Narendra Singh Chauhan vs State Of U.P. And Others
2023 Latest Caselaw 26716 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:189935
 
Court No. - 10
 
Case :- WRIT - A No. - 65163 of 2008
 
Petitioner :- Narendra Singh Chauhan
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Anurag Ojha, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and perused the record.

2. The petitioner was appointed as Accountant in year 1983 in Agra Mandal Vikas Nigam Ltd. The State Government proceeded to wind up the said Nigam in the year 1992 and at that time a Civil Misc. Writ Petition No. 41840 of 1992 was filed by the petitioner along with various other employees claiming reliefs regarding service. A stay order was granted on 24.09.1992 by this Court in the said petition directing absorption of the concerned petitioners in suitable alternative posts/ vacancies in Government Department/ State Corporation within a period of three months. After about two months, a Government Order was issued on 07.11.1992 directing absorption of retrenched employees in accordance with U.P. Absorption in Public Services of Retrenched Employees of Public Corporation Rules, 1991.

3. It is contended that though various orders were passed by the respondents as well as the State Government from time to time with effect from 1993 onwards which read in favour of the petitioner, whereby he was directed to be absorbed in alternative arrangements as per the interim order of this Court and also as per the Government policy and though other persons who were junior to the petitioner were absorbed prior to 2005, the petitioner was absorbed pursuant to an order dated 14.11.2006.

4. The present writ petition has been filed with the grievance that though after absorption, the petitioner continued to work on absorbed post, by the order impugned dated 01.10.2008, direction for stoppage of salary was issued on the ground that in case the concerned employees do not obey the directions for filling up application/ nomination forms as per the Government policy and pertaining to newly defined pension scheme with effect from 01.04.2005 onwards, their salary would not be paid.

5. The submission of Shri Ashok Khare, learned Senior counsel is that delayed absorption would not defeat the petitioners' right to be considered under the Old Pension Scheme particularly when with effect from 1992-93 onwards, there were continuous directions issued not only by this Court but also by the State Government itself directing absorption of the petitioner. He further submits that during the pendency of the writ petition, the petitioner has retired after attaining the age of superannuation and the writ petition has been amended claiming retiral benefits including pension, gratuity and provident fund. He further submits that the case of the petitioner is distinguishable as compared to those who were appointed after 01.04.2005 as an absorbed employee cannot be treated as a newly appointed person and, therefore, anything which denies benefits of Old Pension Scheme to the petitioner, is unsustainable.

6. In support of his claim, learned Senior counsel has placed reliance upon following judgments:-

I. Civil Misc. Writ Petition No. 55607 of 2008 (Kamlesh Kumar Sonkar and Ors. Vs. State of U.P. and Ors.) decided on 19.12.2019.

II. Writ-A No. 50301 of 2014 (Ashok Kumar Singh And Another Vs. U.P.P.C.L. And 3 Ors.) decided on 03.03.2020.

III. Special Appeal Defective No. 117 of 2021 (State of U.P. And 2 Others Vs. Mahesh Narain And 2 Others) decided on 19.02.2021.

7. By placing reliance upon aforesaid judgments, it has been argued that in all the aforesaid cases, the identical situation had arisen and the Government was found responsible for delayed appointment/ absorption and, under such circumstances, this Court came up with a positive intervention and held the concerned petitioners as entitled for the Old Pension Scheme.

8. Learned Standing Counsel has vehemently opposed the writ petition and by referring to the counter affidavit, it has been argued that in view of the Government Order dated 11.11.1993, the benefits of pension, GPF etc., would be provided from the date of joining of the concerned employee in state service, and since the petitioner joined the post on 25.11.2006 in pursuance of order dated 14.11.2006, which is much after 01.04.2005, the petitioner would be covered by New Pension Scheme and not by the Old Pension Scheme.

