Sunita Burman vs The Commissioner, M.P. Housing and Infrastructure Development Board and Others

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

JUDGMENT

HIMA KOHLI, J.

1. The appellant – widow of Late Munna Lal Burman, is aggrieved by the judgment

dated 23rd 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

Board1 was directed to pay family pension and other retiral dues to her on the demise of

her husband.

2. The admitted facts of the case are that on 28 th April, 1977, Munna Lal Burman,

husband of the appellant was engaged by the respondent No. 1 – Housing Board as a Signature Not Verified Digitally signed by GULSHAN KUMAR ARORA Date: 2022.10.14 16:13:48 IST

Muster Roll employee on daily wages. Vide office order dated 29th October, 1997, he Reason:

1 For short ‘Housing Board’ Page 1 of 12 Civil Appeal No. 7068 of 2022

was appointed in the work charged establishment of the Housing Board. While

continuing to work in the establishment, Munna Lal Burman expired on 26 th April, 2016.

On 01st August, 2016 and 09th September, 2016, the appellant submitted applications to

the respondent No. 1 – Housing Board for grant of family pension which were turned

down vide letter dated 14th 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

Single Judge, vide judgment dated 06th 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

Page 2 of 12 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

Division Bench, vide judgment dated 23rd 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.

Placing reliance on the office order dated 29 th 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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was no justification for reversing the judgment dated 06 th 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.

State of Uttar Pradesh and Others2.

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

order dated 28th 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 –

Housing Board for the period between 26 th May, 1974 and 30th 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

opted for the National Pension Scheme 3 in terms of the order dated 02 nd 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’ Page 4 of 12 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

(Amendment) Act, 19724 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’ Page 5 of 12 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

taken a conscious decision in its Meeting No. 229, held on 06 th 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

Directors of the Housing Board held on 06th 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-

Page 6 of 12 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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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

respondent No. 1 – Housing Board, an order dated 02 nd 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

NPS managed by the Pension Fund Regulatory and Development Authority 5. Para 8 of

the order dated 2nd 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.”

12. In the course of arguments advanced before us on 19 th September, 2020, we had

specifically enquired from learned counsel for the respondents as to whether the 5 For short ‘PFDRA’ Page 8 of 12 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

NPS. In response thereto, an affidavit dated 15 th September, 2022 has been filed on

behalf of the respondent no. 1 – Housing Board stating inter alia that the contents of the

order dated 2nd 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

mentioned in para 8 of the order dated 02 nd 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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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

of Punjab6, 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

26th April, 2016. His services had not been regularized. The Office Order dated 29 th

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 Page 10 of 12 Civil Appeal No. 7068 of 2022

working between 26th May, 1974 to 30th 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

No. 1 – Housing Board had deliberated over the matter and decided on 6 th 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

the respondent No.1 – Housing Board in terms of the order dated 02 nd 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.

Page 11 of 12 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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