Smt. Indira Devi vs State of Uttarakhand & Others

SHARAD KUMAR SHARMA, J.

The petitioner is a widow of the deceased Executive Officer, who had worked in various Municipalities after his initial induction made as back as in

1979. At that point of time, when the appointment was made, though, it was on ad hoc basis but continued without break, and since then, he initially

served at Nagar Palika Parishad, Dogharh, Meerut till 1983-84; thereafter, from 1984-85 till 1994-95 he has worked as in the Nagar Panchayat Kela

Khera, Nainital. With effect from 1990-92, he has worked as Executive Officer, Nagar Palika Parishad, Sultanpur, District Udham Nagar. In the year

1995-96 he worked in Nagar Punchayat, Mahuwa Dabra, District Udham Singh Nagar and lastly for the year 1996-97, he has worked in Nagar Palika

Parishad, Deoprayag, Tehri Garhwal till he met with sad demise on 11.10.2007 in a road acident.

The husband of the petitioner has worked for over three decades as Executive Officer in various Municipalities, though on ad hoc basis. As per the

records available with the respondents itself, it shows that the husband of the petitioner met with the sad demise on 11.10.2007 in a road accident. The

contention of the petitioner is that despite the fact that her late husband had an unblemished service records yet his services were not regularized,

though the same was governed by the provisions contained under the Uttar Pradesh Palika (Centralised) Services Rules, 1966 and as amended from

time to time.

The contention of the petitioner is that the services of her late husband ought to have been regularized at an appropriate time i.e. w.e.f. 1978 from

the date when he was initially appointed. Apprehending that due to non-regularisation of the service of her late husband, in all probability, it may create

impediments in availing the retiral service benefits for the service rendered by the petitioner’s husband, a writ petition was filed by the petitioner

being Writ Petition (S/S) No. 826 of 2011, wherein the said writ petition, the prayer was made that since the late husband of the petitioner died in

harness, and since she is running from pillar to post for availing the pension and retiral benefit and the same is not being considered an appropriate

direction may be issued to the respondent to regularize service and determine retiral dues and other service benefits thus the coordinate Bench of this

Court passed an order dated 04.09.2014 which reads as follows:-

“The petitioner is a widow of one Sri O.P. Aggarwal, who was an ad-hoc employee, working as an Executive Officer in the erstwhile Nagar

Palika, Mahuakheraganj, District Udham Singh Nagar. He met with a road accident on 11.10.2007 and died on the same day. His death occurred

while he was in harness. The petitioner, who is the widow of the employee, has been running from pillar to post seeking family pension and post

retirement benefits. It appears that the only ground on which family pension was being denied to the petitioner is that her husband was appointed only

in an ad-hoc capacity though appointed by the order of Secretary in the erstwhile State of Uttar Pradesh vide order dated 10.03.1978. Even at the

time of his death family pension was not payable to the spouse of an ad-hoc employee.

Learned counsel for the petitioner though cites many examples where similarly situated persons, as petitioner, have been given such family pension.

He also cites certain Rules and Regulations on the basis of which her husband was not an ad-hoc employee, but an ad-hoc employee likely to be

regularized in service. He also claims family pension due to long years (almost 30 years) of service. Since all the Government orders and notifications

etc. which deal with this aspect are not before this Court and therefore since learned counsel appearing for the State also not being help in the present

case, as an interim measure it is directed that the concerned Secretary in the Government of Uttarakhand shall look into the aspect of the matter and

in case family pension is liable to be given to such employee, pass an order therein and in case, however, he comes to the conclusion that an ad-hoc

employee such as the petitioner cannot be given family pension, he shall pass an speaking order therein by the next date of listing.

List this matter on 08.10.2014 in the daily cause list.

Meanwhile, let the State of Uttar Pradesh through concerned authority be impleaded as respondent No. 4 in the memo of petition. Learned counsel for

the petitioner shall do the needful in the matter today itself and supply the copy of the writ petition to the counsel of the newly impleaded

respondent/State of U.P., who shall file counter affidavit by the next date of listing.â€​

In accordance to the order dated 04.09.2014, a direction was issued to the newly impleaded respondent No. 4 that it will take an appropriate action

to ensure the remittance of the post retrial dues. In compliance of the order dated 04.09.2014, the respondent proceeded to pass an order dated

14.10.2014, wherein, while exercising the powers under the Centralised Service Rules 1966, particularly as contained under Rule 21 Ka read with

Rule 23 and 41, the services of the late husband of the petitioner was regularized though w.e.f. 14.10.2014 that is w.e.f. the date of the order of

regularization. This writ petition came up for consideration before the coordinate Bench of this Court and was dismissed as withdrawn by the order

dated 19.11.2014, the fact of passing of the order dated 14.10.2014 in compliance of the interim order was also brought to the knowledge of the Court.

