Harinarayan Sharma vs State of M.P.

S. Kemkar, J.—This is a letter petition in which this Court vide order dated 08.04.2011 had appointed Shri V.K. Patwari Advocate to assist the petitioner. The case of the petitioner is that he was appointed as Gangman in the Public Works Department in March 1957 and had retired on 31.12.1997 after serving the department for more than 40 years but he has not been granted the pensionery benefits whereas his juniors have been extended the said benefit. He has stated that he is a poor, handicapped, old and ailing retired employee with no support.

A reply has been filed by the respondents stating that the petitioner had retired on 31.12.1997 whereas in terms of the Circular (Annexure R/1) dated 01.12.1997, the Gangmen have been regularized with effect from 01.01.1998, but, the petitioner could not be regularized as he had retired in the mean while. The petitioner has not completed minimum qualifying service, therefore, in terms of Rule 6 of the Madhya Pradesh (Work Charge and Contingency Paid employees) Pension Rules, 1979, he is not eligible for the grant of pension and accordingly he has been paid the gratuity amount as permissible in law.

Learned counsel appearing for the petitioner submitted that the case of the petitioner is squarely covered by the judgment of this Court in the matter of State of M.P. and Others Vs. Mohammad Sadiq, wherein in similar circumstances, the relief has been granted. He has further submitted that the petitioner cannot be denied the said benefit since the similarly situated employee in the matter of Mohammad Sadiq (supra) has been granted the relief.

Learned counsel for the respondents has submitted that the petitioner is not entitled to the pensionery benefit since he has not completed the minimum ten years of regular service in the Work Charge Establishment.

We have heard learned counsel for the parties and perused the record.

The respondents in their reply have not disputed the fact that the petitioner was employed as Gang Man in the Public Works Department since the year 1957. This fact is also not in dispute that the petitioner had retired from service on reaching the age of superannuation on 31.12.1997. Thus, undisputedly the petitioner has served the respondents for more than 40 years.

It is also worth noting that the circular dated 01.12.1997, in respect of regularization of gangman, was issued when the petitioner was working as gangman, but he was not given the benefit of the said circular without any justifiable reason. In terms of this circular the petitioner is to be treated as a regular Gangman w.e.f. 01.01.1996.

In the matter of Mohammad Sadiq (supra), the concerned employee was appointed as daily wager in the year 1960 and was regularized on 01.01.1996 and had retired on 31.12.2002 and he was denied the benefit of pension on the same ground raising the plea that he had not completed the minimum period of qualifying service of ten years. This Court, after taking note of the provisions of the Pension Rules, 1979, held thus.-

On taking into consideration Rule 2(c) of the Pension Rules of 1979 it is luminously clear that a person can be said to be a permanent employee who has completed 15 years, of service or more on or after 1st January, 1974 as contingency paid or a work charged employee. Since undisputedly the petitioner was appointed as daily wager in the year 1960, hence in the year 1975 he has completed 15 years of his service. No doubt he was regularized vide Annexure R/2 on 1.1.1996, but before he was regularized he already qualified the qualifying service for the grant of pension. It is not at all in dispute that the qualifying service of 10 years as envisaged in the proviso to definition clause of ''permanent employee'' stated in Rule 2(c) of the Pension Rules of 1979, has been reduced to six years vide notification dated 30th January, 1996. But, according to us, the writ petitioner already qualified the qualifying service for obtaining the pension, and hence, according to us, the respondent has been rightly granted relief by the learned Writ Court.

Indeed, this aspect of the matter has already been taken note of in paras 4, 5 and 6 by the Division Bench of this Court in Shrikrishan (supra) which has also been quoted by the learned Writ Court. We do not find any merit in the contentions of the learned Additional Advocate General for appellants/State that the Pension Rules of 1976 would be applicable upon the contingency paid or work charged employee. If we go through the application of these Pension Rules of 1976 as envisaged in Rule 2 of the said Rules, we find that these Rulies are not applicable to certain employees, who have been categorized (ii)(a) to (g). According to clause (a) these Rules would not be applicable for the persons in a work charged establishment, and therefore, since the Pension Rules of 1976 are expressly made inapplicable to those employees. According to us, learned Writ Court has rightly allowed the writ petition of the writ petitioner. The Full Bench of this Court in Vishnu Mutiya (supra) para 14 has also taken note of that the pension of Gangman would govern by the Pension Rules of 1979. Needless to say the respondent has been retired from the post of Gangman.

In the above matter, the employee concerned was appointed on the same post subsequent to the petitioner and he has been granted the pensionery benefit therefore, the present petitioner cannot be made to suffer on account of inaction or delayed action on the part of the respondents.

We find that the case of the petitioner is covered by the earlier Division Bench judgment of this Court in the matter of Mohd. Sadiq (supra) and he is also entitled to the same benefit as has been extended in that case. Accordingly we allow this letter petition on the same terms by holding that the petitioner is entitled for the pension and direct the respondents to extend the necessary benefits to the petitioner as has been extended in the matter of Mohd. Sadiq (supra) within 8 weeks from the date of receipt of a copy of this order.

No costs.