Dharma Bai vs The State Of Madhya Pradesh & Ors.

The present petition under Article 226 of the Constitution of India has been filed seeking following reliefs :

It is contended by learned counsel for the petitioner that father of husband of the petitioner was working under the respondent in regular establishment. After death of father-in-law of the petitioner on 20.9.1998, petitioner's husband was appointed on compassionate ground and was appointed against the establishment of Work Charged Contingency paid (annexure P/2) whereas father-in-law of the petitioner was permanent regular employee. After rendering more than 9 years of service, petitioner's husband died on 17.10.2007 and thereafter case of the petitioner for grant of family pension has been forwarded to the respondent no.5 but nothing has been done. Thereafter, petitioner preferred representations (annexure P/3) and legal notice (annexure P/4). In reply to the same, the respondent no.4 vide letter dated 27.10.2009 (annexure P/5) and thereafter vide letter dated 9.8.2010 (annexure P/6) informed the petitioner that her husband has not been classified as permanent employee and also not completed 10 years of service, therefore, not entitled for grant of family pension as per rule 2 and 6 of the M.P. (Work Charge and Contingency paid employee) Pension rules, 1979. The petitioner challenged the said order by way of filing W.P.No.14239/2015 before this Court, which was disposed of vide order dated 23.2.2016 (annexure P/7) with direction to consider the claim of the petitioner for grant of family pension in the light of decision rendered in State of M.P. v. Mohammad Sadiq, 2010 SCC OnLine MP 310 . However, after filing contempt petitions, the respondents rejected the case of the petitioner for grant of pension by impugned order dated 31.12.2016 (annexure P/9).

It has been submitted by learned counsel for the petitioner that the petitioner that husband of the petitioner was appointed on compassionate ground and said appointment is permitted only against the vacant, sanctioned and regular post, therefore, right from the date of appointment dated 28-11-1998 (Annexure P/2) petitioner husband was regular employee of the State Government against the pay scale mentioned in the order itself. It is further submitted that from the appointment order it is evident that services of the petitioner's husband can be terminated under Rule 12 of M.P Government servants (Temporary and Quashi- Permanent Service) Rules, 1960 meaning thereby petitioner's husband services were governed by these Rules and as per Rule 3 of these Rules 1960 after completing three years of service petitioner's husband acquired the status of permanent employee. It is further submitted that from perusal of the entries in the service book (Annexure P/12) it is evident that petitioner's husband has been granted all the benefits at par with the State Government employee viz. annual increments, earned leave etc. and therefore on going through the nature of appointment Annexure P/2, Rule governing the appointment including record of service book, it is very much clear that petitioner's husband was appointed on compassionate ground against vacant and sanctioned post and accordingly petitioner being wife of the deceased husband is very much entitled for payment of family pension. It is further submitted that as per Rule 6(3) of the Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 (for short 'the Rules of 1979'), the petitioner was entitled for pension even without regularization because the petitioner has earned the status of permanent employee as per Rule 2(c) of the said Rules which provides that the employee of Work Charged Contingency Establishment on completion of 10 years of service attains the status of a permanent employee automatically and becomes entitled for pension. Thus, it is prayed that impugned order is de hors the Rules of 1979 and unconstitutional, deserves to be quashed by granting relief to the petitioner of family pension under the Rules of 1979.

Per contra, learned counsel for the respondents opposed the prayer and submitted that her claim for Family Pension was rejected vide order dated 9.8.2010 (Annexure P-6) on the ground that he has not completed 10 years of service as a workcharged employee on or after the 1s January, 1974 as per Proviso to Rule 2 (c) of the M.P.(Workcharged and Contingency Paid Employees) Pension Rules, 1979 and hence was not a ‘permanent employee’. He was also not absorbed against any regular pensionable post as per Rule 6 (3) of the said Rules. That, in compliance of order passed in W.P.No.14239/2015, the case of the petitioner was again considered and rejected by the impugned order dated 31.12.2016 (Annexure P-9) on the ground that in the case of Mohd. Sadik he had completed 10 years of service as a workcharged employee on or after the 1st January, 1974 as per Proviso to Rule 2 (c) and was subsequently regularized; however, in the case of the petitioner’s husband neither he has completed the aforesaid 10 years qualifying service nor otherwise he has becn absorbed/regularized against a regular pensionable post after completing 6 years of service (as the 10 years requirement has been modified to 6 years in the year 1996 vide Annexure R-1.

Heard learned counsel for the parties and perused the record.

Rule 2(c) of the Rules of 1979, reads as under :

Rule 2(c) of the Rules of 1979 confers permanent status on the employee of the contingency paid employee or work charged employee who has completed 15 years of service or more, on or after 01.01.1974 with the proviso that the employee who has attained the age of superannuation on or after 1981, permanent employee means who has completed 10 years of service on or after 01.01.1974.

Admittedly, the husband of the petitioner was appointed as class IV employee in the work charged and contingency establishment which is evident from the appointment order dated 28.11.1998 (annexure P/2) and died on 17.10.2007. It is further evident that husband of the petitioner was given compassionate appointment on the death of his father in the work charged and contingency establishment on a class IV post. It is trite that compassionate appointment is given only on a sanctioned and vacant post. Further, from perusal of entries made in the service book (annexure P/12), it is evident that petitioner's husband was appointed on a regular pay-scale and has been granted all the benefits at par with the State Government employee viz. annual increments, earned leave etc. Thus, it can safely be held that the petitioner's husband was appointed on the sanctioned and vacant post in work charged and contingency establishment.

Further Rule 6 of the Rules of 1979 reads as under:

According to Rule 6(2) on absorption of a permanent employee against a regular pensionable post, the services rendered with effect from 01.01.1959 onwards, shall be counted for pension as if the service was rendered in a regular post that itself shows that the petitioner who has been appointed in the 1998, though in a work charged and contingency establishment and paid monthly salary from the said establishment has qualified more than 6 years of service for the purpose of pension.

Further, co-ordinate Bench of this Court in the case of Bakhatlal vs. State of Madhya Pradesh & ors. (W.P.No.6355/2017 decided on 13.07.2017), has held :

The State Government vide notification dated 27.02.2023 has made amendment in the Rules of 1979 by appending Rule 6 (3) which has been made applicable retrospectively with effect from 30.01.1996, which also provides that if the temporary employee has continued in service for not less than 6 years without interruption, shall be counted for the purpose of pension as if such employee has been appointed on regular basis.

Respondent could not make out any case that petitioner’s husband initial appointment was de hors the Rules as the respondents in the order dated 28.11.1998 (Annexure P/2) themselves have written that the petitioner's husband was appointed on the post of Chowkidar in work charged and contingency establishment on compassionate ground, thus, respondent cannot take benefit of the judgment passed by the Full Bench of this Court in the case of Smt. Mamta Shukla vs State of M.P. & Others (2011) 3 MPLJ 210.

In view of the aforesaid analysis of factual matrix of the case, the petition is allowed. The impugned order dated 31.12.2016 (Annexure P/9), is hereby quashed.

Respondents are directed to treat the husband of the petitioner as permanent employee under Work Charged Establishment and grant the benefit of family pension as per the Rules of 1979. The respondents are also directed to pay the arrears of the family pension to the petitioner from the date of death of her husband, as pensionary benefits. Let entire exercise be completed within 06 months from the date of production of certified copy of this order. In case such exercise, including release of payment, is not completed within 06 months, the same shall carry interest @ 6% per annum.

With the aforesaid, the petition is allowed and disposed of.