Shrimati Kala Bai Prajapati Vs. State of Madhya Pradesh and Others - Court Judgment

Excerpt:
in sum and substance, the contention of the learned counsel for the appellant is that the service rendered by the late husband of the appellant on muster roll from 01 st may, 1973 to 09 th april, 1991 was also service under the contingency rules of 1977 as he was always paid salary on monthly basis. the contention of shri singhal is that since the late husband of the appellant was paid salary on monthly basis when he was working on muster roll, his employment as muster roll employee falls under the contingency rules of 1977 and, therefore, the service rendered by him as muster roll employee has to be counted for the purpose of qualifying service required for grant of family pension. on the basis of above discussion, we hold in regard to the substantial questions of las nos. 2 and 3 that am employee is eligible to count his past service as qualifying service in accordance with rule 6 of the pension rules, 1979, if he was appointed in accordance with the provisions of recruitment rules of 1977. 1. this is an intra-court appeal filed by the appellant seeking to challenge the order of the learned single judge dated 21 st september,2010 by which her writ petition for grant of family pension was dismissed. 2. briefly stated, the facts of the case, giving rise to this appeal are that the husband of the appellant was employed as a gangman by the respondents on daily wage basis since 01 st may, 1973. his services were regularised under the provisions of the madhya pradesh irrigation department work charged and contingency paid employees recruitment and conditions of service rules, 1977 ( for brevity, “contingency rules of 1977”) with effect from 09 th april, 1991. said regularisation was in terms of recommendations of the selection committee. the husband of the appellant died on 03 rd august, 1997, i.e. almost within six years of regularisation of her late husband in the service of the respondents. after his death, the appellant being his widow, applied for family pension which was declined by the respondents and aggrieved therefrom, she filed a writ petition for directions against the respondents to grant her family pension on account of death of her husband and the impugned order which is assailed by her in the present appeal has been passed by the learned single judge in the said writ petition. 3. mr. yogesh singhal, learned counsel appearing on behalf of the appellant has argued that the service rendered by the late husband of the appellant while he worked on muster roll during the period from 01 st may,1973 till the date of his regularisation, i.e. 09 th april, 1991 should also be counted towards qualifying service required for grant of family pension. in sum and substance, the contention of the learned counsel for the appellant is that the service rendered by the late husband of the appellant on muster roll from 01 st may, 1973 to 09 th april, 1991 was also service under the contingency rules of 1977 as he was always paid salary on monthly basis. in support of his contention, learned counsel has placed reliance on the definition of contingency paid employee given in rule 2 (b) of contingency rules of 1977 which reads as under : “ 'contingency paid employees' 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”. 4. the contention of shri singhal is that since the late husband of the appellant was paid salary on monthly basis when he was working on muster roll, his employment as muster roll employee falls under the contingency rules of 1977 and, therefore, the service rendered by him as muster roll employee has to be counted for the purpose of qualifying service required for grant of family pension. 5. we have given our anxious consideration to the above contention urged on behalf of the appellant, but we are sorry, we have not been able to persuade ourselves to agree with this submission. it may be mentioned that rule 6 of the contingency rules of 1977 which contains provisions for classification of the employees provides only two categories of employees, i.e. temporary and permanent. contingency rules of 1977 nowhere provide for employment on muster roll basis and hence, in our opinion, employment of the late husband of the appellant on muster roll basis during the period from 01 st may, 1973 to 09 th april,1991 does not fall within the ambit and scope of contingency rules of 1977. 6. full bench of this court in the case of mamta shukla vs. state of m.p., [2011 (3) mplj 210] has held in penultimate paragraph of the said judgment as under : “24. on the basis of above discussion, we hold in regard to the substantial questions of las nos. 2 and 3 that am employee is eligible to count his past service as qualifying service in accordance with rule 6 of the pension rules, 1979, if he was appointed in accordance with the provisions of recruitment rules of 1977. we further hold that an employee, who was not appointed in accordance with the provisions of recruitment rules of 1977, would not be eligible to count his past service as qualifying service for the purpose of grant of pension in accordance with the pension rules of 1979 and we answer the substantial questions of law nos. 2 and 3 accordingly.” 7. in view of the above judgment of the full bench of this court, the appellant is not entitled to family pension because the employment of her late husband on muster roll basis cannot be counted for counting the qualifying service required for grant of such pension to her. it is not the case of the appellant that her late husband had, after regularisation with effect from 09 th april, 1991, put in the qualifying service required for grant of pension on the day he died on 03 rd august, 1997. his service on the date of his death fell short of qualifying service required under the contingency rules of 1977 for grant of family pension to his widow. hence, in the opinion of this court, there is no infirmity or illegality in the impugned order of the learned single judge declining family pension to the appellant, which may require our interference in exercise of our appellate jurisdiction in the present appeal. this appeal is devoid of any merit and is, therefore, dismissed but with no order as to costs. 

