Allahabad High Court
Ghaziabad Development Authority vs Pramod Kumar Gupta And Another on 23 May, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:93816-DB
Court No. - 40
Case :- SPECIAL APPEAL No. - 373 of 2024
Appellant :- Ghaziabad Development Authority
Respondent :- Pramod Kumar Gupta and another
Counsel for Appellant :- Pradeep Kumar Tripathi
Counsel for Respondent :- C.S.C.,Sanjay Kumar Mishra
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Shri Pradeep Kumar Tripathi, learned counsel for the appellant and Shri C.B. Yadav, learned Senior Counsel assisted by Shri Sanjay Kumar Mishra, learned counsel for respondent-petitioner.
2. The instant intra-court appeal is directed against the judgement and order dated 01.12.2022 passed by learned Single Judge in Writ A No.16386/2022 (Pramod Kumar Gupta vs. State of U.P. and another), whereby, the writ petition was disposed of in terms and conditions as contained in the order dated 22.09.2021 passed in Writ A No.63 of 2020 (Rajendra Kumar Tyagi vs. State of U.P. and others).
3. Ghaziabad Development Authority (in short, GDA) advertised two vacancies of Accountant in the daily newspaper on 21.05.1984. The respondent-petitioner had applied for the said post and was duly selected. Later on, he joined his services on 10.04.1986. After rendering more than 35 years of satisfactory service, he superannuated on 31.10.2021. It also reflects that initially, a show cause notice was given to him on 01.04.2002, wherein, three irregularities qua his appointment were alleged i.e. (i) the GDA took interview for the post of Assistant Cost Accountant, however, he was accorded an appointment on the post of Accountant; (ii) the post of Accountant falls under U.P. Development Authorities Centralized Services; his appointment was made without any authorization from the State Government and the same was in violation of the Centralized Services Rules and accordingly, his appointment was void, and (iii) the petitioner was appointed on the post of Accountant and even prior to it, he had no experience as Assistant Accountant and therefore, the appointment was void.
4. The said show cause notice was duly responded by the petitioner on 14.05.2002 and thereafter the matter was consigned to record. Nothing is reflected from the record to indicate that any contrary inference was drawn by the GDA in his service book. After his superannuation, he made repeated representations to accord terminal and other benefits but once no reprieve was accorded by the GDA then such situation has impelled the petitioner to approach to this Court by preferring Writ A No.16386 of 2022, which was disposed of by learned Single Judge by the order impugned dated 01.12.2022. The same is reproduced herein under:-
"Heard Ms. Shalini Mishra, learned Counsel for the petitioner and learned Standing Counsel.
The present petition has been filed alleging that the petitioner is not being paid retiral dues.
It is argued that the issue raised in the present petition is squarely covered by the judgment of this Court dated 22.09.2021 passed in Writ-A No.63 of 2020; Rajendra Kumar Tyagi vs State of U.P. and others and the Special Appeal being Special Appeal No.117 of 2022 filed against the said order has also been dismissed by this Court vide order dated 12.07.2022.
The Counsel for the respondent argues that against the judgments rendered in Writ-A 63 of 2020 and Special Appeal No.117 of 2022, the respondents have preferred an SLP, which is pending.
Considering the fact that the issue is squarely covered by the judgment of this Court dated 22.09.2021, the present writ petition is disposed off in the same terms and conditions as contained in the order dated 22.09.2021 passed in Rajendra Kumar Tyagi's case (Supra)."
5. Sri Pradeep Kumar Tripathi, learned counsel for the appellant vehemently submitted that the appointment of the petitioner was made by the GDA without any authority of law and the same was void. In response to the show cause notice dated 01.04.2002, the reply was furnished by the petitioner on 14.05.2002 and the same was forwarded to the State Government through letter dated 15.05.2002. The plea has been taken that in response to the letter of the Secretary, GDA dated 15.05.2002 sent to the State Government, no information had been received in the GDA. It is claimed that as per provisions of U.P. Development Authorities Centralized Services Rules, 1985 and U.P. Development Authorities Centralized Services Retirement Benefit Rules, 2011, the petitioner is not entitled for pension and other retiral benefits. The State Government has also framed and notified "The Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021" (U.P. Act No.1 of 2021) and Section 2 of U.P. Act No.1 of 2021 specifically provides that "Qualifying Service" means the services rendered by an officer appointed upon a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post.
6. Learned counsel for the appellant vehemently submitted that once the initial engagement of the petitioner was void ab initio and in absence of response to the communication dated 15.05.2002 from the State Government, no benefit could be extended to the petitioner after his superannuation. He lastly contended and placed reliance upon Section 41 of U.P. Urban Planning and Development Act, 1973 and Section 2 of U.P. State Control Over Public Corporations Act, 1975 and submits that the directions issued by the State Government are binding upon the GDA. He has further placed various departmental correspondence and tried to justify the action of non-payment of pension and post retiral benefits to the petitioner on the ground that no due permission/approval was accorded by the State Government and submits that the case of petitioner is distinguishable with the case of Writ A No.63 of 2020 (Rajendra Kumar Tyagi vs. State of UP and another). He submitted that the writ petition was disposed of at the admission stage without inviting the counter affidavit and in absence of any response in the said proceeding, the appellant has suffered irreparable loss and injury and the order impugned is liable to be set aside.
