{fFE E;- K' mmm; JW IN THF IGH COURT OF MADHY£ PBADE$H AT JABALPUR (g W7 /0 Misc.Pe .No. 1992. Petitioner Nathoolal Yédaw son of Makundram/Yadaw aged nearly 58 years, resident of Beerpara At/Post Sarangarh, District Raigarh (M.P.) retired Accountant Janapada Panchayat Sarangarh, Distt. Raigarh. VERSUS W ‘_ Jaaapada ?aocnayat Sarangarh% throqgh~ Chief Executive afficer, JanapadaH Panohayat, Sarangarh, Distt.Raigarh(M.P.)‘ IQJALgtbA Government of 3 through Secretary to GOVernment Panchayat and Rural D K 3 Develooment 3Mw~ km?“ DeoartoJ“ ghapa& 2. Dlrector OT Pancnayats and moclal _ Jelfare" {LN cwmm 4 (AW $Jn£ . “M (WA 5% ColloCuor, Ralgarh Dlsurlct -%éigarh' PETTTION UNDuR ARTICLES 226/227 o uhe CONSTTTUTION OF RDIQ j I HIGH COURT OF CHHATTISGARH AT w_A5PUR W. P. No. 2270 of 1992 Pefifioner : Nn1hoo£al Yndmu Versus Respondents : $owmmenf of Chha'rrisgarh & ofhzrs Single Bunch: Hon'ble Mr. Jus‘tice Safish K. Agnihoh-i. Shri H B Agarwai senior- Advocate wi‘th Miss Sangecfa Mishm, Advocate for the Pefmoner 5hr: Sushi! Dubey, Govt Advocate for rhe respondents Na 1 w 3 o 5hr: Yoshwonf Singh Advomfe for *rhe respondem No 4 0 R D E R (Passed on 19*h Day of January, 2007) By 'Hais pe-rifion ihe petitioner sacks a direction 1’0 ihe 5mm and Colbc‘i'or 10 accord permission for grunt of pension, growify and o'rher benefits, fo which ihe peiiiioner may be leguiiy enfi'rled with inieresi of fhe rote of 12% per onnum. By amendment 1m pefifioner was per-miffed fo inoorpomre in fhe prayer clause fho'l' +he pe‘ri'kioner be permi‘n'ed 'ro redeposif Rs 17,000/- for making payment of pension. Z. The indisputable fads, in nutdneii, are fhaf fhe petitioner was oppoinfed as Lower Division Cierk on 14.5.1951 by order of fhe Chief Executive Officer, Jonpod Sabho, Sorongorln, under the provisions of the Central Provinces and Beror Loool Governmenf Aci'. 1948 ( for short ‘rhe Act, 1948'). The pe‘i'ifioner refired from fhe post of L.D.C. on attaining the age of wperonnuotion on 30.4.1992 from Janpad Panchayot, Sarmgarh. The pe'rifioner was dznizd 1he payment of pansion, *hus We petitioner has filed 1his pefifion for gram of prayer (alpm). Shri H. B. Agnrwal, learned Senior counsel with Miss Songee-ln Mishra, learned counsel, appearing for the pe‘ri‘rioner would submif ihai the service conditions of +he pefi‘l'ioner are governed by the Act 1948, as fhe some has been saved under Section 386 of 1'he Madhyn Prndew Panchayafs Act, 1962 (for shorf ‘The Act, 1962'). Learned counsel further submit 'l'ha‘l' Secfion 70 (1) (c) of fhe Ad, 1948 provides for grant of pension. He would further submit that Jonpad Panchayat, Sarangarh by his resolution dated 8.10.1991 resolved to grant pension to its employees and accordingly a request was made by the Chief Executive Officer, Janpad Panohayat, Sarmgarh to the Government for grant of @proval vide letter dated 6*“ April, 1992. The petitioner made a representation dated 12.11.1991 (Annexure K) to the Government for grant of approval to make payment of pension. It was further contended that the State Government has not granted my approval till date. and as such, it should be presumed that the State Government has not declined grant of sanction and deemed approval has been granted. Shri Yashwont Singh, learned counsel appearing for the respondent No.4, per contra, would mbmit that the employees of Jmpad Ponohaya'l' nrz no? enfifled 'ro pansion axeep? in ‘those cases where fhe Govemmenf has gmMad approval by ‘general‘ or 'spzcial’ order To make payment of pension. I? was further con-tended by learned counsel appearing for the respondent No.4 fhaf fhe provisions of the Act 1948 are nor saved by +he Act, 1962. Whai has been saved is ihe payment of pension and salary, if granted before the Ac'r, 1962 came info force. If was next contended by learned counsel appearing for The respondent No.4 that in absence of approval to make payment of pension, the petitioner is not entitled to any pension. The Government has not accorded any sanction/approval for pension. It was brought to the notice of this Court by learned counsel that the statement of the petitioner that the sanction was never declined is factually incorrect as the State Government by letter dated 25.3.1995 (Annexure R/l) has clearly stated that the employees of the Zila/Janpad Panchayats are not entitled to pension and gratuity and they avail facility of contributory provident fund, as they are employees of the autonomous bodies, not that of the State Government. He further contended that the service conditions of the petitioner are governed under the provisions of the Act, 1962 as the petitioner has retired in April, 1992. The ,v_:~.a_..