Allahabad High Court
Amar Nath And 3 Ors. vs State Of U.P. And 3 Ors. on 24 May, 2019
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 2 Case :- WRIT - A No. - 61048 of 2016 Petitioner :- Amar Nath And 3 Ors. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Amarish Srivastava,Anoop Kumar Mishra,Anoop Kumar Srivastava Counsel for Respondent :- C.S.C.,Bushra Mariam,Manish Goyal Hon'ble Suneet Kumar,J.
Heard Sri Anoop Kumar Srivastava, learned counsel for the petitioner, learned Additional Chief Standing Counsel for the State-respondent and Ms. Bushra Mariam, learned counsel appearing for the second, third and fourth respondents.
Petitioners, four in number, are ex-employees of the second respondent, High Court of Judicature at Allahabad. It is informed that the youngest of the petitioners is aged about 80 years. By the instant writ petition, petitioners seek the following relief:
"A) issue a writ of mandamus, order or direction in the nature of mandamus directing the respondents to pay pension to the petitioners at par with the pension of the retirees from the post of Principal Private Secretary in the office of the High Court of Judicature at Allahabad in the light of the GO Sa 1358/X-2010 dated 19.07.2010 (Annexure 1), No. 7/sa-3-G.I.-02/X-2014-308/97 T.C. dated 14.07.2014 (Annexure 2) and GO dated 21.01.2016 (Annexure No. 3), with effect from 01.01.2006 and continue to pay the pension month by month in future as and when it falls due."
The facts, briefly stated, is that petitioners initially came to be appointed and confirmed as Stenographers in the High Court, Allahabad. The post was subsequently re-designated as Personal Assistants. In due course of service the petitioners earned promotion and reached the highest post of their cadre i.e. Principal Private Secretary/Head Private Secretary (PPS/HPS). The petitioners, thereafter, came to be transferred from the cadre of Private Secretary to the cadre of Deputy Registrar carrying the same pay-scale (Rs. 10650-325-15850) in terms of Rule 20(c)(ii) of Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (for short 'Rules, 1976').
Rule 20(c)(ii) provides that 15% of the quota of Deputy Registrar is required to be recruited by transfer of PPS/HPS. Rule 20(c)(ii) reads thus:
"20. Source of recruitment to class I posts.......
(a) Assistant Registrar.........
(b) Principal Private Secretary to Chief Justice/Head Private Secretary.....
(c) Deputy Registrar
(i) By promotion from the Assistant Registrars:
(ii) By transfer of Principal Private Secretary/Head Private Secretary:
Provided that the post is available in his own quota. Bench Secretaries Grade-I (15 percent) and Permanent Private Secretaries including Assistant Principal Private Secretary (15 per cent)."
The order of appointment of the petitioners reflect that the petitioners came to be transferred in officiating capacity on the post of Deputy Registrar which was made subject to further orders. In other words, the petitioners were not appointed on transfer in substantive capacity in terms of Rule 20(c)(ii) of the Rules, 1976. Pursuant thereof, the first petitioner worked as officiating Deputy Registrar from 20 September 1995 till 30 September 1997, similarly, the second petitioner worked in officiating capacity from 24 July 1995 till 31 January 1999; the third petitioner worked as officiating Deputy Registrar from 28 July 1998 to 30 April 1999 and fourth petitioner worked as officiating Deputy Registrar from 20 April 1999 to 28 February 2000. All the petitioners retired on attaining the age of superannuation while working on the post of Deputy Registrar.
