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2021 DIGILAW 127 (MP)

Salil Kumar Saxena v. State of M. P.

2021-02-08

ANAND PATHAK, SHEEL NAGU

body2021
JUDGMENT Pathak, J. -- 1. Instant appeal is being preferred against the order dated 9.4.2019 passed by the learned writ Court in Writ Petition No.3742/2019, whereby writ petition preferred by the petitioner/appellant has been dismissed at the motion stage itself without any issuance of notice over other side. 2. Precisely stated the facts of the case are that the petitioner was aggrieved by the order dated 1.12.2018 by which the respondent No.2 intended to superannuate the petitioner on attaining the age of 60 years and did not extend the benefits of 62 years to the petitioner, in spite of the fact that Statement Government has amended the provisions of Madhya Pradesh Shaskiya Sewak (Adhiwarshikiya Aayu) Sanshodhan Adhiniyam, 2018 and by way of amendment dated 11.7.2018 enhanced the age of superannuation from 60 years to 62 years. 3. It is the submission of learned counsel for the appellant that State Government has amended the provisions of Madhya Pradesh Shaskiya Sewak (Adhiwarshikiya Aayu) Sanshodhan Adhiniyam, 2018 and passed the Sanshodhan Adhiniyam, 2018 by way of gazette notification dated 11.7.2018. 4. The petitioner is holding the post of Sub-Engineer in M.P. Warehousing and Logistic Corporation, Branch Guna. The date of birth of petitioner is 9.2.1959 and therefore, after completion of 60 years of age, respondents were causing him to retire w.e.f. 28.2.1990 whereas Finance Department of the State Government vide order dated 27.4.2018 already issued direction to the Corporation/Mandal regarding extension of the age of superannuation as per financial condition. It is further submitted that by way of amended portion of clause 13 of the Madhya Pradesh State Warehousing Corporation Staff Regulation, 1962, the policies of State Government are to be applied mutatis mutandis to the corporation's employees in respect of age of superannuation / retirement. 5. Interpreting the same, single Bench at Indore vide order dated 12.4.2019 in W.P. No.1569/2018 (Ameeruddin Akolawala v. State of M.P. and another) passed the order while considering the interplay of Madhya Pradesh Shaskiya Sewak (Adhiwarshikiya Aayu) Sanshodhan Adhiniyam, 2018 and Adhyadhesh, 2018 vis-a-vis Madhya Pradesh State Warehousing Corporation Staff Regulation, 1962 and held that the Regulation 13 and its amended provision deserves to be applied in respect of age of superannuation and letter of finance department cannot be pressed into service in view of the amended Regulation 13 of the Madhya Pradesh State Warehousing Corporation Staff Regulation, 1962. The said order was put to challenge along with other identical matters and Division Bench at Principal Seat, Jabalpur in bunch of writ appeals (W.A. No.1088/2019 and other identical matters) decided vide order dated 15.11.2019, upheld the findings of Single Bench in respect of superannuation and dismissed the appeals preferred by the corporation. In other words, age of superannuation of employees of corporation was held to be 62 years. 6. In the backdrop of above factual matrix, grievance of the petitioner is that learned writ Court erred in passing the impugned order without considering the import of Regulation 13, therefore, caused illegality. 7. Learned Additional Advocate General for the respondent/State opposed the prayer and prayed for dismissal of this appeal. 8. Learned counsel for the respondent No.2 filed reply contents of which are more tangential then substantive, but prayer is in respect of dismissal of this appeal. 9. Heard learned counsel for the parties through V.C. and perused the record. 10. This is the case where appellant/petitioner is seeking redressal of the grievance whereby he was superannuated after attainment of 60 years of age whereas Regulation 13 of Madhya Pradesh State Warehousing Corporation Staff Regulation, 1962 mandates in categorical terms that it would be applicable mutatis mutandis as per State Government Policies. Amended portion of the policy is reproduced for ready reference. It reads as under :- “Compulsory Retirement Age Rules, 1967, Amended Rules, 1972 as framed by the State Government and the State Government policies as in force from time to time in respect of the age of superannuation/retirement shall be applicable to the Corporation's employee's” Said aspect has been considered by the Single Bench of this Court (supra), and thereafter, Division Bench has affirmed the same, order of which is on record and respondent could not dispute the passing of the said order as well as its application over the employees. Although respondent No.2 tried to make submissions in this regard, but could not produce any order of Hon'ble Apex Court or make out any distinction in respect of service conditions of present appellant. For brevity, the observations as contained in order of learned Single Judge or learned Division Bench respectively are not reproduced, but this Court intends to tread on the same path charted out by the learned Single as well as Division Bench of this Court in earlier litigation. 11. For brevity, the observations as contained in order of learned Single Judge or learned Division Bench respectively are not reproduced, but this Court intends to tread on the same path charted out by the learned Single as well as Division Bench of this Court in earlier litigation. 11. In the present case, respondents Corporation has wrongly interpreted the amended rule 13 of Rules of the Madhya Pradesh State Warehousing Corporation Staff Regulation, 1962 and denied the legitimate claim to the petitioner, therefore, as per the law laid down by the Hon'ble apex Court in the case of Union of India v. K.V. Jankiraman reported in AIR 1991 SC 2010 as well as judgment of apex Court in the case of State of Kerela and others v. E.K. Bhaskaran Pillai reported in 2007 SCC 524 where it has been held that if administration wrongly denies the dues of an employee then in that case he should be given full benefits including monetary benefits subject to there being any change in law and some other supervening factors and according to the Hon'ble apex Court principle “No work no pay” cannot be accepted as the rule of thumb, therefore, in the considered opinion of this Court, petitioner was denied his legitimate claims by nonapplication of already existing rule or misinterpretation of it. Petitioner is entitled for back-wages for the period wherein he was denied work by the respondents on illegal pretext. Division Bench of this Court in the case of Madhya Pradesh Madhya Kshetra Vidyut Vitran Company Ltd. v. Ajit Kumar Singh (Dead) through LRs Smt. Shiva Patel decided on 9.2.2017 in Writ Appeal No.400/2016 has already accepted the said principle. 12. Resultantly, appeal of the appellant stands allowed and age of superannuation of appellant is also to be treated as 62 years. Since the appellant/ petitioner was denied opportunity to work till 62 years of age whereas he ought to have been allowed because of amended Rule 13, therefore, he is entitled for back-wages while treating him in continuous service. Since appellant / petitioner apparently likely to be superannuated in February, 2021, therefore, respondents are directed to reinstate the appellant forthwith and appellant shall be entitled for all service benefits by way of consequential benefits including monetary benefits / pensionary benefits accrued to him in accordance with law while treating him in continuous service up to 62 years of age. 13. 13. Appeal stands allowed and disposed of in above terms.