Vidya Sadotra vs State

The petitioner is a widow. Her husband was an employee of the respondentState. He was engaged as a driver. He retired in 1974. He has since

died. He died on 6th of November 1990. The petitioner submits that as widow, she is entitled to pensionary benefits which accrued in favour of

her husband.

Facts are as under: The petitioner was to superannuate on 19th of November 1972. He was actually retired on 16.2.1974. This retention of the

husband of the petitioner in service beyond 19th of November 1972 was regularised. An order came to be passed in this regard on 4th of

February 1978. It is thus stated that in terms of SRO 31 dated 20th of January 1972, the husband of the petitioner acquired a permanent status. It

is on this basis, claim has been made to the pensionary benefits.

Objections have been preferred by the Accountant General for the State of J and K. It is stated that regularisation of service beyond the date of

superannuation was not in accordance with the law. The basis of rejection of the claim of pension is that the petitioner's husband did not fulfil the

requisite period of service which would have enabled him to get pension. It is further stated that a work charged employee is not entitled to any

pensionary benefits.

Objections hare also been filed by the State. The stand of the State is that the petitioner was a work charge employee. He was accordingly not

entitled to the pensionary benefits. It is, however, admitted that the petitioner remained in service beyond the date of superannuation and the period

of his service was duly regularised.

5.The question as to whether in these circumstances, the petitioner is entitled to the pension or not be examined.

The petitioner is placing reliance on a decision of this court in writ petition No:924 of 1987 decided on 6th of May 1979. The Rules, namely the

Jammu and Kashmir work Charge Employees Rules 1972, as brought on the Statute book vide SRO 31 of 1972 were noticed. In the

aforementioned judgement, following observations were made:

I find force in the arguments advanced by the learned counsel for the petitioner that under clause 3 of Rule 15, the petitioner is also entitled to get

the beneficial pensionary benefits. However, since this finding is give, in the absence of the any counter by the respondents and uncontroversial

allegation of the petitioner, it shall not be deemed as an authority on the interpretation of the Rule 15,the scope of which is kept open to be

determined at the appropriate stage in some appropriate case but the fact remains that in the background on the totality of the circumstances

enumerated above, the case of the petitioner for the grant of pension and gratuity etc. in accordance with the clause 3 of Rule 15 of the Rules, as

may be found due to the petitioner on calculation, be granted to him.

It be seen that above decision was given on the facts and circumstances of the above case and may not be a binding precedent. As such the

matter is being considered afresh.

Pension is payable under Regulation 177 and 177(A) of the Civil services Regulation. Age of retirement is fixed under Regulation 226. These

Regulations are relevant and are being noticed:

177 Service does not qualify unless the officer holds substantive office on a permanent establishment: Provided that in case of Government servant

retiring from service on or after 1st of January 1962, if he was holding a substantive office one permanent establishment the date of his retirement,

temporary, officiating including temporary service on a temporary establishment/Department, S.P.T or quasi permanent service followed without

interruption by confirmation in the same or another post shall count in full as qualifying service except in respect of :(i) Periods of service paid on

work charge establishment and

(ii) Periods of service paid from contingencies:

Provided further that in case of continuous quasipermanent service of 5 years or more a Government servant who may not have been confirmed on

any post before the date of his retirement(including retirement on invalid pension) shall be entitled to count the entire period of quasi permanent

service and the continuous temporary service whether on pensionable or temporary establishments/Department (excluding nonpensionable

establishments mentioned above) preceding his quasipermanency towards service qualifying for pension and he shall be eligible for pensionary

benefits as if the entire period of temporary service and the quasi permanent service were permanent and pensionable. (I) Provided also that a

temporary government servant who on his retirement from service on attaining the age of superannuation or on his being declared permanently

incapacitated for further government service by the appropriate medical authority or who on his death while in service has rendered temporary

service of not less than 20 years, shall for purposes of all pensionary benefits, be treated to have held a permanent pensionable post in a

substantive capacity immediately before his retirement or death as the case may be. Pending cases, if any, shall be regulated accordingly.

