Sarat Kumar Patra vs Union Of India & Others

Swarup Kumar Mishra, Member J

The applicant challenging the order dated 18.11.2019 (Annexure A/12) of the respondents rejecting him the benefit of minimum pension has filed this OA praying for the following reliefs:

i) To quash the order dt. 18.11.2019 under Annexure A/12;

ii) To direct the respondents to calculate the period from the date got the temporary status till regularization as 50% of service for counting the purpose of pension by not counting the days which is exfacie illegal and aribitrary;

iii) To direct the Respondents to grant the applicant all consequential benefits as per the Rules/regulations/instructions available on the date of the engagement of the applicant;

iv) To pass any other order(s) as deemed fit and proper.

The case of the applicant in brief as inter alia averred in the OA is that he was appointed as seasonal Khalasi on 20.06.1977 and thereafter got temporary status w.e.f. 01.06.1997. The applicant retired on 28.02.2013 on attaining the age of superannuation. The applicant had filed OA No. 133/2014 praying for extension of benefit of pension and pensionary benefits granted to similarly placed employees, which was disposed of vide order dated 02.04.2014 directing the applicant to make representation. The applicant thereafter submitted a representation which was rejected by the respondents. Aggrieved, the applicant filed OA No.1051/2014 which was disposed of vide order dated 12.09.2019 directing the respondents to take into account 50% of service rendered by the applicants under temporary status together with the regular service for the purpose of granting minimum pension. The applicant thereafter made representation on 12.09.2019 enclosing the said order of this Court but the respondents rejected the claim of the applicant vide letter dated 18.11.2019. Hence the OA.

The respondents in their counter inter alia averred that the applicant was initially working as a Seasonal Khalasi in Work Charged Establishment during the period from 1977 to 1995 which was purely temporary and for about 120 days a year. The respondent submitted that on 20.06.1997 scheme for grant of temporary status and regularization of khalasi in the work charged establishment of the Central Water Commission was introduced and as per clause – 6 (iv) of the said scheme, 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularization. The respondents submitted that the applicant got temporary status w.e.f. 01.06.1997, joined as regular basis under New Pension Scheme on 11.12.2006 and retired on superannuation after attaining the age of 60 years on 28.02.2013. The respondent submitted that when the case of the applicant was taken up for calculation of pension, it was found that he had total regular period of 07 years 10 months and 29 days which was less than 10 years service required under provision of CCS (Pension) Rules 1972. The respondents submitted that since the applicant is not eligible for pension as he has not completed minimum qualifying service he is not eligible to get any retirement dues like service gratuity, retirement gratuity, leave salary etc. The respondents further submitted that relaxation of provisions of pension rules as well as implementation of any decisions of the Court of Law is a policy matter and, therefore, not within the competency of the office. Hence they have prayed for dismissal of the OA.

Heard both sides, carefully gone through the records and citations relied upon by the parties.

During course of argument, learned counsel for the applicant drawing attention of this Tribunal to letter dated 19.05.2018 (Annexure A/9 series) submitted that the applicant whose name figures at Sl. No. 19 was found to be eligible for the benefit under CCS (Pension) Rule 1972 under old pension scheme. He submitted that subsequently by counting the temporary status period on day basis the respondents rejected the claim of the applicant which is bad in law and not sustainable. On the other hand respondents counsel submitted that as per rule an employee should have minimum 10 years of service to be eligible for minimum pension as per CCS (Pension) Rules 1972 and the applicant was found having 6 years 2 months and 18 days of regular service plus 01 years 8 months 11 days (50% of temporary status period) totaling to 7 years 10 months 29 days which is less than required 10 years of service. The applicant lacking in the required qualifying years of service is not entitled to get the benefits as claimed.

Hon’ble Apex Court, in principle, have in clear terms held at Para 55 in the case of Union of India versus Rakesh Kumar, Civil Appeal No. 3938/2017 (arising out of SLP (C) No. 23723 of 2015), that the 50% of the casual service before obtaining the temporary status shall be reckoned for counting of eligibility period for the purpose of grant of pension. The same view was also taken by Hon’ble Apex Court in Prem Singh versus State of Uttar Pradesh & ors (Civil Appeal No. 6798 of 2019). The ratio decided by the Hon’ble Apex Court is applicable in principle to all cases.

Hon’ble Apex Court in Rakesh Kumar (supra) had held:

“55. In view of the foregoing discussion, we hold:

i) The casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularized on a regular/temporary post for the purposes of calculation of pension.

ii) The casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension.

iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993.

iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993.”

In Prem Singh (supra) too the matter relating to computation of work charge service for qualifying service of pension was decided by Full Bench of Hon’ble Apex Court. The relevant portion is extracted below:

“30. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment.

In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.

The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.

As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.

In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularization as others have been regularized, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.

In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed.

All pending interlocutory applications and miscellaneous applications, if any, are disposed of.”

This Tribunal while deciding on similar matters of same respondent department in OA No. 871/2019 using the ratio of Hon’ble Apex Court in Rakesh Kumar (supra) & Prem Singh (supra) had held:

“9.From the letters dated 04/14.04.2020, 03.06.2020 and 22.10.2020 filed by the Applicant through his rejoinder, it appears that the Respondents have decided to compute 100% service of seasonal khalasi with temporary status for Skilled Work Assistant (SWA), for the purpose of grant of pension and other retirement benefits to the persons who are still in service. In paragraph 10 of the counter filed on behalf of ‘Respondents”, it has fairly been stated that relaxation of provision of Pension Rules as well as implementation of any decisions of the Court of law is a policy matter and, therefore, not within the competency of this office, even though Secretary , Ministry of Water Resources, New Delhi is one of the Respondents who is competent to take decision in so far as implementation of the judgment of Court is concerned and for allowing minimum pension by counting such of the short fall service from the service rendered before being appointed on regular basis by an employee. As per the mandate of the constitution, decision rendered by Hon’ble Apex Court is binding on all and thus, the Respondents are under obligation to implement the decision of the Hon’ble Apex Court and cannot absolve their liability by stating that it is not within their competency and, if at all according to them it is not within their competency, they must make endeavour to take the approval of the authority who is competent to do so; especially this being a matter for grant of minimum pension which is linked with the right to life as enshrined in Articles 21 of the Constitution of India. The citations relied upon by learned counsel for the respondents are not applicable to facts and circumstances of this case.

In view of the facts and law discussed above, the impugned order is hereby quashed and the matter is remitted back to the Respondents to consider the case of the Applicant strictly in the light of the decision of the Hon’ble Apex Court in the case of Rakesh Kumar & Prem Singh (supra) and intimate the result of such consideration to the applicant in a well reasoned order within a period of 90 (ninety) days from the date of receipt of a copy of this order.”

In view of the above discussion and the case of the applicant being similar to the case of the applicant in OA No. 871/2019, the impugned order dated 18.11.2019 (Annexure A/12) is quashed and the matter is remitted back to the Competent Authority of the respondent department to consider the case of the applicant taking into account the decision rendered by the Hon’ble Apex Court in cases referred to above as well as the order passed by this Tribunal in OA No. 871/2019 and intimate the result of such consideration to the applicant in a well reasoned order within a period of 90 days from the date of receipt of a copy of this order.

In the result, this OA is allowed to the extent stated above by leaving the parties to bear their own costs.