the aspects of the matter and has come to a conclusion that the past services of the petitioner are liable to be counted for the payment of pension and subsequently also, in the review petition, a detailed order has been passed rejecting all the contentions and claims of the appellant. Thus, it is submitted that the appeal being devoid of merits is liable to be dismissed. 18] Counsel for the respondent No.1 has relied upon the decisions in the cases of Vishnu Mutiya and others Vs. State of M.P. and others reported as 2006 (1) MPLJ 24; and Rajendra Korekar Vs. The State of M.P. and others passed in W.P. No.16463 of 2021 dated 07.02.2024, Gopi Pillai vs. M.P.E.B., Jabalpur and Another, State of M.P. vs. Sant Kumar rendered by the Division Bench of this court at Jabalpur in W.A.No.1184/2017 dated 25.11.2019; Vishnu Mutiya and others Vs. State of M.P. and others reported as 2006(1) M.P.L.J. 24; Prem Singh Vs. State of Uttar Pradesh and Others reported as (2019) 10 SCC 516; Habib Khan Vs. State of Uttarakhand and Others reported as (2019) 10 SCC 542; State of Uttarakhand and Others Vs. Habib Khan and Others reported as (2019 ) 10 SCC 545; Ram Deo Tiwari Vs. State of Uttar Pradesh and others reported as (2019) 10 SCC 546; Rahisha Begum W/o Late Ashraf Khan Vs. Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 10 State of M.P. and others reported as [2010 (4) MPLJ 332]; Sant Kumar Mishra and another Vs. State of M.P. and others reported as 2017 (3) JLJ 212; and State of Madhya Pradesh & Ors. Vs. Ramchandra Singh reported as 2013 SCC OnLine MP 6012. 19] Heard counsel for the parties and perused the record. 20] From the record, it is apparent that the appellants contention has been dispelled by the Writ Court on the ground that the earlier service rendered by the petitioner shall be counted by virtue of Rule 6(2) of M.P. Civil Services (Pension) Rules, 1976 (wrongly mentioned as 1976 by the writ court, it should have been 1979), and also on the ground that the decision rendered in the case of Kanhaiyalal (Supra) is distinguishable, holding that Kanhaiyalal was never given the benefit of M.P. Civil Services (Pension) Rules, 1976, till his retirement, and M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979 applied to him, which were not adopted by JNKVV, whereas in the case at hand, after 11.07.2003, the petitioner was not a daily rated employee in a contingency establishment and became member of pensionable service under the Rules of 1976.
21] During the course of arguments, counsel for the appellant has also drawn the attention of this Court to the Jawaharlal Nehru Krishi Vishwa Vidyalaya Services (General Conditions of Service) Regulations, 1969 (hereinafter referred to as „the Regulations of 1969‟), and Regulation 2(f) of which provides for the definition of post, which means, Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 11 "2(f). Post.-a whole time employment under the Vishwa Vidyalaya, but does not include any employment where the employee is paid from the contingencies", whereas, as per the order (Annexure-P/2) dated 21.03.1990, whereby, the time scale has been awarded to the petitioner, it is mentioned that, "bl VkbEk Ldsy ij gksusokyk O;; vkdfLed fuf/k ds mlh 'kh"kZ ls Hkqxrku fd;k tk;sxk tgkWa bl le; budh etnwjh fodfyr dh tkrh gSA"
Thus, it cannot be said that the petitioner was actually holding any post as provided under the the Regulations of 1969. 22] So far as the decision rendered by the Co-ordinate Bench in the case of Kanhaiyalal (Supra) is concerned, it has been held as under:-
"10. In the present case, the respondent No.1/university has its own pension rules i.e. JNKVV Service Pension Rules, 1987 and also taken a decision to grant pension under the Rules of 1976 to its full time and regular employees but not to the persons in the work charged and contingency establishment and paid from the contingency fund. The petitioner has not challenged the validity of the order dated 31.12.1994 in this writ petition. By this order the persons working in the work charged and contingency paid establishment and paid from contingency fund have been excluded from the Pension Rules of 1976. The relevant part of the order reads as under:
JAWAHARLAL NEHRU KRISHI VISHWA VIDYALAYA SERVICES PENSION RULES, 1987 (PENSION, GRATUITY & COMMUTATION)
1. Applicability of the Pension, Family pension & Commutation benefits:-
1.1 The pension, gratuity, family pension and Commutation of pension benefits admissible to the Govt. servants of Madhya Pradesh, under the Madhya Pradesh Civil Services (Pension) rules, 1976 and the M.P Civil Pension (Commutation) Rules, 1976, as Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 12 amended from time to time may be made applicable to the officers, teachers & service personnels, other than the Chancellor and Vice- Chancellor, with effect from 1.4.1987.
