ORDER

1. This petition was originally filed before the State Administrative Tribunal, Jabalpur on 10.12.2001, however, on account of abolition of the Tribunal, this petition has been received by this Court for its adjudication.

2. By this petition, the petitioner is seeking relief for quashment of order dated 23.8.2001 (Annexure A-12) with a further direction to the respondents to pay full pension, gratuity and other retiral benefits to the petitioner with interest at the rate of 18% per annum.

3. In brief, the case of the petitioner is that he was working as pump operator in the Water Resources Department of the State of Madhya Pradesh and was posted in Water Resources Sub-Division No.3 at Shahdol under respondent No.3. He was superannuated at the age of 60 years w.e.f. 31.8.2001. It has been put forth in the petition that the petitioner was initially appointed as pump operator on 1.10.1980 and he worked continuously till his superannuation, i.e., 31.8.2001. Thus, the petitioner has put nearby 20 years and 11 months of his service. The petitioner has filed Annexure P-l which is a gradation list dated 1.1.1984 in which the name of petitioner has been shown at serial No. 25 and in column No.6 which is a column of date of appointment, 1.10.1980 his date of appointment has been mentioned.

4. The post of pump operator in Water Resources Department is work charged establishment post. In that regard the petitioner has filed Annexure P-2. According to the petitioner, his service conditions are governed by M.P. Irrigation Department Work Charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1977 (in short "the Rules of 1977"). The contingency paid employee has been defined under rule 2(b) of the Rules and according to which a contingency paid employee would mean 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 contingency employees who are employed for certain period only in the year.

5. According to the petitioner, his appointment on the post of pump operator was on full time basis and he was being paid wages on monthly basis which was from contingency funds of the department and, therefore, his services were governed by the Rules of 1977.

6. Learned counsel for the petitioner, by inviting my attention to rule 6(2)(c) of the Rules of 1977 has submitted that employees who are appointed after 1st January, 1974 on completion of 10 years of contingency service by them become eligible for the status of permanent work charged contingency paid employee. Since the petitioner had worked for more than 20 years, in terms of rule 6(2)(c) of the Rules of 1977, he had become permanent work charged contingency paid employee in October, 1990. It has also been put forth by learned counsel for the petitioner that the petitioner does qualify the requisite qualifications for the appointment on the post of pump operator as given in Schedule-II of the Revision of Pay Rules, 1984, since he was possessing qualification of High School fail, i.e., 9th class pass and he had trained from ITI, Rewa. The requisite qualification for pump operator is 8th class pass and one year training certificate from ITI. In this regard, my attention has been drawn to Annexure P-6 which is a Schedule attached to the Rules of 1977.

7. It has been further contended by learned counsel for the petitioner that General Administration Department of the State Government issued a circular dated 15.1.1985 (Annexure A-7) for regularisation of daily wages employees. The contention of learned counsel is that in consequence to Annexure P-7 vide order dated 7.3.1986 (Annexure A-8) 5879 additional posts were created out of which 67 posts were of pump operator the State Government issued another circular dated 9.10.1990 (Annexure P-9) whereby the entire process of regularisation was to be completed latest by 31.12.1987. The contention of Shri Pathak, learned counsel is that if the respondents wasted time in correspondence and issued regularisation order of the petitioner on 8.4.1997 (Annexure A-10) the petitioner cannot be made responsible for it. Indeed as per circular Annexure A-9, order for regularisation ought to have been issued giving benefit to the petitioner w.e.f. 31.12.1987 and if the order was issued on 8.4.97 vide Annexure A-10, the petitioner cannot be penalised for it. Shri Pathak, learned counsel for the petitioner by inviting my attention to Annexure A-11 which is an order regularising the services of similarly situated co-employees (pump operators), has submitted that they were regu1arised on the posts of pump operator w.e.f. 31.12.1987.

8. Learned counsel for the petitioner has further placed emphasis on Rule 2(c) M.P. (Work Charged and Contingency Paid Employees) Pension Rules, 1979 (in short 'the Rules of 1979') which defines permanent employee and, according to the said Rules, a permanent employee means a contingency paid employee or work charged employee who has completed IS years of service on or after 1974. Learned counsel, by inviting my attention to impugned order Annexure A/I2 mentioning notification of the State Government dated 8th January, 1980 and further mentioning the circular of Finance Department dated 13.9.1982, has submitted that the qualifying service to obtain the pension is 10 years after 1.1.1974. According to learned counsel, even if the qualifying service of 15 years as envisaged under rule 2(c) of the Rules of 1979 is made applicable then also petitioner has become entitled for the pension, since he was appointed on 1.10.1980 as it appears from the gradation list dated 1.1.1984 (Annexure P-l). On these premised submissions it has been contended by learned counsel for the petitioner that the impugned order Annexure P-12 dated 23.8.2001 informing the petitioner that he is not entitled for the pension, is contrary to the law and respondents be directed to give benefit of pension to the petitioner.

