Daily wager employees are not entitled to the same retirement age as Class IV employees.

S.K. Gangele, J.

1. On the reference by the learned Single Judge of this Court, Hon'ble the Chief Justice has constituted this Bench under the provisions of Rule 8 (Chapter IV) of the Madhya Pradesh High Court Rules & Orders, 2008, to answer the following reference:

(i) Whether the judgment passed in Writ Petition No. 6692/2010 (s) Ramswaroop Sharma v. State of MP and Ors. has taken a correct view regarding applicability of Mutiya's case (supra) in the case of daily wagers and declaring their age of retirement as 62 years or the judgment passed by another learned Single Judge in Mathura Prasad Yadav v. State of MP and Ors. reported in 2010 (3) MPLJ 323, has taken the correct view? And, hence, what should be the age of retirement of daily wager / gangman working in the State of Madhya Pradesh?

2. Before answering the reference, it would be appropriate to consider the facts which have dissented in making the present reference.

3. Petitioner challenged the order of termination from service dated 26-4-2008 on account of attaining the age of 60 years. It is mentioned in the order that the petitioner, who was working as daily wager employee would retire from service on account of attaining the age of superannuation i.e. 60 years. The petitioner pleaded that the post of Labour / Meth / Gangman falls within the category of Work Charged Establishment Class IV employees; hence, he is entitled to continue in service up to the age of 62 years in accordance with the provisions of M. P. Shaskhiya Sevak Adhivarshiki Aayu Tritiya Sanshodhan Adhyadesh, 1998. Consequently, an amendment was made in the aforesaid Adhyadesh and Class IV employees are entitled to continue in service up to the age of 62 years.

4. The respondent / State in its reply pleaded that petitioner was engaged on daily wage basis. He was not an employee of Work Charged and Contingency Paid Services; hence, he has no right to continue up to the age of 62 years. The department vide circular dated 30-5-2002 specified that daily wager employee can be continued in service up to the age of 60 years and on the basis of the aforesaid circular the service of the petitioner has been terminated. Hence, he has no right to continue in service up to the age of 62 years.

5. While hearing the matter, the learned Single judge has found conflict of opinion between the orders passed by the learned Single Benches and referred the matter to Hon'ble the Chief Justice for reference to a larger Bench in accordance with the provisions of Rule 8 (Chapter IV) of the M.P. High Court Rules and Orders, 2008 and consequently Hon'ble the Chief Justice has constituted the Bench.

6. Learned Counsel appearing on behalf of the petitioner has submitted that in accordance with the law laid down by the Full Bench of this Court in the case of Vishnu Mutiya and Ors. v. State of M.P. and Ors. reported in 2006 (1) MPLJ (FB) 23, the petitioner, who was a Work Charged and Contingency Paid Employee, has a right to continue in service up to the age of 62 years at par with other Class IV employees of the State. In support of his contention learned Counsel relied on the Full Bench judgment of this Court in the case of Vishnu Mutiya's case (supra) and some reported judgments.

7. Contrary to this, learned Additional Advocate General, appearing on behalf of the State, has contended that petitioner is not entitled to continue up to attaining the age of 62 years and he could not compare himself at par with Class IV employees of the State because he was engaged as daily wager and at the time of termination of his service he had been working as daily wager, he was not a holder of a post. Consequently, he is not eligible to continue in service up to the age of 62 years at par with Class IV employees of the State. In support of his contentions learned Additional Advocate General relied on Full Bench judgments in the cases of Ashok Tiwari v. M.P. Text Book Corporation and Anr. reported in 2010 (2) MPLJ 662 and Smt. Mamta Shukla v. State