Shankarlal vs State of M.P.

Prakash Shrivastava, J.—Heard finally with consent.

This Writ Petition has been filed by the petitioner challenging the order dated 22/1/2009 rejecting the petitioner''s case for grant of pension on the ground that the petitioner has not completed 10 years of period as required under Rule 2(k)(g) of the Pension Rules, 1979.

The brief facts are that the petitioner was initially appointed as Gangman on muster roll on 1/1/1964. He had completed 25 years of service on 31/12/1989 and his services were regularised in contingency service with effect from 1/1/1996. He had retired on completing 60 years of service with effect from 30/6/2000. The petitioner had continuously worked from 1/1/1964 till the date of his retirement, but he was not extended the benefit of pension and by the impugned order his case relating to grant of pensionary benefits has been rejected stating that he was given the regular pay scale with effect from 1/1/1996 and had completed only four years and six months in the regular pay scale whereas he would have become entitled for grant of pension on completion of 10 years in the regular scale.

Learned counsel for petitioner submits that the issue involved in the present writ petition is squarely covered by the various single bench as well as the division bench judgments and similarly situated Gangman who have rendered continuous service without any break and were not granted the pensionary benefits on the same ground have succeeded before this Court. He has placed reliance upon the division bench judgment of this Court in the matter of Shrikrishna Shrivastava Vs. State of M.P. and Others, and other division bench judgments of this Court.

Learned counsel for State has opposed the writ petition and has submitted that in terms of the Full Bench judgment of this Court in the matter of Mamta Shukla (Smt.) Vs. State of M.P. and Others, , the petitioner is not entitled for any relief.

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

The undisputed facts are that the petitioner had served the respondents uninterruptedly from 1/1/1964 till he reached the age of superannuation on 30/6/2000. He was regularised in contingency service only with effect from 1/1/1996 whereas he had completed 25 years of service on 31/12/1989. The Division bench of this Court in the matter of Shrikrishna Shrivastava (supra) while dealing with the similar issue has held as under:-

"4. Admittedly, the petitioner was engaged on daily wages w.e.f. 1-12-1977, who was drawing his wages on monthly basis and his pay was charged to "office contingency". Respondents in their return filed before the Tribunal have mentioned that services rendered on contingency paid post cannot be reckoned with the service rendered on a civil post. Thus, respondents have admitted that petitioner has rendered service on a contingency paid post. In the said view of admission, petitioner is entitled for the benefit of the rules of 1977 and he was eligible to be recruited to the service on completion of five years service.

As per amendment in the rules known as Madhya Pradesh (Worked Charged and Contingency Paid Employees) Pension Rules, 1979, in Rule 6(3) it is provided that if a temporary employee who has served uninterruptedly and is regularised on a regular pensionable post, his services after 1st January 1974 which shall not be less than six years, shall be counted for pension and not from the date when he was regularised. In the aforesaid pension rules of 1979, Rule 6 relates to commencement of qualifying service. It is provided that for calculating qualifying service of a permanent employee, who retires as such, he service rendered w.e.f. 1st January, 1959 onwards shall be counted. It is further provided that on absorption of a permanent employee without interruption against any regular pensionable post, the service rendered with effect from 1st January, 1959 onwards shall be counted for pension as if such service was rendered in a regular post and thereafter sub-rule 3 was introduced vide notification dated 30th January 1996 and it is provided that any temporary employee, who has been served uninterruptedly and on his absorption on regular pensionable post after 1st January 1974 the period shall be counted towards pension.

Considering Rule 4 of the Madhya Pradesh Irrigation Department Work charged and Contingency Paid Employees Recruitment and Conditions Rules, it is clear that petitioner was eligible to be regularised on the post on completion of five years service as a contingency paid employee. Therefore, we hold that for the purpose of pension his period of service shall be counted from 1-12-1982 onwards till the date of his retirement. Petition is allowed. Respondents are directed to calculate the pension of petitioner treating him to be in service on the pensionable post w.e.f. 1-12-1982".

