HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 59 Case :- WRIT - A No. - 4436 of 2009 Petitioner :- Awadh Bihari Shukla Respondent :- State Of U.P. & Others Counsel for Petitioner :- J.P.N. Singh Counsel for Respondent :- C.S.C. Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is a retired Collection Peon. He is presently 73 years old. He has preferred this writ petition seeking writ of certiorari for quashing of the impugned order dated 12.12.2008 passed by fourth respondent i.e. Up-Ziladhikari, Tehsil Sikanderpur, District Ballia, whereby the claim of the petitioner for the post retiral benefit including pension has been rejected on the ground that he was a Seasonal Collection Peon and not a Collection Peon (Temporary).
The petitioner claims that he was initially appointed on 01.06.1970 as a Collection Peon in District Ballia. He worked till the year 1981 with some artificial breaks. He was again appointed on 20.03.1982 as a Collection Peon (Temporary) on substantive post and worked till the date of his retirement i.e. 31 July 2002 uninterruptedly.
It is stated that the State Government on 01.07.1989 issued a Government Order providing therein that temporary employees, who have completed 10 years of regular service, are entitled to get all retiral benefits.
The association of the Collection Peons preferred Writ Petition No.11009 of 1998 for a direction upon the concerned authorities to regularize the services of the members of the association. The said writ petition was disposed of on 19 March 1998 by directing the respondents to consider the claim of the members of the association for regularization. In the meantime, the petitioner retired, reaching the age of superannuation on 31 July 2002. When the petitioner's representation for the post retiral benefit and pension was not considered by the competent authority, he preferred Writ Petition No.38974 of 2008 (Awadh Bihari Shukla v. State of U.P. & others). The said writ petition was disposed of on 5 August 2008 with a direction to the concerned authority to consider the grievance of the petitioner.
In compliance of the said order, the petitioner's claim has been rejected by the impugned order amongst other grounds that the petitioner was not a Collection Peon (Temporary) but he was a Seasonal Collection Peon, therefore, he is not entitled for the pension and other post retiral benefits.
It is averred by the petitioner that the impugned order has been passed by Up-Ziladhikari, who has no authority in the matter of the Seasonal Collection Peon as the appropriate authority is the District Magistrate.
The petitioner has averred in the writ petition that in the similar circumstances, one Prasidh Narain Upadhyay had filed Writ Petition No.53567 of 1997, which was allowed by this Court and a direction was issued to the authority concerned to make payment of the post retiral benefits to Prasidh Narain Upadhyay and the said order has been complied with. It is also averred in the writ petition that the respondents have treated the petitioner differently and he has been discriminated, inasmuch as in respect of two similarly placed persons, namely, Ram Nagina Pandey and Dhooma Singh Yadav, who were also Seasonal Collection Peons, they had also filed Writ Petition No.18230 of 2000, both persons retired in the year 2005. This Court vide order dated 28 April 2006 had issued direction to the District Magistrate to consider the grievance of the petitioners therein. The District Magistrate has granted the pension and other benefits. A copy of the order of the District Magistrate is on record as annexure-8 to the writ petition.
This Court had directed the Standing Counsel to produce the original record of the petitioner. In compliance thereof the original record has been produced.
A perusal of the service record of the petitioner, it is evident that in his service record, he has been shown as Temporary but such entry has been struck off by different ink without any initial and in place of Temporary the word Seasonal Collection Peon, i.e. Samyik Sangrah Chaprasi has been mentioned in one of the column. The word "Temporary" has been struck off and Samyik Sangrah Chaprasi has been transcribed.
Learned Standing Counsel was confronted with the aforesaid fabrication which has been made without any initial of competent authority. He has produced the instructions which have been received from Up-Ziladhikari wherein it is mentioned that it was simply a human error. The instructions are taken on record.
Learned counsel for the petitioner has submitted that the petitioner was a Seasonal Collection Peon (Temporary) and in Prasidh Narain Upadhyay's case also, the similar attempt had been made that in the service record, it was mentioned that he was a Seasonal Collection Peon.
A Division Bench of this Court in the case of Board of Revenue & others v. Prasidh Narain Upadhyay, 2006 (1) ESC 611, has taken the view that if a temporary employee has worked for a long period whether he has been confirmed or not is immaterial, is entitled for pensionary benefits and the term "qualifying service", which is defined under Regulation 361 of Section 1 of Chapter XVI of the Civil Service Regulations, has been interpreted by the Court and it has been held that the temporary employee also is entitled for the retiral benefit which is available to every government servant. The Division Bench has relied on the earlier decision of this Court in the case of Dr. Hari Shankar Ashopa v. State of U.P. & others, 1989 ACJ 337.
