Gauhati High Court
Habib Ali Barbhuiya vs The State Of Assam And 8 Ors on 5 April, 2022
Page No.# 1/23
GAHC010114862015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1777/2015
HABIB ALI BARBHUIYA
S/O- LT. IMRAN ALI BARBHUIYA, VILL.- MOHANPUR GRANT, P.O.-
MOHANPUR, P.S.- ALGAPUR, DIST.- HAILAKANDI, ASSAM.
VERSUS
THE STATE OF ASSAM and 8 ORS,
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM,
PENSION AND PUBLIC GRIEVANCE DEPTT., DISPUR, GHY- 6.
2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
REVENUE DEPTT.
ASSAM
DISPUR
GHY- 6.
3:THE DIRECTOR OF PENSION
HOUSEFED COMPLEX
BELTOLA
GHY- 7
ASSAM.
4:THE DIRECTOR
LAND RECORDS AND REVENUE DEPTT.
ASSAM
RUPNAGAR
GHY- 17.
5:THE ACCOUNTANT GENERAL A and E
ASSAM
MAIDAMGAON
BELTOLA
Page No.# 2/23
GHY- 29.
6:THE DY. COMMISSIONER
HAILAKANDI
P.O.
P.S. and DIST.- HAILAKANDI.
7:THE SETTLEMENT OFFICER
CACHAR and HAILAKANDI DIST.
P.O. and P.S.- SILCHAR
DIST.- CACHAR
ASSAM.
8:THE SENIOR ASSTT. SETTLEMENT OFFICER
HAILAKANDI
P.O.
P.S. and DIST.- HAILAKANDI.
9:THE ASSTT. SETTLEMENT OFFICER
HAILAKANDI CIRCLE
P.O.
P.S. and DIST.- HAILAKANDI
ASSAM
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
For the petitioner : Dr. B. Ahmed,
Mr. A.M.S. Mazumder,
Mr. A.A.R. Karim
.... Advocates.
For the respondent nos. : Mr. T.C. Chutia ... Advocate.
1, 3, 6, 7, 8 & 9
For the respondent nos.2 and : Mr. J. Handique ... Advocate.
For the respondent no.5 : Mr. R. Mazumdar ... Advocate.
Dates of hearing : 14.12.2021 & 22.02.2022
Date of judgment : 05.04.2022
Page No.# 3/23
JUDGMENT AND ORDER (CAV)
Heard Dr. B. Ahmed, learned counsel for the petitioner. Also heard
Mr. T.C. Chutia, learned counsel for the respondent nos.1, 3, 6, 7, 8 & 9
and Mr. R. Mazumdar, learned counsel for the respondent no.5. Mr. J.
Handique, learned counsel appears for the respondent nos.2 and 4.
2. The petitioner's case is that he was temporarily appointed as a
Patowari in the office of the respondent no.9 on 10.03.1966. The
petitioner was thereafter sent for training for the Recorders' Class
Certificate Course in 1982 and after completion of the course, he was
given a Certificate dated 09.06.1983. However, the petitioner's service as
an untrained temporary Patowari was terminated by discharging him
from service w.e.f 01.07.1982, vide order dated 23.06.1982. The
petitioner thereafter did not work for 5 (five) years. The petitioner was
subsequently temporarily re-appointed into service, vide order dated
11.08.1987 w.e.f. the date of joining.
3. The petitioner thereafter retired from service on attaining the age of
superannuation on 29.06.2002. As no pension and other pensionary
benefits was being given to the petitioner, the petitioner has filed the
present writ petition 13 years later, praying for grant of pension and
other pensionary benefits.
4. During the course of the proceedings of this case, the respondents
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came to a finding that the petitioner should have actually retired from
service on 31.08.2001 and in view of the petitioner overstaying his
service period, the respondents sought to recover an amount of
Rs.48,069/- from the petitioner, due to excess pay given for overstay in
service.
