Lalit Mohan Lal vs State Of U.P. And Others
2013 Latest Caselaw 6501 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 

 
Court No. 21
 

 
Writ Petition  No.  44466 Of  2006
 
Lalit Mohan Lal........................................................................Petitioner
 
                                                        Versus
 
State of  U.P. and others.......................................................Respondents
 

 
Hon. Rakesh Tiwari, J.

Hon. B. Amit Sthalekar, J.

Heard counsel for the parties and perused the record.

The petitioner has challenged the order dated 24.4.2006 passed by respondent no. 2- State Prohibition Officer, Lucknow, by which his representation for taking into account the service rendered by him prior to his regular appointment, for the purpose of pension has been rejected.

Relevant facts of the case, are that petitioner for the first time was appointed as "Madya Nished Vyavasthapak" on 5.10.1956 purely on temporary basis which continued till 27.2.1958 when his services were dispensed with by giving one month's notice. Thereafter, he was again provided temporary appointments on short term leave vacancies with effect from 1.3.1958 to 27.7.1958, 25.9.1958 to 23.3.1961 and 1.4.1961 to 11.10.1961in different capacities and his services were dispensed with each time after the vacancy came to an end. After his temporary short term engagements, the petitioner was appointed "Madya Nished Vyavasthapak" in the pay scale of Rs. 60- 4-80-5-120 with effect from 12.10.1961 on permanent basis and his appointment continued till 30.6.1991 when he retired from service. His pension has been fixed on the basis of qualifying period on his substantive and permanent post.

The petitioner has based his claim upon a judgment rendered in Board of Revenue and others Vs. Prasidh Narain Upadhyay ( 2006(1) ESC-611 (Alld.) (DB), wherein respondent Prasidh Narain Upadhyay was appointed on the post of collection peon in 1962 on temporary basis and continued in service till his retirement in 1999 i.e. for a period of 37 years in service. Considering the facts and circumstances, the Court held that the respondent in that case was entitled for pension in view of Fundamental Rule 56 read with paras 361,465 and 465-A of the Regulations and mere fact that he was neither confirmed nor regularised in service, would not take away his right to get pension which flows from law and also from period of 37 years' continuous service.

Submission of the counsel for petitioner is that petitioner was for the first time appointed temporarily against a substantive vacancy as Prohibition and Social Uplift Organizer in the then pay scale of Rs. 60-4-8-5-120 by appointment order dated 21.9.1956. Thereafter, he was retrenched under Government policy as an economic measure, after which he was appointed on leave vacancies from time to time with artificial breaks, hence his services ought to be considered as continuous and his pension is liable to be fixed accordingly, computing his 'qualifying period ' of service from first date of his joining service and 69 days' break in his service, cannot deprive him of his full pension and gratuity.

It is apparent from the impugned order dated 24.4.2006 appended as annexure no. 10 to the writ petition that services of the petitioner were not continuous. His appointment was on temporary basis for a short period of time. He had joined service on 5.10.1956 as a temporary employee and worked upto 27.2.1958. Thereafter his services were dispensed with by giving him one month's notice. He then worked on short term leave vacancies with effect from 1.3.1958 to 27.7.1958 with a break in his service when the leave vacancy came to an end. He was then engaged with effect from 25.9.1959 to 23.3.1961 on occurrence of a fresh leave vacancy whereafter his services were again dispensed with. After the break he again worked with effect from 1.4.1961 to 11.10.1961. Thereafter, he was appointed on permanent basis with effect from 12.10.1961 on the post of Madya Nished Vyavasthapak in the pay scale of Rs. 60- 4-80-5-120, during which period he was accordingly granted seniority and other benefits of service including the pension.

Learned standing counsel has submitted that admittedly the petitioner has been granted pension as per Rules for the period he had worked continuously as his qualifying service. But his services on short term leave vacancies which occurred from time to time during the period 5.10.1956 to 11.10.1961, have rightly not been taken into account for the purpose of pension as appointment of the petitioner during this period was not on substantive vacant post but in leave vacancy of another person who had lien on that post.

