Madhya Pradesh High Court
Munnalal Nayak vs The State Of Madhya Pradesh on 8 May, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:23615
1 WP-15726-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 8 th OF MAY, 2025
WRIT PETITION No. 15726 of 2025
MUNNALAL NAYAK AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Bharat Deep Singh Bedi - Advocate for petitioners.
Shri Swapnil Ganguly - Deputy Advocate General for State.
ORDER
The present petition has been filed seeking the following reliefs:-
"7.1 Issuing the Writ of Mandamus or any other suitable writ or order or direction to the respondents to counting the entire period of the daily wage service of the petitioners from appointment till regularization as per the chart given below:-
Sr. Appointment order Regularization Order
Petitioner's name
No. dated dated
1. Munnalal Nayak 28/09/1985 01/12/2005
Sudama Prasad
2. 17/02/1987 22/07/2004
Chaurasiya
Rajendra Prasad
3. 01/01/1986 22/07/2024
Mishra
4. Ravi Shankar Tripathi 01/10/1986 15/05/2016
5. Smt. Sangeeta Jain 11/10/1984 13/05/2016
As per Pension rules, 1979 and as per the W.P. no. 1232/2021 dt. 13/05/2024 Bharosilal Vs. State of M.P. in which Laxmikant case and Rahisa Begum Case upheld by the Supreme Court.
7.2 Direct the respondent to issue revised pension payment order (PPO) as well as released revised amount after refixation of pension and other consequential benefits according to length of the service.
7.3 Direct the respondent for the payment of pension Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 24-05-2025 16:52:17 NEUTRAL CITATION NO. 2025:MPHC-JBP:23615
2 WP-15726-2025 amount after refixation with interest @ 18%.
7.4 Any other appropriate writ, order or direction which the Hon'ble Court may deems just and proper in the nature and circumstances of the case."
2. The case of the petitioners is that they were engaged as daily rated employees in the respondents department on 28.09.1985, 17.02.1987, 01.01.1986, 01.10.1986 and 11.10.1984 respectively. They were regularized in service on 01.12.2005, 22.07.2004, 22.07.2004, 15.05.2016 and 13.05.2016 respectively.
3. It is argued that the petitioners have rendered their service for more than 20 years in the department. The authorities should have considered the period of service which they have rendered as daily rated employees for the purpose of computation of pensionary benefits. It is argued that they have preferred representations on 24.03.2025, 28.03.2025 and 07.04.2025 for redressal of their grievances, which are pending consideration, therefore, a prayer is made to direct the authorities to consider and decide the pending representations. Counsel appearing for the petitioners has relied upon the judgment passed by the Division Bench of this Court in the case of Rahisha Begum w/o Late Ashraf Khan vs. State of M.P. and others, 2010 (4) M.P.L.J. 332 and the order dated 01.09.2017 passed in W.A. No.366 of 2017.
4. Per contra, State counsel has vehemently opposed the contentions pointing out the fact that the initial appointment of the petitioners were as daily rated employees. He has drawn attention of this Court to the appointment orders of the petitioners and has argued that the manner in which the petitioners' appointment are done reflect that the petitioners are the back door entries. It is further submitted that they are daily rated employees Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 24-05-2025 16:52:17 NEUTRAL CITATION NO. 2025:MPHC-JBP:23615 3 WP-15726-2025 and services of daily rated employees cannot be counted by the authorities for the purpose of computation of pensionary benefit and the date of regularization will be the relevant date for the purpose of computation of pension. Therefore, no relief can be extended to them. He has prayed for dismissal of the petition.
5. Heard the counsels for the parties and perused the record.
6. The sole question before this Court is whether the case of the petitioners can be considered for counting the past services rendered by them as daily rated employees for the purpose of computation of pension. The M.P. Civil Services (Pension) Rules, 1976 are applicable to the case of the petitioners, which provides that the appointment should be in accordance with the Rules and from the date of induction in the establishment on regular basis the period for which he has worked as a regular employee shall be calculated for counting the past services. The case laws which have been relied upon by the petitioners are not applicable to the facts and circumstances of the case because in those cases the petitioners were working under the Word Charged and Contingency Paid Establishment. Therefore, in terms of the judgment passed by the Hon'ble Supreme Court in the case of Prem Singh Vs. State of Uttar Pradesh and others reported in (2019) 10 SCC 516 they were entitled for counting their past services for the purpose of computation of pension. As far as petitioners are concerned, they are only daily rated employees. They were regularized subsequently, therefore, the services rendered by them as daily rated employees cannot be counted for the purpose of computation of pension.
