Madhya Pradesh High Court
The State Of Madhya Pradesh vs Anil Kumar Tripathi on 6 May, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 31272 of 2024
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
SHIVNATH SINGH KUSHWAH AND OTHERS
WITH
WRIT PETITION No. 31281 of 2024
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
ANIL KUMAR TRIPATHI AND OTHERS
Appearance:
Shri Ravindra Dixit - Government Advocate for the petitioners - State.
Shri Suryabhan Singh Solanki and Ms. Sakshi Basnet - Advocates for the
respondents in their respective cases.
ORDER
(Reserved on : 16.01.2025)
(Pronounced on : 06.05.2025)
The present petitions have been filed by the petitioner/State of Madhya
Pradesh and its functionaries being aggrieved by the Order dated 03.09.2024
passed by the Controlling authority under Payment of Gratuity Act, 1972 thereby
allowing the claim of the respondent No.1 to get Gratuity on account of services
rendered as Shiksha Karmi Grade II and thereafter, as Adhyapak and then as
Madhyamik Shikshak. Since the issues arising in both the matters are similar, they
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were heard analogously and are being decided by this common order. For the sake
of convenience, facts are taken from W.P.No.31272/2024.
2. The Controlling Authority has held the Respondent No.1 entitled to get
Gratuity of Rs.6,92,289/- alongwith interest Rs. 3,12,478/- i.e, total Rs.10,04,767/-
with future interest till the date of payment. The said Order has been assailed by
the State of Madhya Pradesh and its functionaries stating that the State Govt. is not
liable to pay Gratuity to the respondent No.1.
3. Shri Ravindra Dixit, learned Government Advocate has vehemently
argued that the respondent No.1 cannot be said to be an employee in terms of
Section 2 (e) of Payment of Gratuity Act, 1972 nor the petitioners (State Govt.)
cannot be said to be employer in terms of Section 2(f) of the Payment of Gratuity
Act, 1972 (for short, hereinafter referred to as Act of 1972). It is further argued
that the payment of Gratuity Act does not apply to the employees employed by the
State Govt. or the Central Govt. or that the said Act would not apply to the
Petitioners and therefore, the Order passed by the Controlling Authority is totally
devoid of jurisdiction and therefore, the petitioners are not liable to be relegated to
avail the alternative remedy of appeal in terms of Section 7 (7) of the Act of 1972.
4. To elaborate the contentions, the learned Government Advocate has
argued that initially, teachers used to be appointed by the Department of School
Education in the State of Madhya Pradesh. However, from the year 1996-97, the
State Govt. set up a new procedure for appointment of teachers and in accordance
with such process, the Shiksha Karmis were appointed in Panchayats as well as in
Urban local bodies in the State of Madhya Pradesh. For Panchayats in rural areas,
the Rules were framed known as M.P. Panchayat Shiksha Karmi (Recruitment and
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Conditions of Service) Rules, 1997 and the Petitioner was appointed in accordance
with said Rules of 1997.
5. It is contended that thereafter, the mode of recruitment was further
modified and in place of Shiksha Karmi Grade I, Grade II and Grade III, the Rules
known as M.P. Panchayat Sanvida Shala Shikshak (Employment and Conditions of
Contract) Rules 2001 were framed which were then superseded by M.P. Panchayat
Sanvida Shala Shikshak (Employment and Conditions of Contract) Rules 2005 and
the teachers appointed from 2001 onwards were given the nomenclature of
Samvida Shala Shikshak Grade I, Grade II or Grade III in the rural areas as they
were appointed by Panchayats and in the urban areas they were appointed by the
urban local bodies. Thereafter, these teachers were absorbed in Adhyapak Cadre
which was separately framed for the teachers working in Panchayats and the
teachers working in urban local bodies and separate Rules were framed in the year
2008.
6. It is argued that in the year 2018, the State Govt. came out with the Rules
known as M.P. School Education Service (Teaching cadre) Conditions and
Recruitment Rules, 2018 (for short, hereinafter referred to as Rules 2018) and as
per Rule 18(2) of the said Rules, the teachers working in Panchayats and urban
local bodies were given an option to migrate to service of the State Govt. in
Department of School Education. The respondent No.1 opted to migrate to service
of the State Govt. and therefore, as per the specific language of Rule 18(2), the
respondent No.1 would not be entitled to count the past services for Gratuity or any
other benefit. Therefore, since the respondent No.1 has retired from the service of
State Govt. on 31.01.2020 before completing 5 years of service in accordance with
Rules of 2018 in the service of State Govt. Therefore, as per Rule 44 of M.P. Civil
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Services Rules, 1976, he has not completed minimum 5 years qualifying service
and therefore, the respondent no.1 cannot claim Gratuity from the State Govt. On
these grounds, it is contended that the Order passed by the Controlling authority is
totally devoid of jurisdiction and is perverse, so also contrary to the legal position
and the controlling authority has granted the relief to the respondent No.1 for
which no right of respondent No.1 exists.
