Madhya Pradesh High Court
Dulichand Baghel vs Secretary The State Of Madhya Pradesh on 3 March, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:10344
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 3 rd OF MARCH, 2025
WRIT PETITION No. 13857 of 2010
DULICHAND BAGHEL
Versus
SECRETARY THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ashok Kumar Gupta - Advocate for petitioner.
Shri Mohan Sausarkar - Govt. Advocate for respondents/State.
ORDER
It is relevant to note that this petition was finally disposed of by a
detailed order dated 25.11.2021 passed by a coordinate Bench of this Court,
quashing the impugned order dated 15.07.2010 wherein the petitioner was
held to be ineligible for pension in terms of Rule 43(1) of the Pension Rules.
However, State has filed a review petition being RP No. 1299 of 2022 which
was allowed on the ground that the Rules of 1979 i.e. M.P. (Work Charged
and Contingency Paid Employees) Pension Rules, 1979 are not applicable in
the present case rather the petitioner herein is governed by the Pension Rules
of 1976 i.e. the M.P. Civil Services (Pension) Rules, 1976. Therefore, the
petition has been restored to its original number.
2. Assailing the order dated 15.07.2010 passed by respondent No.3-
Collector Dewas (M.P.) whereby the petitioner was denied pension in terms
of Rule 43(1) of the M.P. Civil Services (Pension) Rules, 1976, this petition
has been filed.
Signature Not Verified
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VISHWAKARMA
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3. It is the case of the petitioner that he was initially appointed on
05.01.1982 as a daily wager employee on the post of Peon in the office of
respondent No.4. His work was appreciated at all levels. Considering the
continuous working and performance of the petitioner, his services were
regularized vide order dated 08.11.1996 issued by the respondent No.2 on the
recommendation of the Scrutiny Committee. On attaining the age of
superannuation, the petitioner stood retired vide order dated 11.05.2004
w.e.f. 30.06.2004. He has brought to the notice of this Court a notification
issued by the Government of Madhya Pradesh, Finance Department, Bhopal
dated 30.01.1996 wherein sub-rule (3) in Rule 6 has been inserted
which provides for counting of the services rendered by an employee prior to
absorption in service for the purpose of pension. Vide letter dated
24.03.2001 issued by the respondent No.2, with respect to one Brajmohan
Shrivastava, taking note of the notification dated 30.01.1996, the benefits
have been extended to him. The petitioner is similarly situated to Brajmohan
Shrivastava. Thereafter, the petitioner preferred several representations to the
respondents-authorities but of no consequence.
4. It is pointed out that State Government has taken a decision and has
framed Rules known as M.P. Work Charged and Contingency Paid
Employees Pension Rules, 1974 for the purpose of benefiting Class IV
employees. The case of the petitioner ought to have been considered for
grant of pensionary benefits in terms of the aforesaid Rules of 1974. He
preferred a writ petition being WP No. 8433 of 2009 seeking direction with
respect to grant of pension in terms of the M.P. (Work Charged and
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Contingency Paid Employees) Pension Rules, 1979 and the writ petition was
finally disposed of vide order dated 22.01.2010 with a direction to the
respondents to decide the representation of the petitioner which was pending
since 05.06.2006. In pursuance to the same, the impugned order dated
15.07.2010 has been passed by the authorities, rejecting his claim for
pension. Hence, the petition.
5. It is argued that in terms of M.P. (Work Charged and Contingency
Paid Employees) Pension Rules, 1979, particularly sub-rule (3) of Rule 6
which provides 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 less than six
years shall be counted for pension as if such service was rendered in a
regular post”. It is argued that the petitioner has rendered 7 years of service
after his regularization in service, therefore, applying the aforesaid principle,
his services ought to have been considered by the authorities. That has not
been done in the present case. After restoration of this petition, additional
rejoinder has been filed bringing on record to substantiate that whether the
petitioner is being paid from work-charged and contingency paid
establishment or not, the order dated 05.08.2002 of Commissioner, Land
Records and Settlement, Madhya Pradesh and letter dated 09.04.2007 issued
by the Deputy Collector Seoni for determination of qualifying service for
employees receiving salary from contingency fund. Thereafter, Collector,
Dewas on 06.11.2008 wrote a letter to the Commissioner, Land Records and
Settlement, Madhya Pradesh with reference to notification dated 30.01.1996
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for determination of qualifying service on appointment of employees
receiving salary on work-charged and contingency basis but despite the
same, no action has been taken by the authorities.
6. On notice being issued, a detailed reply was filed by the respondents
denying all the petition’s averments contending therein that the petitioner was
appointed as a daily wager which is reflected from the appointment order.
