Telangana High Court

K.Muthaiah vs The District Audit Officer, on 14 November, 2022

Bench: Surepalli Nanda

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                 W.P. No. 14855 of 2018
Between:
K.Muthaiah
                                                 ... Petitioner
                           And

The District Audit Officer,
State Audit, Khammam and others
                                           ... Respondents

           JUDGMENT PRONOUNCED ON: 14.11.2022

    THE HON'BLE MRS JUSTICE SUREPALLI NANDA



1. Whether Reporters of Local newspapers     :    yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?        :    yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?       :    yes




                                   ____________________
                                    SUREPALLI NANDA, J
                                                            WP_14855_2018
                                 2                                  SN,J




      THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                       W.P. No. 14855 of 2018
% 14.11.2022

Between:

# K.Muthaiah
                                                  ..... Petitioner
      and
$ The District Audit Officer,
State Audit, Khammam and others
                                                .....Respondents


< Gist:
> Head Note:



! Counsel for the Petitioner : Mr S.Jagadish

^Counsel for the Respondents: G.P. for Services I




? Cases Referred:
1. 2013 (12) SCC 210
2. 2013 (12) SCC 210
                                                            WP_14855_2018
                               3                                    SN,J




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No. 14855 of 2018


ORDER:

Heard Sri S. Jagadish, the learned counsel for the

petitioner and the learned Government Pleader for

Services I.

2. This writ petition is filed to issue Writ, order or direction

more in the nature of Mandamus declaring the action of the

1st respondent in not considering the claim of the petitioner

for sanction of pension and pensionary benefits and returning

the pension proposals of the petitioner vide proceedings

Lr.D.A.O.S.A.No.523/A1/2015-16, dated 13.01.2016 of the 1st

respondent as illegal, arbitrary and contrary to law and

consequently direct the respondents to process the pension

proposals of the petitioner and issue the pension payment

order sanctioning the pension and pensionary benefits duly

computing the service from the date of appointment i.e.

22.06.1994 for the purpose of sanction of pension by holding

the petitioner falls under old pension scheme.

                                                                    WP_14855_2018
                                      4                                     SN,J




3)      The case of the petitioners, in brief, is as follows:


a)      The petitioner retired from service on attaining the age

of superannuation on 30.09.2015 as Office Subordinate. The

petitioner was initially appointed as full time attender-cum-

chowkadar, vide proceeding dated 22.06.1994 of the District

Collector and Chairman, District Bala Kendra, Khamma. The

petitioner while working in Bala Kendra, the Government

issued G.O.Ms.No.173, dated 17.12.2004 upgrading the Bala

Kendras of Nellore and Khammam District as Bala Bhavans.

b) The salaries of the employees of Bala Bhavan Kendrams

were being paid against A/c No.310/311 despite they are

regular Government Employees. Taking into consideration

the nature of services, the Director and Special Officer,

Jawahar Bal Bhavans submitted proposals stating that the

staff working in the District Bal Bhavans are regular

Government Employees and the salaries are required to be

paid through the account under the Head 010 - Salaries.

Basing on the said proposal and request made by the

employees of Bal Bhavan, the Government issued WP_14855_2018 5 SN,J

G.O.Ms.No.18, dated 01.03.2007 for payment of salaries from

detailed Head 010- salaries.

c) After retirement the petitioner submitted pension

papers. The 1st respondent without taking into consideration

the factual and legal aspects, returned the pension papers

assigning a reason that the employees appointed on or after

01.09.2004 in the scale post are not entitled for authorization

of pension as per G.O.Ms.No.655, dated 22.09.2004, which

was not applicable to the petitioner.

d) One K.Eswara Rao, who was working as Vocal Instructor

and was appointed in the year 1986 on similar lines like

petitioner was sanctioned with pension vide proceedings

dated 07.07.2014 without raising any dispute. Therefore, the

petitioner is also entitled for the relief as prayed for.

