Madhya Pradesh High Court
Rashid Mohammed Tai vs Water Resource Department on 2 December, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
W.P. No.10410/2019
(Rashid Mohammad Tai Vs. State of M.P. & Others)
Indore, Dated: 02.12.2019
Shri Prakhar Karpe, learned counsel for the
petitioner.
Shri Pawan Sharma, learned GA for the
respondent/State.
The petitioner has filed the present petition being aggrieved by order dated 14.05.2019 whereby the Executive Engineer, Gandhi Sagar Bandh Division, Bhanpura, District Mandsaur has retired him w.e.f. 31.05.2019 after attaining the age of 60 years.
2. Brief facts of the case are as under:
(i) The petitioner was appointed as daily-wager against the post on 01.11.1984 as Daily Rated Employee and classified as permanent employee on 26.04.2001.
The petitioner has been granted the benefit of circular dated 07.10.2016 vide order dated 23.09.2017 and classified as "Semi-skilled Worker" in the pay scale of in the fixed minimum pay-scale of Rs.4,500-80-7500.
(ii) The State Government vide Gazette Notification dated 31.3.2018 has enhanced the age of superannuation of Government employees from 60 to 62 years by amending the M.P. Shaskiya Sevak 2 (Adhivarshiki Ayu) Sanshodhan Adhiniyam, 1967. Vide letter dated 22.10.2018, the Executive Engineer, PHE sought clarification from the Superintending Engineer in respect of retirement of Class-III&IV permanent employees/daily-rated employees after attaining the age of 60 or 62 years. Thereafter, vide impugned order dated 5.1.2018, petitioner has been retired from service, hence the present petition before this Court.
After notice, the respondents have filed the return by submitting that vide circular dated 3.5.2017, the General Administration Department (GAD) of the State Government has decided the age of superannuation of Class III & IV employees as 60 and 62 years respectively. Thereafter, vide letter dated 6.2.2018, the Engineer-in-chief Engineer, PHE has classified various posts of the department into Class III & IV categories for the purposes of retirement at the age of 60 and 62 years. Since the petitioner was engaged as Class III daily-rated employee, therefore, he has rightly been retired on attaining the age of 60 years, hence no interference is called for, and the petition is liable to be dismissed.
I have heard the learned counsel for the parties and perused the material available on record.
3It is not in dispute that the petitioner was appointed as daily-rated employee. The apex Court in the case of Ram Naresh Rawat V/s. Ashwini Ray & others : (2017) 3 SCC 436, has held that the daily-rated employees classified as "permanent employee" would be entitled to pay-scale of permanent post from the dates specified in the award by the Labour Court, but the daily-rated employees appointed without following any selection procedure and their appointments were not against the regular vacancies, in normal circumstances, these persons, because of their long service and also on the assumption that they are discharging the same duties as discharged by the regular employees, can claim same salary which is being paid to regular employees holding similar posts on principles of "equal pay for equal work". The "permanent employee" has right to receive pay in the graded pay scale, at the same time but he would be getting only minimum of the said pay scale with no increments. It is not the regularisation in service which would entail grant of increments, etc. in the pay scale.
