Full Judgment Text
Civil Appeal No. 7068 of 2022
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7068 OF 2022
SUNITA BURMAN .… APPELLANT
Versus
THE COMMISSIONER, M.P. HOUSING AND
INFRASTRUCTURE DEVELOPMENT BOARD
AND OTHERS ….. RESPONDENTS
J U D G M E N T
HIMA KOHLI, J.
1. The appellant – widow of Late Munna Lal Burman, is aggrieved by the judgment
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dated 23 January, 2020, passed by the Division Bench of the High Court of Madhya
Pradesh, Principal Seat at Jabalpur in Writ Appeal No. 1600 of 2018 reversing the order
dated 06.09.2018, passed by the learned Single Judge in Writ Petition No. 95 of 2007
whereunder the respondent No. 1 – M.P. Housing and Infrastructure Development
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Board was directed to pay family pension and other retiral dues to her on the demise of
her husband.
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2. The admitted facts of the case are that on 28 April, 1977, Munna Lal Burman,
Signature Not Verified
husband of the appellant was engaged by the respondent No. 1 – Housing Board as a
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2022.10.14
16:13:48 IST
Reason:
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Muster Roll employee on daily wages. Vide office order dated 29 October, 1997, he
1 For short ‘Housing Board’
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Civil Appeal No. 7068 of 2022
was appointed in the work charged establishment of the Housing Board. While
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continuing to work in the establishment, Munna Lal Burman expired on 26 April, 2016.
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On 01 August, 2016 and 09 September, 2016, the appellant submitted applications to
the respondent No. 1 – Housing Board for grant of family pension which were turned
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down vide letter dated 14 October, 2016, with an observation that there was no
provision for grant of pension/family pension to employees working in the work charged
establishment. Aggrieved by the said decision, the appellant filed a writ petition
registered as Writ Petition No. 95 of 2017 before the High Court of Madhya Pradesh,
Principal Seat at Jabalpur praying inter alia for grant of family pension, retiral dues,
gratuity etc., on the demise of her husband. The said petition was allowed by the learned
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Single Judge, vide judgment dated 06 September, 2018 and the respondent No. 1 –
Housing Board was directed to fix the retiral dues and family pension payable to the
appellant in a time bound manner and release the arrears of family pension with interest.
The reasons that weighed with the learned Single Judge for allowing the writ petition are
as follows :-
"12. In the present matter, it is clear from the order of appointment dated
29.10.1997 that the provisions of M.P. Work-charged and Contingency Paid
Employees Rules were made applicable in the case of Late Munnalal. Regulation
5(d) of M.P, Gruha Nirman Mandal Regulations, 1998 provides that grant of
pension/family pension and death-cum-retirement benefits to the regular officers
and employees of the Board with effect from 01.07.1973 shall be regulated in
accordance with M.P. Civil Services (Pension) Rules, 1976.
13. The M.P. Housing and Infrastructure Development Board has adopted the
Regulations, 2015, which has been approved and confirmed by the State
Government vide order No.F.23- 3/15/18-6 Bhopal dated 17.04.2015. The
regulations 5(e) of the 2015 Regulations provides that the order of grant of
pension/family pension and death-cum-retirement benefit to the regular officers
and employees of the Board with effect from 01.07.1973 shall be regulated in
accordance with. the M.P. Civil Services (Pension) Rules, 1976. However, the
regular officers and servants of the Board who have been appointed, on or after
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Civil Appeal No. 7068 of 2022
Ist of January, 2005, shall be covered by new National Pension Scheme. Hence,
it is clear that the National Pension Scheme was not applicable to the deceased
employee, as he was not appointed on or after Ist January, 2005. Hence, the
mistake committed by the respondent-Board in deduction of Rs.1940/- from the
salary of late Munnalal under the National Pension Scheme, seems bonafide.”
3. Aggrieved by the aforesaid decision, the respondent No. 1 – Housing Board
preferred an appeal registered as Writ Appeal No.1600 of 2018 that was allowed by the
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Division Bench, vide judgment dated 23 January, 2020 and it was held that the
deceased husband of the appellant being a member of the work charged establishment,
was not entitled to pension as he could not be treated at par with the regular employees
of the respondent No. 1 – Housing Board.
4. Mr. S.K. Gangele, Senior Advocate appearing for the appellant argued that the
High Court has fallen into an error by holding that the appellant’s husband being a work
charged employee of the respondent No. 1 – Housing Board, is not entitled to pension.
