SUNITA BURMAN versus THE COMMISSIONER, M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD AND OTHERS on 14 October 2022

[2022] 14 S.C.R. 973

SUNITA BURMAN

v.

THE COMMISSIONER, M.P. HOUSING ANDINFRASTRUCTURE DEVELOPMENT BOARD AND OTHERS

(Civil Appeal No. 7068 of 2022)

OCTOBER 14, 2022

[DR DHANANJAYA Y CHANDRACHUD ANDHIMA KOHLI, JJ.]

Family Pension – Retiral Dues – Entitlement to – DivisionBench of High Court in Writ Appeal reversed order passed by SingleJudge in Writ Petition whereunder Respondent No.1-Housing Boardwas directed to pay family pension and other retiral dues to her ondemise of her husband – Issue as to whether deceased husband ofappellant was a regular employee of respondent No.1-HousingBoard and if not, would appellant still be entitled to receive familypension if the deceased had remained a work charged employee inthe establishment of respondent No.1- Housing Board till the dateof his demise – Held: The deceased husband of appellant was not aregular employee of respondent No.1-Housing Board – He hadremained a work charged employee in the establishment of HousingBoard till the date of his demise – Being cognizant of the vacuumrelating to service conditions of the employees working in its workcharged establishments, respondent No.1-Housing Board had toextend the benefit of pension to the said employees by bringingthem within purview of the National Pension Scheme (NPS) andthey were given an option to become a member of the said Schemeso as to avail the benefit of pension – As her deceased husbandhad elected not to opt for the said Scheme, the appellant cannotclaim entitlement to payment of family pension on his demise fromrespondent No.1-Housing Board – Madhya Pradesh Work Chargedand Contingency Paid Employees Recruitment and Service Rules,1975 –Work Charged and Contingency Paid Employees GratuityBenefit Rules, 1962 – Madhya Pradesh Work Charged andContingency Paid Employees Leave Rules, 1977.

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ADismissing the appeal, the Court

HELD:1.1. An affidavit dated 15th September, 2022 hasbeen filed on behalf of the respondent no.1-Housing Board statinginter alia that the contents of the order dated 2nd July, 2015,providing for an option under the National Pension Scheme (NPS)Bto the work charged employees of the Housing Board was dulybrought to the notice of all concerned, in accordance with thedirections issued at serial No.12 of the endorsement at the footof the said order that required the same to be displayed on thenotice board. The affidavit further states that in response to theaforesaid order calling for requisite options from all the workCcharged employees of the Housing Board, out of 48 suchemployees, only 16 had opted to avail the benefit of NPS. Clause8 of the said order clearly provides that if an employee wants toopt for pension, he can do so by giving his option and thereafter,10% of his payable salary will be deducted on a monthly basisDfrom his account and the respondent No.1-Housing Board willmatch the said amount by contributing its share on a monthlybasis. Thus, the only option that was made available to the workcharged employees of the respondent No.1-Housing Board wasto exercise the option mentioned in para 8 of the order dated02nd July, 2015, namely, the NPS. However, as per the records,Eduring his life time, the appellant’s husband did not opt for thesaid Scheme. [Para 12][982-E-H]

2.1. The deceased husband of the appellant had remaineda work charged employee till the date of his demise on 26th April,2016. His services had not been regularized. The Office OrderFdated 29th October, 1997 relied on by the appellant to urge thatthe services of the deceased husband of the appellant had beenregularized, is being misread as can be discerned from the firstpara of the said order which states that daily wages Muster Rollemployees working between 26th May, 1974 to 30th June, 1981and named therein were being appointed in work chargedGestablishments and further, that the M.P. Work Charged andContingency Paid Employees Recruitment and Service Rules,1977 was made applicable to them. However, the aforesaid ruleswere never adopted by the respondent No. 1 – Housing Boardor extended to its work charged employees. Being cognizant ofHthe vacuum relating to the service conditions of the employeesworking in its work charged establishments, the Board of Directors of respondent No.1-Housing Board had deliberatedover the matter and decided on 6th April, 2015 to extend thebenefit of pension to the said employees by bringing them withinthe purview of the NPS and they were given an option to becomea member of the said Scheme so as to avail the benefit of pension.As her deceased husband had elected not to opt for the saidScheme, the appellant cannot claim entitlement to payment offamily pension on his demise. [Para 14][983-E-H; 984-A-B]

2.2. The deceased husband of the appellant was not aregular employee of the respondent No.1 – Housing Board. Hehad remained a work charged employee in the establishment ofthe Housing Board till the date of his demise. Even while servingin the said capacity, the appellant’s deceased husband could haveopted for pension under the NPS that was made available to thework charged employees of the respondent No.1 – HousingBoard in terms of the order dated 02nd July, 2015. But he didnot opt for the said Scheme. The appellant is, therefore, notentitled to receive family pension from the respondent No.1-Housing Board. [Para 15][984-C-D]

Prem Singh v. State of Uttar Pradesh and Others (2019)10 SCC 516 : [2019] 11 SCR 1075 – distinguished.

Kesar Chand v. State of Punjab 1988 SCC OnLineP&H 338 – referred to.

Case Law Reference

[2019] 11 SCR 1075distinguishedPara 4

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7068of 2022.

From the Judgment and Orders dated 23.01.2020 of the HighCourt of Madhya Pradesh, Main Seat at Jabalpur in Writ Appeal No.1600 of 2018.

Prathvi Raj Chauhan, Ms. Priya Sharma, Arup Banerjee, Advs.for the Appellant.

Saurabh Mishra, AAG, R. C. Mishra, Sr. Adv., Ilin Saraswat,Ms. Ananya Mishra, Mahendra Kumar, Ms. Ilma Saifi, Rajnish Kumar A

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AJha, Ms. Mrinal Gopal Elker, Ms. Anuradha Mishra, Ankit Mishra, Advs.for the Respondents.

The Judgment of the Court was delivered by HIMA KOHLI, J.

B1. The appellant – widow of Late Munna Lal Burman, is aggrievedby the judgment dated 23[rd] January, 2020, passed by the Division Benchof the High Court of Madhya Pradesh, Principal Seat at Jabalpur in WritAppeal No. 1600 of 2018 reversing the order dated 06.09.2018, passedby the learned Single Judge in Writ Petition No. 95 of 2007 whereunderthe respondent No. 1 – M.P. Housing and Infrastructure DevelopmentCBoard[1] was directed to pay family pension and other retiral dues to heron 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 therespondent No. 1 – Housing Board as a Muster Roll employee on dailyDwages. Vide office order dated 29[th] October, 1997, he was appointed inthe work charged establishment of the Housing Board. While continuingto work in the establishment, Munna Lal Burman expired on 26[th] April,2016. On 01[st] August, 2016 and 09[th] September, 2016, the appellantsubmitted applications to the respondent No. 1 – Housing Board forEgrant of family pension which were turned down vide letter dated14[th] October, 2016, with an observation that there was no provision forgrant of pension/family pension to employees working in the work chargedestablishment. Aggrieved by the said decision, the appellant filed a writpetition registered as Writ Petition No. 95 of 2017 before the High Courtof Madhya Pradesh, Principal Seat at Jabalpur praying inter alia forFgrant of family pension, retiral dues, gratuity etc., on the demise of herhusband. The said petition was allowed by the learned Single Judge,vide judgment dated 06[th] September, 2018 and the respondent No. 1 –Housing Board was directed to fix the retiral dues and family pensionpayable to the appellant in a time bound manner and release the arrearsGof family pension with interest. The reasons that weighed with thelearned Single Judge for allowing the writ petition are as follows :- “12. In the present matter, it is clear from the order of appointmentdated 29.10.1997 that the provisions of M.P. Work-charged and Contingency Paid Employees Rules were made applicable in thecase of Late Munnalal. Regulation 5(d) of M.P, Gruha NirmanMandal Regulations, 1998 provides that grant of pension/familypension and death-cum-retirement benefits to the regular officersand employees of the Board with effect from 01.07.1973 shall beregulated in accordance with M.P. Civil Services (Pension) Rules,1976.

13. The M.P. Housing and Infrastructure Development Boardhas adopted the Regulations, 2015, which has been approved andconfirmed by the State Government vide order No.F.23- 3/15/18-6 Bhopal dated 17.04.2015. The regulations 5(e) of the 2015Regulations provides that the order of grant of pension/familypension and death-cum-retirement benefit to the regular officersand employees of the Board with effect from 01.07.1973 shall beregulated in accordance with. the M.P. Civil Services (Pension)Rules, 1976. However, the regular officers and servants of theBoard who have been appointed, on or after Ist of January, 2005,shall be covered by new National Pension Scheme. Hence, it isclear that the National Pension Scheme was not applicable to thedeceased employee, as he was not appointed on or after Ist January,2005. Hence, the mistake committed by the respondent-Board indeduction of Rs.1940/- from the salary of late Munnalal under theNational Pension Scheme, seems bonafide.”

