S.K Gangele, J.:— On the reference by the learned Single Judge of this Court, Hon'ble the Chief Justice has constituted this Bench under the provisions of Rule 8 (Chapter IV) of the Madhya Pradesh High Court Rules & Orders, 2008, to answer the following reference:—

“(i) Whether the judgment passed in Writ Petition No. 6692/2010(s) (Ramswaroop Sharma v. State of MP) has taken a correct view regarding applicability of Mutiya's case (supra) in the case of daily wagers and declaring their age of retirement as 62 years or the judgment passed by another learned Single Judge in Mathura Prasad Yadav v. State of MP, reported in 2010 (3) MPLJ 323, has taken the correct view? And, hence, what should be the age of retirement of daily wager/gangman working in the State of Madhya Pradesh?”

2. Before answering the reference, it would be appropriate to consider the facts which have dissented in making the present reference.

3. Petitioner challenged the order of termination from service dated 26-4-2008 on account of attaining the age of 60 years. It is mentioned in the order that the petitioner, who was working as daily wager employee would retire from service on account of attaining the age of superannuation i.e 60 years. The petitioner pleaded that the post of Labour/Meth/Gangman falls within the category of Work Charged Establishment Class IV employees, hence, he is entitled to continue in service up to the age of 62 years in accordance with the provisions of M.P Shaskhiya Sevak Adhivarshiki Aayu Tritiya Sanshodhan Adhyadesh, 1998. Consequently, an amendment was made in the aforesaid Adhyadesh and Class IV employees are entitled to continue in service up to the age of 62 years.

4. The respondent/State in its reply pleaded that petitioner was engaged on daily wage basis. He was not an employee of Work Charged and Contingency Paid Services, hence, he has no right to continue up to the age of 62 years. The department vide circular dated 30-5-2002 specified that daily wager employee can be continued in service up to the age of 60 years and on the basis of the aforesaid circular the service of the petitioner has been terminated. Hence, he has no right to continue in service up to the age of 62 years.

5. While hearing the matter, the learned Single judge has found conflict of opinion between the orders passed by the learned Single Benches and referred the matter to Hon'ble the Chief Justice for reference to a larger Bench in accordance with the provisions of Rule 8 (Chapter IV) of the M.P High Court Rules and Orders, 2008 and consequently Hon'ble the Chief Justice has constituted the Bench.

6. Learned Counsel appearing on behalf of the petitioner has submitted that in accordance with the law laid down by the Full Bench of this Court in the case of Vishnu Mutiya v. State of M.P, reported in 2006 (1) MPLJ (FB) 23, the petitioner, who was a Work Charged and Contingency Paid Employee, has a right to continue in service up to the age of 62 years at par with other Class IV employees of the State. In support of his contention learned Counsel relied on the Full Bench judgment of this Court in the case of Vishnu Mutiya's case (supra) and some reported judgments.

7. Contrary to this, learned Additional Advocate General, appearing on behalf of the State, has contended that petitioner is not entitled to continue up to attaining the age of 62 years and he could not compare himself at par with Class IV employees of the State because he was engaged as daily wager and at the time of termination of his service he had been working as daily wager, he was not a holder of a post. Consequently, he is not eligible to continue in service up to the age of 62 years at par with Class IV employees of the State. In support of his contentions learned Additional Advocate General relied on Full Bench judgments in the cases of Ashok Tiwari v. M.P Text Book Corporation, reported in 2010 (2) MPLJ 662 and Smt. Mamta Shukla v. State of M.P, reported in 2011 (3) MPLJ (FB) 210 : 2011 (3) MPHT 81 (FB).

8. Before answering the question, in our opinion, it would be just and proper to trace the history of civil service in India because the main contention of the petitioner is that he is eligible to continue in service up to age of 62 years at par with Class IV employees of the State, who are eligible to continue in service up to the age of 62 years in accordance with the provisions of M.P Shaskhiya Sevak Adhivarshiki Aayu Tritiya Sanshodhan Adhyadesh, 1998.

9. For the first time Government of India in 1915 has made reference to Civil Service of the Crown in India and section 96-B (1) made the provision in regard to Civil Services, which is as under:—

“96-B(1).— Subject to the provisions of this Act and the rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed and the Secretary of State in Council may (except so far as he may provide by rules to the contrary) reinstate any person in that service who has been dismissed.”

10. Section 96-B for the first time gave a statutory recognition and force of some protection to the members of civil service. Sub-section (2) of section 96-B empowered the Secretary of State in Council to make rules for regulating the classification of the Civil Services in India, the method of recruitment, the conditions of service, pay and allowances and discipline and conduct section 96-B(1) of Government of India Act, 1915 was reproduced as Sub-sections (1) and (2) of section 240 of Government of India Act, 1935. The aforesaid section is as under:—

“240(1).— Except as expressly provided by this Act, every person who is a member of a Civil Service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.

(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.”

11. Thereafter, our Constitution came into effect on January 26, 1950. Part XIV of the Constitution deals with services under the Union and the States and there are different types of Government Services. The services are different from the contract of service because the civil servants have been given statutory protection which is available only to the industrial workers under the Industrial Law. Rest of the employees are governed in accordance with the terms of contract of service. The different services are governed by Rules made by the appropriate Authorities. It is an admitted fact that a daily wager employee has not been appointed under the provisions of any Rules nor the services of a daily wager employee have been governed by any Recruitment Rules.

