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Madhya Pradesh High Court · body

2002 DIGILAW 106 (MP)

Gopi Pillai v. M. P. E. B. , Jabalpur

2002-01-29

ARUN MISHRA

body2002
ORDER Arun Mishra, J. 1. Common question involved in all these writ petitions is whether under Rule 42 of M. P. Civil Services (Pension) Rules, 1976 (for short "the Rules of 1976") period spent by an employee in the work charged establishment can be counted as qualifying service. 2. Petitioners were initially taken in the service in M.P.E.B. in the work-charged establishment. They had rendered less than 10 years service in the work-charged establishment; they were absorbed in the regular establishment. However, there was no break in their service; that continued uninterruptedly pursuant to their absorption in the regular establishment. 3. Respondent M.P.E.B. decided not to count the period spent by the petitioners in the work-charged establishment as qualifying service under Rule 42 of the Rules of 1976 on the ground that Rules of 1976 are not applicable to work- charged establishment and as per Rule 12 qualifying service is only the one which is rendered by an incumbent in a substantive post either on permanent, probation or temporary basis and as per M. P. Electricity Board, the M. P. (Work-charged and Contingency Paid Employees) Pension Rules, 1979 (for short "the Rules of 1979") are applicable only to the employees who are not absorbed in the regular establishment and it is the further stand of the M.P.E.B. not to count the service rendered in the work-charged establishment that there is no overlapping permissible of these two sets of rules which are applicable in different scenario. Rules of 1976 applies to an incumbent who was in regular establishment and period of work-charged service is irrelevant for computing pensionable service under these rules whereas Rules of 1979 are applicable to the work- charged/contingency paid employees who were not taken in the regular establishment; thus, as per the stand of the respondent/MPEB, there cannot be any addition of service rendered in the work-charged establishment for computing qualifying service under Rule 42 of the Rules of 1976 for a regular employee. 4. Petitioners submit that their cases are covered by number of decisions of this Court and also the decision of the Supreme Court in Ram Kumar Agrawal vs. State of M. P. and others 1995 Supp (3) SCC 67. 4. Petitioners submit that their cases are covered by number of decisions of this Court and also the decision of the Supreme Court in Ram Kumar Agrawal vs. State of M. P. and others 1995 Supp (3) SCC 67. It is further pointed out that against the decision of this Court in case of M. T. Joseph, the matter travelled upto the Supreme Court as reflected in Annexure P/14 in W. P. No. 5252/01; the decision of this Court to count the period spent on the work charged establishment towards the qualifying service under the Rules of 1976 was affirmed by the Supreme Court and the respondents decided to implement the decision of this Court and that of the Hon'ble Supreme Court and counted the work-charged service towards qualifying service and the pensionary benefits were sanctioned. There are other orders placed on record of this Court passed by the single Bench in M. P. No. 1569/94 decided on 24-11-1993 (Annexure P/9), W. P. No. 4097/97 decided on 14-9-1998 (Annexure P/10), W. P. No. 2967/99 decided on 28-10-1999 (Annexure P/11) and W. P. No. 2809/2000 decided on 4-10-2001 (Annexure P/12); against the latter decision in W. P. No. 2809/2000, a Letters Patent Appeal is pending before the Division Bench of this Court. 5. Learned senior counsel for respondents Shri M. L. Jaiswal submits that decision of the Supreme Court has not taken into consideration the various provisions of the Rules of 1976; particularly Rule 2 which runs as under:- 2. Application. - (i) Save as otherwise provided in these rules, these rules shall apply to every Government servant appointed to civil services and posts in connection with the affairs of the State of M. P. and who are borne on establishments not declared as non-pensionable. (ii) These rules shall not apply to:- (a) persons in a work-charged establishment; - - - - - - - - - - - - - - - - Learned counsel further submits that Rule 12 which is to the following effect has also not been taken into consideration by the Apex Court; Rule 12 is quoted below:- "12. Commencement of qualifying service. 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 substantively or in an officiating or temporary capacity." 