3. Aggrieved by the aforesaid decision, the respondent No. 1 –Housing Board preferred an appeal registered as Writ Appeal No.1600of 2018 that was allowed by the Division Bench, vide judgment dated23[rd] January, 2020 and it was held that the deceased husband of theappellant being a member of the work charged establishment, was notentitled to pension as he could not be treated at par with the regularemployees of the respondent No. 1 – Housing Board.

4. Mr. S.K. Gangele, Senior Advocate appearing for the appellantargued that the High Court has fallen into an error by holding that theappellant’s husband being a work charged employee of the respondentNo. 1 – Housing Board, is not entitled to pension. Placing reliance on theoffice order dated 29[th] October, 1997 issued by the respondent No. 1 –Housing Board which refers to a decision taken to regularize MusterRoll employees as per their seniority, it was submitted that the name ofthe appellant’s husband featured at serial No.5 of the tabulated statement AB

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Aforming a part of the aforesaid office order, which showed that he hadbecome a regular employee of the Housing Board and was coveredunder the provisions of the M.P. Work Charged and Contingency PaidEmployees Recruitment and Service Rules, 1977. Learned counselsubmitted that pension/family pension was payable to such an employee/his family under Regulation 5(d) of the M.P. Griha Nirman MandalBRegulations, 1998 and there was no justification for reversing thejudgment dated 06[th] September, 2018, passed by the learned Single Judgein favour of the appellant. Lastly, it was contended that the impugnedjudgment runs contrary to the principles of law laid down in Prem Singhv. State of Uttar Pradesh and Others[2].

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5. Opposing the aforesaid submission, Mr. R.C. Mishra, learnedSenior Advocate appearing for the respondent No.1 – Housing Boardand its officers arrayed as respondents No. 2 to 5 and Mr. SaurabhMishra, learned Additional Advocate General for the respondent No.6 –State of Madhya Pradesh supported the impugned judgment and assertedDthat the appellant’s husband had not been regularized till the date of hisdemise and had remained a work charged employee. Alluding to thevery same office order dated 28[th] October, 1997, relied on by learnedcounsel for the appellant, it was sought to be clarified that by virtue ofthe said order, Late Munna Lal Burman and other similarly placed dailywage Muster Roll employees working in the respondent No. 1 – HousingEBoard for the period between 26[th] May, 1974 and 30[th] June, 1981, hadbeen appointed in the work charged establishment and in accordancewith the terms and conditions of their appointment, M.P Work Chargedand Contingency Paid Employees Recruitment and Service Rules wasmade applicable to such employees. Explaining that the work chargedFestablishment where the deceased was appointed, was a non-pensionableestablishment of the respondent No. 1 – Housing Board and he couldhave opted for the National Pension Scheme[3] in terms of the order dated02[nd] July, 2015 which he didn’t, it was stated that the appellant is notentitled to receive family pension and the judgment in the case of Prem Singh (supra) had no application to the facts of the instant case.G

6. We have considered the submissions advanced by learnedcounsel for the parties and perused the records including the relevantrules and regulations. The only issue that arises for our consideration in 2 (2019)10 SCC 516H3 For short ‘NPS’

the instant appeal is as to whether the deceased husband of the appellantwas a regular employee of the respondent No. 1 – Housing Board and ifnot, would the appellant still be entitled to receive family pension if thedeceased had remained a work charged employee in the establishmentof the respondent No. 1- Housing Board till the date of his demise.

7. The respondent No.1 - Housing Board is a statutory and anautonomous body established under the Madhya Pradesh Housing &Infrastructure Development Board (Amendment) Act, 1972[4] forimplementation of housing schemes meant for the weaker sections/lowerincome groups of society on a ‘no profit no loss basis’. Being a statutoryand an autonomous body, the Housing Board forms its own rules andpolicies that govern the service conditions of its employees. The ruleslaid down by the State Government for its employees are not automaticallyapplicable to the employees of the Housing Board unless specificallyadopted by the Board. The same is demonstrable from a perusal ofSections 14, 15 and 17 of the Housing Board Act (that deal withappointment of officers and servants of the Board; lay down conditionsof service of officers and servants and empowers the Board to makeservice regulations in respect of its officers and servants) and onexamining the M.P. Civil Services (Pension) Rules, 1976. Rule 2(ii) ofthe aforesaid Rules clearly provides that the said rules shall not apply tofive categories of persons with ‘persons in a work-chargedestablishment’ mentioned specifically in category (a) of the said Rule.Neither is there any provision made for grant of pension to work chargedemployees in the M.P. Griha Nirman Mandal Regulations, 1998 or in theMadhya 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 toregulate/govern the service conditions of employees working in the workcharged establishments of the respondent No. 1 – Housing Board, theBoard of Directors of the Housing Board had taken a conscious decisionin its Meeting No. 229, held on 06[th] April, 2015, to adopt the followingrules:

i.Madhya Pradesh Work Charged and Contingency PaidEmployees Recruitment and Service Rules, 1975 (ExcludingRule 4 to 8); 4 For short ‘the Housing Board Act’

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Aii. Madhya Pradesh Work Charged and Contingency PaidEmployees Leave Rules, 1977; and

iii. Work Charged and Contingency Paid Employees GratuityBenefit Rules, 1962.