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Placing reliance on the office order dated 29 October, 1997 issued by the respondent
No. 1 – Housing Board which refers to a decision taken to regularize Muster Roll
employees as per their seniority, it was submitted that the name of the appellant’s
husband featured at serial No.5 of the tabulated statement forming a part of the
aforesaid office order, which showed that he had become a regular employee of the
Housing Board and was covered under the provisions of the M.P. Work Charged and
Contingency Paid Employees Recruitment and Service Rules, 1977. Learned counsel
submitted that pension/family pension was payable to such an employee/his family
under Regulation 5(d) of the M.P. Griha Nirman Mandal Regulations, 1998 and there
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Civil Appeal No. 7068 of 2022
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was no justification for reversing the judgment dated 06 September, 2018, passed by
the learned Single Judge in favour of the appellant. Lastly, it was contended that the
impugned judgment runs contrary to the principles of law laid down in Prem Singh v.
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State of Uttar Pradesh and Others .
5. Opposing the aforesaid submission, Mr. R.C. Mishra, learned Senior Advocate
appearing for the respondent No.1 – Housing Board and its officers arrayed as
respondents No. 2 to 5 and Mr. Saurabh Mishra, learned Additional Advocate General
for the respondent No.6 – State of Madhya Pradesh supported the impugned judgment
and asserted that the appellant’s husband had not been regularized till the date of his
demise and had remained a work charged employee. Alluding to the very same office
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order dated 28 October, 1997, relied on by learned counsel for the appellant, it was
sought to be clarified that by virtue of the said order, Late Munna Lal Burman and other
similarly placed daily wage Muster Roll employees working in the respondent No. 1 –
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Housing Board for the period between 26 May, 1974 and 30 June, 1981, had been
appointed in the work charged establishment and in accordance with the terms and
conditions of their appointment, M.P Work Charged and Contingency Paid Employees
Recruitment and Service Rules was made applicable to such employees. Explaining
that the work charged establishment where the deceased was appointed, was a non-
pensionable establishment of the respondent No. 1 – Housing Board and he could have
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opted for the National Pension Scheme in terms of the order dated 02 July, 2015
which he didn’t, it was stated that the appellant is not entitled to receive family pension
2 (2019)10 SCC 516
3 For short ‘NPS’
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Civil Appeal No. 7068 of 2022
and the judgment in the case of Prem Singh (supra) had no application to the facts of
the instant case.
6. We have considered the submissions advanced by learned counsel for the
parties and perused the records including the relevant rules and regulations. The only
issue that arises for our consideration in the instant appeal is as to whether the
deceased husband of the appellant was a regular employee of the respondent No. 1 –
Housing Board and if not, would the appellant still be entitled to receive family pension if
the deceased had remained a work charged employee in the establishment of the
respondent No. 1- Housing Board till the date of his demise.
7. The respondent No.1 - Housing Board is a statutory and an autonomous body
established under the Madhya Pradesh Housing & Infrastructure Development Board
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(Amendment) Act, 1972 for implementation of housing schemes meant for the weaker
sections/lower income groups of society on a ‘no profit no loss basis’. Being a statutory
and an autonomous body, the Housing Board forms its own rules and policies that
govern the service conditions of its employees. The rules laid down by the State
Government for its employees are not automatically applicable to the employees of the
Housing Board unless specifically adopted by the Board. The same is demonstrable
from a perusal of Sections 14, 15 and 17 of the Housing Board Act (that deal with
appointment of officers and servants of the Board; lay down conditions of service of
officers and servants and empowers the Board to make service regulations in respect of
4 For short ‘the Housing Board Act’
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Civil Appeal No. 7068 of 2022
its officers and servants) and on examining the M.P. Civil Services (Pension) Rules,
1976. Rule 2(ii) of the aforesaid Rules clearly provides that the said rules shall not apply
to five categories of persons with ‘persons in a work-charged establishment’ mentioned
specifically in category (a) of the said Rule. Neither is there any provision made for grant
of pension to work charged employees in the M.P. Griha Nirman Mandal Regulations,
1998 or in the Madhya Pradesh Housing and Infrastructure Development Board
(Conduct of Business and Delegation of Powers) Regulation, 2015.
8. Being alive to the fact that there were no rules in place to regulate/govern the
service conditions of employees working in the work charged establishments of the
respondent No. 1 – Housing Board, the Board of Directors of the Housing Board had
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taken a conscious decision in its Meeting No. 229, held on 06 April, 2015, to adopt the
following rules:
i. Madhya Pradesh Work Charged and Contingency Paid
Employees Recruitment and Service Rules, 1975 (Excluding Rule 4
to 8);
ii. Madhya Pradesh Work Charged and Contingency Paid Employees
Leave Rules, 1977; and
iii. Work Charged and Contingency Paid Employees Gratuity Benefit
Rules, 1962.
