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2006(1) JLJ 14
(FULL BENCH)
Subhash Samvatsar, Rajendra Menon and P.K. Jaiswal, JJ.
Vishnu and others v. State of M.P. and others
Writ Petition No. 1693 of 2005;
Decided on 2.12.2005.
This matter is referred to the Full Bench as a Single Judge of this Court found that there arc conflicting judgments of two Division Benches of this Court on the question. Whether a Gangman can be retired before attaining the age of 62 years. The Division Bench of this Court in the order passed in Letters Patent Appeal No. 51 of 2004, State of Madhya Pradesh V. Bharosi, decided on 27.10.2004 has laid down that a Gangman cannot be retired before attaining the age of 62 years. A similar view is taken by another Division Bench of this Court in the case of State of Madhya Pradesh V. Bhajanlal and others [2004 (3) MPHT 143 (DB)], while in another case, i.e.. Writ Petition No. 5484 of 2002, Gulab Singh V State of M.P. and others, delivered on 10.2.2005, a Division Bench of this Court at the Main Seat at Jabalpur had laid down that Gangman can be retired before completion of 62 years of his age. As there is a conflict of judgements on the aforesaid question, the matter is referred to this Full Bench for opinion as to which of those Judgements lays the correct law. (Para 1)
Held: Under rule 6 of 1976 Rules, the employees who were in service for at least fifteen years on 1.1.1974 were eligible for the status of permanent work-charged or contingency paid employees. This has been made more liberal by the 1979 Rules.
Rule 2(c) of the 1979 Rules lays down that a contingency paid employee or a work-charged employees becomes permanent employee whenever he completes fifteen years of his service though it may be after 1.1.1974.
It is well known principle of law that when two different Rules contain different provisions, the one which is more beneficial to the employees has to be accepted in the welfare State. Considering this fact, we find that the law laid down by this Court in the case of Bharosi (supra) and Bhajanlal (supra) lay down the correct law while the law laid down by the Gulabsingh (supra) case is not correct as the view taken in the said case was taken without considering the 1977 Rules and 1979 Rules. 111 such circumstances we hold that the services of gangmen are governed by the Rules applicable to work-charged and contingency paid employees even though the gangman is not included in the schedule of 1976 Rules and the age of superannuation is 62 years as other Class IV employees of the State Government because they arc in comparable category. LPA No. 51 of 2004 and 2004 (3) MPHT 143 confirmed. WP No. 5484 of 2002 overruled. [Paras 13 & 14
yksd fuekZ.k foHkkx dk;ZHkkfjr rFkk vkdfLedrk ls osru ikus okys deZpkjh HkrhZ rFkk lsok dh ‘krsZ fu;e] 1976& &fu-2 ¼[k½] 2 ¼t½] 4¼1½] 6 rFkk 8& &e-ç- dk;ZHkkfjr rFkk vkdfLedrk ls osru ikus okys deZpkjh osru iqujh{k.k fu;e] 1977& &vuqlwph& &e-ç- ¼dk;ZHkkfjr rFkk vkdfLedrk ls osru ikus okys deZpkjh½ isa‘ku fu;e] 1979& &fu-2¼x½& &xSaxesau& &lu~ 1976 ds fu;eksa dh vuqlwph esa lfEefyr ugha& &lu~ 1977 ds fu;eksa dh vuqlwph esa lfEefyr& &dsoy yksi gSa& &lu~ 1976 ds fu;e 8 ds v/khu mldh lsok bu fu;eksa }kjk fofu;fer& &lu~ 1979 ds fu;eksa ds fu-2 ¼x½ ds v/khu og LFkk;h Hkh gks tkrk gS& &vf/kokf"kZdh vk;q 62 o"kZ gSA
