Ashok Tewari vs State Of U.P. Thru Secy.Bhasa ...
2022 Latest Caselaw 4177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?RESERVED JUDGMENT
 
Reserved on: 24.05.2022
 
Delivered on: 26.05.2022
 
Court No. - 4
 

 
Case :- WRIT - A No. - 23244 of 2016
 

 
Petitioner :- Ashok Tewari
 
Respondent :- State Of U.P. Thru Secy.Bhasa Anubhag Govt. Of Up Lko. Andors.
 
Counsel for Petitioner :- Rajendra Prasad Shukla
 
Counsel for Respondent :- C.S.C.,Alok Trivedi
 

 
Hon'ble Rajan Roy,J.

By means of this petition the petitioner has sought the following reliefs:

"(a) to issue a writ, order or direction in the nature of mandamus thereby commanding the opp.parties to immediately release the retiral benefit to the petitioner on the post of Chaprasi (Peon) including the pension, gratuity, provident fund, leave encashment and group insurance counting the services of the petitioner since year 1986 upto the date of retirement i.e.30.9.2015 in view of the order dated 3.11.2000 passed by the Director, U.P. Hindi Sansthan, Lucknow.

(b) to issue a writ order or direction in the nature of mandamus thereby commanding the opp.parties to provide the simple interest at the rate of 12% per annum on retiral dues paid to the petitioner.

(bb)- to issue a writ order or direction in the nature of certiorari thereby quashing the impugned order dated 27.1.2016 passed by the opposite party no. 1 contained in Annexure No. 11."

The petitioner was admittedly engaged as Daily Wages Worker in the U.P. Hindi Sansthan which is an autonomous body funded and controlled by the State government, however, it has its own Rules and Regulations approved by its Executive Body and the State. The services of the petitioner were terminated sometime in 1993, whereupon he filed a writ petition bearing Writ Petition No.9374 (SS) of 1993 and an interim order was passed on 30.11.1993 in the said petition staying termination of his service with the direction that he shall be allowed to work and be paid salary. During pendency of the writ petition services of the petitioner were regularized on a Class IV post of Peon vide order dated 31.10.2005 in terms of the U.P. Regularization of Daily Wages Rules 2001. The petitioner accepted the order regularizing his services and did not challenge it nor did he raise any claim for being considered for regularization of his services with retrospective effect from any date prior to 31.10.2005. Writ petition No. 9374 (SS) of 1993 came to be dismissed for want of prosecution on 16.1.2013.

In the interregnum it appears that the petitioner filed another writ petition bearing No. 5602 (SS) of 2000 as his services were again terminated after filing of the first writ petition and it is only when bailable warrants were issued to opposite parties in the second writ petition that he was re-engaged vide order dated 3.11.2000, contained in Annexure No. 3 and thereafter, as stated, his services were regularized on 31.10.2005.

It is not out of place to mention that this second writ petition bearing 5602 (SS) of 2000 has been disposed of, but the said order is not on record.

The petitioner attained the age of superannuation and retired from service of the U.P. Hindi Sansthan on 30.09.2015. On retirement he submitted his papers for grant of pension under the old pension scheme which, as per the averment made in the counter affidavit, were forwarded to the State Government for its approval on 20.10.2015. The State Government vide impugned order dated 27.1.2016 rejected the claim of the petitioner keeping in mind the gazette notification dated 13.10.2010 wherein it was provided that personnel who had entered in regular service of autonomous bodies, funded and controlled by the State Government, on or after 1.4.2005 are entitled only for the new pension scheme and as the services of the petitioner were regularized after 1.4.2005, therefore, he was not entitled to the benefit of the old pension scheme.

At this stage it is not out of place to mention that the petitioner had filed an application for amendment of the writ petition so as to challenge the notification dated 28.3.2005 by which the new pension scheme was introduced, but the said amendment application, insofar as it sought to challenge the said notification dated 28.3.2005 was rejected on 16.5.2009.

