Research › Search › Judgment

Madhya Pradesh High Court · body

2024 DIGILAW 783 (MP)

Janki Bai v. State of Madhya Pradesh

2024-12-13

SANJAY DWIVEDI

body2024
ORDER : Sanjay Dwivedi, J. At the request of counsel for the parties, the matter is finally heard. 2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is claiming that her husband namely Pritam Vishwakarma, who was a daily wager working in the Water Resources Department, in view of the policy of the Government for regularizing the employees of any department considering the vacancies available even in some other department not a substantive department of the employee was regularized in the Forest Department, but the benefit of family pension is not being granted to her. 3. The Collector, Narsinghpur in pursuance of the said policy of the Government had passed an order on 11.09.1998 (Annexure-RJ/1) regularizing the services of the petitioner’s husband in the Forest Department. The husband of the petitioner died in harness and after his death, the petitioner being the wife has claimed family pension but that claim has been rejected by the authority saying that the husband of the petitioner was a daily wager and, therefore, she cannot be granted family pension and as such, is not entitled for the same. 4. Although the counsel for the petitioner submits that the order of regularization passed by the Collector, Narsinghpur, on 11.09.1998 has neither been cancelled by the respondents-authority nor set aside by any of the Courts and therefore, the said order still exists and the husband of the petitioner in pursuance of the said order cannot be considered to be a daily wager, but his status was regular employee and as such, his wife (present petitioner) is entitled to get family pension. 5. Per contra, Shri Girish Kekre, learned counsel appearing for the respondent/State is relying upon the reply submitted by the respondents and has submitted that the order passed by the Collector was assailed by some of the employees of Forest Department saying that regularization of other daily wagers of other department is not permissible and the Collector was not the competent authority to pass such order of regularization in favour of daily wagers working in the Water Resources Department. The said petition was initially filed before the-then State Administrative Tribunal (for brevity the ‘Tribunal’) and the Tribunal vide order dated 23.09.1998 stayed the operation of order passed by the Collector, Narsinghpur. The said petition was initially filed before the-then State Administrative Tribunal (for brevity the ‘Tribunal’) and the Tribunal vide order dated 23.09.1998 stayed the operation of order passed by the Collector, Narsinghpur. However, after closing down the-then Tribunal, all the matters pending therein were transmitted to the High Court and then the Original Application i.e. O.A. No.2410 of 1998 was re- registered as W.P. No.12923 of 2003, which got disposed of by the High Court vide order dated 10.02.2004. He has further submitted that in pursuance of the said order, the order of Collector of regularization was not implemented and as such, the husband of the petitioner cannot be considered to be a regular employee and the claim of the petitioner has rightly been rejected. Shri Kekre has further submitted that the husband of the petitioner himself had approached this Court by filing a petition i.e. W.P. No.9261 of 2004 (Annexure-P/3) asking regularization. If the husband of the petitioner was a regular employee, then there was no occasion for him asking regularization from the Court. 6. In response to the same, the counsel for the petitioner has submitted that the husband of the petitioner had no knowledge about the order passed by the Collector, Narsinghpur regularizing his services in the year 1998, therefore, he approached this Court by filing the aforesaid petition. 7. Considering the submissions made by learned counsel for the parties and perusal of record, this Court is of the opinion that the order of regularization made in favour of the husband of the petitioner by the Collector, Narsinghpur, has neither been set aside nor cancelled so far. Although, the said order was neither given effect to nor implemented because of interim protection granted by the Tribunal vide order dated 23.09.1998. The order passed by the Tribunal staying the operation of the order passed by the Collector, Narsinghpur, is as under:- “By way of interim direction, it is being ordered that if the petitioners are working continuously since last 10 years before 31.12.1988 till today, status quo as it prevails today pertaining to them be maintained.” 8. The order passed by the Tribunal staying the operation of the order passed by the Collector, Narsinghpur, is as under:- “By way of interim direction, it is being ordered that if the petitioners are working continuously since last 10 years before 31.12.1988 till today, status quo as it prevails today pertaining to them be maintained.” 