;g ekeyk iw.kZ U;k;ky; dks fufnZ"V fd;k x;k gS D;ksafd bl U;k;ky; ds ,dy U;k;/kh‘k dk fu"d"kZ Fkk fd xSaxeSu 62 o"kZ dh vk;q çkIr djus ls iwoZ lsokfuo`r fd;k tk ldrk gS vFkok ugha] bl ç‘u ij bl U;k;ky; dh nks [kaM U;k;ihBksa ds ijLij fojks/kh fu.kZ; gSA 27-10-2004 dks fofuf‘pr ySVlZ isVSaV vihy Ø-51 lu~ 2004] e/; çns‘k jkT; fo- Hkjkslh esa ikfjr vkns‘k esa bl U;k;ky; dh [kaM U;k;ihB us vf/kdfFkr fd;k gS fd 62 o"kZ dh vk;q çkIr djus ls iwoZ xSaxeSau lsokfuo`r ugha fd;k tk ldrkA e/; çns‘k jkT; fo- Hktuyky rFkk vU; ¿2004 ¼3½ ,e ih ,p Vh 143 ¼[kaM U;k;ihB½À ds ekeys esa bl U;k;ky; dh ,d vU; [kaM U;k;ihB }kjk ,slk gh n`f"Vdks.k viuk;k x;k gS tcfd ,d vU; ekeys vFkkZr xqykcflag fo- e-ç- jkT; rFkk vU; vFkkZr fjV ;kfpdk Ø- 5484 lu~ 2002 esa 10-02-2005 dks fn, x, vkns‘k esa bl U;k;ky; dh tcyiqj fLFkr eq[; ihB esa [kaM U;k;ihB us vf/kdfFkr fd;k gS fd xSaxeSau 62 o"kZ dh vk;q iw.kZ gksus ls lsokfuo`Ùk fd;k tk ldrk gSA D;ksafd iwoksZDr ç‘u ij fu.kZ;ksa esa fojks/kkHkkl gS] blfy, bu fu.kZ;ksa esa ls fdl esa lgh fof/k vf/kdfFkr gS bl ckjs esa jk; ds fy, ekeyk bl iw.kZ U;k;ihB dks fufnZ"V fd;k x;k gSA ¼iSjk 1½
vfHkfu/kkZfjr % lu~ 1976 ds fu;eksa ds fu;e 6 ds v/khu] 1-1-1974 dks de ls de ianzg o"kZ ls lsokjr deZpkjh] dk;ZHkkfjr ;k vkdfLedrk ls osru ikus okys deZpkfj;ksa dh gSfl;r ds ik= FksA lu~ 1979 ds fu;eksa }kjk ;g vkSj mnkj dj fn;k x;k gSA lu~ 1979 blds fu;eksa ds fu;e 2 ¼x½ esa vf/kdfFkr gS fd vkdfLedrk ls osru ikus okyk deZpkjh ;k dk;ZHkkfjr deZpkjh tc Hkh ianzg o"kZ dh lsok iw.kZ djs] pkgs og 1-1-1974 ds i‘pkr gh gks] LFkk;h deZpkjh gks tkrk gSA
;g fof/k dk lqLFkkfir fl)kar gS fd tc nks fHkUu fu;eksa esa fHkUu mica/k varfoZ"V gks] dY;k.kdkjh jkT; esa ogh Lohdkj fd;k tkuk gksrk gS deZpkfj;ksa ds fy, vf/kd Qk;nkçn gksA ;g rF; /;ku esa j[krs gq, gekjk fu"d"kZ gS fd bl U;k;ky; }kjk Hkjkslh ¼iwoksZDr½ vkSj Hktuyky ¼iwoksZDr½ ds ekeys esa vf/kdfFkr fof/k esa lgh fof/k vf/kdfFkr gS tcfd xqykc flag ¼iwoksZDr½ ds ekeys esa vf/kdfFkr fof/k lgh ugha gS D;ksafd mDr ekeys esa viuk;k x;k n`f"Vdks.k lu~ 1977 ds fu;e vkSj lu~ 1979 ds fu;eksa ij fopkj fd, fcuk viuk;k x;k FkkA ,slh ifjfLFkfr esa ge vfHkfu/kkZfjr djrs gSa fd xSaxeSau dh lsok dk;ZHkkfjr vkSj vkdfLedrk ls osru ikus okys deZpkfj;ksa dks ykxw fu;eksa }kjk fofu;fefr gSa] Hkys gh xSaxeSau lu~ 1976 ds fu;e dh vuqlwph esa lfEefyr ugha gSa] rFkk vf/kokf"kZdh vk;q jkT; ljdkj ds vU; prqFkZ Js.kh deZpkfj;ksa dh Hkk¡fr] 62 o"kZ gS D;ksafd og rqyukRed oxZ esa gSA ySVlZ isVsaV vihy Ø- 51 lu~ 2004 rFkk 2004¼3½ ,e ih ,p Vh 143 iq"VA fjV ;kfpdk Ø-5484 lu~ 2002 myVh xbZA ¼iSjk 13 ,oa 14½
Samvatsar, J. -1. This matter is referred to the Full Bench as a Single Judge of this Court found that there are conflicting judgments of two Division Benches of this Court on the question. Whether a Gangman can be retired before attaining the age of 62 years. The Division Bench of this Court in the order passed in Letters Patent Appeal No. 51 of 2004, State of Madhya Pradesh v. Bharosi, decided on 27.10.2004 has laid down that a Gangman cannot be retired before attaining the age of 62 years. A similar view is taken by another Division Bench of this Court in the case of State of Madhya Pradesh v. Bhajanlal and others [2004 (3) MPHT 143 (DB)], while in another case, i.e., Writ Petition No. 5484 of 2002, Gulab Singh v. State of M.P. and others, delivered on 10.2.2005, a Division Bench of this Court at the Main Seat at Jabalpur has laid down that Gangman can be retired before completion of 62 years of his age. As there is a conflict of judgments on the aforesaid question, the matter is referred to this Full Bench for opinion as to which of those judgments lays the Correct law.
