Board Of Revenue Through Chairman ... vs Ramji Shukla
2021 Latest Caselaw 6459 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Chief Justice's Court
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 259 of 2020
 

 
Appellant :- Board Of Revenue Through Chairman U.P.Lucknow And Ors.
 
Respondent :- Ramji Shukla
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Devi Prasad Maurya
 

 
Hon'ble Sanjay Yadav,Chief Justice
 
Hon'ble Ritu Raj Awasthi,J.

Matter is taken up through video conferencing.

As per Office report dated 12.02.2021, notice on sole respondent is deemed sufficient.

Heard learned counsel for appellant.

The special appeal has been filed with some delay. We feel it appropriate to condone the delay. The delay in filing of appeal is hereby condoned

This intra Court appeal has been filed challenging the judgment and order dated 26.02.2019 passed in Writ Petition No. 8737 (SS) of 2011 (Ramji Shukla vs. State of U.P. and others) whereby the learned Single Judge has allowed the writ petition and has quashed the order under challenge dated 14.11.2011 with a direction to District Magistrate, Faizabad to pass fresh orders regarding payment of pension and other retiral dues to the petitioner. The learned Single Judge has come to conclusion that the respondent-petitioner is entitled for the retiral benefits including pension taking into account his service on temporary basis w.e.f. 29.6.1979.

As per brief facts of the case, the respondent-petitioner was initially appointed on the post of Collection Amin in the year 1968. On 29.6.1979 he was appointed as Collection Peon and on 29.6.2001 he was made permanent. After attaining the age of superannuation, respondent-petitioner retired from service on 31.12.2008 but the pensionary benefits were not provided to the petitioner, therefore, he filed Writ Petition No. 6152 (SS) of 2011. The writ petition was disposed of with the direction to consider the case of the respondent-petitioner in the light of the Government Order dated 1.7.1989 in compliance thereof the claim of the respondent-petitioner was considered and rejected by order dated 14.11.2011 which was challenged by filing Writ Petition No. 8737 (SS) of 2011.

The learned standing counsel appearing for the appellant has contended that the learned Single Judge has grossly erred in coming to conclusion that the respondent-petitioner is entitled to get the post retiral benefits taking into consideration his service on temporary post w.e.f. 29.6.1979. It is contended that the pensionary benefits shall be calculated on the basis of the regular service of the respondent-petitioner which was only 7 years 6 months and 2 days which is less than 10 years, therefore, the respondent-petitioner was not entitled for pension. Gratuity was paid to him.

We have considered the submissions made by learned counsel for appellant and gone through the record.

The respondent-petitioner was initially appointed on the post of Collection Amin. The learned Single Judge after perusing the record has noted that in the service book of the respondent-petitioner in column no. 2 the word 'temporary' is mentioned. It is observed by the learned Single Judge that the word 'seasonal' has been added between the name of respondent-petitioner and the 'Collection Amin'. Similarly, when the respondent-petitioner was appointed as Collection Peon he has been shown as 'temporary' in column no. 2 but he has been indicated as Seasonal Collection Peon. It is also noted by the learned Single Judge that on the first page of the service book the word 'seasonal' is not mentioned. The learned Single Judge opined that why and how the word 'seasonal' has been mentioned in the subsequent part of the service book is not clear. In any case from the beginning of the service petitioner has been shown as temporary.

The Government Order dated 1.7.1989 provides that temporary Government Servants who have completed minimum 10 years of service would be entitled for pension, gratuity and family pension on the same rate as are payable to the permanent employee under the relevant Rules. However, while rejecting the representation of the respondent-petitioner, the competent authority has considered only the period of service rendered by the respondent-petitioner after becoming permanent i.e., 7 years 6 months 2 days and since he had not completed 10 years of service after becoming permanent, therefore, the pension has been denied.

It is not in dispute that the Government Order dated 1.7.1989 is in force.