5. The petitioner's counsel submits that the post of Patowari is a
Grade-III post. He submits that as the petitioner had no hand in the
overdrawal of his pay and overstay in service, the respondents cannot be
allowed to make recovery of the amount of Rs.48,069/-, in terms of the
judgment of the Apex Court in State of Punjab and others Vs. Rafiq
Masih (White Washer), reported in (2015) 4 SCC 334. He also submits
that the State respondents have to count the period from 13.08.1987 to
31.08.2001, i.e. 14 years 18 days alongwith the petitioner's earlier
service period from 10.03.1966 till 01.07.1982, for the purpose of grant
of pension. However, the period of five years from 01.07.1982 to
10.08.1987 was not required to be counted for the purpose of pension,
as the petitioner was not in service during the said period.
6. The petitioner's counsel submits that the petitioner having worked
continuously from 10.03.1966 to 01.07.1982 and from 13.08.1997 to
31.08.2001 in a regular sanctioned post, the petitioner's service has to
be deemed to have been regularized. Further, the petitioner having been
allowed to go on superannuation retirement, the petitioner cannot be
denied payment of pension in terms of Rule 108 (b) of the Assam Service
(Pension) Rules, 1969, herein after referred to as the '1969 Pension
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Rules'. In support of his submissions, the learned counsel for the
petitioner has relied upon the judgments of the Apex Court and this
Court, which are as follows:-
(1) Prem Singh Vs. State of Uttar Pradesh & Others reported in
2019 (10) SCC 516.
(2) The State of Gujarat & Others Vs. Talsibhai Dhanjibhai Patel,
2022 LiveLaw (SC) 187.
(3) Dolly Borpujari Vs. State of Assam & Others reported in 2010
(2) GLT 147.
(4) Kabiram Rajbangshi Vs. State of Assam & Others reported in
1997 (1) GLT 589.
(5) Judgment & Order dated 08.03.2018 passed in Sh. Abdul
Hannan Vs. State of Assam & Others in WP(C) No. 2821/2009.
7. Mr. T.C. Chutia, learned counsel for the respondent nos. 1, 3, 6 to
9 submits that the petitioner's service was terminated vide order dated
23.06.1982 w.e.f. 01.07.1982. He also submits that the petitioner had
been suspended prior to his discharge/termination from service vide
order dated 23.06.1982. Thereafter the petitioner was without a job for 5
years and he was again re-appointed as a Patowari on temporary basis
vide order dated 11.08.1987. The petitioner's service was never
regularized and as such, he is not entitled to the grant of pension. He
submits that the petitioner can be given gratuity only for the period from
13.08.1987 i.e. the date of joining till 31.08.2001, i.e. the date the
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petitioner should have actually retired from service, as per Rule 152 of
the "1969 Pension Rules". He submits that the period prior to
13.08.1987 cannot be counted as service for the purpose of payment of
pension as the same was also temporary in nature.
8. He submits that in terms of Rule 152 of 1969 Pension Rules, the
petitioner, who is a temporary Government servant is eligible to be given
gratuity, as the petitioner had completed 5 (five) years of continuous
service at the time of his retirement. He further submits that there being
no challenge to Rule 152 of the 1969 Pension Rules, the petitioner
cannot be given any benefit beyond payment of gratuity in terms of Rule
152.
9. Mr. R. Mazumdar, learned counsel for the respondent no.5
submits that in terms of paragraph 4 of the affidavit-in-opposition filed
by the respondent no.5, the pension case of the petitioner has been
settled and accordingly terminal gratuity of Rs.33,600/- has been
issued to the Treasury Officer, Hailakandi for payment to the petitioner.
He submits that proportional pension can be paid to the petitioner only
if the petitioner's service was regularized. However, as the petitioner's
service was never regularized, he could not be said to be entitled to
payment of pension in violation of Rule 152 of the 1969 Pension Rules.
