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Allahabad High Court · body

2007 DIGILAW 68 (ALL)

KRISHNA KUMARI v. STATE OF UTTAR PRADRSH

2007-01-10

V.K.SHUKLA

body2007
V. K. SHUKLA, J. ( 1 ) SMT. Krishna Kumari Agrawal has approached this court for issuing a writ in the nature of certiorari quashing the order dated 20. 05. 2005 refusing to accord family pension in her favour and further for issuing a writ in the nature of mandamus commanding the respondents to pay the petitioner family pension in accordance with Government Order dated 08. 08. 1986 and the Circular dated 01. 12. 1991. ( 2 ) PETITIONERs husband late Sunder Shyam Agrawal was appointed as Tahvildar on 18. 11. 1954. He died during service period on 20. 11. 1978. Petitioner has contended that her husband was entitled for all pensonary benefits as admissible to government servants. Petitioner submits that she has been insisting for grant of family pension, but no response was made to her. On 15. 07. 1996, Chief Treasury Officer wrote letter to the Director stating therein that entire papers were being submitted for action. On 23. 06. 1997 Deputy Director wrote letter to Chief Treasury Officer, Gorakhpur for family pension and appending therewith copy of service book and pension proforma. Letters to the same effect were written by Director of Treasury on 05. 09. 1997 and 13. 05. 1998 to the Secretary, U. P Government for payment of family pension. On 03. 08. 1998, the Director of Pension wrote letter to the District Magistrate to take steps for payment of family pension to petitioner in accordance with the Government Order dated 08. 08. 1986. Petitioner has contended that thereafter repeated request was made by her, but nothing was done in the matter. On 28. 02. 2000 Chief Treasury Officer, Gorakhpur wrote letter to the Joint Director stating therein that petitioners matter is not covered by the Government Order, for which matter has been referred to the State Government for certain guidelines, and till date no information has been received. Petitioner has contended that she has been making repeated request, but no action was being taken, and ultimately she preferred writ petition No. 43505 of 2000, Smt. Krishna Kumari Agrawal v. State of U. P. and others, wherein this Court on 01. 12. 2001 directed the respondents to take decision in the matter within time frame provided by this Court, but no action was taken then Contempt petition was filed, and thereafter order dated 20. 05. 12. 2001 directed the respondents to take decision in the matter within time frame provided by this Court, but no action was taken then Contempt petition was filed, and thereafter order dated 20. 05. 2005 has been passed taking stand that petitioner is not entitled for family pension. At this juncture present writ petition has been filed. ( 3 ) COUNTER affidavit has been filed, and therein it has been contended that nature of appointment of Tahvildar was governed as per terms and conditions provided in Government Order dated 25. 03. 1971, and further for the first time decision was taken on 31. 03. 1981 to extend the benefit to the employees working in Cash Branch as was admissible to State Employees. In the Government Order dated 31. 03. 1981, there was no provision for family pension and provision of family pension was made vide Government Order dated11. 12. 1991 and the same was made applicable with effect from 01. 01. 1981. Petitioners husband had died on 20. 11. 1978, as such; her claim was not covered under the said Government Order. It has been further contended that by means of Government Order dated 31. 03. 1987 contractual arrangement in the Cash Branch was finished and regular cadre was sought to be created, as such no benefit can be extended to the petitioner. Qua Rama Shankar Pandey, with whom petitioner is claiming parity, it has been stated that Rama Shankar Pandey died on 18. 05. 1989 and by that time the post of Tahvildar was given the status of State employees, as such the said benefit was not extendable to petitioner. ( 4 ) TO this counter affidavit rejoinder affidavit has been filed, and therein copies of the Government Orders dated 31. 03. 1981, 29. 06. 1984 05. 09. 1997 have been annexed and reference of one news item has also been mentioned, and it has been sought to be reiterated that petitioner is entitled to the benefits of family pension. ( 5 ) AFTER pleading mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. 