7. Per contra, the learned counsel for the respondent No.1 has argued that the
respondent No.1 was appointed as Shiksha Karmi Grade II and thereafter, absorbed
as Adhyapak in the service of Jila Panchayat in accordance with the Adhyapak
Samvarg Rules, 2008. Therefore, the respondent No.1 was entitled to all the
terminal benefits as applicable in the matter as an employee of the State Govt. by
counting his past services from the date of initial appointment i.e, from the year
2008 because he stood absorbed by the State Govt. in the year 2018 in accordance
with the Rules of 2018.
8. It is contended that the Controlling authority has not erred in law in
passing the Order granting gratuity to the respondent No.1 because no exemption
has been sought by the State Govt. in terms of the Act of 1972. Further reliance has
been placed reliance on a judgment of Division Bench in W.A.2358/2024 (Indore)
which was in the case of similarly situated Shiksha Karmis who were appointed in
urban local bodies and then taken over in terms of Rules of 2018.
9. Heard learned counsel for the parties.
10. The contention of the petitioner-State that payment of Gratuity Act
would not apply to the State Govt. and that the employees working in the State
Govt. or the Central Govt. are automatically exempt from application of payment
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of Gratuity Act, 1972 is taken up first. The case was vehemently argued by relying
on the definition of Employee and Employer as appearing in Section 2(e) and (f) of
the Act of 1972. The aforesaid definitions are as under:-
“(e) “employee” means any person (other than an apprentice) who is employed
for wages, whether the terms of such employment are express or implied, in any
kind of work, manual or otherwise, in or in connection with the work of a factory,
mine, oilfield, plantation, port, railway company, shop or other establishment to
which this Act applies, but does not include any such person who holds a post
under the Central Government or a State Government and is governed by any
other Act or by any rules providing for payment of gratuity;
(f) “employer” means, in relation to any establishment, factory, mine, oilfield,
plantation, port, railway company or shop–
(i) belonging to, or under the control of, the Central Government or a State
Government, a person or authority appointed by the appropriate Government for
the supervision and control of employees, or where no person or authority has
been so appointed, the head of the Ministry or the Department concerned,
(ii) belonging to, or under the control of, any local authority, the person
appointed by such authority for the supervision and control of employees or
where no person has been so appointed, the chief executive officer of the local
authority,
(iii) in any other case, the person, who, or the authority which, has the ultimate
control over the affairs of the establishment, factory, mine, oilfield, plantation,
port, railway company or shop, and where the said affairs are entrusted to any
other person, whether called a manager, managing director or by any other
name, such person”
11. It is evident from the perusal of definition of employee that the term
employee does not include a person who holds a post under Central Govt. or State
Govt. and is governed by any other Act or any other Rules providing for payment
of Gratuity. Therefore, the persons holding a post under the State Govt. would be
exempt from the term employee only if they are governed by any other Act or
Rules providing for payment of Gratuity.
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12. The definition of employer as appearing in Section 2 (f) of Act of 1972
makes it clear that as per clause (i) thereof employer in relation to any
establishment belonging to or under the control of State Govt. would be the head of
Ministry or Department concerned. Therefore, the very definition of employer does
not exclude State Govt. or the Central Govt. The only exclusion is in the definition
of employee and that is where an employee of the State Govt. is governed by any
other Act or Rules providing for payment of Gratuity. Only in that contingency,
there can be exclusion of the said employee from the term “employee”.
13. Now, it is required to be seen whether the respondent No.1 is covered
under any other Rules providing for payment of Gratuity. It was vehemently
argued that the employees of the State Govt. are covered under Civil Services
(Pension) Rules 1976 and therefore, the respondent No.1 would be covered under
the Pension Rules of 1976 to claim Gratuity which is allowable in terms of Rule 44
of the said Rules. The qualifying service of five years as per Rule 44 (1) (b) was
vehemently relied by the learned State Counsel.