The notification dated 13.10.2010 referred in the impugned government order dated 27.1.2016 has never been challenged by the petitioner. The said notification is on record as C.A.3 to the counter affidavit filed by the opposite party nos. 2 and 3. The said notification contains the features of new pension scheme. Notification dated 13.10.2010 was sent to the Director, U.P. Hindi Sansthan, Lucknow, vide government order dated 4th February, 2015, a copy of which is annexed alongwith the counter affidavit of opposite party nos. 2 and 3.

The State has also filed its counter affidavit opposing the claim of the petitioner.

The moot point to be considered herein is as to whether the petitioner whose services were regularized on 31.10.2005 is covered by the old pension scheme or the new pension scheme which came into effect from 1.4.2005 ?

U.P. Hindi Sansthan Employees Service Rules 1983 which were referred in the order of this court dated 19.5.2022 have been amended on 25.5.1999. Amendments have been placed before the court, according to which provision was made for payment of retiral benefits as admissible to officers and employees of the State Government to such employees of the U.P. Hindi Sansthan who were to retire on 1.8.1990 or thereafter, subject to submission of an option by the concerned employee/officer. Office-memo dated 25.5.1999 has been placed before the court. The said order issued by the Director of the Sansthan has been taken on record vide order dated 24.5.2022.

For the purposes of the old pension scheme the provisions of U.P. Government Servants Retiral Benefit Rules 1961, read with the relevant provisions of Civil Services Regulations, were applicable. No other provision has been shown by the petitioner's counsel under which pension under the old Pension Scheme was payable to employees of the Hindi Sansthan. In this context it requires mentioning that in view of the new pension scheme dated 28.3.2005 which was effective from 1.4.2005, Rule 2(3) of the Rules 1961 has been amended vide notification dated 7.4.2005 and the amended Rule reads as under:

"(3) These Rules shall not apply to employees entering services and posts on or April 1, 2005 in connection with the affairs of the State, born on pensionable establishment, whether temporary or permanent."

In view of the above quoted provision there is no question of calculating 'qualifying service' as was required in Rule 3(8) of the Rule 1961, for new pension scheme, as, Rules 1961 do not apply in the new pension scheme and for this reason the question as to whether the services rendered by the petitioner prior to his regularization on 31.10.2005 should be counted or not, will not fall for consideration if it is held that he is covered by the new pension scheme. Therefore, the moot point to be considered is as to whether he falls in the new pension scheme or old pension scheme.

Now, it is admitted fact that the services of the petitioner were regularized only on 31.10.2005, therefore, he became a member of the Group-D service only from 31.10.2005. It being so, apparently he is covered by the new pension scheme, as, prior to 31.10.2005 he was not a member of Group-D service in the U.P. Hindi Sansthan, though he may have been working on daily-wages or temporary basis, as the case may be.

In the writ petition there is no prayer for treating him as regularized from any date prior to 31.10.2005.

As already stated, he has accepted the regularization of his services from 31.10.2005 without demur.

Learned counsel for the petitioner has relied upon a Single Judgment Bench judgment of this court dated 8.10.2021 rendered in Writ-A No. 5817 of 2020, Kaushal Kishore Chaubey & ors. v. State of U.P. & ors., in support of the relief claimed by the petitioner. In the said judgment the petitioners therein were held to be entitled to count their services rendered as Seasonal Collection Amin treating the same as temporary services. Accordingly the initial date of appointment was taken the basis for the said purpose, and not the date on which their services were actually regularized, which was after 1.4.2005, and a direction was issued to the respondents therein to compute pensionary benefits payable to the petitioners after taking into account their entire service including the service rendered by them as Seasonal Collection Amin.

