Allahabad High Court
Ram Nagina Lal Srivastava vs State Of U.P. & Others on 11 February, 2015
Author: Shashi Kant
Bench: Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. 21
Reserved on 19.01.2015
Delivered on 11.02.2015
Case :- WRIT - A No. - 37358 of 2012
Petitioner :- Ram Nagina Lal Srivastava
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- Vivek Kumar Singh
Counsel for Respondent :- C.S.C.
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Hon'ble Shashi Kant, J.
1. Heard Sri Vivek Kumar Singh, learned counsel for the petitioner and Sri Brajesh Kumar Yadav, learned Standing Counsel for the State of U.P.
2. By means of the present writ petition under article 226 of the Constitution of India, the petitioner seeks following reliefs:-
"(i) To issue a writ, order or direction in the nature of mandamus directing the respondent authorities to grant all post retiral benefits including the pension to the petitioner forthwith.
(ii) To issue any other writ order or direction as this Hon'ble Court may deem fit in the circumstances of the case.
(iii) To award cost of the petition to the petitioner."
3. Brief facts according to the writ petition are that :
3.1. The petitioner had initially appointed as a work charge employee being a helper in the Tube-well Division, Azamgarh of Irrigation Department vide appointment order dated 01.08.1979 (Annexure-1 to the writ petition) and joined the services on 02.08.1979.
3.2. The petitioner was continuously worked on his post as work charge employee to the entire satisfaction of his superior officers and there was no complaint against him during his entire service period. As such, his entire service period was unblemished. His services were regularized by the order dated 04.12.2008, (Annexure-2 to the writ petition), he was appointed as Mate in the Laghu Dal Canal Division, Mirzapur. The petitioner worked there till attaining the age of superannuation on 31.01.2012.
3.3. After retirement he has made a representation before the Executive Engineer, i.e., respondent no. 4 on 03.03.2012 (Annexure-3 to the writ petition) requesting therein to release the post retiral benefits as well as pension to the petitioner at the earliest.
3.4. After receiving the above representation, Executive Engineer issued a letter dated 19.03.2012, (Annexure -4 to the writ petition) to the petitioner to provide him his signature as well as joint photograph along with his wife for payment of gratuity. But there was nothing in the letter regarding payment of pension to the petitioner.
3.5. Despite completion of directions given in the letter dated 19.03.2012, payment of gratuity is not made to the petitioner.
3.6. The petitioner has sent a reminder on 26.04.2012 requesting therein to give pension to the petitioner and payment of gratuity.
3.7. The petitioner met the respondent no. 4 several times personally and requested him to pass the order for pension to the petitioner.
3.8. The respondents-authorities are sitting tight over the matter and are not deciding the claim of the petitioner for retiral benefit which caused irreparable loss to the petitioner.
3.9. Therefore, the petitioner has filed the present writ petition.
4. Learned counsel for the petitioner submits that it is well settled law that person, who had worked for such a long period as temporary employee and subsequently regularised on the said post then for the purposes of retiral benefits, services rendered by him on temporary basis, may also be counted for grant of pension. But the respondent no. 4 fails to consider this aspect of the matter. He is arbitrarily not passing any order on the application/ representation to release the pension or refuse the same. The representation moved by the petitioner for payment of post retiral benefits is still pending with the respondent authorities even the petitioner had not been paid the gratuity, despite completions of all formalities required in the letter dated 19.03.2012.
5. In support of his arguments, learned counsel for the petitioner has placed his reliance on the decisions of Thakur Prasad vs. State of U.P. Through Principal Secretary Food & Others (Writ-A No. 36803 of 2008) decided on 24.08.2009, Jawahar Prasad Tripathi vs. State of U.P. and others (Writ-A No. 68515 of 2006) decided on 29.11.2011, Board of Revenue, Lucknow & Ors. Vs. Prasidh Narain Upadhyay, reported in 2006 (2) ALJ 66 and Chedi Ram Maurya Vs. Uttar Pradesh Basic Education Board, Allahabad and others, reported in 2008 (4) AWC 3546 (LB).
6. Per contra, Sri Brajesh Kumar Yadav, learned Standing Counsel has vehemently opposed the submissions made by the learned counsel for the petitioner on the ground that the services of the petitioner were regularized on 04.12.2008 and he has served till 31.01.2012, i.e., date of his retirement.
7. In this way, the petitioner performed only about four years of his regular services. According to Government Order No. Sa-3-1152/Dus-915/89 dated 01.07.1989 only those incumbents are entitled for post retiral pension benefit, who have completed 10 years regular services. As such petitioner is not entitled for the pension beng made to the petitioner. He also submitted that payment of gratuity has been issued vide letter No.948/Ko.Mi. dated 24.8.2012 (Annexure- C.A. 2 to the writ petition) issued by Treasury Officer, Mirzapur.
