Dr. Anand Kishour Dube vs The State Of Madhya Pradesh on 23 August, 2022

[Cites 16, Cited by 11]

Madhya Pradesh High Court

Dr. Anand Kishour Dube vs The State Of Madhya Pradesh on 23 August, 2022

Bench: Maninder S. Bhatti

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE

HON'BLE SHRI JUSTICE MANINDER S. BHATTI

ON THE 17th OF AUGUST, 2022

WRIT PETITION No. 12230 of 2022

Between:-
ANOOP KUMAR SHRIVASTAVA S/O MADAN GOPAL SHRIVASTAVA,
AGED ABOUT 52 YEARS, OCCUPATION: WORKING AS CHEMIST
REGIONAL OFFICE SATNA MP. POLLUTION CONTROL BOARD BHOPAL
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI MRIGENDRA SINGH, SR. ADVOCATE WITH SHRI RISABH SINGH, ADVOCATE )

AND

THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL SECREARY
GENERAL ADMINISTRATION DEPARTMENT VALLABH BHAWAN
1.
BHOPAL (MADHYA PRADESH)

M.P. POLLUTION CONTROL BOARD, THROUGH ADMINISTRATIVE
OFFICER, PARYAVARAN PARISAR E-5 ARERA COLONY BHOPAL
2.
(MADHYA PRADESH)

CHAIRMAN, M.P. POLLUTION CONTROL BOARD PARYAVARAN
3. PARISAR E-5 ARERA COLONY BHOPAL (MADHYA PRADESH)

THE ADMINISTRATIVE OFFICER, M.P. POLLUTION CONTROL BOARD,
PARYAVARAN PARISAR E-5 ARERA COLONY BHOPAL (MADHYA
4.
PRADESH)
2

REGIONAL OFFICER, M.P. POLLUTION CONTROL BOARD, SATNA
5. REGIONAL OFFICE OF M.P., M.P. POLLUTION CONTROL BOARD,
BHOPAL (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI V.S. SHORTI, SR. ADVOCATE WITH SHRI ASHISH SHROTI,
ADVOCATE FOR RESPONDENT NOS. 2, 3, 4 AND 5 AND SHRI GIRISH
KEKRE, GOVERNMENT ADVOCATE)

WRIT PETITION No. 12144 of 2022

Between:-
GEETA TIWARI S/O SHRI RAMESH TIWARI, AGED ABOUT 55 YEARS,
OCCUPATION: LOWER DIVISION CLERK HEAD OFFICE BHOPAL, M.P.
POLLUTION CONTROL BOARD BHOPAL, (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MRIGENDRA SINGH, SR. ADVOCATE WITH SHRI RISABH
SINGH, ADVOCATE )

AND

STATE OF M.P. THROUGH PRINCIPAL SECRETARY GENERAL
ADMINISTRATION DEPARTMENT VALLABH BHAWAN BHOPAL
1.
(MADHYA PRADESH)

M.P. POLLUTION CONTROL BOARD THROUGH ADMINISTRATIVE
OFFICER PARYAVARAN PARISAR, E-5, ARERA COLONY BHOPAL
2.
(MADHYA PRADESH)

CHAIRMAN M.P. POLLUTION CONTROL BOARD PARYAVARAN
3. PARISAR, E-5, ARERA COLONY BHOPAL (MADHYA PRADESH)

ADMINISTRATIVE OFFICER M.P. POLLUTION CONTROL BOARD
4.
PARYAVARAN PARISAR, E-5, ARERA COLONY BHOPAL (MADHYA
3

PRADESH)

REGIONAL OFFICER M.P. POLLUTION CONTROL BOARD BHOPAL
5. HEAD OFFICE OF M.P. POLLUTION CONTROL BOARD, HEAD OFFICE
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI V.S. SHORTI, SR. ADVOCATE WITH SHRI ASHISH SHROTI,
ADVOCATE FOR RESPONDENT NOS. 2, 3, 4 AND 5 AND SHRI
GIRISH KEKRE, GOVERNMENT ADVOCATE)

WRIT PETITION No. 12146 of 2022

Between:-
VIJAY SHANKAR PATHAK S/O SHRI JEEVAN SHARAN PATHAK, AGED
ABOUT 57 YEARS, OCCUPATION: ASSISTANT
SUPERINTENDENT/ACCOUNTANT REGIONAL OFFICE, M.P.
POLLUTION CONTROL BOARD, KATNI, (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MRIGENDRA SINGH, SR. ADVOCATE WITH SHRI RISABH
SINGH, ADVOCATE )

AND

STATE OF M.P. THROUGH PRINCIPAL SECRETARY GENERAL
ADMINISTRATION DEPARTMENT VALLABH BHAWAN BHOPAL
1.
(MADHYA PRADESH)

M.P. POLLUTION CONTROL BOARD, THROUGH ADMINISTRATIVE
OFFICER PARYAVARAN PARISAR E-5 ARERA COLONY BHOPAL
2.
(MADHYA PRADESH)

CHAIRMAN, M.P. POLLUTION CONTROL BOARD PARYAVARAN
3. PARISAR E-5 ARERA COLONY BHOPAL (MADHYA PRADESH)
4

ADMINISTRATIVE OFFICER, M.P. POLLUTION CONTROL BOARD
PARYAVARAN PARISAR E-5 ARERA COLONY BHOPAL (MADHYA
4.
PRADESH)

REGIONAL OFFICER, M.P. POLLUTION CONTROL BOARD, KATNI
5. OFFICE OF M.P. POLLUTIN CONTROL BOARD, REGIONAL OFFICE
KATNI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI V.S. SHORTI, SR. ADVOCATE WITH SHRI ASHISH SHROTI,
ADVOCATE FOR RESPONDENT NOS. 2, 3, 4 AND 5 AND SHRI GIRISH
KEKRE, GOVERNMENT ADVOCATE)

WRIT PETITION No. 12147 of 2022

Between:-
SHRI GOPAL PANDEY S/O SHRI SHATRUSDAN PANDEY, AGED
ABOUT 60 YEARS, OCCUPATION: WORKING AS DRIVER GRADE-
I, REGIONAL OFFICE, M.P. POLLUTION CONTROL BOARD
POLLUTION CONTROL BOARD, REWA , (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MRIGENDRA SINGH, SR. ADVOCATE WITH SHRI RISABH
SINGH, ADVOCATE )

