Allahabad High Court
Shiv Shankar Lal & 21 Ors. vs State Of U.P. Through Prin. Secy. ... on 17 January, 2017
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED COURT NO.19 Writ Petition No. 122 of 2012 (S/S) Shiv Shankar Lal and others .........Petitioners Versus State of U.P. and others .........Opposite parties along with Writ Petition No. 9394 (S/S) of 2011 Hussaini Ram and others .........Petitioners Versus State of U.P. and others .........Opposite parties along with Writ Petition No. 2413 (S/S) of 2011 Virendra Kumar Verma and others .........Petitioners Versus State of U.P. and others .........Opposite parties along with Writ Petition No. 2140 (S/S) of 2011 Rajesh Kumar Tewari and others .........Petitioners Versus State of U.P. and others .........Opposite parties along with Writ Petition No. 5636 (S/S) of 2009 Bans Raj Singh and others ...........Petitioners Versus State of U.P. and others .........Opposite parties along with Writ Petition No. 6223 (S/S) of 2010 Hari Om Awasthi and others ...........Petitioners Versus State of U.P. and others .........Opposite parties ******* Hon'ble Dr. Devendra Kumar Arora, J.
Heard Mr. Y.K. Mishra, Mr. Subhas Chandra Pandey, learned Counsel for the petitioners, Mr. Prashant Jaiswal, learned Additional Chief Standing Counsel for the State and Mr. Dipak Seth, learned Counsel for the Chief Account Officer, Allahabad.
Petitioners have approached this Court under Article 226 of the Constitution of India, challenging the order issued by the Executive Engineer, Tubwell Division, directing the petitioners to fill up their forms under New Pension Scheme.
Submission of the learned Counsel for the petitioners is that petitioners were engaged as Part Time Tubewell Operator on a honorarium of Rs.299/- between 1987 to 1993 for a period of three years but after three years, they were allowed to continue on the post of Part-Time Tubewell Operators, therefore, they are entitled to get all service benefits w.e.f. the date of initial engagement. It is said that in view of the Government Order dated 3.3.1998, Part Time Tubewell Operators working in five districts, namely, i.e. Lakhimpur Kheri, Sitapur, Bahraich, Shravasti and Moradabad, deduction from the salary of the persons appointed as Part Time Tubwell Operators has been made since 1998. But without any rhyme or reason, the said deduction from their salary has been stopped and the petitioners are being asked to fill their forms under New Pension Scheme. Feeling aggrieved by the inaction of the opposite parties, the petitioners have filed the present writ petition.
Elaborating his submission, learned Counsel for the petitioners has submitted that deduction from the salary of petitioners started since 1998 under Old Pension Scheme. Petitioners' services were regularized sometime in the year 2009 and the New Pension Scheme came into force w.e.f. 28.3.2005. In these backgrounds, submission is that New Pension Scheme is only applicable to the new entrants/appointees and as petitioners were working as Part Time Tubewell Operators since 1986 to 1994, therefore, the New Pension Scheme is not applicable to the petitioners. Thus, the action of the opposite parties in compelling petitioners to fill up the form under New Pension Scheme is illegal and is not sustainable.
Per contra, learned Additional Chief Standing Counsel has submitted that petitioners were engaged as Part Time Tubewell Operator between 1987 to 1993. As the appointment of petitioners were made against the part-time vacancy under Clause-3 in Column-4 of the Guidelines of 1982, therefore, the employees who are working continuously at the time of application of Regularization (First Amendment) Rules, 1996, according to which the cut off date was amended from 1.10.1986 to 30.6.1998, were entitled to be appointed in the regular establishment. Prior to the date of taking over charge in the regular establishment, in compliance of the judgment and order dated 18.5.1994 passed in a bunch of writ petition, leading writ petition No. 3558 (S/S) of 1992 : Suresh Chandra Tiwari and others Vs. State of U.P. and others, whereby a direction has been issued for payment of salary to the petitioners of regular Tube-Well Operators, petitioners were paid the salary at par with the Tube-Well Operators.
Elaborating his submission, learned Additional Chief Standing Counsel has further submitted that in respect of sanction of similar service benefits of the regular employees to the Part Time Tubwell Operators, the State Government had already issued a Government Order dated 31.12.2002. It has also been submitted that according to the Government Order, the contributory pension scheme is operative upon all the Government employees who have been appointed in or after the year 2005. As the petitioners' regularization was made in the year 2008 and after taking over charge in the regular establishment, they have common within the definition of ''Government Servant'. Therefore, the old pension scheme cannot be applicable over the part-time employees as is evident from para 12 of the Guidelines of 1982.
