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2001 DIGILAW 834 (ALL)

JAGDISH MANI TRIPATHI v. STATE OF UTTAR PRADESH

2001-08-17

ASHOK BHUSHAN

body2001
ASHOK BHUSHAN, J. ( 1 ) HEARD Sri K. D. Mishra and Sri S. K. Mishra counsel appearing for the petitioner. Sri Sada nand Shukla appearing for respondent No. 3 and learned standing counsel appearing for respondent Nos. 1, 2 and 4. ( 2 ) COUNTER and rejoinder-affidavits have been exchanged and with the consent of the parties, the writ petition is being finally dispose of. ( 3 ) THIS writ petition has been filed by the petitioner praying for a writ of mandamus commanding the respondents to grant dearness allowance on his pension at a rate equivalent to the rate of dearness allowance being paid to retired employees of U. P. Government. It has further been prayed that mandamus be issued directing the respondents to pay interest at the market rate on the delayed payment of pension and gratuity. ( 4 ) THE facts of the case as set out in the writ petition are ; petitioner was appointed as Chungi moharrir (Octroi Clerk) in Nagar Palika Parishad, Deoria. He retired after attaining the age of superannuation on 31st July, 1987. In paragraph 2 of the writ petition, the petitioner has stated that he was confirmed Chungi Moharrir in the pay scale of Rs. 800-1,150. The petitioner was sanctioned pension by Division Commissioner, Gorakhpur, by order dated 14th September, 1993 and the gratuity was sanctioned by order of the same date. Petitioner states that he belonged to non-centralised service in the Municipal Board. Reference has been made to the Uttar Pradesh nagar Palika Non-Centralised Services, Retirement Benefit Regulations. 1984. Petitioner has stated in paragraph 18 of the writ petition that he submitted the pension papers well within time but the order for payment of pension and gratuity was passed on 14th September, 1993, i. e. , after lapse of six years. Petitioner has represented the matter to the Adhyaksha, Nagar Palika Parishad. Deoria, for payment of interest on the delayed payment of pension and gratuity. Petitioner further states that the State Government employees are receiving dearness allowance on their pension at the rate of 12%. Petitioner also states that he has been deprived of benefit of dearness allowance on pension. ( 5 ) A counter-affidavit has been filed by Nagar Palika Parishad. In the counter-affidavit. Petitioner further states that the State Government employees are receiving dearness allowance on their pension at the rate of 12%. Petitioner also states that he has been deprived of benefit of dearness allowance on pension. ( 5 ) A counter-affidavit has been filed by Nagar Palika Parishad. In the counter-affidavit. It has been stated that petitioner furnished the relevant form regarding payment of his pension on 31st december, 1987, which was forwarded to Director Local Funds on 5th January, 1988. The said papers were returned with certain objections by letter dated 19th March, 1988. It has been stated that President of the Nagar Palika sent the pension paper on 2nd February, 1989 and thereafter reminder was sent on 5th June, 1989. It is further stated that on 8. 2. 1990, the President of Nagar palika Parishad wrote to the Commissioner, Gorakhpur, for relaxation of age of the retired employee, i. e. , petitioner. It has been stated that after many correspondences age relaxation was granted to the petitioner by order dated 13th January, 1993, of Joint Secretary, Government of u. P. and thereafter the pension was sanctioned by the Commissioner and the same was paid to the petitioner. It has been stated that delay which has been occurred was due to the fact that petitioner during his total tenure of service appears to have not taken any step for relaxation of his age. It has also been stated that it was incumbent upon the petitioner to have taken steps for the aforesaid purpose at the time of appointment or at least during continuance of his service tenure. It has further been stated that petitioner himself is responsible for the delay in the start of payment of pension. It has been further stated that pension Rules applicable to Government servants belonging to service of U. P. Government do not apply in the matter of non-centralised servants of local bodies. No counter-affidavit has been filed by the State. ( 6 ) THE retirement benefits of the petitioner are governed by statutory regulations, namely, Uttar pradesh Nagar Palika Non-Centralised Services Retirement Benefits Regulations, 1984. The aforesaid Rules provide for payment of pension gratuity. Rule 2 (k) of the aforesaid Rules provides as under : (2 ). . . . . . No counter-affidavit has been filed by the State. ( 6 ) THE