9. On the other hand, it has been submitted by Shri Ashok Agrawal, learned Govt. Advocate, that the order of regularisation Annexure A-10 regularising the petitioner w.e.f. 8.4.1997 was never challenged by him saying that it should be given effect to from an earlier date and, therefore, now the petitioner cannot be allowed to raise all these grounds. It has also been put forth by him that the petitioner was employed as a daily wager in the year 1980. The vouchers relating to the year 1980 to 1985 are not traceable as the Division No.1 has been closed. Photocopy of payment of voucher for the month of November, 1985 has been annexed as Annexure R-2 whereas another voucher for the period w.e.f 1.7.1997 to 23.7.1997 is Annexure R-3. Thereafter the service of the petitioner were converted into work charged contingency employee and the copy of payment of voucher is Annexure R -4 and, therefore, the petitioner continued from work charged contingency w.e.f. 23.7.1997 till he was superannuated on 31.8.2001(Annexure R-5). The contention of learned Govt. Advocate is that since the petitioner continued as daily wager from 1982 to 23.4.1997 and he was only on 23.4.1997 assigned as work charged contingency establishment, therefore, since the petitioner had not completed 10 years of service, he is not entitled for the pension and, hence, this petition be dismissed.

10. In reply, it has been contended by Shri Pathak, learned counsel for the petitioner, that Annexure A-10 dated 8.4.1997 regularising the services of the petitioner as work charged establishment would not come in his way because in this order no where it has been mentioned that he would not be entitled for any pension and, therefore, there was no necessity for the petitioner to challenge that order. It has also been put forth by him that in para 6.2 of the petition necessary specific pleading demonstrating the right of the petitioner to obtain pension has been pleaded and these pleadings of petitioner are not specifically denied in the return and, therefore, under the law, they should be deemed to be admitted. To bolster his contention, learned counsel has placed reliance on two decisions of the Supreme Court, they are Smt. Naseem Bano v. State of U.P. and others [AIR 1993 SC 2592] and Bharat Singh v. State of Haryana [AIR 1988 SC 2181]. Learned counsel has also invited my attention to order sheet dated 9.3.2004 and has submitted that this Court directed the respondents to file the affidavit of competent officer in order to demonstrate that in what category the petitioner was employed and how his claim would be fit into the compartments of contingent paid employees. It was directed to file necessary documents in support of the affidavit but the respondents did not care to file affidavit of any of the officer with supporting documents and, therefore, it would be deemed that the petitioner was not a daily wager but the payment was being made to him from regular establishment. Learned counsel has also placed reliance on the decision of the Supreme Court in Ram Kumar Agrawal v. State of M.P. and others [1995 Supp.(3) SCC 67].

11. After having heard learned for the parties, I am of the view that this petition deserves to be allowed.

12. There is no denial in the return that the petitioner was employed as daily rated employee on 1.10.1980. In this regard Annexure A-8 which is a gradation list dated 1.1.1984 is quite clear in which 1.10.1980 the date of appointment of the petitioner has been mentioned. Annexure A/2 is another document demonstrating that the post of pump operator in Water Resources Department is a work charged establishment post. Rule 2(b) of the Rules of 1977 contemplates about the contingency paid employees which reads thus:

"2(b). 'Contingency paid employee' 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 Contingency", excluding the employees who are employed for certain period only in the year."

On bare perusal of Annexure R-2, it is gathered that the payment made to the petitioner from 1.11.1985 to 30.11.1985 was paid to him on monthly basis. Similarly in Annexure R-3 also the payment has been made from 1.4.1997 to 23.7.1997 in the same manner. Apart from this, there is no specific denial of the specific averments made by the petitioner in para 6.2 of his petition, in the return filed by the respondents. This Court on 9.3.2004 also directed the respondents to submit affidavit of competent officer along with documents in order to show that in what category the petitioner was employed and how his claim would be fit into the compartments on contingent paid employees. Since no affidavit along with documents has been filed, for all practical purposes, it would be deemed that the payment was made to the petitioner on monthly basis and thus, the petitioner became permanent employee after completion of 10 years of his service and, therefore, under rule (6)(2)(c) of the Rules of 1977 the status of petitioner became permanent work charged contingency paid employee. Since permanent status, as pleaded by the petitioner in para 6.2 his petition, has not been specifically denied by the respondents, they would be deemed to be admitted. In that context it would be apposite to rely the decisions of Smt. Naseem Bano and Bharat Singh (supra).