AND

THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
SECRETARY GENERAL ADMINISTRATION DEPARTMENT
1.
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

M.P. POLLUTION CONTROL BOARD THROUGH
ADMINISTRATIVE OFFICER PARYAVARAN PARISAR E-5 ARERA
2.
COLONY BHOPAL (MADHYA PRADESH)

3. CHAIRMAN M.P. POLLUTION CONTROL BOARD PARYAVARAN
5

PARISAR E-5 ARERA COLONY BHOPAL (MADHYA PRADESH)

ADMINISTRATIVE OFFICER M.P. POLLUTION CONTROL BOARD
PARYAVARAN PARISAR E-5 ARERA COLONY BHOPAL (MADHYA
4.
PRADESH)

REGIONAL OFFICER M.P. POLLUTION CONTROL BOARD REWA
5. OFFICE OF M.P. POLLUTION CONTROL BOARD REGIONAL
OFFICE REWA (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI V.S. SHORTI, SR. ADVOCATE WITH SHRI ASHISH SHROTI, ADVOCATE FOR RESPONDENT
NOS. 2, 3, 4 AND 5 AND SHRI GIRISH KEKRE, GOVERNMENT ADVOCATE)

WRIT PETITION No. 12149 of 2022

Between:-
VINAY KUMAR KEMIYA S/O LATE SHRI KARAN SINGH KEMIYA
A, AGED ABOUT 54 YEARS, OCCUPATION: WORKING AS
STENOGRAPHER GRADE II, REGIONAL OFFICE, M.P. POLLUTION
CONTROL BOARD SHAHDOL SHAHDDOL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MRIGENDRA SINGH, SR. ADVOCATE WITH SHRI RISABH SINGH, ADVOCATE )

AND

THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
SECRETARY GENERAL ADMINISTRATION DEPARTMENT
1.
VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)

M.P. POLLUTION CONTROL BOARD, THROUGH
ADMINISTRATIVE OFFICER PARYAVARAN PARISHAR E-5 ARERA
2.
COLONY BHOPAL (MADHYA PRADESH)
6

CHAIRMAN, M.P. POLLUTION CONTROL BOARD PARYAVARAN
3. PARISHAR E-5 ARERA COLONY BHOPAL (MADHYA PRADESH)

ADMINISTRATIVE OFFICER, M.P. POLLUTION CONTROL BOARD
PARYAVARAN PARISHAR E-5 ARERA COLONY BHOPAL (MADHYA
4.
PRADESH)

REGIONAL OFFICER, M.P. POLLUTION CONTROL BOARD,
5. SHAHDOL OFFICE OF M.P. POLLUTION CONTROL BOARD,
REGIONAL OFFICE SHAHDOL (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI V.S. SHORTI, SR. ADVOCATE WITH SHRI ASHISH
SHROTI, ADVOCATE FOR RESPONDENT NOS. 2, 3, 4 AND 5 AND
SHRI GIRISH KEKRE, GOVERNMENT ADVOCATE)

WRIT PETITION No. 12209 of 2022

Between:-
DR. RAHUL DWIVEDIS S/O SHRI HARISH KUMAR DWIVEDI,
AGED ABOUT 54 YEARS, OCCUPATION: WORKING AS SCIENTIST
REGIONAL OFFICE, M.P. POLLUTION CONTROL BOARD
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MRIGENDRA SINGH, SR. ADVOCATE WITH SHRI
RISABH SINGH, ADVOCATE )

AND

THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
SECRETARY GENERAL ADMINISTRATION DEPARTMENT
1.
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

M.P. POLLUTION CONTROL BOARD THROUGH ADMINISTRATIVE
2.
OFFICER PARYAVARAN PARISAR, ARERA COLONY, BHOPAL
7

(MADHYA PRADESH)

CHAIRMAN M.P. POLLUTION CONTROL BOARD PARYAVARAN
3. PARISAR E-5 ARERA COLONY BHOPAL (MADHYA PRADESH)

ADMINISTRATIVE OFFICER M.P. POLLUTION CONTROL BOARD
PARYAVARAN PARISAR E-5 ARERA COLONY BHOPAL (MADHYA
4.
PRADESH)

REGIONAL OFFICER M.P. POLLUTION CONTROL BOARD
5. JABALPUR, OFFICE OF M.P. POLLUTION CONTROL BOARD
REGIONAL OFFICE JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI V.S. SHORTI, SR. ADVOCATE WITH SHRI ASHISH
SHROTI, ADVOCATE FOR RESPONDENT NOS. 2, 3, 4 AND 5
AND SHRI GIRISH KEKRE, GOVERNMENT ADVOCATE)

WRIT PETITION No. 12213 of 2022

Between:-
PREMCHAND UCHARIYA S/O SHRI RAMDAYAL UHARIYA,
AGED ABOUT 55 YEARS, OCCUPATION: WORKING AS SENIOR
ACIENTIFIC OFFICER HEAD OFFICE, M.P. POLLUTION
CONTROL BOARD BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MRIGENDRA SINGH, SR. ADVOCATE WITH SHRI
RISABH SINGH, ADVOCATE )

AND

THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
SECRETARY GENERAL ADMINISTRATION DEPARTMENT
1.
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
8

M.P. POLLUTION CONTROL BOARD THROUGH
ADMINISTRATIVE OFFICER PARYAVARAN PARISAR E-5
2.
ARERA COLONY BHOPAL (MADHYA PRADESH)

CHAIRMAN M.P. POLLUTION CONTROL BOARD
PARYAVARAN PARISAR, E-5, ARERA COLONY BHOPAL
3.
(MADHYA PRADESH)

ADMINISTRATIVE OFFICER M.P. POLLUTION CONTROL
BOARD PARYAVARAN PARISAR, E-5, ARERA COLONY
4.
BHOPAL (MADHYA PRADESH)

REGIONAL OFFICER M.P. POLLUTION CONTROL BOARD
5. BHOPAL, HEAD OFFICE OF M.P. POLLUTION CONTROL
BOARD, REGIONAL OFFICE BHOPAL, (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI V.S. SHORTI, SR. ADVOCATE WITH SHRI ASHISH
SHROTI, ADVOCATE FOR RESPONDENT NOS. 2, 3, 4 AND 5
AND SHRI GIRISH KEKRE, GOVERNMENT ADVOCATE)