11A. The Constitution Bench of Hon'ble the Supreme Court in the case of Secretary, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 has held as under:—

“52. Normally what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr. v. Governing Body of the Nalanda College, 1962 Supp (2) SCR 144 : AIR 1962 SC 1210. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.”

12. Another Constitution Bench of Hon'ble the Supreme Court in the case of Parshotam Lal Dhingra v. Union Of India, reported in AIR 1958 SC 36 has held as under:—

“12. The position may, therefore, be summarised as follows: In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure, cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. The question for our consideration is whether the protections of Art. 311 are available to each of these several categories of Government servants.”

13. A Full Bench of this Court in the case of Ashok Tiwari v. M.P Text Book Corporation, reported in 2010 (2) MPLJ 662, has held, as under, in regard to status of a casual labourer:—

“13. In the case of Kanak Chandra Dutta, AIR 1967 SC 884, the Supreme Court was required to consider the meaning and scope of the words ‘civil post’ as appearing in Article 311 of the Constitution and the fact as to whether a ‘Mauzadar’ appointed under the Assam Land and Revenue Regulation, was holder of a ‘civil post’ or not. After taking note of various provisions, particularly “the provisions of Articles 310 and 311 of the Constitution, it has been held by the Supreme Court that there is no formal definition of ‘post’ and ‘civil post’. It is held that a post is a service or employment. A person holding a post under a State is a person serving or employed under the State. It is observed by the Supreme Court that a person who holds a ‘civil post’ under the State holds office during the pleasure of the Governor of the State and a post under the State is an office or a position in which duty in connection with affairs of the State are attached. It is held by the Supreme Court that a post may be created before appointment or simultaneously with it. It therefore flows from the aforesaid principle that if there is no post in existence, there can be no appointment. It is further held by the Supreme Court that a post is an employment, but every employment is not a post. A casual labourer, it has been held by the Supreme Court in the aforesaid judgment that appointment to a post normally means existence of a sanctioned and approved post in the organization or the department as the case may be and appointment of a person against such a post. If the person is appointed in a casual manner or otherwise and not to any post created for such appointment, he is not a ‘civil post’ holder nor is he an appointee to such a post. The said principle is clear on a scanning of the aforesaid judgment of the Supreme Court.”

It is clear from the aforesaid judgments of the Full Bench that the casual labourer does not hold a post.

14. Another Full Bench of this Court in the case of Smt. Mamta Shukla v. State of M.P, reported in 2011 (3) MPLJ (FB) 210 : 2011 (3) MPHT 81 (FB), has held, as under, in regard to counting of service for the purpose of grant of benefit of a daily wager employee:—

“24. On the basis of above discussion, we hold in regard to the substantial questions of law Nos. 2 and 3 that an employee is eligible to count his past service as qualifying service in accordance with Rule 6 of the Pension Rules, 1979, if he was appointed in accordance with the provisions of Recruitment Rules of 1977. We further hold that an employee, who was not appointed in accordance with the provisions of Recruitment Rules framed by the concerned department, i.e, the Recruitment Rules of 1977, would not be eligible to count his past service as qualifying service for the purpose of grant of pension in accordance with the Pension Rules of 1979 and we answer the substantial questions of law Nos. 2 and 3 accordingly”.

15. The M.P Shaskhiya Sevak Adhivarshiki Aayu Tritiya Sanshodhan Adhyadesh, 1998, prescribes that a Class IV employee is eligible to continue in service up to the age of 62 years. However, the aforesaid benefit could not be made available to a daily wager employee because the daily wager employee is not a holder of a civil post. Apart from this, the Constitution Bench of Hon'ble the Supreme Court in the case of Parshotam Lal Dhingra v. Union Of India (supra) has clearly held that a substantive appointment to a permanent post or a temporary appointment to a temporary post gives a servant or appointee a right to hold the post up to the age of retirement as per the Rules. It is clear from the judgment of the Constitution Bench that to get a benefit of certain age of retirement the employee has to be appointed to a permanent post or to a temporary post. When the daily wager employee has not been appointed against the post then certainly he has no right to hold the post for a specific period in accordance with the rules because the daily wager employee has no status.

16. In this view of the matter, in our opinion, a daily wager employee is not entitled to continue in service up to the age of 62 years as provided to a Class IV employees of the State in accordance with the provisions of the M.P Shaskiya Sevak Adhivarshiki Aayu Tritiya Sanshodhan Adhyadesh, 1998. A Full Bench of this Court in the case of Vishnu Mutiya v. State of M.P, reported in 2006 (1) MPLJ 23, has held that the services of Gangman are governed by the Rules applicable to M.P Work Charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, 1976, and they are entitled to continue in service up to the age 62 years at par with Class IV employees of the State. However, the ratio laid down in the aforesaid judgment cannot be made applicable to the daily wager employees because the daily wager employees stand on different footing;

17. Consequently, we answer the reference by holding that the learned Single Judge of this Court in Mathura Prasad Yadav… v. State Of M.P…., reported in 2010 (3) MPLJ 323, has taken a correct view that the daily wager employees are not eligible to continue in service up to the age of 62 years and the order passed by the learned Single Judge in another Writ Petition No. 6692/2010 (S), Ramswaroop Sharma v. State of M.P, has not taken the correct view. We further hold that a daily wager employee is not entitled to claim particular age limit for continuing in service in absence of any rule in this regard. The department or Government is at liberty to fix the age of a daily wager to continue in service. Accordingly, we answer the reference and substantial question of law framed by the learned Single Judge.

Reference answered accordingly.