Allahabad High Court
Beni Prasad vs State Of U.P. & Others on 17 February, 2011
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 26 Case :- WRIT - A No. - 63506 of 2008 Petitioner :- Beni Prasad Respondent :- State Of U.P. & Others Petitioner Counsel :- J.P. Gupta,Deepak Kr. Srivastava Respondent Counsel :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Deepak Kumar Srivastava, learned counsel for the petitioner and Sri Vimal Chandra Mishra, Advocate who has put in appearance on behalf of respondents no. 2 to 5 and has filed counter affidavit. Learned counsel for the petitioner states that he does not propose to file rejoinder affidavit and the matter may be heard on the basis of record of the writ petition and averments made in the counter affidavit.
2. The grievance of the petitioner is that of non-payment of retiral benefits by the respondents. The respondents are denying retiral benefits to the petitioner on the ground that he did not complete minimum qualifying service attracting the provisions of pension etc. The petitioner claims to have been appointed as Peon on 8.10.1964 in the office of respondent no. 2 by the Additional Basic Education Officer, Banda and on attaining the age of superannuation he retired on 31.1.1999 but the retiral benefits have not been paid to him. Hence he made representations, copies whereof are annexed as annexure 3 to the writ petition.
3. Respondents have stated in the counter affidavit that the petitioner was initially appointed in Junior High School on 8.10.1964 on a fixed pay of Rs.40/- per month and he worked as such till 28.2.1997, whereafter he was placed in the regular pay scale of Rs.750-940 with effect from 1.3.1997 and on attaining the age of superannuation he retired on 31.1.1999. It is said that since the petitioner was regularised only on 1.3.1997 and his earlier service was on fixed pay he did not qualify for pension in view of the decision taken by the State Government as communicated by Special Secretary, of the U.P. Government on 13.6.2007.
4. The service book shows that in column 9 the date of substantive appointment of the petitioner is mentioned as 1.7.1990. Thus the petitioner worked on substantive post from 1.7.90 to 1.7.1999. The pay was revised with effect from 1.1.1986 to 750/- and entry has been made accordingly. The entry in the service book clearly shows that the petitioner was paid salary on fixed pay basis but the post was substantive one.
5. Moreover, this court also finds that though the service book was prepared on 2.1.1980 but in photocopy of first page, his the date of joining is shown as 1.7.1990.
6. The term 'post', 'pay' and 'pay scale' have different connotations. The post refers to a unit and office. The pay refers to the amount drawn by an employee. Pay scale broadly refers to the concept of a graded limit having minima and maxima i.e minimum pay and maximum pay running for a period of time with self contained rate of increased pay every year etc.. There is no fixed concept that for every post there shall be pay/pay scale of a particular nature; pay shall be of a particular nature or that a pay scale be of a particular nature. It may vary. Its structure or constituent may depend on the policy of the employer. This distinction has been noticed in as much as different terms relating to post, pay and pay scale have been defined in Fundamental Rules. The relevant provisions defining 'Pay', "Personal Pay" "Presumptive Pay" "Special Pay" "Oversea Pay", Technical Pay", "Substantive Pay", "Time Scale Pay", "Permanent post", "Temporary Post, "Tenure Post" are as under:
"Pay:- Pay means amount drawn monthly by a Government servant as-
(i) the pay, other than special pay or pay granting in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and
(ii) overseas pay, technical pay, special pay and personal pay; and
(iii) any other emoluments which may be specially classed as pay by the Governor."
"Personal Pay:- Personal pay means additional pay granted to a Government servant-
(a) to save him from a loss of substantive pay in respect of a permanent post other than a tenure post due to a revision of pay or to any reduction of such substantive pay otherwise than as a disciplinary measure; or
(b) in exceptional circumstances, on other personal considerations."
"Presumptive Pay:- Presumptive pay of a post, when used with reference to any particular Government servant, means the pay to which he would be entitled if he held the post substantively and were performing its duties; but it does not include special pay unless the Government servant performs or discharges the work or responsibility, or is exposed to the unhealthy conditions in consideration of which the special pay was sanctioned."
"Special Pay:- Special pay, means an addition, of the nature of pay, to the emoluments of a past or of a Government servant, granted in consideration of-
(a) the specially arduous nature of the duties; or
(b) a specific addition to the work or responsibility."
