Uttarakhand High Court
State Of Uttarakhand And Others vs Dan Singh Bisht on 11 October, 2017
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 88 of 2013
State of Uttarakhand & others. ............ Appellants
Versus
Dan Singh Bisht. .............. Respondent
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand / appellants.
Mr. U.S. Bhakuni, Advocate for the respondent / writ petitioner.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
Dated: 11th October, 2017 K.M. JOSEPH, C.J. (Oral) Appellants are the respondents in the writ petition. The writ petition was filed challenging order dated 07.06.2012 passed by the Secretary, School Education, denying pension, gratuity and other retiral benefits to the writ petitioner. Writ petitioner also sought heavy cost and penal interest for inordinate delay in settling the dues.
2. The facts, as taken note of by the learned Single Judge, are as follows:
Writ petitioner was appointed on 25.04.1977. He contended that it was on a regular substantive vacancy of Chowkidar in Madhyamik Vidhyalaya, Bhoolkharkwal Gaon, District Almora vide order dated 21.04.1977. At that relevant time, the institution was under the control of a body known as U.P. Basic Shiksha Parishad. Vide order dated 24.08.1985, the service of the writ petitioner was regularized. On 30.06.2011, writ petitioner retired from service. Since he was not paid any retiral benefits or pension, he represented his grievances. Since nothing was done, he filed Writ Petition (S/S) No. 451 of 2003. The writ petitioner was directed to file a representation and the Secretary, 2 Education, was directed to consider the matter. It is, thereafter, that the impugned order was passed.
3. The learned Single Judge found the action of the appellants contemptuous in relation to the judgment in the earlier round of litigation. We refer to the following portion of the order passed in the earlier writ petition, which was referred to by the learned Single Judge:
"The case of the petitioner is that he has been working on substantive vacancy since 1977 and though he has been regularized in 1995, he has been working on a regular substantive vacancy. This assertion of the petitioner has not been denied by the State in its counter affidavit. Therefore, this Court is of the considered view that since the petitioner has been working continuously on a permanent substantive vacancy since 1977 and consequently regularized in 1995, he is liable to be given pension. Hon'ble Apex Court in 'R Kapoor vs. Director of Inspection (Painting and Publication), Income tax and Anr.', reported in 1995 (1) UPLBEC page- 89, has held that the pension and gratuity are not bounty and it is a right of a retired government servant."
4. Therefore, on assessment of the facts, it was found that, once the High Court has given a clear-cut finding in Writ Petition (S/S) No. 451 of 2003 that the writ petitioner has been working continuously on a permanent substantive vacancy since 1977 and consequently regularized in 1995, he is liable to be given pension. It was found that the denial was exclusively unwarranted and meant to harass the writ petitioner in the light of what has been expressed in the preceding paragraphs. Thereafter, the learned Single Judge directed as follows:
"7. In view of these facts, the writ petition is allowed. Impugned order dated 07.06.2011 passed by respondent no.1 is set- aside. Respondents are directed to make payment of pension/gratuity and other retiral benefits to the petitioner within a period of two months from the date of production of a certified copy of this order. The respondents are also directed to pay 9% (nine per cent) interest to the petitioner on the delayed payment for the period, from which date representation of the petitioner was rejected till the payment is actually made to the petitioner.
8. In the facts and circumstances of the case and in the manner in which the respondents causing delay in making payment 3 to the petitioner, I impose a cost of ` 50,000/- on the respondents. The said cost shall be paid to the petitioner within a period of six months from the date of production of a certified copy of this order."
5. Feeling aggrieved, the appellants are before us.
6. We have heard Mr. Pradeep Joshi, learned Standing Counsel for the appellants and Mr. U.S. Bhakuni, learned counsel for the respondent / writ petitioner.
7. The complaint of the writ petitioner fell in two parts; one related to the denial of pension and the other related to the rejection of his claim for gratuity.