Learned counsel for the petitioner has also relied on the following judgments:
(i) Writ Petition No.26668 of 2002 (Kedar Ram v. State of U.P. & others)
(ii) Writ Petition No.56632 of 2005 (Karuna Nidhan Rai v. State of U.P. & others)
(iii) Special Appeal No.743 of 2005 (Board of Revenue & others v. Prasidh Narain Upadhay)
(iv) Writ Petition No.4211 of 2008 (Girja Prasad v. State of U.P. & others)
(v) Special Appeal No.(508) of 2008 (State of U.P. v. Panmati Devi & another)
(vi) Writ-A No.42138 of 2007 (Surya Dev Gond v. State of U.P. & others).
Learned Standing Counsel submits that Rule 5 of the Uttar Pradesh Collection Peon's Service Rules, 2004 deals with the mode of recruitment, which provides that fifty per cent collection peons shall be appointed by direct recruitment through the Selection Committee and remaining fifty per cent posts shall be filled through the Selection Committee from amongst such Seasonal Collection Peons who have worked satisfactorily for at least four Fasals and whose age on the first day of July of the year in which selection is made does exiceed 45 years. It is further submitted by learned Standing Counsel that since the petitioner has not been engaged in terms of the Rule 5, he is not entitled for the pension.
In rejoinder, learned counsel for the petitioner submits that Rule 5 would have applicable in the case of the petitioner as the Uttar Pradesh Peon's Regularization Rules, 2005 was not applicable to the petitioner, who stood retired in the year 2002 and these rules are prospective in operation.
I have considered the rival submission of the learned counsel for the parties and perused the record.
Indisputably, the petitioner was working since the year 1997 with some breaks and retired in 2002.
The service record of the petitioner produced by learned Standing Counsel indicates that the petitioner has been given all the benefits of regular employee such as regular pay-scale, increments and other benefits. He was given the pay-scale of Rs.750-940 by the order of the District Magistrate from 01.01.1993 and regular increment was sanctioned to him by the order of the District Magistrate from 01.01.1993 onwards annually. All these orders of the District Magistrate has been duly counter-signed by the Tehsildar in the service record.
From the facts in the case of Prasidh Narain Upadhyay (supra), which has been followed in Girja Prasad (supra), it is evident that in those cases, the petitioners therein had been working as Seasonal Collection Peon on temporary basis on substantive post.
Learned Standing Counsel has failed to satisfy the Court that in the case of Dhooma Singh Yadav and Ram Nagina Pandey, the District Magistrate has not passed the order for the payment of pension following the judgment passed in Prasidh Narain Upadhyay's case. Thus, there is no justifiable reason for discriminating the petitioner with the petitioners in the aforesaid cases as they were also similarly placed persons.
Learned Standing Counsel has also failed to satisfy the Court that in the case of Dhooma Singh Yadav, who was also Seasonal Collection Peon, the District Magistrate has passed the order whereias in the case of the petitioner the Sub-Divisional Magistrate has passed the order.
It is stated at the bar that against the judgment in Prasidh Narain Upadhyay (supra) a special leave petition was filed, which was dismissed by the Supreme Court. It is also stated that against the orders of the learned Single Judge in the case of Girja Prasad v. State of U.P. & others (supra) and Kedar Ram v. State of U.P. & others (supra), special appeal has been filed but no interim order has been granted therein.
After careful consideration of the matter, I am of the view that for the reasons stated herein-above, the impugned order of the Sub-Divisional Magistrate dated 12.12.2008 is unsustainable and it needs to be set aside. Accordingly, it is set aside.
The matter is remitted to the District Magistrate to pass a fresh order in the light of the observations made herein-above and in the case of Board of Revenue & others v. Prasidh Narain Upadhyay (supra), the District Magistrate shall also bear in mind that he has passed the orders in similar matter in the cases of Dhooma Singh Yadav & Ram Nagina Pandey which is annexure-8 to the writ petition. The aforesaid exercise shall be completed by the District Magistrate expeditiously within two months from the date of the communication of the order. He shall pay regard to the fact that the petitioner is 73 years old person.
From a perusal of the service record, it is evident that officer concerned who has made the correction, there is no initial. The Sub-Divisional Magistrate in his instructions has tried to explain it as a human error, it appears that Sub-Divisional Magistrate is not aware about the meaning of the word. He has not disclosed that who has made the correction in the service record.
I find sufficient force in the submission of learned counsel for the petitioner that it is a serious fabrication in the public record, accordingly, the District Magistrate may hold an enquiry about the said fabrication and direct to file an F.I.R. against the person who is found guilty in the enquiry. However, the District Magistrate shall pass the order in respect of the petitioner's pension at the first stage and will not hold the order on the ground that the enquiry is pending.
The service record and original record is returned to the learned Standing Counsel.
The writ petition is allowed.
No order as to costs.
Order Date :- 7.5.2015 S.Sharma