However, the court finds that the Single Judge Bench in Kaushal Kishore Chaube (supra) did not take note of an earlier decision dated 19.9.2017 rendered in writ petition No. 4079 (SS) of 2015, Brahamanand Singh & ors. v. State of U.P. & ors., wherein a Coordinate Bench had the occasion to consider a similar matter where the petitioners were claiming the benefit of the services rendered by them as Seasonal Collection Amin for the purposes of pensionary benefits. In the said case the petitioners were engaged as Seasonal Collection Amin on different dates in the years 1975, 1976 and 1977. Their services were regularized on 7.11.2006/24.1.2007. Thus, their regularization was after 1.4.2005 when the scheme of contributory pension (new pension scheme) was introduced replacing pension payable under the U.P. Retirement Benefit Rules 1961 (old pension scheme). The Coordinate Bench was faced with the following questions as is recorded in the judgment:

"6. There are two distinct aspects, which call for consideration in this matter. The first and foremost question that rises for consideration is as to what would be the date of entry into service for the petitioners; whether it would be between 1986 to 1989, when they got engaged on temporary basis as Collection Amin or the date of their regularization in 2007, so as to determine the pension rule applicable upon them. The second aspect arising is as to whether the services rendered on temporary basis, prior to regularization, are to be counted for the purposes of grant of pension or not?"

As the petitioner herein has not claimed regularization from retrospective effect, therefore it is not necessary to refer to the observations and findings of the Coordinate Bench in Brahamanand Singh (supra) in this regard, suffice it to say, that, the claim to regularization of services with retrospective effect was rejected in the said case.

The Coordinate Bench in Brahamanand Singh's case (supra) considered the Division Bench judgment in the cases of State of U.P. & ors. v. Ram Sunder Ram, 2016 (34) LCD 2804, and Board of Revenue & ors. v. Prasiddh Narain Upadhyaya, 2006 (1) ESC 611, which were relied by the petitioners before it and opined that the said decisions dealt with the issues relating to entitlement to receive pension under the Rules of 1961, by relying upon Fundamental Rule 56, as amended vide UP Act No. 24 of 1975, a retiring pension was payable to a temporary employee also by virtue of Clause-E. This provision, however, had no applicability in the facts of the said case in as much as the petitioner had not retired from service as a temporary employee. The petitioners therein had retired after their regularization in 2007. The court thereafter considered the amendment to Rule 2(3) of the Rules 1961 by virtue of which the said Rules 1961 became inapplicable to employees entering services and posts on or after April 1, 2005, and opined as under:

"11. The Division Bench in Ram Sunder Ram (supra) as well as in Prashid Narain Upadhyay (supra) dealt with the issue relating to entitlement to receive pension under the Rules of 1961. By relying upon Fundamental Rule 56, as amended vide U.P. Act No.24 of 1975, a retiring pension is payable to a temporary employee also by virtue of Clause (e). This provision, however, has no applicability in the facts of the present case, inasmuch as petitioners have not retired from service as a temporary employee. Petitioners have retired after their regularization in 2007. The provisions of Rules of 1961 apparently would have no applicability in the facts of the present case. The Rules of 1961 have been amended vide notification dated 7.4.2005, whereby Sub-rule 3 has been added to Rule 2 of the Rules of 1961, and the same is reproduced:-

"(3) These Rules shall not apply to employees entering services and posts on or after April 1, 2005 in connection with the affairs of the State, borne on pensionable establishment, whether temporary or permanent."

12. Petitioners have been regularized after 1.4.2005, which would be their date of entry into service. The Rules of 1961, therefore, would not be attracted in the facts of the present case. The provisions of Rule 3(8) also would not be attracted. The judgments of Division Bench in Prashid Narain Upadhyay (supra) and Ram Sunder Ram (supra) for such reasons would have no applicability. It was only if Rules of 1961 were attracted that any question would arise for inclusion of services rendered on temporary basis, in view of Rule 3(8) of the Rules of 1961. However, as the Rules of 1961 itself has no applicability, as such the question of counting of services rendered on temporary basis would not arise.

