Allahabad High Court
Ramdhani And Others vs State Of U.P. And Others on 13 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 706
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on : 17.10.2019(In Court No.34) Delivered on :13.04.2020(At Residence) At Residence Case :- WRIT - A No. - 39283 of 2004 Petitioner :- Ramdhani And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- S.A.Lari,Digvijay Tiwari Counsel for Respondent :- C.S.C., K.K. Roy, Rajendra Srivastva, Rakesh Kumar Srivastava, Shyam Krishna Gupta Hon'ble Sudhir Agarwal,J.
1. Heard Sri Digvijay Tiwari, learned counsel for learned counsel for petitioners, learned Standing Counsel for State-respondent-1 and Sri Shyam Krishna Gupta, learned counsel for respondent-2.
2. This writ petition under Article 226 of Constitution of India has come up before this Court at the instance of two petitioners namely, Ramdhani son of Shri Mahesh and Mallu son of Ghaur, who have prayed for issue of a writ of mandamus commanding respondents to pay pension to petitioners from the date of their retirement and continue to pay the same, month to month, as and when it falls due. Petitioners have also prayed for a writ of mandamus commanding respondents to pay Life Insurance Policy amount of petitioner-2 with interest.
3. Facts in brief, giving rise to present writ petition, are, that "Junior High School" of Avra Chauro, Area Baitalpur, District-Deoria is a recognized "Senior Primary School" governed by the provisions of U. P. Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") and Rules framed thereunder. Petitioner-1 was appointed as Class IV employee on 01.10.1972 and petitioner-2, similarly, was appointed as Class IV employee on 01.01.1957. After completing 31 and 47 years of service, petitioner-1 attained age of superannuation and retired on 31.03.2003 while petitioner-2 retired on 03.08.2001. After retirement, petitioner-2 was paid a sum of Rs.4538/- towards Insurance amount on 29.10.2003.
4. Petitioner-2 was paid fixed salary from 01.01.1957 to 30.11.1997 and thereafter the prescribed pay scale of Rs.750-940/- with effect from 01.12.1997. Petitioner-1 was given fixed pay up to 31.10.1997 and thereafter he was placed in prescribed pay scale w.e.f. 01.11.1997.
5. Since, pensionary benefits were not given, petitioners made representation dated 01.07.2003. Seeking clarification, whether pension is payable to petitioner-2, a letter was sent by District Basic Education Officer, Deoria (hereinafter referred to as "DBEO") to Deputy Director, Secretariat Training and Management Institute, Gorakhpur Branch, Gorakhpur informing that petitioner-2 was appointed on 01.01.1957 on Class IV post (Peon) and paid fixed pay of Rs.24/- per month w.e.f. 01.01.1957, Rs.34/- per month w.e.f. 01.01.1976, Rs.165/- per month w.e.f. 01.04.1979, Rs.305/- per month w.e.f. 01.11.1982, Rs.750/- per month w.e.f. 01.01.1986 and Rs.2550/- per month w.e.f. 01.01.1996, besides dearness allowance. Petitioner-2 was placed in regular pay scale vide order dated 01.12.1997 and his pay was fixed as Rs.2550/- per month. He retired on 30.08.2001. He was declared permanent w.e.f. 01.12.1998. As per Regulation 368 of Civil Service Regulation (hereinafter referred to as "CSR"), no pension is payable unless government servant is permanent. In the present case, petitioner-2 became permanent on 01.12.1998 and has not completed 10 years of service till date of his retirement, as a confirmed employee. However, vide Government Order No.3-1152/Vas-915-86 dated 01.07.1989 it has been provided that those who have completed 10 years of regular service, shall be paid pension as payable to permanent employees. In these circumstances, DBEO, Deoria sought clarification whether pension is payable to petitioner-2 or not.
6. Contesting writ petition, counter affidavit has been filed on behalf of respondents sworn by Sri Awadhesh Narayan, Basic Shiksha Adhikari, Deoria. It is said that petitioner-1 was appointed in Primary School maintained by Basic Education Board (hereinafter referred to as "Board") on 01.10.1972 on fixed salary of Rs.20/- per month. In District-Deoria there were 100 sanctioned posts of Peon in Junior High School, run and controlled by Board. Government orders provided that appointment of Peon on fixed salary cannot be made on sanctioned posts in case vacancies are available. Petitioner-1 was appointed on sanctioned post after permanent vacancy occurred on 01.01.1998 and on completion of 60 years of age retired on 31.03.2003. Similarly, petitioner-2 was appointed on fixed salary of Rs.20/- per month on 01.01.1957 and in 1997 he was given appointment against sanctioned post. He retired after completion of 60 years of age in 2001. In respect of enquiry made, it is said that State Government has provided that those Class IV employees who were appointed on fixed pay are not regular employees hence not entitled to pensionary benefits. Finance and Accounts Officer, Basic Shiksha Parishad, Deoria by letter dated 20.07.2004 informed that since petitioners have not completed 10 years of service on substantive vacancies in regular pay scale, hence, not entitled to pension. There are 100 sanctioned posts of Peon in District-Deoria whereagainst appointments could have been given on fixed salary on vacant substantive posts. However, pension is payable after completion of 10 years of regular service.
7. In rejoinder affidavit filed by petitioner, facts already stated are virtually reiterated and it is said that petitioners having worked continuously, followed by substantive appointments, their entire service is liable to be computed for pension and otherwise view taken by respondents is incorrect.
8. Supplementary affidavit has also been filed bringing on record Government Orders (hereinafter referred to as 'G.O.') dated 14.06.1978, 30.06.1996 and 17.06.1996.
9. Learned Standing Counsel said that since only G.O.'s have been placed on record, no supplementary counter affidavit would be necessary. These are matters of record and Court may examine the same.
