Allahabad High Court
Union Of India And 4 Ors. vs Khacheru Singh And Anr. on 15 November, 2017
Bench: Amreshwar Pratap Sahi, Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- WRIT - A No. - 18838 of 2017
Petitioner :- Union Of India And 4 Ors.
Respondent :- Khacheru Singh And Anr.
Counsel for Petitioner :- Gyan Prakash
Counsel for Respondent :- S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Saral Srivastava,J.
Heard Sri S.K. Mishra, Sri Gyan Prakash and Sri Raghuraj Kishore Mishra learned counsel for the petitioners-Union of India, and Sri Sidhartha Nandan for the respondents in Writ Petition No. 1693 of 2016.
Upon hearing the learned counsel for the parties what appears is that the Union of India relying on the Division Bench judgment of (Ranjit Mishra Vs. Union of India), Service Bench No. 509 of 2008 dismissed on 29th March, 2017, on the issue relating to the payment of pension which is involved herein, contends that the pensionary benefits would be available only if the services of an employee have been formally regularized in terms of the Scheme dated 12th April, 1991. According to them the status of a temporary employee does not get automatically converted into a regular employee unless there is a regularization of the employee under the said Scheme subject to availability of the vacancy. It is further submitted that for the purpose of retirement benefits including pension, 50% of the period of temporary status of service is liable to be counted as qualifying service for grant of pension, but this is only after regularization as provided for in Clause 6 read with Clause 7 and Clause 12 as per the Scheme dated 12th April, 1991. It is further submitted that there is no connection between the grant of regular status and temporary status unless regularization is granted. In view of Clause 16 and 17 of the said Scheme. They therefore contend that the Division Bench judgment referred to herein above, has been rendered keeping in view the aforesaid statutory provisions, hence, the respondents are not entitled to the said benefit of pension, inasmuch as, in the absence of any specific rule to the contrary the benefit of pension cannot be assumed to be available to the respondents.
Contradicting and refuting the aforesaid submissions, Sri Sidhartha Nandan submits that the said plea now is not available to the petitioners-Union of India and he places reliance on the Division Bench judgment in the case of Union of India Vs. Shyam Lal Shukla, 2012 (1) ADJ 698 to urge that firstly the status of such employees who had been admittedly granted temporary status had completed their entire tenure of service uninterruptedly, they are liable to be treated as regular employees which is the ratio of the aforesaid decision. He has invited the attention of the Court to paragraph no. 14 of the judgment to contend that notwithstanding the fact that no formal order of regularization had been passed, yet the answering respondent was entitled to be treated as regular and extended benefits of pension.
He then submits that the judgment not only treats such employees as regular for the purpose of grant of pension but the judgment also categorically relies on Rule 154 (a) of the Post and Telegraph Ministerial and Manual Establishment Rules which extends benefit of pension even to such employees treating them to be regularized. He therefore, submits that the ratio of the judgment as contained in paragraphs no. 10 and 12 thereof independent of any order of regularization comes to his aid.
The third argument of Sri Sidhratha Nandan is that the aforesaid Division Bench judgment was taken up in Special Leave to Appeal by the Union of India being Special Leave to Appeal No. 12664 of 2012 that was dismissed on 6th August, 2012. He has further invited the attention of the Court to the Division Bench judgment in a case filed by the Union of India being Writ Petition No. 68773 of 14 of Union of India Vs. Haider Hussain and another decided on 10th February, 2015, to contend that the said Bench has also ruled in favour of the answering respondent. He submits that the Special Leave to Appeal filed against the said judgment has also been dismissed by the Apex Court.
He has then invited the attention of the Court to the judgment in the case of Chandi Lal which was allowed by the Tribunal and the writ petition filed by the Union of India against the same was dismissed by this Court on 2nd March, 2007 and the Special Leave Petition filed against the same being Special Leave Petition No. 3248 of 2008 was dismissed on 3rd March, 2008.
With the aid of these judgments, he has answered the query raised by the Court earlier about the status of the judgments of this Court and the principle of merger by inviting the attention of the Court to the judgment of the Apex Court, which has also been relied upon by the learned Counsel for Union of India, in the case of Kunhayammed & Others Vs. State of Kerala and others 2000 (6) SCC 359, where it has been held that the principle of merger will not apply, where the Special Leave to Appeal itself has been dismissed by a non reasoned order but at the same time the Apex Court while dealing with the issue in paragraph (v) of the directions issued indicated that in such cases a decision of the nature as is being relied upon by him and referred to herein above, would bind the parties as a matter of judicial discipline. He therefore, contends that the argument on behalf of the Union of India that the dismissal of the Special Petitions would not be a impediment for raising the arguments which they have advanced, would otherwise be not available as a matter of judicial discipline.
He however submits that he may be granted sometime to search some further judgements either on merits or otherwise on this issue rendered by the Apex Court or by any other Court or Tribunal in order to assist the Court to arrive at the correct conclusion. He prays that the matter be taken up on 30th November 2017.
List accordingly.
Order Date :- 15.11.2017
Ishan
