Madhya Pradesh High Court

The State Of Madhya Pradesh vs Sant Kumar Mishra on 25 November, 2019

Author:
Sanjay Yadav

Bench:
Sanjay Yadav
,
B.K. Shrivastava
Writ Appeal No.1184/2017

THE HIGH COURT OF MADHYA PRADESH
(Division Bench)

WA-1184-2017

State of Madhya Pradesh and others
versus
Sant Kumar Mishra and another
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Shri Akhil Singh, learned Govt. Advocate for appellants/State.
Ms. Malti Dadariya, learned counsel for respondents.

CORAM :
Hon'ble Mr. Justice Sanjay Yadav, Judge
Hon'ble Mr. Justice B.K. Shrivastava, Judge

ORDER

(Jabalpur, dated : 25.11.2019)

Per : Sanjay Yadav, J :-

This appeal under Section 2(1) of the Madhya Pradesh Uchcha

Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is

directed against the order dated 11.04.2017 passed in Writ Petition

No.21362/2015.

2. The issue raised in the petition, at the instance of the petitioner

No.1, was as to counting of the service rendered on daily wages in

the Work Charged Contingency Paid Establishment for pension on

retirement after regularization in the Work Charged and

Contingency Paid Establishment. Whereas the issue raised by the

petitioner No.2 was grant of family pension.
Writ Appeal No.1184/2017

3. Evidently, the Rules which governs the pension are Madhya

Pradesh (Work Charged and Contingency Paid Employees) Pension

Rules, 1979. Petitioner No.1 was initially appointed as Chowkidar

on 14.02.1979 on Work Charged and Contingency Paid

Establishment. He was regularized on 01.05.2013. And, retired on

attaining the age of 62 years with effect from 31.08.2015. As to

petitioner No.2 her husband was appointed as Chowkidar in

Contingency establishment on 01.05.1984 and was regularized with

effect from 01.05.2013. He died on 10.10.2013. The petitioner were

denied pension/family pension on the ground that they did not have

minimum qualifying service under Rule 6 of 1979 Rules.

4. Learned Single Judge relying upon the decision in Writ

Petition No.2698/2003 (
Lallan Bai vs. State of Madhya Pradesh

and others
) decided on 17.11.2004 held thus :

8. Thus, the services rendered by the petitioner No.1
and husband of the petitioner No.2 for a period of 2
years and 5 months respectively after their regularization
are inconsequential what is relevant is that the tenure of
their service prior to their regularization which is 34
years and 29 years respectively for both the petitioners.

9.
In the result, this petition also deserves to be and is
hereby allowed on the same terms as in the case of

Lallan Bai
(supra). It is further directed that the
respondents shall determine the pension in accordance
with law in terms of the above direction within 3 months
from today and make the payment of the same along
with interest of 6% per annum from the date the pension
Writ Appeal No.1184/2017

has been wrongfully deprived to the petitioners. No
order as to costs.

5.
In
Lallan Bai
(supra), it is held :

"10. M.P. Work charged and Contingency Paid Employees
Pension Rules, 1979 defines the contingency paid employees to
mean an employee who is paid on monthly basis. Work charge
employees means a person employed upon the actual
execution, as distinct from general supervision of a specified
work or upon subordinate supervision of the departmental
labour excluding the daily paid labour and muster-role
employee employed on the work. It is not in dispute in the
instant cases that Bal Kishan Patel was regularized and brought
under the purview of the Rules of 1979 w.e.f. 13.2.1997 and
deceased Jagmohan Singh Gond was brought under the
purview of the above rules w.e.f 13.6.1992. Rule 2(c) defines
the permanent employees thus:-

"Permanent employee" means a contingency
paid employee or a work-charged employee who
has completed fifteen years of service or more on
or after the 1st January, 1974:

Provided that in respect of a contingency
paid employee who has attained the age of
superannuation or on after 1-4-1981 Permanent
employee means an employee who has completed
ten years of service on or after the 1st January,
1974.

11. Rule 4(A) which has been amended w.e.f. 29.11.1996
with retrospective effect provides that in case any permanent
employee has died while in service or after retirement on
pension on or after 1-4-1981 shall be entitled to family pension
under Rule 47 of M.P. Civil Services Pension Rules, 1976,
Earlier the embargo which was created as per original rule 4-A
which was incorporated on 30.1.1996. The Rule has been given
retrospective effect w.e.f. 24.1.1984 Rule 4-A of M.P. Work
charged and Contingency Paid Employees rules, 1979 was
incorporated on 30.1.1996.