8. We will, first, take-up the case relating to pension. We would think that the learned Single Judge has rightly placed reliance on the findings recorded in the judgment in the earlier round of litigation, which we have already extracted. The learned Single Judge, in the earlier round of litigation, has categorically found that the case of the writ petitioner that he has been working on a substantive vacancy since 1977, though he has been regularized in 1995, has not been denied by the State in the counter affidavit. Thereafter, the Court proceeds to categorically state that, therefore, this Court is of the considered view that, since the writ petitioner has been working continuously on a permanent substantive vacancy since 1977 and consequently regularized in 1995, he is liable to be given pension. As noted by the learned Single Judge, appellants did not carry the matter in appeal or dispute the same by filing a review / recall. Therefore, this finding has been correctly attributed finality by the learned Single Judge.
9. An attempt is made by Mr. Pradeep Joshi, learned Standing Counsel for the appellants, however, to refer us to the actual order of appointment and to contend that it would show that there was no vacancy and, therefore, notwithstanding the decision in the earlier round, the 4 decision of the learned Single Judge is unsustainable. We deem it appropriate to extract the translated version of the order of appointment of the writ petitioner, which reads as follows:
"ORDER Consequent to taking of Secondary School Bhulkhrakwalgaon by the Basic Education Board and due to non- sanction of the post of Chaukidar in the said School by the Government, Sri Dan Singh Bisht working as Chaukidar in Secondary School Bhulkhrakwalgaon is appointed purely on temporary basis on consolidated salary of Rs. 165-00 per month along with Dearness Allowance as sanctioned by the department, is appointed in Girls Secondary School Kausani. Thus, Sri Bisht is directed to join his new place of posting within a week and information of joining be forwarded through Head Mistress, Girls Secondary School Kausani along with educational certificate, date of birth, medical certificate issued by the Medical Officer of Govt. Hospital to this office. His said appointment is purely temporary which can be dispensed with at any time without any prior information.
21.04.77 Sd/-
(Shyam Lal Pathari) Deputy Inspector of Schools, Almora Office of the Deputy Inspector of Schools, Almora Reference No. 416/Fifteen-42(2)/77-78 dated 21st April 77 Copy forwarded for information and necessary action to the following:
1. Sri Dan Singh Bisht, Chaukidar, Secondary School Bhulkhrakwalgaon.
2. Head Mistress, Girls Secondary School Kausani.
3. Bill Clerk Garur.
Sd/-
Deputy Inspector of Schools Almora"
10. The attempt made by the learned Standing Counsel for the appellants was to point out that there was non-sanction of post of Chaukidar in the School and, therefore, this makes it abundantly clear that the case of the writ petitioner that he was working against a substantive vacancy is not correct. But, even here, we notice that the contents of the said order only go to show that, consequent upon taking over of the Secondary School Bhoolkhrakwal Gaon and due to the non-sanction of the post of Chaukidar in the said School by the Government, the writ 5 petitioner, who was working as a Chaukidar in the said School, was appointed purely on temporary basis on a consolidated salary with Dearness Allowance as sanctioned by the department in Girls Secondary School, Kausani. So, it is not as if there is no vacancy in the Girls Secondary School, Kausani. Therefore, we are also fortified even on a perusal of the order to agree with the finding of the learned Single Judge that the stand taken by the Government in regard to the non-payment of pension is unsustainable. Counting the period when the writ petitioner worked prior to his being regularized in the year 1995, it is quite clear that the writ petitioner had the requisite service for being paid pension. Hence, the appellants' contention in regard to pension will stand rejected.
11. As regards non-payment of gratuity, the sheet-anchor of the appellants appears to be Government Order dated 23.11.1994, the translation of which reads as follows:
"No. 6369/15-5-93-55/89 From, Mr. Shubash Bahukhandi, Special Secretary, Government of Uttar Pradesh. To,
1. Director (Elementary Education) Uttar Pradesh Lucknow.
2. Director (Secondary Education) Uttar Pradesh Lucknow.
Education (5) Section Lucknow dated 23 Nov. 1994 Subject- Regarding provision of gratuity after retirement at the age of 58 to the teachers, Non teaching employee of UP basic education Board Non teaching employees of aided private high school and teachers and Non teaching employees of aided private junior high school.