\ .4 W $bmission of Iearned counsel for fhc pefi'rioner dWer'vas to be rejected and fhe submission of {earned counsel appeoring for fhe respondents, men'f oocepfance. The question of gram of pension to employees of Zih Ponohnyafs/Janpad Panchnyots afier 1962 come info considemfion before o Division Bench of fhe High Cour? of Judico‘rure of Jaboipur in fhe raw of Jonpod Pmilnya‘i’ Toma Ziio Panchayaf Kmmchari Sangii and o‘rhm Vs. State of M.P. and others { 1998 (1) JZLJ. 336), wherein ii was held fho‘t The employees working in fhe Pmchoyafs from 1962 onwards have been ihe employees, of fhe Ponchoyo'is and fhey connof be freu'red as 'ihe employees of ihe Sink Government by any sfrefch of imagination. The M.P. Jonopad Panchuyaf Employees (Quolificufions, Recruitment and Conditions of Service) Rules, 1976 (for shorf ‘ihe Rules, 1976') do not provide for payment of pension and the Rules, 1976 provides for payment of gratuity only. sin-i sushi: cubey, teamed om Advoem appearing fol the respondents No. 1, 2 and 3, while adopting the sJbmissions made by learned counsel appearing for the respondent NoA, would contend that it is wrong to soy that the Government has never declined approval for payment of pension to the petitioner. There is general circular Annexure R/l which dearw states 'Hmf fhe employm of ihe Zih Pmchnyaf/Janpad Panchaynf are not enfi-Hed fo paymen'r of pension. I have heard learned counsel for 1m partizs md peruw The pleadings md documenfs appended fhem'lo. 10. In order to appreciafa ‘l’he dispule i‘t is necessary ’fo quote relevant provisions of the Acts and Rules, which are quafed herein below :- Sec'rion 70 (1) (c) :- 70. (.1) 5ubjecr fa mks made anger secfian I82, rhe J’Wah aufhorify may employ such afficers and sermfs as may h newsmry for 1he efficienf execufion of its dark: and may - (a) xxx l xxx xxx (b) xxx xxx xxx (c) Ami; Me game] or special amcnbn’ of me 51m aowmmenf, granf rhem pensions or mbscrlbe on fheir balm/f for pension or gmhlihl; W) xxx W m Secrions 386 and 390 of 'rlie Act 1962 :— . 386. swims as ‘fu eximw mam We (I) Namirhsmndlhg anyfbing canmiwd in #u‘s Acf al- my wk 0r bye-122w made fhereun¢n fhe pay and al/omnces, pension and I'eriremenf benefifs af al/permanem‘ affiars md armnfs or Miler employees of fire Manahl Pmcbayaf, fhe Jwwaah 5abha ar fne Tans/7 Pandmyaf an Me $fe on whidl Mi: Acf comes infv force shall be exisfmg pay and dilemmas, pension md refiremenfbenefifs M a @ (2) All or any of #Ie psrmanenf officers, xrvanfs or afher amp/owes serving under a Janpada 5abha ar Talm7 Pmchayaf immedidfe/y before fhe coming info force of ibis Act may, nofwiihsfunding anyfhing in rhe ivrms of fheir appoinfmenf or fheir condifions of service, be required fa write in or in connecfion wiih fire affairs of any Jamaada Pandmyaf or if suiiab/e arrangemenfs oannof be made for fheir absoiprion in fhe some Tahsil, in oiher Tahsi/s. (3) Namimswdmg anymmg in wb-secmn (1) ar (2) ir 51m” be compefenf fo ihe Col/ecfor, wbjecf fo Me previous mfion of ihe 5mm 5overnmenf fa disconrime services ofany officer or servanf of Mando/ Panchayaf, Jamah 5abha or Tahsi/ Pancnayaf, who in his opinion, oannof be wimb/y absorbed in any ofher lom/ body or who is nof neces'sary or wimbk fo fire requiremenf of fits Zila Pancbayoi' or five Janapa¢ Panchayaf, as #12 case may be, offer giving wch officer or arm!“ slob nofice as is required fo be given by fhe farms of his employmenf and every officer or servanf whose services are disconnnued, shall be enfif/ed fo' wch leave, penshn, providenf fund Md grafuify as he would have been enfifbd fo fake or receive on being invalidafed ouf of xrvm as if fhe Mmdol Panchayaf, Jan/Jack 5obha or fhe Tahsil Panclnyaf in fhe employmenf of which he was, had nof reamd fo exist 390. 5avim as fo exisfilg enployeos-A/l employees belonging fo or under fhe confrol of fhe bodies menfioned in secfion 388 immediafely before fhe ohfe of coming info force of fhis Acf shall be deemed fo be fhe employees of fhe bodies deemed fo be esfabliished and consfifufed in fheir plow under fhis Acf: Provided #mf fhe farms Md candifions of xrw'ce of aid! employees #a/I naf um‘v'l a/fered by a campefznf wibarify, be less favourable fhan finose admissible fa 1hem while in xrw'ae of Me bodies afaremid. 