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Madhya Pradesh High Court · body

2003 DIGILAW 613 (MP)

C. L. John v. State of M. P.

2003-04-25

S.P.KHARE

body2003
ORDER 1. This is a writ petition under Articles 226 and 227 of the Constitution of India for a direction to the respondents to pay his pension treating his services as continuous from 5.5.1955 to 31.7.1990. 2. It is not in dispute that the petitioner was appointed as an Overseer from 5.5.1955 in Part-C State of Bhopal. He became an employee of the Public Works Department in the State of M.P. from 1.11.1956. The petitioner was appointed as Assistant Engineer in M.P. Housing Board from 26.4.1965. He was relieved from the post of Overseer in PWD. The petitioner worked with the M.P. Housing Board upto 24.1.1985. He was absorbed in the services of the Town Improvement Trust, Rewa as per order dated 24.1.1985 of the Government of M.P. It is specifically provided in this order (Annexure P-4) that the petitioner would have to resign from this post in the M.P. Housing Board. Town Improvement Trust, Rewa later merged in the Municipal Corporation, Rewa. The petitioner was transferred in 1987 to Special Area Development Authority, Mandideep and then to the Bhopal Development Authority and to the Town Improvement Trust, Sehore. He retired on 31.7.1990. The employees of the M.P. Housing Board were granted the benefit of pension from 1.7.1973. The M.P. Housing Board is prepared to pay pension of the petitioner from the date of his appointment by the M.P. Housing Board to the date he left the Board and joined the Town Improvement Trust, Rewa. The M.P. Housing Board is, however, not prepared to pay any pension to the petitioner in respect of his services prior to his appointment by the M.P. Housing Board and after he joined the services of the Town Improvement Trust, Rewa. 3. The petitioner's case is that he did not resign from the post of Overseer in PWD and therefore, his lien on this post continued even after his appointment by the M.P. Housing Board. His post in the M.P. Housing Board was pensionable and on his appointment in the Town Improvement Trust, Rewa he is entitled to pension. In short his plea is that there wa1 no break in the continuity of the service and as he has put in more than 33 years of service in all he is entitled to full pension and gratuity. He has claimed interest also because of the delay in the payment of gratuity and pension. 4. In short his plea is that there wa1 no break in the continuity of the service and as he has put in more than 33 years of service in all he is entitled to full pension and gratuity. He has claimed interest also because of the delay in the payment of gratuity and pension. 4. The case of the respondent No.3 is that the appointment of the petitioner in the M.P. Housing Board was a fresh appointment and there is no specific order either of the State Government or of the M.P. Housing Board for treating the services of the petitioner as continuous. The respondent No. 3 has expressed in para 2 of its return that it is 'ready to pay' pension and gratuity of the petitioner from 26.4.1965 to April, 1985 but his service5 prior to joining the M.P. Housing Board and after leaving this Board cannot be counted for the purpose of his pension payable by the M.P. Housing Board. The case' of the respondent No.4 is that though the Town Improvement Trust, Rewa was merged in the Municipal Corporation, Rewa, the petitioner is not entitled to pension as at that time the pension was not payable to the municipal employees. It is also stated that the petitioner was subsequently transferred to Mandideep, Bhopal and Sehore and the Municipal Corporation, Rewa is not liable to pay his pension for the period he served in those districts with other authorities. 5. Learned counsel for both the sider have been heard. In the petition reliance has been placed on FR 13 (b) of the Fundamental Rules. It provides that "a Government servant who has acquired lien on a post retains the lien on that post while on foreign service''. In the present case the petitioner was not deputed by the State Government on foreign service to the M.P. Housing Board. The petitioner of his own accord applied to the M.P. Housing Board and he was appointed there as Assistant Engineer. There is no specific order of the State Government or of the M.P. Housing Board that the services rendered by the petitioner in PWD would be counted for pension purpose. FR 13 (b) of the Fundamental Rules is not applicable. Then learned counsel for the petitioner has relied upon rule 34 of the M.P. Civil Services (Pension) Rules, 1976. There is no specific order of the State Government or of the M.P. Housing Board that the services rendered by the petitioner in PWD would be counted for pension purpose. FR 13 (b) of the Fundamental Rules is not applicable. Then learned counsel for the petitioner has relied upon rule 34 of the M.P. Civil Services (Pension) Rules, 1976. This rule provides that: "A Government servant who has been permitted to be