Madhya Pradesh High Court
Ramcharan Panwar vs Secretary The State Of Madhya Pradesh ... on 16 February, 2017
1
HIGH COURT OF MADHYA PRADESH: BENCH: INDORE
(SINGE BENCH: HON.MR.JUSTICE PRAKASH
SHRIVASTAVA
WRIT PETITION NO.718/2009
Satej S/o Hirendra Kopargaonkar
and others ... Petitioners
Vs.
The State of MP and another
... Respondents
Shri A.K.Sethi, learned Sr.Counsel with Shri Viraj
Godha, learned counsel for petitioners in WP No.718/2009.
None for petitioner in WP No.2505/2010 and 2506/2010.
Shri C.S.Ujjainia, learned counsel for respondents/State.
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Whether approved for reporting:-
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ORDER
(Passed on 16th February, 2017) This order will govern the disposal of WP No.2505/2010 Ramcharan Panwar S/o Moolchand Panwar Vs. The State of MP and another) and WP No.2506/2010 (Mahesh S/o Fattulal Jaiswal Vs. The State of MP and another) since it is jointly submitted by learned counsel for parties that all these writ petitions involve the same issue on identical fact situation. [2] For convenience, the facts are noted from WP No.718/2009.
2[3] This writ petition has been filed by the petitioners seeking a direction to the respondents to count the qualifying service of the petitioners for the pensionary dues from the date of initial appointment on the post of Excise Salesman and also to extend the benefit of pay fixation and pay the arrears from the date of termination till the date of the actual absorption/appointment. [4] In brief, the case of the petitioners is that they were appointed as Salesman in the regular pay scale of Rs.950-1530 under the orders of the Collector on temporary basis on sanctioned vacant post and by virtue of the provisions of M.P. Government Services (Temporary and Quasi Permanent Services) Rules, 1960. They had attained the status of the quasi permanent employees after expiry of three years period from the date of initial appointment. The initial appointment of the petitioners was in the year 1993-1994. The services of the petitioners were terminated by order dated 31/3/2001 on the ground of change of policy of the State government for running the country and foreign liquor shops till then run by the excise department to be auctioned to the private parties. As a consequence thereof the services of the petitioners were not required. The petitioners had approached the State Administrative Tribunal by filing the Original Applications. Some of the Original Applications were decided by the tribunal and 3 others were transferred to the High Court. In one such case being WP No.1817/2003 in the case of one of the petitioner herein namely Bhagwan Vs. State of MP and others, this court vide order dated 10/11/2013 had disposed of the writ petition with a direction to the respondents to give effect the judgment of the supreme court in the case of State of MP Vs. M.K. Vyas dated 21/12/1990 in C.A No.6245 to 6247 of 1990 and in the case of M.P. Rajya Karmachari Sangh Vs. State of MP and others OA No.700/1999 dated 13/3/2002. Thereafter the petitioners were declared as surplus and vide order dated 26/10/2005 they were appointed as Excise Constables temporarily in the scale of Rs.3050-4590. Now the petitioners are claiming counting of their past services for the purpose of qualifying service for the pensionary benefits and also the monetary benefits from the date of termination till the date of actual absorption/appointment.
[5] A reply has been filed by the respondents taking the stand that the appointment of the petitioners as Salesman in the Excise Department was on temporary basis and on account of change of policy to auction the liquor shops, such Salesman had become unemployed, therefore, the Cabinet Sub Committee on 10/5/2005 had taken a decision to treat such employees as surplus and to make attempt to appoint them on equallent post. 4 An additional reply has been filed by the respondents taking the stand that the initial appointment of the petitioner was illegal appointment and not a mere irregular appointment, therefore, they are not entitled to the benefits available to the regular employees.
[6] Having heard the learned counsel for parties and on perusal of the record, it is noticed that the petitioners are claiming benefit of counting the past services for the purpose of retiral dues, hence Rule 12 and 13 of Civil Services (Pension) Rules, 1976 are relevant which are quoted below :-
Rule 12--Commencement of qualifying service - (1) Except for compensation gratuity, a Government servant's service does not qualify till he has completed 18 years of age, provided that nothing contained in this clause shall apply in the case of persons who were in service on the date of commencement of these rules and in whose case a lower age limit has been prescribed.
(2) Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantially or in an officiating or temporary capacity.
Rule 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 purpose 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.
5[7] As per Rule 12, the qualifying service of a Government servant commences from the date he takes charge to a post for which he was first appointed either substantially or in an officiating or temporary capacity. As per Rule 13(2), the service means the services against a post under the Government and paid by the Govt. from the consolidated fund of the State which has not been declared as non-pensionable.
[8] In the present case, though the allegation and counter allegations have been made in the writ petition and reply by the parties, but there is no cogent material on record to reach to the conclusion if the petitioners as Excise Salesman were being paid by the government from the consolidated fund of the State. The claim of the petitioners for counting the services as Excise Salesman for the purpose of pensionary benefits has not yet been examined by any competent authority and no order of any such authority rejecting the petitioners claim is on record. Hence, I am of the opinion that such an issue needs to be decided by the competent authority in the light of the requirement of Rule 12 and 13 especially Rule 13(2) on the basis of the nature of appointment and other relevant consideration as prescribed in the Rules for the past period. Such an exercise is to be done by the competent authority more so for the reason that the relevant record for the past period is not before this 6 court.
[9] On the perusal of the record, it is also noticed that this issue has not been touched upon either by this court or the High Court or the tribunal in the earlier round of litigation and rightly so because it did not arise at that stage.
[10] So far as the petitioners claim for the arrears of salary from the date of termination in 2001 till absorption/appointment as Excise Constable is concerned, in the facts of the present case, the principle of 'no work no pay' is clearly attracted, therefore, the petitioners are not entitled for the salary for the aforesaid period. [11] Hence, the present writ petition is disposed of by directing the respondent No.2 to take an appropriate decision and pass a reasoned order in respect of the petitioners claim for qualifying service for the purpose of pensionary benefits. Let this exercise be done within a period of three months from the date of receipt of certified copy of this order.
[12] The original order be kept in WP No.718/2009 and a copy whereof be placed in the record of connected Writ petitions.
(Prakash Shrivastava) JUDGE vm