9. For ready reference, the relevant abstract of the decision ofBthe Board of Directors of the Housing Board held on 06[th] April, 2015, isextracted below:

“2. There is no rule or regulation framed or prescribed in relationto the regulation of services of said work charged employees inthe Board. Due to non-determination of separate conditions ofCservice, difficulties arise in regulating their services.

3. Therefore in order to regulate the services of work chargedpersonnel working in the Board adopting of the following rulesnotified by the Government it is proposed –

(i) Model Rule “Madhya Pradesh -------- Department Work-charged and Contingency Paid Employees (Recruitment andConditions of Service) Rules, 1975” (all rules except rule no. 4 to8) made through Circular ‘ no. D-34/444/1(three)/VOK/75 Bhopaldated 29.09.1975 of General Administration Department ofGovernment of Madhya Pradesh. (Appendix-1)

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(ii) “M.P. Work-Charged and Contingency Paid Employees LeaveRules, 1972”. (Appendix-2)

(iii) ”Work-Charged Staff and Contingency Paid Staff (GratuityBenefits) Rules, 1962". (Appendix-3)

F4. Work charged personnels working in the Board do not get thebenefit of pension, while in other works department employees ofWork-Charged establishment are getting pension under MadhyaPradesh (Work-Charged and Contingency Paid Employees)Pension Rules, 1979. At present the said rules are not relevant tothe employees of the Board. M.P. Daily Wage Employee (ConditionGof Rule), Rule 2013 (Appendix -4) has been adopted for the dailywage employees of the Board by which they have been broughtwithin purview of National Pension Scheme regulated by PFRDA.For work charged employees also pension is proposed underPFRDA brief description of which is as follows:

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(l) The National Pension Scheme initiated by PFRDA, which hasbeen implemented in the State of Madhya Pradesh, with effectfrom 1st May, 2009 for the domiciles of Madhya Pradesh,

(2) The employee can opt to be a member under National PensionScheme 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 deductedfrom his wages and the Government shall also contribute theequivalent amount and shall deposit it in the permanent accountof the employee and the consolidated amount and permissibleinterest 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 hadnot been adopted by the respondent No. 1 – Housing Board and theM.P. Civil Services (Pension) Rules, 1976 did not cover the workersworking in work charged establishments of the Housing Board. TheM.P. Work-charged and Contingency Paid Employees Pension Rules,1979 was also not made applicable to the work charged employees ofthe respondent No. 1 – Housing Board either in terms of the M.P. GrihaNirman Mandal Regulations, 1998 or under the Madhya Pradesh Housingand Infrastructure Development Board (Conduct of Business andDelegation of Powers) Regulation, 2015. Observing that the M.P. DailyWage Employee (Condition of Rule), Rule 2013 had been adopted forthe daily wage employees of the Housing Board thereby bringing themwithin the fold of the NPS, a decision was taken to extend the verysame Scheme to work charged employees as well.

11. Pursuant to the aforesaid decision taken by the Board ofDirectors of the respondent No. 1 – Housing Board, an order dated 02[nd]July, 2015 was issued to regulate the services of the work chargedemployees by adopting the relevant rules of the State Government asmentioned above and bringing them within the purview of the NPSmanaged by the Pension Fund Regulatory and Development Authority[5].Para 8 of the order dated 2[nd] July, 2015 is relevant and reproducedherein below for ready reference:

“8. National Pension Scheme, launched by P.F.R.D.A, has beenmade applicable to Madhya Pradesh, which is effective for the 5 For short ‘PFDRA’

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Adomiciles of Madhya Pradesh from 1 May 2009. Pension underthe National Pension Scheme, regulated by P.F.R.D.A, shall bepayable to Work-charged Employees of the Board as under, abrief description of which is as follows:-

1) The employee may opt for becoming member of NationalBPension Scheme and avail the benefit of pension.