On account of the fact that the grievance of the petitioner was not redressed in totality and the services of the late husband of the petitioner which

ought to have been regularized from the date of initial appointment, the petitioner’s case is that she was constrained to file yet another writ petition

being No. WPSS No. 746 of 2016 for claiming a regularization w.e.f. from the date of initial appointment of her late husband. The said writ petition

was disposed of by this Court vide its order dated 11.05.2017 passed by the coordinate Bench this Court, which reads as follows:

“Mr. Sunil Kumar Bharti, Advocate for the petitioner.

Mr. B.P.S. Mer, Brief Holder for the State.

Heard.

Accordingly, the writ petition is disposed of with the consent of both the parties. The respondents are directed to consider the case of the husband of

petitioner, for regularization from anterior date as per annexure No. 2 to the rejoinder affidavit, within a period of ten weeks from today.

Pending application, if any, stands disposed of.â€​

In compliance thereto, the respondent passed an order on 30.08.2017, whereby the services of the late husband of the petitioner was regularized

from the date of his initial appointment i.e. with effect from 1978.

But, still the fact remains that despite the service of the late husband of the petitioner having being regularized w.e.f. 1978 by virtue of the order

dated 30.08.2017, but the grievance of the petitioner is that despite of it the post retrial dues were still not paid to her, which were due towards the

services rendered by her late husband, hence she has filed the present writ petition for the following reliefs:-

“a) Issue a writ of certiorari thereby quashing letter dated 13.09.2017 issued by respondent No. 3. (After calling the records).

b) Issue a writ in the nature of mandamus or any other appropriate writ/order directing the Respondents to release all the service benefits (inclusive of

yearly increments, promotion, increase in salary pursuant to VIII pay Commission, interest on the payment to be made to the petitioner) of

regularization with anterior date i.e. from the date of appointment of Sh. Om Prakash Aggarwal to the petitioner, and/or

c) issue a writ in the nature of mandamus or any other appropriate writ/order directing the respondents to give interest in terms of law laid down in

Judgment and Order dated 07.11.2016 passed by this Hon’ble High Court in

Special Appeal No. 78 of 2016 on delayed payment already made on 16/4/2015 and all service benefits like increment, promotion, pay commission

benefits etc. to the petitioner after reassessing the benefits paid to the petitioner;

d) pass such further order(s), direction(s) as this Hon’ble Court may deem fit and proper.â€​

As far as relief No. 1 is concerned, the petitioner has given challenge to an order dated 13.09.2017, which was initially not a part of the writ petition,

but later on, the same was supplied by her before this Court by filing a Supplementary Affidavit on 08.01.2018. As a matter of fact, on scrutiny of the

order dated 13.09.2017, this Court is of the considered view that it does not reflect from the order that it was an order, which at all prejudiced the

claim of the petitioner as a widow of the deceased Om Prakash in availing the benefits of the post retrial dues. The petitioner’s case is that as her

late husband, despite of having been regularized in compliance the order of coordinate Bench of this Court dated 11.05.2017 and having regularized by

the order dated 30.08.2017, the order dated 30.09.2017, impugned in relief No. 1 of the this writ petition was nothing but a mode adopted by the

respondent to delay the proceedings for avoiding the grant of post retrial benefits to the petitioner. Hence, at this stage, the learned counsel for the

petitioner submits that he is not pressing in for the 1st relief.

Coming to the 2nd relief, as sought, it is by way of a mandamus for releasing the service benefits as detailed therein and retiral benefits. In support

of his contention, the learned counsel for the petitioner submits that he places reliance on a judgment dated 07.11.2016, rendered by the Division

Bench of this Court in Special Appeal No. 78 of 2016 which is quoted hereunder:

“This appeal is instituted against the order passed by the learned Single Judge in Writ Petition No. 930 (S/S) of 2015 whereby an interim mandamus

was issued to the Government to either take action against the Nagar Palika Parishad Mussoorie under Section 30 of the U.P. Municipalities Act in

accordance with law or in case it is felt that amount is liable to be released to the Nagar Palika Parishad let the same be done expeditiously as possible

so that on the next date of hearing the amount is released in favour of the respondent nos. 1 to 10.