Sir With reference to the letter no. Ba/Sh/P/Pension17066/92-93 Dated 31-10-1992 of Secretary, UP Basic Education Board, I am directed to state that the teachers and non teaching employee of UP basic education Board, teachers and non teaching employee of aided private junior high school, have demanded the facility of gratuity after retirement at the age of 58 years like the teachers in secondary education. After a thorough consideration the Governor is pleased to issue an order to provide the facility of gratuity to the teachers, Non teaching employee of UP Basic Education Board, teachers and Non teaching employee of aided private junior high school, and non teaching employee of the aided private secondary 6 schools after their retirement at the age of 58 years like the teachers of aided private secondary school opting retirement at the age of 58 years. This facility shall only be provided to teachers / employee producing option in a prescribed format to retire at the age of 58 years. This facility shall be provided to the said teacher / employee after the issuance of this order.
2. It is further stated that this facility shall only be given to the teacher / employee who will produce their option in a prescribed format. The pension sanctioning authority within 90 days from the issuance of this order failing to produce the option shall be deemed as the teacher / employee does not want to avail the facility. Option once produced shall be final and irreversible.
3. First copy of the option countersigned by the pension sanctioning officer given by the teacher / Non teaching employee of Basic Education Board, teacher / non teaching employee of aided private junior high school and non teaching employee of aided high school shall be enclosed with the service book of the teacher / employee. Second copy of the option countersigned by the pension sanctioning officer shall be kept safe in the office of the next higher office.
This order is being issued on the approval of the finance department vide No. (A.Sha.S.E.-11/3483/X-94 dated 23.11.1994).
Faithfully (Shubash Bahukhandi) Special Secretary"
12. With reference to the same, the argument is that the writ petitioner cannot be given gratuity for the reason that the requirement in the said order was that the employee must give his option for getting gratuity and the further condition was that he should not continue beyond the age of 58 years. In the case of the writ petitioner, there is no dispute that he continued till the age of 60. Learned counsel for the writ petitioner would only say that no option was called from him and also that, in the papers which he signed after retirement, there was no reference to this.
13. Learned Standing Counsel for the appellants would submit that the writ petitioner was actually regularized on 24.08.1995 and the actual date of appointment of the writ petitioner is 21.04.1977.
14. Learned counsel for the writ petitioner also tried to draw support from the order by which he was given promotional pay scale. But, none of these things will be relevant in deciding the issue relating to entitlement 7 to gratuity. This is a matter, which is to be decided with reference to Government Order dated 23.11.1994. Insofar as the writ petitioner continued beyond 58 years and did not opt for gratuity and retired only at the age of 60 years, he is not entitled for gratuity.
15. The result of the aforesaid discussion is that the appeal must be partly allowed and it must be found that the writ petitioner is, indeed, entitled to pension taking into consideration the period he has worked from 1977; but, he is not entitled to get gratuity. In the facts of this case, we would think that the submission of the learned Standing Counsel for the appellants for reduction of the cost from Rs. 50,000/- cannot be allowed entirely. The writ petitioner is a Chaukidar and this is the second round of litigation. Therefore, we would think that the amount of cost cannot be reduced below Rs. 30,000/-.
16. Accordingly, the appeal is partly allowed; the judgment passed by the learned Single Judge is modified; while we affirm the direction in relation to pension, the direction to pay gratuity will stand set aside; and, as regards cost, the amount of cost will stand reduced to Rs. 30,000/-.
(Alok Singh, J.) (K.M. Joseph, C. J.)
11.10.2017 11.10.2017
G