177A Notwithstanding anything contained in Art 177, a, work charged employee who is brought on regular establishment and retires without

having been declared substantive or quasipermanent, shall be allowed to count 50% of his work charged service as qualifying for pension together

with the period of service rendered on regular regular establishment. If the total of the two spells is 20 years or more, he will be eligible for pension

under preceding provision

226(i) An officer shall retire compulsorily on his attaining the age of 55 years unless the competent authority considers him efficient and permits

him to remain in service. He may however be retained in service after the date of the Government on public grounds which must be recorded in

writing but he must not be retained after the age of 60 years except in very special circumstances:

Provide that the Government servants who were in service on 10.10.1966 and were treated inferior as per schedule II will retire on attaining the

age of 60 years provided further that a Government servant in service on 1.1.1987 or appointed on or after that date shall retire on his attaining the

age of 58 years provided further that the retirement of a Government employee in service on 1.1.1976 or appointed on or after that date, shall take

effect from the afternoon of last day of month in which the employee concerned attains the actual date of his superannuation."" 8. Retiral benefits

which are admissible to work charged employees are mentioned in Rule 15 of the Jammu and Kashmir work charged Employees Service Rule

1972.This Rule reads as under:

15.Retirement Benefits: An employee of work charged establishment will not be entitled to any superannuation, invalid retirement and

compensation etc pension. Such of the employee who have permanent status shall be entitled to retirement gratuity at the rate of 1/4 month's pay in

each completed period of six months subject to the maximum of (16 months) pay at the time of retirement. For the purpose of this rule, pay shall

be the basic pay excluding all allowances drawn at the time of retirement. The retirement gratuity admissible under these rules will not in any way

debar the employees from their entitlement to compensation admissible under the Workmen's Compensation Act in the event of death/

injury/disability while in service. In the case of employees with permanent status who die while in service, the Government may grant pension to

their beneficiaries under 8(iii) of the Family pensioncumGratuity Rules.

In that case of death of work charged employee with permanent status while in service, death gratuity shall be payable to the beneficiary calculated

at the rates indicated in rule 15 subject to a minimum of 12 times the pay of the employee at the time of death. The provisions of Art 240B to

240G of the Jammu and Kashmir Civil Service Regulation I in respect of Rules of Procedure etc will apply mutatis mutandis in the case.

Before analysing the above Rules, the necessary factual data which has come on the record be noticed again;

i) the petitioner's husband was a work charged employee.

ii) he was to superannuate on 16th of November 1972.

iii) petitioner's husband was retained in further service and was actually retired from service on 16th of February 1974.

iv) the intervening period i.e. 16th of November 1972 to 16th of February 1974 was regularised.

v) the permanent status was conferred on the petitioner's husband on 4th of February 1978.

vi) that vide order dated 27th of July, 1988, it was brought out that the petitioner's husband was regularised on temporary establishment in

pursuance of Government Order No. 266 issued on 4th of April 1972.

A perusal of Regulation 266(1) quoted above makes it apparent that an employee can be retained in service even after the date of

superannuation. Outer limit has been fixed as 60 years. In the present case even though petitioner's husband was to superannuate on 16th of

November 1972, he was allowed to continue for a further period which is less than two years. In terms of Regulation 226(1) petitioner's husband

could be legally retained in service; this was precisly done in this case. Therefore, service rendered by the petitioner's husband upto 16th of

February 1974 was rendered in accordance with above Regulation. This service can be counted for giving pensionary benefits.

There is another aspect of the matter. This can be spelled out from the decision reported as S. P.Dubey V. M .P .S .R .T . Corpn and another,

AIR 1991 SC 276. The facts were that the State of Madhya Pradesh was reorganised under the States Reorganisation Act 1956 .The Central

Government by a notification dated February 28,1961,extended the provisions of Road Transport Corporations Act 1950 (hereinafter called the

Act) to the State of Madhya Pradesh with effect from April 1,1961. There after the Madhya Pradesh Government acting under S.3 of the Act

established the Madhya Pradesh State Road Transport corporation (hereinafter called Corporation) with effect from May 21,1962. The, Madhya

Pradesh Government issued two memorandum on May 4, 1962. By one memorandum, the services of the concerned employees including Dubay

were transferred to the Corporation and by the second it was clarified that the said transfer was subject to the conditions that their service would

be treated as uninterrupted and their pay scales and conditions of service would not be affected. Under the Regulations of the Corporation, the

appellant was sought to be retired at the age of 58 yeas. Allowing the appeal, the Supreme Court of India said:

The appellant was in service of the company from 1947 to August 30,1955 Admittedly, the age of superannuation of the company employees

was 60 years. The Government of Madhya Pradesh took over the company with effect from August 31,1955 by a notification of the same date.

