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Judgment
The petitioner has filed this petition under Article 226 of the Constitution of India making a prayer to issue direction to respondent-authorities to treat the services of petitioner as pensionable under Old Pension Scheme instead of New Pension Scheme.
Learned Senior Counsel appearing for petitioners submitted that case of petitioners is squarely covered by order dated 23.4.2007 passed in W.P.No. 2086/2006(s)-Vijayram Mishra Vs. State of M.P. and others. Operative part of the order dated 23.4.2007 is quoted as under:-
"I have heard learned counsel appearing for parties and perused the record. On perusal of the record it. is apparent that the question involved by this Court in the present case has already decided by this Court in the case of Smt. Sugra as well as the judgment of the Supreme Court in the case of Ramkumar Agrawal (supra). I have also taken note bf the Pension Rules applicable to the work charged and contingency paid employees; whereby it is apparent that the period of service rendered by the daily wager receiving salary from the contingency fund is required to be counted for the purpose of pension.
In view of the foregoing discussion, this petition is allowed. Respondents are directed to re-consider the case of petitioner for grant of the pension and to finalize the same within a period of four months from the date of communication of this order. It is further directed that arrears of the pension be released to the petitioner within one month thereafter along with the interest as permissible under the law preferably @ 9% per annum."
Learned senior counsel submitted that in that case, Court considered M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979 and held that services rendered by daily wager receiving salary from contingency fund is required to be counted for purposes of pension. Since services rendered by petitioners as daily wager are to be counted as qualifying service for purposes of pension, therefore, it cannot be said that petitioners were borne on the rolls of establishment only when he was regularized in service. Services rendered by petitioners prior to regularization are also to be taken into account and petitioners are to be treated in service before coming into operation of New Pension Scheme i.e. from 01.01.2005. It is therefore, prayed that the petition filed by petitioners may be allowed and petitioners be given benefit of Old Pension Scheme.
Learned Government Advocate appearing for respondents/State submitted that as per order dated 19.04.2005, employees appointed after 01.01.2005 are entitled for contributory pension scheme. Petitioners were regularized on 22.09.2009 on post of Sub Engineers. Services rendered by petitioners as daily wagers were not on any post under regular establishment. They were born in service when they were regularized. Therefore, petitioners are only entitled to get pension in accordance with New Pension Scheme and no benefit of Old Pension Scheme can be extended to petitioners. In view of same, prayer is made for dismissal of writ petition.
Heard learned counsel for the parties.
Relevant rules of The M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979 are quoted hereinunder :
4. Regulation of amount of pension.
- Notwithstanding anything contained in Rules 5 and 6, the payment of pension and gratuity of permanent employee shall be regulated as under, namely :-
(1)The Madhya Pradesh New Pension Rules, 1951, except Rule 5 thereof, shall apply to all permanent employees who have retired on or after the 1st January, 1974 but before the 1st June, 1976.
(2)The Madhya Pradesh Civil Services (Pension) Rules, 1976 except Rules 47 and 48 thereof, as amended from time to time, shall apply to all permanent employees who have retired on or after the 1st June, 1976.
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 onwards shall be counted for pension as if such service was render in a regular post.
Relevant Rule of MP Civil Services (Pension) Rules, 1976 is quoted as under :
12. Commencement of qualifying service.
(1)Except for compensation gratuity, a Government servant's service does not qualify till he has completed 18 years of age, provided that nothing contained in this clause shall apply in the case of persons who were in service on the date of commencement of these rules and in whose case a lower age limit has been prescribed.
(2)Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity.
Rule 4(2) of M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979 is applicable in case of petitioners, as st petitioners are to retire after 1 June 1976. Madhya Pradesh Civil Services (Pension) Rules, 1976 are applicable to petitioners. Rule 6 of the Rules, 1979 lays down that if a permanent employee is absorbed without interruption against any regular pensionable post, the service st rendered with effect from 1 January, 1959 onwards shall be counted for purposes of pension as if such service was rendered in a regular post. Petitioners were a daily wagers and they were was absorbed in service without any interruption. Therefore, because of fiction created by Rule 6(2) of Rules, 1979, services rendered by petitioners is to be counted. New pension scheme is applicable to those employees who were appointed after 01.01.2005. Petitioners were regularized after 01.01.2005 but have not been appointed in service on said date. Regularization cannot be treated to be a fresh appointment. Services rendered by petitioners prior to 01.01.2005 are to be treated as a qualifying service. Resultantly, petitioners are entitled to get the benefit of Old Pension Scheme as petitioners are appointed before 01.01.2005.
In view of same, writ petition filed by petitioners is allowed. The respondents-authorities are directed to treat the services rendered by the petitioners prior to their regularization as "qualifying service" for the purposes of pension under the Old Pension Scheme and extend all consequential pensionary benefits accruing therefrom to the petitioners in accordance with law.
With aforesaid, writ petition is allowed and disposed of.
Certified copy as per rules.