13. For the reasons and discussions aforesaid, I am of the considered opinion that petitioners are neither entitled to grant of pensionery benefits from the date of their appointment on temporary basis nor regularization order dated 5.4.2007 requires any modification, so as to make it effective from a date prior to 5.4.2007. The order passed by the authority rejecting petitioners' representation for such reasons also does not suffer from any illegality, so as to require any interference. The petitioners' retiral benefits would be regulated under the new pension scheme introduced on 28th March, 2005, and not under the Rules of 1961.

14. Writ petition, consequently, fails and is dismissed."

The Coordinate Bench in Brahamanand Singh (supra) clearly held that the petitioners before it had been regularized after 1.4.2005, which would be their date of entry into service. Rules of 1961, therefore, would not be attracted in the facts of the said case. The provisions of Rule 3(8) which dealt with qualifying service would also not be attracted. It was only if Rules 1961 were attracted that any question would arise for inclusion of services rendered on temporary basis, in view of Rule 3(8) of the Rules 1961, however, as the Rules of 1961 itself has no applicability, as such, the question of counting of services rendered on temporary basis would not arise.

This court agrees with the opinion expressed by the Coordinate Bench in Brahamanand Singh (supra) in this regard.

In Kaushal Kishore Chaubey's case the Coordinate Bench did not consider Rule 2(3) of the Rules 1961 as amended vide notification dated 7.4.2005 nor did it consider the earlier decision of another Coordinate Bench in Bramha Nand Singh's case (supra) and the decision on this issue as contained in the order dated 8.9.2017 passed in Namo Narayan Rai's case (supra).

It is worthwhile to mention that the meaning of "Qualifying Service" as defined in Rule 3(8) of the Rules 1961 has been amended by the Uttar Pradesh Qualifying Service for Pension and validation Act 2021 notified on 5.3.2021, however, the Act 1921 amending the definition of "Qualifying Service" contained in Rule 3(8) of the Rules 1961, is also with reference to the old pension scheme governed by the said Rules.

Considering the conflicting opinions expressed by the Single Judge Bench in the case of Kaushal Kishore Chaubey (supra) and the opinion expressed by another Single Judge Bench in the earlier case of Brahamanand Singh (supra) and Namo Narayan Rai's case (supra) and in view of the reasons already given hereinabove this court is of the opinion that the issues involved are required to be settled by a larger Bench.

The following questions are accordingly referred for consideration by a Larger Bench-

"1. Whether in the case of an employee whose services have been regularized on or after 1.4.2005, and in respect of whom the pensionary rules as applicable to State Government Servants, apply, the new pension scheme, which has come into force with effect from 1.4.2005, shall apply, or, in view of his initial appointment prior to 1.4.2005 which may be on daily-wages or of a purely temporary nature (not a regular appointment in accordance with Rules), the old pension scheme governed by the Rules 1961 and the provisions of Civil Services Regulations etc., would be applicable?

2. Whether, in view of Rule 2(3) of the Rules 1961, as amended vide notification dated 07.04.2005, making the provisions of the said Rules 1961 inapplicable to employees entering services and posts on or after April 1, 2005, thereby also making Rule 3(8) thereof pertaining to the qualifying service inapplicable, the services rendered by such employees prior to their regularization, whether on daily-wages or any other temporary basis and/or prior to 1.4.2005, are at all relevant and whether the same would have any relevance in the context of the New Pension Scheme, as, there is no concept of 'qualifying service' under the new Pension Scheme?

3. Whether the judgment rendered in Writ-A No. 5817 of 2020, Kaushal Kishore Chaubey & ors. V. State of U.P. & ors., on the aforesaid issues lays down the law correctly or it is the judgment rendered in Bramha Nand Singh's case (supra) and Namo Narain Rai's case (supra) which lays down the law correctly."

The record shall now be placed before Hon'ble the Chief Justice for constituting a Bench of such strength as His Lordship deems fit and appropriate in accordance with Chapter-V Rule-6 of the High Court Rules for considering the aforesaid questions.

.

(Rajan Roy, J.)

Order Date :- 26.5.2022

A.Nigam