Allahabad High Court
Geeta Devi vs State Of U.P. And 6 Others on 16 October, 2019
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 Case :- WRIT - A No. - 9201 of 2018 Petitioner :- Geeta Devi Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Amit Dubey,Ajit Dubey Counsel for Respondent :- C.S.C.,Pranjal Mehrotra,Vimlesh Kumar Rai Hon'ble Suneet Kumar,J.
1. Heard Sri Ajit Dubey, learned counsel for the petitioner and Sri Vimlesh Kumar Rai, learned counsel for the respondent.
2. Petitioner is the widow of ex-employee Mahaveer Prasad (for short ''employee'). He came to be appointed on 1 June 1988 on the post of Pump Operator, Grade-II as dailywage. The employer died in harness on 30 July 2010.
3. By the instant writ petition, petitioner seeks a direction to the respondents to compute and pay family pension along with interest thereon. The documents placed on record prepared by the respondent authority on 26 April 2011 shows the list of dailywagers who came to be appointed with the Executive Engineer, U.P. Jal Nigam. The name of the employee finds place at serial number 1710. The tabular chart reflects that the employee was appointed on 1 June 1988 and was entitled to pensionary benefits w.e.f. 1 April 1994 (column no. 6). The post on which the employee was to be regularized is Pump Operator Grade-II in the pay scale 2610-3735, revised pay scale 5200-20200. What is relevant from the document is that dailywagers therein are entitled to pension on completion of five years of service. In respect of the husband of the petitioner, it is w.e.f. 1 April 1994. It is not in dispute that before any formal order could be issued in respect to the employee for regularization, he died.
4. The short question that arises is as to whether the petitioner is entitled to family pension under the Rules applicable to the employees of the fifth respondent.
5. The facts, inter se, parties are not in dispute. The husband of the petitioner came to be appointed daily wager against substantive post in 1988. As per the decision of the respondent authority all such employees who had rendered five years of service were entitled for regularization and pension from retrospective date i.e. on completion of five years. However, in case of the employee, before any formal order could be passed, he died. The tabular chart, however, clearly shows that the employee was entitled to pension had he survived.
6. It is urged by learned counsel for the petitioner that merely because the employee died, the claim of the petitioner for family pension cannot be denied, since it is accepted that employee was entitled and suitable for the regularization and was entitled to earn pension.
7. Sri Vimlesh Kumar Rai, learned counsel appearing for the Jal Nigam, has drawn the attention of the Court to the office Memorandum dated 26 April 2011, issued by the Chief Engineer, U.P., Jal Nigam, Lucknow, wherein, the claim for regularization was provided. It is urged that as per conditions stipulated therein all those daily wage employees who came to be appointed prior to 29 June 1991 shall be regularized against vacant post. In the event of post not being available then against supernumerary post. In the event of retirement or death of an employee the supernumerary post shall automatically lapse. The proposal of the Chief Engineer was duly accepted by the Board in its 166th meeting held on 26 July 2017.
8. In rebuttal, it is urged that the petitioner is not disputing the decision or resolution of the Board. A dead employee cannot be considered for regularization, however, in the event of the employee having rendered qualifying service and dies before regularization or retirement, the consequences would follow. In that event, petitioner would be entitled to family pension. It is not the case of the respondent that the employee had not put in requisite years of qualifying service to disentitle him for pension. Since the employee was entitled and eligible for pension, petitioner would be entitled to family pension. It is further urged that the pension rules and Civil Services Regulation no where requires that a person should be substantively appointed. In case the appointment is against the substantive vacancy and has continued for several decades then in that event the employee is entitled to post retiral dues.
9. The Division Bench of this Court in Hari Shankar Asopa Versus State of U.P. and another1, was considering as to whether a temporary government servant appointed against the substantive post and continued as lecturer, reader and professor of surgery is entitled to retiring pension upon seeking to retire voluntarily. The Court upon considering the Articles 465 and 465A of the Civil Service Regulations read with Financial Hand Book Volume-II Part 2 to 4 made the following observation:
"16. The requirement of employment being substantive and permanent, which is one of the three basis constituents of ''qualifying service', envisaged in Articles 465 and 465-A has ceased to be sine qua non for earning a retiring pension by service under the Government of Uttar Pradesh after 7th June, 1975 with effect from which date the Uttar Pradesh Fundamental Rule 56 (amendment and Validation) Act, 1975 U.P. Act No. 24 of 1975), amending Rule 56 of the Rules and rescinding Articles 465 and 465-A of the Regulations, has been enforced. Now the source for attaining the right to retiring pension in R. 56.............
Clause (e) of Rule 56 unequivocally recognises, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Cl. (a) or Cl. (b). or who is required to retire, or who is allowed to. Retire under Cl. (c) of R. 56, becomes entitled for a retiring pension, provided, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied."