After retirement, the nomenclature and pay-scale of Private Secretary cadre came to be changed upon the promulgation of Allahabad High Court Private Secretaries (Conditions of Service) Rules, 2001 (for short 'Rules, 2001'). Consequently, Rule 20(c)(ii) of Rules, 1976 came to be repealed in view of Rule 14 of Rules 2001. The pay-scale of the Principal Private Secretary (PPS) was enhanced at Rs. 16,400-450-20,000. Thereafter, the pay band was revised to Rs. 37,400-67,000 at pay grade Rs. 8900. The State Government accepted the recommendation of the VIth Central Pay Commission, consequently, the pension of the pensioners who had retired from the post of Private Secretary before 1 January 2006 came to be fixed. In other words, all pensioners who retired as Principal Private Secretaries (PPS/HPS) their pension came to be revised as per the pension admissible in view of the higher pay band/pay grade recommended by the Pay Commission and accepted by the State Government as against their counterparts who retired from the post of Deputy Registrar.
The State Government vide Office Memorandum dated 19 July 2010 laid down the principle of computing the minimum revised pension that is "revised pension shall not be lower than 50% of the sum of the minimum of the pay band and the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired." Pursuant thereof, the State Government vide Office Memorandum dated 14 July 2014 revised the minimum pension of the pensioners (PPS/HPS). Consequent, upon revision of the pay band and in consequence the pension of Private Secretaries, all such pensioners who retired from the post of PPS/HPS in 1984, 1999 and 2000 i.e. prior to the promulgation of Rules, 2001, and who were not appointed/recruited on transfer to the post of Deputy Registrar in terms of Rule 20(c)(ii) of 1976 Rules; pursuant to Office Memorandum dated 19 July 2010 and 14 July 2014, came to receive higher pension at Rs. 24295, as against those pensioners (PPS/HPS) who came to be appointed on transfer as Deputy Registrar, their pension were lower than those who retired from the post of PPS/HPS. In other words the pensioners/(PPS/HPS) who retired from the post/cadre of Deputy Registrar came to receive lower pension as against their counter part who retired from the post/cadre of Private Secretary.
Prior to 2001, the pay scale of the post of PPS/HPS and the Deputy Registrar was identical and in view of Rule 20(c)(ii) of Rules, 1976, PPS/HPS could be recruited/appointed on transfer to the post of Deputy Registrar. After promulgation of Rules, 2001 the cadre of Private Secretary was separated and the provision of appointment on transfer to the post/cadre of Deputy Registrar [Rule 20(c)(ii) of Rules, 1976] came to be repealed. This is of not much relevance in the facts of the case in hand. The relevant difference brought about by Rules 2001 was that the pay band/grade of the cadre of Private Secretary was made higher than that of Deputy Registrar upon revision of pay-band, consequently, the pension admissible to PPS/HPS was accordingly fixed, thus, enhancing their pension in comparison to those PPS/HPS who retired from the post of Deputy Registrar.
Petitioners claim revision of their pension contending that they retired from the post/cadre of PPS/HPS and not from the post/cadre of Deputy Registrar, therefore, are entitled to pension in accordance with the revised pay-band as is being received by the PPS/HPS who retired from the said post. It is urged that petitioners do not belong to the cadre of Deputy Registrar as their appointment was not substantive but merely an officiating appointment. Petitioners retired on attaining the age of superannuation without being confirmed or made substantive on the post of Deputy Registrar. Petitioners were having lien on their original post i.e. PPS/HPS. In other words, petitioners seek pension admissible to the pensioners of their cadre upon revision of the pay band/grade by not treating them in the cadre of Deputy Registrar. The matter of the petitioners was referred, by the Joint Registrar (Accounts), High Court, to the Chief Treasury Officer, Allahabad, however, nothing was done and hence the instant writ petition.
In the counter affidavit filed by the State, a categorical stand has been taken that since petitioners retired from the post of Deputy Registrar, a separate cadre from that of Private Secretaries, therefore, petitioners are entitled to revised pension as per the revised pay band and pay grade recommended from time to time pertaining to the post/cadre of Deputy Registrar and are not entitled to pension admissible to the retired Private Secretaries.