WRIT PETITION No. 12229 of 2022

Between:-
ARVIND TIWARI S/O LATE SHRI D.C.TIWARI, AGED
ABOUT 58 YEARS, OCCUPATION: WORKING AS
ASSISTANT ENGINEER REGIONAL OFFICE, CHHINDWARA,
M.P.POLLUTION CONTROL BOARD, (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MRIGENDRA SINGH, SR. ADVOCATE WITH
SHRI RISABH SINGH, ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
9

SECRETARY GENERAL ADMINISTRATION DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

M.P. POLLUTION CONTROL BOARD THROUGH
ADMINISTRATIVE OFFICER PARYAVARAN PARISAR, E-5,
2.
ARERA COLONY BHOPAL (MADHYA PRADESH)

CHAIRMAN M.P. POLLUTION CONTROL BOARD
PARYAVARAN PARISAR, E-5, ARERA COLONY BHOPAL
3.
(MADHYA PRADESH)

ADMINISTRATIVE OFFICER M.P. POLLUTION CONTROL
BOARD PARYAVARAN PARISAR, E-5, ARERA COLONY
4.
BHOPAL (MADHYA PRADESH)

REGIONAL OFFICER M.P. POLLUTION CONTROL BOARD
5. CHHINDWARA REGIONAL OFFICE OF M.P. POLLUTION
CONTROL BOARD CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI V.S. SHORTI, SR. ADVOCATE WITH SHRI
ASHISH SHROTI, ADVOCATE FOR RESPONDENT NOS. 2,
3, 4 AND 5 AND SHRI GIRISH KEKRE, GOVERNMENT
ADVOCATE)

WRIT PETITION No. 12467 of 2022

Between:-
SMT. SHOBHA DHOKE W/O SHRI AMBA DAS DHOKE,
AGED ABOUT 53 YEARS, OCCUPATION: PEON HEAD
OFFICE M.P. POLLUTION CONTROL BOARD BHOPAL
MX-47 NAMRATA NAGAR RAJ HARSH COLONY KOLAR
ROAD BHOPAL DISTRICT BHOPAL (MADHYA PRADESH)
10

.....PETITIONER
(BY SHRI RAHUL MISHRA, ADVOCATE)

AND

THE STATE OF MADHYA PRADESH THROUGH THE
PRINCIPAL SECRETARY GENERAL ADMINISTRATION
1. DEPARTMENT VALLABH BHAWAN BHOPAL M.P.
(MADHYA PRADESH)

M.P. POLLUTION CONTROL BOARD THROUGH ITS
ADMINISTRATIVE OFFICER PARYAVARAN BHAWAN E-5
2.
ARERA COLONY BHOPAL (MADHYA PRADESH)

CHAIRMAN M.P. POLLUTION CONTROL BOARD
3. PARYAVARAN BHAWAN E-5 ARERA COLONY BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI V.S. SHROTI, SR. ADVOCATE WITH SHRI
ASHISH SHROTI, ADVOCATE FOR THE, RESPONDENT
NO.2 AND 3 AND SHRI GIRISH KEKRE, GOVERNMENT
ADVOCATE)

WRIT PETITION No. 13128 of 2022

Between:-
AMOL DAS SANT S/O LATE SHRI C.D.SANT, AGED
ABOUT 59 YEARS, OCCUPATION: SCIENTIFIC OFFICER
M.P.POLLUTION CONTROL BOARD REGIONAL OFFICE
UJJAIN R/O C/O SHRI H.S.MALVIYALIG I MAHANDNDA
NAGAR UJJAIN (MADHYA PRADESH)
.....PETITIONER
(BY SHRI J.B. SINGH, ADVOCATE)
11

AND

THE STATE OF MADHYA PRADESH THROUGH
SERCRETARY MANTRALAYA VALLABH BHAWAN BHOPAL
1.
(MADHYA PRADESH)

CHAIRMAN MADHYA PRADESH POLLUTION CONTROL
BOARD PARYAVARAN PARISAR E-5 ARERA COLONY
2.
BHOPAL (MADHYA PRADESH)

ADMINISTRATIVE OFFICER MADHYA PRADESH
3. POLLUTION CONTROL BOARD PARYAVARAN PARISAR E-
5 ARERA COLONY BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI V.S. SHROTI, SR. ADVOCATE WITH SHRI
ASHISH SHROTI, ADVOCATE FOR THE RESPONDENT
NO.2 AND SHRI GIRISH KEKRE, GOVERNMENT
ADVOCATE)

WRIT PETITION No. 14420 of 2022

Between:-
SURESH SONBADE S/O SHRI BABULAL, AGED ABOUT 50
YEARS, OCCUPATION: PEON H NO 216 SUDAMA NAGAR
GOVINDPURA BHOPAL DISTRICT BHOPAL (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI D.K. SHUKLA, ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH PRINCIPAL
SECRETARY ENVIRONMENT AND POLLUTION
12

DEPARTMENT MANTRALAYA VALLABH BHAWAN
BHOPAL, M.P.

ADMINISTRATIVE OFFICER M.P. POLLUTION CONTROL
2. BOARD ENVIRONMENTAL CAMPUS E-5 ARERA COLONY
BHOPAL M.P.
.....RESPONDENTS
(BY SHRI V.S. SHROTI, SR. ADVOCATE WITH SHRI
ASHISH SHROTI, ADVOCATE FOR RESPONDENT NO.2
AND SHRI GIRISH KEKRE, GOVERNMENT ADVOCATE)

WRIT PETITION No. 16711 of 2022

Between:-
DR. ANAND KISHOUR DUBE S/O LATE PROF K.K. DUBE,
AGED ABOUT 59 YEARS, OCCUPATION: SCIENTIST
REGIONAL OFFICE M.P. POLLUTION CONTROL BOARD
SHAHDOL M.P.
.....PETITIONER
(BY SHRI ANSHUMAN SINGH, ADVOCATE )

AND

THE STATE OF MADHYA PRADESH THROUGH THE
PRINCIPAL SECRETARY GOVERNMENT OF MADHYA
PRADESH HOUSINGH AND ENVIRONMENT
1.
DEPARTMENT MANTRALAYA VALLABH BHAWAN
BHOPAL M.P.