He also submits that the recovery of Rs.48,069/- is to be made from the
petitioner due to overstay in service for 9 months. However, as
Rs.33,600/- has already been recovered from the terminal gratuity
payable to the petitioner, the amount of RS.14,469/- still needs to be
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recovered. The counsel for the respondent no.5 also submits that in
terms of the letter dated 10.11.2017 issued by the Senior Assistant
Settlement Officer, Hailakandi, wherein it has been shown that the
petitioner was appointed afresh w.e.f. 13.08.1987, the petitioner is
entitled to gratuity for his period of service from 13.08.1987 to
31.08.2001.
10. Mr. J. Handique, learned counsel for the respondent Nos. 2 & 4
submits that as the petitioner's service was neither confirmed nor
regularized, there is no question of the petitioner being paid pension in
violation of the 1969 Pension Rules.
11. I have heard the learned counsels for the parties.
12. The petitioner was appointed as a Patowari on temporary basis
vide order dated 10.03.1966 without any advertisement being issued.
The petitioner's service was thereafter terminated vide order dated
23.06.1982 w.e.f. 01.07.1982, stating that the temporary untrained
Patowari was discharged from service w.e.f. 01.07.1982. The petitioner
has not challenged the order dated 23.06.1982 by which his service was
terminated by way of discharge. Though the petitioner has annexed a
certificate dated 09.06.1983, which states that the petitioner had
completed his training course for the Recorders' Class Certificate
allegedly held from 10.02.1982 to 10.08.1982, the original certificate
has not been produced in this Court. In any event, at the time the
petitioner was discharged from service vide order dated 23.06.1982
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w.e.f. 01.07.1982, the petitioner had not completed his Recorders' Class
Certificate training course.
13. The petitioner was thereafter re-appointed as Patowari on
temporary basis without any advertisement being issued, vide order
dated 11.08.1987. The order dated 11.08.1987 is re-produced below :
"Perused representation submitted by Md. Habib Ali Barbhuiya,
dt. 17.6.87, to Govt and seen Govt letter No.RIR.85/83/166
dt.18.6.87 for taking necessary action.
O R D E R
In the interest of public service Md. Habib Ali Barbhuiya, a
retrenched Patowary is hereby appointed temporarily as Patowari
with effect from the date Md. Habib Ali Barbhuiya joins to R.K.
Nagar circle on usual scale of pay. The service of Habib Ali
Barbhuiya, Patowari is purely temporary and liable to be terminated
at any time without assigning any reason and notice thereof."
The Order dated 11.08.1987 clearly shows that the appointment of
the petitioner was a fresh appointment. Though the order dated
11.08.1987 shows that the petitioner had submitted a representation
dated 17.06.1987, the said representation dated 17.06.1987 is not a
part of the writ petition.
14. The petitioner thereafter submitted representations dated
20.08.1987 and 02.09.1987 to the Secretary to the Government of
Assam, Revenue (L.R) Department stating that his service had been
terminated vide order dated 23.06.1982. The petitioner prayed that the
respondents should set aside the termination order dated 23.06.1982
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and to treat all his period of service from 1966 till 01.07.1982 as period
spent on duty for all purposes. He also prayed for regularization of his
service by creating a supernumerary post of Patowari w.e.f. 01.07.1982
under the regular establishment of Deputy Commissioner, Cachar and
for appointing him against the said post. However, the petitioner's
service was never confirmed nor regularized.
15. The prayer of the petitioner is that a direction should be issued to
the respondents to count his service period from 10/03/1966 till the
date of his superannuation, excluding the 5 year period from
01.07.1982 - 11.07.1987 and release the regular pension and other
pensionary benefits of the petitioner, without recovering the salaries
received by the petitioner till May/2002.
16. Though the petitioner has prayed that his service period from
10.03.1966 till the date of his retirement should be counted as
continuous service, the discharge order dated 23.06.1982 and the
subsequent re-appointment order dated 11.08.1987 has not been put to
challenge. In the case of State of Kerala vs M. K. Kunhikannan Nambiar
Manjeri Manikoth, Naduvil (Dead) and Others, reported in (1996) 1 SCC
435, the Apex Court has held that all official decisions are presumed to
be valid until set aside or otherwise held to be invalid by a court of
competent jurisdiction.