Learned counsel for the petitioners submits: (i) the petitioners came to be substantively appointed in the cadre of Private Secretary and retired from the said cadre, therefore, petitioners cannot be discriminated against upon revision of pension that came to be admissible to the pensioners of the cadre of Private Secretary; (ii) petitioners were not appointed on substantive basis in the cadre of Deputy Registrar; (iii) petitioners were transferred to the cadre of Deputy Registrar in officiating capacity, their lien continued until retirement on their initial post of Private Secretary; (iv) petitioners belong to the class of pensioners of PPS/HPS and not to the class of pensioners of Deputy Registrar.
In rebuttal, learned Additional Chief Standing Counsel and learned counsel appearing for the High Court submits: (i) the petitioners came to be appointed on transfer in terms of Rule 20(c)(ii) of Rules, 1976; (ii) the appointment is substantive and petitioners have lien on the post of Deputy Registrar; (iii) the cadre of Private Secretary and the cadre of Deputy Registrar are different cadres and, Rules, 1976, provides 15% of the post of Deputy Registrar could be filled by appointment on transfer from the cadre of Private Secretary; (iv) petitioners retired from the post/cadre of Deputy Registrar, hence cannot claim pension admissible to PPS/HPS a different cadre; (v) petitioners are not being discriminated against as they are receiving pension admissible to class of pensioners who retired as Deputy Registrar upon successive revision of pay band/grade.
Rival submissions fall for consideration.
The facts, inter se parties, are not in dispute. The High Court vide Notification dated 20 September 1995 transferred Principal Private Secretaries, including the petitioners to the post of Deputy Registrar pursuant to Rule 20(c)(ii) of Rules, 1976. Notification of appointment insofar as it relates to the petitioners reads thus:
"93. From the date of taking over charge Sri Amar Nath II, Principal Private Secretary to Hon'ble the Chief Justice, High Court, Allahabad is hereby appointed as officiating Deputy Registrar, High Court, Lucknow Bench, Lucknow in the pay scale of Rs. 3200-4875 vice Sri Ram Lakhan Srivastava subject to the final decision of the following cases pending in this Court:- (1) Writ Petition No. 5426 of 1995.
(2) Writ Petition No. 44725 of 1993.
(3) Special Appeal No. 115 of 1991.
36. Sri R.C. Upadhya, Principal Private Secretary, High Court, Allahabad is hereby promoted as officiating Deputy Registrar, High Court, Allahabad in the pay scale of Rs. 3200-4875 vice Sri A.K. Mukherjee, Deputy Registrar since retired."
45. From the date of taking over charge Sri Mahendra Kumar Srivastava, Principal Private Secretary/Head Private Secretary, is hereby transferred and appointed as officiating Deputy Registrar, High Court, Allahabad, in the pay scale of Rs. 10,650-15-850, vice Sri Om Shankar Lal Srivastava, Deputy Registrar.
No. 32. From the date of taking over charge, Sri Abdul Wahab Ansari, Principal Private Secretary, High Court, Allahabad is hereby transferred and appointed as officiating Deputy Registrar, High Court, Allahabad in the pay scale of Rs. 10,650-15,850 vice Sri Ram Lakhan Srivastava, Deputy Registrar.
By order of Hon'ble the Chief Justice."
On plain reading of the notification, it transpires that petitioners came to be transferred and appointed/promoted as "officiating" Deputy Registrar. In the case of the first petitioner, the appointment on officiating basis was subject to the final decision of the pending writ petitions mentioned therein. In other words, appointment was not substantive. The petitioners retired on attaining the age of superannuation from the post of Deputy Registrar in officiating capacity.
Part VI of Rules, 1976, provides the Sources and Method of Recruitment of Class I post, which includes the post of Deputy Registrar.
On plain reading of Rule 20, it provides that the post of Deputy Registrar can be filled by transfer of Principal Private Secretary/Head Private Secretary (PPS/HPS) under the quota (15%), provided post is available.