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 24-05-2025 16:52:17NEUTRAL CITATION NO. 2025:MPHC-JBP:23615 4 WP-15726-2025
7. The aforesaid issue came up for consideration before the Full Bench of this Court in the case of Mamta Shukla v. State of M.P., reported in ILR 2011 MP 1807 : (2011) 3 MP LJ 210, wherein this Court has considered the fact that services rendered by a daily rated employee prior to his regularization cannot be counted for pensionary benefits and has held as under:-
"24. On the basis of above discussion, we hold in regard to the substantial questions of law No. 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 No. 2 and 3 accordingly."
8. The coordinate Bench of this Court in the case of Smt. Savitri Jadon v. The State of Madhya Pradesh : 2025 Supreme (Online) (MP) 1164 has held as under:-
"7. It is not the case of the petitioner that as a daily wager they were appointed substantially or in officiating or temporary capacity. The Supreme Court in the case of Malook Singh and others Vs. State of Punjab, decided on 28.9.2021 passed in Civil Appeal No.6026- 2028/2021 has held as under:-
"20. The law on the issue of whether the period of ad hoc service can be counted for the purpose of determining seniority has been settled by this Court in multiple cases. In Direct Recruits (supra), a Constitution Bench of this Court has observed:
"13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan case [(1977) 3 SCC 399: 1977 SCC (L&S) 391: (1977) 3 SCR 775] was unsound and fit to be overruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 24-05-2025 16:52:17 NEUTRAL CITATION NO. 2025:MPHC-JBP:23615 5 WP-15726-2025 appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stopgap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary...
......
47. To sum up, we hold that (A) Once an incumbent is appointed to a post according to a rule, his seniority has to counted from the date of appointment and not according to date of his confirmation. The corollary to the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account considering the seniority"
(emphasis supplied) The decision in Direct Recruits (supra) stands for the principle that ad hoc service cannot be counted for determining the seniority if the initial appointment has been made as a stop gap arrangement and not according to rules. The reliance placed by the Single Judge in the judgement dated 6 December 1991 on Direct Recruits (supra) to hold that the ad hoc service should be counted for conferring the benefit of seniority in the present case is clearly misplaced. This principle laid down in Direct Recruits (supra) was subsequently followed by this Court in Keshav Chandra Joshi v. Union of India. Recently a two judge Bench of this Court in Rashi Mani Mishra v. State of Uttar Pradesh , of which one of us (Justice Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 24-05-2025 16:52:17 NEUTRAL CITATION NO. 2025:MPHC-JBP:23615 6 WP-15726-2025 DY Chandrachud) was a part, observed that the services rendered by ad hoc employees prior to their regularization cannot be counted for the purpose of seniority while interpreting the Uttar Pradesh Regularization of Ad Hoc Appointment Rules. This Court noted that under the applicable Rules, "substantive appointment"
does not include ad hoc appointment and thus seniority which has to be counted from "substantive appointment" would not include ad hoc service. This Court also clarified that the judgement in Direct Recruits (supra) cannot be relied upon to confer the benefit of seniority based on ad hoc service since it clearly states that ad hoc appointments made as stop gap arrangements do not render the ad hoc service eligible for determining seniority. This Court speaking through Justice MR Shah made the following observations:
"36. The sum and substance of the above discussion would be that on a fair reading of the 1979 Rules, extended from time to time; initial appointment orders in the year 1985 and the subsequent order of regularization in the year 1989 of the ad hoc appointees and on a fair reading of the relevant Service Rules, namely Service Rules, 1993 and the Seniority Rules, 1991, our conclusion would be that the services rendered by the ad hoc appointees prior to their regularization as per the 1979 Rules shall not be counted for the purpose of seniority, vis-à-vis, the direct recruits who were appointed prior to 1989 and they are not entitled to seniority from the date of their initial appointment in the year 1985. The resultant effect would be that the subsequent redetermination of the seniority in the year 2016 cannot be sustained which was considering the services rendered by ad hoc appointees prior to 1989, i.e., from the date of their initial appointment in 1985. This cannot be sustained and the same deserves to be quashed and set aside and the seniority list of 2001 counting the services rendered by ad hoc appointees from the date of their regularization in the year 1989 is to be restored.
37. Now so far as the reliance placed upon the decision of this Court in the case of Direct Recruit Class II Engg. Officers' Assn. (supra), relied upon by the learned Senior Advocate appearing on behalf of the ad hoc appointees is concerned, it is required to be noted that even in the said decision also, it is observed and held that where initial appointment was made only ad hoc as a stop gap arrangement and not according to the rules, the officiation in such post cannot be taken into account for considering the seniority. In the case before this Court, the appointments were made to a post according to rule but as ad hoc and subsequently they were confirmed and to that this Court Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 24-05-2025 16:52:17 NEUTRAL CITATION NO. 2025:MPHC-JBP:23615
7 WP-15726-2025 observed and held that where appointments made in accordance with the rules, seniority is to be counted from the date of such appointment and not from the date of confirmation. In the present case, it is not the case of confirmation of the service of ad hoc appointees in the year 1989. In the year 1989, their services are regularized after following due procedure as required under the 1979 Rules and after their names were recommended by the Selection Committee constituted under the 1979 Rules. As observed hereinabove, the appointments in the year 1989 after their names were recommended by the Selection Committee constituted as per the 1979 Rules can be said to be the "substantive appointments". Therefore, even on facts also, the decision in the case of Direct Recruit Class II Engg. Officers' Assn. (supra) shall not be applicable to the facts of the case on hand. At the cost of repetition, it is observed that the decision of this Court in the case of Direct Recruit Class II Engg. Officers' Assn. (supra) was considered by this Court in the case of Santosh Kumar (supra) when this Court interpreted the very 1979 Rules.