In view of the law laid down by the Apex Court, the discharge order
dated 23.06.1982 and the petitioner's re-appointment order dated
Page No.# 10/23
11.08.1987 will have to be considered to be valid orders as on date. The
above order dated 11.08.1987 clearly shows that the petitioner was
appointed on temporary basis. There is no prayer made by the writ
petitioner to either confirm or regularize his service as Patowari in the
writ petition. Thus, the petitioner cannot be said to be a regular
Government servant as his service was never regularised.
17. Rule 31, 36, 108 and 152 of the 1969 Pension Rules states as
follows:
"31. The service of an officer does not qualify for pension unless it
conforms to the following three conditions-
Firstly, the service must be under Government;
Secondly, the employment must be substantive and permanent;
Thirdly, the servant must be paid by Government:
Provided that the Governor may, even though either or both of
conditions (1) and (2) above are not fulfilled,-
(i) declare that any specified kind of service rendered in a
non-gazetted capacity shall qualify for pension, and
(ii) in individual cases and subject to such conditions as he
may think fit to impose in each case, allow service rendered by
an officer to count for pension.
36. Service does not qualify unless the officer holds a substantive
office on a permanent establishment:
Provided that continuous temporary or officiating service under the
Government of Assam, followed without interruption by confirmation
in the same or any other post, shall count in full as qualifying
service except in respect of-
(a) periods of temporary or officiating service in non-
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pensionable establishment, and
(b) periods of service paid from contingencies.
Note 1. In case of Central Government servant who is
permanently transferred to the State Government without any
interruption in service, the term temporary or officiating service
used in the above proviso shall include such service rendered
under the Central Government who have agreed to bear the
proportionate pensionary liability on a reciprocal basis.
Note 2. The Governor of Assam is pleased to declare as
pensionable the temporary services (without lien in any
pensionable posts) rendered under the State Government by
the re-employed released personnel of Sylhet, who held
pensionable appointment before partition, irrespective of
whether they retire during the continuance of temporary
services or as a result of the abolition of the temporary posts so
held or on subsequent absorption in other permanent
vacancies.
The Governor is also pleased to condone the period of
interruptions in service of such personnel before their re-employment
irrespective of the period of break.
Cases of personal who, though being absorbed in permanent
posts, actually serve in temporary appointments and retire therefrom
do not come within the purview of this rule.
108. The amount of pension shall be regulated as follows-
(a) After a service of less than ten years, gratuity not exceeding
(except in special cases and under the orders of the Governor up to a
maximum of 12 months emoluments) one-half months emoluments
for each completed six monthly period of service. If the emoluments
of the officer has been reduced during last three years of service,
otherwise than as a penalty, average emoluments may, at the
discretion of the authority which has power to sanction the gratuity,
be substituted for emoluments.
Page No.# 12/23
(b) After a service of not less than ten years a pension not
exceeding the following amounts:- ..........."
152. (i) A temporary employee who retires on superannuation or
is discharged on account of retirement or is declared invalid for
further service will be eligible for a gratuity at the rate of half
months pay for each completed year of service; provided that he had
completed not less than 5 (five) years, continuous service at the time
of retirement/discharge/ invalidation.
Note. 'Pay' for the purpose of determining the amount of gratuity
will mean only basic pay and also dearness pay, if any, at the time
of relinquishing service. It will not include special pay, personal pay,
and other emoluments classed as 'Pay'. In case the person
concerned was on leave with or without allowance immediately
before retirement/discharge /invalidation, pay for this purpose will
be that which he would have drawn had he not proceeded on such
leave.
(ii) The grant of gratuity under Cl. (i) above will be subject to the
service rendered by the employee concerned being held by the
authority competent to appoint him to be approved and satisfactory.