1997 have been annexed and reference of one news item has also been mentioned, and it has been sought to be reiterated that petitioner is entitled to the benefits of family pension. ( 5 ) AFTER pleading mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties. ( 6 ) SRI K. K. Mishra, learned counsel for petitioner contended with vehemence that petitioners husband was a government servant and in view of the judgment of Honble Apex Court in the case of State of U. P. and another v. Awadh Narain Singh, AIR 1965 SC 360 , all benefits, which were admissible to government servants, including family pension, were extendable to petitioner as well and further the claim of petitioner was squarely covered by the judgment of this Court in writ petition No. 13828 of 1986, Rama Shankar Pandey v. State of U. P. and others, which has been subsequently affirmed in Special Appeal and Special Leave to Appeal, as such refusal of pension to petitioner is unjustifiable, and thus, petitioner has been meted with arbitrary treatment. ( 7 ) SRI P. K. Pandey, learned Standing Counsel, on the other hand contended that petitioner is not entitled for grant of family pension, for the reasons that her case is not covered either under any Government Order or the judgments of Honble Apex Court and this Court, as such the view which has been taken is correct view and no interference is warranted. ( 8 ) AFTER respective arguments have been advanced, factual position which emerges is to the effect that petitioners husband was appointed Tahvildar on 18. 11. 1954 and he died during service on 20. 11. 1978. In regard to the proposition as to whether Tahvildar appointed in Government Treasury is entitled to protection of Article 311 of the Constitution of India. The matter traveled up to Honble Apex Court. The Honble Apex Court in the case of State of U. P. and another v. Awadh Narain Singh, AIR 1965 SC 360 , took the view that the Government Treasurer is civil servant of the State holding a specific post and he is entitled by the terms of his employment to employ Tahvildar to assist him in discharging his duties. The Honble Apex Court in the case of State of U. P. and another v. Awadh Narain Singh, AIR 1965 SC 360 , took the view that the Government Treasurer is civil servant of the State holding a specific post and he is entitled by the terms of his employment to employ Tahvildar to assist him in discharging his duties. Payment of remuneration to such Tahvildars is for services rendered in the Cash Department of the District Treasury in the State. Tahvildars receive their remuneration directly from the State and are subject to the control of the District Officers in the matter of transfer, removal and disciplinary action. Employment of Tahvildars being for the purpose of carrying out the work of the State, even though a degree of control is exercised by the Government Treasurer and the appointment is in the first instance made by the Treasurer subject to approval of the District Officers, it must be held that Tahvildar is entitled to the protection of Article 311 of the Constitution of India. In the said judgment Government Treasurer who was to appoint Tahvildar, qua him categorical note was made that tenure of a Government Treasurer is temporary and he is not entitled to privileges of leave and pension, but he performs various duties connected with the executive functions of the State. Paragraphs 3, 4, 5, 7 and 10 of the said judgment are being quoted below: "3. The question which falls to be determined is whether a Tahvildar appointed in the cash Department in the State of Uttar Pradesh is a civil servant of the state of Uttar Pradesh or holds a civil post in the State. In the state of Uttar Pradesh, contract for administering the cash Department of the District treasuries are given to persons who are called Government Treasurers. The Treasurer holds a post specifically created in the District Treasury: he is appointed by the collector subject to the approval of the Finance Secretary. On being appointed, the Treasurer enters into an agreement for the due performance of his duties, and executes a bond in favour of the state. The tenure of a Government Treasurer is temporary and he is not entitled to privileges of leave and pension, but he performs various duties connected with the executive functions of the state. His appointment is made by the collector subject to the approval of the Finance Secretary. The tenure of a Government Treasurer is temporary and he is not entitled to privileges of leave and pension, but he performs various duties connected with the executive functions of the state. His appointment is made by the collector subject to the approval of the Finance Secretary. He has to maintain a true and faithful account of the property entrusted to him and he dealings therewith and to submit return as prescribed. He is also bound by the conditions, rules and regulations of the Government and also departmental rules and orders as may be in force, especially with reference to his relations and dealings with and the right of his subordinates. He has to attend the Government Treasury for the purpose of discharging his duties, and to show to his superior officers whenever called upon the property entrusted to him. A Government Treasurer is not in the partition of an independent contractor be does not merely undertake to produce a given result, without being in the actual execution under the control of the person for whom he does the work. He is in the execution of his duties, and in the manner, method and made of his work under the control of the State Government. 4. A Government Treasurer is entitled to appoint Tahvildars to assist him in the discharge of his duties, but the appointment is made with the approval of the District Collector. Originally Tahvildars were directly appointed by the Government of the Province to specific posts for performing duties in the District Treasuries. 