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Madhya Pradesh High Court · body

2014 DIGILAW 1514 (MP)

State of M. P. v. Sujata

2014-11-21

D.K.PALIWAL, P.K.JAISWAL

body2014
Judgment 1. Ms. Mini Ravindran, Deputy Government Advocate for the appellant/State. Shri S.C. Bagadiya, learned Senior Counsel with Shri D.K. Chhabra, advocate for the respondent. They are heard. By this intra Court appeal, the appellant/State is praying for setting aside of the order dated 26-11-2013 passed in Writ Petition No. 6588/2006 (s), whereby the writ petition of the respondent has been allowed. 2. Brief facts of the case are that respondent/writ petitioner was an employee of the Employees' State Insurance Services Madhya Pradesh, Department of Labour, Government of Madhya Pradesh, working on the post of Assistant Surgeon/Insurance Medical Officer. She joined her duties in ESI Services in June, 1981 and continued to serve till January, 1998. She submitted an application on 16-10-1997, seeking voluntary retirement, as per her eligibility. The appellant/State accepted her resignation with effect from 14-1-1998 through order dated 20-1-1998. 3. Thereafter, she applied for grant of pension on the ground that she served on the post of Intern/Resident House Job and Demonstrator in the MGM Medical College, Indore and the period of her service should be counted for grant of pension. 4. The representation of the respondent was rejected by order dated 24-2-2004 by the appellant on the ground that the services rendered by the respondent in the Medical College, not being a regular government service, cannot be counted for grant of pension. 5. Aggrieved by the aforesaid order dated 24-2-2004, she had filed Writ Petition (s) No. 642/2005. Learned Writ Court by order dated 25-2-2005 allowed the writ petition and directed that the respondent shall submit a detailed representation before the Competent Authority and the Competent Authority shall dispose of the representation within a period of two months. The order dated 25-2-2005 reads, as under:- "25-2-2005 Petitioner by Shri S.C. Bagadia, Sr. Advocate with Shri D.K. Chabra. Respondents by Ms. Seema Sharma, Panel Lawyer on advance notice. Prayer in the present petition is that respondents be directed to consider the service rendered by the petitioner as intern, Resident House Surgeon and Demonstrator in the MGM Medical College, Indore and to decide her pension case accordingly or alternatively to consider her case under Rule 79 of MP Pension Rules. The facts of the case are that petitioner worked as Intern in the MGM Medical College from 1-3-1977 to 20-3-1978. Thereafter, she worked as a Resident House Surgeon from 1-4-1978 to 15-5-1979. The facts of the case are that petitioner worked as Intern in the MGM Medical College from 1-3-1977 to 20-3-1978. Thereafter, she worked as a Resident House Surgeon from 1-4-1978 to 15-5-1979. She was then appointed as an Demonstrator and worked from 16-5-1979 to 11-6-1981. Thereafter, the petitioner was appointed as Assistant Surgeon in Employees State Insurance Scheme from June, 1981 to January, 1998 in Labour Department. Upon submission of her resignation which was duly accepted vide order dated 14-1-1998, the petitioner was relieved. The case of the petitioner was considered for pension and the pension was refused on the ground that in view of Rule 42 of the MP Pension Rules is 20 years. Since, the petitioner has not completed 20 years of service, therefore, the petitioner is not entitled for pension. Learned counsel for the petitioner submits that the period of service which was rendered as Intern has not been counted. If that would taken into consideration, the petitioner completed twenty years and ten months of service. Further contention of learned counsel for the petitioner is that the case of the petitioner can be considered in view of Rule 79 of MP Civil Services (Pension) Rules, 1976 which reads as under:- "Power to relax-Where any department of the Government is satisfied that the operation of any these rules causes undue hardship in any particular case, the State Government may be order for reasons to be recorded in writing, dispense with or relax the requirements of the rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner: Provided that no such order shall be made except with the concurrence of the Finance Department. Learned counsel for the petitioner further placed reliance on the decision, reported in 2002 (2) MPLJ 136 : 2002 (1) MPHT 235 Ex. Cpl. H.J. Warren vs. Union of India and others, wherein me benefit of Rule 79 has been extended to cover up a short fall of 21 days. In view of this, this petition is disposed of with a short direction that petitioner shall submit a detailed representation before the competent authority along with the certified copy of the order passed by the High Court reported in 2002 (2) MPLJ 136 : 2002 (1) MPHT 235 within a period of two weeks. In view of this, this petition is disposed of with a short direction that petitioner shall submit a detailed representation before the competent authority along with the certified copy of the order passed by the High Court reported in 2002 (2) MPLJ 136 : 2002 (1) MPHT 235 within a period of two weeks. The competent authority shall dispose of the representation by passing a reasoned order within a period of two months." 6. Her representation was rejected by order dated 1-2-2006 (Annexure P/1 She challenged the aforesaid order by filing Writ Petition (s) No. 6588/2006. On 26-11-2013, learned Writ Court allowed the writ petition. 