Jwala Prasad Batham vs State of M.P. and Others

A.K. Gohil, J.

Appellant has filed this appeal u/s 2 of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the order dated 25-7-2006 passed by the learned Single Judge of this Court in W.P. No. 1393/05 (S).

In nutshell, the case of the appellant before the Writ Court was that the appellant was working on the post of Wireman and by order dated 4-11-04 on attaining the age of 60 years, he was retired. It was his case that at the time of retirement he was working on the post of Wireman, which is a Class IV post under the M.P. Public Works Department Work Charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1976 (for brevity "Rules of 1976"). Prior to 4-11-04, there was no dispute but thereafter the Government has extended the age of retirement of Class IV employees from 60 years to 62 years. The appellant filed the petition challenging the aforesaid order of premature retirement. The learned Writ Court considering the provisions of M.P. Work Charged Contingency Paid Employees Revision of Pay Rules, 1984 (for brevity "Rules of 1984") found that the pay-scale of the post of Wireman was Rs. 400-525/- and such a pay-scale is classified under Class III post, therefore, it was held that he was holding the Class III post and not Class IV post, therefore, the appellant is not entitled to get the benefit of retirement on attaining the age of 62 years and thus, dismissed the petition. Aggrieved thereof, the appellant has filed this appeal.

It is submitted that the learned Writ Court has not properly considered the status of an employee under Service Rules and scope of pay-scale Rules of 1984. Even if the pay-scale is changed or enhanced, the status of employee from Class IV to Class III will not be changed simply on the basis of pay-scale or Revision of Pay-scale.

We have considered both the Rules of 1976 and 1984. In these Rules, the post of wireman has been categorised as Class IV. In the Rules of 1984, on which emphasis has been laid by the learned Single Judge, but under the Rules of 1976 there are two separate sets of the posts. Under Clause 3(A) category Assistant Mechanic and Wireman are Class IV employees and under Clause 4(A) Mechanic is Class III employee. From this categorisation, it is clear that the Assistant Manager/Wireman Grade I is within the category of Class IV and Mechanic is in the category of Class III employees. Therefore, prima facie, it appears that the Rules were not properly considered and on the anvil of normal interpretation of Rules, the post of Wireman will fall within the category of Class IV employee and thus, the appellant is entitled to get the benefit of extended period of age of retirement.

It was further submitted that on 4-11 -06, the appellant had attained the age 62 years and he remained out of employment for two years. In such a situation, it would not be appropriate for this Court to direct the respondents to pay the arrears of salary for the period, in which the appellant remained out of employment and had not worked but certainly we hold that the appellant will be entitled to all other pensionary benefit and pay fixation according to the aforesaid direction. The respondents are directed to re-fix the pension of the appellant on the notional basis, treating the appellant to have been on duty for these two years. It is made clear that the appellant shall not be entitled to salary for the extended period of two years, however, if any excess amount is paid to the appellant, the same shall be adjusted on the basis of notional pay fixation. With the aforesaid direction, the appeal is partly allowed.