Jharkhand High Court
Ashok Kumar Sinha vs Urban Development Department on 11 August, 2017
Author: Pramath Patnaik
Bench: Pramath Patnaik
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6066 of 2012
1. Ashok Kumar Sinha, S/o Late Krishna Nath Sinha, R/o Vidya Nagar, Road
No.3, P.O.-Harmu, P.S.-Argora, District-Ranchi.
2. Sajnandan Pandit, S/o Late Anup Pandit, R/o New Madhukam,
Anandnagar, P.S.-Sukhdeo Nagar, P.O.-Ratu Road, District-Ranchi.
3. Durga Prasad Kumhar, S/o Late Mutu Prajapati, R/o Kumhartoli, P.O.-Ratu
Road, P.S.-Sukhdeo Nagar, District-Ranchi.
4. Ahsan Ahmed, S/o Late Md. Abbas, R/o Ansari Nagar, Church Road, P.O.
& P.S.-Lower Bazar, District-Ranchi.
5. Dr. Vijay Bahadur Singh, S/o Late Vaidhnath Singh, R/o Irgu Toli, P.O. &
P.S.-Sukhdeo Nagar, District-Ranchi.
6. Awadh Bihari Tiwari, S/o Late Raghunandan Tiwari, R/o Sradhanand
Road, P.O., G.P.O., P.S.-Kotwali, District-Ranchi.
7. Ramchandra Mahto, S/o Lakhi Mahto, R/o Village-Jorar, P.O.-& P.S.-
Namkum, District-Ranchi.
8. Prakash Kumar Sukla, S/o Late Anirudh Sukla, R/o Brajesh Apartment,
Flat No.03B, P.O.- & P.S.-Hindpiri, District-Ranchi.
9. Binod Sahu, S/o Late Gopal Sahu, R/o Banomanjil Road, P.O.-Ratu Road,
P.S.-Sukhdeo Nagar, District-Ranchi.
10. Amir Chand Ram Gupta, S/o Late Raghuvir Sah, R/o Sita Bhawan,
Vikash Nagar, P.O.-Hehal, P.S.-Sukhdeo Nagar, District-Ranchi.
11. Dharam Nath Singh, S/o Late Ram Rekha Singh, R/o Hazaribagh Road,
Chuna Bhatta, Kokar, P.O.- & P.S.-Sadar, District-Ranchi.
12. Dhrub Sen Gupta, S/o Late S.N. Gupta, R/o Lower Vardman Compound,
P.O.-Lalpur, P.S.-Lalpur, District-Ranchi.
13. Buroy Bhusan Tiwari, S/o Late Bijeshwar Nath Tiwari, R/o Sukhdeo
Nagar, Ratu Road, P.O.-Hehal, P.S.-Sukhdeo Nagar, District-Ranchi.
14. Md. Nasim, son of late Md. Hanif, Resident of Hindpiri, P.O. & P.S.
Hindpiri, District-Ranchi. .... Petitioners
Versus
1. State of Jharkhand.
2. Secretary, Urban Development Department, Govt. of Jharkhand, Project
Building, P.O. & P.S. Dhurwa, District-Ranchi.
3. Chief Executive Officer, Ranchi Municipal Corporation, Kutchary Road,
P.O. G.P.O., P.S.-Kotwali, District-Ranchi.
4. Dy. Chief Executive Officer, Ranchi Municipal Corporation, Kutchary
Road, P.O. G.P.O., P.S. Kotwali, District-Ranchi. ....... Respondents
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CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioners : M/s Rajendra Krishna &
Jai Shankar Tiwary , Advocates
For the Respondents : Mr. Rajesh Kumar, G.P.V, &
Mr. Pratyush Lala, J.C to G.P.V
For the Respondent Nos.3 & 4 : Mr. Ray Rajat Nath, Advocate
.......
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CAV on 02/03/2017 Pronounced on 11/08 /2017
Per Pramath Patnaik, J.