The same issue had come up before the division bench again in the matter of State of MP v. Hariram in W.A. No. 217/2010 and the Division Bench of this Court by order dated 7/7/2010 had dismissed the writ appeal of the State by holding as under:--

"It appears that the petitioner-respondent was appointed on 1/6/1962 as a Gangman on muster roll basis. His service was, however, regularised w.e.f. 1/1/1998. Thereafter on attaining the age of superannuation, he retired on 24/12/2001. However, when he was not given pension, he approached this Court by filing Writ Petition No. 3327/2009(s). The learned single Judge having heard the parties and also looking to the provisions of the M.P. Work Charge and Contingency Paid Employees Pension Rules, 1979 (for short, ''the Rules of 1979'') and relying on the Division Bench judgment of this Court in Shrikrishna Shrivastava Vs. State of M.P. and Others, allowed the Writ Petition and directed the respondents to extend the benefit of pension to the petitioner - respondent within a period of three months with interest @ 6% p.a. Learned Government Advocate vehemently contended that since the petitioner had not completed the qualifying period of 10 years of service, hence, he was not entitled to get the pension. We do not find any substance in the submission for the reason that this very controversy is resolved by the Division Bench judgment of this Court in Shrikrishna Shrivastava (supra) wherein it has been held that period rendered as a contingency paid employee after the date when the employee became eligible for regularisation is to be counted for determining the qualifying period of service under the Rules of 1979. Rule 6(3) provides that if a temporary employee who has served uninterruptedly and is regularised on a regular pensionable post, his service after 1st January, 1974 which shall not be less than six years, shall be counted for pension and not from the date when he was regularised.

In view of the aforesaid, admittedly in the case in hand, the appellant was working since 1962 and, therefore, he has completed more than six years of service before 1st January, 1974. Hence, he is entitled to the benefit of pension as provided in the Rules.

We, therefore, do not find any fault in the judgment of the learned single Judge. The appeal being devoid of any merit, is accordingly hereby dismissed".

Counsel for State has placed reliance upon the Full Bench judgment of this Court in the matter of Mamta Shukla (supra). The said Full Bench judgment has already been considered by the division bench judgment in the matter of State of MP and others v. Ramchandra Singh by order dated 5/8/2013 in W.A. No. 179/2010. In that Writ Appeal also the facts were similar as the respondent employee in that Writ Appeal was appointed as Gangman on muster roll from 1957 and was regularised with effect from 1/1/1996 and had retired on 30/6/2000, but was not granted the benefit of pension. The division bench of this Court, after considering the judgment in the matter of Mamta Shukla (supra) has held as under:--

"11. In the present case although the respondent was appointed as a gangman on muster role on 01/06/1957 he was regularised w.e.f. 01/01/1996 and he retired on 30/6/2000 and six years uninterrupted services prior to the regularisation shall be taken into consideration by the appellant/department while calculating the pension of the respondent/petitioner. We have no hesitation in holding that the State is misguided in its appeal and it deserves to be dismissed as such.

Consequently, it is hereby declared that the services of the respondent/petitioner would be governed by sub-rule (3) of Rule 6 of the M.P. (Work charged and Contingency Paid Employees) Pension Rules, 1979 and the case is squarely covered by several judgments of the earlier Division Bench and no error has been committed by the learned single Judge in allowing the writ petition. If the petitioner/respondent has not been paid the pension and other consequential benefits the appellant/State shall do so within two months from the date of this order and it is directed in the interest of justice the amount shall be paid with interest at the rate of 6% per annum".

In view of the above, it is found that the issue involved in the present writ is squarely covered by the above division bench judgment of this Court and the impugned order dated 22/1/2009 runs counter to the above judgment of this Court. Therefore, it cannot be sustained and is hereby set aside by holding that the service rendered as contingency paid employee after the date when the petitioner had become eligible for regularisation is to be counted for determining the qualifying period of service under the Rules of 1971. The petitioner therefore had become eligible for grant of pension. In the result, the writ petition is allowed and respondents are directed to extend the pensionary benefit to the petitioner in accordance with law within a period of two months from the date of this order. The due amount will be paid to the petitioner along with 6% interest.

C.C. as per rules.