(iii) No gratuity will be admissible-
(a) in a case where the employee concerned resigns his post
or is removed or dismissed from public service,
(b) to a probationer or other Government servant discharged
for failure to pass the prescribed test or examination,
c) to a re-employed pensioner,
(d) to one paid from contingency or one belonging to a work-
charged establishment or any other service governed by
separate rules or order,
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(e) to one in contract service unless there is any specific
stipulation in the contract-deed,
(f) to one entitled to benefit of Contributory Provident Fund or
similar other benefits."
18. In the case of Prem Singh (supra), the appellant/employee was
appointed as a Welder in the year 1965 in a work-charged
establishment. He was thereafter transferred from one place to another
and his services were regularized in the year 2002, prior to his
superannuation in the year 2007. The appellant/employee's prayer was
to count his period of service spent in the work-charged establishment
as qualifying service under Rule 3(8) of the U.P. Retirement Benefit
Rules, 1961. The Apex Court held that reading down the provisions of
Rule 3(8), service rendered even prior to regularization in the capacity of
work-charged employees, contingency paid fund employees or non-
pensionable establishment shall also to be counted towards qualifying
service for pension even if such service is not preceded by temporary or
regular employment in a pensionable establishment.
In the above case of Prem Singh (supra), the Apex Court had held
that the period of service of the employee, prior to his regularization,
was also to be counted as qualifying service for the purpose of pension.
In the present case, the petitioner not having his service regularized or
confirmed at any stage, the decision of Prem Singh (supra) does not
apply to the facts of this case. Further, it is settled law that a decision is
an authority for what it decides and not what logically follows from it. A
little difference in facts changes the precedential value of a decision.
Page No.# 14/23
19. In the above case of Abdul Hannan (supra), this Court held that the
determination of pension payable to the retired Extra-Writer should not
only be with reference to his 14 (fourteen) years regularization of his
service, but also by taking into account the past temporary service. This
Court in Kabiram Rajbangshi (supra) also held in the same line. This
Court is of the view that the judgment in Abdul Hannan (supra) and
Kabiram Rajbangshi (supra) will not be applicable to the facts of this
case, inasmuch as, the services of the petitioners in the above cases had
been regularized. However, in the present case, the petitioner's service
was not regularized.
20. In the case of Talsibhai Dhanjibhai Patel (supra), the Apex Court
has upheld the decision of the High Court of Gujarat, wherein the High
Court directed the State to pay pensionary benefits to an employee who
had retired after rendering more than 30 years of service on ad hoc
basis. The Apex Court held that to take the services of an employee on
ad hoc basis for 30 years of continuous service and thereby deny him
pension on the ground that he is not entitled to pension/pensionary
benefit is unreasonable on the part of a welfare State.
The High Court of Gujarat had granted pension in terms of Rule 25
of the Gujarat Civil Services (Pension) Rules, 2002, which provided that
qualifying service for the purpose of pension would include all services
in any capacity, whether temporary or permanent. However, the service
was to be rendered in a pensionable establishment.
Page No.# 15/23
21. In the present case, the petitioner's temporary service was never
regularized or confirmed. Further, the "1969 Pension Rules" does not
provide for grant of pension to a temporary employee, who retires on
superannuation. It only provides for payment of gratuity to a temporary
employee who retires on superannuation, in terms of Rule 152 of the
1969 Pension Rules, provided the employee completes not less than 5
years of continuous service at the time of retirement.
22. Rule 108 (b) of the 1969 Pension Rules, on the other hand provides
for the payment of proportionate amount of pension to a regular
Government servant, who has been in service for not less than 10 years.
23. In the case of Dolly Borpujari (supra), the Division Bench of this
Court has held that the contract employee, who was promoted, without
incorporation of the words "on contract service" in the promotion order
and made to retire on reaching the age of superannuation, prescribed
for all other employees of the State of Assam, whose services were
regulated under the Rules framed under Article 309, was eligible to
receive superannuation pension, as the employee was serving under the
Government in a substantive and permanent capacity for 14 ½ years
and as such, disqualification under Rule 31 would not apply to the
service of the said employee. The Division Bench held that as the
employee's service was purely contractual, the only known mode of
putting an end to his service would be by the stipulation recorded in the
contract or by termination of the contract by an appropriate procedure.
