73--F- HIGH COURT OF CHHATT1SGARH AT BIIASPUR WMT PETITION No. 2507 of 2005 VERSUS : Chhattisgarh State Electricity Board & '-Post for ordsr on /5" May,2007 Sd/- Satish K. Agni Judge T-';mi ^'^T@ fflGH COURT OF CHHATTISGABJH AT BILASPIIR iTITION: WRIT PETITION No.^S07^pf2003 .Thadu Ram, son of Manglu Ram, aged about 79 yrs., shyama Nagar, Janakpur ward Kankeri'C.G.) VERSUS - : 1. Chhattisgarh Stete Electricity Board Through the Secretary, Raipur (Chhattisgarh) 2.'.Ch.hattisgari'i State Electriciw Board. 'Througfa fhe Executive Engineer, Raipur (Chhattisgarh). WRTT PETITION UNDER ARTICLE 226 OF THE CONSTH'm'ION OF INDIA^ igte in sans Presest: Shri S.Agrawal, Sr. Advocate with Shri J.K.Gupta, Advocate fbr the petitioner. Shri P.S.Koshy, Advocate forthe 1S .j 8a» (Passed oa ........ (S.T.day ofMay, 2007) By this petition, the petitioner seeks a relief that the petitioner be granted p&nsion after his taking services as daily wager into account for calculating tb.e minimum qualifying 1.0 years in service to eEtitle the petitioner fo.r grant ofpension and gra.tuity also. The indisputable facts, in nutshell, are that tb.e petitioner vv'a.s engaged in the service as daily wager from 24.9.1974, The petitioner was regularised w.e.f .24.12.1986. Tiiereafter, vide order dated 2740.1990 (Aiinexuje P/l), tiie petitioner wa.s appointed as work charged driver temporarily on ti.me scale ofpay oflis, 1090- 1950. The petitioner retired from service w.e.f 25.03.1995 on atta.ming the age of supemnnuation. The petitioner was communicated letter dated 29.11.1995 CAnnexure P./3) that the petitioner was not entitled to grant of pension as the petitioner has w ^gli^ i-sS^. saslBt' ^i;;^-' not completed the minimum required 10 years for entitlement of pension. 3. Shri H.B.Agrawal, leamed senior counsel appearing with Shri Pankaj Agrawal, would submit that tfae petitioner was engaged as daily wager w.e.f24.09.1974. Admittedly, thereafter, the sei'vices of tfae petitioner was regularised w.e.f. 24.12.1986, Leamed counsel farther relied on aa order dated 17.12.1984 passed by the Labour Court- wherein the Labour Court directed to reinst&te the anolicant with continuity of service on his former post. Thus, the petitioasr is entitled to pension on counting his sen'ice as daiiy wager for the purpose ofpension, 4. Per contra, Shri Koshy, leamed counssl appeariug for the respondents vrould submit that the respondent Board has adopted M.P./C.G. Civil Services (Pension) Rules; 1976 (hereiricifter referred to as fhe Rules, 1976 ). As per the ruie, the period spe.rtt by the petitioner as daily wager cannot be coiiated for his entitlement to pensionery benefits. The petrtioner was regularised as Work Cfaarged cleaner w.e.f 24.12.1986 and the petitioner retired on 25.03.1995. Thus the petitioner has not completed ths minimum 10 vear.s aualifs''ina service a.s entitlement to neiision. 5. I liave heard the learaed counsel appearing for the parties, pemsed tb.e pleadings and documents appended thereto. It is evident that the oetitioner was not bora in service till 24.12.1986 wbsn he w'as regularised. Eagagement of the petitioser on daily wages cannot be counted as service^ in the departmeDt. It is well settled principle of law that any appomtment dshors the constitirtional scheme of the employrneat and not in consonance v/ith the provisions of law on daily wages, contract or temporary, is not legal and the eraplovee doss not acquire any right to continue in service and other benefits Qfthe reguiar service. 6. With regard to the contention ofthe learned counsel appearing for the oetitioner that the Labour Court. vide order dated 17.12.198 7. 8. 9. 10. directed the reinstatement of the petitioner with continuity of service on the fonnerpost.It is Clear that the Labour Court has directed to reinstate the services ofthe petitioner on daily wages on his fonner post anti the said service cannot be counted as regular service. Syb Rule (2) ofRule 12:- Comn&ncement of qualijying service, read wifh SubRule(2)ofRu\e43:-AmountofPenswn, oftheM.P. Civil Services (Pension) Rules, 1976, reads ss under: "Pulel2(1) xxx • xxx xxx xxx (2) Subject to the provisions of these rules, qualilying service ofa Govemment servant shall commence fi-om the date he takes charge of the post to which he is first] appointed either substantively or in an officiating or temporary capacity. Rule43(l) xxx xxx xxx xxx (2) In tfae case of a Govemment servant retirinj in accordance witii the provisions ofthese rules after Completing qualifying service of not less than 10 years, the amount of pension sfaall be apprepriate amount as set out below, namely:- On perusal of the relevant provisions of Pension Rules,1976, the qualifying service for grant of pension and otherretiral benefrts is 10 years. Admittedly, the petitioner was regularised on his service w.e.f 24.12.1986 and tiie petitioner retired on 25.3,1995. The petitioner is thus not entitled to pension under the provisions of Pension Rules, 1976. The petitioner has approached 1fais\Court not immediately after retirement fimn seryicei.e. 25.03.1995. Thepetitioiler Nsslept over his right and approached this Court after a period ofabout 10 years with unexplained, inordinate delay. The Supreme Coiirt, in Bu.m Standard Co. -Ltd. & Others ^. Dinabandhu Majumdar & ffnioCfee»/observedasunder: "The veryconductofnoD-raismgofanobj€!<stion in the matter by die emptoyee, in our mew, should be sufficient reason far the High Gburt, :\'f. i:^^^ •SKi?Si%??¥3i:?'^.^^^&^iBi^^^^^ sswssmsSsiS&s^ wss •^.M.^.S^^Si (.II IBBBglSefeBdaBfi8 i?-!<. not to entertain such applications on grounds of acquiescence, uhdue deiay and laches." 11. The Supreme Court, in Kamataka Power Corpofafion I^d. fhrough to Chalrman & Managing Dlrector & another Vs. Kntangappan & anothei^ observsd as under: "Delay or laches is one of the factors which is to be bome in mind by the High Court when they exereise their discretionary powers under Article 226ofthe Constitution. In an appropriate case the High Court may refiise to invoke its extraordiiiary powers iftKcre is such negligence or omission on the part ofthe applicantto assert his rightas taken in conjunction witfa the lapse of time and other circumstances, cause prejudice to the opposite party. Even where fiindamental right is involved the matter is still within the discretion ofthe Court as pointed out in the Durg Prasad V.Chief Controller oflmports and exports. Ofcourse, the discretion has to be exercised judicially and reasonably." 12. The High Court, in exercise ofits discretion, does not ordinarily assist fhe tardy and 1he indolent and the acquiescent and the lethargic as the belated apprQach may certairily breach tiie rights of others. 13. Lookiag from all angles, this petition has no ment and is accordinglv dismissed, Sd/- Satish K. Agnihotn Judge 1. (1995) 4 SCC 172 2. (2005)4 SCC 322 Aimt l';^irf?l??;':;-^ .-4®-<i.o>«^W*rw"'*"^