In the accompanied writ application, the petitioners who are retired
employees of Ranchi Municipal Corporation, having putting in more than 30
years of service, have sought for direction upon the respondents to release the
pension of the petitioners in terms of Patna Municipal Corporation Officers
and Service Pension Rules, 1986, which was adopted by the
officers/employees of the Ranchi Municipal Corporation specially in
consonance with Rule 44 of the said Rule and for direction upon the
respondents restraining them to provide the amount of pension to the
petitioners in terms of Rule 19 of Patna Municipal Corporation Officers and
Servant Pension Rules as adopted for Ranchi Municipal Corporation since
fixation under Rule-19 was made in the year 1987 and in the meantime, 5th
Pay Revision and 6th Pay Revision have been effected for the State
Government Employees with effect from 01.01.1996 to 01.01.2006
respectively. Further, prayer has been made for issuance of writ of mandamus
commanding upon the respondents to calculate and fix the pension of the
petitioners as provided under Rule 43 and 44 of the said Rules and the same
should be paid to the petitioners with interest.
2. The brief facts, as depicted in the writ petition, is that the petitioners
who have been holding different posts under Ranchi Municipal Corporation
retired on attaining the age of superannuation by rendering more than 30
years of service. The Ranchi Municipal Corporation was constituted in the
year, 1979 and the Patna Municipal Corporation Act, 1951 has been adopted
by Ranchi Municipal Corporation. Patna Municipal Corporation has
constituted Patna Municipal Corporation Officers and Servant Pension Rules,
1986 (hereinafter called Pension Rule, 1986) and the said Pension Rule has
been adopted by the Ranchi Municipal Corporation in the year, 1987. As per
Rule 19 of the said Rule, the pension of the employees of Corporation was
determined based on the existing pay scale as well as the total emoluments in
the year, 1987 in accordance with 4th Pay Revision Committee Report and the
maximum ceiling of the pension of Rs.1500/- per month was fixed. As per the
Rule 44 of the Pension Rule, 1986, it has been provided that the amount of
pension when revised in the case of the Government servant be admissible to
corporation employees. Under Rule 45 of the Pension Rules, 1986, the
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method of calculation of pension has been given. Since, the petitioners were
not getting pension till date filed representation for payment of pension in
accordance with the calculation made on the basis of last pay drawn, but the
said representation did not evoke any responses from the respondents. Being
aggrieved by inaction on the part of the respondents in not paying the pension
from time to time, the petitioners left with no other alternative remedy have
knocked the doors of this Court under Article 226 of the Constitution of India
for redressal of their grievances.
3. Counter-affidavit dated 19.03.2013 has been filed on behalf of
respondent no.2, wherein it has been stated that Ranchi Municipal
Corporation in its meeting held on 18.07.2012 had taken a decision to pay its
employees gratuity and pension equivalent to the State Government
Employees. The Chief executive officer, Ranchi Municipal Corporation vide
letter dated 24.07.2012 requested the Urban Development Department for
sanction of the resolution of the board with regard to payment of gratuity,
pension etc. to the officers and employees equivalent to employees of the
State of Jharkhand. Further, it has been stated that Urban Development
Department has prepared the draft of Local Bodies Employees Service, Cadre
(Appointment, Promotion & Service Condition Rule-2012) and also the
Urban Development Department constituted a committee under the
Chairmanship of Secretary, Urban Development Department for examination
& verification of the Rule, 2013. Further, it has been submitted that
Jharkhand Municipal Act, 2011 (Act 07/2012) under section 58 (1) of (2) and
614 confers the State to make rules which is in process. Until and unless the
rule is framed by the State Government, liabilities of pension and other retiral
benefits would be the subject of the concerned Urban Local Bodies as per
office memo dated 17.12.2008 from the beginning as per Annexure-A to the
counter-affidavit.
4. Counter-affidavit dated 29.01.2013 has been filed on behalf of
respondent nos. 3 and 4 (Ranchi Municipal Corporation). It has been inter
alia stated in the counter-affidavit that presently the salaries and allowances
of officers and other employees of Ranchi Municipal Corporation are
governed by Section 58 of the Jharkhand Municipal Corporation Act. The
Section 58(2) of Jharkhand Municipal Corporation Act, 2011 provides:
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"Section 58(2) The municipality may also provide for
pension, gratuity, provident fund, incentive, bonus,
reward or penalty for its officers and other employees in
accordance with such rules, norms, scales and conditions
as prescribed by the State Government."