However, as he had been made to retire on reaching the age of
Page No.# 16/23
superannuation, as prescribed for all other employees of the State of
Assam, whose services were regulated by Rules framed under Article
309 of the Constitution, the said contract employee's service would have
to be treated to be substantive and permanent. The Division Bench
further held that the contract employee having received pay from the
Government as per the scale prescribed by the ROP Rules, 1998 and
having received the benefits of increments, and having cross the
efficiency bar (EB), leave etc., besides being made to go on
superannuation after reaching retirement date, confers a substantive
status on the service rendered by the contract employee. The Division
Bench of this Court thus held that the contract employee was holding a
post on substantive and permanent basis and could not have been
disqualified to receive pension under Rule 31 of the "1969 Pension
Rules". Paragraph Nos. 13 & 14 of the Division Bench judgment in Dolly
Borpujari (supra) is reproduced below:-
"13. Next it has to be determined as to whether the appellant served in such
Government posts on substantive and permanent basis. On this aspect, it is
contended by the respondent that since the appellant was initially appointed on
contract basis, she cannot be said to be serving in a substantive or permanent
post. But should the initial appointment be the decisive factor in determining the
character of the appellant's service or whether we can consider the said service
to be on substantive basis as the appellant was made to superannuate from the
post, not because of any specific obligation arising out of the so called
contractual appointment, but because the appellant was compulsorily
superannuated after reaching the age of superannuation applicable for
Government servant. Having regard to the decision laid down by the Supreme
Court in P.L. Dhingra (supra) and Roshan Lal Tandon (supra) the appellant
though drafted into the service of the State by a contract such service later
transformed into status. At least some of the conditions of service including the
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cessation of service by Superannuation are determined by the statutory Rules
applicable for those who are posted on substantive and permanent service of
the Government.
14. While in service the appellant received pay from the Government as per the
Scale prescribed by the R.O.P. Rules, 1998, she also received the benefits of
increments, cross the EBs, leaves etc. and was made to go on superannuation
after reaching the retirement age and this significant characteristics of the
service of the appellant, in our view, confers a substantive status on the service
rendered by the appellant."
24. Rule 31 of the "1969 Pension Rules" provides that the service of an
officer does not qualify for pension unless it conforms to three
conditions i.e. (i) the service must be under the Government, (ii) the
employment must be substantive and permanent (iii) the service must
be paid by the Government. In the present case, the first and third
conditions are applicable to the petitioner. The question that needs to be
decided is as to whether the employment of the petitioner was
substantive and permanent. In the present case, the petitioner's service
was never regularized and neither was it confirmed.
25. Though the learned counsel for the respondent no.5 has taken a
stand that the petitioner was entitled to pension for the period
13.08.1987 to 31.08.2001 in terms of the letter dated 10.11.2017 issued
by the Senior Assistant Settlement Officer, Hailakandi, it is seen that
the letter dated 10.11.2017 does not state that the petitioner is entitled
to pension, but only entitled to pensionary benefits.
Page No.# 18/23
26. In the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi 3,
2006 4 SCC 1, the Apex Court has held at para 53 that there may be
cases where irregular appointments (not illegal appointments) of duly
qualified persons, in duly sanctioned posts, might have been made and
the employees have continued to work for 10 years or more, but without
intervention of the orders of the courts or tribunals. The Apex Court
held that the Union Government and the State Government and their
instrumentalities should take steps to regularize as a onetime measure,
the services of such irregularly appointed, who have worked for ten
years or more in duly sanctioned posts but not under cover of orders of
courts or of tribunals. The judgment in the above case was passed on
10.04.2006, while the petitioner herein retired on 29.06.2002, though
he should have retired on 31.08.2001. As such, the petitioner's case was
never considered by the authorities for regularization. However, there is
no averment made in the pleadings to show that the petitioner's
appointment was illegal.