9. The aforesaid contention has been denied by the petitioner by filing rejoinder affidavit and following stand has been taken with respect of continuity in service:-

"8. That contents of para 11 of the counter affidavit are incorrect and denied. It is stated that the petitioner cannot be deprived of service benefits on account of delay occasioned on the part of the respondents in issuing an appointment order only on 14.11.06 granting appointment to the petitioner as Inspector, Legal Metrology after a lapse of 9 years attention in this retard is drawn to letter dated 7.11.98 & 3.4.02 is being filed herewith and marked as Annexure no. RA-1 & 2 to this affidavit. The working of the petitioner at Agra Mandal Vikas Nigam had continued till November, 2006. In determining the entitlement of the petitioner for purposes of Pension, GPF, etc. The services of the petitioner rendered at Agra Mandal Vikas Nigam cannot be ignored and the petitioner treated to be a fresh appointee on the post of Inspector, Legal Metrology. Attention is drawn to a letter of Director of Pension dated 10.10.1995 and judgment dated 10.03.2014 passed in service single no. 6264 of 2013. A true copies of which annexed and marked as Annexure no RA-3 & 4 to this affidavit. The Govt. Orders issued in the month of April, 2005 are visualizing appointment for the first time on the pensionable establishment subsequent to 1.4.05. The respondents themselves have accorded similar benefit to other person similarly circumstances attention is drawn in this regard to an order of the District Magistrate, Varanasi dated 17.04.2010 whereby one Mohd. Ikhlaq Khan, an erstwhile employee of Varansi Mandal Vikas Nigam was appointment as Clerk. A true copy of the order of District Magistrate, Varanasi dated 17.04.2010 is being filed and marked as Annexure no. RA-5 to this affidavit. Despite such appointment having been made in the year 2010, the Sr. Treasury Officer, Govt. Treasury, Allahabad, has proceeded to allot account no. to Mohd. Ikhlaq Kahan for purposes of deduction towards GPF Account. A true copy of order dated 26.03.2012 so issued by Sr. Treasury Officer is being filed and marked as Annexure no. RA-6 to this affidavit. Similarly one Rajendra Singh an erstwhile employee of Agra Mandal Vikas Nigam stood absorbed under an order dated 24.01.2007 a true copy of which is being filed and marked as Annexure no.RA-7 to this affidavit. The said Rajendra Singh has been allotted his GPF account no. for deductions of GPF. A true copy of the GPF paper pertaining to Rajendra Singh is being filed and marked as Annexure no. RA-8 to this affidavit. Attention is also drawn to an order dated 02.09.1997 whereby one Vivek Kumar a person junior than the petitioner in Agra Mandal Vikas Nigam was absorbed as Inspector, Legal metrology. A true copy of the order 02.09.1997 is being filed and marked as Annexure no. RA- 9 to this affidavit. The petitioner also brings on record a copy of GPF Pass Book of the aforesaid Vivek Kumar, a true copy of which is being filed and marked as Annexure no. RA-10 to this affidavit. There exists no justification for not extending the same benefit to the petitioner. It is erroneous to suggest that petitioner is only entitled to the benefit to contributory pension."

10. Having heard learned counsel for the parties, I find that the petitioner was never out of service. The retrenchment of the service of the petitioner done in the year 1992 was positively interfered with by this Court while passing the interim order dated 24.09.1992 and, immediately thereafter, the Government came up with a scheme for absorption of retrenched employees. The scheme though promulgated and the orders though passed by the State Government in consonance thereto, 14 years delay caused in effecting absorption of the petitioner in service, in the opinion of the Court, would not defeat his right in any way including his entitlement to be covered by the Old Pension Scheme. The same view has been taken by coordinate Bench as well as Division Bench of this Court in the judgments referred above.

11. Learned Senior Counsel at this stage submits that in view of the prayer No. III contained in the writ petition, the petitioner should be treated as absorbed as Inspector, Weights and Measures with effect from 1997 and consequential benefits be awarded accordingly.

12. Though I am satisfied that the order impugned dated 01.10.2008 is unsustainable and petitioner is entitled to be covered by Old Pension Scheme, I am not inclined to grant prayer No. III, as claimed, particularly in view of the order dated 14.11.2006 which directed absorption of the petitioner from the date of his taking charge. The Court cannot give retrospective effect to the order dated 14.11.2006 for this purpose only particularly in absence of any challenge to the said order. Therefore, the benefits flowing from the present order would be countable with effect from 14.11.2006.

13. The writ petition is partly allowed.

14. The impugned order dated 01.10.2008 is quashed.

15. A writ of Mandamus is issued to the respondents to release the post retiral benefits in favour of the petitioner as per the Old Pension Scheme and not as per the New Pension Scheme within a period of four months from the date of certified copy of this order is produced before the concerned authority.

Order Date :- 3.10.2023

Anurag/-