In compliance of the aforesaid judgment of apex Court, the GAD came up with the scheme of regularisation of daily-rated employee as permanent 4 employee in three categories vide circular dated 7.10.2016. Circular dated 7.10.2016 is reproduced below :
Þe/;izns'k 'kklu lkekU; iz'kklu foHkkx ea=ky;] Hkksiky Øekad ,Q 5&1@2013@1@3 Hkksiky fnukad 07vDVwcj] 2016 izfr] 'kklu ds leLr foHkkx] v/;{k] jktLo e.My] leLr foHkkxk/;{k] leLr laHkkxh; vk;qDr] leLr dysDVj] leLr eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r] e/;izns'kA fo"k; %& dk;Zjr nSfud osru Hkksxh Jfedksa ds fy, ÞLFkk;h dfeZ;ksa dks fofu;fer djus dh ;kstukÞA jkT; 'kklu }kjk fu;ferhdj.k ls oafpr nSfud osru Hkksfx;ksa ds laca/k esa fuEukuqlkj dk;Zokgh djus dk fu.kZ; fy;k x;k gS %& 1-1 bUgsa ^nSfud osru Hkksxh^ ds LFkku ij ^LFkk;h dehZ^ dh Js.kh nh tkosAs 1-2 bUgsa fuEukuqlkj osrueku Lohd`r fd;k tkosA Js.kh osrueku 1 2 vdq'ky 4000&80&7000
v)Zdq'ky 4500&90&7500 dq'ky 5000&100&8000 1-3 ofj"Brk dk ykHk nsus gsrq 01 flrEcj] 2016 dh fLFkfr esa muds }kjk iw.kZ fd, o"kksZa ds vk/kkj ij lacaf/kr osrueku esa vafdr osruo`f) dh nj ls x.kuk dks mUgsa lacaf/kr osrueku esa osru fu/kkZj.k fd;k tkosxkA 1-4 bl ij bUgsa eagxkbZ HkRrk ns; gksxkA ¼orZeku 125 izfr'kr½ 1-5 dksbZ ,fj;j ns; ugha gksxkA 1-6 ;g osru fu/kkZj.k 01 flrEcj] 2016 dh frfFk ls gksxkA vkxkeh osruo`f) flrEcj] 2017 ls ns; gksxhA 1-7 vf/kokf"kZdh vk;q iw.kZ gksus ij 15 fnu izfro"kZ ds lsokdky ds osru ds vk/kkj ij miknku dh ik=rk gksxhA ;g jkf'k vdq'ky ds fy, :-
1]25]000@&] v)Zdq'ky ds fy, :- 1]50]000@& ,oa dq'ky ds fy, :- 1]75]000@& rd lhfer gksxhA 1-8 ,sls nSfud osru Hkksxh tks fnukad 16 ebZ] 2007 dks dk;Zjr Fks] o fnukad 01 flrEcj] 2016 dks Hkh dk;Zjr gSa] bl osru Øe ,oa vU; ykHkksa ds fy, ik= gksaxsA fnukad 16 ebZ 2007 ds i'pkr 'kklu dh vuqefr@vuqeksnu mijkUr l{ke vf/kdkjh }kjk nSfud osru Hkksxh ds in ij fu;qDr fd;s x;s gSa mUgsa Hkh ;kstuk dh ik=rk gksxhA fnukad 01 flrEcj 2016 ds iwoZ lsokfuo`Rr@lsok ls i`Fkd fd;s x;s vFkok lsok NksM+ pqds nSfud osru Hkksfx;ksa dks bl ;kstuk dh ik=rk ugha gksxhA lafonk] va'kdkyhu ,oa vkmV lksflZax ds ek/;e ls fu;qDr deZpkfj;ksa ds fy, ;g ;kstuk ykxw ugha gSaA 2- prqFkZ Js.kh ds fjDr fu;fer inksa ij izkFkfedrk ds vk/kkj ij fu;qfDr gsrq ,d ;kstuk cukbZ xbZ gS tks layXu ifjf'k"V&^v^ ij gSA bl ;kstuk ds fØ;kUo;u gsrq e/;izns'k dfu"B lsok ¼la;qDr vgZrk½ fu;e] 2013 ds fu;e&7 esa of.kZr lewg&6 esa prqFkZ Js.kh dh p;u izfØ;k dks ,d o"kZ ds fy, LFkfxr dh tkrh gSA 5 3- eku- mPp U;k;ky; }kjk ikfjr vkns'k ds vuqikyu esa ftu nSfud osru Hkksxh deZpkfj;ksa dks dfri; foHkkxksa }kjk vkns'k tkjh fd;s x;s gSa] mUgsa iwoZor j[kk tk,A ftu nSfud osru Hkksxh deZpkfj;ksa }kjk eku- mPp U;k;ky; esa izdj.k nk;j fd;s x;s gSa mu nSfud osru Hkksxh deZpkfj;ksa }kjk lacaf/kr U;k;ky;hu izdj.k okfil fy;s tkus ij izLrkfor ;kstuk dk ykHk fn;k tk,A 4- fuekZ.k foHkkxksa ds vfrfjDr vU; ftu foHkkxksa esa nSfud Hkksxh Jfed dk;Zjr gSa] mUgsa orZeku esa Jek;qDr }kjk le;≤ ij fu/kkZfjr U;wure etnwjh nh tkrh gSaA jkT; 'kklu ,d dY;k.kdkjh jkT; gksus dh vo/kkj.kk ij ml U;wure etnwjh ls csgrj etnwjh nsus ds fy, bl Js.kh ds nSfud osru Hkksxh Jfedksa dks Hkh LFkk;h dehZ dk inuke nsrs gq, ogh osrueku ,oa lqfo/kk,a ns; gksxh] tks muds led{k nSfud osru Hkksxh dh dafMdk&1-1 ls 1-