7. The said objection is resisted by Shri C.B. Yadav, learned Senior Counsel appearing for the respondent-petitioner on the ground that earlier in similar circumstances, one Rejendra Kumar Tyagi had preferred Writ A No.63 of 2020, which was allowed by learned Single Judge on 22.9.2021. The said order was affirmed by the Division Bench of this Court vide order dated 12.7.2022 passed in Special Appeal No.117 of 2022 (Ghaziabad Development Authority, Ghaziabad vs. State of UP and another). Even the Apex Court has also dismissed Special Leave Petition (Civil) Diary No.32396/2022 (Ghaziabad Development Authority, Ghaziabad vs. Rajendra Kumar Tyagi & another) on 24.05.2023. He has also placed reliance on the judgement and order dated 05.08.2022 passed in Writ A No.10919 of 2022 (Sunil Kumar vs. State of UP and another) by which learned Single Judge has allowed the said writ petition, relying order passed by the Apex Court in Special Leave to Appeal (C) No.1109/2022 (The State of Gujarat & ors vs. Talsibhai Dhanjibhai Patel). The said order was subject matter of challenge in Special Appeal Defective No.358 of 2023 (Vice Chairman, Ghaziabad Development Authority vs. Sunil Kumar and another) and the Division Bench of this Court, relying upon order passed in Rajendra Kumar Tyagi's case, which was assailed in Special Appeal No.117/2022, has also dismissed the said Special Appeal on 27.07.2023. He has also placed reliance on the order dated 02.4.2024 passed by Division Bench of this Court in Special Appeal Defective No.979 of 2023 (The Ghaziabad Development Authority and another vs. Manisha Kumar and another). He submits that learned Single Judge has rightly placed reliance on the judgement in Rajendra Kumar Tyagi (supra), which was upheld upto Apex Court and the same does not warrant any interference in the intra-court appeal.
8. We have the occasion to peruse the record in question and find that the petitioner-respondent superannuated on 31.10.2021. Once the pensionary benefits were not accorded to the petitioner then he had preferred the writ petition for payment of regular pension, gratuity and group insurance alongwith interest @ 18% per annum. Finally, the said writ petition was disposed of by learned Single Judge on 01.12.2022 in the same terms and conditions as contained in the order dated 22.09.2021 passed in Rajendra Kumar Tyagi's case (supra).
9. We have also occasion to peruse the judgement of learned Single Judge in Rajendra Kumar Tyagi's case (supra) and find that he was initially appointed as Law Assistant in GDA on ad-hoc basis till further orders and subsequently, he was absorbed on the post of Law Officer in terms of an order dated 15.3.2017. Finally, he had retired on 31.7.2018 after attaining the age of superannuation. After his retirement he was also not given his retiral benefits on the ground that post of Law Assistant was not sanctioned. In Rajendra Kumar Tyagi (supra) learned Single Judge has allowed the writ petition on 22.09.2021 holding that the writ petitioner satisfies the eligibility criteria prescribed under the Retirement Benefits Rules of 2011 and has rendered the qualified service of more than 20 years and stands entitled to retirement benefits and directions were issued that the writ petitioner shall be entitled to payment of pension alongwith interest @ 6% per annum from the date of his retirement till actual payment. Relevant portion of the order is reproduced herein below:-
"In terms of the Retirement Benefits Rules of 2011, it is clear that the necessary services to be rendered before a person can be said to be qualified for service is 20 years of service and in terms of Rule 2 (i) (2) of the Retirement Benefits Rules, 2011, when seen in the light of the appointment of the petitioner, makes it clear that the appointment of the petitioner was a regular appointment, which is also fortified by the fact that the petitioner was paid the salary through the State funds and had completed 20 years of service from the date of his initial appointment i.e. on 7.5.1988.
Considering the fact that the petitioner qualified the eligibility criteria prescribed under the Retirement Benefits Rules of 2011 and had rendered the qualified service of more than 20 years, the decision of the respondents in not paying the retiral benefits cannot be sustained.
Accordingly, the writ petition is allowed. the order dated 28.9.2019, insofar as it relates to Agenda Item No. 17 (in respect of the petitioner) is set aside. The respondents are directed to take steps for payment of the retiral benefits to the petitioner in accordance with law expeditiously, preferably within a period of four months from the date of filing of a copy of the order before the Vice Chairman, Ghaziabad Development Authority.
In view of the fact that the stand taken by the respondents for non-payment of the pension has been repelled by this Court, it is directed that the petitioner shall be entitled to payment of pension alongwith interest at the rate of 6% per annum from the date of his retirement till actual payment.
The writ petition stands allowed in terms of the said order.
Copy of the order downloaded from the official website of this Court shall be treated as certified copy of this order."
