Allahabad High Court
Mohd. Islam And 4 Ors. vs State Of U.P. Thru Prin.Secy. ... on 13 March, 2023
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 8669 of 2019
Petitioner :- Mohd. Islam And 4 Ors.
Respondent :- State Of U.P. Thru Prin.Secy. Panchayat Raj Lko. And Ors.
Counsel for Petitioner :- Mohd.Yasin,Haider Abbas
Counsel for Respondent :- C.S.C.,Ram Ujagir Verma,V.K. Shukla
Hon'ble Mrs. Sangeeta Chandra,J.
(1) Heard the learned counsel for the petitioners and Shri R.U. Verma who appears on behalf of the Respondent nos.4 & 5 and the learned Standing counsel who appears on behalf of the Respondent nos.1, 2 & 3.
(2) This petition has been filed challenging the Order/ Letter dated 04.07.2018 issued by the Upper Mukhya Adhikari, Zila Panchayat, Ambedkar Nagar, and also praying for a mandamus to be issued to the Respondents to continue the contributions in the Revolving Fund for the purpose of giving pension to the petitioners.
(3) It is the case of the petitioners, who are five in number, that in pursuance of an Advertisement dated 19.10.2004 published in daily Newspapers for appointing of Clerks Grade-II in Zila Panchayat, Ambedkar Nagar, the petitioners had applied and were selected and appointed on 22.06.2005 in Zila Panchayat, Ambedkar Nagar. A copy of one of the appointment letters issued to the Petitioner no.1 appointing him as Clerk Grade-II in Zila Panchayat, Ambedkar Nagar, has been filed as Annexure-3 to the petition. The petitioners completed their probation and were confirmed on 27.07.2006. The Zila Panchayat, Ambedkar Nagar, made the contributions for pension from the Zila Panchayat Nidhi in the Revolving Fund for the purpose of grant of pensions to the petitioners and such contributions were made in the Revolving Fund with effect from June, 2007 till March, 2018 regularly by the Respondent nos.4 & 5. However, the said contributions in the Revolving Fund have been stopped with effect from April, 2018.
(4) Being aggrieved by dis-continuation of petitioners' pensionary contributions, the petitioners filed an application on 28.06.2018 before the Respondent no.5 who has informed through Letter dated 04.07.2018 that in pursuance of an advice given by the Vitiyee Paramarsh Data, Zila Panchayat, Ambedkar Nagar, such contributions have been stopped as the petitioners were appointed after 01.04.2005 and they are governed by New Contributory Pension Scheme (N.P.S.) as notified by Government Order dated 28.03.2005. Correspondence is being carried out with the State Government with regard to whether such contributions can be continued in respect of the petitioners' pension and necessary action shall be taken in pursuance of instructions received from the State Government.
(5) It has been submitted by the learned counsel for the petitioners that the Respondent nos.4 & 5 were making regular contributions to the Revolving Fund for more than 10 years for the purpose of pension to be given to the petitioners as and when they retired but they have now stopped arbitrarily and in pursuance of judgment rendered by the Hon'ble Supreme Court in the case of D.S. Nakara & Others Vs. Union of India reported in (1983) 1 SCC 305, where it has been held that pension is a right of a retiring person and not dependent upon the discretion of the Government, the petitioners are entitled to claim pension on their retirement for which the Zila Panchayat should make contribution to the Revolving Fund.
(6) Shri R.U. Verma, who appears for the Respondent nos.4 & 5 has pointed out from the counter affidavit filed by them that a Government Order was issued on 28.03.2005 by which New Contributory Pension Scheme became applicable to all employees appointed after 01.04.2005. While the petitioners were appointed after 01.04.2005, the contributions that were being made with regard to grant of pension to the petitioners after their retirement in the Revolving Fund who was against the Government Order dated 28.03.2005 and this mistake was pointed out by Vitiyee Paramarsh Data to the Zila Panchayat and consequently, such contributions were stopped in respect of the petitioners and similarly situated employees. Since the Vitiyee Paramarsh Data had suggested to the respondents to seek instructions from the Government, a letter has been sent to the Government to seek directions but no response has been received. Rest of the contents of the writ petition have been denied and it has been argued that the petitioners have admittedly no right to obtain pensionary benefits after issuance of Government Order dated 28.03.2005. The Zila Panchayat had wrongly contributed to the Revolving Fund and the mistake was discovered and necessary rectification was carried out.
(7) The counsel for the petitioner has pointed out the supplementary affidavit filed on 17.08.2021 where Office Memorandum dated 21.01.2020 has been filed as Annexure SA-1 which is a decision of the Government as notified by the Panchayati Raj Anubhag.
(8) This Court has perused the Office Memorandum dated 21.012020 and finds that it refers to a decision taken for all Zila Panchayat Employees belonging to the Centralized and non-Centralized services who were appointed after 01.04.2005, and makes the New Contributory Pension Scheme applicable to such employees. It requires that 10% of the Salary and Dearness Allowance of such employees shall be deducted as monthly contribution to the New Contributory Pension Scheme an amount corresponding to said deductions from the employees' Salary and Dearness Allowance, shall be contributed by the employer also. The State Government shall not be required to give any financial assistance to the Zila Panchayat for making such contributions in respect of such employees. The deductions and the contributions shall be accumulated in a Pension Tier-1 Account and no employee shall be allowed to take any kind of advance during his service tenure from this Tier-1 Pension Account. The employees appointed after 01.04.2005 shall not be eligible for Pension and GPF. Since such employees would not be entitled to benefits given earlier to other employees, they are also eligible to open a Voluntary Pension Tier-II Account under the New Pension Scheme. In the Tier-II Account, the employee may make his contributions but the Zila Panchayat / Employer shall not be required to make such contributions. The employee concerned shall be eligible to withdraw the amount contributed by him voluntarily in the NPS Tier-II Account at any time he wishes. With regard to NPS Tier-I account the employee shall be entitled only to withdraw after his retirement. Several other provisions with regard to how the NPS Tier-I account shall be maintained and operated have also been given in Office Memorandum dated 21.01.2020.
(9) It is apparent from a perusal of the Office Memorandum dated 21.01.2020 that the State Government has reiterated the Government Order dated 28.03.2005 in respect of employees also appointed in Zila Panchayat on Centralized and non-Centralized services on or after 01.04.2005.
(10) This Court having gone through the pleadings on record, is of the considered opinion that in case some contributions in the Revolving Fund had been made from the Zila Panchayat Nidhi by the Respondent nos.4 & 5 in respect of grant of pension to the petitioners for more than 10 years, as alleged, it was only a mistake that could be rectified. There cannot be any promissory Estopple against the Statute. There can also be no legitimate expectation on behalf of the petitioners from the Respondent nos.4 & 5 to continue such contributions which were made earlier by mistake. No right has been vested nor it has accrued in favour of the petitioners only because of a mistake of the Respondent nos.4 & 5.
(11) No writ of mandamus can be issued to the Respondent nos.4 & 5 against the relevant Government Orders / Circulars / Scheme as the Scheme itself has not been challenged by the petitioners, in view of the settled law by Hon'ble the Supreme Court in the case of Narinder Chand Hem Raj & Others V. Lt. Governor, Administrator, Union Territory, Himachal Pradesh and Others reported in 1971 (2) SCC 747.
(12) The writ petition is devoid of merits and is dismissed.
Order Date :- 13.3.2023
N.PAL
