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2011 DIGILAW 1384 (MP)

Harinarayan Sharma v. State of M. P.

2011-12-09

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2011
JUDGMENT : Heard. Thisis a letter petition in which this Court vide order dated 8-4-201 1 hadappointed Shri V.K. Patwari ,Advocate to assist the petitioner. 2.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 thedepartment for more than 40 years but he has not been granted the pensionery benefits whereas his juniors have been extendedthe said benefit. He has stated that he is a poor, handicapped, old and ailingretired employee with no support. 3.A reply has been filed by the respondents stating that the petitioner hadretired on 31-12-1997 whereas in terms of the Circular (Annexure R-1), dated 1-12-1997 , the Gangmen have been regularised with effect from 1-1-1998 , but, the petitioner couldnot be regularised as he had retired in the meanwhile. The petitioner has not completed minimum qualifying service, therefore,in terms of Rule 6 of the Madhya Pradesh (Work Charged and Contingency PaidEmployees) Pension Rules, 1979, he is not eligible for the grant of pension andaccordingly he has been paid the gratuity amount as permissible in law. 4.Learned Counsel appearing for the petitioner submitted that the case of thepetitioner is squarely covered by the judgment of this Court in the matter ofState of M.P. and others Vs. Mohammad Sadiq , reportedin 2010 (4) MPLJ Page 367, wherein in similar circumstances, the relief hasbeen granted. He has further submitted that the petitioner cannot be denied,the said benefit since the similar situated employee in the matter of Mohammad Sadiq (supra), has been granted the relief. 5.Learned Counsel for the respondents has submitted that the petitioner is notentitled to the pensionery benefit since he has notcompleted the minimum ten years of regular service in the Work ChargeEstablishment. 6.We have heard learned Counsel for the parties and perused the record. 7.The respondents in their reply have not disputed the fact that the petitionerwas 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 serviceon reaching the age of superannuation on 31-12-1997 . Thus, undisputedly the petitioner has servedthe respondents for more than 40 years. 7.The respondents in their reply have not disputed the fact that the petitionerwas 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 serviceon reaching the age of superannuation on 31-12-1997 . Thus, undisputedly the petitioner has servedthe respondents for more than 40 years. 8.It is also worth noting that the circular dated 1-12-1997 , in respect of regularisation of gangman , was issued when the petitioner wasworking as gangman , but he was not given the benefitof the said circular without any justifiable, reason. In terms of theircircular the petitioner is to be treated as a regular Gangman w.e.f . 1-1-1996 . 9.In the matter of Mohammad Sadiq (supra), theconcerned employee was appointed as daily wager in the year 1960 and was regularised on 1-1-1996 and had retired on 31-12-2002 andhe was denied the benefit of pension on the same ground raising the plea thathe had not completed the minimum period of qualifying service often years. ThisCourt, after taking note of the provisions of the Pension Rules, 1979, held thus : - "10.On taking into consideration Rule 2 (c) of the Pension Rules of 1979 it isluminously clear that a person can be said to be a permanent employee who hascompleted 15 years of service or more on or after 1st January, 1974 ascontingency paid or a work charged employee. Since, undisputedly the petitionerwas appointed as daily wager in the year 1960, hencein the year 1975 he has completed 15 years of his service. No doubt he was regularised vide Annexure R-2 on 1-1-1996 , but before he was regularised he already qualified the qualifying service for the grant of pension. It is notat all in dispute that the qualifying service of 10 years as envisaged in theproviso to definition clause of 'permanent employee' stated in Rule 2 (c) ofthe Pension Rules of 1979, has been reduced to six years vide notificationdated 30th January, 1996. But, according to us, the writ petitioner alreadyqualified the qualifying service for obtaining the pension, and hence,according to us, the respondent has been rightly granted relief by the learned Writ Court . But, according to us, the writ petitioner alreadyqualified the qualifying service for obtaining the pension, and hence,according to us, the respondent has been rightly granted relief by the learned Writ Court . 11.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 thelearned Writ Court . We donot find any merit in the contentions of the learned Additional AdvocateGeneral for appellants/State that the Pension Rules of 1976 would be applicableupon the contingency paid or work charged employee. If we go through theapplication of these Pension Rules of 1976 as envisaged in Rule 2 of the saidRules, we find that these Rules are not applicable to certain employees, whohave been categorised (ii) (a) to (g). According to clause(a) these Rules would not be applicable for the persons in a work chargedestablishment, and therefore, since the Pension Rules of 1976 are expresslymade inapplicable to those employees. According to us, learned Writ Court has rightly allowed the writ petition of thewrit petitioner. The Full Bench of this Court in Vishnu Mutiya (supra), Para 14 has also taken note of that the pensionof Gangman would govern by the Pension Rules of 1979.Needless to say the respondent has been retired from the post of Gangman ." Inthe above matter, the employee concerned was appointed on the same postsubsequent to the petitioner and he has been granted the pensionery benefit therefore, the present petitioner cannot be made to suffer on accountof inaction or delayed action on the part of the respondents. 10.We find that the case of the petitioner is covered by the earlier DivisionBench judgment of this Court in the matter of Mohd . Sadiq ( supra), and he is alsoentitled to the same benefit as has been extended in that case. 11.Accordingly, we allow this letter petition on the same terms by holding thatthe petitioner is entitled for the pension and direct the respondents to extendthe 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 thisorder. Nocosts. C.C. as per rules.