10. The Court accordingly held that person appointed temporarily against a substantive vacancy is entitled to retiring pension in view of Rule 56 of the Fundamental Rules.
11. In Shakuntala @ Brahmo Devi (Smt.) Versus Director of Pension2, the learned Single Judge of this Court was called upon to consider whether a temporary government servant rendering 34 years of service upon being compulsory retired is entitled to pensionary benefit. While deciding the issue the Government Order dated 1 July 1989, provided that government servants not rendering ten years of regular service are not entitled for pensionary benefits. The Court taking note of the provisions of Articles 361, 424, 465 of the Civil Service Regulations and Fundamental Rule 56 observed as follows:
"10...........By Government order dated 1.7.1989, it was provided that temporary Government servants who have rendered ten years regular service are also entitled for the retirement benefits. The aforesaid Government order was issued with intent to extend the pensionary benefits to temporary Government servants, which is clear from the first paragraph of the Government order. Paragraph 2 of the Government order further provides that those temporary Government servants who have completed minimum ten years regular service on the date of retirement/superannuation or who have been declared invalid by the appointing authority will be entitled to the superannuation/invalid pension, gratuity, family pension as admissible to a permanent employee. Paragraph 3 further provides that this provision will also be applicable in those cases where permission has been granted for voluntary retirement in accordance with the fundamental Rule 56. The Government order does not specifically provide that the persons who are compulsorily retired will not be given the benefit........
11.............. Thus, the intendment of Rule 56 (e) is to provide retirement pension to every Government servant who retires or is required to retire under Rule 56. Thus the intendment of statutory Rule 56 (e) is to extend benefit of retiring pension to both category of persons, i.e., persons compulsory retired or persons voluntarily retired. From the above intendment of rule, it is clear that no distinction or discrimination has been maintained with regard to payment of retiring pension to persons voluntarily retired or compulsorily retired. Thus, by Government order dated 1.7.1989 the temporary Government servant compulsorily retired cannot be excluded from benefits of retiring pension. When the statutory Rule, i.e., 56 (e) does not maintain any distinction with regard to payment of retiring pension to persons compulsorily retired and voluntarily retired, no such classification can be created by a Government order, which is an executive order. The object of the Government order as noted above was to extend pensionary benefits to temporary Government servants who have rendered ten years regular service. Thus, the persons compulsorily retired cannot be excluded from the pensionary benefits and if it is accepted that the Government order dated 1.7.1989 creates such classification, then the said classification will be arbitrary and unreasonable. It is thus held that the benefit of Government order dated 1.7.1989, is also available to the temporary Government servants who are compulsorily retired. There is no rational basis for any such classification nor there can be any valid object for such classification."
12. The Court upon perusal of the Government order dated 1 July 1989 was of the opinion that the Government order refers to "regular service" and not "substantive service". The Court explained what was meant of regular service. Relevant portion of the order reads thus:
"12........The words **nl o"kZ dh fu;fer lsok iw.kZ dj yh gks*A** used in the Government order dated 1.7.1989, means completion of ten years regular service. Words "regular service" has not been defined in the Government order. From a reading of the Government order, it is clear that the word "ten years regular service" has been referred to the service rendered and not to the status of employee, an employee substantively appointed and permanent is automatically entitled for pension. The Government order dated 1.7.1989 does not contemplate ten years substantive service. The word "regular service" used in the Government order is not anonymous to substantive service. Admittedly, the benefit by Government order is to be extended to temporary Government servants. The temporary Government servant cannot be said to have substantive or regular service. Thus, the word "regular service" used in the Government order dated 1.7.1989 has not been used as specifying the capacity or status of its holder rather. The word "regular service" has been used to denote and specify the nature of service rendered. The emphasis is that service should be "regular". While defining the word 'regular', the Apex Court in Mrs. Raj Kanta v. Financial Commissioner, Punjab and another, AIR 198O SC 1464, has held in paragraph 10 as under :
"To begin with, the word "regular" is derived from the word "regula" which means 'rule' and its first and legitimate signification, according to Webster, is conformable to a rule, or agreeable to an established rule, law, or principle, to a prescribed mode. In Words and Phrases (Vol. 36A P. 241) the word "regular" has been defined as 'steady or uniform in course, practice or occurrence, etc., and implies conformity to a rule, standard, or pattern'. It is further stated in the said Book that 'regular' means steady or uniform in course, practice, or occurrence, not subject to unexplained or irrational variation. The word 'regular' means in a regular manner, methodically, in due order. Similarly, Webster's New World "Dictionary defines 'regular' as 'consistent or habitual in action', not changing, uniform, conforming to a standard or to a generally accepted rule or mode of conduct'."