6. Learned counsel submits that qualifying service under the Rules of 1976 commences only when a person takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity which the petitioners in the instant case did when they were taken in the regular establishment. Learned counsel further submits that in Rule 2(c) of Rules of 1979 definition of "permanent employee" is given which means a contingency paid employee or a work-charged employee who has completed fifteen years of service or more on or after 1st January, 1974; this provision was amended in the year 1982 and it was incorporated by adding proviso that 10 years service be also computed. Rule 2(c) of the Rules of 1979 along with proviso is quoted below:- "2(c) "Permanent employee" means a contingency paid employee or a work-charged employee who has completed fifteen years of service or more on or after 1st January, 1974 : Provided that in respect of a contingency paid employee who has attained the age of superannuation on or after April 1st, 1981 permanent employee means an employee who has completed ten years of service on or after the 1st January, 1974." 7. Learned counsel further submits that as per rule 4 the reference to the word "permanent employee" has the reference to the definition under Rule 2(c). Learned counsel further submits that Rule 6 of M. P. Work-charged and Contingency Paid Employees Rules, 1979 is to apply only to a case where person is not absorbed in the regular establishment. Rule 6 is quoted below:- "6. Commencement of qualifying service. Learned counsel further submits that Rule 6 of M. P. Work-charged and Contingency Paid Employees Rules, 1979 is to apply only to a case where person is not absorbed in the regular establishment. Rule 6 is quoted below:- "6. Commencement of qualifying service. - (1) Subject to the provisions of chapter III of the M. P. Civil Services (Pension) Rules, 1976 or section IV of the M. P. New Pension Rules, 1951 as the case may be, for calculating qualifying service of a permanent employee who retires as such, the service rendered with effect from the 1st January, 1959 onwards shall be counted. (2) 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 render in a regular post." Learned counsel further points out that prior to adaptation of the Rules of 1976, M. P. New Pension Rules, 1951 were in force in MPEB as they were adopted and those rules also did not provide for counting the period spent on work-charged establishment or contingency establishment. Learned counsel submits that decision of the Supreme Court in Ramkumar Agarwal (supra) has not taken into consideration the various above referred rules as such it has to be treated as per-incuriam. Counsel places reliance on decision of the Apex Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and others (1990) 3 SCC 682 , where their Lordships considered the question of per-incuriam in para 40 as under:- "40. We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. In Bengal Immunity Co. It cannot be doubted that Article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based. In Bengal Immunity Co. Ltd. vs. State of Bihar, it was held that the words of Article 141, "binding on all Courts within the territory of India", though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice. May be for the same reasons before judgments were given in the House of Lords and Re Dawson's Settlement Lloyds Bank Ltd. vs. Dawson, on July 26, 1966 Lord Gardiner, L. C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary:- "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law." 8. To buttress the submissions, learned counsel further relies on State of U. P. vs. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 . He again places reliance on para 40 which is quoted below:- "40. "Incuria" literally means "carelessness". In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law" is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority". (Young vs. Bristol Aeroplance Co. Ltd.). "Incuria" literally means "carelessness". In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law" is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority". (Young vs. Bristol Aeroplance Co. Ltd.). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu vs. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an Appellate Court is not binding." 9. Full Bench decision of Orissa High Court in Krishna Chandra Pallai vs. Union of India and another AIR 1992 Ori 261 , is pressed into service; para 10 and 13 of which are quoted below:- "10. As to the decision in Parma Nanda's case (AIR 1989 SC 185) being per incuriam as it has not taken note of the fact that according to Bhagatram's case ( AIR 1983 SC 454 ) disproportionate sentence violates. Article 14 of the Constitution, let us first see what is meant by the aforesaid expression. In this connection, we may first refer to the Constitution Bench decision of seven Judges in A. R. Antulay vs. R. S. Naik, (1988) 2 SCC 602 : AIR 1988 SC 1531 , in paragraph 42 of which it was stated that per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step of the reasoning on which it is based is found on that account to be demonstratively wrong. 13. Finally, we may note what was stated in paragraph 40 of State of U. P. vs. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , wherein Sahay, J. stated that in practice, per incuriam appears to mean per ignoratium. It was then stated that this principle was developed in relaxation of rule of stare decisis inasmuch as "quotable in law" is avoided and ignored if it is rendered" in ignoratium of a statute or other binding authority." 