8 ds v/khu fuekZ.k foHkkxksa ds LFkk;h dehZ dks ns; gksxhA rn~uqlkj lacaf/kr foHkkxksa }kjk dk;Zikfydk vkns'k tkjh fd;s tk,aA 5- e/;izns'k nSfud osru Hkksxh deZpkjh ¼lsok dh 'krsZ½ fu;e] 2013 tks fd lafo/kku ds vuqPNsn 309 ds vUrxZr tkjh fd;s x;s gSa dks fujLr fd;k tkdj fofHkUu fuekZ.k mijksDr dafMdk&1-1 ls 1-8 ds vuqlkj e/;izns'k vkSn~;ksfxd fu;kstu ¼LFkk;h vkKk,½ vf/kfu;e 1961 o fu;e 1963 ds vUrxZr bu fuekZ.k foHkkxksa esa dk;Zjr Jfedksa dks vkSn~;ksfxd Jfed ekurs gq, vkns'k tkjh fd;s tk,saxs o lacaf/kr foHkkx vkSn~;ksfxd Jfed ekurs gq, vkns'k tkjh fd;s tk,saxs o lacaf/kr foHkkx ds LFkk;h dfeZ;ksa dk fu;eu rn~uqlkj fd;k tk,A 6- d`i;k mijksDrkuqlkj dk;Zokgh lqfuf'pr dh tk,A e/;izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj] ¼,e-ds-ok".ksZ;½ izeq[k lfpo e/;izns'k 'kklu lkekU; iz'kkluÞ In compliance of the aforesaid circular, vide order dated 16.1.2017, the petitioner has been classified as permanent skilled employee in the pay-scale of Rs.5,000-100-8000-. In this order, it is not mentioned as to whether he was classified as Class III or Class IV employee. After the classification, the issue came before the Department as to whether what would be the age of retirement of daily-rated employees who have beeb classified as permanent employee. Vide circular dated 9.11.2012 the State Government has decided the age of superannuation of Class III employee to be 60 years and Class IV employees to be 6 62 years. It is important to mention here that there is no difference in the age of superannuation in case of regular Class III & Class IV employees of the State Government. Circular dated 9.11.2012 is reproduced below :
"e/;izns'k 'kklu lkekU; iz'kklu foHkkx ea=ky;] oYyHk Hkou] Hkksiy & 462004 dzekad lh 5&1@2012@1@3] Hkksiky] fnukad 9 uoEcj] 2012 izfr] 'kklu ds leLr foHkkx] v/;{k] jktLo e.My] e-iz- Xokfy;j] leLr laHkkxk;qDr] leLr ftyk dysDVj] leLr eq[; dk;Zikyu vf/kdkjh] ftyk iapk;r] e/;izsn'k-
fo"k;%&nSfud osru ij fu;ksftr O;fDr;ksa ls dke dh vf/kdre vk;q&lhek dk fu/kkZj.kA jkT; 'kklu ds fofHkUu foHkkxksa esa dk;Z fo'ks"k ds laiknu gsrw le;≤ ij vko';drkuqlkj nSfud osru ij deZpkjh j[ks tkrs gSaA ,sls dk;ksZ dh fujarjrk ds vk/kkj ij ;s nSfud osruHkksxh deZpkjh yach vof/k rd dk;Z ij jgrs gSa] fdUrq buls vf/kdre fdl vk;q rd dk;Z fy;k tkuk gS] blds dksbZ Li"V funsZ'k ugha gSA 2@ mijksDRk ifjizs{; esa jkT; 'kklu }kjk fu.kZ; fy;k x;k gS fd r`rh; ,oa prqFkZ Js.kh rFkk buds led{k inksa ij nSfud osru ij fu;ksftr O;fDr;ksa ls dke ysus dh vf/kdre vk;q&lhek dze'k% 60 ,oa 62 o"kZ fu/kkZfjr dh tk, vFkkZr~ jkT; 'kklu ds leLr foHkkxksa esa r`rh; ,oa prqFkZ Js.kh rFkk buds led{k inksa ij nSfud osru ij fu;ksftr O;fDr;ksa ls vf/kdre dze'k% 60 ,oa 62 o"kZ dh vk;q iw.kZ gksus rd gh dk;Z fy;k tk ldsxkA 3@ mDr izko/kku ;g vkns'k tkjh gksus ds fnukad ls izHkko'khy gksaxsA e/;izn'sk ds jkT;iky ds uke ls rFkk vkns'kkuqlkj ¼vkj-ds-xtfHk;s½ mi lfpo e/;izns'k 'kklu] lkekU; iz'kklu foHkkx"