Respondent nos. 1 to 10, in the present appeal, were the petitioners in CWP No. 930 (S/S) of 2015. They came before this Court seeking a direction

to the Nagar Palika Parishad, Mussoorie for release of their retiral/ pensionary benefits including gratuity. They have also prayed for release of

arrears on account of acceptance of report submitted by the Sixth Pay Commission. The Court’s attention has been drawn to the letter dated

11.05.2016 as well as the paragraph No.9 of the reply filed to the writ petition by the appellant.

It is the fundamental right of the respondent nos.1 to 10 to get their retiral/pensionary benefits. They belong to lowest strata of the society, but have

been deprived of their legitimate right to get their retiral/pensionary benefits. Consequently, the present Special Appeal and the Writ Petition are

disposed of by issuing following mandatory directions.

Accordingly, there shall be a direction to respondent no. 11 to ensure that the respondent nos. 1 to 10 and similarly situated person retired from

Municipal Corporations, Municipal Councils and Nagar Panchayats throughout the State of Uttarakhand are released their pensionary/ retrial benefits

within a period of four weeks from today. The retiral/pensionary benefits shall also carry the interest at the rate of 9% per annum. It is further made

clear that in case the arrears of retiral/ pensionary benefits are not paid, within the stipulated period, as directed hereinabove, the due amount shall

carry the interest at the rate of 18% till the date of its payment.

Similarly, there shall also be a direction to the Secretary, Urban Development to ensure that the recommendations of the Sixth Pay Commission are

also implemented qua the respondent nos. 1 to 10 as well as all the employees of all the Municipal Corporations, Municipal Councils and Nagar

Panchayats, within a period of four weeks from today.

It shall be the responsibility of the respondent no. 11 to ensure due compliance of these orders. If the directions issued by the State Government are

not implemented /executed by the Municipal Corporations, Municipal Councils and Nagar Panchayats, it shall be open for the State Government to

take action against them under the law including their dissolution as observed by the learned Single Judge.

The Secretary, Urban Development, Government of Uttarakhand is also directed to hold an inquiry against all the Executive Officers of the Municipal

Corporations, Municipal Councils and Nagar Panchayats as to why the retiral/pensionary benefits, to the lowest strata of the society, have not been

paid and after fixing their responsibilities, the amount of interest shall be recovered from the salaries of defaulting officers/officials.â€​

The Division Bench, in its judgment dated 07.11.2016 has directed to release the retrial/pensionary benefit which has been illegally withheld along

with interest and there a further direction was issued that if the amount as directed, is not been remitted within the stipulated time frame fixed there by

the ordered the interest rate due on the said amount would be enhanced to 18 percent per annum. The coordinate Bench of this Court issued notice to

respondents and later on Municipal Nagar Palika Parishad Mahuwakhera was also impleaded as respondent No. 4.

Mr. N.P. Sah, learned Standing Counsel for the State submits that the claim of the petitioner for remittance of the post retrial dues could not be

honoured because of the impediments being created due to non supply of requisite documents pertaining to the service records of the late husband of

the petitioner at the behest of respondent No. 4, which has been wrongfully withheld by respondent No. 4. He further submits that the claim for the

retrial benefits cannot be granted by the State at the moment for the reason that according to the stand taken by him in the counter affidavit, certain

amount payable towards gratuity and pension has already been remitted.

This fact regards payment made, though is refuted by the learned counsel for the petitioner. But, even let us presume that respondent had paid

certain amount due to be paid to the petitioner, but still in view of the ratio as propounded by the Division Bench’s judgment as well as the criteria

laid down by the Government Order dated 27.10.2008, it goes without saying that the widow of the deceased employee, would be entitled for the

service benefits, retiral benefits and family pension, which she is otherwise legally entitled to be paid. In that eventuality, this writ petition is disposed of

with a direction to the respondent No. 3 that he will look into the entire dispute and pass an appropriate order of remittance of the retrial dues which

are left to be paid along with the interest. The decision in that regard would be made within a period of six weeks from the date of service of the

order. Immediately after the decision rendered thereto, the payment is to be remitted to the petitioner within a period of six weeks thereafter along

with interest at the rate of 9 percent, failure to remit the amount within the period of six weeks thereafter the receipt of the decision, the respondent

will be liable to pay the interest at the rate of 18 percent as laid down by the Division Bench’s judgment dated 07.11.2016. However, at this stage,

it is absolutely made clear that respondent No. 4 will not derelict in any manner in supplying all the requisite documents as demanded by the Director

within a period of two weeks from the date of receipt of this judgment, so that an appropriate decision may be taken by the Director ensuring payment

of retiral dues and family pension in the light of the directions which are already given above.

Subject to the above observations, the writ petition would stand disposed of. However, there would be no order as to cost.