2) In case of option given by an employee under the aforesaidSub-Rule(1 ), contribution equal to10% shall be deducted fromhis wages/salary, and an equal amount of contribution shall bemade by the Board, and deposited in his permanent Account andCthe consolidated amount along with the permissible interest shallbe payable to him upon his superannuation. The contribution tothe 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 forDthe respondents as to whether the aforesaid Office Order was broughtto the notice of the employees of the work charged establishments ofthe respondent No. 1 – Housing Board to enable them to exercise theiroption of becoming members of the NPS and whether the said employeesincluding the deceased husband of the appellant had applied for availingof the benefit under the NPS. In response thereto, an affidavit datedE15[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 2[nd]July, 2015, providing for an option under the NPS to the work chargedemployees of the Housing Board was duly brought to the notice of allconcerned, in accordance with the directions issued at serial No.12 ofFthe endorsement at the foot of the said order that required the same tobe displayed on the notice board. The affidavit further states that inresponse to the aforesaid order calling for requisite options from all thework charged employees of the Housing Board, out of 48 suchemployees, only 16 had opted to avail the benefit of NPS. Clause 8 ofthe said order clearly provides that if an employee wants to opt forGpension, he can do so by giving his option and thereafter, 10% of hispayable salary will be deducted on a monthly basis from his account andthe respondent No. 1 – Housing Board will match the said amount bycontributing its share on a monthly basis. Thus, the only option that wasmade available to the work charged employees of the respondent No. 1H– 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 therecords, during his life time, the appellant’s husband did not opt for thesaid Scheme.

13. As for the decision in the case of Prem Singh (supra) citedon behalf of the appellant, the question raised in the said matter relatedto the validity of Rule 3(8) of the Uttar Pradesh Retirement BenefitsRules, 1961 and Regulation 370 of the Civil Services Regulations ofUttar Pradesh. In a backdrop where this Court had earlier affirmed thedecision of the High Court of Punjab and Haryana in the case of KesarChand v. State of Punjab[6], in relation to pari materia provisions enactedin the State of Punjab which excluded computation of the period of workcharged services from qualifying service for grant of pension, a threeJudge Bench of this Court examined several decisions on this aspectand on perusing the Note appended to Rule 3(8) of the Uttar PradeshRetirement Benefits Rules, 1961 and Regulation 370 of the Civil ServicesRegulations, held that since the service of the appellant in the said casehad been regularized on a vacant post, Rule 3(8) of the U.P. RetirementBenefits Rules, 1961 ought to be read down in respect of the servicesrendered by him even prior to his regularization and the period spent inthe capacity of a charged employee/contingency paid fund employee ornon-pensionable establishment employee ought to be counted towardsthe qualifying service for extending the benefit of pension to suchemployees.

14. The fact situation in the case in hand is entirely different. Thedeceased husband of the appellant had remained a work charged employeetill the date of his demise on 26[th] April, 2016. His services had not beenregularized. The Office Order dated 29[th] October, 1997 relied on by theappellant to urge that the services of the deceased husband of theappellant had been regularized, is being misread as can be discernedfrom the first para of the said order which states that daily wages MusterRoll employees working between 26[th] May, 1974 to 30[th] June, 1981 andnamed therein were being appointed in work charged establishmentsand further, that the M.P. Work Charged and Contingency PaidEmployees Recruitment and Service Rules, 1977 was made applicableto them. We have noticed above that the aforesaid rules were neveradopted by the respondent No. 1 – Housing Board or extended to itswork charged employees. Being cognizant of the vacuum relating to the AB

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Aservice conditions of the employees working in its work chargedestablishments, the Board of Directors of the respondent No. 1 – HousingBoard had deliberated over the matter and decided on 6[th] April, 2015 toextend the benefit of pension to the said employees by bringing themwithin the purview of the NPS and they were given an option to becomea member of the said Scheme so as to avail the benefit of pension. AsBher deceased husband had elected not to opt for the said Scheme, theappellant cannot claim entitlement to payment of family pension on hisdemise.

15. We therefore hold that the deceased husband of the appellantwas not a regular employee of the respondent No.1 – Housing Board.CHe had remained a work charged employee in the establishment of theHousing Board till the date of his demise. Even while serving in the saidcapacity, the appellant’s deceased husband could have opted for pensionunder the NPS that was made available to the work charged employeesof the respondent No.1 – Housing Board in terms of the order datedD02[nd] July, 2015. But he did not opt for the said Scheme. The appellant is,therefore, not entitled to receive family pension from the respondentNo. 1 – Housing Board.

16. As a result of the aforesaid discussion, we do not find anyreason to interfere with the impugned judgment, which is upheld. TheEpresent appeal is, accordingly, dismissed while leaving the parties to beartheir own expenses.

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Bibhuti Bhushan Bose(Assisted by : Rakhi, LCRA)

Appeal dismissed.

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