State Of U.P. Thru. Prin. Secy. ... vs Sadananad
2023 Latest Caselaw 1542 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 17 of 2023
 

 
Appellant :- State Of U.P. Thru. Prin. Secy. Deptt. Of Irrigation And Others
 
Respondent :- Sadananad
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Angrej Nath Shukla
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Subhash Vidyarthi,J.

Order on C.M. Application No.1 of 2023:

1. Heard Mr. V.P. Nag, learned Standing Counsel appearing on behalf of the State and Mr. Angrej Nath Shukla, learned counsel for the respondent.

2. This is an application for condonation of delay in filing special appeal.

3. The application is supported with an affidavit, in which the reasons for delay have been explained sufficiently.

4. Accordingly, application is allowed. Delay, if any, in moving special appeal is hereby condoned.

Order on memo of special appeal:

5. This instant intra court appeal is directed against the judgment and order dated 12.10.2022, passed by Hon'ble Single Judge of this Court in Writ-A No.5893 of 2022.

6. Briefly stated, the facts of the case are that the respondent- Sadanand was initially engaged as Peon on muster roll on 01.01.1987. His services were regularized on the post of Beldar on 07.07.2007 and he retired on attaining the age of superannuation on 31.12.2017 while he was working on the post of a Helper.

7. The respondent filed Writ Petition No.29675 (S/S) of 2019, claiming payment of pension and the said writ petition was disposed of by means of an order dated 24.10.2019, directing the respondent to make fresh detailed representation which will be considered and decided in accordance with law as also in the light of the judgment dated 02.09.2019, passed by Hon'ble Supreme Court in the case of Prem Singh Vs. State of U.P. and Others; (Civil Appeal No.6798 of 2019 and other connected matters).

8. The respondent's representation was rejected by means of Office Memorandum dated 15.06.2022, issued by Executive Engineer, Saryu Drainage Division-I, Gonda stating that the petitioner has served in regular establishment for ten years, five months and seven days but his matter is covered by New Pension Scheme. The respondent has paid a sum of Rs.1,87,650/- towards his contribution under the Contributory Pension Scheme and an equal amount has been contributed by the State Government. The Uttar Pradesh Qualifying Service For Pension And Validation Ordinance, 2020 was relied upon by the Executive Engineer to come to a conclusion that the services rendered by the respondent in work charge establishment will not be added while computing his ''qualifying service' for contribution of the pension and other benefits payable to the respondent upon his retirement.

9. The aforesaid order was challenged by the respondent by filing Writ-A No.5893 of 2022. The Hon'ble Single Judge has held that the respondent worked for ten years, five months and seven days on the post and he is fully entitled for being granted pension on the ground that his services rendered in the work charge establishment are to be calculated for computing his pension.

10. The State has challenged the order passed by Hon'ble Single Judge by means of the present intra court appeal.

11. Mr. V.P. Nag, learned Standing Counsel appearing on behalf of the State submits that Section 2 of Uttar Pradesh Qualifying Service For Pension And Validation Act, 2021 provides that:

"Notwithstanding anything contained in any rule, regulation or Government order for the purpose of entitlement of pension to an officer, "Qualifying Service" means the service rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post."

Section 4 of the aforesaid Act provides that:

"Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act."

12. As per the averments made by the respondent in his writ petition, he had been initially engaged as a Peon on muster roll on 01.01.1987 and the engagement on muster roll was not an appointment on temporary or permanent post in accordance with the provision of service rules prescribed by the Government for the post. Therefore, the services rendered by the respondent on muster roll would not fall within the expression ''qualifying service' under U.P. Act No.1 of 2021.

13. The respondent's service was regularized on 07.07.2007 and he retired on 31.12.2017 and in the Office Memorandum dated 15.06.2022, the Executive Engineer concerned has stated that although the respondent has completed ten years' qualifying service, is matter is covered by New Pension Scheme.

14. The Executive Engineer has referred to an Office Memorandum dated 25.08.2020, issued in furtherance of an order dated 02.09.2019, passed by Hon'ble Supreme Court in Special Appeal No.6798 of 2019, which provides that "in view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order."

15. But, subsequent to passing of the aforesaid order the U.P. Act No.1 of 2021 has been enacted under which the services rendered on muster roll basis are not to be counted as ''qualifying service'.

16. In the affidavit filed in support of the application for interim relief filed on behalf of the appellant, it has been stated that the respondent has worked for ten years, five months and seven days and, accordingly, pensionery benefits payable to him as per the New Pension Scheme applicable with effect from 01.04.2005 have been calculated and paid to the respondent.

17. The Hon'ble Single Judge has allowed the writ petition relying upon the judgment passed in the case of Prem Singh Vs. State of U.P.; AIR 2019 SC 4390 which was relied upon in Bhanu Pratap Vs.State of U.P. and others; Writ Petition No.16897 of 2018, decided on 11.11.2020. However, subsequent to the passing of the judgment in the case of Prem Singh (supra) the U.P. Act No.1 of 2021 has been enacted under which the term ''qualifying service' has been defined as services rendered on a temporary or permanent post in accordance with the provisions of the Service Rules prescribed by the Government for the post and Section 4 of the Act provides that the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act. Therefore, the ''qualifying service' of the petitioner has to be ascertained in accordance with the provisions of Section 2 of U.P. Act No.1 of 2021 and not in accordance with any previous judgment.