Judgment:

1. This is an intra-Court appeal filed by the appellant seeking to challenge the order of the learned Single Judge dated 21 st September,2010 by which her writ petition for grant of family pension was dismissed.

2. Briefly stated, the facts of the case, giving rise to this appeal are that the husband of the appellant was employed as a gangman by the respondents on daily wage basis since 01 st May, 1973. His services were regularised under the provisions of the Madhya Pradesh Irrigation Department Work Charged And Contingency Paid Employees Recruitment And Conditions of Service Rules, 1977 ( for brevity, “Contingency Rules of 1977”) with effect from 09 th April, 1991. Said regularisation was in terms of recommendations of the selection committee. The husband of the appellant died on 03 rd August, 1997, i.e. almost within six years of regularisation of her late husband in the service of the respondents. After his death, the appellant being his widow, applied for family pension which was declined by the respondents and aggrieved therefrom, she filed a writ petition for directions against the respondents to grant her family pension on account of death of her husband and the impugned order which is assailed by her in the present appeal has been passed by the learned Single Judge in the said writ petition.

3. Mr. Yogesh Singhal, learned counsel appearing on behalf of the appellant has argued that the service rendered by the late husband of the appellant while he worked on muster roll during the period from 01 st May,1973 till the date of his regularisation, i.e. 09 th April, 1991 should also be counted towards qualifying service required for grant of family pension. In sum and substance, the contention of the learned counsel for the appellant is that the service rendered by the late husband of the appellant on muster roll from 01 st May, 1973 to 09 th April, 1991 was also service under the Contingency Rules of 1977 as he was always paid salary on monthly basis. In support of his contention, learned counsel has placed reliance on the definition of contingency paid employee given in Rule 2 (b) of Contingency Rules of 1977 which reads as under :

“ 'Contingency paid employees' 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”.

4. The contention of Shri Singhal is that since the late husband of the appellant was paid salary on monthly basis when he was working on muster roll, his employment as muster roll employee falls under the Contingency Rules of 1977 and, therefore, the service rendered by him as muster roll employee has to be counted for the purpose of qualifying service required for grant of family pension.

5. We have given our anxious consideration to the above contention urged on behalf of the appellant, but we are sorry, we have not been able to persuade ourselves to agree with this submission. It may be mentioned that Rule 6 of the Contingency Rules of 1977 which contains provisions for classification of the employees provides only two categories of employees, i.e. temporary and permanent. Contingency Rules of 1977 nowhere provide for employment on muster roll basis and hence, in our opinion, employment of the late husband of the appellant on muster roll basis during the period from 01 st May, 1973 to 09 th April,1991 does not fall within the ambit and scope of Contingency Rules of 1977.

6. Full Bench of this Court in the case of Mamta Shukla vs. State of M.P., [2011 (3) MPLJ 210] has held in penultimate paragraph of the said judgment as under :

“24. On the basis of above discussion, we hold in regard to the substantial questions of las Nos. 2 and 3 that am employee is eligible to count his past service as qualifying service in accordance with Rule 6 of the Pension Rules, 1979, if he was appointed in accordance with the provisions of Recruitment Rules of 1977. We further hold that an employee, who was not appointed in accordance with the provisions of Recruitment Rules of 1977, would not be eligible to count his past service as qualifying service for the purpose of grant of pension in accordance with the Pension Rules of 1979 and we answer the substantial questions of law Nos. 2 and 3 accordingly.”

7. In view of the above judgment of the Full Bench of this Court, the appellant is not entitled to family pension because the employment of her late husband on muster roll basis cannot be counted for counting the qualifying service required for grant of such pension to her. It is not the case of the appellant that her late husband had, after regularisation with effect from 09 th April, 1991, put in the qualifying service required for grant of pension on the day he died on 03 rd August, 1997. His service on the date of his death fell short of qualifying service required under the Contingency Rules of 1977 for grant of family pension to his widow. Hence, in the opinion of this Court, there is no infirmity or illegality in the impugned order of the learned Single Judge declining family pension to the appellant, which may require our interference in exercise of our appellate jurisdiction in the present appeal. This appeal is devoid of any merit and is, therefore, dismissed but with no order as to costs.