14. Upon perusal of the aforesaid Rules, it is seen that as per Rule 2(g) of
Pension Rules, 1976, Govt. servants appointed on or after 01.01.2005 to the
services and posts in connection with the affairs of the State either temporarily or
permanently are not covered in the said Rules. Section 2(g) is as under:-
“(g) “Pension Rules” means the Madhya Pradesh Civil Services
(Pension) Rules, 1976 and the Madhya Pradesh (Work-Charged and
Contingency Paid Employees) Pension Rules, 1979″
15. Therefore, the respondent No.1 having been appointed in the service of
State Govt. having been absorbed in service of State Govt. in accordance with
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Rules of 2018, in the year 2018does not seem to be covered under M.P. Civil
Services Pension Rules. Now, ancillary question would emerge that whether upon
absorption in the State Govt. services in the year 2018, the services for the purpose
of applicability of Pension Rules right from the year 2001 have to be calculated or
not.
16. Learned counsel for the State has made a very strange argument. On one
hand, it was said that the respondent No.1 cannot count the services prior to the
year 2018 i.e, date of absorption in State Govt. for the purpose of claiming pension
because he would be covered under the exclusion clause of Rule 2(g) but at the
same time, the Pension Rules of 1976, more particularly, Rule 44 (1) can be
pressed into service to deny payment of gratuity to the employee for the reason that
he has not worked for five years in the fold of State Govt. Therefore, the State
Govt. is blowing hot and cold at the same time and wants to deny the benefit of
gratuity by placing reliance on Rules which, if accepted, would create a right to an
employee to claim pension from the State Govt. However, the State Govt. has
raised an argument of hot and cold to deny the payment of gratuity as well as the
payment of pension to the respondent No.1. Therefore, this issue needs to be
settled and decided conclusively.
17. Therefore, despite availability of alternative remedy of appeal under
Section 7(7), this Court accepts the argument of State counsel regarding there
being existence of a legal issue and jurisdictional issue involved in the matter and
therefore, the petition has been heard on merits without relegating the petitioner to
the alternative remedy of appeal before the appellate authority under Section 7(7)
of Payment of Gratuity Act, 1972.
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18. So far as the issue of Act 1972 is concerned, in the case of Employees of
Erstwhile M.P. State Electricity Board, the State Government had granted
exemption to the successor companies of the said Board from the operation of Act
of 1972 and the exemption notifications were challenged before this Court in the
case of M.P. Vidyut Karmchari Pensioners Association Vs. The State of Madhya
Pradesh (W.P.No.14554/2015 decided on 26.11.2015)and the Division Bench of
this Court held that though the employees of Board are having a better package so
far as the Civil Services (Pension) Rules, which are adopted by MPSEB for its
employees as they relate to payment of pension as well as gratuity, yet gratuity in
terms of Act of 1972 is more beneficial as compared to gratuity payable under the
Pension Rules 1976 framed by the State Government and therefore, the exemption
notifications were read down in the matter that there would not affect the rights of
the employees to claim better gratuity under Act of 1972. The said judgment of this
Court was challenged before the Supreme Court in Civil Appeal No.10266-
10268/2018 (M.P. Power Management Company Vs. M.P. Vidyut Mandal
Pensioner‘s Association and others) and the Supreme Court held that under
Payment of Gratuity Act, pension and gratuity must be taken to be two different
concepts and law which do not at any point of time come together. Accordingly,
the judgment of this Court was upheld by holding as under:
“The second argument advanced by learned Advocate General is that
the pensionary benefits, in any case, would include gratuity and that
therefore on the facts of this case, what is to be paid under the
Madhya Pradesh Civil Services (Pension) Rules is more than what is
under the Payment of Gratuity Act.
We are clearly of the view that when the Payment of Gratuity Act
speaks of “gratuity” and “pension or gratuity” being more than that
which is awarded under the Act, pension and gratuity must be taken toSignature Not Verified
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9be two completely different concepts in law which do not at any point
of time come together.”