The Chief Justice in exercise of powers conferred under clause (2) of Article 229 of the Constitution of India, after approval of the Governor made Rules, 2001, regulating the appointment and other conditions of Private Secretaries of the High Court. Rule 14 of the Rules, 2001 repealed the Rules, 1976, insofar it relates to the Private Secretaries of the High Court, consequently, Rule 20(c)(ii) ceased to operate w.e.f. 15 November 2001. The pay-scale at Rs. 16,400-20,400 was made admissible to PPS which was higher than the pay-scale/pay grade admissible to the post of Deputy Registrar, consequently, all pensioners who retired from the post of PPS upon fixation of pension pursuant to the revised pay-scale/pay-grade w.e.f. 1 January 2006 came to receive higher pension as against their counter parts who retired from the post of Deputy Registrar.
The pivotal question on which the claim of the petitioners revolve is as to whether the petitioners were appointed substantively on the post of Deputy Registrar or in the alternative whether petitioners continued to have lien on the post of PPS/HPS upon being appointed on transfer in officiating capacity to the post of Deputy Registrar.
In service jurisprudence where statutory rules govern the service conditions of the government servant, expressions, like,- 'officiating', 'permanent', 'temporary', 'lien', 'substantive' etc. determine the status and entitlement to the government servant under the rules. The term 'lien' and 'officiating' in respect of the petitioners have to understood in the light of the statutory Fundamental Rules and in the context it is used in the order. In case, the petitioners were appointed substantively on the post of Deputy Registrar and having lien on the post on retirement, petitioners in that event are not entitled to claim pension admissible to the post of Private Secretaries. In a vice versa situation petitioners would be entitled to pension admissible to the retired PPS/HPS.
Uttar Pradesh Fundamental Rule 9(13)1 defines 'lien' which reads thus:
"(13) Lien means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively."
Rule 14-A provides that lien of the government servant cannot be terminated. Rule 14-A (a) reads thus;
"14-A.(a) A Government servant's lien on a post may in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien or suspended lien upon a permanent post."
In State of M.P. v. Sandhya Tomar2, Supreme Court observed that a person can be said to have acquired lien as regards a particular post only when his appointment has been confirmed and or/made permanent on the said post.
"10. "Lien" connotes the civil right of a Government servant to hold the post "to which he is appointed substantively." The necessary corollary to the aforesaid right, is that such appointment must be in accordance with law. A person can be said to have acquired lien as regards a particular post only when his appointment has been confirmed, and when he has been made permanent to the said post. "The word `lien' is a generic term and, standing alone, it includes lien acquired by way of contract, or by operation of law."Whether a person has lien, depends upon whether he has been appointed in accordance with law, in substantive capacity and whether he has been made permanent or has been confirmed to the said post."
Similarly, in State of Rajsthan v. S.N. Tiwari3, it was observed:
"It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post."
In Arun Kumar Agrawal v. Union of India4, it was observed:
"58. It is a settled proposition of law that deputationist would hold the lien in the parent department till he is absorbed on any post. The position of law is quite clearly stated by this Court in State of Rajasthan & Anr. Vs. S.N.Tiwari & Ors."
"18. This Court in Ramlal Khurana v. State of Punjab5 observed that:
"8. ... Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed."
The term "lien" comes from the Latin term "ligament" meaning "binding". The lien of a government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed.
In Triveni Shanker Saxena v. State of U.P.6, the appellant therein was appointed Lekhpal and in the wake of consolidation proceedings, the appellant subsequently was selected as Consolidator and upon completing training the appellant was appointed as Consolidator. The service of the appellant came to be terminated (simpliciter) by the Consolidation Commissioner.