1.2 These rules shall not apply to :-
(i) Persons paid from Contingencies.
(ii) Persons in casual and daily rated employment.
2. Schemes: Consequent thereon, there shall be the following two schemes in operation, in the Vishwa Vidyalaya.
Scheme -A. Employees Contributory Provident Fund Scheme, as per statute 42 to statute 53, under Chapter-v of the JNKV, Statute 1964, and Scheme-B. Pension and Gratuity Scheme of the State Govt. of Madhya Pradesh, under the M.P Civil Services (Pension) Rule 1976, as amended from time to time.
11. The Pension Rules of 1979 have not been adopted by the university. The Pension Rules of 1979 provides for grant of pension to the contingency paid employees under the provisions of the Rules 1976 but same is not vice versa. The respondent No.1 being a university is required to adopt the Rules of 1979 then only the petitioner would be entitled to claim pension, therefore, at this stage, the petitioner is not entitled for pension under the Rules of 1979."
(Emphasis Supplied) 22] The learned Judge of the Writ Court, in the order dated 23.10.2021 passed in R.P.No.813 of 2021, has distinguished the aforesaid judgement of Kanhaiyalal (Supra) in the following manner:-
"(5) Shri Amit Raj, learned counsel appearing on behalf of the writ petitioner submits that the facts of the present case, as well as facts of the writ petition 19762/2018, are altogether different. In the aforesaid writ petition, the writ petitioner Kanhaiyalal was appointed as a daily wager in the year 1970 thereafter he was regularized vide order dated 21.03.1990 in contingency establishment and retired after attaining the age of 60 years on 31.01.2008. After retirement he was not given the benefits of Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 13 pension hence, he filed writ petition No. 2861/2015 seeking pension, which was disposed of and thereafter fresh writ petition No.19762/2018 was filed seeking benefit of pension by virtue of rendering 18 years of service after regularization. The JNKVV contested the writ petition with a plea that the Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 do not apply to the petitioner as the university never adopted these rules. The person in the work charge establishment and contingency have specifically been excluded from the purview of pension rules, therefore, this Court dismissed the writ petition. The petitioner throughout remained into service in the work charge establishment and governed under the Rules of 1976 but in the present case, the RVSAU had already treated the writ petitioner as a regular employee and granted him a pension from the date of appointment as Lab Keeper in the pay scale of 2550-3200 under the Madhya Pradesh Civil Service Pension Rules, 1976. Once the petitioner has become a member of a government employee and pension Rules, 1976 has been made applicable then by virtue of Rule 6 on absorption permanent employee without interruption, the past services are liable to be counted as if such service was rendered in a regular post.
I find much substance in the argument of Mr. Amit Raj, the case of present writ petitioner Amar Singh and the case of writ Petitioner Kanhaiyalal (W.P. NO.19762/2018) are on a different footing. Shri Kanhaiyalal was never given the benefit of the Madhya Pradesh Civil Service Pension Rules, 1976 till his retirement. The Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 applied to him which were not adopted by the JNKVV. After 11.07.2003, the writ petitioner was no more daily rated employee in a contingency establishment and became of member of pensionable service under the Rules, 1976. Hence, by virtue of Rule 6 (2) of M.P. Civil Services Pension Rules, 1976, his past uninterrupted service is liable to be counted as if such service was rendered in a regular post. No case for review is made out as there is no apparent error on the face of it."
23] Thus, this court held that the said writ petitioner Kanhaiyalal was appointed as a daily wager in the year 1970, and was regularized on 21.03.1990, in the contingency establishment and retired after Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 14 attaining the age of 60 years on 31.01.2008, and the aforesaid writ petition was contested by the JNKVV on the ground that the Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 do not apply to the petitioner as the University never adopted these Rules, and the persons in the work charged establishment and contingency have specifically been excluded from the purview of the Pension Rules. Hence, the petition of Kanhiyalal (supra) was dismissed.
24] The learned Judge of the Writ Court has distinguished the aforesaid decision on the ground that on 14.07.2003, the petitioner was appointed as a Lab Keeper under the M.P. Civil Service (Pension) Rules, 1976 and once the petitioner became the member of government employment, the Pension Rules, 1976 are made applicable to him, and by virtue of Rule 6, on absorption of permanent employee without interruption, the past services are liable to be counted as if such service was rendered in regular post. 25] This Court finds that so far as the Rule 6 of the Rules of 1976 is concerned, the same has already been omitted and what the learned judge implied was the Rule 6 of the Pension Rules, 1979, which reads as under:-
"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 onwards shall be counted for pension as if such service was rendered in a regular post."
