Allahabad High Court

Prem Chand Sharma vs State Of U.P. And 4 Others on 1 March, 2024

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 

 
Neutral Citation No. - 2024:AHC:37202
 
Judgment Reserved on 23.2.2024
 
Delivered on  1.3.2024. 
 

 
Court No. - 36
 
Case :- WRIT - A No. - 22894 of 2018
 

 
Petitioner :- Prem Chand Sharma
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Lavlesh Kumar
 
Counsel for Respondent :- C.S.C.,Deo Dayal
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Lavlesh Kumar Shukla, learned counsel for petitioner, Sri Akhilesh Kumar Sharma on behalf of respondent nos.3 and 4 and Sri A.K.Nagwanshi, learned Additional Chief Standing Counsel.

2. Learned counsel for petitioner at the outset submits that present case is squarely covered on facts as well as on law by a judgment passed by co-ordinate Bench at Lucknow in Ram Naresh Tiwari Vs. State of U.P. & Ors, 2019 (2) ADJ 624 as well as Division Bench judgment of this Court passed in State of U.P. & Ors Vs. Mahesh Chandra Sharma & Anr., Special Appeal Defective No.976 of 2023 decided on 24.1.2024.

3. Petitioner in the present case was appointed on the post of 'Peon' in Junior High School Chakiya, District-Chandauli on 14.4.1977.

4. Services of the petitioner were regularized on 21.9.1997 and petitioner retired on 3.9.2016 i.e. he has worked upto 39 years and 4 months as 'Peon' as Class IV employee.

5. Petitioner is aggrieved that despite he has worked for almost four decades, but his services for the purpose of pension was calculated only from the date of his regularisation i.e. his services for 19 years and 8 months.

6. Learned counsel for petitioner submits that in Ram Naresh (supra) petitioner was appointed on the post of 'Peon' on 2.7.1993 on the fixed pay and since 1.1.1996 he was being paid regular salary in the regular pay-scale and retired on 31.1.2005. The co-ordinate Bench after considering the facts and law held:

"14. This observation of the Competent Authority is not in conformity with the direction being issued by the Hon'ble Apex Court in re: D.S. Nakara (supra), which clearly mandates that the pension to a civil employee of the government is neither bounty nor a matter of grace depending upon the sweet will of the employer. Further, as per the letter dated 16.11.2018 issued by the Assistant Director of Education (Basic), Faizabad Mandal, Faizabad, the petitioner was initially appointed on the post of Peon and was being paid salary for a substantive post, therefore, the petitioner may not be denied his claim for relaxation of services in the light of the judgment and order dated 17.12.2018 passed by this Court in re: Gaya Ram (supra) inasmuch as in that case, the petitioner of that writ petition could not substantiate the fact as to whether he was appointed on the post of Peon and the Division Bench has referred the matter to the State Government to examine the case of that petitioner with the direction that if the State Government finds that the petitioner of that writ petition was appointed against the post, his case be reconsidered. Further, the present petitioner was not only being paid salary of Peon which has been treated as substantive post, but he was later on transferred from one Institution to another Institution like regular employee also. Therefore, the case of present petitioner is different from the petitioner in re: Gaya Ram (supra).

15. Therefore, in view of the facts, circumstances, reasons and also in the light of the dictum of Hon'ble Apex Court on the subject, I am of the considered view that the order dated 05.01.2017, which is impugned in the instant writ petition, passed by the Secretary, Department of Basic Education, Anubhag-5, Government of U.P., Civil Secretariat, Lucknow is arbitrary and uncalled for, therefore, the same is liable to be quashed. "

7. It would also be relevant to quote paragraphs no.16, 17 and 18 of State of U.P. & Ors Vs. Mahesh Chandra Sharma & Anr. (supra) which are mentioned hereinafter:

" 16. A Co-ordinate Bench of Lucknow Bench of this Court in Civil Misc. Review Application No. 33 of 2023 has already held that the provision of U.P. Retirement Benefits Rules, 1961 or the amendments made vide U.P. Act No. 1 of 2021 therein, are not applicable to teachers employed in Government Aided Educational Institutions.