4. The counter filed by the respondents, in brief, is

as follows:

a) The petitioner, Office Subordinate was appointed as

Attender cum Chowkidar on 07.07.1994 in the contingent

post and he was continued in the post up to 17.12.2004 and WP_14855_2018 6 SN,J

his services were regularized in the time scale of Rs.2550-

4550 and pay has been fixed for Rs.2550/- vide proceedings

of the District Collector, Khammam dated 17.10.2005 and

entry made in the service register at page No.7. According to

G.O.Ms.No.655, dated 22.09.2004, those who are appointed

on or after 01.09.2004 in the said post, are not entitled for

authorization of any pensionary benefits. Therefore, the writ

petition is liable to be dismissed.

PERUSED THE RECORD :

5. The order of the appointment of Petitioner as

Attender-cum-Chowkidar (Full Time) dt. 22.06.1994

issued by the 3rd Respondent is as under :

Sri K.Muthalah, S/o Pitchaiah, Nizampeta, Khammam is appointed as full time Attender-cum-Chowkidar, Dist. Bala Kendra Khammam on consolidated pay of Rs. 400/- per month. He has to attend the duties of Attender from 4.30 p.m to 6.00 pm and Chowkidar at night.

The incumbent is hereby informed that this appointment is purely temporary and liable for termination at any time without any notice or without assigning any reasons therefore.

The incumbent is hereby instructed to report to the Dist. Educational Officer, Khammam on or before, 08.07.1994 without fail, failing which his appointment will be deemed to have been cancelled. He should abide by the rules and conditions stipulated in the order.

                                                                       WP_14855_2018
                                   7                                           SN,J




          The   receipt       of       the     proceedings   should          be
     acknowledged.


DISCUSSION, ANALYSIS & CONCLUSION :



6.   A      bare    perusal    of       the        proceedings    dated

22.06.1994          appointing           the        Petitioner          vide

RC.No.7362/JBK/B6/94(4)                 extracted      above     clearly

indicates    that    the     Petitioner         was     appointed            as

Attender-cum-Chowkidar (Full time) at District Bala

Kendra, Khammam in pursuance to the interview held

on 21.06.1994 at the Chamber of the District Collector

and the Petitioner was further called upon to report for

duty on or before 08.07.1994 without fail, and further

that the said appointment was in pursuance to a

selection process of sponsoring from the Employment

Exchange and after facing the interview in the

Chambers of the District Collector on 21.06.1994.

7. The impugned proceedings returning the pension

papers and service register of the Petitioner herein is

as under :

The Pension Papers and Service Register of Sri Koppula Muthaiah, Attender cum Chowkidar received through WP_14855_2018 8 SN,J

the reference cited, has been verified and returned herewith to rectify the defects as noted below and re-transmitted for authorization.

The incumbent was appointed as Attendar cum Chowkidar on 07.07.1994 in the contingent post and he was continued in the past up to 16.12 2004 and his service was regularized in the time scale of 2550-4550 and pay loved of Rs.2550/-. According to G.O.Ms No.655 dt.22.09.2004 who are appointed on are after 01.09.2004 in the scale post. They are not entitled authorization of any pension.

The receipt of the Pension Papers and Service Register and may be acknowledged.

8. A bare perusal of the impugned proceedings dated

13.01.2016 reveals that applying G.O.Ms.No.655, dated

22.09.2004 it is observed that all appointed on or after

01.09.2004 in the Scale Post are not entitled for

authorization of any pension and accordingly

Petitioner's pension proposals have been returned.

9. A bare perusal of G.O.Ms.No.173 dt. 17.12.2004

issued by the Principal Secretary to Government,

clearly indicates that Bal Kendras at Nellore and

Khammam have been upgraded to Bal Bhavan (Full

Time). Further it is very clearly observed in the said

proceedings dt. 17.12.2004 that Bal Kendra, Khammam

has been functioning from 1980 and that Petitioner's WP_14855_2018 9 SN,J

services are being utilized against the sanctioned

vacancy on full time basis.

10. Counter affidavit filed by the Respondents very

clearly admits the fact that the Petitioner was

appointed as Attender-cum-Chowkidar on 07.07.1994

and he was continued in the said post up to 17.12.2004

and further his services were regularized in the time

scale of Rs.2550/- to 4550/- and pay has been fixed for

Rs.2550/- vide proceedings of the District Collector,

Khammam, dated 17.10.2005 and further as per

G.O.Ms.No.655, dated 22.09.2004 those who are

appointed on or after 01.09.2004 in the said post are

not entitled for authorization of any pensionary

benefits.