4. A Government Treasurer is entitled to appoint Tahvildars to assist him in the discharge of his duties, but the appointment is made with the approval of the District Collector. Originally Tahvildars were directly appointed by the Government of the Province to specific posts for performing duties in the District Treasuries. In 1927, however, Government Order dated July 25, 1927 was issued by the Secretary to Government Uttar Pradesh, Finance Department reciting that Tahvildars in sub-treasuries were appointed on the nomination of the Treasurer of the District Treasuri, who was responsible for their work and honesty, the intention of the Government being that a Treasurer might dispense with the services of a Tahvildar as soon as he had lost confidence in him, but it had not been possible to put this intention into practice, because the Tahvildars were paid from the general revenue and were whole-time Government servants and entitled to the protection given to all Government servants by the Classification Rules, and it was difficult to hold the usual enquiry for the removal of a Tahvildar for he must be removed from service as soon as he lost the confidence of the Treasurer, otherwise the responsibility of the Treasurer to the Government would be impaired. In the circumstances, the best solution was to abolish the post of, Tahvildars, to increase the remuneration of the, Treasurer by an amount equal to the pay given to Tahvildars and to make him responsible for carrying on the work at sub-treasuries through his own servants. A reservation, however, was made that the Treasurer must not employ any person in the treasury or sub-treasury without the approval of the District officer and the Treasurer shall, when required by such District Officer remove without delay any person so employed. Pursuant to this Government Order, in the manual of Orders the following paragraph - 1561 - was incorporated. "tahvildars at sub-treasuries are no longer Government servants. They are employed by the Treasurer who receives an allowance from Government to cover their pay and leave salary. The Treasurer, however, shall not employ any person as a Tahvildar without the approval of the District Officer. The Treasurer shall remove a Tahvildar or transfer him from one Tehsil at another if required by the District Officer to do so on any ground which in the latter opinion justify such a step". 5. The Treasurer, however, shall not employ any person as a Tahvildar without the approval of the District Officer. The Treasurer shall remove a Tahvildar or transfer him from one Tehsil at another if required by the District Officer to do so on any ground which in the latter opinion justify such a step". 5. Even after the posts of Tahvildar were abolished the Government of Uttar Pradesh did not adopt a consistent attitude and from time to time issued orders which indicate that a considerable degree of control was maintained by the District officers upon the Tahvildars in the matter of appointment, removal from service, suspension and transfers and in the matter of payment of remuneration, dearness allowance and making available medical benefits. Tahvildars were treated on a par with other civil servants of the State. On December 9, 1939, a Government Order was issued for payment of remuneration to the Tahvildars directly from the Government Treasury. It had come to the notice of the Government that the Treasures paid to the cashier staff of the treasuries less than what they received on their account from the Government, after obtaining receipts for full amount. It was therefore directed that the Treasurer should prepare a statement showing in detail the employment of the Staff, but payment of emoluments was to be made to the persons concerned by the Treasury Officer personally and their acknowledgment taken In 1945 the Government of Uttar Pradesh raised with effect from April 1,1945, the allowance to be paid to Government Treasurers for the pay of "cashier staff of treasuries". By para. 3 (a) a scheme for payment of gratuity on retirement was also devised for the benefit of permanent Tahvildars. It was provided that when a permanent. Tahvildar retired, a gratuity of one months pay will be given to him for each completed year of service, subject to a maximum of 25 years completed service, the gratuity being admissible to permanent incumbents of posts and also to future entrants when appointed permanently, but not if the service of a Tahvildar was found either unsatisfactory, or if he resigned or was removed or dismissed form service. Gratuity was to be paid in the same manner as salaries were paid to the Tahvildars, and provisions on account of the increase due to the pay of Government Treasurers and allowances payable for pay of the cashier staff of treasuries and for the grant of gratuity to the cashier staff were made under the Heads "25. General Administration -B-District Administration (a) General Establishment, Pay of Establishment-Contract and Extra Control