18. The Hon'ble Single Judge has decided the writ petition on the factual premise that while rejecting the respondent's claim, the authority concerned held that the petitioner was working in a regular establishment and has worked for a period of ten years, five months and seven days and it has also been recorded that the respondent has completed ten years' service and hence pension is not admissible to him, which fact appears to be incorrect as in the Office Memorandum dated 15.06.2022 it has no where been stated that the respondent has not completed ten years' service. The Office Memorandum merely states that the respondent has completed more than ten years of service and his matter is covered by the New Pension Scheme, under which the respondent has contributed Rs.1,87,650/- and the Government has also contributed an equal amount. Thus, a total of Rs.3,75,300/- only has been contributed in the respondent's account under the New Pension Scheme and the services rendered by the respondent in work charged establishment cannot be calculated for computing his ''qualifying service'.

19. Mr. V.P. Nag, learned Standing Counsel has placed before the Court a judgment dated 08.11.2011, rendered by a Full Bench of this Court in Writ Petition No.25955 (S/S) of 2017; Ram Das Yadav Vs. State of U.P. and others and several other connected matters, wherein the Full Bench was deciding the matter referred to it by means of an order dated 15.11.2017 for resolving a controversy arising out of judgment on the issue as to whether the service rendered as work charged employee should be calculated in the regular service for the purpose of pension. The Full Bench has held that in Prem Singh Vs. State of U.P.; 2019 10 SCC 516, while interpreting Rule 3 (8) of of the U.P. Retirement Benefits Rules, 1961, it was held that the services rendered in the work-charged establishment are to be counted towards pension. But after the aforesaid judgment, State of U.P. enacted Uttar Pradesh Qualifying Service For Pension And Validation Act, 2021 (U.P. Act No.1 of 2021) defining qualifying service for pension. It only includes the services rendered by the Officer appointed on temporary or permanent post in accordance with the provisions of Service Rules prescribed by the State Government and the aforesaid Act has been given effect from 1st April, 1961 and therefore the issue does not survive any more.

20. Mr. Angrej Nath Shukla, learned counsel for the respondent has relied upon a judgment dated 04.02.2021, rendered by a coordinate Bench of this Court in Special Appeal Defective No.1003 of 2020; State of U.P. and others Vs. Mahendra Singh. While deciding the aforesaid case, the Division Bench referred to the term "qualifying service" as defined in Section 2 of U.P. Ordinance No.19 of 2020 and thereafter it proceeded to uphold the order of Hon'ble Single Judge as State had admitted that the appointment of the petitioner had been made on Godown Chowkidar from 04.09.1981 on a regular post in 1997 and therefore under the U.P. Ordinance, the petitioner was entitled to his claim for counting period of his service from the date of his appointment on 04.09.1981 on a temporary post. Thus, it is clear that the aforesaid case was decided on the basis of a factual background that prior to the regularization of his service, the employee had been appointed on temporary post, which appointment, as per the Bench deciding the aforesaid case fell within the term "qualifying service" which includes "service rendered by an officer appointed on temporary post". The aforesaid case was decided on the basis of some factual background stated above.

21. In Escorts Ltd. v. CCE, (2004) 8 SCC 335, the Hon'ble Supreme Court held that: -

"8. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, 1951 AC 737 Lord MacDermott observed:

"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,..."

9. In Home Office v. Dorset Yacht Co. 1970 (2) AER 294 Lord Reid said,

"Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances."

Megarry, J. in Shepherd Homes Ltd. v. Sandham, (1971) 1 WLR 1062: "One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament;" And, in Herrington v. British Railways Board, 1972 (2) WLR 537 Lord Morris said:

"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

10. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."

22. In the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 : 2002 SCC OnLine SC 1147 at page 130 the Hon'ble Apex Court has held as under:

"59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

23. In the instant case, the respondent's initial appointment had not been made on a temporary post but he had been engaged on muster roll and, therefore, the judgment in the case of State of U.P. Vs. Mahendra Singh (supra) is not applicable to the present case.

24. Thus, we do not find ourselves in agreement with the view taken by Hon'ble Single Judge and keeping in view the provisions contained in Section 2 of U.P. Act No.1 of 2021, we are of the view that the decision of the Executive Engineer to the effect that the services rendered by the respondent on muster roll cannot be included while computing his "qualifying service" under Section 2 of U.P. Act No.1 of 2021 for calculating the pension payable to him was correct and needed no interference.

25. In view of the aforesaid discussions, the instant special appeal is allowed. The judgment and order dated 12.10.2022, passed by Hon'ble Single Judge of this Court in Writ-A No.5893 of 2022 is hereby set aside and the writ petition is dismissed. The respondent would be entitled to the pensionery benefits after taking into consideration his services of ten years, five months and seven days in regular establishment in accordance with the New Pension Scheme.

26. However, there will be no order as to the costs.

(Subhash Vidyarthi, J.)       (Ramesh Sinha, J.)
 
Order Date :- 16.01.2023
 
Ram.