4-A. Notwithstanding anything contained in rule,
the family of a permanent employee who dies
Writ Appeal No.1184/2017

while in service or after retirement of pension on
or after 1-4-1981 shall be entitled to family
pension at the rate of 30% of death/retirement
subject to a minimum of Rs. 40 per month and
maximum of Rs. 100 Per month subject to other
conditions of Rule 47 of the M.P. civil Services
(Pension) Rules, 1976 except sub-rule (3) of the
said rule.

Later, Rule 4-A was amended with effect from
29.11.1996. Rule 4-A as amended on 29.11.1996 is quoted
below:-

"fu;e 4 ¼d½& fu;e 4 fdlh ,sls LFkk;h deZpkjh
ftldh lsok esa jgrs ;k lsok fuo``fRr gksus ds i'pkr~~ 1
vçSy 1981 dks ;k mlds i'pkr~~ e``R;q gks tkrh gS] dk
ifjokj] e/; çns'k flfoy lsok ¼isa'ku½ fu;e 1976 ds
fu;e 47 dh fofgr njksa ij rFkk vU; 'krksZ ds
v/;k/kkhu jgrs gq, isa'ku ikus dk gdnkj gksxkA" "

12. Rule (6) of the Pension Rules, 1979 relating to the work-
charged and contingency paid employees provides for
commencement of qualifying service. It is clearly provided
under Rule 6(3) that on absorption of temporary employee
without interruption against any regular pensionable post, the
service rendered with effect from 1st January, 1974 onwards, if
such service is of not less than six years shall be counted for
pension as if such service was rendered in a regular post. Rules
6 is quoted below:-

6. Commencement of qualifying service.-(1)
Subject to the provisions of chapter III of the
Madhya Pradesh Civil Services (Pension) Rules,
1976 of section IV of Madhya Pradesh New
Pension Rules, 1951, as the case may be for
calculating qualifying service of a permanent
employee who retired as such, the service
rendered with effect from the 1st january, 1959 on
wards shall be counted.
Writ Appeal No.1184/2017

(2). On absorption of a permanent employee
without interruption against any regular
pensionable post, the service rendered with effect
from 1st January, 1959 on wards shall be counted
for Pension as if such service was rendered in a
regular post.

(3). On absorption of temporary employee
without interruption against any regular
pensionable post, the service rendered with effect
from 1st January, 1974 onwards, if such service is
of not less than six years shall be counted for
pension as if such service was rendered in a
regular post.

13. Rule 47 of the M.P Civil Services Pension Rules, 1976 is
quoted below:-

47- Contributory family pension. -

(1) to a Government servant entering service in
a pensionable establishment on or after 1st April,
1966, and

(b) to Government servant who was in service
on 31st march, 1966 and came to be governed by
the provisions of the Family Pension Scheme for
State Government Employees, 1966 contained in
Government of Madhya Pradesh Finance
Department Memo No. 1963/C.R. 903-IVR.II
dated 17th August, 1966 as in force immediately
before the commencement of these rules.

(2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(3)(a) Where a Government servant, who is not
governed by the Woekman's Compensation Act,
1923 (No. 8 of 1923), dies while in service after
having rendered not less than weven years
continuous service, the rate of family pension
payable to the family shall be equal to 50 per cent
of the pay last drawn or twice the family pension
Writ Appeal No.1184/2017

admissible under sub-rule (2), whichever is less,
and the amount so admissible shall be payable
from the date following the date of death of the
Government servant:-

(I) for a period of seven years; or

(ii) up to the date on which the deceased
Government servant would have attained the age
of 67 years had he survived, whichever period is
less.