9. For ready reference, the relevant abstract of the decision of the Board of
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Directors of the Housing Board held on 06 April, 2015, is extracted below:
“2. There is no rule or regulation framed or prescribed in relation to the regulation
of services of said work charged employees in the Board. Due to non-
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Civil Appeal No. 7068 of 2022
determination of separate conditions of service, difficulties arise in regulating their
services.
3. Therefore in order to regulate the services of work charged personnel working
in the Board adopting of the following rules notified by the Government it is
proposed –
(i) Model Rule "Madhya Pradesh ---------- Department Work-charged and
Contingency Paid Employees (Recruitment and Conditions of Service) Rules,
1975" (all rules except rule no. 4 to 8) made through Circular ' no. D-
34/444/1(three)/VOK/75 Bhopal dated 29.09.1975 of General Administration
Department of Government of Madhya Pradesh. (Appendix-1)
(ii) "M.P. Work-Charged and Contingency Paid Employees Leave Rules, 1972".
(Appendix-2)
(iii)"Work-Charged Staff and Contingency Paid Staff (Gratuity Benefits) Rules,
1962". (Appendix-3)
4. Work charged personnels working in the Board do not get the benefit of
pension, while in other works department employees of Work-Charged
establishment are getting pension under Madhya Pradesh (Work-Charged and
Contingency Paid Employees) Pension Rules, 1979. At present the said rules are
not relevant to the employees of the Board. M.P. Daily Wage Employee
(Condition of Rule), Rule 2013 (Appendix -4) has been adopted for the daily wage
employees of the Board by which they have been brought within purview of
National Pension Scheme regulated by PFRDA. For work charged employees
also pension is proposed under PFRDA brief description of which is as follows:
(l) The National Pension Scheme initiated by PFRDA, which has been
implemented in the State of Madhya Pradesh, with effect from 1st May, 2009 for
the domiciles of Madhya Pradesh,
(2) The employee can opt to be a member under National Pension Scheme and
can avail the benefit of pension.
(3) In case of an option given by the employee under sub-rule (2) above, a
contribution equivalent to ten percent shall be deducted from his wages and the
Government shall also contribute the equivalent amount and shall deposit it in the
permanent account of the employee and the consolidated amount and
permissible interest thereon shall be paid on his superannuation.”
10. It is clear from the above that the Madhya Pradesh (Work-Charged and
Contingency Paid Employees) Pension Rules, 1979 had not been adopted by the
respondent No. 1 – Housing Board and the M.P. Civil Services (Pension) Rules, 1976
did not cover the workers working in work charged establishments of the Housing Board.
The M.P. Work-charged and Contingency Paid Employees Pension Rules, 1979 was
also not made applicable to the work charged employees of the respondent No. 1 –
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Civil Appeal No. 7068 of 2022
Housing Board either in terms of the M.P. Griha Nirman Mandal Regulations, 1998 or
under the Madhya Pradesh Housing and Infrastructure Development Board (Conduct of
Business and Delegation of Powers) Regulation, 2015. Observing that the M.P. Daily
Wage Employee (Condition of Rule), Rule 2013 had been adopted for the daily wage
employees of the Housing Board thereby bringing them within the fold of the NPS, a
decision was taken to extend the very same Scheme to work charged employees as
well.
11. Pursuant to the aforesaid decision taken by the Board of Directors of the
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respondent No. 1 – Housing Board, an order dated 02 July, 2015 was issued to
regulate the services of the work charged employees by adopting the relevant rules of
the State Government as mentioned above and bringing them within the purview of the
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NPS managed by the Pension Fund Regulatory and Development Authority . Para 8 of
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the order dated 2 July, 2015 is relevant and reproduced herein below for ready
reference:
“8. National Pension Scheme, launched by P.F.R.D.A, has been made applicable to
Madhya Pradesh, which is effective for the domiciles of Madhya Pradesh from 1 May
2009. Pension under the National Pension Scheme, regulated by P.F.R.D.A, shall be
payable to Work-charged Employees of the Board as under, a brief description of which is
as follows:-
1) The employee may opt for becoming member of National Pension Scheme and avail
the benefit of pension.
2) In case of option given by an employee under the aforesaid Sub-Rule(1 ), contribution
equal to10% shall be deducted from his wages/salary, and an equal amount of
contribution shall be made by the Board, and deposited in his permanent Account and the
consolidated amount along with the permissible interest shall be payable to him upon his
superannuation. The contribution to the pension shall be payable under Account Head-
54.”
