Hans Raj Pandey vs State of U.P. and others

V. K. Shukla, J.—Petitioner, Hans Raj Pandey, has approached this Court questioning the validity of the decision dated 1.10.2003 passed respondent 3 District Basic Education Officer, Basti filed as Annexure4 to the writ petition by means of which petitioner''s claim for being accorded pension has been rejected on the ground that petitioner does not fulfil the requisite qualifying service for the purposes of grant of pension.

Brief background of the case is that petitioner was appointed as Class IV employee at Purva Madhyamik Vidyalaya, Gidhar, Raudhauli, District Basti on temporary basis. Institution in question wherein petitioner was appointed was run and managed by Basic Shiksha Parishad, U.P. at Allahabad. Petitioner after his appointment on 6.2.1970 in the above noted institution was transferred from Purva Madhyamik Vidyalaya, Gidhar, Raudhauli, District Basti to Pruva Madhyamik Vidyalaya, Paida Block Rudhauli District Basti and ultimately attained the age of superannuation after attaining the age of superannuation. Petitioner submits that Pension papers were submitted to District Basic Education Officer, Basti. Claim of petitioner for grant of pension was not being adverted to, in this background petitioner filed Civil Misc. Writ Petition No. 14799 of 2003 (Hans Raj Pandey v. State of U.P. and others). This Court on 7.4.2003 asked the District Basic Education Officer to consider the claim of the petitioner and thereafter impugned order in question has been passed rejecting the claim of the petitioner by mentioning that in terms of Government Order 1.7.1989 and Rule 46 of U.P. State Aided Education Institution Employees Provided Fund, Insurance, and Pension Rules, 1964 prerequisite terms and conditions of qualifying service is not fulfilled. At this juncture present writ petition has been filed.

Counteraffidavit has been filed and therein it has been contended that petitioner has been engaged as Class IV employee on fixed pay at Purva Madhyamic Vidayalay, Gidhar, Raudauli, District Basti on 6.2.1970 without there being any sanctioned post. It has also been contended that when sanctioned post of Class IV employee fell vacant the petitioner was adjusted against the said post on 16.10.1996. Categorical statement of fact has been mentioned therein that services rendered by the petitioner with effect from 6.2.1970 to 15.10.1996 cannot be counted for determination of pension as he was engaged without any sanctioned post and his appointment was not made against substantive vacancy. It has been contended that petitioner is not at all entitled for pension as he does not fulfil prescribed minimum qualifying service as prescribed for payment of pension under the U.P. Basic Education Employees Rules, 1973. In this background it has been stated that claim of the petitioner is not acceptable and further reference has also been given that incumbent who has been appointed on fixed pay did not fall within the category of regular employee and as such benefit is not extendable.

Rejoinderaffidavit has been filed and therein it has been sought to contended that petitioner has continued in service for more than 10 years and as such view which has been sought to be taken is unsustainable and further it has been reiterated that on 15.10.1996 his services have been regularized and services rendered from 6.2.1970 to 15.10.1996 cannot be excluded for the purposes of qualifying service for payment of retiral benefits. It has also been contended that claim of the petitioner cannot be rejected on unsustainable ground as in the past at no point of time any objection had ever been raised that no post was there and no post has been sanctioned.

After pleadings mentioned above have been exchanged present writ petition has been taken up with the consent of the parties for final hearing and disposal.

Sri R. N. Pandey, Advocate contended with vehemence that in the present case long length of service cannot be ignored and once petitioner has completed 32 years of service then in all eventuality he was entitled for pension and as such view which has been taken is unsustainable view.

Sri K. Shahi, Advocate, on the other hand contended that petitioner''s initial appointment has been made on fixed pay and subsequently his services have been regularized and from the date of the regularization till the date of attaining the age of superannuation requisite qualifying services had not been acquired by the petitioner and as such claim of petitioner is not acceptable.