10. The only issue up for consideration in this writ petition, therefore, is "Whether service rendered by petitioners on Fixed Pay is liable to be computed as qualifying service for the purpose of pension."
11. This issue I find has been specifically considered by Division Bench consisting of Hon'ble Ashok Bhushan, J. (as His Lordship then was) and Hon'ble Arun Tandon, J., in State of U. P. and others vs. Gaya Ram, 2009 (2) ESC 1145 (All). Therein Gaya Ram was appointed as Class IV employee in Junior High School/Senior Primary School on Fixed Pay. He was brought in regular pay scale of Rs.750-940 by order dated 30.111995. After attaining age of superannuation on 31.12.2004 i.e. on the date of retirement, he had not completed 10 years of regular service in regular pay scale. Finance and Account Officer, Basic Education, Sonebhadra, vide letter dated 02.06.2005, informed Basic Shiksha Adhikari that service rendered on Fixed Pay, prior to appointment on regular pay scale, will not be treated as qualifying service, hence, Gaya Ram was not entitled for pension. Gaya Ram filed a writ petition claiming that his entire service be counted as qualifying service. Learned Single Judge returned a finding in favour of Gaya Ram, hence, State came in intra Court appeal. Division Bench held that as per Rules a Class IV employee working under the control of Basic Shiksha Parishad having rendered 10 years qualifying service, is eligible for grant of pension. This fact was not disputed that a Class IV employee of Junior High School who has put in 10 years of qualifying service was entitled for pension. Under Regulation 44 of Regulations framed under U. P. Basic Education Act, 1972 (hereinafter referred to as "U.P. Act, 1972"), temporary and officiating services, if on the same post or another post by incumbent, can be added as qualifying service. However, Court held that Regulation 44 was not applicable in the case, since, services of Gaya Ram as Class IV employee on Fixed Pay could not be termed as temporary or officiating service but it was an employment on fixed emoluments. Court explained difference in the nature of appointment of temporary employee vis-a-vis any employee who is appointed on fixed salary, and said as under :
"15. There is a difference in the nature of the appointment of temporary employee vis-a-vis an employee who is appointed on fixed salary. A temporary appointment can be made against a permanent or temporary post, whereas for the appointment on fixed pay there is no requirement of a post. Thus, there is a major difference in the nature of appointment of two classes of employees. Thus, the judgment in the case of Hans Raj Pandey (supra), insofar as it holds that the period of service rendered on fixed pay, prior to regularisation, shall also be added in his qualifying service, cannot be upheld.
16. Learned Counsel for the Respondent submits that in the service-book of the Petitioner the word "temporary" has been mentioned, he was a temporary employee. Petitioner has also produced photo copy of the service-book, which we have perused. From the perusal of the service-book it is clear that the Respondent was initially appointed on fixed emolument of Rs.165 per month and the said fixed emolument was subsequently increased w.e.f. 1.1.1986 to Rs.750 which emolument was paid till he was regularised. While fixing the scale w.e.f. 1.1.1986 it has been mentioned that his salary was Rs.750. In the order dated 2.6.2005 the Finance and Account Officer has also noted that the Respondent, prior to regularisation, was working on fixed pay of Rs.750."
(emphasis added)
12. In the present case, it is not in dispute that petitioners were initially appointed as Class IV employee on fixed pay.
13. Thus the above law squarely applied to this case. Above Division Bench in State of U.P. vs. Gaya Ram (supra) has been followed in Special Appeal No.536 of 2011, Basic Shiksha Parishad and others vs. Ram Awadh and others decided on 17.01.2013 and by another Division Bench in Special Appeal No.1462 of 2011, District Basic Education Officer and others vs. Ram Awadh Yadav and another, decided on 02.09.2015.
14. Learned counsel for appellant, however, placed reliance on Supreme Court's recent judgment, in Prem Singh vs. State of U.P. and others, Civil Appeal No.6798 of 2019, decided on 02.09.2019, wherein a Three Judges Bench of Supreme Court has held that even service rendered in Work charge establishment will qualify for pension, but I find that there was no issue that employees in Work Charge establishment were appointed on fixed pay. When they were substantively appointed, they were given regular pay scale. On the contrary, para 22 of the judgment shows that Advocate General appearing for the State of U. P. himself contended that employees engaged in work charge were temporary and, therefore, it is clear that they were not employees who were appointed initially on fixed pay and thereafter they were given appointment in regular pay scale. The only issue was whether temporary or substantive service rendered in Work Charge will qualify for pension or not and that has been answered by Supreme Court holding that services rendered by work charged employee will qualify for pension. Work charge employees before Supreme Court were given monthly salary and they were also allowed to cross efficiency bar. Court, therefore, found no qualitative difference between them and other employees of regular establishment. Observations made in paragraph 29 of judgment are reproduced hereinunder :
".......The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma & Ors. v. State of Uttar Pradesh & Ors. (CA No.______2019 @ SLP (C) No.5775 of 2018) the appellants were allowed to cross efficiency bar, after ''8' years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak w.e.f 15.9.1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs.200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation.
(emphasis added)
15. Reasons for considering work charge services as qualifying service has been given in paragraphs 32, 33 and 34, which read as under :
"32. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.
33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
34. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook."
16. Therefore, bound by Division Bench judgments of this Court, noticed above, I have no option but to hold that services rendered by petitioners on Fixed Pay as Class IV employee will not be treated as qualifying service, hence, relief prayed by petitioners, cannot be granted.
17. Writ petition lacks merit. It is dismissed accordingly. Interim order, if any, stands vacated.
Order Date : 13.04.2020 Manish Himwan