10. It was then stated that this principle was developed in relaxation of rule of stare decisis inasmuch as "quotable in law" is avoided and ignored if it is rendered" in ignoratium of a statute or other binding authority." 10. What is gatherable from the aforesaid decisions is that a judgment is per incuriam when stare decisis has been ignored or the High Court has failed to follow the decision of the Supreme Court which is binding on it under Article 141 of the Constitution or some statutory provision has not been taken into account. However, I am afraid how decision of the Supreme Court in Ram Kumar Agarwal (supra) can be said to be per incuriam at all. It was the question directly and squarely for consideration before the Hon'ble Supreme Court whether the service spent by a workman is work-charged establishment could be computed as qualifying service for the purpose of Rule 42 of the Rules of 1976. 11. In Ram Kumar Agarwal (supra) the facts unfold that the appellant joined the work-charged establishment in 1968; he remained in work-charged establishment till 1972 and was thereafter taken in the regular establishment in the year 1972 itself; he had rendered about 4 years of service in the work-charged establishment. Their Lordships considered the definition of "permanent employee" in Work-charged and Contingency Paid Employees' Pension Rules, 1979 and held that rules of 1976 have to be read with the Rules of 1979 and the period rendered by an incumbent in work-charged establishment has to be computed for qualifying service. Once a person is absorbed in regular establishment, that period has to be counted as qualifying service under rule 42 of the Rules of 1976. Their Lorships held in para 2 to 4 as under:- 2. The 1976 Rules read with the 1979 Rules make it clear that an employee who voluntarily retires under Rule 42(1)(a) of 1976 Rules after completing 20 years' qualifying service by following the requisite procedure laid down therein, would be entitled to pension under the said rules. On the admitted facts stated above, the appellant had put in 21 years, one month and 14 days' service when he sought voluntary retirement on January 6th, 1990. On the basis of the said rules, therefore, he is entitled to the pension. 3. On the admitted facts stated above, the appellant had put in 21 years, one month and 14 days' service when he sought voluntary retirement on January 6th, 1990. On the basis of the said rules, therefore, he is entitled to the pension. 3. The respondent-Govemment, however, denied him the benefit of Rule 42(1)(a) of the 1976 Rules on the ground that the 1976 Rules did not apply to work-charged establishment in view of the provisions of Rule 2(2)(a) thereof. Hence his service in the work-charged establishment from November 23, 1968 to May 4, 1972 could not be taken into account for calculating the qualifying service under Rule 42(1)(a). According to the Government if the said service is excluded, the appellant cannot be said to have put in 20 years' service as a regular junior engineer from May 4, 1972 to January 6, 1990. Unfortunately, the Tribunal has also accepted the said contention and rejected the application of the appellant for pension by the impugned order. 4. As pointed out earlier, in the present case, we have to read both the 1976 and 1979 Rules together to calculate the qualifying service of the appellant. Since the 1979 Rules have made the 1976 Rules applicable to the work-charged establishment with effect from January 1st, 1974, the service rendered' by the appellant in the work-charged establishment from November 23rd 1968 to May 4, 1972 has to be counted for the purpose of calculating the qualifying service under Rule 42(1 )(a) of the 1976 Rules. This being the case, the appellant who has put in more than 20 years of service is entitled to retire voluntarily under Rule 42(1)(a) and claim pension under the said Rules. The Government as well as the Administrative Tribunal have, therefore, committed an obvious error in interpreting the Rules. The impugned order has, therefore, to be set aside." 12. Thus, the decision of the Supreme Court squarely covers the field and cannot be said to be per incuriam. Sub-rule (2) of Rule 6 of Rules of 1979 clearly provides that on absorption of a "permanent employee" without interruption against any "regular pensionable post", the service rendered with effect from 1st of January, 1959 onwards shall be counted for pension as if such service was rendered in a regular post. These rules have been framed by the State of M. P. in the year 1979. These rules have been framed by the State of M. P. in the year 1979. Harmonious interpretation of the Rules of 1976 and Rules of 1979 has to be made. It is not disputed in the instant cases on facts that there were no interruption and when the petitioners were taken in the regular pensionable