(b) Where a Government servant who is not
governed by the Workmen's compensation Act,
1923 (No. 8 of 1923) dies after retirement after
having rendered not less than seven years
continuous service., the rate of family pension
payable to the family shall be equal to 50 per cent
of the pay last drawn by the pensioner before
retirement or twice the family pension admissible
under sub-rule (2), whichever is less, and the
amount so admissible shall be payable from the
date following the date of death of the pensioner:-

(i) for a period of seven years; or

(ii) till the date on which the pensioner would

have reached the age of 67 years had he remained
alive, whichever period is shorter:

Provided that the amount of family pension shall
not exceed the pension sanctioned to the
Government servant at the time of retirement. In
cases where the amount of family pension as
admissible under clause (b) (i) of sub-rule (2) of
this rule exceeds the pension sanctioned at the
time of retirement, the amount of family pension
sanctioned under this sub-rule shall not be less
than that amount. The term 'pension sanctioned at
the time of retirement' shall mean 'the pension
inclusive of the part of the pension which the
Writ Appeal No.1184/2017

retired Government servant may have commuted
before death.'

(c)(i) Where a Government servant who is
governed by the workmen's
Compensation Act,
(No. 8 of 1923) dies while in service after
having rendered not less than seven years
continuous service, the rate of family pension
payable to the family shall be equal to 50 per cent
of the pay last drawn or one and a half times the
family pension admissible under sub-rule (2)
whichever is less.

(ii) where a Government servant who is
governed by the
Workmen's Compensation Act,
(No. 8 of 1923) dies after retirement after
having rendered not less than seven years
continuous service, the rate of family pension
payable to the family shall be equal to 50 per cent
of pay last drawn by the Government servant or
one and half times the family pension admissible
under sub-rule (2), whichever is less.

(iii) The family pension so determined under
sub-clause(i) or (ii) shall be payable for the period
mentioned in clause (a) or clause (b) as the case
may be :

Provided that where a compensation is not
payable under the aforesaid Act, the Head of
office shall issue a certificate ot the Audit Officer
to the effect that family of the deceased
Government servant. Is not eligible for any
compensation under the aforesaid Act and the
family shall be paid family pension on the scale
and for the period mentioned in clause (a).

(d) After the expiry of the period referred to in
clause (a) or (b), the family, in receipt of family
pension under those clauses or clause (c)c, shall
Writ Appeal No.1184/2017

be entitled to family pension at the rate
admissible under su-rule(2).

14. It is apparent that for the purpose of family pension Rule
4-6 of the Pension Rules of 1979 read with Rule 47 of the
Rules of 1976 makes it clear that if an incumbent has rendered
not less than 7 years continuous services, family of incumbent
is entitled for the family pension. It is not in dispute that
deceased Jabmohan Singh Gond had rendered the continuous
service for more than 7 years. Rule 6(3) of the Pension Rules of
1979 clearly provides that without interruption for not less than
6 years such services shall be counted for pension as if such
services has rendered on regular post, qualifying service has to
be given effect to while considering the length of the service, as
specified in Rule 2(c) of the Rules of 1979 otherwise the
purpose of fiction created of Rule 6(3) stands defeated. Thus
the submission raised by the respondents that as per Rule 6(3),
services cannot to be computed towards qualifying service,
cannot be accepted. The services which has been rendered, as
qualifying service, under Rule 6(3) of the Pension Rules of
1979 has to be counted, as rendered on a regular post.
Thereafter entitlement has to be determined by the respondents
in accordance with law."

6. In view whereof, the findings arrived at by learned Single

Judge cannot be faulted with.

7. As regard to pension for the personnel who are initially

engaged on daily wagers in Work-Charged and Contingency Paid

Establishment and later regularised, the services rendered prior to

regularisation is counted for the purpose of pension. For an

authority, please see decision rendered by a co-ordinate Bench of
Writ Appeal No.1184/2017

Indore in the case of
State of M.P. vs Ramchandra Singh
: Writ

Appeal No.179/2010 decided on 05.08.2013, wherein it is held :

"7. Considering the entire controversy, we find that
the stand of the appellants/State is severely lopsided
and misguided. Considering the case of the petitioner
that he was a Gangman and for his services rendered
pension to be paid, would be regulated by the M.P.
Pension Rules of 1979. The appellants/State have not
denied the fact that the petitioner was working as a
daily wager in the respondent/Public Works
Department from 1/6/1957 to 31/12/1995 and after
more than 25 years of service he was regularized on
the post w.e.f. 1/1/1996. Then undoubtedly the case of
the respondent/petitioner would fall under Rule 6(3) of
the M.P. (Workcharged and Contingency Paid
Employees) Pension Rules 1979.