absorbed in a service or post in or under a corporation or company wholly or substantially owned or controlled by the Government in or under a body controlled or financed by the Government shall, if such absorption is declared by the Government to be in the public interest, be deemed to have retired from service on retiring pension from the date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Government applicable to him. (See App. II): Provided that the provision of sub-rule (5) of rule 43, shall not apply for the purpose of determining pension under this rule." In the present case no declaration as envisaged in rule 34 of the M.P. Civil Services (Pension) Rules, 1976 has been made by the Stare Government. The appointment of the petitioner as Assistant Engineer in the M.P. Housing Board was a fresh appointment after his selection by the M.P. Housing Board. Therefore, on joining the M.P. Housing Board the petitioner will be deemed to have left the services of the State Government. As already stated there was no order of the M.P. Housing Board or of the State Government that the services of the petitioner in the Public Works Department would be counted for the purpose of determining the pension and therefore the petitioner cannot be permitted to tack his earlier services with Public Works Department to his services in the M.P. Housing Board. 6. Similar would be the legal position after the petitioner left the M.P. Housing Board. It is clearly stated in the order dated 24.1.1985 (Annexure P-4) that the petitioner would be required to resign his post from the M.P. Housing Board before he is permitted to be absorbed by the Town Improvement Trust, Rewa. 6. Similar would be the legal position after the petitioner left the M.P. Housing Board. It is clearly stated in the order dated 24.1.1985 (Annexure P-4) that the petitioner would be required to resign his post from the M.P. Housing Board before he is permitted to be absorbed by the Town Improvement Trust, Rewa. The petitioner worked under three different employers having distinct legal entities and therefore, he cannot be permitted to claim continuity of his service. He can claim from each employer what is due to him from each of them as per rules. The M.P. Housing Board is ready to pay the pension of the petitioner for the period of twenty years he served the Board. The petitioner has put in less than ten years of service in the Public Works Department of the State Government. He has put in about five and a half years of service with the Town Improvement Trust, Rewa, Municipal Corporation, Rewa and other authorities. 7. Learned counsel for the petitioner has cited the decision of the Division Bench of this Court in Municipal Corporation, Gwalior v. Ramsewak [ 2002 (I) MPWN 62 = 2002 (1) MPHT 48 ] in support of his plea that the period spent by the petitioner as a Government servant should be counted for the purpose of the pension. This decision of the Division Bench is not applicable to the facts of the present case. In the case before the Division Bench, the petitioner was the employee in one of the Panchayats and the area of that Panchayat was merged with Municipal Corporation, Gwalior in the year 1981 and therefore, the petitioner became the employee of the Municipal Corporation as all the assets am liabilities of the Panchayat were transferred to the Municipal Corporation The Court held that the liability for the payment of pension to the petitioner also would be treated as having beer transferred to the Municipal Corporation From para 6 it is clear that on account 01 the 'statutory fiction' incorporated in section 3 of the M.P. Municipal Corporation Act, the Municipal Corporation took over the liability to pa) pension of the petitioner. That is not the position in the present case. It has .beer made clear by the Division Bench that rule 34 of the M.P. Civil Services (Pension; Rules, 1976 is not attracted in such a case. 8. That is not the position in the present case. It has .beer made clear by the Division Bench that rule 34 of the M.P. Civil Services (Pension; Rules, 1976 is not attracted in such a case. 8. In the result the claim of the petitioner that he should be treated as having put in continuous service for 35 years 2 months and 27 days for the purpose of pension from March, 1955 is rejected. Respondent No. 3 M.P. Housing Board is, however, directed to pay pension to the petitioner for the period Apri1. 1965 to April, 1985. The respondent No.3 is directed to pay interest at the rate of 9% per annum on the amount of pension and gratuity to the petitioner from 1.8.1990. The respondent No. 5 Public Works Department of the State Government shall pay gratuity and pension to the petitioner for the period of service rendered by him in that Department if it is admissible under the rules. Similarly, respondent No.4 Municipal Corporation, Rewa shall pay gratuity and pension to the petitioner for the period 24.1.1985 to the date of retirement of the petitioner i.e. 31.7.1990 if it is admissible under the rules.