While deciding the age of retirement of Class III 7 and Class IV daily rated employees, no reasonable classification has been disclosed in the above circular. It is well established that the classification should be based on some qualities or characteristics of group of persons together. Those qualities and characteristics must have a reasonable relation of the objection to be achieved. Vide above circular, a decision has been taken to have two different age of retirement for Class III and Class IV daily rated employees, whereas for regular Class III and Class IV employees, there is no difference in the age of retirement. Therefore, in this circular, there is no basis behind classification of two different age of retirement of Class III and Class IV daily rated employees. However, circular dated 9.11.2012 was issued prior to framing of scheme of classification of daily rated employees vide circular dated 7.10.2016. In circular dated 7.10.2016, the age of superannuation of daily-rated employees who have been classified as "permanent employee" has not been decided. Even, circular dated 9.11.2012 has not been adopted. However, lateron the State Government came up with the new circular dated 3.5.2017 in which the age of retirement of Class III and Class IV daily rated employees is 60 and 62 years respectively based on the circular dated 8 9.11.2012. Once the apex Court has held that all the daily-rated employees are entitled for classification as permanent employee and in the light of the said judgment, the State Government has issued the circular dated 7.10.2016 to classify the daily-rated employees as permanent employees and they have been classified only as unskilled, semi-skilled, and skilled. There is no category like Class III and Class IV permanent employee in the circular dated 7.10.2016,therefore, there is no basis to have two different age of retirement for Class III and Class IV daily-rated employee who have been classified as permanent employee. When the pay-scales are common for all the daily-rated employee who have been classified as permanent employee, then there should be common age of retirement i.e. 62 years for all of them. In the case of the present petitioner, vide order dated 16.1.2017, he has only been classified permanent employee as Timekeeper without specifying to be class III or IV. When there is no difference in age of retirement for the regular Class III and Class IV employees, then there should not be two different age of superannuation for classified permanent employees. Hence, the petitioner is liable 9 to continue up to the age of 62 years.
