Allahabad High Court
Narendra Bahadur Srivastava vs State Of U.P. & Others on 20 July, 2015
Bench: Arun Tandon, Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 9
Case :- WRIT - A No. - 2951 of 2009
Petitioner :- Narendra Bahadur Srivastava
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- H.N. Singh,B. Narayan Singh
Counsel for Respondent :- C.S.C.
Hon'ble Arun Tandon,J.
Hon'ble Ashwani Kumar Mishra,J.
The present writ petition has been filed challenging the order dated 08.12.2008, passed by the State Government, whereby the representation of the petitioner for inclusion of his past services for the purposes of computation of pension, dated 19.6.2008, has been rejected.
Facts, as emerge from the records of the present writ petition, are that petitioner was appointed as Naib Tehsildar in the employment of the State Government on 12.6.1973. He was thereafter promoted to the post of Sub Divisional Magistrate, and upon attaining the age of superannuation, has retired on 31.7.1997. It appears that at such stage, the petitioner raised a claim for inclusion of his services, rendered in the Department of Industries from 18.8.1961 to 21.5.1968 as also the services rendered to the Department of Khadi Gramudyog as Assistant Development Officer from 22.5.1968 to 11.6.1973.
Petitioner alleges that he had been appointed on 7.8.1961 as Assistant Development Officer, Grade-II, in the Industries Department, and in such capacity, he was retrenched on 5.3.1968, consequent to abolition of post, by giving him a month's notice in terms of the conditions of his employment. Petitioner also claims to have been absorbed thereafter as Assistant Development Officer, Grade-II, in the Khadi Gramudyog Department in the same pay scale, and he continued to work till his appointment as Naib Tehsildar on 12.6.1973.
Claim of the petitioner for inclusion of his services, aforesaid, has been examined by the State Government, and by the order impugned dated 8.12.2008, his claim has been rejected on the ground that his services, rendered in the Department of U.P. Khadi Gramudyog Board as Assistant Development Officer from 22.5.1968 to 11.6.1973, was not covered by the Contributory Provident Fund (C.P.F.) Scheme, and no amount towards C.P.F. was actually deducted. Relying upon Government Orders dated 10.7.1998 and 28.12.2001, it has been observed that such period of service is not liable to be counted for computation of pension.
Learned counsel for the petitioner challenges the order impugned on two grounds; firstly, that the services, which have been rendered in the previous department, were with a statutory authority, controlled by the State Government, and therefore, such services could not have been ignored, and secondly, that on the similar facts, the State Government has included the services rendered by one Kaushal Kumar Dikshit in the Khadi Gramudyog Board, and denial of similar treatment to petitioner is per se discriminatory.
Having heard learned counsel for the parties, and upon examining the records, we find that letters of appointment, which were issued to the petitioner in the Industries Department, as well as in the Khadi Gramudyog Board, which are available on record as Annexure nos.1 and 2, clearly depict nature of petitioner's appointment, as being purely temporary, and could be terminated by giving him a month's notice or salary in lieu thereof. The records further show that this clause, contained in the appointment letter of the petitioner, had been invoked by the respective department, treating his services to be temporary, and thereby terminating it by giving him a month's notice or salary in lieu thereof. It is, thus, absolutely clear that the petitioner's services remained temporary till 1973 with the respective departments, and he was never regularized. In the absence of regular appointment in the Department of Industries, as well as in the Khadi Gramudyog Board, his working could not have been counted for the purposes of pension. We find no error in the order of the State Government, which records that on account of non-payment of C.P.F., the services rendered in such organizations could not have been taken into consideration.
So far as the grievance with regard to the grant of similar benefit to other persons are concerned, we find that since the appointment of the petitioner was temporary, this benefit is not available to him. Petitioner has not been able to demonstrate that the services, rendered by Kaushal Kumar Dikshit, with whom parity is claimed, was also in temporary capacity. Even otherwise, the Apex Court has held that there cannot be any negative equality, and no mandamus can be issued by a writ court, asking the authorities to perpetuate the illegality (Ref. Ghulam Rasool Lone Vs. State of Jammu & Kashmir, JT 2009 (13) SC 422).
It may also be recorded that in view of the Government Order, only such period of service, rendered in the previous department, can be taken into account, for which deductions have been made towards C.P.F. So far as the temporary employees are concerned, there is no provision of any deduction of C.P.F. in the concerned department, and as such the period of temporary employment cannot be counted for the purposes of computation of pension.
In view of the aforesaid, we find that there is no substance in the writ petition. The same is accordingly dismissed.
Interim order, if any, stands discharged.
Order Date :- 20.7.2015
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