8. The petition preferred before the Tribunal by some of the employees of Forest Department raising grievance with regard to regularization of daily wagers working in the Water Resources Department, which was later on transferred to the High Court and re- registered as W.P. No.12923 of 2003 got disposed of by the High Court vide order dated 10.02.2004. The order passed by the High Court is as under:- “It is submitted by Mr. R.C. Tiwari, learned counsel for the petitioner that the controversy in this case is covered by order dated 25.11.2003 passed in Writ Petition No.8378/2003. Mr. R. Jain, learned counsel for the State does not dispute the same. In view of the same, it is directed that the direction issued in the aforesaid writ petition shall apply in full force to the petitioner. With the aforesaid direction the writ petition stands disposed of. There shall be no order as to costs.” 9. The said petition was disposed of in the light of order dated 25.11.2003 passed in W.P. No.8378 of 2003, which was disposed of by the High Court directing the authority to consider the claim of the employees who have been regularized but later on de-regularized and also directed that some exercise is required to be done by the department to consider the claim for regularization of those employees. 10. There is nothing on record indicating that after disposing of the petition by the High Court, any action has been taken by the respondents in respect of the order of regularization passed by the Collector, Narsinghpur in favour of the husband of the petitioner. There is nothing on record showing that the Forest department has cancelled that order or that has been set aside by any of the Courts. 11. The order passed by the authority i.e. Collector, Narsinghpur, since has not been set aside by any of the Courts, therefore, in the considered opinion of this Court, the same cannot be considered to be quashed or non-existing only because that has not been given effect to so far. 11. The order passed by the authority i.e. Collector, Narsinghpur, since has not been set aside by any of the Courts, therefore, in the considered opinion of this Court, the same cannot be considered to be quashed or non-existing only because that has not been given effect to so far. It is clear that because of the interim order granted by the Tribunal, the order of Collector, Narsinghpur was not given effect to and ultimately the writ petition got disposed of without testing the validity of the order passed by the Collector. In such circumstances, as per principle of actus curaie neminem grabavit, the order of the Court should not prejudice any person. 12. In that regard, the Supreme Court in a case reported in 2023 LiveLaw (SC) 263 parties being Bhupinder Singh Vs. Unitech Limited , has observed as under:- “5.2 As per the settled position of law, the act of the Court shall prejudice no one and in such a fact situation, the Court is under an obligation to undo the wrong done to a party by the act of the Court. The maxim actus curaie neminem grabavit shall be applicable. As per the settled law, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralized, as the institution of litigation cannot be permitted to confer any advantage on a suitor by the act of the Court.” 13. Thus it is clear that the order of Collector regularizing the services of the petitioner’s husband could not be implemented for the reason assigned hereinabove. The claim of the petitioner with regard to grant of family pension cannot be denied because the petitioner is not claiming any benefit except family pension from the of order regularization passed by the Collector in favour of her husband. 14. I find that the claim of the petitioner cannot be denied. The petitioner is entitled to get family pension as her husband was regularized in service. Therefore, the order passed in favour of the husband of the petitioner regularizing his services, gives him the status of a regular employee and as such, the petitioner is entitled to get family pension. 15. Resultantly, the respondents are directed to calculate the amily pension of the petitioner treating her husband as a regular employee from the date of order of Collector. 15. Resultantly, the respondents are directed to calculate the amily pension of the petitioner treating her husband as a regular employee from the date of order of Collector. Since no other relief has been claimed in this petition and the counsel for the petitioner during the course of arguments has confined his claim only to the extent of family pension, therefore, the petition is allowed. Respondents are directed that calculating the services rendered by the husband of the petitioner as a regular employee, family pension be calculated and the same be paid to the petitioner from the date of the death of her husband and arrears of family pension shall also be given to her with 6% interest within a period of three months from the date of submitting a copy of this order and after expiry of said period, if amount of family pension and arrears of the same is not paid, the same shall carry interest @ 8% after expiry of three months period till actual payment is made to her. 16. With the aforesaid, the petition stands allowed and disposed of