Nathoolal Yadaw v. Government of Chhattisgarh & Ors.

HON'BLE SHRI R.N. CHANDRAKAR. J J) Sd/- R.N. Chandrakar Judge POST FOR ORDER ON .°>' NOVEIVIBER. 2009 Sd/- Dhirendra Mishra Judge 4^ HIGH COURT OF CHHATTJSGARH AT BILASPUR D.3. HON'BLE SHRS DHIRENDRA MISHRA. & HON'BLE SHRI R.N. CHANDRAKAR, JJ AppelJant Versus Respondents 1,

3. 4. Writ Appeal No. 67 of 2007 Nathootal Yadaw, son ofMakundram Yadaw, aged resident of Beerpara, At/post about 73 years, Sarangarh, District Raigarh (MP) (Now CG), Janpada Retired Panchayat, Accountant, Sarangarh, District Raigarh (CG) Govemment of Chhattisgarh, Through Secretery to Government, Panchayat and Rural Development Department, DKS Bhawan, Raipur (CG) Director of Panchayats and Social Welfare of Chhattisgarh, DKS Bhawan, Raipur (Chhattisgarh) Collector, Raigarh, District Raigarh (Chhattisgarh) Janpada Panchayat, Sarangarh, Through Chief Executive Officer, Janpada Panchayat, Sarangarh, District Raigarh (MP)(now Chhattisgarh) Present Mr. H.B. Agrawal, Sr. Advocate with Mrs. Meera Jaiswal, Advocatefor the appellant. Mr. Yashwant Singh Thakur, Dy. Advocate Genera! for the State. ORDER (Passed on 3' November, 2009) PerDhirendra Mishra. J

2. is directed against the order dated The petitioner's writ appeal 19.1.2007 passed in W.P.No.2270/92 whereby learned Single Judge has dismissed the writ petition of the petitioner for direction to the State and the Collector to accord permission for grant of pension, gratuity and other benefits, to which the petitioner may be legaliy entitied with interest @ 12% per annum, and to permit the petitioner to redeposit Rs.17,000/-, the contributory provident fund paid to him, and pension case be prepared as per Circular dated 20.6.1989 (Annexure-S). The petitioner was appointed as Lower Division Clerk (in short "LDC") in the year 1951 in Janpad Sabha, Sarangarh under the provisions of Central Provinces and Berar Local Government Act, 1948 (in short "the Act, 1948"). He retired from the post of LDC on 30.4.1992 from Janpad Panchayat, Sarangarh, however, he was denied payment ofpension. '%. •<!^~ ^\\ Mr. H.B. Agrawal, learned Sr. Advocate with Mrs. Meera Jaiswal, Advocate, appearing for the appellanVpetitioner, vehemently argued that appointment of the petitioner was under the Act, 1948 and thus, his sen/ice conditions would be governed by the Act, 1948 as the same has been saved under Section 386 of Madhya Pradesh Panchayats Act, 1962 (for brevity "the Act, 1962"). Section 70(1 )(c) of the Act, 1948 provides for grant of pension. Janpad Panchayat, Sarangarh vide its resolution dated 8.10.1991 resolved to grant pension to its employees and accordingly, approvai was sought from the State Govemment vide memo dated 6th April, 1992. The petitioner also submitted representation dated 12.11.1991, however, no approval has been accorded bythe State Govt. It is further submitted that the finding in para-12 of the impugned order that Section 386 of the Act, 1962 does not save Section 70 of the Act, 1948 and saves only action or benefits granted tQ the empioyees under i.ne provisions of the Act, 1948 before the Act, 1962 came into existence, is not in accordance with law. Service conditions of the petitioner are governed by the Act, 1948. Section 70(1 )(c) of the Act, 1948 specifically provides that subject to the ruies made under Section 182, the Janpada authority may with the general or special sanction of the State Government, grant them pensions or subscribe on their behalf for pension or gratuity. As per Section 386 of the Act, 1962, pay and allowances, pension and retirement benefits of all permanent officers and servants or other employees of the Mandal Panchayat, the Janpada Sabha or the Tahsi! Panchayat on the date on which this Act comes into force, has been saved. Similarly, proviso to Section 390 provides that the terms and conditions of service of such employees shall not until altered by a competent authority, be less favourable than those admissible to them while in service of the bodies aforesaid. Though the petitioner was a member of contributory provident fund and he was paid a sum of Rs.17,000/- approximately, but he is ready and willing to redeposit the same if his case for pension under the Act, 1948 is considered and the State accords approval to Sarangarh Panchayat to pay pension to its employees. Mr. Agrawal stressed upon the fact that by virtue of Section 386 of the Act, 1962, the provision of Section 70(1 )(c) of the Act, 1948, which entitles an employee of the Janpad Panchayat to pension L.-.-...—. ^- ^ subject to general or special sanction by the State Government, is saved. Since the Janpad Panchayat has already resolved to pay pension to its employees in the year 1991 and a request to this effect has already been made to the State Government. the State Government is bound to take decision in accordance with Section 70(1 )(c)oftheAct, 1948. Referring to document filed as Annexure-P with. the writ it was submitted that Janpad Panchayat, Hoshangabad petition, was accorded sanction by the State Government for paying pension to its employees.

