Allahabad High Court
Kundan Lal vs State Of U.P. Through Secy. Basic ... on 26 July, 2021
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
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Court No. - 18
Case :- SERVICE SINGLE No. - 2879 of 2014
Petitioner :- Kundan Lal
Respondent :- State Of U.P. Through Secy. Basic Edu. Lko. & Ors.
Counsel for Petitioner :- Prem Shankar Bajpai
Counsel for Respondent :- C.S.C.,Rahul Shukla
Hon'ble Abdul Moin,J.
Heard learned counsel for petitioner, learned Standing Counsel for State and Shri Rahul Shukla, learned counsel for respondents no. 3 & 4.
Under challenge is the order dated 20.09.2010 passed by the District Basic Education Officer, Barabanki a copy of which is annexure 1 to the petitioner by which the claim of the petitioner for grant of pension has been rejected primarily on two grounds namely (A) that the petitioner was appointed on a fixed pay on 06.11.1969 and though regular pay scale have been given to him with effect from 01.01.1996 and (B) at the time of his retirement he had only rendered 9 years 5 months and 19 days of service and as per the government order dated 01.07.1989 ten years of service is sine-qua-non for the purpose of grant of pension. Under challenge is also subsequent order dated 29.03.2012, passed by the Secretary, Basic Education, Lucknow, which has been challenged by means of amendment application, which primarily reiterates the same grounds.
Learned counsel for petitioner contends that the stand of the respondents that the petitioner had been given the regular pay scale from 01.01.1996 stand belied from the fact that the regularisation order of the petitioner, a copy of which has been filed as anneuxre 3 the petitioner itself indicates that the petitioner has been given a regular pay scale from 01.09.1995.
Shri Rahul Shukla, learned counsel for respondents no. 3 & 4 fairly submits that the matter in issue had already has already been considered by a Division Bench of this Court in the case of State of U.P. & others vs Gaya Ram [2009(2)ADJ601(DB)]. He submits that in the said case also, the matter pertaining to a fixed pay employee and the service of such employee, after being given a regular pay scale being short of the requisite service of ten years was in issue. He further submits that the matter has been disposed of with following directions:
"20. In view of the aforesaid the judgment and order of the learned Single Judge dated 05.08.2008 is modified by issuing a direction to Secretary, Basic Shiksha Parishad to forward the claim of respondent petitioner for exemption of the period of the service to the extent it falls short of 10 years for payment of pension. Respondent No. 1 may take an appropriate decision regarding the retiral benefits to be paid to the respondent in accordance with law. Necessary recommendation shall be forwarded by the authority within one month from today and the State Government shall take appropriate decision expeditiously, preferably within four months.
21. Before we close the order it is necessary to observe that the distinction between a fixed pay appointee and a temporary appointee for denial of the benefit of service rendered as such, as indicated by the Government Order dated 08th August, 1994, is that fixed pay employee are not employed against any post.
22. Counsel for the respondent before us has contended that respondent was appointed against a post. Substantial material has not been brought on the record of the writ petition for this Court to come to a definite conclusion as to whether the respondent, who was engaged on fixed pay, was employed against a post or not.
23. It is open for the State Government to obtain necessary reports with regard to the fact as to whether the respondent was appointed against a post or not. If it is found that he was appointed against a post, Government may further consider the question of treating the services rendered on fixed pay as the qualifying service"
Having heard learned counsel for parties and having perused the records including the Division Bench judgement of this Court in the case of Gaya Ram (Supra), it is apparent that before the Division Bench also the issue of exemption of the period of service to the extent it fell short of 10 years for payment of pension as well as the service rendered by fixed pay employee was involved. The Division Bench has disposed of the petition with certain directions which are already reproduced above. Thus, it is apparent that the matter of instant petition is covered by the judgement of Gaya Ram (Supra).
Considering the aforesaid dictum of law laid down by the Division Bench of this Court in the case of Gaya Ram (Supra) the present petition is liable to be partly allowed.
Accordingly, a writ of certiorari is issued quashing the order dated 20.09.2010 passed by the District Basic Education Officer, Barabanki as well as order dated 29.03.2012 passed by the Secretary, Basic Education, Lucknow.
A writ of mandamus is issued to respondent no. 1 to consider the claim of the petitioner for exemption of period of service to the extent it falls short of 10 years for payment of pension and appropriate decisions regarding retiral benefits to be paid to the petitioner in accordance with law. As regards the claim of the petitioner for counting the service rendered in the capacity of being a fixed pay employee, it is provided that it is open for the government to obtain necessary reports with regard to the fact as to whether the petitioner was appointed against a post or not. The government may also consider the question of treating the services rendered on fixed pay as qualifying service, in accordance with law and the rules.
Let the appropriate decision be taken in this regard by the competent authority within a period of three months from the date of receipt of a certified copy of this order.
Order Date :- 26.7.2021
J.K. Dinkar