11. G.O.Ms.No.655, dated 22.09.2004 introduced

contributory pension scheme w.e.f. 01.09.2004 and

Clause (i) of the said G.O. holds that it is mandatory for

all the new employees who are recruited on or after

01.09.2004 to become members of the scheme and

further each employee will pay a monthly contribution WP_14855_2018 10 SN,J

of 10% of the basic pay and D.A. from his salary to the

contributory pension scheme.

12. It is relevant to look into Rule 13 of A.P. Revised

Pension Rules which reads as follows :

Rule 13 of the Andhra Pradesh Revised Pension Rules, 1980 (for short, 'the Rules') deal with the qualifying service of a temporary employee for the purpose of payment of pension. Rule 13 reads as under:

"13. Commencement of qualifying service: subject to the provisions of the rules, qualifying service of a Government Servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity".

13. A reading of the above Rule would clearly show

that qualifying service of a Government servant

commences from the date he takes charge of the post

to which he is first appointed either substantively or in

an officiating or temporary capacity. A bare perusal of

the order of the appointment dated 22.06.1994 of the

Petitioner herein clearly indicates that the Petitioner

has been appointed as Attender-cum-Chowkidar on

07.07.1994 after undergoing due selection process, in

substantive vacancy on full time basis. Therefore, as

per the above said provision Petitioner's service has to WP_14855_2018 11 SN,J

be counted from the date on which he joined in the

service in pursuance to the appointment made by the

3rd Respondent herein dated 22.06.1994. Therefore, the

plea of the Respondent herein that the Petitioner will

only come under the contributory pensionary scheme

but not on a regular pension scheme is totally

misconceived, since admittedly as borne on record the

petitioner has been appointed on 22.06.1994 as full

time Attender-cum-Chowkidar. The petitioner's services

were regularized vide District Collector, Khammam

proceedings dated 17.10.2005 As borne on record the

Petitioner has been in continuous service w.e.f.

22.06.1994 i.e., from the date of his appointment in a

substantive vacancy. The plea in the impugned order of

the 1st respondent herein dated 13.01.2016 that the

Petitioner was appointed on or after 01.09.2004 in the

scale post and therefore the Petitioner is not entitled

for authorization of any pension is totally misconceived

since the Petitioner as borne on record was not

appointed on or after 01.09.2004 but the Petitioner was

appointed on 22.06.1994.

                                                              WP_14855_2018
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14. As per Rule 13 the pay scale is not the basis for

counting of qualifying service. The Petitioner in the

present case admittedly has been working continuously

since 22.06.1994 and he has completed more than 2

decades of service under the Respondents and by

taking the plea that the Petitioner is appointed after

01.09.2004 in the scale post the 1st Respondent herein

is illegally depriving the Petitioner of his benefit to

draw pensionary benefits. Even G.O.Ms.No.655 dt.

01.09.2004 very clearly stipulates that it applies to all

the new employees who are recruited on or after

01.09.2004.

15. A Division Bench of this Court in

W.P.No.8201/2016 dated 17.03.2016 in a Writ Petition

preferred by the Government aggrieved against the

order dated 12.12.2017 passed in O.A.No.654 of 2016

dealing with an identical situation as in the present

case observed as follows :

Respondent No.1 was appointed temporarily as Junior Auditor in the office of the District Audit Officer, State Audit, Anantapur on daily wage basis, after he was sponsored by the Employment Exchange under WP_14855_2018 13 SN,J

proceedings Rc.No.586/A1/1986, dated 12.07.1986.

Thereafter, he was absorbed as Junior Auditor against regular vacancy on 04.08.1990. His services were regularized in the said cadre and he was further promoted to the post of Senior Auditor and has retired from service on attaining the age of superannuation on 31.01.2011. Even before the retirement, he made a representation on 20.01.2011 to the petitioners, requesting them to count the temporary service rendered by him in the cadre of Junior Auditor prior to his absorption. As no order was passed on his representation, he has approached the Tribunal by way of the abovementioned O.A. On consideration of the rival pleas of the parties, the Tribunal has allowed the O.A by the impugned order. Feeling aggrieved thereby, the petitioners filed this writ petition.