(Emphasis Supplied) 26] Whereas, the appellant has also placed on record in this appeal, the copies of the letters dated 20.06.2000 and 19.01.2001(Annexure-
Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 15AW/5), to demonstrate that the University JNKVV granted the benefit of time scale without taking approval from the State and the then Officer of the respondent University, by misleading the Board and without taking approval or financial sanction from the State Government, issued the order dated 13.03.1990, whereby 625 posts of time scale labour carrying pay scale of 725-900 was directed to be created, however, when it came to the knowledge of the State Government, objection was raised and thus, no financial aid or sanction was granted by the State Government for the same, and it has also been directed by the State Government to initiate departmental inquiry against those erring Officers, but as the aforesaid Officers have already retired long back, hence no action has been taken against them.
27] It is also found that Rule 13 of the Rules of 1976 provides for the conditions subject to which service qualifies, the same reads as under:-
"13. Conditions subject to which service qualifies.-(1) The service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government.
(2) For the purposes of sub-rule (1), the expression "service"
means service against a post under the Government and paid by the Government from the consolidated Fund of the State which has not been declared as non-pensionable."
(Emphasis Supplied) 28] It is apparent from the aforesaid rule that the service of Government servant shall not qualify for pension unless his duties and pay are regulated by the Government or under the conditions determined by the Government and paid by the Government from the consolidated fund of the State whereas, in the present case, Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 16 admittedly, the petitioner‟s salary with respect to his services rendered prior to 14.07.2003 was paid by the University itself out of contingency funds only, and not by the State Government through consolidated fund of the State. In such circumstances also, it cannot be said that the petitioner would be entitled to get the benefit of the Rules of 1976.
29] This Court is of the considered opinion that since JNKVV did not adopt the Rules of 1979, the question of applicability of the Rules of 1976 would not arise, as has been held by the Co-ordinate Bench of this Court in the case of Kanhaiyalal (supra). 30] On a close scrutiny of the order Annexure P/4 dated 14.07.2003, it would reveal that there is no reference of the service rendered by the petitioner prior to 14.07.2003, and what is mentioned is that he is being appointed under the special recruitment drive to fill up backlog/carry forward posts. It would be also relevant to quote the aforesaid order in toto, which reads as under:-
"Jh vejflag pkSgku vkRet Jh HkS:yky fuoklh bankSj dks] vkjf{kr {ks.kh vuqlwfpr tkfr ds cSdykWx@dSjksQkoZM inksa dh iwfr gsrq fo'ks"k HkrhZ vfHk;ku ds varxZr p;u lfefr dh vuq'kalk ij ysc dhij ds in osrueku :- 2550&3200@& esa vLFkkbZ :I ls fu;qDr dj mudh inLFkkiuk d`""k egkfo|ky;] bankSj esa dh tkrh gSA ;g fu;qfDr iw.kZr% vLFkk;h ,oa nks ""kZ dh ifjoh{kk vof/k ij i""B 2 ij mYysf[kr''krkZs ds v/khu gSA izekf.kr fd;k tkrk gS fd e/;izns'k yksd lsok] ¼vuqlwfpr tkfr;ks]a vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxkZs ds fy;s vkj{k.k½ vf/kfu;e 1994 ¼Øekad 21 lu 1994½ ds mica/kksa vkSj vf/kfu;e ds mica/kksa ds izdk'k esa jkT; ljdkj }kjk tkjh vuqns'kksa dk vuqikyu fd;k x;k gS] rFkk mDr vf/kfu;e dh /kkjk 6 dh mi/kkjk¼1½ ds mica/kksa dk iw.kZ :i ls laKku dj fy;k gSA"
(Emphasis Supplied) Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 17 31] The aforesaid order has been passed under the provisions of M.P. Lok Sewa (Anusuchit Jatiyon, Anusuchit Janjatiyon aur Anya Pichde Vargon Ke Liye Aarakshan) Adhiniyam, 1994 and appears to have been passed on its own merits. In such circumstances, the petitioner‟s past services prior to 14.07.2003, cannot be counted in his regular service, as it is apparent from the aforesaid order that the petitioner‟s services rendered earlier have not been regularized, but in fact, it is a fresh order of appointment.