The co-ordinate bench of this Court in case of Ramesh Kumar Dubey Vs. State of M.P. & Others, (W.P.No.15053/2019) has quashed the order of retirement at the age of 60 years on the ground that fundamental rules which provides enhancement of age of a Government servant are also applicable to the permanent employee like petitioner, hence, he is also entitled to get benefit of enhancement age of superannuation i.e. upto the age of 62 years. Relevant portion of the aforesaid judgment is reproduced below:
"4. However, the Division Bench of this Court in case of Ramjilal Prajapati (supra) has not taken note of the notification issued on 31.03.2018 whereby, the earlier age of superannuation of Class-III employees which was 60 years has been enhanced to 62 years. By the said notification, the State Government has amended the Madhya Pradesh Shahskiya Sevak (Adhivarshiki-Ayu) Adhiniyam, 1967 (in short the 'Adhiniyam, 1967') and substituted the word '60 years' by '62 years' and as such, the age of retirement of Class-I to Class-III employees has been enhanced from 60 years to 62 years. The notification also provides the amendment with regard to extending the age of superannuation and it be also inserted in the Fundamental Rules and in place of 60 years, it should be 62 years. The impact of extending the age of superannuation of the Government Writ Petition No.15053/2019 employees from 60 years to 62 years and amendment made in the Fundamental Rules as such, has not been considered by the Division Bench in the case of Ramjilal Prajapati (supra). The core question that arises here is that if the Fundamental Rules provide enhancement of age of the Government servants, the petitioner having status of permanent employee would be considered as a Government servant or not and the provisions of the Fundamental Rules would be 10 applicable to the petitioner or not? Undisputedly, if it is found that the provisions of the Fundamental Rules are applicable to the present petitioner then he is also entitled to get the benefit of extended age of superannuation which is being provided to the employees of the State Government in view of the amendment made in the Adhiniyam, 1967 as well as in the Fundamental Rules. The notification dated 31.03.2018 is quoted hereinbelow:-
MADHYA PRADESH ORDINANCE No.4 OF 2018 THE MADHYA PRADESH SHASKIYA SEVAK (ADHIVARSHIKI-AYU) SANSHODHAN ADHYADESH, 2018 [First published in the "Madhya Pradesh Gazette (Extra-ordinary)", dated the 31st March, 2018.] Promulgated by the Governor in the sixty-ninth year of the Republic of India.
An Ordinance further to amend the Madhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu) Adhiniyam, 1967.
WHEREAS, the State Legislature is not in session and the Governor of Madhya Pradesh is satisfied that circumstances exist which render it necessary for him to take immediate action;
Now, THEREFORE, in exercise of the powers conferred by clause (1) of article 213 of the Constitution of India, the Governor of Madhya Pradesh is pleased to promulgate the following Ordinance:-
1. This Ordinance may be called the Short title.
Madhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu) Sanshodhan Adhyadesh, 2018.
2. During the period of operation of this Madhya Ordinance, the Madhya Pradesh Pradesh Act Writ Petition No.15053/2019 Shaskiya Sevak (Adhivarshiki- Ayu) No.29 of 1967 to Adhiniyam, 1967 (No.29 of 1967) be temporarily (hereinafter referred to as the principal amended. Act), shall have effect subject to 11 the amendments specified in section 3.
3. In section 2 of principal Act, in rule Amendment of 56 of the Fundamental Rules, in sub- Fundamental rule (1)- Rule 56 as substituted by
(i) the brackets, figures and letters section 2 of the "(1-a), (1-b)" occurring twice, Madhya shall be omitted; Pradesh Act
(ii) for the words "sixty years" No.29 of 1967.
occurring twice, the words "sixty two years" shall be substituted.
BHOPAL: ANANDIBEN PATEL
DATED THE 31st March, 2018 Governor,
Madhya Pradesh
The Division Bench of this Court in case of M.L. Kalia Vs. Union of India and others reported in 1979 SCC Online MP 215 : 1979 Lab IC 1166 has laid down that the provisions of Fundamental Rule 56 (A) would be applicable to all the classes of Government servants- temporarily, officiating or permanent. The relevant portion of the said judgment is reproduced hereinbelow:-
"In K.R. Tahiliani v. Union of India, Civil Writ No. 1311 of 1975, D/- 23-5-1977 (Delhi) the learned single Judge while holding that Fundamental Rule 56(j) would not apply to a case of Government servant who did not belong to Class I or Class II service or permanently hold such a post, has laid emphasis on the use of the word "IN" appearing in cl. (i) in sub-rule (j) of Fundamental Rule 56. In the opinion of the learned Judge deciding that case a concept of retirement would be wholly foreign for a temporary Government servant and, therefore, in his opinion the Fundamental Rule 56(j) could apply only to a permanent Government servant in Class I or Class II service. With due respect to the learned Judge, we find ourselves unable to agree with the view taken. We have already shown above that Fundamental Rule 56(a) would apply to all classes of Government servant -- temporary, officiating or permanent -- and 12 we see no reason to restrict the scope of Fundamental Rule 56(j) as has been done by the Delhi High Court. We are of opinion that the sub- rule (j) shall apply to an officiating or temporary Government servant also holding a Class II Post."