There is nothing on record to show that the petitioner’s initial appointment
was under the work-charged and contingency paid establishment or he was
getting salary from the work-charged contingency fund. It is contended that
the petitioner was regularized in service vide order dated 08.11.1996. After
regularization in service, he stood retired on attaining the age of
superannuation vide order dated 11.05.2004 w.e.f. 30.06.2004. In terms of
Pension Rules of 1976, an employee is required to complete at least 10 years
of service in the regular establishment to be eligible for pension. The
petitioner has not completed 10 years of qualifying service.
7. Heard learned counsels for the parties and perused the record.
8. Rule 6 of the Pension Rules of 1979 is important and reads as under :
“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.”
9. From the aforesaid, it is apparently clear that the provisions of Rules of
1979 have been made effective w.e.f. 01.01.1959 and has been given a
retrospective effect for the purpose of counting previous services but there is
no provision to count the previous service rendered by employee as a daily
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wager.
10. A Full Bench of this Court in the case of Ashok Kumar Sharma vs
State of Madhya Pradesh : WP No. 29982 of 2023 decided on 19.12.2023
has held as under :
“1. This petition under Article 226 of the Constitution of India
has been filed seeking the following reliefs :-
i) Issue a writ of Mandamus commanding the respondents to
produce entire service records of the petitioner for ready
perusal of the Hon’ble High Court.
ii) Issue a writ of Mandamus commanding the respondents to
count the service period from 12.10.1984 to 07.02.1990 total 5
years 4 months for the purpose of pension of the petitioner and
revised the pension of the petitioner accordingly and also pay
the arrears, in the interest of justice.
iii) Issue a writ of mandamus commanding the respondents to
consider and decide the representation, annexure P/7 of the
petitioner in accordance with law in the interest of justice.
iv) Any other relief/order or directions as this Hon’ble Court
deems fit and proper looking to the facts and circumstances of
the case deemed fit and proper in the interest of justice may
please be awarded along with the cost of proceedings.
2. It is the case of the petitioner that earlier by order dated
12.10.1984 he was appointed as daily wager and subsequently
he was regularized in service by order dated 5.2.1990 but the
service rendered by him from 12.10.1984 to 5.2.1990 has not
been counted for pensionary purposes.
3. It is submitted by counsel for the petitioner that non-
counting of service rendered by him as a daily wager is in
violation of judgment passed by the Supreme court in the case
of Ram Kumar Agarwal Vs. State of M.P., reported in (1995)
Suppl. 3 SCC 67.
4. Per contra, the petition is vehemently opposed by counsel
for the State. It is submitted that the petitioner was appointed
as a daily wager which is evident from the order dated
5.2.1990, annexure P/2. As per rule 12, 13, 14, 15, 16 of the
M.P. Civil Services (Pension) Rules, 1976, the services
rendered by the petitioner as a daily wager are not to be
counted for the pensionary purpose.
5. Heard the learned counsel for the parties.
6. Rule 12 to 16 of the Pension Rules reads as under :-
“12. Commencement of qualifying service. – (1) Except for
compensation gratuity, a Government servant’s service doesSignature Not Verified
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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.
13. Conditions subject to which service qualifies. – (1) The
service of a Government servant shall not qualify unless his
duties and pay are regulated by the Government, or under
conditions determined by the Government.
(2) For the purposes of sub-rule (1), the expression “service”
means service against a post under the Government and paid
by the Government from the Consolidated Fund of the State
which has not been declared as non pensionable.
14. Counting of service on probation . – Service on probation
against a post shall qualify.
15. Counting of service as apprentice. – Service as an
apprentice shall not qualify, except in cases where it qualifies
under the pension rules
applicable at the time when the service was rendered.
16. Counting of service on contract. – (1) A person who is
initially engaged by the Government on a contract for a
specified period and is subsequently appointed to the same or
another post in regular capacity in a pensionable establishment
without interruption of duty, may opt either :
(a) to retain the Government contribution in the contributory
provident fund with interest including any other compensation
for that service; or (b) to agree to refund to the Government the
monetary benefits referred to in clause (a) or to forego the
same if they have not been paid to him and count in lieu
thereof the service for which the aforesaid monetary benefits
may have been payable.
(2) The option under sub-rule (1) shall be communicated to the
Head of Office under intimation to the Audit Officer within a
period of three months from the date of issue of the order of
transfer to pensionable service, or if the Government servant is
on leave on that day, within three months of his return from
leave whichever is later.
(3) If no communication is received by the Head of Office
within the period referred to in sub-rule (2) the Government
servant shall be deemed to have opted for the retention of the
monetary benefits payable or paid to him on account of
Service rendered on contract.
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7. It is not the case of the petitioner that as a daily wager they
were appointed substantially or in officiating or temporary
capacity. The Supreme Court in the case of Malook Singh and
others Vs. State of Punjab, decided on 28.9.2021 passed in
Civil Appeal No.6026-2028/2021 has held as under:-
“20. The law on the issue of whether the period of ad hoc
service can be counted for the purpose of determining seniority
has been settled by this Court in multiple cases. In Direct
Recruits (supra), a Constitution Bench of this Court has
observed:
“13. When the cases were taken up for hearing before us, it
was faintly suggested that the principle laid down in
Patwardhan case [(1977) 3 SCC 399: 1977 SCC (L&S) 391:
(1977) 3 SCR 775] was unsound and fit to be overruled, but no
attempt was made to substantiate the plea. We were taken
through the judgment by the learned counsel for the parties
more than once and we are in complete agreement with the
ratio decidendi, that the period of continuous officiation by a
government servant, after his appointment by following the
rules applicable for substantive appointments, has to be taken
into account for determining his seniority; and seniority cannot
be determined on the sole test of confirmation, for, as was
pointed out, confirmation is one of the inglorious uncertainties
of government service depending neither on efficiency of the
incumbent nor on the availability of substantive vacancies.
The principle for deciding inter se seniority has to conform to
the principles of equality spelt out by Articles 14 and 16. If an
appointment is made by way of stopgap arrangement, without
considering the claims of all the eligible available persons and
without following the rules of appointment, the experience on
such appointment cannot be equated with the experience of a
regular appointee, because of the qualitative difference in the
appointment. To equate the two would be to treat two unequals
as equal which would violate the equality clause. But if the
appointment is made after considering the claims of all eligible
candidates and the appointee continues in the post
uninterruptedly till the regularization of his service in
accordance with the rules made for regular substantive
appointments, there is no reason to exclude the officiating
service for purpose of seniority. Same will be the position if
the initial appointment itself is made in accordance with the
rules applicable to substantive appointments as in the present
case. To hold otherwise will be discriminatory and arbitrary. …
……
47. To sum up, we hold that
(A) Once an incumbent is appointed to a post according to a
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rule, his seniority has to counted from the date of appointment
and not according to date of his confirmation. The corollary to
the above rule is that where the initial appointment is only ad
hoc and not according to rules and made as a stop-gap
arrangement, the officiation in such post cannot be taken into
account considering the seniority”
(emphasis supplied)
The decision in Direct Recruits (supra) stands for the principle
that ad hoc service cannot be counted for determining the
seniority if the initial appointment has been made as a stop gap
arrangement and not according to rules. The reliance placed by
the Single Judge in the judgement dated 6 December 1991 on
Direct Recruits (supra) to hold that the ad hoc service should
be counted for conferring the benefit of seniority in the present
case is clearly misplaced. This principle laid down in Direct
Recruits (supra) was subsequently followed by this Court in
Keshav Chandra Joshi v. Union of India. Recently a two judge
Bench of this Court in Rashi Mani Mishra v. State of Uttar
Pradesh, of which one of us (Justice DY Chandrachud) was a
part, observed that the services rendered by ad hoc employees
prior to their regularization cannot be counted for the purpose
of seniority while interpreting the Uttar Pradesh
Regularization of Ad Hoc Appointment Rules. This Court
noted that under the applicable Rules, “substantive
appointment” does not include ad hoc appointment and thus
seniority which has to be counted from “substantive
appointment” would not include ad hoc service. This Court
also clarified that the judgement in Direct Recruits (supra)
cannot be relied upon to confer the benefit of seniority based
on ad hoc service since it clearly states that ad hoc
appointments made as stop gap arrangements do not render the
ad hoc service eligible for determining seniority. This Court
speaking through Justice MR Shah made the following
observations:
“36. The sum and substance of the above discussion would be
that on a fair reading of the 1979 Rules, extended from time to
time; initial appointment orders in the year 1985 and the
subsequent order of regularization in the year 1989 of the ad
hoc appointees and on a fair reading of the relevant Service
Rules, namely Service Rules, 1993 and the Seniority Rules,
1991, our conclusion would be that the services rendered by
the ad hoc appointees prior to their regularization as per the
1979 Rules shall not be counted for the purpose of seniority,
vis-à-vis, the direct recruits who were appointed prior to 1989
and they are not entitled to seniority from the date of theirSignature Not Verified
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initial appointment in the year 1985. The resultant effect
would be that the subsequent redetermination of the seniority
in the year 2016 cannot be sustained which was considering
the services rendered by ad hoc appointees prior to 1989, i.e.,
from the date of their initial appointment in 1985. This cannot
be sustained and the same deserves to be quashed and set aside
and the seniority list of 2001 counting the services rendered by
ad hoc appointees from the date of their regularization in the
year 1989 is to be restored.
37. Now so far as the reliance placed upon the decision of this
Court in the case of Direct Recruit Class II Engg. Officers’
Assn. (supra), relied upon by the learned Senior Advocate
appearing on behalf of the ad hoc appointees is concerned, it is
required to be noted that even in the said decision also, it is
observed and held that where initial appointment was made
only ad hoc as a stop gap arrangement and not according to the
rules, the officiation in such post cannot be taken into account
for considering the seniority. In the case before this Court, the
appointments were made to a post according to rule but as ad
hoc and subsequently they were confirmed and to that this
Court observed and held that where appointments made in
accordance with the rules, seniority is to be counted from the
date of such appointment and not from the date of
confirmation. In the present case, it is not the case of
confirmation of the service of ad hoc appointees in the year
1989. In the year 1989, their services are regularized after
following due procedure as required under the 1979 Rules and
after their names were recommended by the Selection
Committee constituted under the 1979 Rules. As observed
hereinabove, the appointments in the year 1989 after their
names were recommended by the Selection Committee
constituted as per the 1979 Rules can be said to be the
“substantive appointments”. Therefore, even on facts also, the
decision in the case of Direct Recruit Class II Engg. Officers’
Assn. (supra) shall not be applicable to the facts of the case on
hand. At the cost of repetition, it is observed that the decision
of this Court in the case of Direct Recruit Class II Engg.
Officers’ Assn. (supra) was considered by this Court in the
case of Santosh Kumar (supra) when this Court interpreted the
very 1979 Rules.
The notification dated 3 May 1977 stated that the ad hoc
appointments were made in administrative interest in
anticipation of regular appointments and on account of delay
that takes place in making regular appointment through the
concerned agencies.In this regard, the vacancies were notified
to the Employment Exchange or advertisements were issued,
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as the case may be, by appointing authorities. The
appointments were not made on the recommendation of the
Punjab Subordinate Service Selection Board. However,
subsequently a policy decision was made to regularize the ad
hoc appointees since their ouster after a considerable period of
service would have entailed hardship. Thus, the initial
appointment was supposed to be a stop gap arrangement,
besides being not in accordance with the rules, and the ad hoc
service cannot be counted for the purpose of seniority.”
8. As a daily wager the petitioner was not having any service
conditions. A Full Bench in the case of Ashok Tiwari Vs. M.P.
Text Book Corporations and Another, reported in 2010 (2)
MPLJ 662 has held that a daily rated employee is not
appointed to any post and before he is appointed, the pre-
conditions contemplated for appointment to the post are not
followed. His appointment is on a day-to-day basis as per need
of work and normally the conditions of service regarding
transfer, suspension, disciplinary action cannot be applied to
such an employee.
9. Since the petitioner was not appointed against any
substantive post and the counsel for the petitioner has also
failed to prima facie establish that under which provision of
M.P. Civil Services (Pension) Rules, 1976, the case of the
petitioner is covered, this Court is of the considered opinion
that the services rendered by the petitioner as a daily wager
cannot be counted for pensionary purposes.
10. Accordingly, the petition fails and is hereby dismissed.”
11. From the perusal of the aforesaid judgment passed in the case of
Ashok Kumar Sharma (supra), it is apparently clear that the petitioner is not
appointed on any substantive post nor he has rendered atleast 10 years of
service after his regularization in service. There is nothing on record to point
out that the petitioner was getting salary from the work-charged contingency
fund or was appointed as a daily rated employee under the work-charged
contingency establishment. Under these circumstances, no relief can be
extended to the petitioner. The issue involved in the judgment passed in the
case of Ashok Kumar Sharma (supra) is squarely covered in the present case.
Further, another Full Bench of this Court in the case of Mamta Shukla v.
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State of M.P., reported in ILR 2011 MP 1807 : (2011) 3 MP LJ 210, has
considered the fact that services rendered by a daily rated employee prior to
his regularization cannot be counted for pensionary benefits. It is held as
under :
“24. On the basis of above discussion, we hold in regard to the
substantial questions of law No. 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 No. 2 and 3
accordingly.”
12. When the aforesaid proposition of law is applied to the facts of the
present case, then it is apparently clear that the services rendered by the
petitioner prior to his regularization cannot be counted for the purpose of
qualifying service of pension in terms of the Pension Rules of 1976. Under
these circumstances, no relief can be extended to the petitioner.
13. The petition sans merit and is accordingly dismissed. No order as to
costs.
(VISHAL MISHRA)
JUDGE
VV
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