The notification specifically stated that the existing staff of the company would not be adversely affected with regard to their conditions of service.

It is no doubt correct that on August 31,1955 rules were operating in respect of the State Government employees according to which the age of

superannuation was 58 years but the persons who were serving with the company were taken into Government service with a specific assurance

that their conditions of service were not to be adversely affected. When the State Government takes over a private company and gives an

assurance of the type it is but fair that the State Government should honour the same. Thus, the state service rules which fixed the age of

superannuation at 58 years could not be made applicable to the appellant and other employees of the taken over company. We, therefore, do not

agree with the reasoning of the High Court.

Thus an employee of the Corporation could continue is service upto the age of 60 years. With regard to period of service beyond two years, it

would be apt to notice what was said in case reported as Nand Kishore Nayak V. State of Orissa and another, AIR 1991 Supreme Court 1724,

is being quoted:

The appellant has claimed two reliefs. One for payment of salary for the two years period and second for refixation of his pension. So for as the

first relief is concerned, even from the order of the High court, which we have extracted above, it is obvious that salary was directed to be paid to

only those who had actually served and not to others. It is true that this observation was in respect of those who had served beyond their regular

superanimation period but the concept is clearly to pay for work actually done. Cases of the present type, where the employee accepted his

retirement at the age of 58 years and is now seeking the benefit of the High Court's order, Stand on a different footing from those whose services

were wrongly terminated. In our view such employees would not be entitled to salary for the idle period but the relief for refixation of pension by

extending the date of superannuation by Iwo years can be granted to them, We, therefore, direct the State Government to grand the benefit of the

Judgment to all those employees including the appellant herein who would have otherwise retired at the age of 60 years on the interpretation placed

on the relevant provisions of the Act and the Rules by the High Court. In the present case, we, therefore, direct the state Government to extend the

benefit of the Judgement to the appellant, refix his date of superannuation, add two years to his qualifying service and refix his pension and grant the

same from the deemed date of superannuation. The arrears of pension should also be paid after refixing the pension within a reasonable time not

exceeding three months

Thus an employee who had actually worked is entitled to get the wages. This also to some extent supports the plea of the petitioner that the

petitioner was entitled to continue till the age of sixty years in his capacity as member of inferior service. In Pritipal Singh V. Union of India, AIR

1991 SC 915, and Chandigarh Administration thought its Chief Engineer V. Mehar Singh (1992) Suppl 2 SCC 43, even a driver was said to a

person who would fall with the definition of skilled, semiskied workmen. In Prithipal Singh's case, it was observed in para 5:

A driver of staff car is undoubtedly a skilled or semiskilled person. He has to use his whole body specially his hands and feet to drive the vehicle.

The definition of word ""artisan"" is wide enough to include a driver of a car.

The servants who have been described as members of inferior service have been indicated in Schedule II of the Civil Service Regulation VolII

.In Transport Department twenty seven categories of person have been declared as members of inferior service. Even though the drivers have not

been specifically mentioned. Even through the drivers have not been mentioned but if the test indicated by the Supreme Court in Prithipal Singh's

case (supra) referred to above are made applicable then even a driver who looks after be a machinery by which a vehicle is propelled would be a

covered by the aforementioned definition of inferior service.

Thus a driver in his capacity as member of inferior service could legally continue upto the age of 60 years.

Further question as to whether an employee who is working as work charged employee but later becomes substantive or is brought on a

permanent establishment on the date of his retirement or is holding temporary officiating service is entitled to person or not be now examined.