19. The Payment of Gratuity Act 1972 has merely codified the law relating
to Gratuity, and the concept is older than the Act of 1972, as acknowledged by the
Hon’ble Supreme Court in Bakshish Singh Vs. Darshan Engineering Works,
(1994) 1 SCC 9. In the said case, in the following terms, it has been held that the
benefits under the Act of 1972 are the bare minimum provisions of Gratuity that
are part of mandatory service conditions of the employees:-
16. The aforesaid survey of the relevant authorities shows that in
labour jurisprudence the concept of “gratuity” has undergone a
metamorphosis over the years. The dictionary meaning may suggest
that gratuity is a gratuitous payment, a gift or a boon made by the
employer to the employee as per his sweet will. It necessarily means
that it is in the discretion of the employer whether to make the
payment or not and also to choose the payee as well as the quantum of
payment. However, in the industrial adjudication it was considered as
a reward for a long and meritorious service and its payment,
therefore, depended upon the duration and the quality of the service
rendered by the employee. At a later stage, it came to be recognised
as a retiral benefit in consideration of the service rendered and the
employees could raise an industrial dispute for introducing it as a
condition of service. The industrial adjudicators recognised it as such
and granted it either in lieu of or in addition to other retiral benefit(s)
such as pension or provident fund depending mainly upon the
financial stability and capacity of the employer. The other factors
which were taken into consideration while introducing gratuity
scheme were the service conditions prevalent in the other units in the
industry and the region, the availability or otherwise of the other
retiral benefits, the standard of other service conditions etc. The
quantum of gratuity was also determined by the said factors. The
recognition of gratuity as a retiral benefit brought in its wake further
modifications of the concept. It could be paid even if the employeeSignature Not Verified
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10resigned or voluntarily retired from service. The minimum qualifying
service for entitlement to it, rate at which it was to be paid and the
maximum amount payable was determined likewise on the basis of the
said factors. It had also to be acknowledged that it could not be
denied to the employee on account of his misconduct. He could be
denied gratuity only to the extent of the financial loss caused by his
misconduct, and no more. Thus even before the present Act was
placed on the statute book, the courts had recognised gratuity as a
legitimate retiral benefit earned by the employee on account of the
service rendered by him. It became a service condition wherever it
was introduced whether in lieu of or in addition to the other retiral
benefit(s). The employees could also legitimately demand its
introduction as such retiral benefit by raising an industrial dispute in
that behalf, if necessary. The industrial adjudicators granted or
rejected the demand on the basis of the factors indicated above.
17. It is true that while doing so, the industrial adjudicators insisted
upon certain minimum years of qualifying service before an employee
could claim it whether on superannuation or resignation or voluntary
retirement. This was undoubtedly inconsistent with the concept of the
gratuity being an earning for the services rendered. What is, however,
necessary to remember in this connection is that there is no fixed
concept of gratuity or of the method of its payment. Like all other
service conditions, gratuity schemes may differ from establishment to
establishment depending upon the various factors mentioned above,
prominent among them being the financial capacity of the employer to
bear the burden. There has commonly been one distinction between a
retiral benefit like provident fund and gratuity, viz. the former
generally consists of the contribution from the employee as well. It is,
however, not a necessary ingredient and where the employee is
required to make his contribution, there is no uniformity in the
proportion of his share of contribution. Likewise, the gratuity schemes
may also provide differing qualifying service for entitlement to
gratuity. It is true that in the case of gratuity an additional factor
weighed with the industrial adjudicators and courts, viz. that being
entirely a payment made by the employer without there being aSignature Not Verified
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11corresponding contribution from the employee, the gratuity scheme
should not be so liberal as would induce the employees to change
employment after employment after putting in the minimum service
qualifying them to earn it. But as has been pointed out by this Court in
the Straw Board Mfg. Co. Ltd. case [(1977) 2 SCC 329 : 1977 SCC
(L&S) 243 : (1977) 3 SCR 91] in view of the constantly growing
unemployment, the surplus labour and meagre opportunities for
employment, the premise on which a longer qualifying period of
service was prescribed for entitlement to gratuity on voluntary
retirement or resignation, was unsupported by reality. In the face of
the dire prospects of unemployment, it was facile to assume that the
labour would change or keep changing employment to secure the
paltry benefit of gratuity.
27. It would thus be apparent both from its object as well as its
provisions that the Act was placed on the statute book as a welfare
measure to improve the service conditions of the employees. The
provisions of the statute were applied uniformly throughout the
country to all establishments covered by it. They applied to all
employees drawing a monthly salary upto a particular limit in
factories, shops and establishments etc. whether the employees were
engaged to do any skilled, semi-skilled, unskilled, manual,
supervisory, technical or clerical work. The provisions of the Act were
thus meant for laying down gratuity as one of the minimal service
conditions available to all employees covered by the Act. There is no
provision in the Act for exempting any factory, shop etc. from the
purview of the Act covered by it except those where, as pointed out
above, the employees are in receipt of gratuity or pensionary benefits
which are no less favourable than the benefit conferred under the Act.