Rules 13 and 14 of the Andhra Pradesh Revised Pension Rules, 1980 (for short, 'the Rules') deal with the qualifying service of a temporary employee for the purpose of payment of pension. These Rules read as under:

"13. Commencement of qualifying service: Subject to the provisions of the rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:

Provided that -

(a) in the case of a Government servant in a Class IV service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th November, 1960, service rendered before attaining the age of sixteen years shall not count for any purpose; and

(b) in the case of a Government servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity.

14. Conditions subject to which service qualifies: (1) The service of a Government servant shall not qualify unless his duties and pay are regulated by the WP_14855_2018 14 SN,J

Government, or under conditions determined by the Government.

(2) For the purposes of sub-rule (1), the expression service means service under the Government and paid by the Government from the Consolidated Fund of the State but does not include service in a non- pensionable establishment unless such service is treated as qualifying service by the Government."

From the above reproduced Rules, it is clear that qualifying service of a Government servant commences from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity, subject to the exceptions contained in clauses (a) and (b) of Rule 13 of the Rules. A temporary employee shall further satisfy the conditions stipulated in Rule 14 of the Rules for counting his temporary service for pensionary benefits. Under this Rule, unless his duties and pay are regulated by the Government or under the conditions determined by the Government, such service was not qualified for pension. The meaning of the word "service" under sub-Rule (1) of Rule 14 of the Rules is explained in sub-Rule (2) thereof, as per which the service is under the Government and the salary is paid by the Government from the Consolidated Fund of the State, but the same does not include the service of a non-pensionable establishment, unless such service is treated as qualifying service by the Government.

In the case on hand, it is not in dispute that the duties of respondent No.1 and his pay were regulated by the Government. Further it is also not in dispute that respondent No.1 was paid by the Government from the Consolidated Fund of the State and that the post is a pensionable one. Therefore, the Tribunal has rightly come to the conclusion that temporary service of respondent No.1 shall be counted as qualifying service for the purpose of pension under the abovementioned Rules.

For the above-mentioned reasons, we do not find any merit in this writ petition and the same is, accordingly, dismissed.

                                                           WP_14855_2018
                             15                                    SN,J

16. The learned counsel for the petitioner brings on

record the judgment dated 02.05.2018 passed in

W.P.Nos.33936 of 2011 and batch and contends that

Petitioner is entitled for the relief as prayed for by the

Petitioner herein since the Petitioner is appointed on a

fixed pay and since NMRs are getting pension reckoning

their services from the date of completion of 5 years in

service on or before 25.11.1993 for the purpose of their

pension and pensionary benefits. Placing reliance on

the aforesaid judgment learned counsel for the

petitioner pleads that since the petitioner is appointed

on a fixed pay and since the petitioner completed more

than two decades in service, the petitioner is entitled

for grant of relief as prayed for.

17. In a judgement of the Apex Court in the matter of

State of Jharkhand and others v. Jitendra Kumar

Srivastava and another reported in 2013 (12) SCC 210

it was held that pension and gratuity are not bounty

but property within the meaning of Article 300-A of the WP_14855_2018 16 SN,J

Constitution of India. Paragraphs 16 and 17 of the

report state as under:

"16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property". Article 300-A of the Constitution of India reads as under:

"300-A. Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

17. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."

WP_14855_2018 17 SN,J

18. This Court opines that the Petitioner cannot be

deprived of his constitutional right for pension except

by authority of law since pension is not a bounty but

property within the meaning of Article 300-A of the

Constitution of India. Taking into consideration the

aforesaid facts and circumstances and Rule 13 and 14

of the Andhra Pradesh Revised Pension Rules, 1980

(for short the Rules) which deal with the qualifying

service of a temporary employee for the purpose of

payment of pension and the law laid down by the Apex

Court in the matter of State of Jharkhand and others

v. Jitendra Kumar Srivastava and another reported

in 2013 (12) SCC 210 and the law laid down by the

Division Bench judgment of this Hon'ble Court in WP

No.82016/2016 in State of Andhra Pradesh, Rep. by its

Secretary, Finance & Planning and M.Raja Rao, S/o.