Allahabad High Court
Uma Shankar Singh vs State Of U.P. Through Prin. Secy. ... on 10 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 894
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 23 Case :- SERVICE SINGLE No. - 816 of 2015 Petitioner :- Uma Shankar Singh Respondent :- State Of U.P. Through Prin. Secy. Technical Edu. Lko. & Ors. Counsel for Petitioner :- Shikhar Anand,Laxmi Prasad Srivastava Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Shikhar Anand, learned counsel for the petitioner and Dr. Udai Veer Singh, learned Addl. C.S.C. for the State-respondents.
By means of this petition the petitioner has prayed the following relief:
"i) Issue a writ, order or direction in the nature of Mandamus directing the opposite parties to pay pension as well as gratuity payable to petitioner with effect from the date of his retirement, that is 30.06.2012 till date as well as continue paying the pension in future.
ii) Issue a writ, order or direction in the nature of Mandamus directing the opposite parties to pay the all the post retirement benefits along with interest accrued thereupon till the date of actual payment."
The brief facts of the case are that the petitioner was appointed on the post of Skilled Machinist on 4.5.1979 as a temporary and adhoc employee pursuant to which the petitioner joined his duties with effect from 31.7.1979 at Rajkiya Madhyamik Pravidhik Vidyalaya, Gonda. Thereafter, in compliance of order dated 6.6.1996 passed by the Director, Technical Education, U.P. the petitioner discharged duties at Govt. Polytechnic with effect from 2 August 1996. It has been noted that the request of the petitioner for regularisation of service was forwarded by the Principal, Government Polytechnic, Faizabad vide letter dated 31.5.2010. Further, since the work and conduct of the petitioner was being appreciated by the authority competent, therefore, he was granted extension of service beyond the date of superannuation i.e. on 31.8.2010 till 30.6.2012 as he retired from that post on that date.
In view of above the petitioner had rendered his services for 33 years of continuous satisfactory service but he has not been paid his post retiral benefits such as pension and gratuity perhaps for the reason that he was not regularized in service.
Learned Addl. C.S.C. has drawn attention of this Court towards para 4 of the counter affidavit of opposite party no. 3 and 4 wherein it has been submitted that the entire services of the petitioner are temporary and it is provided in Article 361 of the Civil Services Regulation that temporary / adhoc services are not tenable, therefore, the petitioner has not been paid his retiral benefits including the pension as prayed for.
Dr. Udai Veer Singh has further drawn attention of this Court towards para no. 4 of the counter affidavit of respondent nos. 1,2 and 5 wherein the detailed facts of the issue of the petitioner has been narrated and almost same ground has been taken that since the services of the petitioner was on temporary basis, therefore, he could have not been paid his retiral benefits as prayed in the writ petition.
Learned counsel for the petitioner has not only denied the contentions of counter affidavit but also placed reliance on the judgment of this Court dated 29.3.2019 in Lakshman Veer vs. State of U.P. and others in Writ-A No. 42848 of 2012 referring para 27, 28, 31,32,33,34,35,36, 40,41,and 42 as under :
"27.Learned counsel for the petitioner has placed reliance upon Article 361 of Civil Service Regulation and the same is also being quoted here in below:-
"361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:--
First--The service must be under Government.
Second--The employment must be substantive and permanent.
Third--The service must be paid by Government.
28. These three conditions are fully explained in the following Section.
1. Substantive service in a permanent post qualifying for pension unless the service in a particular post in specifically declared as non-qualifying under Article 350 C.S.R. when a temporary post is made permanent or a permanent post is sanctioned, it is not necessary to state that the post in question would also be pensionable under Article 361 C.S.R. 361-A. The State Government may, however, in the case of service paid from General Revenues, even though either or both of conditions (1) and (2) are not fulfilled:--
(1) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension;
(2) in individual cases and subject to such conditions as it may think fit to impose in each case, allow service rendered by an officer to count for pension.
31. Learned counsel for the petitioner has also placed reliance upon Rules 56(C) and (E) of Act, 1975 and the same is being quoted below:-
56(c). Notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notification to the appointing authority voluntarily retire at any time after attaining the age of fifty years or after he has completed qualifying service for twenty years.
56(e). A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with an subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule.
Explanation- (1) The decision of the appointing authority under Clause (c) to retire the Government servant as specified therein shall be nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest.
(2) Every such decision shall, unless the contrary is proved, the presumed to have been in the public interest.
(3) The expression 'appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire; and the expression 'qualifying service' shall have the same meaning as the relevant rules relating to retiring person.
(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause(d) of this rule shall have effect from the afternoon of the date of its issue provided that if after the date of its issue, the Government servant concerned bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the facts of his having earlier retired."
32. Rule 56(C) does not create any difference between permanent and temporary employee whereas Rule-56(E) clearly says that pension shall be payable to every government servants subject to provisions of relevant rules who retires or is required or allowed to be required under these rules. Therefore, argument raised by learned Senior Counsel appearing for the petitioner is acceptable in the light of Rules 56(C) &(E) and petitioner is entitled for pension.
