Allahabad High Court
Smt. Kamla Devi Verma vs The State Of U.P.Through Its Secy. ... on 27 February, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 22
Case :- WRIT - A No. - 5937 of 2011
Petitioner :- Smt. Kamla Devi Verma
Respondent :- The State Of U.P.Through Its Secy. Ministry Of Lok Nirman
Counsel for Petitioner :- J.N.Mishra,Amit Sharma
Counsel for Respondent :- C.S.C.
Hon'ble Brij Raj Singh,J.
Heard learned counsel for the petitioner and Sri Rajiv Srivastava learned Additional Chief Standing Counsel for respondent State.
By the present petition, the petitioner has prayed for the following reliefs:-
"(i) Issue a writ, order or directions in the nature of certiorari for quashing the order dated 25.7.2011 passed by the opposite party no.4 by which the pension to the petitioner has been denied by him by treating the deceased husband in service from 12.5.2000.
(ii) Issue a writ order or directions in the nature of Mandamus commanding the opposite parties to fix the pension of the petitioner being widow of the deceased employee Ram Lakhan by treating him in service since 3.5.1993 on which his services has been regularized as Muster role employee iin the department."
The facts of the case are that the petitioner's husband Ram Lakhan was appointed as Muster Roll employee with effect from 18.12.1972. He was given work charge employment on 18.9.1983 and his services were regularized on 12.5.2000. Subsequently, the petitioner's husband retired on 31.12.2009. He died on 1.1.2011.
The impugned order dated 25.7.2011 has been passed by which the pensionary benefits to the petitioner's husband has been denied on the ground that he was regularized in service on 12.5.2000 and retired on 31.12.2009. He completed total service period of 9 years, 7 months and 19 days, therefore, he was not entitled for pension.
Learned counsel for the petitioner has submitted that initial appointment of the petitioner is also liable to be counted in view of judgment and order dated 2.9.2019 of Supreme Court in Civil Appeal NoWrit-A No.8968 of 2022 (Dr. Shyam Kumar. Vs. State of U.P. and others.).6798 of 2019 (Prem Singh. Vs. State of Uttar Pradesh and others.). He has relied on paragraph-32, 33 and 34 of the said judgment which are reproduced hereunder:-
"32. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.
33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or nonpensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
34. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook."
Learned counsel for the petitioner has also relied on the judgment and order dated 17.2.2023 in Writ-A No.8968 of 2022 (Dr. Shyam Kumar. Vs. State of U.P. and others.) with other connected matters. He has submitted that the past services of the husband of the petitioner are liable to be counted and she is entitled for pensionary benefits.
On the other hand, learned standing counsel has submitted that the husband of the petitioner was not appointed on sanctioned post. The services rendered as daily wage work charge employee are not liable to be counted for pensionary benefits.
Heard learned counsel for the parties.
The entire controversy has been settled by Supreme Court in the case of Dr. Shyam Kumar and Prem Singh (supra) and in view of aforesaid judgment the past services of the husband of the petitioner cannot be ignored as he was work charge employee with effect from 18.12.1972 and muster roll employee with effect from 18.9.1983, therefore, the impugned order cannot sustained. The argument advanced by the learned counsel for the respondent State that the husband of the petitioner was not appointed by following the due procedure, is not sustainable because, it is the case of the petitioner that husband of the petitioner was appointed as work charge employee and long officiation of service is there. The case of the petitioner is at par with the case of Dr. Shyam Kumar and Prem Singh (supra) and his services are liable to be counted for the purposes of pensionary benefits. In view of the aforesaid discussions, the impugned order cannot sustain and is liable to be quashed.
Accordingly, the writ petition is allowed. The impugned order dated 25.7.2011 passed by O.P. No.4 is quashed. The O.P. No.4 is directed to pass a fresh order keeping in view the observations and directions made hereinabove and past services of the petitioner's husband will be counted for the purposes of pensionary benefits. The consequential orders will be passed within a period of two months from the date of production of a certified copy of this order.
No orders as to costs.
Order Date :- 27.2.2023
Rajneesh JR-PS)
