Smt. Sunanda Tambe Vs. the State of Madhya Pradesh - Court Judgment

WRIT PETITION No.13916/201”

31. 08.2012 Shri Aniruddha Pandey, learned Counsel for the petitioner. Ms. D.K. Bohre, learned Panel Lawyer, for the respondents-State. Heard on the question of admission. It is the grievance of the petitioner that the services rendered by her in the Local Body has not been considered for grant of pension treating it to be a qualifying service. It is stated by Mr. Aniruddha Pandey, learned Counsel for the petitioner that the issue raised has already been decided by this Court in W.P. No.4919/2003 (Ram Jatan Singh vs. State of M.P. and others) and other similar connected writ petitions decided on 27.11.2003 holding that the period spent in Janpad Sabha/Municipal Bodies has to be counted as pensionable service. It is conceded at bar that matter is similar as decided in W.P. No.4919/2003 (Ram Jatan Singh vs. State of M.P. and others) and other connected matters on 27.11.2003 by this Court. This Court has passed the following order : “In these writ petitions, question involved is common. The petitioners have claimed that the services rendered by them with Janpad Sabha School, be counted for pensionary benefits.

2. Facts are being noticed from W.P. No.4919/2003 – Ram Jatan Singh vs. State of M.P. and others. It is averred in the petition WRIT PETITION No.13916/2012 2 that petitioner was initially appointed as Primary School Teacher in Primary School Karanjia in District Durg vide order dated 15.09.1958. The said school was being run by the Janpad Sabha Bhilai. The petitioner continued to serve as Primary School Teacher under the Janpad Sabha till 30.09.1963, on which date State Government has taken over all the Primary and Middle Schools run by the Local Bodies including the Janpad Sabhas throughout State with effect from 01.10.1963. Consequently, all the employees including the petitioner became the Government servants from that day. Petitioner Ram Jatan Singh rendered the services till 30.6.1995. Petitioner was promoted as Head Master in the year 1972. The services rendered by the petitioner for the period 15.9.58 to 30.9.1963 with the Janpad Sabha have not been included while computing period for the pension. Only the period from 1.10.1963 to 30.6.1995 has been taken into consideration. Accordingly, pension has been worked out. Petitioner claims entitlement for the pension by counting 33 years of service. No reason has been assigned for not counting the period which petitioner spent in Janpad Sabha School. Reliance has been placed on a decision of this Court in C.A. Bhakhare vs. State of M.P. and others, 1987 MPLJ 50 and it is submitted that similar treatment has not been meted out to the petitioner. It is further submitted that it was the duty of the local bodies to deduct Provident Fund from the salary of employees and if they have failed to discharge their duty employee cannot be made to suffer. In certain cases State Administrative Tribunal has also directed to compute the period spent in Janpad Sabha as the local bodies as pensionable period in case of similarly situated employees. WRIT PETITION No.13916/201”

3. A return has been filed by the respondents. It is submitted in the return that Government of Madhya Pradesh in School Education Department has issued a circular dated 21.1.1972 and had directed that teachers who were on pension scheme in Janpad Sabha or Local bodies before absorption on 1.10.1963 will be entitled to count their service period in Janpad Sabha or Local Bodies towards pension. It was further directed that in case of teachers who were members of contributory provident fund if the amount of CPF deducted from the applicant as also the contribution of the Janpad Sabha along with interest has been deposited in the government account, on such deposit their service in Janpad Sabha will be counted towards pension. Circular (R-1) has been relied upon.

4. It is conceded at Bar that matter is covered by the decision of this Court rendered in case of C.A. Bhakhare vs. State of M.P. and others (supra) circular dated 15/21.1.1972 has been considered and also effect of not deposit of such amount by local bodies and the similar submission raised to deny claim that CPF was not deducted and deposited, was rejected. This Court has held thus :

“3. From the aforesaid facts, it is clear that the petitioner's services with Municipal Council, Bina and the respondent State Government are for a period of more than 10 years and if the entire service has to be counted for granting pensionary benefit, she would be entitled to a pension. The case of the respondent is that since she has not contributed to the Provident Fund upto 31st March, 1960, she is not entitled to get the benefit of earlier service in accordance with Clause (1)(Ph) of WRIT PETITION No.13916/2012 4 Circular, dated 15/21.1.1972 (annexure R-1). After having considered the aforesaid submission, this Court is unable to accept the same. Contribution to a Provident Fund Scheme framed under a law is not dependent on the wish or desire of a Municipal Servant. Indeed, it should be the obligation of the Municipal Council to cover every Municipal Servant by the statutory scheme and make deductions from his/her salary and also make its own contribution. This obligation of the Municipal Council is required to be performed in spite of reluctance of a Municipal Employee. Under the circumstances, inaction on the part of the municipal Committee cannot be accepted as sufficient excuse for denying the Municipal employee benefits of the Provident Fund Scheme. Indeed, in the Employees' Provident Fund Act, 1952 which according to this Court should be treated to be embodying general law on the subject, a defaulting employer is required to contribute the entire amount. Under the circumstances, even if it was to be assumed that the Municipal Council did not deduct the Provident Fund amount from the petitioner's salary upto 31.3.1960 this inaction of Municipal Council cannot be accepted as a justification for denying the petitioner the benefits of her past service. Indeed, the intention of the respondent is issuing the order dated 15/21.1.1972 (Annexure R-1) appears to be to give effect to the directive principles contained in Art. 41 of the Constitution and provide for old age of its retired employees. The intention being noble has to be given full effect to. Under the circumstances, Clause (1)(Ph) of this WRIT PETITION No.13916/2012 5 Circular cannot be accepted as covering a case where the local body for reasons best known to them has not deducted the Provident Fund amount even though they were bound to do so under Law. In view of this Court, this clause would only apply to a scheme. In this view of the matter, the petitioner is entitled too count her entire service for purposes of pensionary benefits. There is no dispute that if her entire service is counted, she is entitled to pension in accordance with law.

4. In view of the discussion aforesaid, the petition succeeds and is allowed. The respondents are directed by a writ in the nature of mandamus to treat her entire service from 2.7.1956 for purposes of granting pension and calculate and pay her the pension in accordance with law. It is further directed that though the arrears on account of pension may be paid in six months time, the pension for the month of November, 1985 be calculated and paid in December, 1985.”

5. These petitions being similar, it is held that petitioners are entitled for the similar treatment as has been meted out to the other employees and petitioners are held entitled for counting their services rendered in Janpad Sabha School towards pensionary benefits under M.P. Civil Services (Pension) Rules, 1976. Let pension be refixed, arrears be worked out and payment be paid within six weeks.

6. Writ petitions are allowed. No order as to costs.”

. It is contended by learned Panel Lawyer appearing for the respondents on advance copy that such a belated WRIT PETITION No.13916/2012 6 claim of the petitioner should not be considered. However, keeping in view the law laid-down by this Court as has been relied by learned Counsel for the petitioner, it would be appropriate to direct the respondents to consider the grievance of the petitioner and to grant the relief, if permissible, with prospective/retrospective effect as they deem fit, keeping in view the delay caused in making such claim. In case it is found that claim of the petitioner is similar to the case decided by this Court in Ram Jatan Singh (supra), the same benefit be extended to the petitioner in the manner as observed herein above within a period of three months from the date of receipt of certified copy of this order. With the aforesaid, the writ petition is finally disposed of. Certified copy as per rules. (K.K. Trivedi) Judge Skc