7. The appellant aggrieved by the aforesaid order filed this intra Court appeal and submitted that pension was refused on the ground that as per Rule 42 of Madhya Pradesh Civil Services (Pension) Rules, 1976, service of 20 years is must, as per the record of the Secretary Labour Department; total length of service of respondent is 19 years 11 months 9 days and thus, there is a short fall of 21 days for entitlement of pension, and therefore, pension was not paid to her. 8. It is submitted that there was a short fall of 21 days, as in completing qualifying service of 20 years is essential for the grant of pensionary benefits. The matter of pension is within the jurisdiction of the Finance Department of the State Government, who declined the proposal of the concerned department where the respondent had worked and further that, the Cabinet of Ministers too rejected the proposal of the department in this regard; hence only on the ground that the concerned department where the respondent worked has merely proposed to grant voluntary retirement, it cannot be held that the respondent's case was a fit case for exercising the power as conferred in Rule 79 of MP Civil Services (Pension) Rules, 1976. 9. During the course of arguments, learned Dy. Govt. Advocate very categorically stated that no reason for refusing to grant concurrence on the part of the Finance Department has been recorded. Pension is subject-matter dealt with by the Finance Department. Even in Rule 79 of the MP Civil Services (Pension) Rules, 1976, power to relax has been specifically provided to the Finance Department. Govt. Advocate very categorically stated that no reason for refusing to grant concurrence on the part of the Finance Department has been recorded. Pension is subject-matter dealt with by the Finance Department. Even in Rule 79 of the MP Civil Services (Pension) Rules, 1976, power to relax has been specifically provided to the Finance Department. As no concurrence was granted by the Finance Department, which is the final authority in the matter of allowing any relaxation in pension rules, and therefore, no pensionary benefit was granted to the respondent. 10. In support of the aforesaid submissions, she placed reliance on note sheets of the Labour Department at (page 44 to 46 of the writ petition) 11. She submits that though her case was recommended by the Labour Department of the Government of Madhya Pradesh, but Finance Department had not accepted the aforesaid proposal, and therefore, the same was turned down. 12. The Labour Department i.e. the employer of the respondent was of the view that "as per para 6.2 of the note sheet (filed along with the writ petition), the post of Demonstrator is of public service, and therefore, the Secretary Labour Department referred the matter for grant of pension and relaxation as per Rule 79 of the M.P. Civil Services (Pension) Rules, 1976, as there was a short fall of 21 days, but for want of concurrence, the same has been rejected. 13. It is also admitted by learned Deputy Government Advocate that no reason has been assigned by the Finance Department while not granting/refusing to grant concurrence, but as the Finance Department is the final authority, and therefore, no relaxation was granted. 14. Earlier also, when this matter was heard at length and thereafter, by order dated 27-10-2014, we directed the learned Deputy Government Advocate to produce noting No. 6 and 7 of the Finance Department by which the proposal has been rejected and granted two weeks time to produce the noting. Thereafter, again time was granted on 12-11-2014 to produce the same. Learned Deputy Government Advocate shown her inability to produce the same. Today also we asked the Officer-in-charge of the case to produce the file, but he said that he has written number of letters and reminders to the Department, but till today he has not received the noting. Thereafter, again time was granted on 12-11-2014 to produce the same. Learned Deputy Government Advocate shown her inability to produce the same. Today also we asked the Officer-in-charge of the case to produce the file, but he said that he has written number of letters and reminders to the Department, but till today he has not received the noting. It is also submitted that the matter may be remitted back to the learned Authority for considering the case of the respondent under Rule 79 of the M.P. Civil Services (Pension) Rules, 1976. 15. In spite of direction, to produce the original record available with the department from time to time no record has been produced. 16. The learned writ Court by impugned order dated 26-11-2013 considered the facts of events and allowed the writ petition. Relevant para of the order reads as under:-- "In the present case after the orders passed by this Court the representation was submitted by the petitioner, which was taken into consideration by the State Government and the matter was directed to be placed before Cabinet vide order dated 31-7-2005. Para Nos. 5, 6, 6.1, 6.2, 7, 8 and 9 of the recommendation made by the State Government when the matter was placed before the Cabinet are relevant for just disposal of petition, which read as under:- XXX XXX XXX Thereafter again Chief Secretary, Labour vide order dated 24-11-2005 made recommendations, of which para Nos. 4 & 5 are relevant, which reads as under:- Thereafter the matter was placed before the Finance Department whereby representation submitted by the petitioner was rejected on the ground that the law laid down in the matter of Ex. Cpl. HJ. Warren vs. Union of India, 2002 (2) MPLJ 136 : 2002 (1) MPHT 235 is not applicable hence petitioner is not entitled for pension. Rule 79 of Rules reads as under:-- "79. Cpl. HJ. Warren vs. Union of India, 2002 (2) MPLJ 136 : 2002 (1) MPHT 235 is not applicable hence petitioner is not entitled for pension. Rule 79 of Rules reads as under:-- "79. Power to relax.