retirement benefits of the petitioner are governed by statutory regulations, namely, Uttar pradesh Nagar Palika Non-Centralised Services Retirement Benefits Regulations, 1984. The aforesaid Rules provide for payment of pension gratuity. Rule 2 (k) of the aforesaid Rules provides as under : (2 ). . . . . . (k) "pensionable post" means a post which fulfils the following three conditions : (i) Post is in any cadre of the Non-Centralized Services of Municipal Board ; (ii) The employment is substantive and permanent : and (iii) The service must be paid by a Municipal Board. " rule 13 of the aforesaid Rules provides for advance action in respect of official due to retire. Rule 13 is quoted below : "13 Advance action in respect of official due to retire.-- (1) The Head of Departments in each municipal Board shall prepare a x-monthly list on the 1st of January and 1st of July, of all such officials of the Non-Centralised Services in their respective departments due for retirement in next two years and shall send this list on January 31st and July 31st of every year to the adhishasi Adhikari in the Municipal Board. Head of Departments shall also ensure from one-and-half year before the date of retirement of the official that no dues would remain unrealised from the official concerned by the date of his retirement. The Adhishasi Adhikart of the Municipal Board shall positively send a copy of this list to the Commissioner of the Division and the District Magistrate by February 15th and August 15 each year. (2) One year before the date of retirement of each official of the Non-Centralized Services, the head of Departments concerned shall complete his application in Form c and other records connected with his pension and gratuity and shall send them to the Accountant in the Municipal board. The Accountant after examining the amount of pension and gratuity shall submit it to the adhyaksha of the Municipal Board through Adhishasi Adhikari who will make scrutiny of the pension and gratuity papers. These papers will be scrutinised in the same manner as the claims on the Palika Fund are examined under the Municipal Account Code. The Accountant after examining the amount of pension and gratuity shall submit it to the adhyaksha of the Municipal Board through Adhishasi Adhikari who will make scrutiny of the pension and gratuity papers. These papers will be scrutinised in the same manner as the claims on the Palika Fund are examined under the Municipal Account Code. The Adhyaksha shall send these papers to the examiner, Local Fund Accounts, Uttar Pradesh for attestation and confirmation of the amount of the pension and gratuity six months prior to the date of retirement of the official. These papers shall be forwarded to the Commissioner of the Division for sanction and payment of pension and gratuity after their attestation and confirmation by the Examiner, local Fund Accounts. Uttar Pradesh. (3) The Commissioner of Division shall be the competent authority to sanction pension/family pension and/or gratuity. If the service record of the official had not been satisfactory, the commissioner of the Division for this reason, shall have the right to make deductions in the pension and/or gratuity. The Adhyaksha of the Municipal Board shall before sending pension papers to the Commissioner of the Division, ensure and satisfy himself that the Services of the retiring official had been satisfactory and recommend full pension and/or gratuity payable under these regulations, and if the service had not been satisfactory he shall recommend whether or not any deduction in pension and/or gratuity is to be made. (4) Except payment on account of wrong assessment of pension/family pension gratuity/ death-cum-retirement gratuity, liable to be refunded and to make it obligatory, a declaration shall be taken before hand from every official going on retirement in Forms h and i as the case may be. (5) Application for grant of pension in Form g shall be presented by the official concerned through proper channel and in case of death of the official the application for grant of gratuity and family pension shall be presented by the claimants on the prescribed Form. " rule 13 further provides that Commissioner of the Division shall be competent authority to sanction pension. Rule 7 provides for family pension. Rule 7 (5) provides that every official shall immediately after his confirmation make a nomination in Form e indicating the order in which a pension sanctioned under this part should be payable to the members of his family. Rule 7 provides for family pension. Rule 7 (5) provides that every official shall immediately after his confirmation make a nomination in Form e indicating the order in which a