The contention of the appellant before the Supreme Court was that the only course left open to the Consolidation Commissioner was to revert the petitioner back to his substantive post, namely, Lekhpal to which he was having a lien. The question, inter aia, before the Court was whether the appellant was having lien on the post of Lekhpal. Upon considering Rule 9(13), Rules 14-A and 14-B of the Uttar Pradesh Fundamental Rules contained in Part-II of the Financial Handbook Volume II, the Court held that since the appointment order of the appellant as Lekhpal was on temporary basis and he had not been confirmed nor was the appointment substantively made so as to claim lien on the post of Lekhpal. In absence of any such proof, from the side of the appellant, the Court held that appellant was employed as Lekhpal on temporary basis. Para 26 reads thus:
"26. Even on the appellant's own showing he was appointed as a Lekhpal on 6.4.53 and held the same till 15.11.1954, that is for a period of nearly one year and seven months. His appointment order unambiguously shows that it was only on a temporary basis. The appellant has not shown that he had been confirmed in a permanent post and that he was holding that appointment substantively either immediately or on the termination of a period so as to make a claim of lien to the post of Lekhpal by availing the benefit of Rules 14-A and 14-B of the U.P. Fundamental Rules. Therefore, as rightly pointed out by Mr. Yogeshwar Prasad, it cannot be said that the appellant held the post in a substantive capacity on permanent basis on the date when he was appointed as a Consolidator. In the absence of any such proof on the side of the appellant, we are constrained to hold that he was employed as Lekhpal on a temporary basis........."
It follows that an employee acquires a lien on a post only when he has been confirmed and made permanent on the post and not otherwise. The Supreme Court in Triveni Shankar Saxena noted with approval-
"A learned single Judge of the Allahabad High Court in M.P. Tewari v. Union of India following the dictum laid down in the above Paresh Chandra Nandi v. North-East Frontier Railway7 and distinguishing the decision of this Court in Parshotam Lal Dhingra v. Union of India8 has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view we are in agreement."
As per the order of the Governor with regards Rule 14 of Fundamental Rules, it is provided that when it is known that a Government servant on transfer to a post outside his cadre is due to retire on superannuation pension within three years of his transfer, his lien on the permanent post cannot be suspended.
'Substantive appointment' means an appointment not being an ad-hoc appointment, on a post in the cadre of the service made after selection in accordance with the rules. Confirmation is made on the post on which the government servant is substantively appointed, on fulfillment of the conditions of confirmation. A formal order shall be necessary to be issued by the Appointing Authority with regard to confirmation. Confirmation will not be necessary if the government servant is promoted, on a regular basis, after following the prescribed procedure to a post in the cadre where promotion is the only source of recruitment. A government servant who is confirmed on a post or who has been promoted to a higher post on a regular basis where no probation is prescribed shall be deemed to hold a lien on the post.
In the backdrop of the nature of the expression 'substantive appointment' the import of the expression 'officiate' as defined in Fundamental Rule 9(19) has to be understood.
"19. Officiate-A Government servant officiates in a post when he performs the duties of a post on which another person holds a lien. The Government may, if they think fit, appoint a Government servant to officiate in a vacant post on which no other Government servant holds a lien."
According to its ordinary connotation, the word 'officiating' is generally used when a servant having held one post permanently or substantively, is appointed to a post in a higher rank, but not permanently or substantively while still retaining his lien on his substantive post i.e. the government servant officiates in that post till his confirmation. Such officiating appointment may be made where there is a temporary vacancy in a higher post due to the death or retirement of the incumbent or otherwise.
In ordinary sense of the word in the context of service, "to officiate" is to "perform the duties of an office", and "substantive" means "permanent". Substantive service therefore means service as a permanent holder of an office, and, in contradistinction, 'officiating' service means service rendered as a non-permanent holder. In fact, all service which is not substantive is officiating.
Whether the service rendered by the petitioners is officiating or substantive within the meaning of the Rules must depend on the order of appointment made in accordance with the service rules governing the petitioners. On perusal of the notification appointing the petitioners to the post of Deputy Registrar it clearly records that the appointment is officiating and not substantive. In other words, petitioners continued to have lien on their substantive post i.e. Private Secretary (PPS/HPS) and not on the post of Deputy Registrar.