Learned Additional Chief Standing Counsel has drawn attention of the Court towards the judgment and order dated 31.3.2014 passed in Special Appeal Defective No. 227 of 2014 : State of U.P. Vs. Tubewell Operator Welfare Association, a Division Bench of this Court clarified that all the writ petitioners for whose benefit writ petition is filed, would be entitled to benefits of service including GPF, promotional and selection grade and the pension treating their services with effect the date they were regularized and not from any date, prior to it. Against the judgment and order dated 31.3.2014, review petition No. 406577 of 2014 was filed, which was dismissed vide order dated 15.5.2015. His submission is that the judgment and order dated 31.3.2014 and 15.5.2015 have attained finality as the same has not been challenged before the Superior Court and it is clear that the pension and other service benefits are liable to be given to the petitioners only after their regularization and not any date before that. Therefore, the relief claimed by the petitioners in the present bunch of writ petition has no substance and is liable to be dismissed.
I have heard learned Counsel for the parties and perused the record.
In order to appreciate the rival submission of the learned Counsel for parties, it would be relevant to mention that Vide Notification No.Sa-3-379/Ten-2005-301(9)/2003 dated 28th March, 2005, State Government has disclosed the object of New Pension Scheme as follows:-
"The State Government, in consideration of its long-term fiscal interest and following broadly the pattern adopted by the Central Government has approved the following proposal of introducing a new defined contribution pension system in place of the existing defined benefit pension scheme for new entrances to the service of the State Government and of all State controlled autonomous institutions and State aided private educational institutions where the existing pension scheme is patterned on the scheme or Government Employees and is funded by the consolidated fund of the State Government.
(i) From 1st of April, 2005, the new defined contribution pension system would mandatorily apply to all new recruits to the service of the State Government and of all State controlled autonomous institutions and State aided private educational institutions referred to above. However, employees covered by the existing pension scheme whose service would be of less than ten years on 1st April, 2005, may also voluntarily opt for the new pension system in place of the existing pension scheme.
(ii) Under the new defined contribution pension system, the employee would make a monthly contributor equal to 10 per cent of the salary and dearness allowance. A matching employer's contribution would be made by the State Government or by the concerned autonomous institution/ private educational institution. However, the State Government would provide grant to the concern autonomous institution/ private educational institution for making employer/s contribution until the institution is in a position to make the contribution itself. The contribution and investment returns would be deposited in an account to be known as pension tier-I account. No withdrawal would be allowed from this account during the service period. The existing provisions of defined benefit pension and GPF would not be available to the new recruits covered by the new defined contribution pension system.
(iii) Since new recruits would not be able to subscribe to GPF, they may also have a voluntary tier-II account, in addition to the pension tier-I account. However, employer would make no contribution to tier-II account. The assets in tier-II account; would be invested/managed through exactly the same procedure of for pensioner-I account. However, the employee would be free to withdraw part or all the "second tier" of his money anytime.
(iv) Employee can normally exist tier-I of the pension system at the time of retirement. At exit the employee would be mandatorily required to invest 40 per cent of pension wealth to purchase an annuity from a recognized Insurance company so as to provide for pension for the lifetimes of the employee and his dependent parent and his spouse at the time of retirement. The remaining pension wealth would, however, be received by the employee as a lump-sum which he would be free to utilize in any manner . In case of employee existing the pension tier-I before retirement, the mandatory annuitisation would be 80 per cent of the pension wealth.
(v) There would be several pension fund manners who would offer mainly three categories of investment options. The pension fund manners and the record keeper would jointly give our easily understood information about past performance so that the employee is able to make informed choices of the investment options.
2. The effective date for operationalisation of the new pension system shall be 1st of April, 2005."
Pursuant to the aforesaid Notification dated 28.3.2005, amendment has been introduced in U.P. Retirement Benefit Rules 1961 known as "U.P. Retirement Benefits (Amendment) Rules, 2005", by the Governor in exercise of power conferred by the proviso to Article 309 of Constitution of India. The said Rules have been made applicable w.e.f. 1.4.2005, and it has been clarified therein that Rules shall not apply to employees whether temporary or permanent entering into services on or after 1st April, 2005 in relation to the affairs of State pensionable establishment. Not only this, General Provident Fund ( U.P. ) Rules 1985 have also been amended by the Governor, in exercise of power conferred by the proviso to Article 309 of the Constitution of India, by means of General Provident Fund (U.P.) (Amendment) Rules, 2005, and these Rules have also been made applicable w.e.f. 1.4.2005. While dealing with conditions of eligibility in Rule-4, a proviso has been appended mentioning therein that no government servant entering into on or after 1st April, 2005 shall subscribe to the fund from the date of joining of service.