Establishment and "55-Superannuation allowances and Pensions and Gratuities Voted" respectively in the budget. By a letter dated June 17, 1958, addressed by the Joint Secretary to the Government it was brought to the notice of the Collectors of Districts that the Government Treasurers had frequently dispensed with the services of Tahvildars working under them without sufficient reasons justifying such a course of action and attempts had been made to harass such staff and that as a result of such arbitrary action on the part of the Government Treasurers, hardship had been caused to those employees. The Government therefore informed the Collectors to bring to the notice of the Treasurers that adverse notice of such action is likely to be taken by the Government in future in case it was established that the Government Treasurers had indulged in high-handedness in their dealings with theft staff. It was also recorded by the Collector of Azamgarh that instances had come to his notice in which the services of the employees in the Cash Department of the treasuries had been dispensed with arbitrarily without framing specific charges against them or obtaining explanations, and it was ordered that in future when services of the employees in the Cash Department were to be dispensed with, a report for their suspension should be made and specific charges framed against them and they should be given time to explain the charges and their services should not be dispensed with as a result of arbitrary action of the subordinate staff or the Treasurer. Orders have also been lately issued in 1959, by which the scale of dearness allowance of the Tahsildars was revised and certain facilities for free medical attendance were also provided. 7. It is therefore clear from the record that Tahvildars were appointed to perform the duties of cashiers in Government Treasuries. Orders have also been lately issued in 1959, by which the scale of dearness allowance of the Tahsildars was revised and certain facilities for free medical attendance were also provided. 7. It is therefore clear from the record that Tahvildars were appointed to perform the duties of cashiers in Government Treasuries. Their appointment was made by the Government Treasurer with the approval of the District Collector, but it was made for performance of public duties, and remuneration was paid to them by the State directly. Tahvildars were liable to be transferred under orders of the Collector and to be suspended or removed from service under his orders. An instance already, referred to shows that a Tahvildar who had been suspended by the Treasurer was ordered to be reinstated by the Collector. It is from these circumstances that the relationship between the Government of Uttar Pradesh and Tahvildars has to be ascertained. 10. The Government Treasurer is a civil servant of the State holding a specific post, and he is authorised by the terms of his employment to employ Tahvildars to assist him in discharging his duties. Payment of remuneration to the Tahvildars is for services rendered in the "cashier department of the District treasury" of the State. The Tahvildars receive their remuneration directly from the State, and are subject to the control of the District Officers in the matter of transfer, removal and disciplinary action. Employment of Tahvildars being for the purpose of carrying out the work of the State, even though a degree of control is exercised by the Government Treasurer and the appointment is in the first instance made by the Treasurer subject to the approval of the District Officers, it must be held that the Tahvildar is entitled to the protection of Art. 311 of the Constitution. " ( 9 ) THE afore-quoted judgment takes note of the fact that Government Treasurer, who was entitled to appoint Tahvildar to assist him in the discharge of his duties, even he himself was not entitled to the benefits of family pension, as has been categorically noted in paragraph 3 of the judgment of Honble Apex Court. Once the Appointing Authority himself, at that point of time was not entitled for privilege of pension, it would be too much to conceive that Tahvildars were entitled to pension. Once the Appointing Authority himself, at that point of time was not entitled for privilege of pension, it would be too much to conceive that Tahvildars were entitled to pension. The said judgment is merely on the issue as to whether Tahvildar is entitled to protection of Article 311 (2) of the Constitution and no other issue has been decided therein. ( 10 ) PETITIONERs husband died on 20. 11. 1978 and till then there was no provision, whatsoever, which provided for pension/family pension to the employees of Cash Department and their families. On 31. 01. 1981 for the first time decision had been taken to extend the benefit of pension and other benefits to the employees of Cash Department also. Said Government Order was clear and categorical that family pension was not at all made admissible. Thereafter by means of Government Order dated 11. 12. 1991 decision was taken to extend the benefit of family pension with effect from 01. 01. 