IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
WP No 2507 of 2005
Jhadu Ram
...Petitioner
VERSUS
1 Chhattisgarh State Electricity Board
2 Chhattisgarh State Electricity Board
...Respondents
! Shri H B Agrawal Sr Advocate with Shri J K Gupta Advocate for the petitioner
^ Shri P S Koshy Advocate for the respondents
Honble Justice Shri Satish K Agnihotri
Dated: 15/05/2007
: Order
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF
INDIA.
ORDER
(Passed on 15th day of May, 2007)
1. By this petition, the petitioner seeks a relief that
the petitioner be granted pension after his taking services
as daily wager into account for calculating the minimum
qualifying 10 years in service to entitle the petitioner for
grant of pension and gratuity also.
2. The indisputable facts, in nutshell, are that the
petitioner was engaged in the service as daily wager from
24.9.1974. The petitioner was regularised w.e.f 24.12.1986.
Thereafter, vide order dated 27.10.1990 (Annexure P/1), the
petitioner was appointed as work charged driver temporarily
on time scale of pay of Rs. 1090-1950. The petitioner
retired from service w.e.f 25.03.1995 on attaining the age
of superannuation. The petitioner was communicated letter
dated 29.11.1995 (Annexure P/3) that the petitioner was not
entitled to grant of pension as the petitioner has not
completed the minimum required 10 years for entitlement of
pension.
3. Shri H.B.Agrawal, learned senior counsel appearing with
Shri Pankaj Agrawal, would submit that the petitioner was
engaged as daily wager w.e.f 24.09.1974. Admittedly,
thereafter, the services of the petitioner was regularised
w.e.f. 24.12.1986. Learned counsel further relied on an
order dated 17.12.1984 passed by the Labour Court, wherein
the Labour Court directed to reinstate the applicant with
continuity of service on his former post. Thus, the
petitioner is entitled to pension on counting his service as
daily wager for the purpose of pension.
4. Per contra, Shri Koshy, learned counsel appearing for
the respondents would submit that the respondent Board has
adopted M.P./C.G. Civil Services (Pension) Rules, 1976
(hereinafter referred to as “the Rules, 1976”). As per the
rule, the period spent by the petitioner as daily wager
cannot be counted for his entitlement to pensionery
benefits. The petitioner was regularised as Work Charged
cleaner w.e.f 24.12.1986 and the petitioner retired on
25.03.1995. Thus the petitioner has not completed the
minimum 10 years qualifying service as entitlement to
pension.
5. I have heard the learned counsel appearing for the
parties, perused the pleadings and documents appended
thereto. It is evident that the petitioner was not born in
service till 24.12.1986 when he was regularised. Engagement
of the petitioner on daily wages cannot be counted as
service in the department. It is well settled principle of
law that any appointment dehors the constitutional scheme of
the employment and not in consonance with the provisions of
law on daily wages, contract or temporary, is not legal and
the employee does not acquire any right to continue in
service and other benefits of the regular service.
6. With regard to the contention of the learned counsel
appearing for the petitioner that the Labour Court, vide
order dated 17.12.1984 directed the reinstatement of the
petitioner with continuity of service on the former post. It
is clear that the Labour Court has directed to reinstate the
services of the petitioner on daily wages on his former post
and the said service cannot be counted as regular service.
7. Sub Rule (2) of Rule 12:- Commencement of qualifying
service, read with Sub Rule (2) of Rule 43:- Amount of
Pension, of the M.P. Civil Services (Pension) Rules, 1976,
reads as under:
"Rule 12 (1) xxx xxx
xxx xxx
(2) Subject to the provisions of
these rules, qualifying service of a
Government servant shall commence
from the date he takes charge of the
post to which he is first appointed
either substantively or in an
officiating or temporary capacity.”
Rule 43 (1) xxx xxx
xxx xxx
(2) In the case of a Government
servant retiring in accordance with
the provisions of these rules after
completing qualifying service of not
less than 10 years, the amount of
pension shall be appropriate amount
as set out below, namely:-…”
8. On perusal of the relevant provisions of Pension Rules,
1976, the qualifying service for grant of pension and other
retiral benefits is 10 years. Admittedly, the petitioner was
regularised on his service w.e.f 24.12.1986 and the
petitioner retired on 25.3.1995. The petitioner is thus not
entitled to pension under the provisions of Pension Rules,
1976.
9. The petitioner has approached this Court not
immediately after retirement from service i.e. 25.03.1995.
The petitioner has slept over his right and approached this
Court after a period of about 10 years with unexplained,
inordinate delay.
10. The Supreme Court, in Burn Standard Co. Ltd. & Others
Vs. Dinabandhu Majumdar & another1 observed as under:
“The very conduct of non-raising of
an objection in the matter by the
employee, in our view, should be
sufficient reason for the High Court,
not to entertain such applications on
grounds of acquiescence, undue delay
and laches.”
11. The Supreme Court, in Karnataka Power Corporation Ltd.
through its Chairman & Managing Director & another Vs.
K.Thangappan & another2 observed as under:
“Delay or laches is one of the factors
which is to be borne in mind by the
High Court when they exercise their
discretionary powers under Article 226
of the Constitution. In an appropriate
case the High Court may refuse to
invoke its extraordinary powers if
there is such negligence or omission
on the part of the applicant to assert
his right as taken in conjunction with
the lapse of time and other
circumstances, cause prejudice to the
opposite party. Even where fundamental
right is involved the matter is still
within the discretion of the Court as
pointed out in the Durg Prasad V.
Chief Controller of Imports and
exports. Of course, the discretion has
to be exercised judicially and
reasonably.”
12. The High Court, in exercise of its discretion, does not
ordinarily assist the tardy and the indolent and the
acquiescent and the lethargic as the belated approach may
certainly breach the rights of others.
13. Looking from all angles, this petition has no merit and
is accordingly dismissed.
JUDGE