post, they were rendering the service in the work-charged establishment. The submission of fact that permanent employee under Rule 2(c) is one who had rendered minimum 10 years service in the work-charged establishment only then such service can be counted as per Rule 6(2) of the Rules of 1979 towards qualifying service under Rule 42 of M. P. Civil Services Pension Rules, 1976 is not acceptable as the Supreme Court has held that such service has to be counted. In view of Rule 6(2) of 1979 Rules when once a person is absorbed in a regular post service rendered in workcharged establishment, has to be counted as qualifying service. Not only the Supreme Court's decision holds the field but also the stare decisis requires consistency. This Court way back in the year 1995 in WP No. 1569/94, M. D. Dubey and others vs. M.P.E.B. directed period of work-charged to be computed as pensionable under Rule 42 of the Rules of 1976. In M. T. Joseph vs. M.P.E.B. WP No. 4097/1997 decided on 14-9-1998 similar view was taken. In WP No. 2967/1999 K. C. Alexander vs. M.P.E.B., M. T. Joseph's case was relied on which was affirmed in LPA No. 229/1998 by a Division Bench of this Court decided on 20th of November, 1998 which decision was affirmed as reflected in Annexure P/14 by the Hon'ble Supreme Court and was implemented with respect to M. T. Joseph and his services rendered on work-charged establishment were found as qualifying service under Rule 42 of the Rules of 1976. On facts, it is not disputed that case of M. T. Joseph and present incumbents are same, thus a different view is not permissible to be taken applying the principle of stare decisis. 13. As per respondents only when service has been rendered of 10 years in work-charged establishment can be counted not lesser period of service towards qualifying service of Rule 6(2) of 1979 Rules. 13. As per respondents only when service has been rendered of 10 years in work-charged establishment can be counted not lesser period of service towards qualifying service of Rule 6(2) of 1979 Rules. The change brought about in 1979 Rules is about service to be counted of work-charged establishment on being appointed in a regular post; it is nothing but liberalisation or upward benefit which should be made available to all as held by the Supreme Court in State of Punjab vs. Justice S. S. Dewan and others (1997) 4 SCC 569 . The Supreme Court laid down that:- "Conceptually," pension is a reward for past service. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and the quantum of pension. The formula adopted for determining last average emoluments drawn has an impact on the quantum of pension. D. S. Nakara case involved the change of formula for determining average emoluments and it was treated as liberalisation or upward revision of the existing pension scheme. On parity of reasoning it can be said that any modification with respect to the other determinative factor, namely, qualifying service made with a view to make it more beneficial in terms of quantum of pension can also be regarded as liberalisation or upward revision of, however, the change is not confined to the period of service but extends or relates to a period anterior to the joining of service, then it would assume a different character. Then it is not liberalisation of the existing scheme but introduction of a new retiral benefit." 14. In R. L. Marwaha vs. Union of India, 1987 (4) SCC 31 , ex-government servants were absorbed in the service of autonomous bodies; the benefit of past service was directed to be given to all employees. In T. S. Thiryvengudaman vs. Sec. to Government of India, (1993) 2 SLR 34. Restriction on pensionary benefits from a particular date was held to be impermissible and unreasonable. In M. C. Dhingra vs. Union of India, (1996) 7 SCC 564 : AIR 1996 SC 2963 Apex Court held that past temporary service should be counted for all; fixing of cut off date was held arbitrary. In State of W.B. vs. Ratan Behari Dey, (1993) 4 J.T. 504 employers' right to upward revision was upheld subject to without bringing discrimination. In State of W.B. vs. Ratan Behari Dey, (1993) 4 J.T. 504 employers' right to upward revision was upheld subject to without bringing discrimination. I find no permissible or intelligible criteria to discard service rendered by a regular incumbent in work charged establishment particularly when service of work charged establishment is also pensionable such benefit obviously has to be clubbed computing qualifying service under Rule 42 of Rules of 1976. 15. In the result, the writ petitions are allowed. The respondents are directed to compute the period of service rendered by the petitioners in the work- charged establishment towards the qualifying service under Rule 42 of the Rules of 1976 Pension be revised/finalised within a period of two months from today and amount be disbursed within the same period. The arrears to carry the interest at the rate of 8% per annum from the date of entitlement of the petitioners. Cost on parties.