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Madhya Pradesh High Court · body

2008 DIGILAW 810 (MP)

SATYANARAYAN GUPTA v. MP. HOUSING BOARD

2008-07-02

S.C.SHARMA

body2008
Judgment S.C.SHARMA, J. ( 1. ) The petitioner before this Court who is a retired employee of Madhya Pradesh Housing Board, has filed this present petition under Articles 226/227 of the Constitution being aggrieved by action on the part of the respondents / Board in not paying him pension and other retiral dues. ( 2. ) It has been stated in the writ petition that the petitioner was appointed as a time keeper in the work-charge establishment by an order dated 25th July, 1973 for a period of three months (Annexure P/1). It has also been stated in the writ petition that the petitioner continued to serve under the work-charge establishment of the M.P. Housing Board with the satisfaction of the higher authorities and he was subsequently placed in the time scale of time keeper by an order dated 05th October, 1973. The petitioner has further stated that his case was considered for regularization in regular establishment on the post of Office Assistant and an order dated 06th August, 1986 was issued regularizing him on the post of Assistant. However, the order of regularization was not given effect to as the petitioner was not holding the requisite qualification at the relevant point of time and was holding a degree of Madhyama which was not recognized by the authorities. The petitioners case was again subsequently considered for regularization as an Assistant and by an order dated 14th March, 1995 his service were regularized. The petitioner was regularized as a Assistant under the regular establishment and he continued to work on the same post till his retirement i.e. 30th August, 2003. It has also been stated by the petitioner that he has put in a total 30 years of service with the respondents/Board and has received the General Provident Fund to the tune of Rs. 81,202/- which was sanctioned by the authorities vide order dated 28th August, 2003. It has also been stated by the petitioner that he has put in 22 years of service under the work-charge establishment and followed 8 years of service under the regular establishment and therefore he is entitled for grant of pension keeping in view the provisions of Madhya Pradesh (Work Charge and Contingency Paid Employees) Pension Rules, 1979 (hereinafter referred to as the Rules of 1979) read with M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as the Rules of 1976). ( 3. ( 3. ) The respondents/Board have filed a reply and in the reply it has been stated by the respondents that the Madhya Pradesh Housing Board has adopted the M.P. Civil Services (Pension) Rules, 1976 and as per the provisions of the Rules of 1976, the qualifing service required for entitlement to pension is 10 years and as the petitioner is having 8 years, 3 months and 25 days regular service, therefore, under the provisions of the Rules of 1976 , the petitioner is not entitled for grant of pension as claimed by him. It has also been stated by the respondents that the Rules dealing with the payment of pension in respect of work-charge contingency paid employe.es known as Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 have not been adopted by the Housing Board and therefore because the Rules of 1979 have not been adopted by the Housing Board, the question of counting the services of the petitioner rendered by him as work-charge employee does not arise. The respondents have further submitted that the petitioner has not put in 10 years regular service under the regular establishment, and, therefore, he is not entitled for grant of pensionary benefits. The respondents have also relied upon a judgment rendered by this Court in the case of Chcmdrika Prasad Pandey vs. The M.P. Housing Board (WP No. 5997/2001) passed on 29th August, 2003 stating that the identical placed employees were denied the benefit of pension. It has also been stated by the respondents that the petitioner is entitled only for gratuity amounting to Rs. 61,526/ - and after deductions, an amount of Rs. 50,526/- has been paid to the petitioner and therefore, the petitioner is not entitled for any relief whatsoever kind. ( 4. ) The petitioner has also filed a rejoinder and in the rejoinder it has been stated by the petitioner that the provisions of Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 are very much applicable to the M.P. Housing Board. ( 4. ) The petitioner has also filed a rejoinder and in the rejoinder it has been stated by the petitioner that the provisions of Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 are very much applicable to the M.P. Housing Board. It has also been stated on behalf of the petitioner that in case petitioner was not covered under the Pension Rules of 1979 and in case the provisions of Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 were not applicable, the Housing Board should have deducted the requisite contribution and should have forwarded the requisite contribution to the Employee Provident Fund Commissioner, entitling the petitioner to receive pension from the Employee Provident Fund Organization. In the present case, the respondents/Board is not paying the pension to the the