5. A supplementary affidavit dated 25.07.2013 has been filed on behalf of
the petitioners wherein it has been submitted that in view of the decision of
the State Government communicated by Urban Development Department
vide letter no.1323 dated19.04.1991 (Annexure-S/1 to the affidavit) it has
provided the consent of the State Government even for the employees of the
Corporation that they will get their pension in terms of State Government
Employees and when it is being enhanced, therefore petitioners are claiming
that they are entitled to get their pension fixed on the basis of last pay drawn
in the same manner as is being fixed and given to State Government
employees in terms of Rule 44 of the Pension Rule, 1987.
6. A supplementary counter affidavit dated 11.05.2016 has been filed on
behalf of respondent no.2 wherein it has been stated that Jharkhand
Municipality Service Cadre Rules, 2014 has been notified on 17.07.2014. In
Section 58 of Jharkhand Municipal Act, 2011 following provisions have been
made:
(i) All officers and other employees of a
municipality including the officers has referred to in
Section 55 shall receive salaries and allowances out of
the municipal fund.
(ii) The municipality may also provide for
pension, gratuity, provident fund, incentive, bonus,
reward and penalty for its officers and other employees
in accordance with such rules, norms, scales and
conditions as may be prescribed by the State
Government.
It has further been submitted that it is responsibility of the concerned
Urban Local Bodies to make provision for pension of the employees in
accordance with such Rules, Norms & Conditions as may be prescribed by
the State Government.
7. Counter affidavit dated 06.12.2016 has been filed on behalf of
respondent nos.3 and 4-Ranchi Municipal Corporation, wherein it has been
mentioned that annual income and expenditure statement for the year 2013-
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14 and 2014-15 clearly shows that Ranchi Municipal Corporation is running
at a huge deficit and is unable to meet its expenditures. The deficit for the
year 2013-14 was around Rs.38 Crores and for the year 2014-15 deficit was
around 47 Crores. RMC is cash strapped and resources strapped even to meet
its obligatory duties. The forecast for the year 2015-16 is also of deficit.
Therefore, RMC is not in a position to bear the burden of pension payment
without help and funding from Government.
8. A counter affidavit dated 07.02.2017 has been filed on behalf of
respondent nos.3 and 4-Ranchi Municipal Corporation, wherein it has been
submitted that vide letter dated 18.01.2017 the Municipal Commissioner,
Ranchi has addressed to the Principal Secretary, Urban Development
Department, Government of Jharkhand and reiterates that the Corporation
can make payment to its retired officers and servants equivalent to that being
paid to State Government employees, only if State Government provides 70%
assistance as per Annexure-B to the said affidavit. However, the State
Government by letter dated 28.01.2017 has stated that the entire burden of
pension has to be borne by the Corporation from its own funds as evident
from Annexure-C to the affidavit.
9. A counter affidavit dated 07.02.2017 has been filed on behalf of
respondents-State. In the said affidavit Section 58 of the Jharkhand Municipal
Act, 2011 and Rule 6.2 of the Jharkhand Municipal Service Cadre Rule, 2014
have been referred to. The aforesaid rule stipulates that if the concerned local
bodies are unable to pay salary, allowance and pension of their employees, in
that case State Government may release compensatory grant on the basis of
the self discretion of Government. As per decision vide notification dated
06.02.2017it has been provided that pension and gratuity of the employees of municipality will be paid by the concerned bodies as per Annexure-C to the said affidavit.
10. Heard Mr. Rajendra Krishna, learned counsel for the petitioners, Mr. Rajesh Kumar (G.P.V) for the respondents-State and Mr. Ray Rajat Nath, learned counsel for the respondent nos.3 and 4 & perused the affidavits filed by the respective parties and documents on record.
11. After bestowing my anxious consideration to the various affidavits filed on behalf of respective parties, this Court feels it expedient to direct the respondents to calculate and fix the pension of the petitioners on the basis of 6 last pay drawn and release the pension and arrears in accordance with Jharkhand Municipal Corporation Act read with Jharkhand Municipal Service Cadre Rule, 2014 and other relevant circulars as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of the order.
12. With the aforesaid direction, the writ petition stands allowed.
(Pramath Patnaik, J.) RKM/Saket/-
N.A.F.R