M.P. POLLUTION CONTROL BOARD, THROUGH ITS
MEMBER SECRETARY OFFICE AT PARYAVARAN PARISAR,
2.
E-5, ARERA COLONY, BHOPAL(M.P.)
13

THE CHAIRMAN, M.P. POLLUTION CONTROL BOARD
OFFICE AT PARYAVARAN PARISAR, E-5, ARERA COLONY,
3.
BHOPAL(M.P.)

THE ADMINISTRATIVE OFFICER, M.P. POLLUTION
4. CONTROL BOARD OFFICE AT PARYAVARAN PARISAR, E-5,
ARERA COLONY, BHOPAL(M.P.)
.....RESPONDENTS
(BY SHRI V.S. SHROTI, SR. ADVOCATE WITH SHRI ASHISH
SHROTI, ADVOCATE FOR RESPONDENT NO.2, 3 AND 4
AND SHRI GIRISH KEKRE, GOVERNMENT ADVOCATE)

This petition coming on for admisson this day, the court passed the following:

ORDER

This order shall also govern disposal of WP. No.12144/2022, WP No. 12146/2022, WP. No.12147/2022, WP. No.12149/2022, WP. No.12209/2022, WP. No.12213/2022, WP. No.12229/2022, WP. No.12467/2022, WP. No.13128/2022, WP. No.14420/2022 and WP No.16711/2022 however, for the sake of convenience the facts of W.P. No.12230/2022 are being taken note of.

The facts as elaborated in the petition reveal that the petitioner herein was initially appointed as Junior Lab Assistant with the Madhya Pradesh Pollution Control Board and his services were regularized on 10.09.2016. Eventually, the petitioner was promoted as Chemist and performed his duties to the satisfaction of all concerned. However, on 19.05.2022, the respondents issued impugned order of compulsory retirement of the petitioner in purported exercise of powers under Rule 42(1)(b) of the Madhya Pradesh Civil Services (Pension) Rules, 1976 14 (hereinafter referred to as "Rules of 1976" for the sake of brevity). Thus, assailing the order impugned dated 19.05.2022 (Annexure P/1), this petition has been filed.

Upon receipt of notice, the respondents have entered appearance and the return has been filed on behalf of respondent No.2 to 5. Along with the return, the respondent No.2 to 5 had produced on record, the minutes containing recommendation of the Scrutiny Committee and it is stated in the return that the cases of the petitioner and other employees have been taken into consideration and the respondents scrutinized the service of record as many as 187 employees including the present petitioner and on the basis of total assessment, the respondents issued order of compulsory retirement of the petitioner.

It is further stated in the return that the principle laid down by the Apex Court in the case of Baikunth Nath Das Vs. State of Bihar reported in (1992) 2 SCC 299 have been adhered to while passing the impugned order. Thereafter, the respondents have also filed an additional return along with which the respondents have produced the copy of Gazette Notification dated 13.07.2018 to demonstrate that the provisions of M.P. Civil Services (Pension) Rules, 1976 have been adopted by the M.P. Pollution Control Board and the communication dated 17.05.2022 (Annexure R/4) is also brought on record which has been issued by the Department of Environment and addressed to Secretary of M.P. Pollution Control Board. Along with the additional return, the other records pertaining to the scrutiny of the cases of the petitioner and other employees, have been produced on record including the respective marks awarded to the present petitioner while assessing their fitness to be retained in service.

Learned senior counsel for petitioner Shri Mrigendra Singh appears in WP No.12230/2022, WP No.12144/2022, WP No.12146/2022, WP 15 NO.12147/2022, WP. No.12149/2022, WP. No.12209/2022, WP. No.12213/2022, WP. No.12229/2022 submits that the order on the face of it is stigmatic in nature and thus could not have been passed without affording an opportunity of hearing. The further submission of the counsel is that since the petitioner was promoted recently in the year 2015, thus, by no stretch of imagination, the petitioner could have been treated to be a deadwood and unfit to be reinstated in service. The counsel submit that undisputedly, the services of the employees of M.P. Pollution Control Board are not pensionable therefore, the applicability of M.P. Civil Services (Pension) Rules, 1976 is of no consequence and, thus, under the garb of Rule 42(1)(b) of the Pension Rules, 1976, the order impugned could not have been passed inasmuch as, the services of the employee of the Board are not pensionable.

Learned counsel for petitioner submits that the impugned order passed by the respondents contained in Annexure P/1 is nullity inasmuch as, the same has not been passed by the Chairman who is the authority competent to pass such an order.

Learned counsel also submits that the stand of the respondents as regards post-facto approval by the Chairman of the order of compulsory retirement is also unsustainable and submits that the order impugned deserves to be quashed inasmuch as, Annexure R/4 dated 17.05.2022 filed with the additional return makes it abundantly clear that the provisions of Rules of 1976 are not applicable to M.P. Pollution Control Board and prior to the passing of impugned order of compulsory retirement dated 19.05.2022, the Board was intimated vide communication dated 17.05.2022 that there is no concurrence by the Department of Finance and also by the Council for the Ministers and yet, the provisions of the Rules of 1976 have been made applicable. The Department of Environment vide communication dated 17.05.2022 brought the stand of Department of Finance to 16 the notice of M.P. Pollution Control Board to denotify the Rules of 1976 from the regulations yet instead of taking any action on communication dated 17.05.2022, the M.P. Pollution Control Board in a purely hurried manner proceeded to issue the order of compulsory retirement on 19.05.2022. Thus, learned counsel for the petitioner submits that admittedly the adoption of Rules of 1976 by the M.P. Pollution Control Board has not been approved by the Department of Finance/Council of Ministers, thus, the order impugned could not have been passed under the garb of Rule 42(1)(b) of the Rules of 1976 inasmuch as, the same are not even applicable to the employees of the Board. Learned counsel for petitioner while placing reliance on the decision of the Apex Court in the case of Baikunth Nath Das (supra) submit that the impugned order being non est deserves quashment.

Learned counsel for the petitioners further submits in addition that when a statute provides for a particular provision, the authority has to follow the same and cannot be permitted to act in contravention with the same and thus, has placed reliance in the case of Selvi J. Jayalalithaa & Ors. Vs. State of Karnataka & Ors. reported in (2014) 2 SCC 401 while submitting inter alia that the stand of the respondent that if the issuance of order of compulsory retirement on the strength of Rule 42(1)(b) of the Rules of 1976 is not permissible then, the respondents cannot pass such an order on the strength of Fundamental Rule 56 as well.