"Overseas Pay:- 1. Where it is provided in the rules regulating conditions of appointment to the service or post, that the pay of the service or post shall include overseas pay. Such overseas pay shall, unless it be otherwise expressly provided in such rules, be drawn only by a member of the service or an incumbent of the post whose domicile at the date of his first substantive appointment to such service or post was elsewhere than in Asia. Provided that no such Government servant shall be entitled to overseas pay who, prior to such appointment, has, for the purpose of his appointment to a post under the Government or of the conferment upon him by the government of any scholarship, emoluments or other privilege, claimed and been deemed to be of Indian domicile.
2. (i) The domicile of a person shall be determined in accordance with the provisions set out in the Schedule to these rules.
(ii) No Government servant who after his appointment to a service or post acquires a new domicile shall thereby lose his right to or become entitled to overseas pay.
(iii) A Government servant who has been drawing overseas pay in good faith and whose domicile is challenged should receive a personal allowance equal to the amount of overseas pay hitherto drawn the allowance to be absorbed in increments, from the date when his domicile is questioned, and should continue to enjoy such allowance in the event of an eventual adverse decision."
"Technical Pay:- Technical pay means pay granted to a Government servant in consideration of the fact that he has received technical training in Europe."
"Substantive Pay:- Substantive pay means the pay other than special pay, personal pay or emoluments classed as pay by the Governor under Rule 9 (21) (ii), to which a Government servant is entitled on account of a post to which he has been appointed substantively or by reasons of his substantive position in a cadre."
"Time Scale Pay:- (a) Time-scale pay means pay which, subject to any conditions prescribed in these rules, rises by periodical increments from a minimum to a maximum. It includes the class of pay formerly known as progressive.
(b) Time-scales are said to be identical if the minimum, the maximum the period of increment and the rate of increment of the time-scale are identical.
(c) A post is said to be on the same time-scale as another post on a time-scale if the two time-scales are identical and the posts fall within a cadre, or a class in a cadre, such cadre or class having created in order to fill all post involving duties of approximately the same character or degree of responsibility, in a service or establishment or group of establishments so that the pay of the holder of any particular post is determined by his position in the cadre or class and not by the fact that he holds that post."
"Permanent post:- Permanent post means a post carrying a definite rate of pay sanctioned without limit of time."
"Temporary Post:- Temporary post means a post carrying a definite rate of pay sanctioned for a limited time."
"Tenure Post:- Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period."
7.Fundamental Rule 19 provides that pay of a Government servant shall not exceed the pay sanctioned by a competent authority for the post held by him. It also provides that no special or personal pay shall be granted to a Government servant without the sanction of the Government. It clearly means that pay in respect of a post may or may not have any reference with time scale of pay but it may be fixed pay provided by the Government. When a time scale of pay is prescribed for a post, the manner in which the pay shall be fixed in that time scale of pay has been prescribed in various provisions Fundamental Rules i.e, Rules 22 to 29 and 31. It is thus evident that, though desirable, but it may not be necessary that every post must have time scale of pay. It is always open to the Government to create post with fixed monthly pay and it is not necessarily inferior in any manner to a post which is created with time scale of pay. The provision relating to pension nowhere contemplate that only such service shall qualify for pension which is in regular time scale of pay. This assumption is unfounded. The learned Standing Counsel could not place before this Court any provision which restrict the application of qualifying service to such a post where the incumbent gets salary in a time scale of pay and not fixed pay.
8. What service would qualify for pension is clear from Article 361 of Civil Services Regulations which reads as under:
"361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:
First- The service must be under Government.
Second- The employment must be substantive and permanent.
Third- The service must be paid by Government."
9. It is not in dispute that in the matter of teachers of a primary school maintained by Basic Education Board, the provisions applicable to the comparable Government Servants are applicable in so far as specific provisions have not been made for such teachers. Article 361 contemplates only three things: firstly, it is service under Government which in the case of teachers of Basic Education Board would be that the service is under the Board; secondly, the employment is substantive and permanent and thirdly it is paid by the Government. Here also the word "Government" will mean Basic Education Board since the primary schools in question are being run by the Basic Education Board. In fact for the purpose of applicability of the provisions of Government pension the learned Standing Counsel did not dispute that certain provision of Civil Services Regulations including Article 361 are attracted & that would determine whether the service rendered by petitioner would qualify for pension or not. He, however, could not place anything before this Court to show that service rendered on a sanctioned substantive post having at the relevant point of time sanctioned fixed monthly pay would not qualify for pension.