8. Dealing with the matter in detail we find that the
petitioner was a Gangman working on a daily wage
basis and not working against any permanent post as
alleged and the dispute that he cannot be extended the
benefit of the M.P. Pension Rules 1979 is however,
finally set at rest in the matter of Vishnu Mutiya and
others vs. State of M.P. And others : 2006(1)MPLJ 23
whereby a Full Bench of this Court has held thus:

"While deciding the Gulabsingh's case the 1977
Rules and Pension Rules of 1979 were not
brought to the notice of the Court. Under Rule 6
of 1976 Rules the employees who were in service
for at least fifteen years on 1.1.1974 were eligible
for the status of permanent work charged or
contingency paid employees. This has been made
Writ Appeal No.1184/2017

more liberal by the 1979 Rules. Rule 2(c) of the
1979 Rules lays down that a contingency paid
employee or a workcharged employee becomes
permanent employee wherever he completes
fifteen years of his service though it may be after
1.1.1974."

And further
"in such circumstances we hold that the services
of gangmen are governed by the Rules applicable
to work charged and contingency paid employees
even though the gangman is not included in the
schedule of 1976 Rules and the age of
superannuation is 62 years as other Class IV
employees of the Statement Government because
they are in comparable category."

9. Thus, we find that the entire controversy hinges
on the period that the employee has served prior to
regularization as a work charged employee and
whether such services should be counted for pension
as already stated above. We find that the ratio laid
down in the case of Mamta Shukla (supra) would not
be applicable in the present case simply for the reason
that the case of the respondent/petitioner is fully
covered by the sub-rule (3) of Rule 6 as amended vide
notification dated 30th January, 1996 in the M.P.
(Workcharged and Contingency Paid Employees)
Pension Rules 1979 vide FD No.B25/ 17/95/PWC/IV
which provides for counting of six years service
rendered in the Work-Charged Establishment without
interruption prior to regularization in the regular
department.

10. We also find that the point of discrimination has
been raised by the learned Counsel for the
Writ Appeal No.1184/2017

respondent/petitioner stating that similar relief was
granted to other gangmen in Writ Appeal No.279/2009
(
State of M.P. Vs. Dhanna
), W.A. No.253/2011 (
State
of M.P. vs. Nanuram
) and W.A. No.400/2011 (
State of
M.P. vs. Ratanbai
). We find that the petitioner has
rendered blemishless service of almost 43 years in the
Public Works Department of the State and therefore, in
a welfare State where retiral benefit is the obligation
of the State, such bureaucracy and mulish behaviour is
not to be accepted. This Court had already imposed
cost of Rs.40,000/on the State.
Moreover the case of
the applicant does not come within the purview of
Mamta Shukla (supra) since his case is completely
covered by sub rule (3) of Rule 6 of the M.P.
(Workcharged and Contingency Paid Employees)
Pension Rules 1979 is already stated above.

11. In the present case although the respondent was
appointed as a gangman on muster role on 01/06/1957
he was regularized w.e.f. 01/01/1996 and he retired on
30/06/2000 and six years uninterrupted services prior
to the regularization shall be taken into consideration
by the appellant/department while calculating the
pension of the respondent/petitioner. We have no
hesitation in holding that the State is misguided in its
appeal and it deserves to be dismissed as such.

12. Consequently, it is hereby declared that the
services of the respondent/petitioner would be
governed by sub rule (3) of Rule 6 of the M.P.
(Workcharged and Contingency Paid Employees)
Pension Rules, 1979 and the case is squarely covered
Writ Appeal No.1184/2017

by several judgments of the earlier Division Bench
and no error has been committed by the learned Single
Judge in allowing the writ petition. If the
petitioner/respondent has not been paid the pension
and other consequential benefits the appellant/State
shall do so within two months from the date of this
order and it is directed in the interest of justice the
amount shall be paid with interest at the rate of 6% per
annum."

8. In view whereof, the petitioner No.1 was entitled for counting

of his past service under Rule 6(3) of 1979 Rules.