27. In the case of Uttar Haryana Bilji Vitran Nigam Ltd. & Others vs.
Surji Devi (supra), the Apex Court has held that the wife of the
workcharged employee was not entitled to the grant of any family
pension, as per the provisions contained in the Punjab Civil Services
Rules. The Apex Court held that as the service of the work charged
employee was never regularized, though he had worked for 11 years and
had expired before he could get the benefit of regularization. However,
sentiments and sympathy alone cannot be a ground for taking a view
different from what is not permissible. Rule 3.12 of the Punjab Civil
Services Rules provides for payment of pension and enumerates 3
Page No.# 19/23
conditions for grant of pension. Rule 3.12 of the Punjab Civil Services
Rules is reproduced below:
"3.12 The service of a Government employee does not qualify for pension
unless it conforms to the following three conditions:
First.- The service must be under Government.
Second.- The employment must be substantive and permanent.
Third.- The service must be paid by Government."
In the present case, the petitioner has prayed for grant of pension.
However, it is noticed that for granting of pension, the qualification
provided in Rule 31 of the Assam Services Pension Rules, 1969, herein
referred to as "1969 Pension Rules", is similarly worded as Rule 3.12 of
the Punjab Civil Services Rules. Rule 31 of the "1969 Rules" states as
follows:
"Conditions to qualifying service.- The service of an officer employee
does not qualify for pension unless it conforms to the following three
conditions: -
Firstly, the service must be under Government ;
Secondly, the employment must be substantive and permanent;
Thirdly, the servant must be paid by Government:
Provided that the Governor may, even though either or both of conditions
(1) and (2) above are not fulfilled,-
(i) declare that any specified kind of service rendered in a non-
gazetted capacity shall qualify for pension, and
(ii) in individual cases and subject to such conditions as he may think
fit to impose in each case allow service rendered by an officer to
count for pension."
Page No.# 20/23
Para 16 and 17 of the judgment of the Apex Court in Uttar
Haryana Bilji Vitran Nigam Ltd. & Others vs. Surji Devi (supra)
states as follows:-
"16. The scheme relating to grant of Family Pension was
made under a statute. A person would be entitled to the benefit
thereof subject to the statutory interdicts. From a bare perusal of
the provisions contained in the Punjab Civil Services Rules,
Volume 2 vis-à-vis the Family Pension Scheme, it would be evident
that the respondent was not entitled to the grant of any family
pension. The husband of the respondent was a work-charged
employee. His services had never been regularized. It may be
unfortunate that he had worked for 11 years. He expired before
he could get the benefit of the regularization scheme but
sentiments and sympathy alone cannot be a ground for taking a
view different from what is permissible in law. [See Maruti Udyod
Ltd. v. Ram Lal, State of Bihar v. Amrendra Kumar Mishra, SBI v.
Mahatma Mishra, State of Karnataka v. Ameerbi and State of
M.P. v. Sanjay Kumar Pathak].
17. The statutory provisions, as noticed hereinbefore,
debar grant of family pension in favour of the family members as
the deceased employee was a work-charged employee and not a
permanent employee or temporary employee. The period during
which an employee worked as a work-charged employee could be
taken into consideration only when his services are regularized
and he becomes permanent and not otherwise."
28. In terms of the judgment of the Apex Court in Uttar Haryana Bilji
Vitran Nigam Ltd. & Others (supra), a work charged employee, whose
services has never been regularized cannot be granted pension, in view
Page No.# 21/23
of Rule 3.12 of the Punjab Civil Services Rules, which is akin to Rule 31
of the 1969 Pension Rules. Thus, though there is a bar for grant of
pension in respect of work charged employee, whose services has never
been regularized, the same does not appear to be the case for a
permanent or temporary employee. Though Rule 31 of the 1969 Pension
Rules requires that the employment must be substantive and
permanent, the petitioner having been made to serve continuously
against a sanctioned post on temporary basis from the year 1987 till her
retirement on superannuation pension on 29.06.2002, the same confers
a substantive status on the service rendered by the appellant, despite
the petitioner being a temporary Patowari, in terms of the Division
Bench judgment in Dolly Borpujari (supra).