6. On the other hand, Mr. Yashwant Singh Thakur, learned Dy. Advocate General for the State, supported the impugned order.

8. We have heard iearned counsel for the parties and perused the record of the writ petition and have also gone through the impugned order. Learned Single Judge after elaborately recording the argumente the petitioner and the advanced by leamed counsei rsspondents, after examining the relevant provisions of Section 70(1 )(c) of the Act, 1948 and Section 386 & 390 of the Act, 1962, concluded that Section 386 ofthe Act, 1962 does not save Section 70 of the Act, 1948 and it saves only the action or benefits granted to the employees under the provisions of the Act, 1948 before the In para-12 ofthe impugned order it has Act, 1962 came into force. been observed thus: 1 am of "12. After having gone theough the provisions of the the considered view that Act and Rules, Section 386 of the Act, 1962 does not save Section 70 of the Act, 1948. Sectton 386 of the Act, 1962 saves only the action or benefits granted to the emptoyees under the provisions of the Act, 1948 before the Act, 1962 came fnto existence. Section 70 of the Act, 1948 pfovictes for making payment ofpension, subj'ect firstiy, subject to ruies macte to certain conditions, framed. rules were never section 182, Secondly, with a 'general' or 'specia!' sanction fyom them pension or ffie State Government for pension and gratuity subscribe on thefr beh&lf which were never granted by the general sanctbn or by any speciai sanciion in the preseni case." to grant

9. The judgment of the Division Bench of the High Court of Judicature in the matter of Janpad Panchayat Tatha Zi!a at Jabaipur Panchayat Karmchaii Sangh and others Vs. State of M.P. and 4 ^ others, reported in 1998(1) JLJ 336, has been referred with approval by the learned Single Judge, wherein it was heid that the empioyees working in Panchayats from 1962 onwards are the empioyees of the Panchayats and they cannot be treated as the ernployees ofthe State Government by any stretch of imagination. Janpad Panchayat Empioyees The M.P. (Qualiflcations, Recruitment and Conditions of Service) Rules, 1976 (in short "the Ruies, 1976"} do not provide for payment of pension and the Ruies, 1976 provides for payment ofgratuity only. Referring to the above judgment, it has been observed in the impugned order that the said judgment is binding on the present State of Chhattisgarh also as the same was pronounced before creation of the State of Chhattisgarh and the petitioner retired in theyear1992.

10. The argument based on document of Annexure P, whereby the Government of MP accorded permission to the employees of Janpad Sabha, Hoshangabad, to join pension scheme vide its is also of no memo dated 10.8.1960 addressed to the Collector, help to the appellant as since then the Act, 1948 has been repelled and therefore, the question of according sanction by the State Govemment as per provisions of Section 70(1 )(c) ofthe Act, 1948 at the time of retirement of the appeiiant/petitioner in the year1992 does notarise.

11. After carefuliy examining the relevant provisions of the Act, 1948 and submissions advanced on behalf of leamed counsel for the respective parties. we are of the opinion that the learned Single Judge has rightly held that Section 386 of the Act, 1962 does not save Section 70(1 )(c) ofthe Act, 1948; since the petitioner retired on 30.4.1992 when the Act, 1962 was in force and there was no provision for payment of pension to the employees of Zila/Janpad Panchayat, he does not acquire any right under Section 70 of the Act, 1948. There is no iilegality or infirmity in the impugned order vi/arranting interference in appeal, the same being without substance deserves to be dismissed and is, accordingly, dismissed. ^ Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ^