Uttarakhand High Court
State Of Uttarakhand And Others ... vs Umrao Singh Bisht on 5 November, 2019
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Delay Condonation Application No.14309 of 2019
in
Special Appeal No. 943 of 2019
State of Uttarakhand and others ..........Appellants
Vs.
Umrao Singh Bisht ...........Respondent
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Ramesh Ranganathan, C.J. (Oral) The application, seeking condonation of delay in preferring this Appeal, is not opposed by the learned counsel for the respondent, and the delay is, therefore, condoned.
2. Heard Mr. Pradeep Joshi, learned Standing Counsel for the appellants and Mr. U.S. Bhakuni, learned counsel for the respondent-writ petitioner.
3. This appeal is preferred against the order passed by the learned Single Judge in WPSS No.355 of 2019 dated 24.06.2019. The respondent-writ petitioner herein filed WPSS No.355 of 2019 seeking a writ of certiorari to set aside the order dated 22.12.2018 passed by the third respondent; and a writ of mandamus directing the third respondent to make payment of pensionary benefits to the petitioner.
4. Facts, to the limited extent necessary, are that the petitioner was appointed as a Chawkidar (Van Rakshak) on 01.09.1977 in Almora Forest Division on daily wages. His services were subsequently regularized from 15.12.2003. The petitioner retired from service after attaining the age of superannuation on 31.10.2012 from Tarai West IVth Division, Ramnagar in District Nainital. On the ground that he had not completed 10 years of service, from the date on which his 2 services were regularized i.e. from 15.12.2003, the respondent-writ petitioner was denied pensionary benefits. He invoked the jurisdiction of this Court by filing WPSS No.902 of 2018 contending that the services rendered by him, from his initial appointment as a Chawkidar on 01.09.1977, should be reckoned as regular continuous service and, if it is so reckoned, then he would have put in service for a period beyond 35 years, and would be entitle for pension.
5. WPSS No. 902 of 2018 was disposed of by the order dated 18.09.2018, and the third respondent was directed to consider the petitioner's representation for grant of pensionary benefits. In the order, impugned in the Writ Petition, the third respondent, after referring to the provisions of the Uttarakhand Retirement Benefits Act, 2018 (for short the "2018 Act") observed that, since the petitioner's services prior to the date of his regularization from 15.12.2003 was not regular service, he was not entitled to be granted pensionary benefits. Aggrieved thereby, the respondent-writ petitioner invoked the jurisdiction of this Court filing WPSS No. 355 of 2019.
6. In the order under appeal, the learned Single Judge took note of Section 4 of the 2018 Act, the judgment of the learned Single Judge in WPSS No. 722 of 2014 (Laxmi Dutt Joshi vs. Principal Secretary Forest Department) and batch dated 10.12.2015, and State of Uttarakhand vs. Dan Singh Bisht (order in Special Appeal No.88 of 2013 dated 11.10.2017), and held that, since the petitioner had worked with the department continuously from 01.09.1977, he had worked as a regular employee for a period of approximately nine years; and he was thus entitled to pensionary benefits. The learned Single Judge held that the provisions of the 2018 Act would not apply, as the petitioner had retired from service 3 prior thereto in the year 2012. The impugned order dated 22.12.2018 was quashed, and a mandamus was issued to the third respondent to pay the petitioner his pensionary benefits within a period of six months. Aggrieved thereby, the present appeal.
7. Mr. Pradeep Joshi, learned Standing Counsel for the State Government, would submit that it is evident, from a bare reading of Section 1(2) of the 2018 Act, that the said Act is applicable to personnel appointed substantively before the 1st of October, 2005 under the services of the State Government. It is only personnel, appointed substantively from the 1st of October, 2005, who were to be governed by the new contributory pension. In terms of proviso (b) to Section 1(2), the services rendered on contract, work charged, part time, daily wages, ad-hoc and fixed salary would not be eligible for pension; Section 4(a) also stipulates that the services rendered substantively and regularly under the State Government shall alone constitute qualifying service for the purpose of pension; consequently, the services rendered by the respondent-writ petitioner, prior to the date of his regularization on 15.12.2003, cannot be reckoned for the purposes of determining qualifying service to be eligible for grant of pension; since the respondent-writ petitioner retired from service, on attainting the age of superannuation in the year 2012 before he could complete ten years of qualifying service, he was disabled, under the 2018 Act, to be granted pensionary benefits.
8. On the other hand, Mr. U.S. Bhakuni, learned counsel for the respondent-writ petitioner, would submit that in Laxmi Dutt Joshi, the learned Single Judge had taken note of the fact that the services of several employees were regularized pursuant to a scheme made and placed before the 4 Supreme Court in State of U.P. and others vs. Putti Lal :
(2006) 9 SCC 337; he had held that their continuous service, even prior to the date of regularization, should be reckoned;
and had granted them retiral benefits holding them to have completed ten years of service; again in Dan Singh Bisht, a Division Bench of this Court had granted a similar relief; the judgment of the Division Bench, in Dan Singh Bisht, has been affirmed by the Supreme Court, and the Special Leave Petition preferred there-against has been rejected; and, consequently, the order under appeal does not necessitate interference.
9. In Laxmi Dutt Joshi (order in WPSS No. 722 of 2014 and batch dated 10.12.2015), persons, similarly situated as that of the respondent-writ petitioner, were extended the benefit of pension treating the continuous service rendered by them, prior to the date of their regularization, also as qualifying service for the purpose of payment of pension. The fact, however, remains that the 2018 Act was made after the judgment of the learned Single Judge in WPSS No. 722 of 2014 and batch dated 10.12.2015, and the order of the Division Bench in Dan Singh Bisht (order in Special Appeal No. 88 of 2013 dated 11.10.2017).
10. In the order under appeal the learned Single Judge has observed that the 2018 Act has no application since the respondent-writ petitioner had retired prior thereto in the year 2012. The attention of the learned Single Judge was, evidently, not drawn to Section 1(2) of the 2018 Act which makes the Act retrospectively applicable to persons substantively appointed, before 01.10.2005, under the services of the State Government. In view of his regularization in service on 15.12.2003, the respondent-writ petitioner would, undoubtedly, be a person substantively appointed before 01.10.2005, and it does appear that the provisions of the 2018 5 Act would apply to him. In terms of proviso (b) to Section 1(2), and in the light of Section 4 (a) & (b) of the 2018 Act, the respondent-writ petitioner is ineligible for grant of pension.
11. Mr. U.S. Bhakuni, learned counsel for the respondent-writ petitioner, would submit that the aforesaid provisions of the 2018 Act are liable to be struck down as being violative of Article 14 of the Constitution of India, besides falling foul of the law declared in the aforesaid judgments. There is a presumption regarding the constitutionality of statutes and, in the absence of a challenge thereto, this Court must proceed on the premise that the law enacted by the State Legislature would apply. Since there is no challenge to the provisions of the 2018 Act, we cannot but express our inability to adjudicate on the constitutional validity of the 2018 Act or any of its provisions.
12. Mr. U.S. Bhakuni, learned counsel for the respondent-writ petitioner, would seek permission of this Court to challenge the constitutional validity of the provisions of the 2018 Act. In the light of the fact that several other employees, similarly situated as that of the petitioner, have been granted pensionary benefits, pursuant to the judgment of the learned Single Judge in WPSS No. 722 of 2014 and batch dated 10.12.2015, we consider it appropriate to give the petitioner an opportunity to challenge the constitutional validity of the 2018 Act. The order under appeal is set aside and the writ petition is restored to file.
13. It is open to the respondent-writ petitioner herein to file an amendment application in the said writ petition, including therein a challenge to the constitutional validity of the provisions of the 2018 Act.
614. The Special Appeal is disposed of accordingly. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.) 05.11.2019 JKJ/NEHA