Although, it is clear as per the view taken by the Division Bench in the case of M.L. Kalia (supra) that the provisions of Rule 56 of the Fundamental Rules are Writ Petition No.15053/2019 applicable to the Government servants having status of officiating, temporary and permanent employees. Since the petitioner has acquired the status of permanent employee as per the notification issued by the State Government on 07.10.2016, he was also entitled to get the benefit as has been provided to the employees of the State Government. Further, if Rule 2 of the Fundamental Rules is seen that deals with the application of the Fundamental Rules and it provides as under:-
F.R. 2. Extent of application-(1) The Fundamental Rules apply, subject to the provisions of rule 3, to all Government servants whose pay is debitable to civil estimates in India, and to any other class of Government servants in India to which the Secretary of State in Council may by general or special order declare them to be applicable. In relation to services under its administrative control, other than all-India services a local Government may make rules modifying or replacing any of the Fundamental Rules; provided that-
(a) no such rule shall adversely affect any person who is in Government service at the time when the Fundamental Rules come into force; and
(b) any such rule which grants any privilege or concession not admissible under the terms of the Fundamental Rules, or of the Civil Service Regulations as they stand at the time when the Fundamental Rules are introduced, shall require the sanction of the Secretary of State in Council.
(2) Where the application of any rule in the Fundamental Rules is expressly or by implication limited by the provisions of any rule made under section 45-A of the Act, the limitation shall prevail and the rule in the Fundamental Rules shall be subject to the rule made under section 45-A of the Act.13
Then in Rule 3 of the Fundamental Rules, it is dealt as under:-
F.R. 3. Scope of the Fundamental Rules.- Unless in any case it be otherwise distinctly provided by or under these rules, these rules do not apply to Government servants whose conditions of service are governed by Army or Marine Regulations.
The aforesaid Rule 3 is an exclusion clause showing as to whom rules would not be applicable. Undoubtedly, the category of the petitioner does not fall under the categories which have been excluded from applicability of the provisions of the Fundamental Rules.
5. With due respect to the law laid down by the Division Bench in the case of Ramjilal Prajapati (supra) it is Writ Petition No.15053/2019 distinguishable in view of the fact and circumstances as quoted hereinabove, as the scope and applicability of the Fundamental Rules over the petitioner has not been considered, therefore, I am of the opinion that the petitioner being a permanent employee though otherwise, falls under the schedule not part of any Rules introduced by the Department of Water Resources in which, he has been placed under the category of Class-III employee but even otherwise, he is entitled to get the benefit of extended age of superannuation i.e. 62 years as has been available to the Government servants in view of the amendment made in the provisions of Adhiniyam, 1967 as well as in the Fundamental Rules, therefore, the petition filed by the petitioner is allowed and the order retiring the petitioner at the age of 60 years is hereby set aside and the respondents are directed to allow the petitioner to continue in service till the age of 62 years."
the petitioner is also entitled to get the benefit of enhanced age of superannuation and has to be retired at the age of 62 years. The order impugned, therefore, is set aside.
5. Since the petitioner has already been retired, he is directed to be reinstated in service with immediate effect and he be also paid salary for the intervening period when he remained out of service.
6. The petition is accordingly, allowed for the reason assigned in the order passed by this Court in Ramesh Prasad Agnihotri (supra). The case relied upon by the learned Panel Lawyer is not applicable. "
Consequently, this petition deserves to be and is 14 hereby allowed and impugned order dated 14.05.2019 is hereby quashed. The respondents are directed to continue the petitioner in service up to 62 years of his age.
No order as to costs.
(VIVEK RUSIA)
Jasleen Judge
Digitally signed by Jasleen Singh
Saluja
Date: 2019.12.03 11:39:23 +05'30'