10. The aforesaid order was subject matter of challenge in Special Appeal Defective No.117 of 2022 filed by GDA and the Division Bench had dismissed the appeal with following observations:-
"7. We have heard the learned counsel for the parties and have perused the record. We find that the learned Single Judge has noted the fact that the writ petitioner was appointed on 7.5.1988 pursuant to an advertisement issued by the appellant itself and faced selection. The writ petitioner was also absorbed on the post of Law Officer in terms of order dated 15.3.2017 (Annexure-10 to the writ petition). The writ petitioner/respondent has been drawing salary from the State funds throughout the tenure of his appointment which fact was not disputed by the appellant. The learned Single Judge also found that the writ petitioner qualified the eligibility criteria prescribed under the Retirement Benefits Rules, 2011 and had rendered the qualifying service of more than 20 years and as such the decision to deny the writ petitioner the retiral benefits could not be sustained.
8. Recently the Apex court in the case of the State of Gujarat and others vs. Talsibhai Dhanjibhai Patel, Special Leave to Appeal (C) No. 1109 of 2022 decided on 18.2.2022 reported in 2022 Live Law (SC) 187 had the occasion to consider a similar situation and observed as under:-
"It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.
In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years service."
9. In view of the above, we do not find any error in the judgement and order of the learned Single Judge so as to warrant an interference.
10. Accordingly, the Intra Court Appeal stands dismissed."
11. It further transpires from the record that the GDA had challenged the aforesaid judgement in SLP (Civil) Diary No.32396/2022 and the Apex Court had dismissed the SLP on 24.05.2023. It further transpires from the record that the Apex Court vide an order dated 18.02.2022 had also dismissed Special Leave to Appeal (C) No.1109/2022 (The State of Gujarat & ors vs. Talsibhai Dhanjibhai Patel) on the ground that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The Apex Court further observed that the State cannot be permitted to take the benefit of its own wrong. To take the services continuously for 30 years and thereafter to contend that an employee, who has rendered 30 years continuous service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.
12. We further find that one Sunil Kumar was also appointed as Legal Assistant in GDA on 25.7.1989 on ad-hoc/temporary basis and the services of Sunil Kumar and Rajendra Kumar Tyagi were absorbed on the post of Law Officer in the GDA vide order dated 15.03.2017. After attaining the age of superannuation he had retired from the service on 30.9.2019. Once he had not been paid the post retiral benefits then he had approached this Court by preferring Writ A No.10919 of 2022. Relying the judgement of the Apex Court in the State of Gujarat & ors vs. Talsibhai Dhanjibhai Patel (supra) learned Single Judge had allowed the writ petition on 05.8.2022 with following observations:-
"I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. The facts so argued is not disputed. It is undisputed that petitioner was given appointment by the respondent no.2 vide order 25.7.1989. Services of petitioner as well as Rajendra Kumar Tyagi were absorbed on the post of Law Officer vide order dated 15.3.2017. Therefore, I found no difference in the appointment of petitioner as well as Rajendra Kuma Tyagi. I have perused the judgement of Apex Court in the matter of State of Gujarat and others vs. TalsibhaiDhanjibhai Patel passed in Special Leave to Appeal (C) No. 1109 of 2022 and in light of said judgment, after completion of service of more than 30 years, respondents cannot deny for payment of any retiral benefits to the petitioner. Relevant paragraph of the said judgment is being quoted hereinbelow:-
"It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.
Therefore, under such facts of the case as well as law laid down by the Apex Court, the impugned order 28.6.2022 passed by the respondent no.2 is hereby quashed and writ petition succeeds allowed in terms of order 22.9.2021. No order as to costs."
13. The Vice Chairman, GDA had challenged the aforesaid judgement in Special Appeal Defective No.358 of 2023 and a Coordinate Bench of this Court had dismissed the appeal on the ground that similarly situated employee namely Rajendra Kumar Tyagi filed Writ A No.63 of 2020, which was allowed by learned Single Judge vide judgment dated 22.09.2021. The GDA being aggrieved thereby filed Special Appeal No.117 of 2022, which was dismissed by the Division Bench on 12.07.2022, relying the judgement of Apex Court in the State of Gujarat & ors vs. Talsibhai Dhanjibhai Patel (supra). The GDA filed the Special Leave Petition (Civil) Diary No.32396 of 2022 against the judgement and order dated 12.07.2022 and the same was also dismissed by the Apex Court on 24.05.2023.
14. Admittedly, the similar matter has travelled upto the Supreme Court and the order passed by the learned Single Judge was approved. The case of the petitioner is moreover similar to the case of Rajendra Kumar Tyagi (supra) and his claim for retiral benefits is also negated on the same ground that his appointment was not approved. Therefore, we do not find any good ground to distinguish the case of petitioner with the judgement passed in Rajendra Kumar Tyagi (supra), which was also affirmed by the Hon'ble Apex Court. In an Intra-Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. As such, we are not inclined to interfere with the impugned judgment and order.
15. Accordingly, this intra-court appeal stands dismissed.
Order Date :- 23.5.2024
A. Pandey
