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Madhya Pradesh High Court · body

2017 DIGILAW 156 (MP)

Pratap Narayan Yadav v. State of M. P.

2017-02-01

VANDANA KASREKAR

body2017
ORDER 1. The petitioners have filed the present writ petition under Article 226 of the Constitution of India challenging the order dated 16.9.2016 passed by respondent No.3 thereby rejecting the claim of the petitioner for regularization. 2. The petitioners were appointed as daily wages employee on the post of Dairy Paricharak and Driver w.e.f. 1984-1986 in the respondent department. Thereafter, vide order dated 23.3.2013, the services of the petitioners were regularized as work charged and contingency paid employee. The petitioners, thereafter filed a present Writ Petition No.14609/2013 before this Court, praying for a direction to the respondents to count their services rendered by them as daily wages employees for the purpose of fixation of pension in light of the judgment passed by Division Bench of this Court in the case of Shrikrishna Shrivastava v. State of M.P. and others, reported in 2003(4) MPLJ, 376 and Shamim Begum v. State of M.P. and others, 2006(III) MPWN 103 = 2006(4) MPLJ 112 . The said writ petition was disposed of vide order dated 30.8.2013 with a direction to the respondents to examine the case of the petitioner in light of the decisions rendered by this Court in the case of Shrikrishna Shrivastava and Samim Begum (supra). The respondents thereafter examined the case of the petitioner in the light of the said judgment and rejected the claim of the petitioners vide order dated 16.9.2015. Being aggrieved by that order the petitioners have filed the present writ petition. 3. Learned counsel appearing on behalf of the petitioners submits that the order dated 16.9.2015 by which the respondents have rejected the claim of the petitioner is illegal and arbitrary. He submits that the respondents have rejected the claim of the petitioner on the ground that the initial appointment of the petitioner is not in accordance with the rules. He further submits that while rejecting the representation they have relied on the judgment passed by the Division Bench of this Court in the case of Mamta Shukla in which the Division Bench of this Court has held that the employee who was appointed or engaged without following the procedure as enumerated in relevant recruitment rules against any post could not get a status and therefore, services could not be taken into account for the purpose of pension and etc. He further submits that the judgment of the Mamta Shukla is not applicable in this case. He further submits that the judgment of the Mamta Shukla is not applicable in this case. He further argues that this Court in identical petition i.e. Writ Petition No.18401/2006 (S) has allowed the writ petition and directed the respondents to count the services of the petitioners of that petition as a daily wager employee rendered by them from the work charged and contingency paid employee prior to regularization. In light of the judgment passed in the said writ petition, the respondents have extended the benefits of counting the services as a daily wager employee for the purpose of pension to that petitioners vide order dated 12.10.2009. Learned counsel for the petitioners submits that the petitioner being a similarly situated employee, the respondents, therefore should have granted similar benefit to the petitioner. The respondents/State have filed their reply and in the reply, have stated that the judgment in the case of Shrikrishna Shrivastava and Shamim Begum (supra), are pertaining to the employees working under work charged and contingency paid establishment. The petitioner herein were not working in the work charged and contingency paid establishment. Neither their salary were released from contingency funds nor they have been employed under the contingency paid establishment. Therefore, they are not entitled for any relief on the basis of the aforesaid judgment. It has been submitted that the petitioners were initially engaged in the services as daily wagers and before their engagement, no recruitment process was initiated. Neither they have been appointed on clear vacant post nor any process for engaging them in regular establishment was initiated. Therefore, they are not entitled for counting of period they have rendered as daily wager. 4. I have heard learned counsel for the parties and perused the record. The petitioners were appointed as daily wages employee since 1984-1985 thereafter vide order dated 23.3.2013 their services have been regularized. The petitioner, thereafter, filed a Writ Petition No.14609/2013 before this Court for counting their services prior to their regularization as daily wages employee for the purpose of pension. The said writ petition was disposed of vide order dated 30.8.2013 with a direction to the respondents to examine the case of the petitioners in light of the judgment passed by this Court in the case of Shrikrishna Shrivastava as well as in the case of Shamim Begum (supra). The said writ petition was disposed of vide order dated 30.8.2013 with a direction to the respondents to examine the case of the petitioners in light of the judgment passed by this Court in the case of Shrikrishna Shrivastava as well as in the case of Shamim Begum (supra). In pursuance of the directions issued by this Court, the respondents have passed the order dated 16.9.2015 thereby rejecting the claim of the petitioner relying on the judgment passed by the Division Bench of this Court in the case of Mamta Shukla. 5. From perusal of the impugned order, it appears that the impugned order has been passed on the ground that the petitioners are appointed as daily wages employee without following any procedure and therefore, their prior services could not be counted for the purpose of pension etc. This Court while disposing of the Writ Petition No.18401/2006(S) as well as Writ Petition No.67/2012(S) in both the writ petitions, the petitioners were appointed as daily wages employee and thereafter their services have been regularized as work charged and contingency paid employee. While disposing of the said writ petitions this Court has issued the following directions held as under :- “Considering the aforesaid it is to be held that service of the petitioner rendered by him as a daily wager employee from the work charge and contingency fund prior to regularization is required to be counted for the purpose of pension in view of the judgments in Shamim Begum (supra), Shrikrishna Shrivastava (supra) and Ram Kumar Agrawal (supra), Accordingly this petition is allowed. The respondents are directed to fix the pension of the petitioner accordingly and to settle the post retiral dues within a period of six months from the date of receipt of copy of this order and to release the same along with interest at the rate of 6% (six percent) per annum”. 6. Thus, this Court while disposing of these writ petitions has granted a benefit to those petitioners who are appointed on daily wagers employee and, therefore, the ground on which the respondents have rejected the claim of the petitioner cannot be sustained. 6. Thus, this Court while disposing of these writ petitions has granted a benefit to those petitioners who are appointed on daily wagers employee and, therefore, the ground on which the respondents have rejected the claim of the petitioner cannot be sustained. Thus, in view of the aforesaid impugned order dated 16.9.2015 is hereby set aside and the respondents are directed to reconsider the case of the petitioners in light of the judgment passed in the case of Shamim Begum and Shrikrishna Shrivastava (supra), and if the petitioners are found eligible then the respondents are directed to fix the pension of the petitioners accordingly and settle the retiral dues. The said exercise be done within a period of three months from the date of receipt of certified copy of the order passed today.