13. The State Government issued circular dated 15.1.1985 (Annexure A-7) by giving specific direction to regulmise the services of the daily wages employees and thereafter again the instructions were issued vide Annexure A-9 that since the daily wages employees are serving for a long duration, it would be deemed that their services are satisfactory and there is no necessity to take any written examination or interview in that regard. As no confidential report of these employees are kept in order to ascertain their work, therefore, list was prepared treating that their work is satisfactory. It would be appropriate to quote clause (3) of the said Instruction which reads thus:

^^2- pwafd vf/kdrj nSfud osruHkksxh deZPkkjh dbZ o”kks± ls dk;Z dj jgs gSa] ,slh fLFkfr esa ;g ekuuk mfpr gksxk fd mudk dk;Z larks”ktud jgk gS] blfy, dksbZ fyf[kr ijh{kk ;k lk{kkRdkj ysus dh vko’;drk ugha gS] buds xksiuh; çfrosnu Hkh ugha j[ks tkrs] ftlds vk/kkj ij buds dk;Z dk ewY;kadu fd;k tk lds] vr% p;u lwfp;ksa ;g eku dj rS;kj dh tk, fd budk dk;Z larks”ktud jgkA

Accordingly it was directed by the State Government to scrutinize the matter and the list be prepared and appointment order be issued latest by 31.12.1987. It would be condign to re-write the said clause-2 as under:

^^2- Ñi;k mDr çfØ;k ds vuqlkj Nkuchu dj p;u lwfp;ksa esa lfEefyr O;fDr;ksa ds fu;qfDr vkns’k vko’;d :i ls fnukad 31-12-87 rd ikfjr dj nsaA e/; çns’k ds jkT;iky ds uke ls rFkk vkns’kkuqlkj gLrk- ds-,u- JhokLro] mi lfpo] e/;çns’k ‘kklu dkfeZd] ç’kkufld lq/kkj ,oa çf’k{k.k foHkkx**

14. Thereafter, some orders were passed directing appointment in accordance to the instructions given in Annexure A-9. One order has been placed on record as Annexure A-11 dated 31.12.1987 giving appointment to some of the pump operators whose names are referred in this document under work charged establishment, they were appointed w.e.f. 1.1.1988. Indeed, the petitioner ought to have been appointed accordingly from this date. But, if no such order has been issued in favour of the petitioner, he is not at fault and he cannot be allowed to suffer for the inaction of the respondents. The submission of learned Govt. Advocate is that the petitioner challenged his order of regulations Annexure A-10 regularising him w.e.f 8.4.1997. This argument is devoid of any substance, since it was for the respondents to have issued similar type of order in favour of petitioner as they have issued in favour of similarly situated other employees and one of the order is Annexure A-11 dated 31.12.1987 by which certain pump operators were given appointment w.e.f 1.1.1988. Who prevented the respondents to pass suitable order in favour of the petitioner in the year 1987 as mentioned in Annexure A-9 which clearly directed to issue orders latest by 31.12.1987. Judging from all the angles, the petitioner was also entitled to be given appointment as certain similarly situated other pump operators were appointed.

15. It be seen that for completing qualifying service of 10 years for obtaining pension, no written order is necessary and after completing the requisite ten years of service, an employee automatically becomes a member as envisaged in rule 2(c) of Pension Rules of 1979 and becomes entitled for the pension.

16. Since the petitioner acquired the status of permanent work charged contingency paid employee and was a permanent employee in terms of rule 6(1) and 2(c) of the Rules of 1977 and he had already completed more than 10 years of his service under the work charged establishment, therefore, under the Pension Rules of 1979 he is entitled for the pension, as he retired on 27.8.2001. The order of respondent No.3 directing and intimating the petitioner that he is not entitled for the pension vide Annexure P-12 dated 23.8.2001 is, accordingly, quashed and it is held that the petitioner is entitled for the pension.

17. Resultantly, this petition is allowed. The respondents shall bear the costs of the petitioner. Counsel fee Rs.2,000/- if pre-certified.

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