Ram Sajiwan Maurya vs State of U.P.and Others

Shabihur Hasnain, J.—Heard Sri S.P. Singh ''Somvanshi'', learned counsel for the petitioner and the learned standing counsel for the opposite parties.

The petitioner is aggrieved by inaction of the opposite parties, whereby he has not been granted pensionary benefits after his retirement. The opposite parties have not taken decision about him on the ground that he was not a regular employee in the department. The case of the petitioner is that he was appointed on class IV post as Anuchar on 1.11.1995 in the junior basic school, Idilpur, District Pratapgarh. The petitioner continuously worked in this school from 1.11.1955 to 26.1.1986. The petitioner was transferred to Senior Basic School, Itauri Block Laxmanpur from junior basic school, Idilpur block Sangipur from 21.1.86. The petitioner after joining at Itauri continuously worked till the date of his retirement on 31.10.1999. However, retirement order was issued to the petitioner on 7.9.1999, pursuant to which he was actually retired on 31.10.1999. The petitioner submits that during his entire career, his service record was absolutely unblemished. The petitioner submitted all the relevant documents required for postretiral benefits. But the petitioner was only given provident fund and group insurance. He was told that pension shall be allowed after its sanction from the pension directorate. The petitioner did not receive any pension and then he started writing letters/representation to the opposite parties. Most of them, were never replied.

In the year 2003, on one of the representations filed by the petitioner on 1.10.03, the Basic Shiksha Adhikari, District Pratapgarh sought report from the office. A copy of the said report has been annexed by the petitioner as Annexure7 to this writ petition. He submits that for the first time, he came to know that since he has not completed ten years of services as confirmed employee, therefore, pension cannot be given to him. The petitioner has completed forty five years of long continuous service and finally the petitioner''s services were regularized in the year 1996 but unfortunately his case has not been considered by the opposite parties for payment of any pension. In this regard, the petitioner has annexed one G.O. dated 1.7.1989, in which it has been clearly mentioned that those temporary employees who have completed ten years of continuous services, will also be entitled for pension. The petitioner again made a representation on 22.4.04 mentioning therein that he has put in forty four years of services and his case may be considered in the light of the aforesaid G.O. dated 1.7.1989.

Opposite party No.2 rejected the claim of the petitioner for grant of pensionary benefits. The petitioner has, by way of amendment application dated 6.8.07 challenged this rejection order of the representation dated 22.4.04 on 18.10.2004. In para 18C of the amended writ petition, it has been stated that the petitioner was appointed on the post of Anuchar on the fixed salary of Rs.20/ per month on Nov. 1955 and his salary was enhanced in Oct. 1957 to Rs.25/ and in Nov. 1959 to Rs.27.50, April 1960 to Rs.33/, August 1962 to Rs.40/, May 1973 to Rs.46/ and in March, the petitioner got the revised pay of Rs.263/ (salary Rs.165/ + Dearness Allowance Rs.14/ and Addl. Dearness Allowance Rs.94/ after cutting Rs.10/ of Insurance) and thereafter the petitioner continuously got the salary and dearness allowance and his services were regularized on 22.2.1996 and thus, it cannot be said that the petitioner was appointed on the post of Waterman on the fixed salary and got the fixed salary till his regularization. The claim of the petitioner is that the representation of the petitioner was rejected on wrong facts and misrepresentation of the judgment passed by this Court. He has placed reliance on the case of Ram Pratap v. State of U.P., reported in 2006(2) U.P.L.B.E.S.R. 492 (Alld.), in which this Court discussed the words mentioned in G.O. dated 1.7.89 and held that regular service would mean continuous service.

A counteraffidavit has also been filed in this case on behalf of opposite party No.2 by one Sri Brijesh Mishra, who is posted as Basic Shiksha Adhikari, District Pratapgarh, U.P. In this counteraffidavit, it has been said in para 4 that although the petitioner was appointed on 1.11.1955 but that was not an appointment on sanctioned post. He came on sanctioned post in the regular pay scale only vide order dated (No.) 2328/9596 dated 24.8.1995 passed by Secretary, Basic Shiksha, U.P. and from the date of regularization i.e. 22.2.1996 till date of superannuation on 31.10.1999, the petitioner''s regular service comes out three years eight months and nine days only. Since the petitioner has not completed ten years, he is not entitled for pension.