17. So far as the argument of the State based on the amendment of the pension scheme vide government order dated 12.12.2023 is concerned, we find that this argument also cannot be substained to resist the claim of the respondent. The Constitution Bench of the Supreme Court in Chairman Railway Board versus C.R. Rangadhamaiah, AIR (SC) 1997 0 3828, wherein the retrospective amendment of the pension scheme was examined, clearly held that vested rights cannot be taken away in such manner. In para 24 to 34 of the judgment, the Constitutional Bench has crystallized the law as per which the accrued/vested right cannot be retrospectively taken away, as is sought to be done by the State in the present matter. The Constitution Bench judgment has been relied upon by the Supreme Court in Punjab State Cooperative Agricultural Development Bank Ltd versus Registrar, Cooperative Societies, AIR (SC) 2022 0 1349. In Para 44, the Supreme Court has referred to the Constitution Bench judgment in Chairman Railway Board (supra).The law has been culled out in para 47 to 50 of the judgment which are reproduced hereinafter:

"47. The exposition of the legal principles culled out is that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

48. In the instant case, the Bank pension scheme was introduced from 1st April 1989 and options were called from the employees and those who had given their option became member of the pension scheme and accordingly pension was continuously paid to them without fail and only in the year 2010, when the Bank failed in discharging its obligations, respondent employees approached the High Court by filing the writ petitions. The Bank later on withdrawn the scheme of pension by deleting clause 15(ii) by an amendment dated 11th March, 2014 which was introduced with effect from 1stApril, 1989 and the employees who availed the benefit of pension under the scheme, indeed their rights stood vested and accrued to them and any amendment to the contrary, which has been made with retrospective operation to take away the right accrued to the retired employee under the existing rule certainly is not only violative of Article 14 but also of Article 21 of the Constitution.

49. It may also be noticed that there is a distinction between the legitimate expectation and a vested/accrued right in favour of the employees. The rule which classifies such employee for promotional, seniority, age of retirement purposes undoubtedly operates on those who entered service before framing of the rules but it operates in futuro. In a sense, it governs the future right of seniority, promotion or age of retirement of those who are already in service.

50. For the sake of illustration, if a person while entering into service, has a legitimate expectation that as per the then existing scheme of rules, he may be considered for promotion after certain years of qualifying service or with the age of retirement which is being prescribed under the scheme of rules but at a later stage, if there is any amendment made either in the scheme of promotion or the age of superannuation, it may alter other conditions of service such scheme of rules operates in futuro. But at the same time, if the employee who had already been promoted or fixed in a particular pay scale, if that is being taken away by the impugned scheme of rules retrospectively, that certainly will take away the vested/accrued right of the incumbent which may not be permissible and may be violative of Article 14 and 16 of the Constitution."

18. Since the right to receive pension had accrued in favour of the respondent on the date of his superannuation, we find that such accrued and vested right cannot be taken away by retrospective application of the Pension Rules, as is sought to be pressed by the State."

8. Per contra, learned counsel appearing on behalf of respondent nos.3 and 4 as well as learned Standing Counsel have tried to distinguish the case of petitioner from above referred judgments, however, they miserably failed, therefore, this Court is of the opinion that case of petitioner is squarely covered on facts as well as on law by Ram Naresh Tiwari (supra). Therefore, impugned order dated 13.8.2018 is set-aside and this writ petition is allowed in terms of the direction passed in paragraph no.17 of Ram Naresh Tiwari (supra) which is as under:

"The writ in the nature of mandamus is issued commanding the opposite parties to pay the pension, as admissible to the petitioner, with effect from the date of his retirement treating the petitioner having completed his qualifying service of 10 years as required under law. The opposite parties are also directed to make compliance of this order within a period of three months from the date of presentation of a certified copy of this order, failing which, the petitioner shall be entitled for interest at the rate of 9% per annum with effect from the date of his retirement till the actual payment is made."

Order Date:1.3.2024.