Allahabad High Court
State Of U.P. And 4 Others vs Late Bageshwari Prasad Srivastava And 8 ... on 29 March, 2023
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 21 Case :- SPECIAL APPEAL No. - 176 of 2023 Appellant :- State Of U.P. And 4 Others Respondent :- Late Bageshwari Prasad Srivastava And 8 Others Counsel for Appellant :- Anand Kumar Ray Counsel for Respondent :- Siddharth Khare Hon'ble Manoj Kumar Gupta,J.
Hon'ble Prashant Kumar,J.
The instant intra-court appeal is directed against the order dated 11.10.2022 passed by learned Single Judge in Writ-A No.28543 of 2013 holding the petitioners (respondents herein) entitled to pension under the old pension scheme.
The facts in brief are that the respondents are retrenched employees of Bhadohi Woolen Ltd., a Unit of U.P. State Textile Corporation Ltd. It was a State-owned company and was wound-up on account of it suffering recurring losses over the years. On 18.5.1996, a resolution was passed by the U.P. Textile Corporation Ltd., Bhadohi recommending for the absorption of the respondents and other employees against suitable Class III and IV posts under the Government, subject to their fulfilling the requisite qualifications. As no follow up action was taken to give effect to the said resolution, the respondents and others approached this Court by filing Writ-A No.13439 of 1997 and 24240 of 1997. These petitions were disposed of by an order dated 15.01.1998 directing the Competent Authority to take decision with respect to the claim of absorption of the retrenched employees of Bhadohi Woolen Ltd. The State Government by an order dated 28.04.1998 rejected the claim of the respondents, giving rise to Writ-A No.17195 of 1998. It was allowed by order dated 29.04.1999 issuing a positive direction to the Government to absorb the petitioners and other retrenched employees against Class III and IV posts, commensurate to their qualifications. The operative part of the order reads as under:-
"In the result this petition succeeds and is allowed and the orders dated 28.4.1998 (Annexure 18 to the petition) are quashed. The respondents are directed to absorb the petitioners/employees of the Bhadohi Woollens Limited in government service in accordance with their qualification in class 3 and 4 posts forthwith."
The aforesaid order was subjected to challenge by the State in Special Appeal No.540 of 1999, but it was dismissed by this Court on 29.11.2001. The Special Leave Petition No.5379 of 2002 filed by the State against the aforesaid orders too was dismissed on 18.03.2002. Even then, the direction issued by the Writ Court was not complied with, resulting in filing of a contempt application. During pendency of the contempt proceedings, the respondents were absorbed against substantive posts and appointment letters were issued to them on 9.04.2005. The respondents, except respondent no.5, had attained the age of superannuation. The order impugned in the writ petition dated 3.09.2012 rejects the claim of the petitioners for payment of pension under old pension scheme on the ground that they were new entrants in service as per Government Notification dated 28.03.2005 whereunder the cut off date is 1.04.2005. All those appointed after the cut off date can only avail new pension scheme. The learned Single Judge has held that although the appointment letter was issued to the petitioners, by the State Government, on 9.04.2005 i.e. after the cut off date (1.04.2005), but they became entitled to appointment much before the cut off date, atleast upon dismissal of the Special Leave Petition of the State by the Supreme Court on 18.03.2002. It has further been held that there was no justification on part of the State in not absorbing the petitioners-respondents after the issue relating to their absorption was finally decided by the Supreme Court in favour of the petitioners on 18.3.2002. The delay in issuing appointment letter was wholly attributable to the State respondents and they cannot take benefit out of the same and accordingly, it has been held that for all practical purposes, they should be treated to be notionally appointed on the date on which the SLP was dismissed i.e 18.03.2002. The relevant part of the findings recorded by the learned Single Judge in this behalf is extracted below for ready reference:-
"The above ground cited by the State is nothing but a pretense, in the facts of the present case. While there can be no dispute to the reason, if on true appraisal of facts it were to be concluded that the petitioners were born in the cadre on or after 01.4.2005. Here, upon direction issued by the writ Court on 29.4.1999 in Writ Petition No. 17195 of 1995 a right accrued to the petitioners to be absorbed on Class-III and Class-IV posts. Though, challenge was raised to that order by first filing Special Appeal and then by carrying the matter to the Supreme Court in Special Leave Petition, it is not the case of the State respondents that any stay order was passed in their favour at any stage, in any proceeding. Even then it cannot be denied that the Special Leave Petition came to be dismissed on 18.3.2002 well before the cut off date i.e. 31.3.2005. The State respondents did not act in accordance with law and did not comply with the direction to absorb the petitioners. They allowed almost three years to pass before the appointment letters came to be issued under threat of contempt proceedings. It is also not the case of the State respondent that there was any defect in the claim made by the petitioners or there were some delay caused by the conduct of the petitioners as may deprive them to any relief, now claimed.
