V. Parvathi, vs Visakhapatnam Port Trust,
2021 Latest Caselaw 1741 AP

Citation : 2021 Latest Caselaw 1741 AP
Judgement Date : 25 March, 2021

Andhra Pradesh High Court - Amravati

V. Parvathi, vs Visakhapatnam Port Trust, on 25 March, 2021

Bench: D Ramesh

             THE HON'BLE SRI JUSTICE D. RAMESH

                 WRIT PETITION No.4367 OF 2015

ORDER:-

      This Writ Petition is filed under Article 226 of Constitution of

India seeking the following relief:-

      "....to issue an appropriate Writ, order or direction in the nature
      of writ of Mandamus, declaring the action of the respondents

though the petitioner rendered service and qualified for pension without considering the petitioner's service in casual labour for granting of regular pension as illegal, arbitrary and consequently directing the respondent to consider the petitioner's 50% casual service for granting of the pension".

2. As per the averments of the Writ Petition, originally the

petitioner was appointed and worked as a casual labour as Khalasi

from 11.10.1996 to 04.05.1997 in Medical Department and she

worked as a casual labour for a period of 6 months and 25 days.

Later her appointment was regularized as Khalasi in Medical

Department in Visakhapatnam Port Trust on 05.05.1997 by the 1st

respondent and issued proceedings No. O.O.No.A/Med/Rect/

S&SKH/170/97, dated 20.05.1997. Later, the petitioner attained

superannuation on 31.01.2007 from service as S & S Khalasi of

Medical Department in Visakhapatnam Port Trust. Subsequent to

the superannuation of the petitioner, she submitted a pension

proposal through 2nd respondent and requested for releasing of the

terminal benefits and also monthly regular pension, which she is

entitled to. The respondent was released gratuity only, but not

sanctioned monthly pension, on the ground that the petitioner is

having quailed service of 9 years, 8 months and 26 days, but not

having 10 years service for sanction of pension. Therefore, the

petitioner made representation dated 08.10.2012 for considering

her 50% service period, on which she worked as a casual labour

for sanction of service for eligibility for pension. Further, the

petitioner requested the respondent authorities to count 50% of

petitioner's casual service as per the orders of the Ministry of

Shipping (Port Wing), Government of India vide F.No. A-38011/

8/2004-P.E.I(P1), dated 05.08/2004, wherein it was stated that

the period not less than 240 days in 12 calendar months, hence

the petitioner will became eligible for pension and the respondent

authorities have not considered the case of the petitioner for

counting 50% of casual service for calculation. Hence the petitioner

has filed present Writ Petition.

3. The respondents have filed their counter and denied the

allegations made in the Writ Petition. The respondents further

stated that the petitioner is not entitled for monthly pension as per

the provisions of the Pension Rules existing in force, as only the

employee of VPT, who have a service of 10 years or more are

entitled to a monthly pension. The petitioner has rendered Port

service for 9 years, 8 months and 16 days, for which she been paid

retirement gratuity of Rs. 45,849/- as per P.G.Act, 1972 and she

was also paid Rs. 75,497/- as per rule 49 of CCS pension as she

was not entitled for life time pension and as per pension rues she

is not entitled for receiving pension. As per instructions of the

Ministry of Shipping dated 05.07.2004, the period of casual service

should not be less that 240 days in 12 calendar months for

counting 50% Casual/ Daily rated service for pension benefits. As

stated that the petitioner has rendered casual service only for 206

days i.e from 11.10.1996 to 04.05.1997, which does not fulfill the

above criteria and hence the request of petitioner to counter 50%

of casual service cannot be considered as per the said Memo. In

view of the same, the respondents requested to dismiss the Writ

Petition.

4. Learned counsel for the petitioner would contend that it is

not in dispute that the petitioner was worked as casual labour for

206 days in the Department and there is short of 94 days for

pension eligibility, if the petitioner's 50% of casual service is taken

into consideration, she is eligible for monthly pension as per her

request. In support of her contention, she mainly relied on the

circulars issued by the Government of India dated 30.12.2010 as

well as the Memo issued in the month of August, 2012. In those

circulars and Memos, the Central Government has stated 50% of

casual daily rated services shall be taken into consideration for

calculating the pensionary benefits. Apart from the same, the

learned counsel for petitioner has relied on the decision of the Apex

Court in Punjab State Electricity Board and Another Vs.

Narata Singh and another1, wherein it was held that in identical

circumstances of full bench of Punjab and Haryana High Court has

struck down the Rule 3.17(ii) of the Punjab Civil Services Rules,

wherein, the Full Bench decision of the said High Court held that

in rule which excludes the continuing of work charged service of

an employee, whose services are regularized subsequently, must be

held to be bad in law. Questioning the said orders, the Punjab

State Electricity Board has filed S.L.P before the Apex Court,

wherein it was held as follows :

" All these directions indicate that the High Court had come to the conclusion that the period of service rendered by Respondent No.1 in work-charged capacity under the State Government should be taken into consideration for determining qualifying service for the

2010(4) SCC 317

purpose of pension. Non-mention of such direction in the impugned judgment is merely a slip and the appellants cannot derive any advantage from this".

5. In view of the Judgment of the Apex Court, it clearly

establishes that the period of service rendered by the employees in

work charged capacity under the State Government should be

taken into consideration for determining the qualifying services for

the purpose of pension. In view of said Judgment, if the petitioner

case is considered by calculating the 50% casual service rendered

by her in the respondents' organization, she is also eligible as per

regulations for monthly pension.

6. Having regard to the facts and circumstances of the case and

considering the submissions of the learned counsel and on perusal

of the record, this Court, in the interest of justice, felt it

appropriate to dispose of the Writ Petition directing the