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2004 DIGILAW 575 (PNJ)

Jugal Kishore v. State Of Punjab

2004-05-18

J.S.NARANG, S.S.NIJJAR

body2004
Judgment S.S.Nijjar, J. 1. With the consent of counsel for both the parties, the matter is taken up for final disposal at the motion stage as the pleadings are complete. Written statement on behalf of respondents No. 2 and 3 filed in Court today is taken on record. Respondent No. l has filed the written statement earlier. 2. In this petition under Article 226/227 of the Constitution of India, the petitioner seeks the issuance of a writ in the nature of Mandamus directing the respondents to treat the period of service of the petitioner from 2.7.11971 to 31.8.1975 as qualifying service for pensionary benefits. 3. The Municipal Corporation, Aroritsar (hereinafter referred to as "the Corporation") was earlier a Municipal Committee and had been constituted as a Municipal Corporation in the year 1997 under the Punjab Municipal Corporation Act, 1976 (hereinafter referred to as "the Act"). The Municipal Committee, Amritsar vide resolution No. 2589 decided to fill up the existing as well as future anticipated vacancies of Bill Distributors, Library Care-takers and Tax Collectors. Names of eligible candidates were called from the Employment Exchange as well as directly. On 2.7.1969, a Selection Committee consisting of President and Executive Officer, interviewed all the candidates. Two separate select lists were prepared i.e. for General Category and for Reserved Categories, respectively. 20 candidates were selected in the General Category. Whereas 24 candidates were selected in the Reserved Categories of Scheduled Castes and Backward Classes. The select list was approved by Resolution No. 1471 passed by the Municipal Committee on 21.3.1970. Mane of the petitioner figures at S. No. 15 of the approved select list of the General Category. The petitioner was given the appointment letter dated 11.2.1971 issued on 11.3.1971. The petitioner was appointed on a temporary basis, against the post of Shiv Sharan, Bill Distributor who had been placed under suspension. Although the petitioner joined the service on 20.5.1971, in the record it is indicated that he had joined on 2.7.1071. In the meantime, candidates lower in merit who were at Sr. Nos. 16 and 20 in the approved list were appointed as Bill Distributor against permanent posts, whereas the petitioner has continued against the temporary post. Consequently, the petitioner made a representation on 31.8.1974 that he may be appointed against a permanent post as his juniors had already been so appointed. Nos. 16 and 20 in the approved list were appointed as Bill Distributor against permanent posts, whereas the petitioner has continued against the temporary post. Consequently, the petitioner made a representation on 31.8.1974 that he may be appointed against a permanent post as his juniors had already been so appointed. The petitioner also requested that he may be confirmed from his original appointment i.e. 20.5.1971. On 5.5.1975, the petitioner was appointed substantiveiy against a permanent post. The petitioner was given the benefit of annual increments from 2.7.1971 till 5.5.1975. The annual increments were released w.e.f. 2.7.1972, 2.7.1973, 2.7.1974 and 1.7.1975. On 31.3.1976, the petitioner was promoted as Clerk. On 5.2.1980, he was promoted as Junior Assistant. The petitioner retired on 31.5.2003. 4. The Municipal Corporation, Amritsar was constituted in the year 1997 under the Punjab Municipal Corporation Act, 1976 , Prior to the year 1994, the employees of the Corporation were governed by the provisions of the Employees Provident Fund and Miscellaneous Provision Act, 1952. On 28.7.1994, the Government of Punjab by Gazette Notification framed Punjab Municipal Corporation Pension and General Provident Fund Rules, 1994 (hereinafter referred to as "the Rules"). Under these rules, the employees of the Corporations were permitted to opt to be governed under these Rules. The option was to be exercised within the stipulated period. The petitioner opted for the pensionary scheme in accordance with Rule 3. The petitioner also made a representation on 27.4.1999 that although he had been appointed on 2.7.1971 the P.F. had been deducted from 1.9.1975. Therefore, he requested for permission to deposit the balance amount of the Employees Contribution of the Contributory Provident Fund along with interest from 2.7.1971 so that he would be able to get the full pension for 33 years in Class-Ill, The request of the petitioner was processed and accepted by the competent authority. Accordingly, an amount of Rs.7160/- was deposited in the pension fund A/C No. 332 through Bank Draft No. 918707 dt. 22.9.1999 as per the order dt. 23.6.1999 of the Asstt. Commissioner (T) of the respondent No. 2-Corporation. The petitioner retired from service on 31.5.2003 on superannuation. His pension and other retiral benefits have been worked out from 1.9.1975 and not from the date of his original appointment i.e. 2.7.1971. The short grievance of the petitioner is that he is entitled to the benefit of entire service be it temporary or permanent. 5. The petitioner retired from service on 31.5.2003 on superannuation. His pension and other retiral benefits have been worked out from 1.9.1975 and not from the date of his original appointment i.e. 2.7.1971. The short grievance of the petitioner is that he is entitled to the benefit of entire service be it temporary or permanent. 5. The factual position as narrated above has not been controverted by the respondents. The claim of the petitioner is to be considered under the Pension Rules. Undoubtedly, the petitioner is entitled to pension. However, the same has been granted to him by giving him the benefit of service w.e.f. 1.9.1975. The petitioner having rendered continuous service would be entitled to the pensionary benefits by taking into account his entire service from 2.7.1971. The term "qualifying service" which has been defined under Rule 2(K) of the aforesaid Rules means the service rendered under the Corporation for which an employee is paid from the Corporation fund and shall: include any service rendered under the Govt. of Punjab, any Improvement Trust, a Committee or any other Public Sector Undertaking immediately before joining the service. Undoubtedly, the petitioner is an employee of the erstwhile Municipal Committee, Amritsar which subsequently became Municipal Corporation, Amritsar. The petitioner had exercised his option under the Rules. He has even paid the balance of the Employees Contribution of the CPF. Having accepted the balance, the respondents can hardly be heard to say that the petitioner is not entitled to the benefit of the service between 2.7.1971 to 31.8.1975 for the purpose of pensionary benefits. 6. Even otherwise, the grievance of the petitioner need not be examined on first principle as the question has already been answered by a Division Bench of this Court in the case of Ram Tirath v. State of Punjab and Ors., (2004-2)137 P.L.R. 152 (CWP No. 1490 of 2001) decided on 29.7.2003. In similar circumstances, it has been held that the service rendered in the Municipal Committee would fall within the definition of "qualifying service" as given in the 1994 Rules. 7. In view of the above, the writ petition is allowed. In similar circumstances, it has been held that the service rendered in the Municipal Committee would fall within the definition of "qualifying service" as given in the 1994 Rules. 7. In view of the above, the writ petition is allowed. A writ of Mandamus is issued directing the respondents to give the benefit of service rendered by the petitioner in the Municipal Committee, Amritsar from 2.7.1971 to 31,8.1975 as qualifying service and to re-calculate the pension due to the petitioner by taking into consideration the aforesaid period of service. The respondents are also directed to revise the pension and to release . the arrears to the petitioner within two months of the receipt of a certified copy of this. Order. The petitioner however, shall not be entitled to any interest in view of the judgment rendered by the Division Bench in the case Ram Tirath (supra). No costs.