Once a policy decision has been taken to enforce new pension scheme, contribution pension system w.e.f. 1st April, 2005 with no exception accorded to new entrants to service and the only exception that has been carved out is in reference of candidates whose service would be of less than ten years on 1st of April, 2005, then option has been given to them to voluntarily opt for the new pension system in place of the existing pension scheme. Thus, it is imminently clear that new entrants in service have necessarily to opt for new pension scheme, and have no escape route.
Under Article 361 of the Civil Services Regulations, the service of an office does not qualify for pension unless it confirms to three conditions i.e. (1) The service must be under government; (2) the employment must be substantive and permanent; and (3) the service must be paid by government.
In the present case, petitioners were engaged as Partime Tubewell Operators sometime between 1987 to 1993 against the part-time vacancy. They were admittedly not regularly appointed Tubewell Operators and their services were regularized sometime in the year 2008. As stated here-in-above, the new pension scheme came into force w.e.f. 1.4.2005, meaning thereby Government Servant, who has been appointed/engaged on regular basis on or after 1.4.2005, shall come under contributory scheme and not under Old Pension Scheme. Therefore, petitioners are not entitled to get Old Pension Scheme as they have been appointed in regular establishment of Tube-well Operator some time in the year 2008.
Against the judgment and order dated 5.10.2013 passed by the learned Single Judge in a bunch of writ petition, leading writ-A No. 3483 of 2003 : Tubewell Operator Welfare Association Vs. State of U.P. and others, whereby a direction was issued to the respondents to consider the claim of the members of the petitioner's association and petitioners in terms of the judgment of Suresh Chandra Tiwari Vs. State of U.P. and others (writ petition No. 3558 of 1992) and Sichai Majdoor Sangh Vs. State of U.P. and others : 1996 (1) UPLBEC 9, the State authorities have filed Special Appeal Defective Nos. 227 of 2014 and 226 of 2014. A Division Bench of this Court, vide judgment and order dated 31.3.2014, disposed of the special appeals as under :
"The Special appeals are consequently disposed of with clarification that all the writ petitioners for whose benefit the writ petition is filed will be entitled to benefits of service including GPF, promotional and selection grade and the pension treating their services with effect from the date they were regularized and no from any date, prior to that."
The aforesaid judgment and order dated 31.3.2014 has been challenged in Review Application No. 406577 of 2014, which was rejected vide judgment and order dated 15.5.2015. Thus, judgment and order dated 31.3.2014 has attained finality as no subsequent development has been brought to the notice of this Court.
From perusal of the judgment and order dated 31.3.2014, it reveals that Division Bench of this Court has specifically directed to grant the benefits of service including GPF, promotional and selection grade and the pension to the writ petitioners for whose benefit the writ petition has been filed by treating their services with effect from the date they were regularized and not from any date prior to that. Thus, petitioners were regularized on the post of Tubewell Operator in the year 2008, therefore, in view of the order dated 31.3.2014, they were not entitled to get GPF and Pension as in the year 2008 when the petitioners were regularized, new pension scheme has already came into existence.
So far as the submission of the learned counsel for the petitioners that in pursuance of the Government Order dated 3.3.1998, in five districts i.e. Lakhimpur Kheri, Sitapur, Bahraich, Shravasti and Moradabad, deduction from the salary of the persons appointed as Part Time Tubwell Operators has been made since 1998, is concerned, Mr. Dipak Seth, learned Counsel for the Chief Account Officer has vehemently contended that those deductions in the said districts have been made by the local department and there is no record in the office of Chief Account Officer which shows that any deduction from the accounts of the petitioners have been made. Thus, the contention of the petitioners has no substance and is liable to be rejected. Moreover, if some one has committed a wrong, parity of the same cannot and should not be extended.
In all the connected writ petitions except writ petition No. 122 (S/S) of 2012, petitioners have annexed account slip showing the amount in their GPF account. Since this Court has already observed above that petitioners are not entitled for GPF as their services were regularized after coming into force of New Pension Scheme, therefore, amount deducted from the salary of the petitioners, if any, as claimed by the petitioners, same shall be refunded or be adjusted towards the New Pension Scheme (CPF) after obtaining willingness of the concerned petitioners. In case petitioners opt for refund of the amount, same shall be paid within a maximum period of two months.
For the reasons aforesaid and in view of the judgment and order dated 31.3.2014 (supra) read with order dated 15.5.2015 (supra), no interference under Article 226 of the Constitution of India is made out.
Writ petitions are, therefore, dismissed. Costs easy.
Order Date : 17 January, 2017 Ajit/-