The payment of gratuity under the Act is thus obligatory being one of
the minimum conditions of service. The non-compliance of the
provisions of the Act is made an offence punishable with
imprisonment or fine. It is settled law that the establishments which
have no capacity to give to their workmen the minimum conditions of
service prescribed by the Statute have no right to exist [vide Bijay
Cotton Mills Ltd. v. State of Ajmer [(1955) 1 SCR 752 : AIR 1955 SC
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33 : (1955) 1 LLJ 129] , Crown Aluminium Works v. Workmen [1958
SCR 651 : AIR 1958 SC 30 : (1958) 1 LLJ 1] and U. Unichoyi v. State
of Kerala [(1962) 1 SCR 946 : AIR 1962 SC 12 : (1961) 1 LLJ 631] ].
32. On both grounds, therefore, viz. that the provisions for payment of
gratuity contained in Section 4(1)(b) of the Act are one of the minimal
service conditions which must be made available to the employees
notwithstanding the financial capacity of the employer to bear its
burden and that the said provisions are a reasonable restriction on
the right of the employer to carry on his business within the meaning
of Article 19(6) of the Constitution, the said provisions are both
sustainable and valid. Hence the decision of the High Court has to be
set aside.
20. Now coming to the liability of the petitioners to pay gratuity to the
respondent No.1 and the applicability of exclusion clause in terms of Rule 44(1) of
Pension Rules, 1976. Reliance was placed on judgment of Division Bench of this
Court in WA No.2358/2024. The Division Bench of this Court has categorically
held in the aforesaid case that all teachers have become State Government
employees and their services are liable to be counted from the date of their initial
appointment, hence they are entitled for pensionary benefits also as claimed in the
writ petition because now the teachers are under absolute control of School
Education Department at par with Government teachers. The said judgment was
sought to be distinguished on the ground that this judgment relates to Shiksha
Karmis initially appointed in urban local bodies whereas the present respondent
No.1 was initially appointed as Shiksha Karmi in Panchayats and therefore, there is
some difference. Reliance was also placed on judgment of the Supreme Court in
the case of Dr. K.M. Sharma and others Vs. State of Chhattisgarh and others
reported in (2022) 11 SCC 436.
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21. So far as the reliance on the judgment of Dr. K.M. Sharma (supra) is
concerned, the said judgment has already been considered by the Division Bench
in WA No.2358/2024 and furthermore, the said judgment only takes into account
the Shiksha Karmis Rules of 1998 relating to Shiksha Karmis appointed in urban
local bodies and have not taken into account the subsequent Rules under which
such Shiksha Karmis were initially appointed in Adhyapak Cadre in the year 2008
and thereafter, absorbed in the School Education Department itself in the year
2018. Therefore, for these issues the said judgment cannot be pressed into service
because these issues did not arise for decision before the Supreme Court and it was
a case where the Shiksha Karmis sought equal pay scales as applicable to teachers
appointed in Municipal services in the State of Chhattisgarh.
22. So far as the applicability of judgment of the Division Bench in WA
No.2358/2024 is concerned, it was sought to be distinguished on the ground that
the respondent No.1 in the present case was initially appointed in Panchayat as
Shiksha Karmis and not in urban local bodies.
23. Under the provisions of M.P. Municipalities Act, 1961, as per Section
95, the State Government is having competence to make rules in respect of various
matters including in the matter of pension. Section 95 is as under:
95. State Government to make rules.-
The State Government may make rules in respect of
qualification, recruitment, appointment, leave, scale of pay, all
allowances by whatever name called, loans, pension, gratuity,
compassionate fund, provident fund, annuity, dismissal, removal,
conduct and other departmental punishment and appeal and service
conditions for Municipal employees other than a member of the State
Municipal Service.
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24. As per Section 355, there is a general power to frame rules vested in the
State Government and as per Section 355(2)(iv)(b), the State Government is
having power to frame rules in the matter of pension. Section 355(2)(iv)(b) is as
under:
Section 355 Power to make rules.-
(2)In particular and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters, namely:-
(iv) Constitution of Municipal service for the State and recruitment’s
and appointments thereto;
(b) qualifications, scale of pay, leave, leave allowance, acting
allowance, loan, pension, gratuity, annuity, compassionate fund,
provident fund, dismissal, removal, conduct, departmental
punishments, appeals and other service conditions of the members of
the State Municipal service;
25. It is not disputed that the State Government has duly framed rules in the
matter of payment of pension to the municipal employees which are known as
M.P. Municipal Services (Pension) Rules, 1980.
