Ram Milan Singh vs Board Of Revenue Thru Chairman And ...
2023 Latest Caselaw 1697 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 

 
Case :- WRIT - A No. - 8158 of 2006
 

 
Petitioner :- Ram Milan Singh
 
Respondent :- Board Of Revenue Thru Chairman And 5 Ors.
 
Counsel for Petitioner :- Lakshman Singh,Amitabh Singh,Atiya Abid,Mohammad Abid Ali,Ramesh Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1. Heard Ms. Atiya Abid, learned counsel for the petitioner and learned Standing Counsel for the State-respondent.

2. Vide order dated 14.7.2022, substitution application was allowed, but due to some inadvertent mistake, learned counsel for the petitioner could not carry out necessary incorporation in the writ petition, therefore, the petitioner is permitted to carry out necessary incorporation during the course of the day.

3. Factual matrix of the case is that the petitioner was initially appointed on the post of Seasonal Collection Peon in the year 1973 and continued to work as such on seasonal basis in the respondent department. Service of the petitioner was not regularized and feeling aggrieved, the petitioner alongwith 17 others filed Writ Petition No.6860 (S/S) of 1989 before this Court, which was allowed with the direction that the service of the petitioner be regularized as and when permanent vacancy occurs and till their service was not regularized, no fresh appointment shall be made, vide order dated 22.7.1992.

4. Thereafter, in the month of July, 1995, the petitioner's service was regularized. At the time of regularization of service of the petitioner, he was sent before the Chief Medical Officer for ascertaining his age so that proper entry be made in the service book and his date of superannuation may also be ascertained, the Chief Medical Officer opined the age of petitioner as 55 years on 3.2.1996.

5. As per the medical report, the petitioner was to retire on 3.2.2001 whereas the petitioner was retired on 30.6.1998. Being aggrieved with the retirement on the basis of date of birth, the petitioner filed a writ petition before this Court, whereby it was ordered that representation of the petitioner be considered by the respondent No.2 and till the disposal of the representation, he shall be allowed to continue on his service.

6. Thereafter, the representation of the petitioner was rejected by the respondent No.2 against which, the petitioner filed a writ petition before this Court, however, the same was dismissed on the ground of alternative remedy. In view of the aforesaid order, the petitioner preferred Claim Petition No.2754 of 1998 before the State Tribunal, which is still pending. In the meantime, he approached the authorities concerned for payment of pension but the same has not been paid to the petitioner despite several assurance being given by the respondents that as soon as his record is completed, his pension shall be released.

7. It is the case of the petitioner that despite best efforts made by the petitioner, the claim petition has not been decided till date and the petitioner again approached the authorities but nothing has been done and the petitioner has orally been told by the Tehsildar, Kadipur and Lambhua that since the petitioner has not served more than ten years as regular employee, as such he cannot be paid pension.

8. Submission of learned counsel for the petitioner is that the authorities are illegally withholding the pension of the petitioner while the controversy has already been settled by this Court and it has been held that all the service rendered by the petitioner shall be computed for the purposes of pension. The petitioner made representation to the respondent No.2, stating therein that the petitioner is entitled for pension on the basis of controversy settled by this Court. It is lastly submitted that the action of the respondents in not making payment of pension to the petitioner is illegal and the same is not sustainable in the eyes of law.

9. In support of the argument advanced, learned counsel for the petitioner placed reliance upon a Division Bench judgment of Allahabad High Court in the case of Board of Revenue and others Vs. Prasidh Narain Upadhyay [(2006) 1 ESC 611 (All)(DB)].

10. On the other hand, learned Standing Counsel submits that the petitioner was not a regular employee and thus, not eligible for the grant of pensionary benefits. He submits that pension is not a right of the petitioner.

11. After having heard the rival contention of learned counsel for the learned counsel for the parties, I perused the material on record.

12. To resolve the controversy, paragraphs 6 to 16 of the judgment in the case of Board of Revenue and others Vs. Prasidh Narain Upadhyay (Supra) are quoted below :-

"6. Thus, for the only reason of non issuing of formal order of confirmation or regularization by the appellants can it be said that though the respondent has rendered 37 years of continuous service with the appellants, yet is not entitled for pensionary benefits.

7. Now it is too late in the day to say that the pension is not a right. As long back as in the year 1971 in the case of Deokinandan Prasad v. The State of Bihar and Ors. the Hon'ble Apex Court in para-32 of the judgment held as under:

But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet-will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant.

8. Again the Hon'ble Apex Court in the case of D.S. Nakara and Ors. v. Union of India following the aforesaid judgment, held as under:

In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from undeserved ant was recognised and as a first steps pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto the master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, every one who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleekney, page 33). (Para-22) Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past.(Para-28) From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during the last three years of service reduced to ten months under liberalized pension scheme. Its payment is dependent upon an additional condition of impeccable behavior even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure. (Para-31)

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 employement 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 : 1989(1) UPLBEC 501. 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.

17. In this view of the matter, we do not find any reason to interfere with the judgment of the Hon'ble Single Judge although we have given additional reasons to support the ultimate conclusion reached by the Hon'ble Single Judge.

18. This appeal, therefore, being without any merit, is accordingly, dismissed."

13. The view taken by the Division Bench was followed in the case of State of U.P. & Others Vs. Mahendra Chaubey (Special Appeal No.1120 of 2011), decided on 16.11.2018, wherein it has been held as under :-

"15. In the present case, petitioner respondent as discussed above, earlier engaged as Seasonal Collection Amin was appointed on temporary basis on 01.11.1981 and it was followed with substantive appointment of petitioner respondent as Collection Amin in 1994. He, therefore, completed more than 18 years of service in 1999 when he retired, therefore, entitled to pension. Otherwise view taken by District Magistrate, Ballia by rejecting claim of petitioner respondent vide order dated 15.05.2000, therefore has rightly been held incorrect by learned Single Judge but further direction of learned Single Judge to count qualifying service rendered since 1963, in the office of District Agriculture cannot be accepted for the reason that the aforesaid service came to an end after termination of petitioner respondent and thereafter he was appointed afresh in Revenue Department, initially as Seasonal Collection Amin and thereafter as Collection Amin on temporary basis and then on substantive basis.

16. In the result, appeal is partly allowed. Judgment of learned Single Judge is modified to the extent that appellant shall treat 'qualifying service' for the purpose of pension to petitioner-respondent with effect from 01.11.1981, and give all consequential benefits, accordingly."

14. Taking into consideration the facts and circumstances of the case and the judgment relied upon by learned counsel for the petitioner, the Court is of the opinion that the petitioner is entitled for the payment of pension after computing his service since 1973 rendered as Seasonal Collection Peon.

15. Accordingly, the writ petition succeeds and is allowed.

16. The respondents shall release payment of pension to the petitioner forthwith.

Order Date :- 17.1.2023

Gautam