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Rajasthan High Court · body

2008 DIGILAW 267 (RAJ)

L. Rs. of Heera Lal Jain v. State of Rajasthan

2008-01-29

SANGEET LODHA

body2008
JUDGMENT 1. - In this writ petition, the petitioner, since deceased represented by his legal Representatives has sought directions to count his services w.e.f. 16.08.1954 to 29.02.1992 as qualifying service for the purpose of grant of pension. Besides, the petitioner has also claimed grant of selection grades on his completion of 9, 18 and 27 years of service in terms of Government order dated 25.01.1992, providing for grant of selection grades to the employees in Class IV, Ministerial and Subordinate Services and those holding isolated posts. 2. Briefly stated the facts of the case are that the petitioner entered in the Service of Municipal Board, Barmer (In short "the Board" hereinafter) on 16.08.1954 having been appointed as Lower Division Clerk. He attained the age of superannuation on 29.02.1992 and consequently, retired from the post of Lower Division Clerk. 3. The grievance of the petitioner is that he has completed 37 years, 6 months and 13 days of service satisfactorily but for the purpose of pensionary and other retiral benefits, his services during the period 16.08.1954 to 18.05.1965 has not been included in qualifying service on the ground that during the said period no contribution towards the provident fund was deducted from his salary. It is stated that in pursuance of order dated 27.02.1993, passed by the Commissioner of the respondent Board, the requisite amount towards the contribution to the provident fund account for the aforesaid period, has been deducted and deposited by the respondent Board vide challan No. 660/10.03.1993. However, vide letter dated 02.06.1994, the petitioner was informed by the respondent Board that his revised pension case has been returned by the Department of Pension on the ground that the deductions made towards contributory provident fund after retirement of an employee cannot be accepted, therefore, the petitioner's services for the period from 16.08.1954 to 18.05.1965, cannot be counted for the purpose of pension. The petitioner made a detailed representation and submitted that for the lapse on the part of respondent Board, he cannot be made to suffer However, the respondent No. 3 vide communication dated 04.08.1994 while referring to the decision of the Department of Finance, informed that the said period cannot be counted for the purpose of grant of pension. 4. The petitioner made a detailed representation and submitted that for the lapse on the part of respondent Board, he cannot be made to suffer However, the respondent No. 3 vide communication dated 04.08.1994 while referring to the decision of the Department of Finance, informed that the said period cannot be counted for the purpose of grant of pension. 4. Further grievance of the petitioner is that he has not been accorded selection grade in terms of Government order dated 25.01.1992 on completion of 9, 18 and 27 years of service. 5. A reply to the writ petition has been filed on behalf of the respondent No. 1, wherein it is stated that the contribution towards CPF cannot be deposited after retirement as per the clarification/directions issued by the Department of Finance vide circular dated 02.11.1992, therefore, petitioner's period of service from 16.08.1954 to 30.04.1965 had rightly been excluded while counting the qualifying service for grant of pensionary benefits. It is stated that memorandum dated 13.07.1994 issued by the Department of Finance for counting the services of work charged employees for the purpose of grant of pension irrespective of whether deduction towards contributory provident fund was made from his salary or not, is not applicable to the petitioner whose pension case already stands closed/disposed of on 03.02.1993. 6. A reply to the writ petition has also been filed on behalf of the respondent Board wherein, while reiterating the stand taken vide communications dated 02.06.1994 and 04.08.1994, it is submitted that the petitioner is not entitled for counting of services during the period the contribution towards the CPF has not been deducted. Regarding grant of selection grade, it is stated that initially petitioner was appointed as Sub Nakedar on 16.08.1954 and was promoted on the post of Nakedar on 24.11.1955 and thereafter, he was promoted as LDC w.e.f. 20.06.1960, therefore, the contention of the petitioner that he was never granted promotion is incorrect. It is further alleged that the petitioner has never made any representation regarding his promotion or grant of selection grade. Thus, according to the respondent Board, the petitioner is not entitled for any relief. 7. It is contended by the learned counsel for the petitioner that if the contribution towards the CPF has not been deducted and deposited by the respondent Board then, the petitioner cannot be penalised for no fault on its part. Thus, according to the respondent Board, the petitioner is not entitled for any relief. 7. It is contended by the learned counsel for the petitioner that if the contribution towards the CPF has not been deducted and deposited by the respondent Board then, the petitioner cannot be penalised for no fault on its part. The learned counsel submitted that on account of non deduction of the contribution towards the CPF, the period for which petitioner has actually rendered the service, cannot be excluded from qualifying service for the purpose of grant of pension. In this regard, the learned counsel relied upon a decision of this Court in the matter of Rajendra Nath Sharma and Anr. v. State of Raj and Ors. 2005 (2) CDR 1131 . Regarding the denial of grant of selection grade, it is submitted by the learned counsel that in terms of Government order dated 25.01.1992 which has been made applicable to the employees of the municipalities, the petitioner was entitled for grant of selection grades on completion of 9,18 and 27 years of service inasmuch as he has retired from service w.e.f. 29.02.1992 whereas, said order has come into force w.e.f. 25.01.1992. 8. The learned counsel appearing on behalf of the respondents have reiterated the stand taken by them in the reply to the writ petition. 9. I have considered the rival submissions and perused the record. 