It is also not in dispute that the respondent-petitioner had continuously worked since his appointment on the post of Collection Peon w.e.f. 29.6.1979.

The law laid down by this Court in the case of Prasidh Narain Upadhayaya vs. Board of Revenue and others; Civil Misc. Writ Petition No. 53567 of 1989, judgment and order dated 16.08.2005 which has been affirmed in the Special Appeal vide judgment and order dated 2.12.2005 reported in 2006 (1) ESC 611 (All) (DB); Board of Revenue and Others vs. Prasidh Narain Upadhyaya has rightly been considered by the learned Single Judge. The relevant paragraph of the judgment is reproduced below:

"Considering a similar controversy in CMWP No.53567 of 1999 (Prasidh Narian Upadhyaya Vs. Board of Revenue and Others) vide judgment and order dated 16.08.2005 this Court had held that the petitioner is entitled for all the retiral benefits according to law which is payable to the similarly situated employees.

The said judgment was challenged in special appeal by the respondents and the special appeal has been dismissed vide judgment and order dated 02.12.2005 reported in 2006 (1) ESC 611 (All) (DB); Board of Revenue and Others Vs. Prasidh Narain Upadhyaya. The relevant paragraphs of the said judgment are reproduced as under:-

9. Article 424 Chapter 18 of the Civil Service Regulations provides the following kinds of pension admissible to a government servant (a) compensation pension (b) invalid pensions (c) superannuation pensions (d) retiring pensions.

10. Fundamental Rule 56 provides for retiring of a government servant on attaining the age of 58 years or 60 years as the case may be. It is not disputed that in the present case, the age of superannuation of the petitioner-respondent was 60 years. Clause (e) of Fundamental Rule 56 reads as under:

"(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.

11. Article 465 and 465-A provides as under:

"465(1) A retiring pension is granted to a government 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 government servant who is required by Government to retire after attaining the age of 50 years.

465-A. For officers mentioned in Article 349A, 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."

12. The term "qualifying service" is defined in Section 1 Chapter 16 of Article 361 of the Civil Service Regulations, which provides that the service of an officer does not qualify for pension unless it conforms to the following 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.

13. In the present case, so far as the condition nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B, i.e., lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P. Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in Clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every government servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Conditions (Supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is inoperative.

14. A similar controversy came up for consideration earlier before this Court in the case of Dr. Hari Shankar Ashopa v. State of U.P. and Ors. reported in 1989 ACJ 337 : After referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations, this Court observed 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."

15. In this view of the matter, the contention of the appellants that since the petitioner-respondent was not a permanent confirmed employee and hence not entitled for pension, is clearly misconceived and is rejected.

16. Learned counsel for the appellants further submitted that since in the service book, the petitioner-respondent was also shown as Seasonal Collection Peon and, therefore, the mention of word "temporary" as his initial appointment will not make any difference. We do not agree. The contention of the appellants that the petitioner respondent was a Seasonal Collection Peon and his engagement and post was extended from time to time by the Commissioner is totally unsubstantiated, as nothing has been brought on record to substantiate this plea. Even otherwise the continuous working of the petitioner-respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitioner-respondent flowing by rendering service for such a long service, cannot be brushed aside lightly."

In view of above, I am of the opinion that the petitioner is entitled for the retiral benefits including pension taking into account his services on temporary basis w.e.f 29.06.1979 according to law. Therefore the order dated 14.11.2011 passed by the opposite party no.2 is quashed. The matter is remitted back to the respondent no.2; District Magistrate, Faizabad to pass appropriate orders regarding payment of pension and other retiral dues to the petitioner in the light of observations made here-in-above in the present order.

The writ petition is allowed accordingly."

As such, we do not find any infirmity in the view taken by the learned Single Judge.

The special appeal being devoid of merit is dismissed.

Order Date :- 21.6.2021

Santosh/-

[Ritu Raj Awasthi, J.] [Sanjay Yadav, CJ]