32] At this juncture, it would be apt to refer to the full bench decision of this court in the case of Mamta Shukla (supra), the relevant paras of the same read as under:-
"1. On a reference by the learned Single Judge, Hon'ble the Chief Justice has constituted this Full Bench to answer the following reference:--
"(i) Whether the decision of the Division Bench in W.A. No. 725/2007, Smt. Rahisha Begum v. State of M.P. 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. v. Ram Singh?
(ii) Whether an employee is eligible for the benefit of family pension in accordance with the provisions of 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?
xxxxxxxxxxxxx Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 18
20. A Constitutional Bench of Hon'ble Supreme Court in Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1, has held as under in regard to regularisation and absorption of the daily wage employees:--
"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 19 making appointments consistent with, the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and Courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore, not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the Court is approached for relief by way of a writ, the Court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.
50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 20 rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the Constitutional scheme and the Constitutional goal of equality.
51. The argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. The obligation cast on the State under Article 39(a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the Courts recognise that an appointment to a post in Government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the Constitutional scheme and the right of the numerous as against the few who are before the Court. The directive principles of State Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 21 policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
52. Normally, what is sought for by such temporary employees when they approach the Court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Natanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a College. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent."
From the aforesaid decision of the Hon'ble Supreme Court, it is clear that an employee who was appointed or engaged without following the procedure as enumerated in relevant Recruitment Rules and on ad hoc basis against any sanction post, could not get a status and hence on the basis of the aforesaid principle of law, it has to be held that Rule 3 of the Pension Rules of 1979, which prescribes scope and application of the Pension Rules of 1979, would be applicable to the „workcharged and contingency paid employee‟, who comes within the definition of „service‟ of the Recruitment Rules of 1977.
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23. The Division Bench of this Court in Madhukar Talmale v. State of M.P., 2003 (4) MPLJ 282, has held that if the appointment of a work charged employee is de hors the rules, then his service has to be counted from the date of regularisation and not from the date of his initial appointment. The relevant findings of the Division Bench are as under:--
"Annexure II has been appended to the Schedule to the M.P. Workcharged and Contingency Paid Employees Pay Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 22 Revision Rules, 1984 as it has been under Rule 3. Under S. No. 3(B) the post of Time Keeper is mentioned. It stipulates that there would be 100% direct recruitment. It stipulates that incumbent must have passed Higher Secondary, Mathematics being one of the subject. As the petitioner was appointed in the year 1983, 1984 Rules would be applicable that governed the field then. The relaxation has been made in exercise of power under Rule
11. A general circular was issued on 13-11-1988 when the petitioner's services had been regularized by taking recourse to Rule 11. If the said Rule is conjointly read with the circular in question, he cannot claim seniority from the date of his initial service in as much as he was appointed de hors to the Rules and therefore, his seniority has to be computed from the date of regularisation. No fallacy or infirmity in the order passed by the Tribunal."
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."
(Emphasis Supplied) 33] It is not known if the aforesaid decision in the case of Mamta Shukla (supra) was cited before the writ court or not, but it is apparent that the aforesaid decision, which is germane for the case at hand, is applicable in the facts and circumstances of the case, and cannot be ignored as the petitioner has not been able to demonstrate that his initial appointment was in accordance with the Rules of 1977. 34] Counsel for the respondent has also relied upon the decision of the Division Bench in the case of Sant Kumar (supra), but on perusal of the aforesaid decision again reveals that it is based on the premise that the petitioner was a permanent employee as defined u/s.2(c) of the Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 7/9/2024 6:28:10 PM 23 Rules of 1979, whereas, admittedly, the Rules of 1979 have not been adopted by the appellant being an autonomous university as has already been held by this court in the case of Kanhaiyalal(supra). Thus the aforesaid decision of Sant Kumar is of no avail to the petitioner/respondent. Similarly, the other decisions cited by shri Amit Raj are also distinguishable.
35] In such circumstances, when the impugned orders passed by the writ court are tested on the anvil of the full bench decision of this court in the case of Mamta Shukla (supra), they cannot be sustained in the eyes of law, and are liable to be set aside.
36] Accordingly, the writ appeal is hereby allowed, and the impugned orders dated 16.03.2020 passed in W.P. No.21975/2018 (Amarsingh Chouhan Vs. Jawaharlal Nehru Krishi Vishwavidyalaya) by this Court, as well as the order dated 23.10.2021, passed in R.P. No.813/2021 are hereby set aside and the W.P.No.21975/2018 is hereby dismissed.
37] Appeal stands disposed of.
(SUBODH ABHYANKAR) (PRANAY VERMA)
JUDGE JUDGE
Bahar
Signature Not Verified
Signed by: BAHAR CHAWLA
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