--Where any department of the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, the State Government may by order of reasons to be recorded in writing, dispense with or relax the requirements of the rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner." From perusal of record, it appears that upon the representation submitted by the petitioner in compliance of the order dated 25-2-2005 passed in W.P. No. 642/2005 case of the petitioner was considered by the concerned department and it was found that if the period of internship is taken into consideration, then the period of service rendered by the petitioner is more than 20 years. It was also observed by the Secretary, Labour Department that total length of service of petitioner is of 19 years, 11 months and 9 days, thus, there is a short fall of 21 days for entitlement of the petitioner for pension. It was also recommended by Labour Department that after considering the case of the petitioner sympathetically the short fall can be condoned. Since the case of the petitioner was rejected earlier, therefore, vide order dated 30-7-2005 case of the petitioner was again recommended to the Cabinet. As per Rule 79 of Civil Service Pension Rules where any department of the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, the State Government may by order of reasons to be recorded in writing dispense with or relax the requirements of the rule. In the present case concerned department recommended the case in favour of petitioner after recording the reasons to the effect that pension rules are causing undue hardship to the petitioner. The matter was sent to the Finance Department for concurrence. No reason has been assigned by the Finance Department for not giving the concurrence. Once the reasons were recorded by the concerned department, therefore, there was no justification on the part of Finance Department in not giving the concurrence without assigning any reason. The matter was sent to the Finance Department for concurrence. No reason has been assigned by the Finance Department for not giving the concurrence. Once the reasons were recorded by the concerned department, therefore, there was no justification on the part of Finance Department in not giving the concurrence without assigning any reason. In the facts and circumstances of the case, petition filed by the petitioner is allowed and the impugned order Annexure P/1 is set aside holding that after counting the service of the petitioner including intern/resident house surgeon as counted by the concerned department of the State where the petitioner rendered her services petitioner has completed qualifying service and the petitioner is entitled for pension. Respondents are directed to do the needful so that the petitioner can get the pension. Needful be done within three months. With the aforesaid observations, petition stands disposed of. C.C. as per rules. 17. The short fall of the respondent in service is 21 days in completing minimum of 20 years of qualifying service. She was denied the benefit of pension because there is a short fall of 21 days in completing the minimum qualifying service of 20 years. As per Rule 79 of M.P. Civil Services (Pension) Rules, 1976, if the department of respondent is satisfied, the same can be dispensed with or relaxed subject to concurrence of the finding of the department. In the case in hand, the department of the respondent condoned the aforesaid short fall of 21 days and recommended the matter to the finance department for grant of concurrence The finance department without any reason refused to grant concurrence. The short fall was not so much. It was only 21 days though technically it was there, but it has been condoned by the department of the respondent and referred the matter to the finance department. 18. Considering the aforesaid, we are of the view that there appears to be no good reason not to grant concurrence when the department condoned the short fall in the qualifying service. In all fairness the finance department should have granted concurrence otherwise very object of the power to condone the relaxation about short fall provided under Rule 79 of M.P. Civil Services (Pension) Rules, 1976, would stand defeated. 19. In all fairness the finance department should have granted concurrence otherwise very object of the power to condone the relaxation about short fall provided under Rule 79 of M.P. Civil Services (Pension) Rules, 1976, would stand defeated. 19. In view of the aforesaid, we are of the view that the writ appeal filed by the State has no merit and is liable to be dismissed. The appellant is directed to grant the concurrence within a period of 4 months from the date of certified copy of the order. The respondent is entitled to the pension w.e.f. her original entitlement if the pension is not finalized and paid in the manner of the aforesaid, within four months, same would carry interest at the rate of 8% per annum. With the aforesaid, writ appeal is dismissed. No costs.