10 Though slightly in a different context, in Anuj Kumar Dey & another vs. Union of India & others JT (1996) 10 SC 679 it was contended that the petitioner was not enrolled since he was paid during training a fixed pay. An attempt to draw force in the submission was made by referring to Section 12 of the Navy Act. The Apex Court in paragraph no. 8 and 12 of the Judgment held as under:
"8. Section 12 lays down that where a person after his enrolment has for a period of three months from the date of such enrolment been in receipt of pay as Sailor, he shall be deemed to have been duly enrolled. Now, there is no dispute that the appellant had received pay regularly after his enrolment. It has been contended on behalf of the respondents that the appellant was allowed an allowance during the term of the training. The case of the appellant is that he used to get a fixed pay during the period of the training. The fact that he used to get a fixed pay does not go to show that he did not receive pay regularly after his enrolment.
12. The qualifying period for earning pension is service of 15 years under the Navy. Having regard to the facts of the case and the documents annexed to the appeal, there is little doubt that the training period as Artificer Apprentice will have to be included in the computation of the qualifying period of service. Regulation 79 lays down that all service from the date of enrolment or advancement to the rank of ordinary seaman or equivalent to the date of discharge shall qualify for pension or gratuity. Therefore, the date of advancement is not the only starting point for computation of the qualifying period of service. In the case of the appellant the date of enrolment should be the material date. He was administered oath as a Sailor even before the date of his advancement to the rank of Electrical Artificer Vth Class. In fact, the Discharge Certificate issued by the Navy to the appellant is to the following effect and puts the matter beyond any doubt:
This is to certify that ANUJ KUMAR DEY, CHIEF ELECTRICAL ARTIFICER (AIR), NO. 052264-H has served in the Indian Navy from 12 August 1971 to 31ST JANUARY, 1988 as per details overleaf. This is a statutory certificate which has to be given under Sub-section (4) of Section 17 of the Navy Act. The Discharge Certificate must state the full period of service in the Indian Navy. According to the calculation made by the Navy itself, this period of service is more than the qualifying period of 15 years."
11. I may also point out, at this stage that placement of the petitioner in time scale of pay in 1997 did not affect his status qua the post he was holding since 1964. The only distinction it could make after 28.2.1997 is that the mode of payment got changed and from fixed pay it became time scale of pay.
12. Learned counsel for the respondents at this stage attempted to argue that the period during which the petitioner received fixed pay was in fact part time appointment and, therefore, this period would not qualify for pension. This averment is wholly beyond the pleadings and no such a case has been taken in the entire counter affidavit. The service book placed on record, which is not disputed by respondents, clearly shows appointment of the petitioner on substantive post. Though only extract of service book has been placed and not entire one but whatever has been placed shows his appointment substantive. In the entire counter affidavit there is not even a whisper or suggestion that appointment of the petitioner on fixed pay was a part time appointment. The only thing mentioned is that he was appointed and paid salary on fixed pay basis. Later on given time scale of pay. This by itself would not mean that the earlier appointment of petitioner was not substantive, regular or full time.
This submission is thus deserved to be rejected.
13. Moreover, the question whether petitioner was a part time appointee or not is a question of fact and unless appropriate pleadings would have been there and relevant material is placed on record the counsel for respondents cannot be permitted to create a doubt on the nature of appointment of the petitioner by mere oral submissions in respect of factual aspect which is not pleaded as such. The respondents had to adhere and confine to their pleadings. In my view, the entire earlier service rendered by petitioner even though he was paid salary on monthly fixed pay basis would qualify for pension, in the absence of any provision otherwise.
14. In the result the writ petition is allowed. The respondents are allowed to treat service of the petitioner as regular and substantive from 8.10.1964 and determine his retiral benefits in accordance with law within two months and pay arrears within one month thereafter with interest of 10%.
15. Learned counsel for the respondent has misled the Court and made wrong factual argument going beyond the pleadings. The manner in which the learned counsel for the respondents attempted to mislead the Court during arguments and the way in which respondents have denied pension and other retiral benefits to the petitioner, and have harassed the petitioner, in my view, entitle the petitioner cost which I quantify to Rs.25,000/-. This shall also be paid alongwith arrears as directed above.
Order Date :- 17.2.2011 P.P.