The petitioner has further placed reliance on the case of Board of Revenue and others v. Parsidh Narain Upadhya (special appeal No.743 of 05 decided on 2.12.05) reported in 2006(1) ESC 611 (All.) (DB). In this case a Division Bench of this Court decided the special appeal rejecting the contention of the State Govt. against the judgment of learned single judge, dwho had allowed the pensionary benefits to the respondent in the special appeal, who had completed thirty seven years of continuous service but he was not regularized. Their Lordships while dismissing the special appeal preferred by the Board of Revenue and others, held as under;

�6. Thus, for the only reason of non issuing of formal order of confirmation or regularization by the appellants can it be said that though the respondent has rendered 37 years of continuous service with the appellants, yet is not entitled for pensionary benefits.

Now it is too late in the day to say that the pension is not a right. As long back as in the year 1971, in the case of Deokinandan Prasad v. State of Bihar and others, AIR 1971 SC 1049 the Hon''ble Apex Court in para32 of the judgment held as under:

�But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant.�

�8. Again the Hon''ble Apex Court in the case of D.S. Nakara and others v. Union of India, AIR 1983 SC 130 folllowing the aforesaid judgment, held as under:

�In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from undeserved ant was recognized and as a first steps pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitute in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto the master the best, expecting him to look after him in the fall of the life. A retirement system therefore, exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, every one who qualifies for normal retirement receives the same amount.� (see Retirement Systems for Public Employees by Bleekney, page 33) (Para 22)

�Pension to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past.� (para 28)

�From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socioeconomic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during the last three years of service reduced to ten months under liberalized pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.� (Para 31)

Article 424 Chapter 18 of the Civil Service Regulations provides the following kinds of pension admissible to a Government servant (a) compensation pension (b) invalid pension (c) superannuation pensions (d) retiring pensions.

Fundamental Rules 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 Rules 56 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.�

Article 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 provides 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.

�13. 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 employee 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 Rules 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus, is inoperative.�

�14. A similar controversy came up for consideration earlier before this Court in the case of Dr. Hari Shanker Ashopa v. State of U.P. and others, 1989 ACJ 337. 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, ofcourse, the first and third conditions stipulated in Article 361 of the Regulations are satisfied.�

�15. 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.�

In the present case, the petitioner was appointed on class IV post on 1.11.1955 and continuously worked till the date of his retirement on 31.10.1999, during this forty five years of his tenure, his entire service remained unblemished. He was paid his provident fund and group insurance but his pension and other pensionary benefits have not been paid on the ground that since he has not completed ten years of service as confirmed employee, therefore, pension cannot be given to him. This cannot be done as held in the case reported in Board Revenue and others v. Parsidh Narain Upadhya (special appeal No.743 of 2005 decided on 2.12.2005) (supra), in which Their Lordships, relying upon the decision of Hon. Apex Court in the case of Deokinandan Prasad v. State of Bihar and others, AIR 1971 SC 1949, D.S. Nakara and others v. Union of India, AIR 1983 SC 130, as well as Fundamental Rules, 56 and referring to the provisions of Civil Services Regulations have laid down 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, and thus, allowed the pensionary benefits to the respondent, who had completed thirty seven years of continuous service but he was not regularized. The decision rendered by the Division Bench is fully applicable to the present case. Therefore, the argument that since the petitioner was not a permanent confirmed employee and hence is not entitled for pension, is wholly misconceived.

In the result, the writ petition succeeds and is allowed. A writ in the nature of certiorari quashing the impugned rejection order of the representation dated 18.10.2004 passed by opposite party No.2, is issued. The respondents are directed to pay to the petitioner his pension and other pensionary benefits from the date of his retirement i.e. 31.10.1999 within a period of two months from the date a certified copy of this order is placed before them.

No order as to costs.

(Petition allowed)