8. He has placed his reliance in the cases of Bansh Gopal vs. State of U.P., reported in 2006 (6) ADJ 384 (DB) and State of U.P. Through Its Secretary, Irrigation Department, Vs. Ram Pratap Shukla Son of Late Kewla Prasad Shukla, reported in 2008 (119) FLR 492.
9. In reply to above arguments, learned counsel for the petitioner submits that the Government Order dated 01.7.1989 (Annexure C.A.-1) provides about the pension and pensionary benefits to those Government employees who, were retired or died as a temporary employee and their services could not be regularized, and by perusal of the same, it is manifestly clear that the pension is provided to those government employees also who were not regularized in their department but they had continued for a minimum period of 10 years in the respective departments. In the present case, admittedly, the petitioner had worked for more than 10 years from his initial appointment dated 01.08.1979 till he reached at the age of superannuation on 31.01.2012. The respondents also admit that the petitioner had continuously worked from his initial appointment and there is no break in service and he had regularised on the post of Mate vide order dated 04.12.2008. As such, the petitioner is also eligible and entitled for pensionary benefits as per the Government Order dated 01.07.1989.
10. I have considered the rival submissions made by the learned counsel for the parties and perused the record.
11. In the facts and circumstances of the case, the question arises for consideration before this Court is as to whether the petitioner on the basis of services rendered after his regularization coupled with services rendered by him prior to his regularisation is entitled for pension and other retiral benefits or not ?
12. There is no factual dispute that on 02.08.1979 the petitioner had joined the services, as work charge employee (as helper) in the Tube-well division Azamgarh. His services were regularized on 4.12.2008 and he was retired on 31.01.2012 on attaining the age of superannuation and payment of gratuity was made to the petitioner vide order dated 24.08.2012 (Annexure C.A.-2)
13. Petitioner was denied benefits of pension on the ground that he has not completed minimum period of 10 years regular qualifying service as permanent or temporary Government Servant as required by Government Order dated 01.07.1989 (Annexure- C.A.-1).
14. Regulation 370 of Civil Services Regulation and Government Order dated 01.07.1989 are being reproduced herein below :
"370, Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except-
(i) periods of temporary or officiating service in non- pensionable establishment;
(ii)periods of service in work-charged establishment; and
(iii) periods of service in a post paid form contingencies."
Government Order dated 01.07.1989 :
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15. There is no factual dispute that the petitioner had started the service on 02.08.1979 as work charge employee and he was regularised 04.12.2008 and retired 31.01.2012 on attaining the age of superannuation and he was denied the benefit of pension on the ground that he has not completed 10 years regular qualifying services as permanent or temporary Government servant, as such, he is not entitled for the pension, to the pension under Government Order dated 01.07.1989.
16. Cases of Thakur Prasad, Board of Revenue and Chedi Ram Maurya (All Supra), relied upon by the learned counsel for the petitioner, are not related to work charge employees, therefore, they are not applicable to the facts of the present case.
17. In the Case of Jawahar Prasad Tripathi (Supra), the petitioner was appointed as Store Munshi on 1.12.1966 in the work charge establishment of respondent no. 2 Executive Engineer Irrigation Division-II, Maharajganj. After putting long service, he was regularized in service in the establishment w.e.f. 1.8.1996. The petitioner was superannuated on 31.12.2005. He was denied the benefit of pension on the basis of Government Order No. 3/1168/Da. S-935-87 dated 22.6.1987, on the ground that employee, who does not complete his 10 years regular service in the establishment, would not be entitled to pension. The petitioner has challenged that order by means of Writ-A 68515 of 2006, which was allowed by Hon'ble learned Single Judge in terms of the following order :
"For the reasons discussed above, the writ petition is allowed and respondents are directed to provide pensionary benefit to the petitioner as is admissible under the rules. Let this process be completed within a period of two months from the date a certified copy of this order is produced before the respondent no. 2."
18. Though, in the cases of Bansh Gopal vs. State of U.P.and State of U.P. Through Its Secretary, Irrigation Department, Vs. Ram Pratap Shukla Son of Late Kewla Prasad Shukla, petitioners of those cases were denied the benefits of pension on the ground that they have not completed regular service of 10 years and their services rendered as work charge employees prior to their regularisation could not be counted in their regular service as per provisions of Regulation 370 of Civil Services Regulations referred above. But now these cases are not good law in the light of subsequent judgements of Hon'ble The Apex Court as well as of this Court, which are being discussed herein after.