10. It is to be noticed that the qualifying service to be counted for the purposes of pension has been defined in Rule 10 of Rajasthan Municipal Service (Pension) Rules, 1989 (in short "the Rules of 1989" hereinafter). As per Clause (b) of Rule 10, all services on regularly sanctioned post during which pay was drawn in the prescribed pay scale shall qualify for pension provided the Board has contributed towards contributory provident fund or pension fund, as the case may be. As per Rule 7 of the Rules of 1989, if, an employee opts for pension, that part of balance in his CPF account, which is on account of subscriptions made by him and interest credited thereon shall be transferred to the pension fund. As per Rule 7 of the Rules of 1989, if, an employee opts for pension, that part of balance in his CPF account, which is on account of subscriptions made by him and interest credited thereon shall be transferred to the pension fund. It is further provided that in case, the Board has not contributed towards CPF for any period, an amount equal to contribution which was to be made by the Board together with interest thereon, shall be deposited by the concerned Board from its own sources to the pension fund. In is not in dispute that the Board has contributed towards the contributory provident fund and the contribution of the Board to the CPF account of the petitioner alongwith interest thereon stands credited to the pension fund constituted under Rule 8 of the Rules of 1989. If for any reason, the Board has not contributed towards CPF for any period, an amount equal to the contribution which was to be made by the Board together with interest thereon, has to be deposited by the concerned Board from its own source in terms of Rule 7 of the Rules of 1989. Further, a conjoint reading of provisions of Rules 7 and 10(b) of the Rules of 1989, makes it abundantly clear that if, for any reason, the employee's contribution towards the provident fund has not been deducted contributed towards the CPF for any period then, on that account, such period of service cannot be excluded from being counted for the purpose of pension as qualifying service. That apart, if on account of lapse on the part of the respondent Board, contribution towards CPF is not deducted and deposited, then, the petitioner cannot be made to suffer for no fault in his part. In this view of the matter, Department of Pension has seriously erred in returning the revised pension case of the petitioner forwarded by the respondent Board on the ground that the deductions made towards contributory provident fund after retirement of an employee, cannot be treated as contribution and the period for which the contribution is not deducted and deposited cannot be counted for the purpose of pension as qualifying service. Accordingly, the petitioner is held entitled for counting of his services w.e.f. 16.08.1954 to 29.02.1992 as qualifying service for the purpose of grant of pension in terms of Rule 10 of the Rules of 1989. 11. Accordingly, the petitioner is held entitled for counting of his services w.e.f. 16.08.1954 to 29.02.1992 as qualifying service for the purpose of grant of pension in terms of Rule 10 of the Rules of 1989. 11. Coming to the petitioner's entitlement for grant of selection grade, it is to be noticed that in terms of Government order dated 25.01.1992 made applicable to the employees of the various municipalities in the State, the employees in class IV/Ministerial and Subordinate Services and those holding the isolated posts and drawing pay in revised pay scale 1989, the maximum of which does not exceed Rs. 3200/- are entitled to be considered for grant of selection grade on completion of 9, 18 and 27 years of service. As per clause 3 of the order, the service of 9, 18 and 27 years, as the case may be, shall be counted from the date of first appointment in the existing cadre/service in accordance with the provisions contained in the Recruitment Rules. However, if an employee subsequent to his first appointment to a post in a cadre/service as a result of direct recruitment is appointed to some other post in the same cadre or any other cadre, service from date of later appointment shall be taken into consideration for the purpose of grant of selection grade. As per clause 2, the first, second and third selection grade shall be granted on completion of 9,18 and 27 years of service provided the employee has not got First, Second and Third promotions respectively available in his existing cadre. 12. The respondent Board in its reply to the writ petition has taken the stand that the petitioner was initially appointed on the post of Sub Nakedar and was later promoted on the post of Nakedar and then on the post of LDC. It is to be noticed that the under the Rajasthan Municipalities (Subordinate and Ministerial Service), Rules, 1963, the post of Sub Nakedar and Nakedar falls within the category of Subordinate Service and post of LDC in the category of Ministerial Service. The post of Sub Nakedar is the feeding post for the promotion to the post of Nakedar, therefore, if the petitioner was appointed as Sub Nakedar and he has been promoted on the post of Nakedar then, he had already got his first promotion in his existing cadre. The post of Sub Nakedar is the feeding post for the promotion to the post of Nakedar, therefore, if the petitioner was appointed as Sub Nakedar and he has been promoted on the post of Nakedar then, he had already got his first promotion in his existing cadre. It is not clear from the facts set out in the writ petition and reply thereto as to how the petitioner's came to be appointed on the post of LDC. Be that as it may, the post of Nakedar in Subordinate Service and the post of LDC in the Ministerial service are equivalent post carrying the same pay scale, therefore, the absorption of the petitioner on the post of LDC by no stretch of imagination, can be treated to be his second promotion in his existing cadre. Thus, it view of the fact that the petitioner has completed more than 37 years of service and retired from service w.e.f. 29.02.1992, he was entitled to be considered for grant of selection grade in terms of Government order dated 25.01.1992 prescribing selection grade for the employees in Class IV/Ministerial and Subordinate Services and those holding the isolated posts made applicable to the employee of various municipalities. Thus, the--denied the consideration for grant of selection grade to the petitioner in terms of the aforesaid Government order, is ex facie illegal. 13. In view of the discussion above, the writ petition succeeds, it is hereby allowed. The respondents are directed to count the entire service rendered by the petitioner from 16.08.1954 to 29.02.1992 as qualifying service in terms of Rule 10 of the Rules of 1989 for the purpose of grant of pension. The respondents are further directed to consider the petitioner's case for grant of selection grade in terms of Government order dated 25.01.1992 prescribing selection grade for the employees in Class IV/Ministerial and Subordinate Services and those holding the isolated posts. The respondents shall complete the entire exercise for redetermination of the pension and grant of selection grade, as aforesaid, within a period of two months from the date of this order and the entire arrear shall be paid to the legal representatives of the petitioner within a period of one month thereafter. No order as to costs.Writ Petition allowed. *******