We have perused paragraph no. 6 to 8 of the judgment in Board of Revenue and others Vs. Prasidh Narain Upadhyay (supra) relied upon by the counsel for petitioner which read thus :

6.Thus, for the only reason of non issuing of formal order of confirmation or regularization by the appellants can it be said that though the respondent has rendered 37 years of continuous service with the appellants, yet is not entitled for pensionary benefits.

7.Now it is too late in the day to say that the pension is not a right. As long back as in the year 1971, in the case of Deokinandan Prasad Vs. State of Bohar and others, AIR 1971 SC 1049, the Hon. Apex Court in para-32 of the judgment held as under :

" But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet ill and pleasure of the Government and that , on the other hand, the right to pension is a valuable right vesting in a Government servant"

8.Again the Hon. Apex Court in the case of D.S. Nakara and others Vs. Union of India,AIR 1983 SC 130, following the aforesaid judgment, held as under :

"In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from undeserved ant was recognised and as a first steps pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto the master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, every one who qualifies for normal retirement receives the same amount.

Pensions to civil employees of the Governemnt and the defence personnel as administered in India appear to be a compensation for service rendered in the past.

From the discussion three things emerge: (1) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148of the Constitution, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered and (iii) it is a social welfare measure rendering socio economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during the last three years of service reduced to ten months under liberalized pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is,since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure."

Fundamental Rule 56 read with Article 465 and 465-A provide for payment of retirement benefits to every govt. servant including pension. Article 465 and 465-A read thus :

"465(1). A retiring pension is granted to a Govt. servant who is permitted to retire after completing qualifying service for 25 years or on attaining the age of 50 years.

(2).A retiring pension is also granted to a Govt. servant who is required by Government to retire after attaining the age of 50 years.

465-A. For officers mentioned in Article 349-A, the rule for the grant of retiring pension is as follows :

(1) An officer is entitled on his resignation being accepted to a retiring pension after completing qualifying service of not less than 25 years or on attaining the age of 50 years.

(2) A retiring pension is also granted to an officer who is required by Government to retire after attaining the age of 50 years."

The term "qualifying service" has also been defined in Section 1, Chapter 16 of Article 361 of the Civil Service Regulations, according to which qualifying service for pension must be substantive and permanent, that is to say service is continuous without any break and that service of the govt. servant does not qualify for pension until and unless it conforms the three conditions:

(A) The service must be under Government.

(B) The employment must be substantive and permanent.

( C) The service must be paid by Government.

It has been noted in the aforesaid cited judgment that condition no. A and C, that is service must be under Government and the service must be paid by the government, were satisfied in that case and the dispute was only with regard to condition no. B i.e. service must be substantive and permanent. In that case, respondent Prasidh Narain Upadhyay was continued in service till his retirement without any break and the plea taken by the department was that he was not substantively appointed and confirmed on the post of collection peon, hence was not entitled for pension. It was on these facts that the Court in that case ruled that continuous working of the respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellant.

The facts of the present case are totally different. Here, the petitioner's service with effect from 5.10.1956 to 11.10.1961 is neither continuous nor his employment was substantive and permanent. In fact his engagement was either temporary for a specified period or in leave vacancy on a post on which the permanent employee was having his lien. In fact the benefit of 'leave period' would go to the person having lien on the post for computing his qualifying period of continuous service and not to the petitioner who was not a permanent govt. employee but was engaged for a short period in leave vacancy of a Govt. employee. There are breaks in his service rendered by him from time to time during the period 5.10.1956 to 11.10.1961 and so the decision relied upon by the counsel is distinguishable on facts and has no application to the facts of the present case. Submission of the learned counsel for petitioner that service rendered by the petitioner since 1956 is to be taken into account for the purpose of pension, therefore, has no force as in the case relied upon by him also only continuous period of qualifying service has been considered.

The petitioner has been granted pension on the basis of his continuous period of service i.e. with effect from 12.10.1961 till the date of his retirement. Prior period of service from 1956 to 1961 on short term leave vacancies for different periods with breaks in service, has rightly been ignored for the purpose of pension keeping in view Art. 361 of the Civil Service Regulations which provides that employment must be substantive and permanent.

In view of aforesaid discussion, we do not find any infirmity or illegality in the impugned order. The petition has no force and is accordingly dismissed.

Dt/-21.10.2013/SNT