petitioner. On the one hand, the respondents/Board has not paid the pension on the ground that the Rules of 1979 are not applicable in the case of the petitioner and on the other hand as the contribution were not deducted as per the scheme framed under the provisions of Employee Provident Funds and Miscellaneous Provisions Act, 1952, the petitioner was not made a member of pension scheme under the Employees Provident Fund and Misc. Provision Act, 1951. The petitioner is not receiving pension from the Employees Provident Fund Organization also. The petitioner has also given examples of five employees who have retired in the year 1986 onwards stating categorically on affidavit that the employees referred in the rejoinder were also working as work-charge employees and they are being paid the pension by the Housing Board. ( 5. ) The respondents/Board in the additional return has denied the averments made in the rejoinder and it has been stated that because the petitioner has not completed 10 years of service as required under the Rules of 1979, he is not entitled for pension. It has also been stated by the respondents that the M.P. Housing Board Regulations, 1977 have been framed by the Housing Board in exercise of powers conferred by virtue of provisions of Madhya Pradesh Grah Nirman Mandal Adhiniyam, 1972 (hereinafter referred to as the Adhiniyam of 1972) and a notification has been issued by the Housing Board dated 11th September, 1996 by which the M.P. Civil Services (Pension) Rules, 1976 only have been adopted. As the Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 rules have not been adopted, the question of granting pension to the petitioner by taking into account the services rendered by him as work-charged employee, does not arise. In respect of employees cited by the petitioner, it has been stated by the respondents that the employees have retired long back and the petitioner has not impleaded them as respondents and therefore, the respondents are not in a position to comment upon the plea raised by the petitioner. It has been further submitted that if some wrong has been done in respect of other employees, the benefit cannot be extended to the petitioner. ( 6. ) After carefully consideration of the arguments advanced by the learned counsel for the parties, it is evident that the petitioner was initially appointed under. the work-charge establishment on 25th July, 1973 and thereafter his services were regularized vide order dated 14th March, 1995, the petitioner has retired on attaining the age of superannuation on 30th August, 2003. As accepted by the respondents / Board that the petitioner has put in 8 years, 3 months and 25 days as regular service under the regular establishment. In the present case, undisputedly, the petitioner has worked 22 years under the work-charge establishment and 8 years of service under the regular establishment. ( 7. ) The State of Madhya Pradesh has enacted Madhya Pradesh Grah Nirman Mandal Adhiniyam, 1972 which is an Act to provide for the incorporation and regulation of Housing Board in the State of Madhya Pradesh for th purpose of taking measures to deal with and satisfying the need of (housing accommodation and to undertake development scheme) and for the matter connected therewith. The aforesaid Act was enacted on 31st July, 1973, and Madhya Pradesh Housing Board was incorporated under the Act of 1972. Section 15 of the Madhya Pradesh Grah Nirman Mandal Adhiniyam, 1972 reads as under:- "15. Conditions of service of officers and servants:- (1) The remuneration and other conditions of service of the officers and servants of the Board appointed under Section 14, shall be such as may be determined by regulations. Section 15 of the Madhya Pradesh Grah Nirman Mandal Adhiniyam, 1972 reads as under:- "15. Conditions of service of officers and servants:- (1) The remuneration and other conditions of service of the officers and servants of the Board appointed under Section 14, shall be such as may be determined by regulations. (2) Until regulations are made under sub-section (1), the remunerations and conditions of service of officers and servants of the Board shall be governed by the rules, orders and instructions relating to remuneration and conditions of service applicable to the officers and servants of the corresponding grade in the service of the State Government." ( 8. ) The M.P. Housing Board in exercise of powers conferred under Section 103 of the Madhya Pradesh Grah Nirman Mandal Adhiniyam, 1972 (3 of 1973) has issued regulations known as Madhya Pradesh Housing Board Regulations, 1977, which have been confirmed and approved by the State. The Regulations 3 of the Regulations of 1977 reads as under:- "3. Application of certain rules applicable to Government servants:- The Madhya Pradesh Civil Services (Medical Attendance) Rules, 1958, the Madhya Pradesh Civil Services (Conduct) Rules, 1965 and the Madhya Pradesh Civil Services (Classification, Control and Appeals) Rules, 1966, as amended from time to time, shall apply to the officers and servants of the Board as they are applicable to a Government servant of similar status to the extent they are not inconsistent with the provisions of the Act and these regulations." The regulations of 1977 