In Ram Prakash Makkar v. State of Haryana9, the Supreme Court made a distinction between appointment by transfer or a case of deputation. The order of appointment stating that an employee was appointed on transfer basis also stating appointment to be purely temporary, the employee could be reverted, he shall be on probation for a stated period and his lien on previous service was to remain until he is confirmed in post of transfer. The Supreme Court held that the entire order of appointment should be read with other recitals of the order, thus holding that the appointment was by way of transfer and it was not a deputation. The Court observed as follows:
"The main question in this appeal is whether the appellant was appointed by transfer as an Assistant in the Directorate or whether it was a mere case of deputation. We have set out hereinbefore the order of his appointment in the Directorate. The order has to be read as a whole. It says that the appellant is "appointed on transfer basis" as an Assistant in the Directorate. It also says that his appointment is purely temporary and that he can be reverted to his parent department as and when his services are not required. The order further says that the appellant shall be on probation for one year and that his lien in the Civil Secretariat Service will remain until he is confirmed in the Directorate. Now what do these three features read together mean? The Division Bench has laid emphasis upon the second feature, ignoring the first and the third. With respect we are unable to agree with its view."
On plain reading the appointment orders of the petitioners, it is clear that the petitioners came to be appointed on transfer in officiating capacity. Their appointment on the post of Deputy Registrar was not made substantive at any point of time thereafter. Petitioners retired while officiating on the post of Deputy Registrar. It, therefore, follows that petitioners continued to have lien on their substantive post PPS/HPS during their officiating arrangement. Despite repeated opportunity the learned counsel appearing for the High Court on instructions from the second respondent, was unable to place on record any document/material to show that the officiating appointment of the petitioners was made substantive before superannuation. The contention of the respondents that since petitioners retired from the post of Deputy Registrar, therefore, are entitled to revised pension admissible to the class of pensioners of retired Deputy Registrar does not hold merit. Pension admissible to an employee is computed on the last pay drawn and the subsequent revision of pension admissible to the class of pensioners to which the employee belonged i.e. having lien on the post at the time of retirement. Officiating arrangements/appointments cannot fasten the employee to subsequent revision of pension to the class of pensioners to which the employee does not belong. The employee is entitled to revised pension as is applicable to the class of pensioners to which the employee belonged at the time of retirement i.e. the post in the cadre to which the employee was having lien and not the post from which the employee retired which he held in ad-hoc/officiating capacity and not in substantive capacity.
The argument of the respondents can be tested by taking a reverse hypothetical case. Suppose that the subsequent pay scale/grade of the pensioners of Deputy Registrar cadre/post was enhanced, thus, raising their entitlement to higher pension as against Private Secretary. The state respondents could deny the petitioners the enhanced pension by taking a stand that they were officiating on the post of Deputy Registrar and were not appointed in substantive capacity, therefore, are not entitled to the pension admissible to the post of Deputy Registrar but that of the post of PPS/HPS on which post they had lien. The plea of the respondents would have been sustainable in the back drop of the Rules.
In the facts of the case in hand and in particular the clear and unambiguous language employed in the notification appointing the petitioners as officiating Deputy Registrar, the Court is constrained to hold that the petitioners' appointment was not substantive and they were having lien on the permanent post of PPS/HPS at the time of retirement. Consequently, petitioners are entitled to revised pension admissible to the class of pensioners that retired from the post of PPS/HPS and not that of Deputy Registrar.
Having due regard to the facts and circumstances of the case and the position of the Rules the writ petition succeeds and is allowed. The second respondent is directed to forward the papers/record of the petitioners to the fourth respondent, the Chief Treasury Officer, Collectorate, Prayagraj, for revision of pension w.e.f. 1 January 2006 as admissible to the class of pensioners of PPS/HPS. Petitioners shall be paid arrears of pension w.e.f. 1 January 2006. It is expected that the entire exercise shall be concluded within two months from the date of service of certified copy of this order on the respondents having due regard to their age.
No cost.
Order Date :- 24.05.2019 K.K. Maurya