In W.P. No.13128/2022 Shri J.B. Singh, learned counsel for the petitioner submits that by virtue of various provisions contained in the Rules of 1976, it is evident that the same are not applicable to the employees of M.P. Pollution Control Board. Learned counsel while taking this Court to Rule 2(d), Rule 3(l), Rule 78 and Rule 79 of M.P. Civil Services (Pension) Rules, 1976 submits that 17 provisions of these rules are not applicable to the employees to whom the benefit of contributory provident fund is admissible. It is further submitted by counsel that the Department of Finance is vested with the power to interpret the applicability of the rule also inasmuch as, in order to achieve the object stipulated behind the enforcement of rule is to provide funds to the superannuated employees and the disbursement of such funds is only vested with the Department of Finance. Therefore, the legislature taken a decision that whenever there is a question as regards interpretation of the M.P. Civil Services (Pension) Rules, 1976, it shall be referred to the Department of Finance.

The further submission of counsel is that even the power to relax any rules is also not permissible unless there is concurrence by the Department of Finance. Learned counsel also while taking this Court to various provisions of the Water (Prevention and Control of Pollution) Act, 1974 submits that a perusal of the scheme of the Act of 1974 makes it unequivocally clear that the provisions of the M.P. Civil Services (Pension) Rules, 1976 are not applicable to the employees of M.P. Pollution Control Board inasmuch as, as per the provisions of Section 12(3A) of the Act of 1974, the method of recruitment in terms and conditions of the services of the employees of the Board are determined by regulations made by the Board and such regulation only takes effect when it is approved by the State Government. Thus, learned counsel also while taking this Court to various provisions of Chapter 6 (Funds, Accounts and Audit) submits that the funds are allocated to the Board by the appropriate Government and, therefore, it is the appropriate Government whose decision is paramount so far as, the disposal of the funds is concerned. It is further submitted by the counsel that even the accounts of the Board are audited by the auditor and its budget is prepared which is forwarded 18 to the appropriate government, therefore, there is no scope of applicability of the M.P. Civil Services (Pension) Rules, 1976 to the employees of the Board.

Shri Anshuman Singh, Advocate in WP No.16711/2022 submits that Rule 2(g) of the Rules of 1976 provides that the rules are not applicable to the government servants who are appointed on or after 1st January, 2005 to the services/post in connection with the State of Affairs. Learned counsel submits that the object behind incorporation of this subsequently inserted Clause is that w.e.f. 01.01.2005, the provisions of the National Pension Scheme were made applicable to the employees of the various Department and, therefore, they were no more governed by the M.P. Civil Services (Pension) Rules, 1976, therefore, learned counsel submits that since the services of the employees of the Board are not pensionable, the applicability of the rules is misconceived inasmuch as, if the Rules of 1976 are made applicable to the employees of the Board, the employees would also be entitled for the other benefits arising out of the M.P. Civil Services (Pension) Rules, 1976.

Per contra, learned counsel for respondents submit that there is an alternative remedy to assail the order impugned of compulsory retirement inasmuch as, a five members Committee has been constituted which empowered to deal with the grievance of the employees and, therefore, since there is an alternative efficacious remedy to agitate grievance before the Committee, the present writ petition is not maintainable.

It is further submitted by learned counsel for respondents that the Gazette Notification dated 20.06.2018 makes it crystal clear that Rules of 1976 have been adopted by the Board and there is an order by the Chairman confirming the order of compulsory retirement thus, the question of competency cannot be raised. It is 19 further submitted by counsel for respondents that the scope of interference with the order of compulsory retirement is limited unless, the same is mala fide or biased. The counsel submits that in the present case, the entire service record of the employees with special emphasis on the performance of service during last 5 years, was taken into consideration and the Scrutiny Committee after exhaustive exercise came to a conclusion that the petitioner herein deserves to be retired compulsorily in exercise of Rule 42(1)(b) of M.P. Civil Services (Pension) Rules, 1976 and accordingly, the same decision has been taken.

Learned counsel for respondents also contends that the petitioners have not challenged the notification contained in Annexure R/2 by which the provisions of Madhya Pradesh Civil Services (Pension) Rules, 1976 have been made applicable to the Board. Thus, submits that in absence to challenge the notification, the claim of the petitioner is not tenable. It is further submitted that Section 23(5) of the General Clauses Act,1897 provides that once the statutory provision is notified in the Gazette, the same is considered to be the conclusive proof to the effect that such rules or bye-laws has been duly made. Learned counsel while placing reliance in the cases of State of Orissa & Ors. Vs. Ram Chandra Das reported in (1996) 5 SCC 331, Baikuntha Nath Das and Anr. Vs. Chief Distt. Medical Officer, Baripada and Anr. reported in (1992) 2 SCC 299 and (2015) 1 MPLJ 568 submits that the assessment of the employees have been carried out strictly in the light of the provisions of Rule 42(1)(b) of the Rules of 1976 and even the subsequent promotion does not give any right to the petitioner to be continued in service. The counsel also while placing reliance on the decision of the Apex Court in the case of Chandra Singh and Ors. Vs. State of Rajasthan and Anr. reported in (2003) 6 SCC 545 and also in the case of M/s Sethi Auto 20 Service Station & Anr. Vs. Delhi Development Authority & Ors. reported in (2009) 1 SCC 180, submits that even otherwise, the Board is competent to pass an order under the provisions of M.P. Ardhyavarshiki Ayu Adhiniyam which have also been adopted by the same notification dated 20.06.2018 and thus, by virtue of Fundamental Rule 56, this power is with the M.P. Pollution Control Board to pass order of compulsory retirement under the aforesaid provisions of the Fundamental Rules. Thus, the counsel submits that there is no infirmity so far as, the order impugned is concerned and accordingly prayed that the writ petitions be dismissed being devoid of merits.

Heard rival submissions of the parties and perused the record. In order to deal with the polemical issue, it is necessary to refer certain statutory provisions of Madhya Pradesh Civil Services (Pension) Rules 1976. Rule 2(d)(g) of the Rules of 1976 provides as follows:

"2(d): Persons entitled to the benefit of Contributory Provident Fund; 2(g): Government servants appointed on or after 1st January 2005 to the services and posts in connection with the affairs of the State, either temporally or permanently."

Rule 42(1)(b) of the Rules of 1976 is also produced herein:

"The appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed 20 years qualifying service for he attains the age of 50 years whichever is earlier with the approval of the State Government by giving him 3 months notice in form 29:

Provided that such Government servant may be retired forthwith and on such retirement forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing immediately 21 before his retirement or, for the period by which such notice falls short of 3 months, as the case may be."

Rule 78 and 79 of the Rules of 1976 are also reproduced herein:

"Rule 78 Interpretation:- Where any doubt arises as to the interpretation of these rules, it shall be referred to the Government in the Finance Department for decision.

Rule 79 Power to relax:- Where any department of the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, the State Government may by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent any subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner:

Provided that no such order shall be made except with the concurrence of the Finance Department."

Thus, in order to ascertain the applicability of the Pension Rules 1976, its application is required to be examined which finds mention in Rule 2 of the Rules of 1976. The specific exclusion of the rules is elaborated in (ii) of Rule 2 of the Rules of 1976.

Rule 5 of the Rules of 1976 provides for regulation of claims to pension/gratuity/family pension. Thus, the basic object behind enforcement of rule is to make provisions of terminal benefits to a superannuated employee in the form of pension/gratuity/family pension etc. Chapter 4 of the Rules of 1976 provides for emoluments and Rule 34 stipulates about eventualities as regards pension on absorption in or under a corporation, company or body. Thereafter the legislature further provided payment of Death-cum- retirement gratuity in Rule 44 of the Rules of 1976. Contributory Family Pension provided in Rule 47 of the Rules of 1976 and thus laid down the 22 total mechanism to monitor the disbursement of retiral dues like pension/gratuity/family pension and also withholding or stoppage thereof. Thus, the Rules of 1976 in itself a complete set of legislation which deals with the method/applicability/manner of providing pensionary benefits to employee. The Rule 78 of the Rules of 1976, gives power to the Department of Finance to take a decision, if there is a doubt as regards interpretation of the Rules of 1976. It is also important to take note of Rule 79 of the Rules of 1976 which provides that the relaxation of rule is also permissible but the relaxation can only be made with the prior concurrence of Finance Department, therefore, it is the Department of Finance which is empowered under the Rules of 1976 to take a decision as regards the interpretation of the Rules of 1976 and also as regards the proposed relaxation so far as the applicability of the rules are concerned. Other than the Department of Finance, the entire Rules of 1976 does not refer to any of the department of the State Government and thus, it can be safely concluded that it is the Department of Finance which has a wisdom to interpret the Rules of 1976 and also to relax the provisions of the Rules of 1976.

The Madhya Pradesh Pollution Control Board is a body which is constituted under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 which is a Central Act. Section 4 of the Act of 1974 provides for constitution of State Boards. Section 12(3A) is relevant for the purposes of instant matter which is reproduced hereunder:

"Section 12 (3A):The method of recruitment and the terms and conditions of service (including the scales of pay) of the officers (other than the member- secretary) and other employees of the Central Board or a State Board shall be such as may be determined by regulations made by the Central Board or, as the case may be, by the State Board.

Provided that no regulations made under this sub-section shall take effect unless,-

(a) In the case of a regulation made by the Central Board, it is approved by the Central Government; and

(b) in the case of a regulation made by a State Board, it is approved by the State Government."

The functions of the State Board have been elaborated in section 17 of the Act of 1974 and the State Board has been conferred with the power to frame regulations as regards the terms and conditions of services of its employee. Such powers are vested with the Board in Section 64 of the Act 1974.

The provisions of Section 23 of the General Clauses Act, 1897 are also reproduced hereunder:

"Provisions applicable to making of rules or bye-laws after previous publication:- Whereby, any [Central Act] or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye- laws being made after previous publication, then the following provisions shall apply, namely:-

(1) the authority having power to make the rules or bye-laws shall before making them, publish a draft of the proposed rules or bye-laws for the information or persons likely to be affected thereby;

(2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the [Government concerned] prescribes;

(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;

(4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified;

(5) the publication in the [Official Gazette] of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made."

Sub-Section 4 of Section 23 in unequivocal terms provides that if a Rule or bye-laws is to be enforced, the approval/sanction/concurrence of another authority is required to be taken. In the present case, the sanction/approval/concurrence of the Department of Finance had not been obtained, therefore, the provisions of 23(5) cannot be read in isolation. On the contrary, the same is to be read together with 23(4) as well. The stage as stipulated in 23(5) only comes into play, when there is sanction/approval/concurrence of the another authority. In the present case, the another authority is Department of Finance and thus, the ground so taken on the strength of Section 23(5) of the General Clauses Act 1897 is ill founded.

Now if the minutes of Scrutiny Committee are perused, the same depicts that the committee was conscious of the fact that the provisions of Pension Rules 1976 are not applicable to the employees of Madhya Pradesh Pollution Control Board. The committee in its recommendation observed as follows:

e-iz-iznq"k.k fu;a=.k cksMZ dh vf/klwpuk fnukad 20 twu 2018 }kjk e/; izns'k iznw"k.k fu;a=.k cksMZ lsok ¼Hkjrh rFkk lsok 'krsZa½ fofu;e 1996 ds fofu;e 20¼3½ ds mijkar dzekad 5 ij e/; izns'k flfoy lfoZlsl ¼isa'ku½ fu;e 1976 tksM+s x;s gSaA rFkkfi cksMZ esa lsokfuo`Rr deZpkfj;ksa dks isa'ku lqfo/kk dk ykHk ugha fn;k tk jgk gS] vr% lkekU; iz'kklu foHkkx ds ifji= fnukad 22@8@2000 dh ea'kkuqlkj e/; izns'k flfoy lfoZll s ¼isa'ku½ fu;e 1976 ds fu;e 42 vuqlkj cksMZ ds deZpkfj;ksa ij isa'ku fu;e izHkko'khy ugha gks ik;s gSaA vr% mijksDr O;oLFkk ds iwoZ isa'ku fu;e dh izHkko'khyrk dks /;ku esa j[kk tkuk gksxkA The Committee then further upon elaborate evaluation of services record of the employees, lastly concluded that in the opinion of committee as many as 10 25 employees deserve to be compulsorily retired as they do not meet the criteria and have further failed to achieve the cutoff marks. The Committee again in operative paragraph categorically observed that before issuing the order of compulsory retirement, it needs to be ascertained/ensured that the Madhya Pradesh Civil Services (Pension) Rules 1976 are applicable Last paragraph of the minutes of Scrutiny Committee is reproduced hereunder:

lfefr dh vuq'kalk gS fd mijksDr 10 deZpkfj;ksa dh lsokfuo`fRr ds laca/k esa e/; izn's k 'kklu] lkekU; iz'kklu foHkkx] ea=ky;] Hkksiky ds vkns'k fnukad 22@08@2020 dh dafMdk 4 ds ifjizs{; esa izdj.k ekuuh; jkT; cksMZ ds vuqeksnu mijkar cksMZ lsokfuo`fRr ds nk;js esa vkus okys deZpkfj;ksa dks uSlfxZd U;k; ds fl)kar ds rgr~ 03 ekg dk uksfVl nsdj dafMdk 7¼2½ ds rgr~ vkxkeh dk;Zokgh dj ldrk gS ,oa lkFk gh lsokfuo`fRr dk vkns'k tkjh djus ds iwoZ ;g Hkh lqfuf'pr djuk mfpr gksxk fd cksMZ esa e/;izns'k flfoy lsok ¼isa'ku½ fu;e] 1976 dk fdz;kUo;u gks x;k gSA Therefore, Scrutiny Committee while scrutinizing the cases of the employee was conscious of the fact that the services of the employees of the Board are not pensionable, therefore, the committee which was consist of Director of Environment, Member Secretary of Pollution Control Board, Sub Divisional Officer of Environment Department, Staff Officer of Environment Department as well Administrative Officer of the Madhya Pradesh Pollution Control Board, i.e., the high officials of the Madhya Pradesh Pollution Control Board was also conscious of the fact that the applicability of the provision of the pension Rules of 1976 was not clear and therefore the scrutiny committee concluded that first applicability of the pension Rules of 1976 be ascertained. The argument of the Counsel for the Board that once the amendment made in the regulations are notified in the Gazette Notification dated 20/06/2018 therefore by virtue of provision of Section 23 of General Clauses Act, the same is treated to be the conclusive proof. Here, it is necessary to mention that in accordance with the 26 scheme of section 12(3A) of the Act of 1974, the State Board is empowered to make regulations as regards the service conditions of the officers and employees. The Proviso (b), however puts an embargo upon this exercise of power. The same provides that in the case of a regulations made by the State Board, it will take effect, when it is approved by the State Government, Now when this Court raised a query as to how the approval/concurrence is granted by the State Government and by which authority, it was intimated by the learned counsel that in past the approval/concurrence has been granted by the Secretary Urban Development and Environment Department. Here, it is important to note that Secretary Urban Development is ex officio Chairman of Madhya Pradesh Pollution Control Board.

This Court also vide interlocutory order dated 03/08/2022, directed Shri Girish Kekre, Advocate to produce on record stand of the Department of Finance in view of its letter dated 17/05/2022 which has been brought on record by the respondent Board as Annexure R/4. In response to which, there is one letter dated 02/08/2022 on the record, which reflects that the Secretary of Urban Development and Environment infact has ventured upon to say that apart from the provisions of Rule 42 of the Pension Rules, 1976, even otherwise the Board is competent to take action in accordance with the provision of Madhya Pradesh Ardhyavashiki Ayu Adhiniyam as well as Fundamental Rules 56. Thus, again this Court directed Shri Girish Kekre, Advocate to bring on record the stand of the Department of Finance pursuant to which Shri Kekre has produced on record a communication dated 08/08/2022 issued by the Department of Finance, the same is of utmost importance and also directly goes to the root of the matter. The relevant paragraph of the aforesaid communication dated 08/08/2022 issued by the Department of Finance is reproduced hereunder:

4 e/;izns'k iznw"k.k fu;a=.k cksMZ }kjk e-iz- flfoy lsok ¼isa'ku½ fu;e] 1976 dks fnukad 20-06-2018 ls varfoZ"V djus dk fu.kZ; fy;k gSA fu;e varfoZ"V djus ds lanHkZ esa e-iz- 'kklu] foRr foHkkx ls lgefr ugha yh x;h gS vkSj eaf=ifj"kn ls Hkh rRlaca/k esa dksbZ vkns'k Hkh izkIr ugha fd;k x;k gSA 5 e-iz- flfoy lsok¼isa'ku½ fu;e] 1976 ds varfoZ"V gksus ds QyLo:i fu;e ,oa foRr laca/kh dbZ nwjxkeh izHkko gksxsaA foRr foHkkx dk vfHker gS fd e-iz- iznw""k.k fu;a=.k cksMZ dks isa'ku fu;e] 1976 dks varfoZ""V djus ds iwoZ foRr foHkkx dh lgefr ,oa eaf=&ifj"kn ls mfpr vkns'k izkIr djuk pkfg;sA A perusal of the same shows that the Department of Finance as per letter and spirit of Rules 78/79 of the Civil Services Pension Rules 1976 has rightly expressed its displeasure as regards adoption of Pension Rules by way of Gazette Notification and even ventured upon to direct the Board to denotify the rules with immediate effect. Thus, Rule 78 and 79 of the Pension Rules of 1976 discussed hereinabove confers power with the Department of Finance inasmuch as the interpretation which includes applicability of the rules can only be decided by the Department of Finance and by virtue of Provisions of Rule 79, the power to relax is also vested with the Department of Finance. Thus, in the present case the Department of Finance has expressed its displeasure while observing that the rules were notified in the Gazette Notification dated 20/06/2018 without the prior concurrence of the Department of Finance and without obtaining approval of the council of Ministers which is evident from the series of letters issued by the Department of Finance. If letter dated 17/05/2022 (Annexure AR/4) came in possession of respondent Board, than the respondent Board in all fairness, ought not to have issued the order impugned immediately after 2 days i.e. dated 19/05/2022 in a most hurried manner. Paragraph 2 and 6 of letter dated 17/05/2022 is reproduced herein:

2@ e-iz-iznw"k.k fu;a=.k cksMZ Hkksiky dh vf/klwpuk fnukad 20 twu 2018 esa e-iz- flfoy lsok isa'ku fu;e] 1976 dks vrfoZ"V djus dk mYys[k gSA pwWfd isa'ku fu;e] 1978 foRr foHkkx ls iz'kkflr gS] vr% foHkkx dks mDr mn~ns'; ls fuf/k izca/ku gsrq foRr foHkkx dk vfHker iwoZ esa 28 ysuk pkfg;s FkkA foHkkxh; ;kstukvksa dh jkf';k dks ;kstuk ds fofgr mn~ns'; ds vfrfjDr dkjil QaM esa djuk fof/k vuqdwy izrhr ugha gksrkA eq>s ;g lalwfpr djus ds funsZ'k gq, gS fd] foRr foHkkx ds ijke'kZ vuqlkj vkns'k fnukad 20 twu 2018 esa 5&e/;izns'k flfoy lfoZlsl ¼isa'ku½ fu;e 1976 dks foyksfir fd;k tk;sa ,oa vkns'k dh izfr foHkkx ,oa foRr foHkkx dks i`"Bkafdr djsaA Moreover, the Principal Secretary Department of Environment, if approved the proposed amendment in the regulations, without obtaining prior concurrence of the department of Finance, in the considered view of this Court, the Principal Secretary Department of Environment, exercise the jurisdiction which was not vested in him by law inasmuch as neither the provisions of Section 12 (3A) of the Act of 1974 nor any provision of Pension Rules, 1976, empower the Secretary, Department of Environment to accord prior concurrence. Admittedly the scrutiny committee which consists higher officials of the Board, unequivocally concluded that the applicability of the provisions of the pension rules need to be ascertained before passing of any order inasmuch as the services of the employees of the Board are not pensionable.

Even otherwise if this applicability of the pension rules in absence of any benefit to the employees of the Board arising out of Rules of 1976, the adoption of same by way of Gazette Notification dated 20/06/2018 is hit by the doctrine of desuetude.

The doctrine of desuetude stipulates that on account of non enforcement of statute for prolong period, the same loses its efficacy. The Apex Court in the case of Monnet Ispat and Energy Ltd. Vs. Union of India (UOI and Ors. and Abhijeet Infrastructure Ltd. Vs. Chief Secretary, State of Jharkhand held as under:

"The doctrine of desuetude denotes principle of quasi repeal but this doctrine 29 is ordinarily seen with disfavour. Although doctrine of desuetude has been made applicable in India on few occasions but for its applicability, two factors, namely,

(i) that the statute or legislation has not been in operation for very considerable period and

(ii) the contrary practice has been followed over a period of time must be clearly satisfied. Both ingredients are essential and want of anyone of them would not attract the doctrine of desuetude. In other words, mere neglect of a statute or legislation over a period of time is not sufficient but it must be firmly established that not only the statute or legislation was completely neglected but also the practice contrary to such statute or legislation has been followed for a considerable long period."

Thus, the action of the respondent/Board if examined while taking into consideration the aforesaid enunciation of law, the same would reflect that since 2018, the Rules of 1976 have not been given effect to and a contrary practice of not providing the pensionary benefit to the employees have been taken recourse to. Thus, the contrary practice of not providing pensionary benefits to the employees in terms of provisions of Rules of 1976, bring the eventualities within the ambit of doctrine of desuetude.

Though, the doctrine comes into play when a particular statute has not been enforced for a long period of time and here in the present case, Rules of 1976 were made effective as per the stand of the Board in the year 2018 and since none of the benefits arising out of the pension Rules 1976, made admissible to the employees of the Board, taking recourse to only Rule 42(1)(b) of the Rules of 1976 for passing the order of compulsory retirement was unbecoming of a model employer.

Even otherwise, the adoption of Rules of 1976 by the Board is of no 30 consequences if admittedly the services of the employees of the Board are not pensionable. If none of the benefits which are made available to an employee by virtue of provision of Rules of 1976, are not applicable to the employees of the Board, thus, adoption of the pension Rules, 1976 was an exercise in futility and was non est from the very Inception. This action of the Pollution Control Board was rightly taken note of by the Department of Finance and the Department of Finance in clear terms directed the Board to forthwith denotify the Pension Rules yet instead of acting upon the communication dated 17/05/2022 (Annexue R/4), the Board proceeded to issue the order dated 19/05/2022 (Annexure P/1) by which the petitioner was retired compulsorily.

The judgments relied upon by the respondents are distinguishable inasmuch as the case in hand, the applicability of the relevant statutory rules is in dispute. Moreover, it is not a case where an incorrect provision has been mentioned in the impugned order. On the contrary, the scrutiny committee has consciously taken a decision in terms of Rule 42(1)(b) of the Rules of 1976, thus, the judgment relied upon by the respondents is of no assistance.

Thus, in the considered view of this court, the action so taken by the respondent has been taken in absence of the statutory provisions. The argument of the counsel for the Board is that even otherwise, the Board has adopted the Madhya Pradesh Ardhyavashiki Ayu Adhiniyam, therefore also by virtue of Fundamental Rules 56, the Board in its own wisdom, can compulsorily retire its employees. However, a perusal of the order impugned as well as the operative paragraph of the Scrutiny Committee, leaves no doubt that the respondent/Board made an attempt to invoke the provisions of Rule 42 of the Pension Rules of 1976 and not Rule 56 of the Fundamental Rules. Thus, when the Board was well within 31 the knowledge of the fact that the Department of Finance specifically directed the Board to denotify the Rules of 1976 from the regulation, the action of the Board retiring the employee compulsorily, in exercise of powers conferred under Section 42(1)(b) on the face of it is arbitrary, mala fide and contumacious.

Thus in the considered view of this Court, the order impugned dated 19/05/2022 (Annexure P/1) deserves to be and is accordingly quashed. The petitioner shall be reinstated back in service, if relieved pursuant to impugned order, with all consequential benefits. However, this order will not come in a way of respondent/Board to proceed afresh if so advised while taking recourse to the other statutory provisions.

Accordingly, the petition stands allowed to the extent indicted hereinabove.

(MANINDER S BHATTI) JUDGE Astha Digitally signed by ASTHA SEN Date: 2022.08.23 18:32:36 +05'30'

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