does not deal with the payment of pension to an employee of M.P. Housing Board. There is a categoric stand on the part of the respondents/Board that the M.P. Civil Services (Pension) Rules, 1976 were made applicable to the employees of the Housing Board by issuing a notification by the M.P. Housing Board on 11th September, 1996. The notification dated 11th September, 1996 reads as under:- ( 9. ) From a bare perusal of the aforesaid notification dated 11th September, 1996, it is evident that the Housing Board has resolved to grant the benefit of pension to its employees. It is also evident from the aforesaid notification that the necessary permission has been accorded by the State Government vide order dated 13th August, 1996 and 02nd September, 1996. ) From a bare perusal of the aforesaid notification dated 11th September, 1996, it is evident that the Housing Board has resolved to grant the benefit of pension to its employees. It is also evident from the aforesaid notification that the necessary permission has been accorded by the State Government vide order dated 13th August, 1996 and 02nd September, 1996. The learned counsel appearing for the Housing Board has also produced the aforesaid notifications which are referred in the notification dated 11th September, 1996 and from a bare perusal of the notifications dated 13th August, 1996 and 02nd September, 1996, it is evident that the benefit of pension has been extended to the employees of the M.P. Housing Board. The notification dated 11th September, 1996, nowhere states that it is only the M.P. Civil Services (Pension) Rules, 1976 which is being adopted by the Housing Board. By virtue of the notification dated 11th September, 1996, the benefit of pension which is admissible to the employees of the State Government has been extended to the employees of the M.P. Housing Board meaning thereby that it is not only the M.P. Civil Services (Pension) Rules, 1976 which has been made applicable, but the provisions of M.P. (work-charge and contingency paid employees) Pension Rules, 1979 will also be applicable in the case of the employees of the Housing Board. The notification makes them applicable in respect of employees of the Housing Board. The judgment referred to by the respondents/Board which is on record, is a judgment relating to an employee who has earlier worked as a daily wager, this Court while deciding the W.P. No. 5997/01 has dismissed the writ petition as it was case of a daily wager, who was regularized subsequently. The period spent as a daily wager was not counted towards qualifying service. The case of the petitioner is distinguishable on fact. The petitioner is certainly not a daily wager but he was worked as work-charge employee receiving a regular pay scale and his services were later on regularized under the regular establishment and therefore the judgment referred by the respondents/Board passed in W.P. 5997/01 dated 29th August, 2003, is distinguishable. ( 10. ) The learned counsel for the respondents/Housing Board has also referred to a judgment of the Apex Court in the case of State of Punjab and others vs. Dev Dutt Kaushal and others 1995 suppl. ( 10. ) The learned counsel for the respondents/Housing Board has also referred to a judgment of the Apex Court in the case of State of Punjab and others vs. Dev Dutt Kaushal and others 1995 suppl. {4} SCC 748. After careful consideration of the aforesaid judgment cited by learned counsel, it is evident that in the aforesaid case, the question of computing services rendered by an individual in a private college for the purpose of pension was considered by the Apex Court. In the present case, the petitioner has not served under any private organization and he has served the Housing Board right from the inception of his service and therefore the judgment cited by the respondents/Board is again distinguishable. ( 11. ) Keeping in view the totality of circumstances and also keeping in view the notification dated 11th September, 1996 as it was resolved by the Housing Board to extend the benefit of pension to its employees, there remains no manner of doubt that the provisions of M.P. Civil Services (Pension) Rules, 1976 and the provisions of M.P. (Work-charge and Contingency Paid Employees) Pension Rules, 1979 are applicable in the present case and not only in the present case but also in all cases of other employees who have been rendered their services as work-charge employees. The petitioner is entitled for payment of pension by virtue of the provisions of M.P. (Work-charge and Contingency Paid Employees) Pension Rules, 1979 and also M.P. Civil Services (Pension) Rules, 1976. The respondents/Housing Board is, therefore, directed to consider the case of the petitioner and to grant him pension by taking into account the total period of service rendered by the petitioner as work-charge employee and as a regular employee. The petitioner shall be entitled for arrears of pension also. ( 12. ) The exercise of passing the order in the matter and paying pension along with arrears, in the light of the aforesaid observations, shall be concluded within a period of six months from today. ( 13. ) With the aforesaid observation, writ petition stands allowed. No order as to costs. Petition allowed.