pension sanctioned under this part should be payable to the members of his family. The aforesaid regulation gives a complete procedure and provisions for sanction of pension. From the definition given in Rule 2 (k ). It is clear that non-centralized service in the Municipal Board is a pensionable post provided the employment is substantive and permanent. ( 7 ) THE petitioner in paragraph 2 of the writ petition has stated that he was confirmed Chungi moharrir. Paragraph 2 of the writ petition has not been denied in paragraph 2 of the counter-affidavit filed by Nagar Palika. However, it has been stated in paragraph 2 of the counter-affidavit that petitioner was appointed on 30th May. 1957, on which date he was over-age. The fact that petitioner was confirmed in service clearly proves that he was substanlively appointed and permanent. The petitioner having been confirmed on his post holds a pensionable post under Rule 2 (k ). The only reason which has been given by the Nagar Palika due to which the petitioner was not paid pension in time is that the petitioner was overage at the time of appointment and relaxation from his over-age was granted on 13th January, 1993. According to 1984 Regulations when the petitioner holds a pensionable post, there was no question of withholding the pension or gratuity. It does not lie in the mouth of Nagar Palika to say after retirement of an employee that he was over-age at the time of his appointment, hence unless the age is relaxed, he is not entitled to pension 1984 Regulations do not give any power to withhold sanction of pension. The 1984 Regulations further contemplate several steps after confirmation of an employee with regard to his family pension, nomination, etc. Regulation 13 itself contemplates that list of those employees is to be made by the Head of the Department on 1st January and 1st July who was to retire in next two years. Rule 13 casts an obligation on the municipal Board to start preparing pension papers and to get all formalities completed. Regulation 13 itself contemplates that list of those employees is to be made by the Head of the Department on 1st January and 1st July who was to retire in next two years. Rule 13 casts an obligation on the municipal Board to start preparing pension papers and to get all formalities completed. Regulation 13 (2) contemplates that the Head of the Department one year before the retirement of the employee shall complete his application and other records connected with his pension and gratuity and shall send them to the Accountant. Even if according to the Municipal Board, relaxation in age was required, it was the duty of the Municipal Board to have taken the action at least one year before the retirement. The facts which have come in the writ petition and the counter-affidavit show that no such proceedings were taken by the Municipal Board. In paragraph 4 of the counter-affidavit, it has been stated that petitioner furnished the form on 31. 12. 1987 and the Executive Officer forwarded it to the Director Local Funds on 5. 1. 1988. No details have been given regarding action taken by the Municipal Board. Under Regulation 13, after retirement of an employee no such defence is permissible that since at the time of his appointment he was overage, he will be paid pension only after relaxation of his age. As noted above after the confirmation of the petitioner, he was holding a pensionable post. From the counter-affidavit of Nagar Palika, it is also clear that papers were sent to the Commissioner on 8. 2. 1990, by the District Magistrate, Deoria, for relaxation of the age and the relaxation of age was granted on 13. 1. 1993. It has further been stated that after removing the objections, the papers were sent on 2. 2. 1989. It was the duty of the pension sanctioning authority to see that on frivolous objection, sanction of pension is not withheld. ( 8 ) IN view of above, I am of the view that both Nagar Palika and State authorities were responsible for delay in the payment of pension and gratuity. It is well-settled by catena of decisions that employees are entitled for interest on delayed payment of pension and gratuity. ( 8 ) IN view of above, I am of the view that both Nagar Palika and State authorities were responsible for delay in the payment of pension and gratuity. It is well-settled by catena of decisions that employees are entitled for interest on delayed payment of pension and gratuity. The Apex Court in State of Kerala v. M. Padmanabhan Nair, AIR 1985 SC 365, has laid down that it is the liability of the employer to pay interest on the delayed payment of pension. Petitioner is clearly entitled for payment of interest. The Apex Court in paragraphs 3 and 4 of the aforesaid judgment held as under : "3 The instant case is a glaring instance of such culpable delay in the settlement of pension and gratuity claims due to the respondent who retired on 19. 