It should also be noted that there is a difference between rule 3.12 of
the Punjab Civil Services Rules and Rule 31 of the 1969 Pension Rules,
inasmuch as, the proviso to Rule 31 of the 1969 Pension Rules provides
that the Governor may declare any specified kind of service rendered in
a non-gazetted capacity or in any individual case, subject to such
conditions as he may think fit to impose, to be qualified for pension,
even though either or both of condition Nos. 1 & 2 of Rule 31 of the
1969 Pension Rules are not fulfilled. Due to the difference in facts in
this case vis-a-vis the case of Uttar Haryana Bilji Vitran Nigam Ltd. &
Others (supra), this Court finds that the decision made in the above case
is not applicable to the facts in this case.
29. In the present case, the petitioner had been working in a regular
sanctioned post from 1966-1982 on temporary basis. Thereafter, his
Page No.# 22/23
service was terminated and he was re-appointed afresh on temporary
basis, after 5 years. The petitioner was made to retire on reaching the
age of superannuation 14 years later. Rule 152 of the "1969 Pension
Rules" provides that a temporary employee who retires on
superannuation, would be eligible for gratuity. This Rule 152 has not
been put to challenge and as per the said provision, the petitioner, who
is a temporary employee can only be given gratuity. However, by
following the judgment of the Division Bench of this Court in Dolly
Borpujari (supra), the petitioner's service can also be treated to have
been in a substantive capacity, inasmuch as, the petitioner's service has
been under the Government in a regular post and he has also been paid
by the Government till his retirement, as per the pay scale prescribed for
a Patowari. As such, proportionate pension can be payable to the
petitioner in terms of Rule 108 (b) of the 1969 Pension Rules, if the
Governor declares that the service of the petitioner shall qualify for
pension in terms of the proviso to Rule 31 of the 1969 Pension Rules.
However, there being a 5 year break prior to the petitioner's fresh
appointment as a Patowari on temporary basis, vide order dated
11.08.1997, the petitioner's service for grant of proportionate pension
will have to be counted only from 11.08.1997, till the date of his
retirement, i.e., 31.08.2001. Accordingly, this Court is of the view that
the disqualification under Rule 31 of the 1969 Pension Rules would not
be applicable to the case of the petitioner herein.
30. In view of the above reasons, this Court directs the State
respondents to issue a declaration, in terms of the proviso to Rule 31 of
the 1969 Pension Rules to render the service of the petitioner from
Page No.# 23/23
11.08.1987 to 31.08.2001 to qualify for payment of proportionate
pension. Thereafter, the pension will have to be paid in terms of Rule
108 (b) of the 1969 Pension Rules.
31. With regard to the question of recovery of Rs.48,069/- due to
overstay in service, it would be profitable to refer to the judgment of the
Apex Court in the case of Rafiq Masih (White Washer) (supra), wherein
the Apex Court has held that recovery of excess pay was impermissible
from Class-III and Class-IV employees. Further, there is nothing in the
pleadings of the respondents to show that the petitioner overstayed in
service, due to any misrepresentation or fraud on the part of the
petitioner. As the post of Patowari is a Class-III post, no recovery can be
affected due to the petitioner's overstay in service, especially when the
overstay in service and excess pay made cannot be attributed due to any
fraud or misrepresentation on the part of the petitioner. Accordingly, in
view of the above reasons, the petitioner would have to be given his full
gratuity amount of Rs. 48,069/-, which should be done within a period
of 1 (one) month from the date of receipt of a certified copy of this order.
The respondent no.5 is accordingly directed to pay the said amount of
Rs. 48,069/- to the petitioner.
32. The entire exercise for payment of pension to the petitioner should
be completed within a period of 4 months from the date of receipt of a
certified copy of this Order.
The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
