Judgment:
1. By way of present petition petitioner seeks two-fold directions. Firstly, quashment of order dated 17.10.99 has been sought, whereby the petitioner who is daily wage worker is made to retire on attaining the age of 60 years. Secondly, the petitioner seeks the direction to the respondents to correct the date of birth as 12.07.55 in place of 12.01.40 as recorded in the service particulars of the petitioner. In respect of the claim for extended age of the retirement it is contended by learned counsel for the petitioner that she is working on the post of permanent labour since 1980 and being a workwoman of a Work Charged Establishment the respondents are under obligation to treat the petitioner at par with Clause-IV employees of the State Government, whose age of retirement has been extended from 60 to 62 years vide Circular dated 26.09.98 issued on the basis of amendment in the M.P. Government Servant (Age of Superannuation) Amendment Act, 1998, whereby fundamental Rule 56 has been amended. In respect of date of birth recorded in service particulars of the petitioner it is contended by learned counsel that on being physically examined by the Civil Surgeon, Government Hospital, Satna, the approximate age of the petitioner has been certified to be about 55 years as on 10.11.99 vide Annexure-A/2. It is on the basis of the certificate Annexure-A/2, the petitioner claims changed date of birth in service particulars, from 12.1.40 to 12.7.55.
2. The respondents on their turn have categorically denied the direction as sought for by the petitioner. It is stated in the return filed by the respondents that the petitioner is not class-IV Government Servant but is a Mahila Shramik engaged on daily wages. It is urged that the terms and conditions of the service of the petitioner are governed by the provisions of M.P. Public Works Department Manual (Para 4.003). It is urged that the petitioner is appointed on muster roll and is retained in service till the age of 60 years. It is further, contended on behalf of respondent/State that the State Government issued instructions vide circular dated 20.07.89, wherein it is directed that the persons working in various Gangs in the Public Works Department should be continued till the age of 60 years instead of age of 58 years.
3. It is urged that the petitioner since is governed by the said instructions issued by the State Government cannot as a matter of right claim the extended age of the retirement from 60 to 62 years. The respondents further submitts that petitioner being a member of the permanent gang is also not covered under the definition of class-IV employees as provided in Para 1.04 in Public Works Department Manual. It is on anvil of the aforesaid submission that the respondents seek dismissal of the said petition.
Indisputably, and as admitted by the respondents in their return that the petitioner is a member of permanent gang. Full Bench of this Court in Vishnu Mutiya and others v/s State of M.P. and others 2006 (1) MPLJ 23, while dealing with the case of gangmen employed in Public Works Department, as the petitioner is, was pleased to observe-
"10. After perusing both the judgments we find that while taking the aforesaid view in the case of Gulab Singh (supra) the Division Bench at the Main Seat has failed to notice the Rules, namely, M.P. Work Charged and Contingency Paid Employees Revision of Pay Rules, 1977, hereinafter referred to as the '1977 Rules'. These Rules are also framed under Article 309 of the Constitution like '1976 Rules' and Scheduled attached to the said Rules provides the posts of Gangmen.
11. Rule 2 (c) of the M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979, herein after referred to as '1979 Rules' which are also framed under Article 309 of the Constitution, defines the word 'Permanent Employee' reads as follows : "Permanent Employees" means a contingency paid employee or a work charged employee who has completed 15 years of service or more on or after the 1st January 1974.
12. It is true that gangmen is not included in the schedule of 1976 Rules but from perusal of schedule attached to 1977 Rules it is clear that the post of gangman is included in the schedule of the said Rules. In such circumstances Rules of 1977 and 1976 will have to be read together. After reading both the Rules together it becomes clear that a gangman is fully governed by the said Rules. Non-mentioning the post of 'Gangman' in the schedule to the 1976 Rules is a mere omission in amending the Rules after coming into force of '1979 Rules'. As per Rule 8 of the 1976 Rules a Gangman shall be governed by the same policy for superannuation as is applicable to the Class IV Government employees because they are in comparable category. The said Rules reads as under:
"8. Age, Physical fitness of new
entrants and age of superannuation.- In the matter of age, and physical fitness for recruitment and superannuation, the same rules and policies shall apply to the new entrants into the service as are applicable to the Government servants of comparable categories in the regular employment."
13. While deciding the Gulabsingh's case (supra), the 1977 Rules and
Pension Rules of 1979 were brought to the notice of the Court. 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- charge employee becomes permanent employee whenever he completes fifteen years of his service though it may be after 1.1.1974.
14. It is well known principle of law that when two different Rules contain different provisions the one of 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 Gulab Singh (supra) is not correct as the view taken in the said case was taken without considering the 1977 Rules and 1979 Rules. In 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 are in comparable category."
4. The judgment rendered by the Full Bench squarely covers the issue which crops up for consideration in the present petition as to whether a permanent gang men would be entitled to serve till the extended age of 62 years and as held by the Full Bench in Vishnu Mutiya (supra) the present petition is allowed and the order dated 17.12.99 is hereby set aside. The petitioner would be entitled to all the consequential relief such as the dues of wages and other remuneration as per the entitlement. In respect of the claim of the petitioner for change of Date of Birth from 12.1.40 to 12.7.55, it is observed that the same is on the basis of certificate issued by an Assistant Surgeon (Annexure A/2), the said certificate records that on clinical and virtual examination the petitioner appear about 55 years. The said certificate nowhere discloses as to whether any ossification was carried out before ascertaining the age of the petitioner.
5. In view of the above the certificate as produced by the petitioner cannot form the basis for declaring that the date of birth of the petitioner would be 12.7.55, therefore, the claim of the petitioner for change of Date of Birth is negatived.
6. In result the petition is partly allowed to the extent above. However no costs.