26. Different provisions are to be found in M.P. Panchayat Act. As per
Section 131 of the said Adhiniyam, 1993, there is no provision to pay pension to
panchayat employees and as per Section 131, there is a saving of pension scheme
and retirement benefits of existing employees. Prior to the Adhiniyam 1993, there
was Panchayat Act of 1990 and before that Act of 1981 and before that M.P.
Panchayats Act, 1962. As per Section 386 of M.P. Panchayats Act, 1962 is similar
saving clause was there and the substantive provision in the matter of payment of
pension was as per Section 147 in the case of Janpad Panchayat and Section 189 in
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the case of Jila Panchayat and as per Section 147(a) and Section 189 (a) provident
fund automatically applied to the panchayat employees and as per Section 147(c)
and Section 189(c) pension would be subject to previous approval of the State
Government. Sections 147 and 189 and are as under:
147. Establishment of Provident Fund.–A Janpad Panchayat may
in accordance with the rules made under this Act:
(a) establish and maintain a Provident Fund on behalf of its officers
and servants;
(b) grant gratuity to any officer or servant subject to the previous
approval of the prescribed authority; and
(c) grant pension to any officer or servant subject to the previous
approval of the State Government.
189. Establishment of Provident Fund.–A Zila Panchayat may in
accordance with the rules made under this Act:
(a) establish and maintain a Provident Fund on behalf of the officers
and servants;
(b) grant gratuity to any officer or servant subject to the previous
approval of the prescribed authority; and
(c) grant pension to any officer or servant subject to the previous
approval of the State Government.
27. It is undisputed that the State Government at no point of time framed
rules in the matter of payment of pension to panchayat employees and therefore,
the services under panchayat are not pensionable but are undisputedly subject to
benefit of Contributory Provident Fund. Recently, the Division Bench of this Court
considered the issue in Ganesh Ram Kahar Vs. State of Madhya Pradesh &Ors.,
(WA 752/2020, decided on 28.2.2025) in the following manner :-
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“11. From the above Section 386, it is clear that there is saving as to
existing permanent employees that those employees, who are now
being covered under M.P. Panchayats Act of 1962 and were earlier
employees of Mandal Panchayat, Janpad Sabha, Kendra Panchayat
or Tahsil Panchayat, etc. would continue to be paid pension,
provident fund and gratuity as they were entitled with their erstwhile
employer. The Janpad Sabha was not a local authority and was run
by the State Government and therefore, the employees of Janpad
Sabha, which were absorbed in Panchayats after 1962 were
undisputedly entitled to pension as allowed to State Government
employees under the Pension Rules applicable to State Government
Employees. Therefore, the dispute has arisen in this case whether the
petitioner is a taken over employee of erstwhile Janpad Sabha or not
? This is because undisputedly if the petitioner was not a taken over
employee, then he would only be covered under the Contributory
Provident Fund Scheme of Janpad Panchayat and if he is a taken over
employee, then he would be entitled to pension because it is not in
dispute that employees of Janpad Sabhas were entitled to pension and
their pension rights would be protected upon absorption in Janpad
Panchayats.”
28. Coming to provisions of Pension Rules, 1976, Rule 3(p) relates to
qualifying service meaning the period between date of joining pensionable service
and retirement there from. The service under the panchayat is not pensionable and
therefore, to some extent the counsel for the State is right in submitting that the
judgment in the case of Urban Local Bodies would not apply to the present case
because the respondent No.1 was a Shiksha Karmi under panchayat and not under
urban local body. Rules 3(p) is as under:
3(p)”Qualifying service” means the period between the date
of joining pensionable service under the State Government and
retirement therefrom which shall be taken into account for
purpose of the pension and gratuity admissible under these
rules and includes the period which qualifies under any other
order or rule for the time being in force;
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29. As per Rule 13 there is a provision regarding conditions subject to which
service qualifies. The said Rule is as under:
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.
30. As per Rule 13(2) also, the expression service means service against a
post under the Government and which has not been declared as non-pensionable.