After respective arguments have been advanced fact on which there is no dispute that petitioner has been appointed as Class IV employee on 6.2.1970 and since thereafter he functioned with the respondents without there being any break till he attained the age of superannuation. Petitioner after being appointed on 6.2.1970 has been transferred to another Purva Madhyamic Vidayalay in district Basti. Petitioner had been accorded substantive status of Class IV employee after being adjusted on 16.10.1996 and thereafter has attained the age of superannuation on 30.6.2002. Petitioner claims that in term of Government Order dated 1.7.1989 he is entitled for pension and pension has been illegally denied to him and his services was entitled to be computed right from the date when he was appointed.

Government Order dated 1st July, 1989 has been subject matter of consideration before this Court in the case of Shakuntala @ Brahmo Devi (Smt.) v. Director of Pension, reported in (2002) 3 UPLBEC 2521 and thereafter view has been taken that said Government Order dated 1st July, 1989 does not contemplate ten years substantive service, rather benefit of the said Government is extended to temporary Government Servant and the word "regular" used in the Government Order dated 1st July, 1989 has not been used as specifying he capacity or status of its holder rather the words "regular service" has been used to denote and specify the nature of service rendered. Relevant paragraphs 11, 12, 13 and 14 is being quoted below:

"11. From the aforesaid guidelines it is clear that the said guidelines are not independent provision in force but the said guidelines have been issued for guidance of pension sanctioning authority. Thus, the consequence of the Government Order dated 1.7.1989 has to be looked into while deciding as to whether the temporary Government Servant compulsory retired is entitled or not entitled for the pensionary benefits. As observed above the aforesaid Government Order was issued with intent and object of Government extending pensionary benefits to temporary Government Servant who have completed ten years of regular service. The provisions of Rule 56(c) of Fundamental Rules has clearly provided that notwithstanding anything contained in clause (a) or clause (b) the Appointing Authority may at any time, by notice to any Government Servant whether permanent or temporary without assigning any reason, require him to retire after he attains the age of fifty years.............Thus, the provisions of Fundamental Rules 56 are applicable both on permanent and temporary employees as noted above, subrule (e) of Rule 56 mandates grant of retiring pension to every Government Servant who retires or is required or allowed to retire under this rule. The opening line of Rule 56 (e) are of significance which provides.............retiring pension shall payable. Thus, the intendment of Rule 56(e) is to provide retirement pension to every Government Servant who retires or is required to retire under Rule 56. Thus, the intendment of statutory Rules 56(e) is to extend benefit of retireing pension to both category of person, i.e, persons compulsory retired or persons voluntary retired. From the above intendment of rule it is clear that no distinction or discrimination has been mentioned with regard to payment of retiring pension to persons voluntary retired or compulsory retired. This, by Government Order dated 1.7.1989 the temporary Government Servant compulsory retired cannot be excluded from benefits of retiring pension. When the statutory Rule i.e. Rule 56(e) does not maintain any distinction with regard to payment of retiring pension to person compulsory retired and voluntary retired, no such classification can be created by a Government Order, which is an executive order. The object of the Government Order as noted above was to extend pensionary benefits to temporary Government Servants who have rendered ten years regular service. Thus, the person compulsory retired cannot be excluded from the pensionary benefits and if it is accepted that the Government Order dated 1.7.1989 creates such classification then the said classification will be arbitrary and unreasonable. It is thus, held that the benefit of Government Order dated 1.7.1989 is also available to the temporary Government Servant who are compulsory retired. There is no rational basis for any such classification nor there can be any valid object for such classification.