The notification dated 3 May 1977 stated that the ad hoc appointments were made in administrative interest in anticipation of regular appointments and on account of delay that takes place in making regular appointment through the concerned agencies. In this regard, the vacancies were notified to the Employment Exchange or advertisements were issued, as the case may be, by appointing authorities. The appointments were not made on the recommendation of the Punjab Subordinate Service Selection Board. However, subsequently a policy decision was made to regularize the ad hoc appointees since their ouster after a considerable period of service would have entailed hardship. Thus, the initial appointment was supposed to be a stop gap arrangement, besides being not in accordance with the rules, and the ad hoc service cannot be counted for the purpose of seniority."
8. As a daily wager the petitioner was not having any service conditions. A Full Bench in the case of Ashok Tiwari Vs. M.P.Text Book Corporations and Another , reported in 2010 (2) MPLJ 662 has held that a daily rated employee is not appointed to any post and before he is appointed, the preconditions contemplated for appointment to the post are not followed. His appointment is on a day - to - day basis as per need of work and normally the conditions of service regarding transfer, suspension, disciplinary action cannot be applied to such an employee. 9. Since the petitioner was not appointed against any substantive post and the counsel for the petitioner has also failed to prima facie Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 24-05-2025 16:52:17 NEUTRAL CITATION NO. 2025:MPHC-JBP:23615 8 WP-15726-2025 establish that under which provision of M.P. Civil Services (Pension) Rules, 1976, the case of the petitioner is covered, this Court is of the considered opinion that the services rendered by the petitioner as a daily wager cannot be counted for pensionary purposes. 10. Accordingly, the petition fails and is hereby dismissed."
9. Furthermore, the Hon'ble Supreme Court in the case of Director General, Doordarshan Prasar Bharti Corporation of India v. Smt. Magi H. Desai : 2023 0 Supreme (SC) 266 has opined as under:-
"7- Rule 13 of the 1972 Rules provides for commencement of qualifying service. As per Rule 13, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. It further provides that such officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Therefore, the services rendered on a substantive post or services rendered as officiating or temporary service shall be treated as qualifying service. Service rendered as casual/contractual cannot be said to be officiating or temporary service. Even the services rendered as temporary service can be considered as qualifying service provided that the officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Service rendered as casual/contractual cannot be said to be service rendered on a substantive appointment.
8. Under the circumstances and on a fair reading and interpretation of Rule 13 of the 1972 Rules, the High Court has committed a very serious error in observing that the services in temporary capacity will include the classes of temporary service such as casual or even contractual. The High Court has materially erred in observing that the contractual service would be qualified as service in a temporary capacity. The question is not whether the services rendered by a contractual employee would be qualified as service in a temporary capacity. The question is, whether, in fact, such contractual employee rendered the services as temporary or not.
9. Now so far as the submission on behalf of the respondent that in other departments under the scheme the employees of such departments are entitled to their services rendered as casual/contractual counted for qualifying service for Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 24-05-2025 16:52:17 NEUTRAL CITATION NO. 2025:MPHC-JBP:23615 9 WP-15726-2025 pensionary/service benefits is concerned, merely because some other departments might have such schemes, the respondent shall not be entitled to the same benefit in absence of any scheme in the appellants' department/department in which the respondent rendered her services. The appellant - Doordarshan Prasar Bharti Corporation of India is an autonomous independent department/body. As observed hereinabove, neither the rule nor the regularisation scheme provide that services rendered as casual/contractual shall be treated as temporary service and/or the same shall be counted for the purposes of pensionary/service benefits.
10. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. The judgment and order passed by the Tribunal dismissing the Original Application is hereby restored. Present appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs."
10. Under these circumstances, no relief can be extended to the petitioner. Even direction for deciding the representations of the petitioners will be a futile exercise because there is no entitlement of the petitioners to get their past services counted for the pensionary purpose.
11. The writ petition sans merit and is accordingly dismissed. No order as to costs.
(VISHAL MISHRA) JUDGE THK Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 24-05-2025 16:52:17