Smt. Vidya Devi Serivastava vs State Of U.P. Through Seyc. ...
2013 Latest Caselaw 6446 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17                                                                                        AFR
 
                                                                                                             Reserved
 
                                                                            
 
Case :- SERVICE SINGLE No. - 7410 of 2002
 
Petitioner :- Smt. Vidya Devi Srivastava
 
Respondent :- State Of U.P. Through Seyc. Educaiton Basic U.P.Govt. Sectt
 
Counsel for Petitioner :- Anil Saran,Shreesh Kumar,Vivek Pandey
 
Counsel for Respondent :- C.S.C.,A.N.Misra,Rahul Shukla,S.B. Pandey
 

 
Hon'ble Vishnu Chandra Gupta,J.

1. Heard learned counsel for the parties.

2. In the present writ petition the petitioner has sought the following prayer:-

a) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.7.1999 passed by the opposite party no.4 Education Superintendent, Nagar Palika Parishad, Nawabganj, District Barabanki and the Government Order dated 8.8.1994 so far as it is said to have been made applicable for the petitioner, as contained in Annexures 5 and 3 to the writ petition.

b) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to give all the pensionary benefit to the petitioner by treating her appointment as of a permanent and regular employee in Basic School run by a local body in the State and also to pay other allowances and benefit payable to such employee under the law.

c) to issue any other writ, order or direction as this Hon'ble Court thinks fit in the circumstances of the case.

d) to award the costs of the petition to the petitioner.

3. Brief facts for deciding the present petition are that the petitioner's husband late S.P.Srivastava was working on the post of Head Master in Junior Basic School, Gulariya Gadhi, District Barabanbki. He passed away on 31.5.1974 leaving behind the petitioner and minor children in the family. The petitioner being the wife was appointed on compassionate ground as Paricharika in Kanya Pathshala, Gulariya Gadhi, District Barabanki by order dated 3.7.1976 passed by opposite party no. 4, copy of which has been annexed as Annexure no. 1 to the writ petition. The petitioner continued on the said post and ultimately she retired from service on attaining the age of superannuation on 30.4.1998. Thus the petitioner served the institution about 22 years. However, the petitioner was not provided pensionary benefit though she was treated to be permanent employee of the institution and the amount was deducted of provident fund scheme and of group insurance scheme from her salary. The petitioner was initially appointed on fixed pay of Rs. 165/- per month for one year on probation on the vacant post on compassionate ground.

4. Counter affidavit filed on behalf of the opposite parties 3 and 4 wherein it has been stated that the petitioner was working as class IVth employee on fixed salary and by virtue of of G.O. dated 8.8.1994 it has been decided by the State Government that those class IV employees who were working on fixed salary and have neither been appointed on substantive vacancy nor have been selected by means of any selection process shall not come in the category of the regular employee. Thus the deductions under provident fund scheme, group insurance scheme, benefit of pension and family pension are not admissible to them. Thus, the petitioner is not entitled to pensionary benefit, even if any amount is deducted.

5. It is further submitted that in 1996 Basic Education Board has taken decision to adjust all the existing employees in the services on a regular pay scale. Thus the petitioner was given the regular pay scale from 1.11.1996 and she was adjusted in the pay scale of Rs. 750-12-870 EB 14-940. So she was deemed to be in regular service from 1.11.1996, the date when she was adjusted in the regular pay scale. Therefore, the period of qualifying service was less than 10 years, as such she is not entitled to pensionary benefit.

6. On this score in para 5 of the counter affidavit it has been mentioned that the appointment of the petitioner was a compassionate appointment and thus all benefits were given to her as of a regular employee. The DA was paid to her, GPF was deducted from her salary which was subsequently paid to her, all casual and medical leave were provided to the petitioner alongwith all the service benefits and her services were without any break. The petitioner was kept on a fixed salary as all the class IV employees in the Board were kept on fixed salary after the formulation of the Board there was no appointment on regular pay scales, the petitioner was provided the regular pay scale in the year 1996 and she retired from services on 30.4.1998 i.e. only after two years and thus has not completed 10 years of qualifying service and therefore, was not paid pension.

7. The service book of the petitioner is annexed as annexure no. 2 to the counter affidavit wherein the petitioner was shown to be appointed on compassionate ground vide letter dated 3.7.1976 on fixed pay of Rs. 165 /- per month. Thereafter the petitioner was given medical leave and salary was revised from time to time. She was retired from service on 30.4.1998 .

8. The moot question for consideration is whether an employee who has been appointed on compassionate ground may be treated to be permanent regular employee for the purpose of granting pensionary benefit?

9. This question is not res integra and has been settled that a person appointed on compassionate ground under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness, Rules 1974 promulgated by the State Government would be permanent appointment on substantive post and he/she will be treated as regular appointee for the purpose as held by the Division of this Court in Ravi Karan Singh Vs. State of U.P. and others, 1999 (17) LCD 641.