Learned Standing Counsel Sri Ajay Bhanot has laid much emphasis on the words as used in the Government Order dated 1.7.1989. The submission of the learned Standing Counsel was that the petitioner was only temporary Government Servant hence he cannot be said to have rendered regular ten years service hence he is not entitled for the benefit of Government Order dated 1.7.1989. The words used in the Government Order dated 1.7.1989 means completion of ten years regular service. Words ''regular service'' has not been defined in the Government Order. From a reading of the Government Order it is clear that the words "ten years regular service" has been referred to the service rendered and not to the status of employee, an employee substantively appointed and permanent is automatically entitled for pension. The Government Order dated 1.7.1989 does not contemplate ten years substantive service. The Words "regular service" used in the Government is not anonymous to substantive service. Admittedly the benefit by Government is to be extended to temporary Government Servant. The temporary Government Servant cannot be said to have ubstantive or regular service. Thus, the words "regular service" used in the Government Order dated 1.7.1989 has not been used as specifying he capacity or status of its holder rather the words "regular service" has been used to denote and specify the nature of service rendered. The emphasis is that service should be regular. While defining the word "regular" the Apex Court in AIR 1980 Supreme Court 1464, Mrs. Raj Kanta v. The Financial Commissioner, Punjab and another, has held in Paragraph 10 as under:

"To begin with the word "regular" is derived from the word "regular" which means ''rule'' and its first and legitimate signification according to Webster is conformable to a rule or agreeable to an established rule law or principle to a prescribed mode. In words and Phrases (Vol. 36A, P. 241) the words regular has been defined as steady or uniform in course practice or occurrence etc. and implies conformity to a rule standard or pattern. It is further stated in the said Book that ''regular'' means steady or uniform in course, practice, or occurrence not subject to unexplained or irrational variation. The word ''regular'' means methodically, in due order. Similarly, Webster''s New Words Dictionary defines ''regular'' as ''consistent or habitual in action not changing, uniform conforming to a standard or to a generally accepted rule or mode of conduct."

From the above passage of the Apex Court''s judgment it is clear that service of a temporary employee should be in regular manner, methodically due order.

Government Order dated 1.7.1989 meant ten years of temporary Government Servant should be regular in nature meaning thereby that if the temporary Government Servant has performed his duties irregularly i.e., with gaps of years his service may not be treated to be regular. Thus, the contention of the learned Standing Counsel that the words "regular service" used in the Government Order means substantive service or service rendered by an employee in regular capacity cannot be accepted. Sri Som Dutt Sharma had admittedly rendered 34 years service and District Panchayat Raj Officer who is Appointing Authority has already recommended for grant of pensionary benefits by holding that his entire 34 years'' service qualify for pension. In view of the above Sri Sharma had completed ten years of regular service as contemplated in the Government Order dated 1.7.1989"

At this juncture Rules 43, 44, 45 and 46 is also being looked:

Rule 43 deals with the way and manner in which pension is to be computed. Rule 44(a) provides that pension shall not be admissible till incumbent does not hold substantive post. Rule 44 (b) provides that in case any incumbent after putting in continuous temporary service or by way of stop gap arrangement uninterruptedly is confirmed on the said post or any other post then said services is to be treated as qualified service. Rule 45 deals with the authority of the pension authority to accord relaxation in qualifying service for period of six months. Rule 46 deals with condition that only when qualifying service is completed then only incumbent is entitled to pension.

On the touch stone of the provision quoted above fact of the present case are being looked into. It is not disputed that petitioner''s appointment has been made on purely temporary basis. Initial appointment of the petitioner was made on a fixed pay and ultimately petitioner was regularized on 15.10.1996 and thereafter superannuated on 30.6.2002. Here in term of Government Order dated 1.7.1989 qualifying service of an employee for pension is ten years regular service. Petitioner has to his credit 10 years regular service as per dictum of this Court as quoted above. Apart from this petitioner fulfills prerequisite term and condition of the Rules also as petitioner holds substantive post after continuing in temporary capacity and has been confirmed against the sanctioned post. Long length of Service put in by petitioner cannot be permitted to go in vain. Division Bench of this Court in the case of Board of Revenue and others v. Prasidh Narain Upadhyay, reported in 2006(1) ESC 611 (All) (DB), has taken the view that merely because an incumbent has neither been regularized in service nor confirmed, same would not get defeat the right to pension which flows from law and also from period of 37 years continuous service. Relevant paragraphs 10 to 16 is being extracted below:

"10. Fundamental Rule 56 provides for retiring of a Government Servant on attaining the age of 58 years or 60 years as the case may be. It is not disputed that in the present case, the age of superannuation of the petitionerrespondent was 60 years. Clause (e) of Fundamental Rule 56 reads as under:

(e) "A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant Rules to every Government Servant who retires or is required or allowed to retire under this rule:

Provided that where a Government Servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less."