As undisputedly, the services under Panchayat were non-pensionable, therefore,
the employees of panchayats appointed as Shiksha Karmi and thereafter as
Adhyapak do not seem to be covered under Pension Rules, 1976 and therefore,
though the learned Government Advocate has succeeded in distinguishing the case
so far as the entitlement of pension is concerned but the same argument goes
against the State so far as the question of entitlement of gratuity under the Act of
1972 is concerned.
31. Initially, the teachers were appointed in the School Education
Department of the State Government but in the year 1997, the State Government
came out with rules to appoint Shiksha Karmis and different rules were framed for
appointing Shiksha Karmis and placing their services under urban local bodies and
under panchayats. It was a very interesting system because the schools were run by
the School Education Department under the control of authority of School
Education Department and under Sarva Shiksha Abhiyaan, which is also a project
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of School Education Department but the teachers working therein were by a legal
fiction, employee of Panchayats or Urban Local Bodies. For panchayats, the
Shiksha Karmis were appointed in accordance with M.P. Panchayat Shiksha Karmi
(Recruitment and Conditions of Service) Rules, 1997. Thereafter, the said rule was
succeeded by M.P. Panchayat Samvida Shala Shikshak (Appointment and
Conditions of Service) Rules, 2001 and in the year 2005, these rules were
superseded by M.P. Panchayat Samvida Shala Shikshak (Employment and
Conditions of Service) Rules, 2005. By the said Rules of 2001 and 2005, the
teachers continued to be appointed in the Panchayats and Urban Local Bodies by
framing separate set of rules for the purpose and they were now converted into
contractual employees and all the appointments made after the year 2001 were
made on the post of Samvida Shala Shikshak Grade-I (for Higher Secondary/High
School), Grade-II (for Middle) and Grade-III (for Primary). The said system
continued upto 2008 and in the year 2008, the State Government came out with
Rules to absorb such Shiksha Karmis and Samvida Shala Shikshaks in regular
cadre known as Adhyapak cadre. For Panchayats, Rules were framed known as
M.P. Panchayat Adhyapak Samvarg (Employment and Conditions of Service)
Rules, 2008 and for urban local bodies, the rules were framed known as M.P.
Nagriya Nikay Adhyapak Samvarg (Employment and Conditions of Service)
Rules, 2008.
32. Under the Rules of 2008 framed separately for Panchayats and Urban
Local Bodies, the Shiksha Karmis and Samvida Shala Shikshak were absorbed in
teacher cadre of urban local bodies and panchayats respectively. The said rules
were parimateria and the Division Bench in WA No.2358/2024 has considered the
provisions of Teaching Cadre Rules of 2008 for Urban Local Bodies and similar
provisions are there in the rules of Panchayat also. As per Rule 2(b) of the Rules,
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the appointing authority is defined as one specified in schedule-I which is Chief
Executive Officer of Jila Panchayat and as per Rule 5(1) one of the methods of
recruitment in service is by merger of Shiksha Karmis and of Samvida Shala
Shikshaks Grade-I, Grade-II and Grade-III on the post of Varishth Adhyapak,
Adhypak and Sahayak Adhyapak respectively. As per note to Rule 8, persons
employed or merged under the Teaching Cadre Rules, 2008 would be entitled for
similar leaves as regular teachers of School Education Department. They will be
having superannuation age of 62 years and would be covered under to M.P.
Panchayat Services (Conduct) Rules, 1998 and were also held entitled to Dearness
Allowance and other allowances payable as notified by the State Government from
time to time.
33. The aforesaid provisions have already been interpreted by Division
Bench in Writ Appeal No.2358/2024 in respect of Urban Local Bodies and it has
been held that in all respect they became the regular employees of urban local
bodies and in similar manner, the respondent No.1 herein, for all practical purposes
became a regular employees of Jila Panchayat.
34. Upon having become a regular employee of Jila Panchayat, the
respondent No.1 undisputedly became subject to all the service conditions of Jila
Panchayat and became entitled to count his services for the purpose of gratuity
from the date of initial appointed as Samvida Shala Shikshak/Shiksha Karmi and
further to be covered under Contributory Pension Scheme or National Pension
Scheme at par with employees of Janpad Panchayat and Jila Panchayat.