The relevant para 3 of the aforesaid judgment is reproduced hereinbelow:-

".....................Honble M. Katju, j. & Hon'ble Kamal Kishore, J.- This petition has come up before us on a reference made by the learned Single Judge by his order dated 19.12.1997. The point involved is very simple, that is, whether an appointment under the Dying in Harness Rules is a permanent appointment or a temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appointment vide Budhi Sagar Dubey Vs. D.I.O.S., 1993 Education and Service case 21, Gulab Yadav v. State of U.P. And others, 1991 (2) UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. And others, 1991 (1) UPLBEC 427. The learned Single Judge who passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.

2. In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rules because such appointment is intended to provide immediate relief to the family on the sudden death of the bread earner. We, therefore, hold that the appointment and not a temporary appointment, and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules 1975 will not apply to such appointments.

3. The petition is disposed of accordingly."

10. In view of the aforesaid dictum the impugned notification (Annexure no. 3 to the writ petition is of dated 8.8.1994) would not be applicable to the case of the present petitioner as she cannot said to have been appointed in de hors of the rules or against non existing vacancy. Therefore, entire period spent from joining of her services till the date of superannuation shall be treated to be qualifying services for granting pensionary benefit on the basis existing rules for grant of pension to the petitioner.

11. So far as the policy framed in 1996 is concerned, it also does not effect the status of the present petitioner. That will effect those employees who were appointed de hors of the rules in service or serving the department without any substantive vacancy. Here in the present case no such conditions are prevalent.

12. Moreover, regularisation of the petitioner is not required within the meaning of aforesaid policy because she will be deemed to be appointed permanently on substantive post in view of the case of Ravi Karan Singh (supra).

13. Learned counsel for the petitioner relied upon judgment rendered by this court in Writ Petition no. 767 of 2004 Ram Kali Vs. State of U.P. and others, decided on 8.4.2008, wherein it has been held that even if a person appointed in primary school under the control of Municipal Corporation and later on the said institution is taken over and comes under the control of Basic Shiksha Parisha, he shall be deemed to be on continuous duty for the purpose of granting pension.

Relevant portion of the aforesaid judgement is reproduced hereineblow:-

" After respective arguments have been advanced, factual position, which emerges is to the effect that petitioner was appointed on the post of Dai on 19.12.1972 in primary school under the control of Municipal Corporation and thereafter, said institution was taken over and came under the control of Basic Shiksha Parishad. Petitioner's services were confirmed on 01.12.1974. Petitioner's pay scale was revised with effect from 01.01.1986 from Rs. 165-215/- to rs. 750-940/-. Again petitioner's pay scale was revised with effect from 01.01.1996 from Rs. 750-940/- to Rs. 2550-3200/-. All these fixations are duly verifiable from the service record of petitioner appended along with the writ petition and qua which there is no dispute in the counter affidavit that petitioner's salary was revised from time to time. Further usual deductions were made from salary for provident fund. Once, petitioner had been performing and discharging duties under the control of Basic Shiksha Parishad, as is apparent from her service book; she was confirmed and paid salary in the pay scale of Rs. 165-215/ to rs. 750-940/- which was revised to Rs. 2550-3200/- with effect from 01.01.1996, then it would be wholly inappropirate to say that petitioner has not completed ten years continuous confirmed service. The plea which has been sought to be taken in counter affidavit cannot be sustained. Similar objection has already been negated by this Court in the case of Hansraj Pandey V. State of U.P., Civil Misc. Writ Petition No. 10728 of 2004, decided on 15.06.2007, at Allahabad. This Court in the case of Board of Revenue through its chairman, U.P. Lucknow and others V. Prasidh Narain Upadhyaya, 2006 (62) ALR 839, has taken the view that continuous working of an employee for more than 37 years cannot be ignored on the basis of vague and unsustainable pleas and statutory rights flowing by rendering service for such a long period cannot be brushed aside lightly. Here, in the present case also, 30 years' service has been rendered by petitioner and the service book clearly fortifies the contention of petitioner that she was confirmed employee and from time to time her pay scale was revised.

In view of the discussions made above, present writ petition is allowed. Respondents are directed to take steps for ensuring regular pension to petitioner month by month as and when it falls due. As far as arrears of such pension from the date of superannuation till date is concerned, same be paid along with 6% simple interest within four months from the date of receipt of a certified copy of this order".

14. In view of the above, the writ petition is allowed. Opposite parties are directed to take steps to ensure the payment of regular pension to petitioner month to month as and when it falls due alongwith arrears of pension from the date of superannuation till the date of commencement of payment of pension. The arrears of pension shall be paid to the petitioner alongwith 6% simple interest within three months from the date of production of a certified copy of this order before them. The payment of pension shall also be ensured to be made to the petitioner on month to month basis within three months from the date of production of certified copy of this order

GSY

11th October,2013