9. Now coming to family pension. The issue, in our opinion, has

been duly considered and decided in the case of
Smt. Sampat Bai

vs State of Madhya Pradesh
: Writ Petition No.17240/2012 on

05.02.2013, wherein it is held :

"Question is whether the respondents are justified
in rejecting the claim and whether the proposition of
law
laid down in
Mamta Shukla (supra) and the
provisions of M.P. (Work Charged and Contingency
Paid Employees) Pension Rules, 1979 and M. P. Civil
Services (Pension) Rules 1976, supports the rejection
order.

And whether rendering 10 years of service in a
work charged establishment will also be condition
precedent for granting of family pension, could be
ascertained after examining the relevant provision of
1979 Rules and that of 76 Rules.

Rule 4 A of the Rules of 1979 and Rule 6 thereof
respectively provide for:

"4 A. Notwithstanding anything contained in rule 4 the
family of a permanent employee, who dies while in
Writ Appeal No.1184/2017

service or after retirement on pension on or after the
1st April 1981 shall be entitled to family pension at the
rate of 30% of his/her pay drawn at the time of
death/retirement subject to minimum, of Rs.40/- per
month and maximum of Rs. 100/- per month subject to
other conditions of Rule 47 of Madhya Pradesh Civil
Services (Pension) Rules, 1976 except sub-rule (3) of
the said Rules.

6. Commencement of qualifying service - (1) subject
to the provisions of Chapter III of the Madhya Pradesh
Civil Services (Pension) Rules, 1976 or section IV of
the Madhya Pradesh New Pension Rules, 1951 as the
case may be, for calculating qualifying service of a
permanent employee who retires as such, the service
rendered with effect from the 1st January, 1959
onwards shall be counted.

(2) On absorption of a permanent employee without
interruption against any regular pensionable post, the
service rendered with effect from 1st January, 1959
onward shall be counted for pension as if such service
was rendered in a regular post.

(3) On absorption of temporary employee without
interruption against any regular pensionable post, the
service rendered with effect from 1st January, 1974
onwards, if such service is of less than six years shall
be counted for pension as if such service was rendered
in a regular post.

When the aforesaid two Rules are read together, it is
clear as crystal that the provisions which govern the
family pension has a different field of operation than
the provisions regarding pension to an employee who
retires from the work-charged establishment and are
governed by Rule 6 of Rules of 1979.

By virtue of Rule 4 A the provisions as contained
under Rule 47 of the M.P. Civil Services (Pension)
Rules, 1976 are attracted. The said Rule provides for

47. Contributory Family Pension - (1) The provisions
of this rule shall apply:- (a) to a Government servant
entering service in a pensionable establishment or on
after 1st April 1966, and (b) to a Government servant
who was in service on 31st March, 1966 and came to
be governed by the provisions of the Family Pension
Scheme for State Government Employees, 1966
contained in Government of Madhya Pradesh Finance
Writ Appeal No.1184/2017

Department memo No.1963/C.R903-IV-R. II dated
17th August, 1966 as in force immediately before the
commencement of these rules.

(2) Subject to the provision of sub-rule (5) and
without prejudice to the provisions contained in sub
rule (3), where a government servant dies-

(a) during the period of service he was found
medically fit at the time of appointment.

(b) after retirement from service and was on the date
of death in receipt of a pension or compassionate
allowance, referred to in Chapter V other than the
pension referred to in Rule 34, on the date of death,
the family of the deceased shall be entitled to a
contributory family pension (hereinafter in this rule
referred to as Family pension) the amount of which
shall be determined as follows:-

Pay of Government Servant Amount of monthly Family Pension

(i) Below Rs.400 30 per cent of pay subject to minimum
of Rs. 60 and a maximum of Rs. 100.

(ii) Rs.400 and above but not 15 per cent of pay subject to minimum
exceeding Rs. 1200 of Rs.100 and a maximum of Rs. 160.

(ii) Above Rs. 1200 12 per cent of pay subject to a minimum
of Rs. 160 and a maximum of Rs. 250.

A harmonious reading of Rule 4 A of Rules, 1979
and Rule 47(2) (a) of Rules, 1976 would fresco that if
a person employed in a regular work-charged
establishment dies while in service, his family cannot
be deprived of the pension which it would be entitled
for by virtue of Rule 4 A of Rules, 1979.