13. From the above passage of the Apex Court's judgment, it is clear that service of a temporary employee should be in regular manner, methodically, in due order.
14. Government order dated 1.7.1989 meant ten years of temporary Government servant should be regular in nature meaning thereby that if the temporary Government servant has performed his duties irregularly, i.e, with gaps of years, his service may not be treated to be regular. .........."
13. The decision was considered by the subsequent Division Bench in Board of Revenue and others Versus Prasidh Narain Upadhyay3. The issue before the Court was whether a seasonal collection peon subsequently confirmed is entitled to pension on rendering 36 years of the continuous service. The plea of the State-respondent that since the petitioner therein had not completed 10 years of substantive service after confirmation is not entitled to pension was rejected.
14. In Yashwant Hari Katakkar v. Union of India and ors.4, it was held that an employee who has served more than 20 years is entitled to pension and denial of retiring pension to the petitioner on the ground of not being permanent on any post clearly is violative of Clause (e) of Fundamental Rules, 56. The department cannot keep a person temporary or on daily wages indefinitely.
15. In A.P. Srivastava v. Union of India and Ors.5, the Supreme Court has clearly taken a view that in case of a temporary employee who has rendered 20 years of service is entitled to pension. In the expression 'substantive capacity' the emphasis imparted by the adjective 'substantive' is that a thing is substantive if it is essential part of the constituent or relating to what is essential. Therefore, when a post is vacant, however, designated in officilase, the capacity in which the person holds the post has to be ascertained by the State. The substantive capacity refers to capacity in which person holds the post and not necessarily to the nature and character of the post. Thus, a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially for a long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation. ((Refer Ram Pratap V. State of U.P.6, Babu Singh V. State of U.P.7, Kedar Ram-I v. State of U.P.8, Ram Sajiwan Maurya v. State of U.P. and others9, Kanti Devi v. State of U.P.10, Kishan Singh v. State of U.P.11, Awadh Bihari Shukla v. State of U.P.12)
16. The Division Bench of this Court in State of U.P. and others v. Mahendra Chaubey13, allowed the claim of pension of a seasonal collection amin whose temporary service was followed by substantive appointment despite the petitioner therein having not rendered 10 years substantive service after regularization.
17. The principle that emerges from the spectrum of the decisions is that a temporary employee appointed on the regular establishment of the Government is entitled to pension under Fundamental Rule 56.
18. A three Judge Bench of the Supreme Court in Prem Singh vs. State of Uttar Pradesh14 was considering the question, as to whether, Rule 3(8) of the U.P. Retirement Benefits Rules, 196115 and Regulation 370 of the Civil Services Regulation of Uttar Pradesh should be struck down having regard to the fact that the Supreme Court had upheld the pari materia provision enacted in the State of Punjab which excluded computation of the period of work-charged services from qualifying service for pension.
19. The appellant before the Supreme Court was a work-charged employee having put in more than three decades of service, pension was declined as the appellant had not put in 10 years of regular service after regularisation. The question posed was whether after regularization employees are entitled to count their past service. The Court made the following observations:
"35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka and others vs. Uma Devi, 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to relegate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension."
20. Applying the precedents on the facts of the instant case, it is evident from the material placed on record that the employee was appointed in 1988 against a regular post. The employee was eligible to be regularized from 1994 against a substantive vacancy in the admissible pay-scale of the post. However, before an order of regularization could be passed he died. The employee was engaged against a sanctioned post and was being paid salary commensurate to the post. In the circumstances, it is urged that it is not open to the respondents to deny the petitioner family pension discarding the past service rendered by the employee.
21. The learned Counsel for the respondent finally submits that Prem Singh (supra) is applicable to work charged employee and in the given facts would not be apply to the petitioner. The submission lacks merit. The Supreme Court in Prem Singh (supra) upon reading down Rule 3(8) of the U.P. Recruitment Benefits Rules, 1961, and striking down Regulation 370 of Civil Service Regulation held that in case the employee was appointed in the regular establishment and retired therefrom on rendering continuous service is entitled to count past service for computation of pension. The mandate was made applicable to all such employees who were not regularised despite rendering service on the regular establishment for over three decades.
22. In the facts of the case in hand, the employee admittedly came to be employed against a regular post on temporary basis. In the circumstances, the principle of law declared in Prem Singh (supra) would entitle the petitioner for family pension.
23. In view thereof, the writ petition is allowed. Petitioner is entitled to family pension. The arrears of pension shall be confined to three years before the date of order. The respondents to pay the admissible benefits within three months from the date of communication of the order.
24. No cost.
Order Date :- 16.10.2019 K.K. Maurya