Krishna Kumar Savita vs State Of U.P. And Others
2014 Latest Caselaw 7877 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 37
 

 
Case :- SPECIAL APPEAL No. - 1882 of 2011
 

 
Appellant :- Krishna Kumar Savita
 
Respondent :- State Of U.P. And Others
 
Counsel for Appellant :- Vinay K. Gupta
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vineet Saran,J.

Hon'ble Vivek Kumar Birla,J.

(Delivered by Hon'ble Vivek Kumar Birla, J.)

The appellant-petitioner has come up challenging the judgment and order dated 21 July 2011 passed by the learned Single Judge dismissing the writ petition holding that the petitioner was rightly refused pension as he has not completed 10 years of regular service.

By means of Writ Petition No. 20050 of 2009 the petitioner has challenged the order dated 9 January 2009 passed by the Regional Food Controller, Jhansi whereby he was refused pensionary benefits on the ground that since the petitioner was regularized on 1 February 2001 and retired on 31 January 2008, as such he has completed only 6 years 11 months and 30 days of regular service, and is not entitled for pension.

Heard Sri Vinay Kumar Gupta, learned counsel for the appellant-petitioner and the learned Standing Counsel for the respondent-Authorities.

The facts of the case in brief are that the appellant-petitioner was appointed as Chowkidar on temporary basis vide order dated 17 July 1972 whereby he was appointed in the scale of Rs. 55-1-1975 plus usual dearness allowances clearly mentioning that the appointment is purely temporary and is liable to be terminated at any point of time without assigning any reason. Service book of the petitioner was maintained. He was regularized on 1 February 2001 and he retired on 31 January 2008 after attaining the age of 60 years.

Learned counsel for the appellant-petitioner submitted that he has claimed pensionary benefits on the ground that he had completed 35 years of service and the fact that he was working on temporary basis uptill 1 February 2001, the date on which he was regularized would make no difference as he would be entitled to pension under Fundamental Rules, 56 read with Article 465, 465-A and 361 of the Civil Service Regulations.

In reply the learned Standing Counsel submitted that the petitioner was not entitled for pension as he was regularized on 1 February 2001 and retired on 31 January 2008 and, therefore, undisputedly he has not completed 10 years of qualifying service and as such he is not entitled for pension as per Government Order dated 22 June 1987, which provides that in the absence of 10 years of qualifying service an employee is entitled only for service gratuity / retiral gratuity. It was further submitted that in the absence of qualifying of 10 years regular service, a temporary service, which may be even of about 30 years, is of no consequence in so far as the entitlement of appellant-petitioner for pension is concerned.

The learned counsel for the appellant-petitioner has placed reliance on the judgment of a Division Bench of this Court in Board of Revenue and others Vs. Prasidh Narain Upadhyay 2006 (1) ESC 611 (All). In this judgment, this Court had an opportunity of considering Fundamental Rule 56 and Article 465, 465-A and 361 of the Civil Service Regulations. After considering the aforesaid provisions, it was held that the provisions of Fundamental Rule 56 shall prevail over Civil Service Regulations, if they are inconsistent. It was further held that Condition No. B of Article 361, which provides that employment must be substantive and permanent, are clearly inconsistent with Fundamental Rule 56 Clause (e) and thus, is inoperative. Relevant extract of the aforesaid provisions are extracted hereinunder:-

"(e) A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule:

[Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less.]"

A similar controversy was decided in Dr. Hari Shanker Asopa Vs. State of U.P. and another 1989 ACJ page 337, it was held as under:-

"Clause (e) of Rule 56 unequivocally recognizes, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation, or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Clause (a) or Clause (b), or who is required to retire, or who is allowed to retire under Clause (c) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied."

The counsel for the appellant has further placed reliance on a decision of learned Single Judge in Writ Petition No. 55484 of 2006 (Khuman Das Vs. State of U.P. and others) (of the same department) and asserted that the case of the petitioner is identical in nature as involved in the aforesaid case and allowing the petition it was held that the petitioner is entitled for pension according to Rule and the view taken by the respondents that the petitioner was not a regularized employee, hence he is not entitled for pension, was held to be misconceived and was rejected. It was also contended that in Special Appeal Defective No. 759 of 2007 (State of U.P. and others Vs. Khuman Das) filed by the State against the aforesaid jdugment dated 2 May 2007 was dismissed by this Court. He has further placed reliance in the case of State of U.P. Vs. Rajendra Nath Pandey 2008 (26) LCD page 1760.

On the strength of the aforesaid, the learned counsel submitted that the appellant-petitioner in the present case is entitled for pension and he has been wrongly deprived of pension by the respondent-authorities.

From a perusal of the judgment under challenge it appears that the learned Single Judge was carried away by the arguments of the counsel for the State that the appellant-petitioner was initially appointed on purely temporary in nature without following any process of selection and observed that the entire body of the writ petition is completely silent as to what was the mode of selection followed at the time when petitioner has been offered appointment initially as Chowkidar and subsequently, as godown Chowkidar.

In view of the admitted facts that the appellant-petitioner was regularized vide order dated 1 February 2001 and has completed 35 years of service, the question of grant of pensionary benefits was to be evaluated in the light of the judgments rendered by the Division Bench of this Court and the learned Single Judge was not justified in relying upon a decision in the case of Kashi Prasad Vs. State of U.P. and others in Writ Petition No. 43227 of 2009 passed by a learned Single Judge.

Therefore, in our view the matter is fully covered by the Division Bench of this Court in Board of Revenue Vs. Prasidh Narain Upadhyay (supra), Dr. Hari Shanker Asopa Vs. State of U.P. and another (supra), State of U.P. Vs. Rajendra Nath Pandey (supra) and State of U.P. and others Vs. Khuman Das (supra), (Special Appeal No. 759 of 2007 decided on 25 September 2007).

Consequently, this appeal is allowed. The judgment of the learned Single Judge dated 21 July 2011 passed in Writ Petition No. 20050 of 2009 (Krishna Kumar Savita Vs. State of U.P. and others) is quashed. The respondent-authorities are directed to process the claim of the petitioner regarding payment of pension and the entire exercise shall be undertaken preferably within a period of three months' from the date of production of a certified copy of this order. The respondents are directed to pay admissible pension to the appellant-petitioner including arrears and other retiral benefits within a period of two months thereafter.

The appeal is, accordingly, allowed.

Order Date :- 30.10.2014

Lalit Shukla

(Vivek Kumar Birla,J.) (Vineet Saran,J.)