2. From perusal of the judgments in the cases of State of Madhya Pradesh v. Bharosi (supra) and State of M.P v. Bhajanlal and others (supra) it appears that these judgments lay down that the services of gangmen are governed by the Rules, namely Madhya Pradesh Public Works Department• Work-charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1976, herein after referred to as 1976 Rules' and hence they cannot be retired before attaining the age of 62 years, while in the case of Gulab Singh's case (supra) the Division Bench has laid down that the services of a gangman are not covered by the said Rules and, therefore, the State Government by framing a policy can retire them even before attaining the age of 62 years.
3. The petitioners before this Court are working, as Gangmen for a large number of years though they are appointed as daily rated employees. It is an admitted position that these petitioners are getting monthly salary. Annexure P-l(I) filed in Writ Petition No. 1693/05 shows that the petitioner in the petition was appointed as Gangman on 1.1.1975 and he was retired by the said order w.e.f 30.6.2005 i.e. he has worked for nearly thirty years on the said post.
4. Shri S.B. Mishra, learned Additional Advocate General, could not dispute before this Court that all these employees-petitioners were paid salary on monthly basis. Rule 2 of the 1976 Rules deals with the definitions.
Rule 2 (b) defines the words "Contingency-paid Employee" which read as under:
"2.(b) "Contingency-paid Employee" means a person employed for full time in an office or establishment and who is paid on monthly basis and whose pay is charged to "Office Contingencies", excluding the employees who are employed for certain periods only in the year; "
As per the aforesaid definition contingency paid employees means a person employed for the full time in an office or establishment and who is paid on monthly basis and whose pay is charged to Office Contingencies. However, the employees who are employed for certain limited period only in the year and are excluded from the said definition.
5. From a bare reading of Annexure P-1(I), it is clear that the petitioners in the present petitions are not employed for a limited period in a year, but they have continuously worked for nearly thirty years.
6. Another definition which is important in the present case is the definition of the words 'Work Charged Employee". Rule 2 (h) of the aforesaid Rules defines the words "Work Charged Employee", which reads as under:
"2(h) "Work Charged Employee" means a person employed upon the actual execution, as distinct from general supervision of a specified work or upon subordinate supervision of departmental labour, store, running and repairs of electrical equipment and machinery in connection with such work, excluding the daily-paid labour and muster roll employed on the work."
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