19. While deciding civil appeal against the order passed by Pubjab & Haryana High Court regarding counting of work charge employees for determining qualifying services for the purposes of pension, Hon'ble Apex Court in the case of Punjab Electricity Board and another v. Narata Singh and another, reported in (2010) 4 Supreme Court Cases, 317 has held in paras 39, 40, 41 and 42 as follows :
"39. The learned counsel for the appellants pointed out the finding recorded by the Division Bench in the impugned judgment to the effect that "we are, therefore, clearly of the opinion that the work charged service of the appellant with the Board must be counted for determining qualifying service for the purpose of pension" and argued that the judgment of the High Court should not be construed to mean as giving direction to the appellant to include previous service rendered by the respondent No.1 as work charged employee of the State Government for pension purposes.
40.So far as this argument is concerned, it is true that the Division Bench of the High Court has expressed the above opinion in the impugned judgment. However, the reference to Rule 3.17(ii) of the Punjab Civil Services Rules as well as the Full Bench decision of the Punjab and Haryana High Court in Kesar Chand vs. State of Punjab & Ors. [1988 (5) SLR 27] and speaking order dated November 16, 2005 passed by the Board rejecting the claim of respondent No.1 makes it abundantly clear that the High Court has directed the appellants to count the period of service rendered by the respondent No.1 in work charged capacity with the State Government for determining qualifying service for the purpose of pension. Further, the respondent No.1 has been directed to deposit the amount of Employee's Contributory Fund which he had received from the appellants along with interest as per the directions of the Board before the pension is released to him.
41.All these directions indicate that the High Court had come to the conclusion that the period of service rendered by the respondent No.1 in work charged capacity under the State Government should be taken into consideration for determining qualifying service for the purpose of pension. Non-mention of such direction in the impugned judgment is merely a slip and the appellants cannot derive any advantage from this.
42. The net result of the above discussion is that this Court does not find substance in any of the arguments advanced on behalf of the appellants. The appeal lacks merit and therefore, deserves to be dismissed. Therefore, the appeal fails and is dismissed. There shall be no order as to costs."
20. Hon'ble Apex Court has also dismissed S.L.P. No. 2770 of 2014 (State of U.P. Through Principal Secretary Public Works Department Lucknow & Others vs. Prem Chandra And Others vide judgment and order dated 17.01.2014, filed against the judgment and order dated 13.05.2013 passed in Special Appeal (Defective) No. 264 of 2013 whereby a Division Bench of this Court has affirmed the judgment and order dated 9.5.2011 passed by Bench of a Single Judge of this Court in the case of Mohd. Mustafa vs. State of U.P., reported in 2009 (27) LCD 1163, relevant paras of that judgement and order runs as follows :
"11. In the case of State of U.P. and others v. Rajendra Nath Pandey (supra) a Division Bench of this Court while deciding the special appeal has granted pension to a person who has rendered regular service of only 7 months and 26 days. Their Lordships dismissed the special appeal of the State and held that the entire service of the petitioner shall be counted for the purpose of pensionary benefits and the employee was granted pension without giving any benefit of seniority.......
14. In view of what has been stated above, the opposite parties are directed to allow the pensionary benefits to the petitioner considering him to have completed 10 years of regular service and in total 23 years of service and pay him pension regularly every month from the date he has retired from service."
21. In the case of Parmatma Ram vs. State of U.P and others, another Division Bench of this Court while deciding the appeal filed against the order granting relief of pensionary benefits to the work charged employee has held as follows :
"6. ...... Thus, the dispute has attained finality to the extent that the work charged employees are entitled for pensionary benefits and other retiral dues as they have otherwise worked continuously for the qualifying period of 10 years or more.
8.In view of the above, the matter is no longer res-integra. The ratio has already been propounded by the Hon'ble Supreme Court that work charged employees are entitled for pensionary and other benefits if they have worked continuously for the qualifying period.
9.Hence, in the facts and circumstances aforesaid, the appeal is allowed. The order dated 22.10.2013 passed by the writ Court is quashed. The State Government is granted three months time for processing the pension and other retiral benefits, which may be permissible to the petitioner."
22. For the discussion made above, answer to question arisen before the court for consideration is in the affirmative, i.e., despite the provisions of Regulation 370 of Civil Services Regulations, services rendered by the petitioner as work charge employee will be counted in his regular services for determination of minimum period of 10 years qualifying services, for grant of pension and other retiral benefits.
23. In the result, writ petition is allowed and the respondents are directed by issuing writ in the nature of mandamus to complete the necessary formalities for grant of pension and other retiral benefits to the petitioner, by counting the services of the petitioner rendered as work charge employee in his regular service for the purposes of determination of regular qualifying services of the petitioner as required for pension, within two months from the date of production of a certified copy of this order.
24. The writ petition, is accordingly, allowed.
25. No order is being passed for payment of costs.
Monika Date : 11.02.2015 Writ Petition No. 37358 of 2012.