Once the State respondents are found to have delayed the proceedings, in entirety, they cannot be permitted to wriggle out of the consequence of delay. In fact, sufficient discretion has already been exercised in favour of the State respondents inasmuch as upon showing compliance by issuance of appointment letters to the petitioners, the contempt proceedings appear to have been dropped, at that stage.
In view of the above, in the peculiar facts of the present case, it is found the right to be absorbed arose to the petitioners not on 09.4.2005 when the appointment letters came to be issued but on 29.4.1999 when the writ Court issued a positive direction in that regard. In any case, that right got vested on 18.3.2002 when the Special Leave Petition filed by the State against the decision of the Intra Court Appeal No. 540 of 1999 (dated 19.11.2001) came to be dismissed. Three years was much more than the time actually required to give effect to the order of the Supreme Court. Accordingly, the petitioners must be treated to have been absorbed, notionally on 18.3.2002. Hence, they are entitled to pension under Old Pension Scheme.
The impugned order insofar as it denies that claim is set aside. The other parts of the impugned order are maintained."
(emphasis supplied) Learned standing counsel appearing for the State submits that the notification issued by the Government dated 28.03.2005 in respect of new pension scheme clearly specifies the cut off date for the new pension scheme as 1.04.2005 and thus the respondents, who were appointed after the cut off date, are not entitled to the benefit of Old Pension Scheme. He submits that the view taken by the learned Single Judge in notionally treating the appointment of the respondents from a date prior to the date on which appointment letters were actually issued is not sustainable in law.
On the other hand, Sri Siddharth Khare, learned counsel appearing on behalf of the respondents submits that the order passed by the learned Single Judge is fully justified on law as well as in equity and that no interference is required.
No doubt, under the new pension scheme notified by the Government on 28.03.2005 it is specifically provided that from 1.04.2005, the new defined contribution pension scheme would mandatorily apply to all new recruits to the service of State Government and State Controlled Autonomous/State Aided Private Educational Institutions. The employees covered by the existing pension scheme, whose service would be less than 10 years on 1.04.2005, have also been given option to opt for the new pension scheme in place of the existing pension scheme.
No doubt, the appointment letter of the petitioners is dated 9.04.2005 and they joined in pursuance thereof on or before 20.04.2005, but it is an admitted fact on record that the direction of the Writ Court for absorption of the respondents against Class III and IV posts was issued on 29.04.1999. The special appeal filed by the State Government was dismissed on 29.11.2001 followed by dismissal of the SLP on 18.03.2002. The State Government had no justifiable reason with it to withhold the absorption and issuance of appointment letters to the respondents. The respondents were compelled to initiate contempt proceedings against the State and whereafter, appointment letters were issued to them on 9.04.2005. In the aforesaid background, the learned Single Judge has rightly held that the stand taken by the State for denying the benefit of old pension scheme to the respondents did not merit acceptance as valuable right to being appointed accrued in their favour atleast after dismissal of the SLP. The learned Single Judge has rightly directed the State to treat the respondents to have been absorbed in service notionally on 18.03.2002, the date on which the issue relating to their absorption in Government Service was finally settled by the Supreme Court.
We find no good ground to interfere with the order of the learned Single Judge which, as rightly argued by learned counsel for the respondents, is in consonance with law and equity. The appeal lacks merit and is dismissed.
(Prashant Kumar, J.) (Manoj Kumar Gupta, J.) Order Date :- 29.3.2023 SL