5. 1973. His pension and gratuity were ultimately paid to him on 14. 8. 1975, i. e. , more than two years and 3 months after his retirement and hence after serving lawyers notice he filed a suit mainly to recover interest by way of liquidated damages for delayed payment. The appellants put the blame on the respondent for delayed payment on the ground that he had not produced the requisite L. P. C. (Last Pay certificate) from the Treasury Officer under Rule 185 of the Treasury Code, But on a plain reading of Rule 186, the High Court held and in our view rightly that a duty was cast on the treasury Officer to grant to every retiring Government servant the last pay certificate which in this case had been delayed by the concerned officer for which neither any justification nor explanation had been given. The claim for interest was, therefore, rightly decreed in respondents favour. (4) Unfortunately such claim for interest that was allowed in respondents favour by the district court and confirmed by the High Court was at the rate of 6 per cent per annum though interest at 12 per cent had been claimed by the respondent in his suit. However, since the respondent acquiesced in his claim being decreed at 6 per cent by not preferring any cross- objections in the high Court it would not be proper for us to enhance the rate to 12 per cent per annum which we were otherwise inclined to grant. " ( 9 ) IN view of the above discussions. However, since the respondent acquiesced in his claim being decreed at 6 per cent by not preferring any cross- objections in the high Court it would not be proper for us to enhance the rate to 12 per cent per annum which we were otherwise inclined to grant. " ( 9 ) IN view of the above discussions. It is clear that the petitioner has made out a case of grant of interest on delayed payment of pension and gratuity. The petitioner is entitled for payment of interest at the rate of 12% simple interest per annum of delayed payment of pension and gratuity. The half of the interest will be paid by respondent No. 3 and half of the payment will be paid by the State authorities. ( 10 ) WITH regard to the prayer of the petitioner that he is entitled to payment of D. A. on the same rate which is being paid to the employees of the State Government, it is stated that the payment of D. A. to various categories of the employees is a matter which is essentially in the domain of the State Government and depends on nature of the employment and several other factors. Petitioner was holding a non-centralised post and his retirement benefits are governed by said regulations. The method of calculation of pension and other benefits are provided in the regulations. Petitioner has placed reliance on a judgment of this Court in Moti Lal Agarwal and others v. State of U. P. and others, 1998 UPLBEC 473. In the aforesaid Judgment with regard to centralised service employee belonging to Palika Centralised Services, the Court has held that there is no reason of any discrimination of employees of Nagar Maha Palika, Allahabad and that of Kanpur. The petitioner is not holding a centralised post, hence the aforesaid judgment is not applicable to the petitioner. It is, however, open to the petitioner to represent the Government making his demand regarding the deamess allowance and if any such representation is made by the petitioner to the State Government, the respondent No. 1, the same be considered and disposed of expeditiously. ( 11 ) IN view of the above discussions, the present writ petition is partly allowed. It is, however, open to the petitioner to represent the Government making his demand regarding the deamess allowance and if any such representation is made by the petitioner to the State Government, the respondent No. 1, the same be considered and disposed of expeditiously. ( 11 ) IN view of the above discussions, the present writ petition is partly allowed. The respondents are directed to make payment of simple Interest at the rate of 12% per annum on the delayed payment of pension and gratuity of the petitioner. The petitioner will be entitled for the interest from the date when it became due till it was paid. The half of the amount of the interest will be paid by the respondent No. 3 and half of the Interest will be paid by the State authorities. With regard to the claim of the petitioner for dearness allowance, petitioner may represent respondent no. 1 who may consider and decide the said representation expeditiously. ( 12 ) THE writ petition is disposed of with above directions. .