Articles 465 and 465A provides as under:

"465. (1) A retiring pension is granted to a Government Servant who is permitted to retire after completing qualifying service for 25 years or on attaining the age of 50 years.

(2) A retiring pension is also granted to a Government Servant who is required by Government to retire after attaining the age of 50 years.

465A. For officers mentioned in Article 349A, the rule for the grant of retiring pension is as follows:

(1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years, or on attaining the age of 50 years.

(2) A retiring pension is also granted to an officer who is required by Government to retire after attaining the age of 50 years."

The term "qualifying service" is defined in Section 1, Chapter 16 of Article 361 of the Civil Service Regulations, which provided that the service of an officer does not qualify for pension unless it conforms to the following three conditions:

(A) The service must be under Government.

(B) The employment must be substantive and permanent.

(C) The service must be paid by Government.

In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B i.e., lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P. Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government Servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are preconstitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. ConditionsB (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is in operative.

A similar controversy came up for consideration earlier before this Court in the case of Dr. Hari Shankar Ashopa v. State of U.P. and others, reported in 1989 ACJ 337: (1989) 1 UPLBEC 501. After referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations, this Court observed as under:

"Clause (e) of Rule 56 unequivocally recognizes, declares and guarantees retiring pension to every Government Servant who retires on attaining the age of superannuation; or who is prematurely retired or who retires voluntarily. To be precise, every Government Servant (whether permanent or temporary) who retires under clause (a) or clause (b), or who is required to retire, or who is allowed to retire under clause (c) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied."

In this view of the matter, the contention of the appellants that since the petitionerrespondent was not a permanent confirmed employee and hence not entitled for pension, is clearly misconceived and is rejected.

Learned Counsel for the appellants further submitted that since in the service book, the petitionerrespondent was also shown as Seasonal Collection Peon and, therefore, the mention of word "temporary" as his initial appointment will not make any difference. We do not agree. The contention of the appellants that the petitionerrespondent was a Seasonal Collection Peon and his engagement and post was extended from time to time by the Commissioner is totally unsubstantiated, as nothing has been brought on record to substantiate this plea. Even otherwise the continuous working of the petitionerrespondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitionerrespondent flowing by rendering service for such a long service, cannot be brushed aside lightly."

Said Division Bench judgment has been followed in the case of Smt. Heeramuni Devi v. State of U.P. and others, reported in (2006) 3 UPLBEC 2209, wherein also as case was covered by the aforesaid Division Bench judgment, directives have been issued for pension.

Sri. K. Shahi, has placed reliance on the judgment of Rajendra Singh v. AG.LZ.P., 2002 (3) ESC 1, that only those temporary and regular employee, who have been appointed against post and has completed ten years service is entitled to pension under law. In the present case, this fact has not been disputed that nature of appointment of petitioner was temporary in nature but at no point of time of his continuance in service, petitioner was ever apprised, that his appointment, initially had not been made against any post. Petitioner was appointed in on institution and thereafter he was transferred to another institution, and when claim of pension has been raised, said plea has been set up, which cannot be of any consequence, in the fact of present case. Hon''ble Apex Court in the case of B. G. Kajerkar v. Administrator, JT 1993 (Supp.) SC 43, wherein employee was not confirmed, took the view that there was nothing adverse against him, at that point of time he was entitled to be confirmed, and entitled for all benefits, keeping in view long length of service. Fact of the present case is also covered by the aforesaid Division Bench judgment.

Consequently, order dated 1.10.2003 passed respondent 3 District Basic Education Officer, Basti filed as Annexure4 is hereby quashed and set aside. Respondents are directed to proceed to consider the claim of the petitioner for grant of pension within three months from the date of presentation of certified copy of this order.

With the above observations/directions present writ petition is allowed. Petition allowed.