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2005 DIGILAW 1994 (RAJ)

Brij Mohan v. The University of Rajasthan

2005-08-01

SHIV KUMAR SHARMA

body2005
JUDGMENT 1. - The prayer of the petitioners in the instant writ petition is as under:- "(i) to allow the benefits of pay fixation to the petitioners with arrears; (ii) to allow all pensionary benefits to the guard men who retired as per University Rules counting their service from the initial date of their appointment in the University; (iii) to make payment of the benefits to the legal heirs of those guard men who have since died." 2. The undisputed facts are that the petitioners, except the petitioner Smt. Prem Kanwar, after being discharged from Military Service, were given appointment in the University of Rajasthan on the post of Guard men. The petitioner Smt. Prem Kanwar is legal heir of such Guard man Gopal Singh. However, only a paltry sum as consolidated wages was being paid to them. Therefore, the petitioners filed writ petition No. 94/88 which came to be decided on July 20, 1988 with direction to respondent to allow the Guard men the benefits of pay scale equivalent to the pay scale of Class IV employees. The Government of Rajasthan issued a memorandum on September 20, 2000 with regard to the fixation of pay of such re-employed ex-servicemen below the rank of commissioned officers. This memorandum was adopted by the University vide memorandum No. A&F/Fix/Rules/98/2710 dated September 24, 2001. Benefits of the memorandum was given to those employees who were working on other posts, but it was not given to the guard men, the petitioners. The pensionary benefits to those guard men who attained superannuation age after completing eligibility period of service were also not being given to the petitioners, though these bene its were being given to other similar ex-servicemen employees who were working as peons or clerks. The guardmen were not given these benefits only on the ground that they were getting pension for their earlier military service. Since the period of military service was not counted in the service period of University, therefore, these two benefits could not be intermingled. Although the employees who were working as Peons or Clerks and who were ex-servicemen, and had been retired from University service were getting both the pensions, the guardmen were not given the said benefits. 3. Since the period of military service was not counted in the service period of University, therefore, these two benefits could not be intermingled. Although the employees who were working as Peons or Clerks and who were ex-servicemen, and had been retired from University service were getting both the pensions, the guardmen were not given the said benefits. 3. Learned counsel for the petitioner urged that in Regulation 3(2) of the Pension Regulations 1990 it was specifically mentioned that in case of employees who do not exercise option within the specified time period it will be deemed that the concerned employee had opted for the pension scheme under the Regulations. Learned counsel also urged that number of employees who were getting pension from the Government of Rajasthan or from the Central Government were granted pension by the University. Learned counsel placed reliance on Sajjan Singh v. University of Rajasthan & Amr:, S.B. Civil Writ Petition No. 2587/1996 decided on November 18, 2002 , Ismail Khan v. State of Rajasthan, (1986 (3) SLR 678) , Norti Devi v. State of Rajasthan, (1992 (3) SLR 714) and Municipal Corporation of Delhi v. Dharam Prakash Sharma, (1999 Lab. I.C. 177) . 4. Per contra learned counsel for the respondent refuted the claim of the petitioners and contended to dismiss the petition. 5. Having scanned the material on record, I notice that the services of the petitioners were regularised as Security Guard as per direction of this Court in D.B. Civil Writ Petition No. 94/88 decided on July 20, 1988. The directions given in, that case are as under: "Cons. Exquently, we allow the petition. We direct the non- petitioners that the petitioners should be paid the same salary which is being paid to the Chowkidars belonging to Class IV staff along with allowances if any, payable to Chowkidars. The University should consider seriously, framing of the rules or ordinance laying down their service conditions. The amount shall be payable from 23.11.1987, when the writ petition was filed. Cost made easy." 6. The principles as laid down in the cases cited by the learned counsel for the petitioners is as under: (a) Service rendered on work charge basis be counted as qualifying service for pension. (b) Pensionary benefits are fundamental rights and the employee cannot be denied of his pensionary rights. Cost made easy." 6. The principles as laid down in the cases cited by the learned counsel for the petitioners is as under: (a) Service rendered on work charge basis be counted as qualifying service for pension. (b) Pensionary benefits are fundamental rights and the employee cannot be denied of his pensionary rights. (c) Employee appointed on daily wages basis against anticipated post be treated as temporary employee and service rendered by him as such be counted towards qualifying service for pension. (d) The employee getting gratuity under the Pension Rules will not disentitle him to get the payment of gratuity under the Payment of Gratuity Act. 7. At this juncture it would be appropriate to refer the provisions of Pension Regulation, 1990 (in short 1990 Regulations'). As riser Regulation (1) the regulations came into force w.e.f. 1.1.1990. Sub-Regulation (ii) of Regulation .2 provided that in case of employees who do not exercise option within the specified period, it will be deemed that the concerned employee has opted for the pension scheme under these regulations. Regulation 16 of 1990 Regulations provides as under: "A superannuation pension shall be granted to an employee who is required to retire from service on attaining the prescribed age of retirement." 8. I am of the considered view that in not granting the retiral benefits to the petitioners as per the provisions of the 1990 Regulations, the respondent University violated Articles 14 and 16 of the Constitution of India. The petitioners in my opinion are entitled to all the retiral benefits as per the provisions of 1990 Regulations. 9. For these reasons the writ petition succeeds and stands allowed. The petitioners shall be entitled to all retiral benefits from the date of superannuation. The arrears of the retiral benefits shall be paid to the petitioners within a period of sixty days, failing which the petitioners shall be entitled to interest on the due amount at the rate of 12% per annum. In the circumstances there shall be no order as to costs.Writ petition allowed as above. *******