1981. In the said Government Order this particular provision was clear and categorical and as far as claim of petitioner is concerned, the same was not at all covered under this Government Policy. ( 11 ) HONble Apex Court in the case of Commander Head Quarter, Calcutta and others v. Capt. Biplabendra Chandra, J. T. 1997 (10) SC 371, has taken the view that pension is payable to them who fall within the ambit of Rules. Similar view has been taken in the case of Tamil Nadu Electricity Board v. R. Veerasamy and others, 1999 (2) ESC 1030 (SC ). Both these judgments have been followed by this Court in the case of Nathho Begum v. State of U. P. , 2005 (4) ESC 2557. Petitioners claim does not fall within the parameter of grant of family pension. ( 12 ) MUCH reliance has been placed by the petitioner on the judgment dated 01. 12. 1992 passed in writ petition No. 13828 of 1986, Rama Shankar Pandey v. State of U. P. and others, which has been affirmed in Special Appeal No. 236 of 1999 and. Special Leave to Appeal preferred against the judgment passed in Special Appeal has also been dismissed on 29. 11. 1999. 12. 1992 passed in writ petition No. 13828 of 1986, Rama Shankar Pandey v. State of U. P. and others, which has been affirmed in Special Appeal No. 236 of 1999 and. Special Leave to Appeal preferred against the judgment passed in Special Appeal has also been dismissed on 29. 11. 1999. Petitioners claim, that similar benefit is liable to be extended to her also in view of the judgment in case of Rama Shankar pandey, is totally misconceived, as the said judgment will not come to the rescue of petitioner. The said judgment has followed the judgment of Honble Apex Court in the case of Rama Shankar Pandey (supra), wherein it has been observed that Government Treasurer, who was appointing authority of Tahvildar even he was not entitled to the benefits of pension though he performed various duties connected with executive functions of the State. The issue of pension was not at all involved in the said case before the Honble Apex Court. The only issue involved, was as to whether Tahvildar is entitled to protection of Article 311 (2) of the Constitution or not, and nothing beyond the same. Even judgment dated 01. 12. 1992 mentions that widow of Rama Shankar Pandey will be paid family pension, if rule permits. Learned Single Judge was conscious of this fact that family pension can be made payable only if rule permits. Before this Court nothing has been brought on behalf of petitioner to show that claim of petitioner for grant of family pension in any view of the matter was covered by rules. Judgment dated 01. 12. 1992 in fact negates the claim of petitioner, as directive in the said judgment was clear that family pension would be payable if rule permits. Said judgment has been affirmed in Special Appeal as well as in Special Leave to Appeal. Consequently, qua the said judgment no benefit can be claimed by the petitioner. ( 13 ) LEARNED counsel for petitioner has placed heavy reliance on the judgment in case of Union of India v. Ayub Ali, 2006 (7) SCC 51 for the proposition that different view cannot be taken and the view has to be taken in the line of the judgment which has been affirmed in appeal. Proposition propounded in the said judgment is not at all disputed. Proposition propounded in the said judgment is not at all disputed. Here, as already pointed out, the said view of the learned Single Judge, which has been affirmed in appeal will not at all come to rescue of petitioner, inasmuch as in the said judgment specific mention was made that family pension shall be made available only if the rule permits. Here, petitioner has failed to point out any rule which permits grant of family pension in favour of petitioner. In this regard, it would be relevant to note that earlier service of Tahvildar was contractual in nature as is evident from the Government Order dated 25. 03. 1971. Honble Apex Court, keeping in view the nature of duties and the control being exercised on Tahvildars, took the view that they are government servants entitled for protection of Article 311 (2) of the Constitution of India. On 27. 03. 1987 policy decision was taken and contractual arrangement was sought to be done away with and Rules known as U. P. Treasury (Cash Branch) Ministerial Staff Service Rules, 1987 were enforced and it was resolved that full fledged cadre be created and it was decided that all benefits extendable to government employees be extended to these incumbents also. Benefit of pension and other benefits was not made extendable and the same was extended for the first time vide Government Order dated 31. 03. 1981 and thereafter family pension was made available vide Government Order dated 11. 12. 1991 with effect from 01. 01. 1981. Till date as far as claim of petitioner is concerned, the same is not governed by any Rules. There is no policy decision for ensuring payment of family pension for the petitioner, then by no stretch of imagination any infirmity can be found in the action taken by respondents. HELD: Consequently, writ petition lacks substance and the same is dismissed. .