11. If appears 1ha‘t fhe Jnnpad Panchayaf, surangarh framed car-min rules for grant of pension and gramify in me year 1983 and the said rules were sen? for approval under action 147 (KM) and (Ga) of 111a Act 1962. IT is admifted case that the approval was never gmnfzd by the Sfate Government 12. Affer having gone through 'lhe provisions of fha Acf and Rules, I am of 1h: considered View fhof Secfion 386 of tho Act 1962 does no? save Section 70 of fhe Act, 1948. Sec'l'lon 386 of fhe Ac‘l’, 1962 savzs only “the acfion or bonefi‘l’s growled 'l'o the employees under me provisions of 1he Act 1948 before ‘lhe Act, 1962 came info existence. Section 70 of the Act, 1948 provides for making payment of pension, subject to certain conditions, firstly, subject to rules made under section 182, rules were never framed. Secondly, with a 'general' or ‘speoial’ sanction from the state Government to grant them pension or subscribe on their behalf for pension and gratuity which were never granted by the general sanction or by any special sanction in the present case. 13. The Supreme Cour‘r whilz considering fhe effect of repealing of on Ac? in 6ajm§ Singh 6x what‘s Vs. 5mm Tmnspor'r Appelinw Tribunal and ofhers { (1997) 1 5.C.C. 650}, observed as under:- "22. Whenever m Acf is med/ed if mus‘f be cansiakred, excepf as fa fransacrians pasf ma’ closed, a: if if had nawr exisfzd. The effecf increaf is fa abliftrafe ’he Ad camp/efe/y from fhe mcbrd of Parliamenf as if if had never been passed,- if never exisfed excepf for Me purpose of Maw acfians which were commenced, praxaned and canchded wbi/e if was as exlls'mg kw " "24. Men Mere is ‘a repeai md simulimeous re-enacment Secfion é af fhe 6'6 Acf wouldqnp/y fa wd: a cag unless canfmry infenfion can be yafhered from fhe repeal/n9 Act secfian 6 would be qap/iaab/e in wan was unless #12 new legislafian manifesfs infenfian incansisfenf wifh or cmmry fa fbe w/iaafkm of #:e xenon. 5u¢ hcampaf/bi/iw would have fa be determined from all relevanf pray/Isms of fhe new Act merefare, when fne repeal is fol/cued by a fresh leglls'lafion an the yme' wbjecf, lhe Caurf'wauld undaubfedhl have fa leak iv fhe provisions of ihe new Ad anlv for ihe pumase af deiermlning whefher ihe new Act indiaafes differenf infenfian. 77m abjecf of repeal and re-enachnenf is fa ab/iferafe fhe Repealed Acf md fa gef rid of ceriuin obsolefe maffers, " 14. On saving of the rights acquired, in *he Principles of sinfutory Inferpre'rai'ion by Justice 6. P. Singh (Tzn‘rh Edifion), 2006 at page 635 kamed auihor obsarved as under:- ” 77m effecf of chum (c) m (e) of Winn 6, Mm! Clauses Acf is, waking brief/y, fa prevenf #Ie obliiemfian of a sfafufe in qw‘fz of ifs repeal fa keep infucf righfs acquired or accrued and liabi/ifies incurred durlhg ify aperafian aid permif mfimlame or myfifufian of my legal praaeedings or recoursel fa any remeay which mayhaw been available before fhe repeal for anforazrnenf ofm rg’hfs and liabi/ifw " 15. If is nof a case af the pefifioner that fhe pefi-rianer is mfified fo fhe pension under fhe provisions oi the Act, 1962. Even otherwise, fhe issue as to inhe'rher the empioyees working offer, 1962 are enfifled to gram of sancfion came info consideration before the Division Bench in the case of Jonpad Panohoyat Tatha Zilo Panchayat Kramhori sangh and others (supra). This decision is binding on the present State of Chhattsgarh aiso as the decision was pronounced before creation of the State of Chhattisgarh and aoondiy the petitioner has retired in 1992 when it was a part of the undivided State of Madhya Pradesh. The submission of the petitioner that the State Government be directed to grant approvai/sanction cannot be granted in this petition, as it isrweil settled principle of law that the 16. j} 10 Sfa're Govemmenf canno‘t b: directed 1’0 framz policy or make provisions for gram of pension or any other benefi‘l' by judicial i wri'rs. 17. In fhe presen’r case whan the Act 1948 was repeaied, fhe paii'rioner was in service and The pefii’ioner not cque dues air any right under Section 70 of th Act, 1948. The petition retired on 30.4.1992 when the Act, 1962 was in force and there was no provision for payment of pension to a employee of Zila/Janpod Panchayat. 18. With regard to the iss of grunt of pension under the Act, 1962, I am in respectful agreement with the decision of the MP. High Court in Jonpod Panchaya Tatho Zila Panchoyot t Kromchori angh and others (supra). s 1 For th reasons stated hereinabove, this petition stands 9. e dismissed. No order as to coss. t 1% 'm ": r i h K. dl— Agnom Judge satis y,s_r- e er ue