Regulation 177 makes it apparent that every Government employee retiring with effect from 1st of January 1962, if he is holding a substantive

office on permanent establishment on the date of his retirement temporary establishment/Department without interruption by confirmation in the

same or another post, shall be eligible for pension. Only exception is that period of service on work charge establishment and periods of service

paid from contingencies is to be excluded, Two exceptions referred to above are to be read only where a person is working on the post which has

been described as:

Or quasipermanent service followed without interruption by confirmation in the same or another post shall count in full as qualifying service, except

in respect of:

These exceptions are not to be read when a person is holding substantive office on a permanent establishment on his date of retirement or is

temporary officiating or is holding officiating including temporary service.

In the present case petitioner's husbands, service came to be regularised vide Govt order dated 4th of February 1978. From the order dated

2nd of June 1978. it becomes apparent that the petitioner's husband was on regular temporary establishment and this order also recites the fact

that the petitioner's husband had rendered service as work charge employee with effect from 13th of April 1945 to 3rd of April 1972. Half of this

service has to be added towards his regular service. This is to be done in terms of Regulation 177 A. If above be the position, then the petitioner's

husband was entitled to pension. This is because:

(i) The has rendered service as work charge employee from 13lh of April 1945 to end of April 1972. Half of the above service works out to be

19 years,1 months and 22 days.

(ii) That the petitioner's husband was retained in service from 16th of November 1972 to 16th of February 1974.

(iii) This retention came to be regularised and this was validly done in the exercise of the powers conferred under Regulation 226(1). This period of

service is to be considered for calculating qualifying service. This brings the petitioner's husband within the zone of eligibility for getting pension as

he had rendered more than 20 years of service.

Thus the plain meaning on the reading of Article 177 and 177(A), quoted above, is than an employee who is holding a substantive post on

permanent establishment on the date of his retirement or is holding temporary officiating including temporary service he becomes entitled to

pension. Thus on the true interpretation of Regulation of Article 177 and 177A and 226 of Civil Service Regulation, it is concluded.

(i) that an employee can be permitted to continue in service till the age of sixty years (see Article 226(1)

(ii) if service is rendered by an employee upto the age of 60 years, then the State Government is bound to pass an order with a view to regularise

the same.

(iii) the service so rendered under Article 226(1) enables an employee to get this period counted towards qualifying service for pension purposes.

(iv) once an employee who is working on a work charged establishment becomes permanent, he becomes entitled to pension in terms of the

opening lines contained in Regulation 177.

(v) the exception mentioned in Regulation 177 would be apply to that category which is mentioned last of all i.e. after the word or'

(vi) in any case 50% of services rendered as work charged employee is to be counted towards the qualifying service.

(vii) the service mentioned at serial No: (vi) is to be added to that service which is rendered on regular basis.

(viii) a driver or another employee in his capacity as a skilled and semi skilled persons is an artisan. He is a workman. He would be entitled to

continue in service upto the age of 60 years.

(ix) once an employee has worked upto the age of 60 years, he is entitled to reap the benefits of this service. This would include retiral benefits

also.

Petitioner's husband case is thus covered by Regulation 177. To some extent his case Is covered by these decisions of Supreme Court of India

reported as S.P.Dubey V. M.P.S.R.T Corpn. and another, AIR 1991 Supreme Court 276, Prithpal Singh Vs. Union of India, AIR 1991 Supreme

Court 915 and Nand Kishore Nayak Vs. State of Orissa and another, AIR 1991 Supreme Court 1724. He is held entitled to pension. This was

wrongly denied to him. The petitioner in her capacity as widow would, therefore, become entitled to pensionary benefits. Let this amount be

calculated and be released in her favour within a period of two months. Petitioner is also held entitled to interest on the pensionary amount. This

would be at the rate of 12%. This interest is being paid in terms of decision given by the Supreme Court of India. These decisions are:

(i) Bhagwanti Mamtani Vs. Union of India Jid others, 1995 Supp. (1) Supreme Court Cases 145.

(ii) Major Gen (Old Capt.) Virender Kumar V/ o Chief of the Army Staff and three Proforma respondents, 1994 Supp. (2) Supreme Court Cases

303.

If the payment is not made within aforementioned period, then the petitioner would be entitled to interest at the rate of 18% and this interest

would be payable by the person on whose account the delay occurs. Period fixed not his order to begin from the date copy is supplied to the

respondents. Disposed of accordingly.