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12. In the course of arguments advanced before us on 19 September, 2020, we had
specifically enquired from learned counsel for the respondents as to whether the
5 For short ‘PFDRA’
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Civil Appeal No. 7068 of 2022
aforesaid Office Order was brought to the notice of the employees of the work charged
establishments of the respondent No. 1 – Housing Board to enable them to exercise
their option of becoming members of the NPS and whether the said employees including
the deceased husband of the appellant had applied for availing of the benefit under the
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NPS. In response thereto, an affidavit dated 15 September, 2022 has been filed on
behalf of the respondent no. 1 – Housing Board stating inter alia that the contents of the
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order dated 2 July, 2015, providing for an option under the NPS to the work charged
employees of the Housing Board was duly brought to the notice of all concerned, in
accordance with the directions issued at serial No.12 of the endorsement at the foot of
the said order that required the same to be displayed on the notice board. The affidavit
further states that in response to the aforesaid order calling for requisite options from all
the work charged employees of the Housing Board, out of 48 such employees, only 16
had opted to avail the benefit of NPS. Clause 8 of the said order clearly provides that if
an employee wants to opt for pension, he can do so by giving his option and thereafter,
10% of his payable salary will be deducted on a monthly basis from his account and the
respondent No. 1 – Housing Board will match the said amount by contributing its share
on a monthly basis. Thus, the only option that was made available to the work charged
employees of the respondent No. 1 – Housing Board was to exercise the option
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mentioned in para 8 of the order dated 02 July, 2015, namely, the NPS. However, as
per the records, during his life time, the appellant’s husband did not opt for the said
Scheme.
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Civil Appeal No. 7068 of 2022
13. As for the decision in the case of Prem Singh (supra) cited on behalf of the
appellant, the question raised in the said matter related to the validity of Rule 3(8) of the
Uttar Pradesh Retirement Benefits Rules, 1961 and Regulation 370 of the Civil Services
Regulations of Uttar Pradesh. In a backdrop where this Court had earlier affirmed the
decision of the High Court of Punjab and Haryana in the case of Kesar Chand v. State
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of Punjab , in relation to pari materia provisions enacted in the State of Punjab which
excluded computation of the period of work charged services from qualifying service for
grant of pension, a three Judge Bench of this Court examined several decisions on this
aspect and on perusing the Note appended to Rule 3(8) of the Uttar Pradesh Retirement
Benefits Rules, 1961 and Regulation 370 of the Civil Services Regulations, held that
since the service of the appellant in the said case had been regularized on a vacant
post, Rule 3(8) of the U.P. Retirement Benefits Rules, 1961 ought to be read down in
respect of the services rendered by him even prior to his regularization and the period
spent in the capacity of a charged employee/contingency paid fund employee or non-
pensionable establishment employee ought to be counted towards the qualifying service
for extending the benefit of pension to such employees.
14. The fact situation in the case in hand is entirely different. The deceased husband
of the appellant had remained a work charged employee till the date of his demise on
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26 April, 2016. His services had not been regularized. The Office Order dated 29
October, 1997 relied on by the appellant to urge that the services of the deceased
husband of the appellant had been regularized, is being misread as can be discerned
from the first para of the said order which states that daily wages Muster Roll employees
6 1988 SCC OnLine P&H 338
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Civil Appeal No. 7068 of 2022
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working between 26 May, 1974 to 30 June, 1981 and named therein were being
appointed in work charged establishments and further, that the M.P. Work Charged and
Contingency Paid Employees Recruitment and Service Rules, 1977 was made
applicable to them. We have noticed above that the aforesaid rules were never adopted
by the respondent No. 1 – Housing Board or extended to its work charged employees.
Being cognizant of the vacuum relating to the service conditions of the employees
working in its work charged establishments, the Board of Directors of the respondent
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No. 1 – Housing Board had deliberated over the matter and decided on 6 April, 2015 to
extend the benefit of pension to the said employees by bringing them within the purview
of the NPS and they were given an option to become a member of the said Scheme so
as to avail the benefit of pension. As her deceased husband had elected not to opt for
the said Scheme, the appellant cannot claim entitlement to payment of family pension
on his demise.
15. We therefore hold that the deceased husband of the appellant was not a regular
employee of the respondent No.1 – Housing Board. He had remained a work charged
employee in the establishment of the Housing Board till the date of his demise. Even
while serving in the said capacity, the appellant’s deceased husband could have opted
for pension under the NPS that was made available to the work charged employees of
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the respondent No.1 – Housing Board in terms of the order dated 02 July, 2015. But
he did not opt for the said Scheme. The appellant is, therefore, not entitled to receive
family pension from the respondent No. 1 – Housing Board.
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Civil Appeal No. 7068 of 2022
16. As a result of the aforesaid discussion, we do not find any reason to interfere with
the impugned judgment, which is upheld. The present appeal is, accordingly, dismissed
while leaving the parties to bear their own expenses.
.
…………….................................. J
[Dr Dhananjaya Y Chandrachud]
………..........................................J
[Hima Kohli]
NEW DELHI,
OCTOBER 14, 2022
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