35. The issue of applicability of M.P. Civil Services Pension Rules 1976 to
teachers absorbed in Panchayats in Adhyapak Cadre, and subsequently in the
regular Cadre as per Rules of 2018, was recently decided by a coordinate Single
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Bench of this Court at Jabalpur in Tribal Welfare Teachers Association Vs. State
of Madhya Pradesh &Ors, (WP No. 10444/2020, decided on 01.3.2024). It has
been held that such Teachers who were appointed and absorbed in Panchayats
before coming under direct fold of the State as per Rules of 2018, will not be
covered under Pension Rules of 1976. In the said case, challenge to the circular
No. F 1-16/2009/20-1dated 05.5.2011 issued by the School Education Department
in name of the Governor, was rejected, whereby all Adhyapaks absorbed in
Adhyapak Cadre as per Rules 2008 were covered under contributory Scheme of
National Pension Scheme (NPS). Therefore, the said coverage will continue and
has not been affected for the Teachers initially appointed and absorbed under the
Panchayats.
36. So far as the heavy reliance framed on Rule 18(2) of Rules of 2018 is
concerned. The option was taken from respondent No.1 in terms with the aforesaid
Rule 18(2). Rule 18(2) is as under:
18(2) The members of the Adhyapak Cadre appointed into this
service as per sub-rule (1), (2) and (3) of Rule 5 shall not be entitled
to get pay scales, allowances and schemes with respect to this service
before the commencement of these rules.
37. From a bare language of Rule 18(2), it is clear that the members of
Adhyapak Cadre appointed into this service as per Rule 5 shall not be entitled to
get pay scales, allowances and schemes with respect to ‘this service’ before the
commencement of these rules. Thus, by a plain language, the employees absorbed
in accordance with the Rules of 2018 in the service of School Education
Department would not be entitled to get the pay scales, allowances and schemes as
per the pay scales notified in the Rules of 2018 prior to their absorption. No other
rights of the absorbed teachers are affected by the school. The contention of the
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State that since these are the employees of Jila Panchayat, they cannot seek
gratuity from Jila Panchayat and since they spent less than 5 years in State
Government, they cannot seek gratuity from the State Government. It is a very
strange argument made by the State Government which is expected to be model
employer and expected to lay down examples of other employers rather than to act
a thrifty and miser businessman. By no stretch of imagination, vested right to claim
Gratuity can be termed as “pay-scale, allowance or scheme” so as to interpret Rule
18 (2) to infer extinction of right to Gratuity.
38. It is settled in law that upon absorption, the employees would have
continuity of service conditions and even looking to the ground raised by the State
Government that the same service condition would continue then also the
Adhyapaks taken over from Panchayats in accordance with Rules of 2018 which
are to be continued to be covered under the payment of Gratuity Act, 1972 so also
the Contributory Pension Scheme or National Pension Scheme for which they were
entitled under the services of Panchayat and in terms of circular dated 05.5.2011,
though the Pension Rules may not have been applicable to Panchayat employees.
39. Therefore, nothing is there in Rule 18(2) to deny the benefit of gratuity
to the respondent No.1 by calculating his services from the date of initial
appointment as Shiksha Karmi/Samvida Shala Shiksha till his eventual
superannuation from the service of the State Government after having been
absorbed in accordance with Rules of 2018. The previous rules would continue to
apply and therefore, the employees would continue to cover under Gratuity Act,
1972 as well as the Provident Funds Scheme as applicable to regular employees of
Jila Panchayat and Janpad Panchayat.
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40. Consequently, holding the respondent No.1 entitled to gratuity in terms
of payment of Gratuity Act, 1972, no error is found in the impugned order
Annexure P/1 passed by the Controlling Authority. The petition being devoid of
merits stands dismissed.
41. Let the order of controlling authority be complied with within a period of
one month from the date of production of copy of this order, failing which the
respondent employee shall be entitled to initiate such proceedings as are
permissible under law to get the said order and this order complied.
42. As to appreciate the arguments of the petitioner’s counsel, the entire
entitlement of the respondent No.1 to Pension, Provident Fund and Gratuity had to
be considered and he has been found entitled to provident fund at par with regular
employees of Panchayat, therefore, it is clarified that by this order, the right of the
respondent No.1 to claim the benefit of contributory provident fund at par with
whatever scheme is applicable to regular employees of panchayat from the date of
initial appointment as Shiksha Karmi/Samvida Shala Shikshak till his eventual
superannuation from the service of State Government, shall not be affected in any
manner and shall remain intact. This also be done within a period of two months
from the date of production of copy of this order.
43. With the aforesaid observations, these petitions are dismissed.
(VIVEK JAIN)
JUDGE
veni
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Signing time: 06-05-2025
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