As to the law laid down by Full Bench in Mamta
Shukla (supra) the issue before the Full Bench was-

"(i) Whether the decision of the Division Bench in
W.A. No. 725/2007,
Smt. Rahisha Begum vs. State of
M.P. and others
is not a good law in view of the
decision of the earlier Division Bench of this Court
vide order dated 18-7-2005, passed in W.P. No.
1273/2000,
State of M.P. And others vs. Ram Singh
and another
?

(ii) Whether an employee is eligible for the benefit of
family pension in accordance with the provisions of
Writ Appeal No.1184/2017

Madhya Pradesh (Work Charged and Contingency
Paid Employees) Pension Rules, 1979 after
completing qualifying service in accordance with the
provisions of Recruitment Rules framed by the
concerned Department for work charged and
contingency paid employees or in accordance with the
definition of Rule 2 of Madhya Pradesh (Work
Charged and Contingency Paid Employees) Pension
Rules, 1979 in regard to "contingency paid
employee", "work-charged employee" and permanent
employee" ?

(iii) Whether for counting qualifying service of an
employee for the purpose of grant of benefit of
pension it is necessary that the employee has to be
appointed in accordance with the provisions of
contingency paid employees recruitment rules framed
by the concerned department in regard to work
charged and contingency paid employees ?"

The reference was answered in the following
terms -

"24- On the basis of above discussion, we hold in
regard to the substantial questions of law Nos: 2 and 3
that an employee is eligible to count his past service as
qualifying service in accordance with Rule 6 of the
Pension Rules, 1979, if he was appointed in
accordance with the provisions of Recruitment Rules
of 1977. We further hold that an employee, who was
not appointed in accordance
with the provisions of Recruitment Rules framed by
the concerned department, i.e., the Recruitment Rules
of 1977, would not be eligible to count his past service
as qualifying service for the purpose of grant of
pension in accordance with the Pension Rules of 1979
and we answer the substantial questions of law Nos. 2
and 3 accordingly.

25.
In regard to substantial question of law No. 1
Earlier Division Bench of this Court in W.P. No.
1273/2000,
State of M.P. vs. Ramsingh and another
, as
held that a daily wager employee would not fall within
the definition of work charged and contingency paid
employee, hence his case would not be covered by
Madhya Pradesh Workcharged and Contingency Paid
Writ Appeal No.1184/2017

Employees Pension Rules, 1979, has not been noticed
by the subsequent Division Bench of this Court in

Rahisha Begum vs. State of M.P. And
other, 2010(4)
MPLJ 332. However, in the subsequent case, the
Division Bench has held that if an employee comes
within the definition of work charged and contingency
paid employee as defined the Pension Rules of 1979,
then he is eligible to count his past service for the
purpose of qualifying service in accordance with the
Rules of 1979. In our opinion, there is no conflict
between the Division Bench judgments, because the
findings of the Division Benches are based on
different factual aspects. Accordingly, we answer the
substantial question of law No. 1 that there is no
conflict of opinion between the two Division Bench
judgments.

Hence, the decision of the Division Bench
in the case of
Rahisha Begum vs. State of M.P. and
others
, 2010(4) MPLJ 332, is not per incuriam. We
answer substantial question of law No. 1 accordingly."

Apparent, it is from the above pronouncement
that, the issue as to grant of family pension to a widow
of an employee of work charged who are apparently
covered by Rule 4A of Rules of 1979 was not the term
of reference and nor was the same dwelt upon by the
Full Bench.

In view of above, the respondents are not justified
in denying the family pension to the petitioner only on
the ground that the petitioner's husband did not
complete 10 years of service in Regular Work Charged
Establishment.

In view whereof, the impugned order dated
07.05.2012 is quashed. The respondents are directed to
grant family pension to the petitioner from the date of
entitlement. Petitioner shall also be entitled for the
interest @ 7.5% on the difference till its final
payment."

10. In view of the above discussion, since we perceive no

illegality in the impugned order, we decline to cause an indulgence.
Writ Appeal No.1184/2017

11. The appeal filed by State of M.P. and its functionaries is

dismissed.

(SANJAY YADAV) (B. K. SHRIVASTAVA)
JUDGE JUDGE

Loretta/vinod

Digitally signed by LORETTA RAJ

Date: 2019.12.29 23:22:37 -08'00'