33. So far as payment of pension to retiring person is concerned, learned Senior Counsel has placed reliance upon several judgment of Rudra Kumar Sain V. Union of India, (2000) 8 SCC 25, in which Supreme Court has considered the words 'ad hoc', 'stopgap' and 'fortuitous' and it has been answered in Paragraph No. 20 of the said judgment which is quoted below:-
"In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc".
34. Again in the case of Ramesh K. Sharma v. Rajasthan Civil Services (2001) 1 SCC 637, Apex Court has considered the word 'substantive basis' after relying upon the judgment of Baleshwar Dass v. State of U.P. (AIR 1981 SC 41) and held that if an incumbent holds the post for indefinite period, this cannnot be said to be adhoc appointment. In paragraph No. 4 of the said judgment, the Court has held as under:-
"If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment, not being either stopgap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stopgap basis then such an appointment cannot be held to be on substantive basis. The expression "substantive basis" is used in the service jurisprudence in contradistinction with ad hoc or purely stopgap or fortuitous."
35. Again issue of payment of pension came before this Court in the matter of Dr. Hari Shanker Asopa v. State of U.P. and another (1989) UPLBEC 501, who was allowed to retire being permanent on any of the post hold by him during the tenure of his continuous service of State Medicine College of Uttar Pradesh and the court has replied the same after considering Article 361 and Clause (A) of Rules 1956 of Fundamental Rules as applied in U.P. Civil Service Regulation and held as under:-
"In the instant case, indisputably Dr. Asopa who allowed to retire under clause (c) of Rule 56 and the first and third conditions envisaged in Article 361 of the Regulations were satisfied. He, therefore, became qualified for a retiring pension notwithstanding the fact that he was not permanent on any of the posts held by him during the tenure of his continuous services of State Medical Colleges of Uttar Pradesh Government. Denial of retiring pension to Dr. Asopa on the ground of his not being permanent on any post of the government service was clearly violative of clause (e) of Rule 56 of the Rules. Condition contained in paragraph 2 of the order, dated 21st February, 1983 (annexure-10 to the writ petition), depriving Dr. Asopa of retiring pension cannot, therefore, be sustained. The contention of the learned Standing Counsel for the State of Uttar Pradesh that Dr. Asopa was not entitled to any pension lacks merit and has got to rejected."
36. Payment of pension in the similar matter again came before this Court in the matter of Hans Raj Pandey v. State of U.P. and others, 2007 (3) UPLBEC 2073 and the Court after considering the different law occupying the filed with regard to the payment of pension has held as under:-
"In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B i.e., lack of permanent character of service. However, in out view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P.Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government Servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition -B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is in operative."
40.Therefore, in the light of discussion made herein above, order dated 03.01.2015 is not sustainable in the light of rules as well as law laid down by this Court and petitioner is also entitled for payment of his pension from the date of his superannuation i.e. 30.06.2011, therefore, order dated 03.01.2015 is hereby quashed.
41.At this stage, another issue before this court is that whether matter should be remanded back to Regional Committee constituted under the provisions of U.P. Act No. 5 of 1982 for taking a fresh decision or not. Similar issue was came before Division Bench this Court in the matter of Tileshwar Nath Vs. State of U.P. & another (Writ-A No. 8224 of 2012) decided on 11.04.2018, and the Court has held as follows:-
.........................
"There is another issue before the Court whether the matter should be remanded back to the Tribunal or not to consider and decide again in light of observation made herein above. Court is of the view that when charge sheet itself does not establish any charge and matter is pending since long, no fruitful purpose shall be served to remand the matter back to the Tribunal to decide again, when the petitioner has already retired from service on 31.01.2006."
...........
42. In the present case too, grounds taken in order dated 03.01.2015 is absolutely baseless and petitioner has also attained the age of superannuation on 30.06.2011, therefore, instead of remanding back the matter to Regional Committee, respondents are directed to pay pension to the petitioner forthwith on month to month basis and also pay arrears of pension along with 6% interest from the date of his retirement i.e. 01.07.2011 within three months from the date of production of certified copy of this order."
By means of aforesaid judgment this Court has referred the settled proposition of law in question by citing the judgments of Division Bench of this Court as well as the judgment of Hon'ble Apex Court and has arrived at conclusion that for the purpose of making payment of retiral dues the entire services be it temporary or permanent shall be considered.
Considering the rival contentions of the learned counsel for the parties and the settled position of law, as above, the petitioner is liable to get pension and all retirement benefits counting his entire service till his date of retirement. In the present case since the issue of the regularisation remained pending till the retirement of the petitioner as no decision had been taken, therefore, at this stage I do not feel it appropriate to remand the matter before the competent authority for taking the decision thereon when the law is settled on the point that for the purpose of retiral dues the entire services of the employee shall be considered.
Accordingly, the writ petition is allowed.
A writ in the nature of mandamus is issued to pay the pension as well as gratuity payable to petitioner with effect from the date of his retirement, that is 30.06.2012 till date as well as the petitioner shall be paid his continuous pension.
The compliance of the aforesaid order shall be made within three months from the date of production of certified copy of the order of this Court failing which the petitioner shall be liable for the interest @ 6% on the entire arrears of dues.
Order Date :- 10.2.2020 Om [Rajesh Singh Chauhan, J.]