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Allahabad High Court · body

2008 DIGILAW 2702 (ALL)

STATE OF U. P. AND OTHERS v. GAYA RAM

2008-12-17

ARUN TANDON, ASHOK BHUSHAN

body2008
JUDGMENT By the Court.—Heard Sri C.K. Rai, learned Standing Counsel for the appellants and Sri G.P. Gupta, learned counsel appearing for the respondent. 2. This is an intra Court appeal against the judgment and order of learned Single Judge dated 5th August, 2008 whereby the writ petition filed by the respondent has been allowed by directing payment of pension w.e.f. 3.12.2004 following the judgment of learned Single Judge in the case of Hans Raj Pandey v. State of U.P., 2007(2) UPLBEC 2073. 3. Against the said judgment the State of U.P., Finance and Account Officer, Basic Education Officer as well as Secretary, Basic Shiksha Parishad, Allahabad have filed this appeal. Parties agree that the appeal be disposed of without calling for any further affidavits. 4. The brief fact necessary for deciding the issues raised in the appeal are that: the respondent petitioner was appointed as a Class-IV employee in an institution of the U.P. Basic Shiksha Parishad. Initial appointment of respondent was on fixed emolument. By an order dated 30th November, 1995 the services of the respondent were regularized in the pay scale of Rs. 750-940. The respondent retired from service on 31.12.2004. His claim with regard to payment of pension was forwarded by the Basic Shiksha Adhikari. The Finance and Account Officer, Basic Education, Sonebhadra on 2nd June, 2005 wrote a letter to the Basic Shiksha Adhikari pointing out that the services of respondent prior to his regularization i.e. 30th November, 1995 were on fixed salary, therefore, cannot be treated as qualifying service. The period of qualifying service for pension is only 9 years, hence he is not entitled for pension. The respondent challenged the said order by means of the writ petition, praying for quashing the order of the Finance and Account Officer, Basic Education, Sonebhadra and a mandamus for payment of pension w.e.f. 31.12.2004. 5. In the writ petition a counter affidavit was filed by the Finance and Account Officer. In paragraph 3 of the counter affidavit it was clearly stated that appointment of the petitioner-respondent w.e.f. 1st August, 1973 was as a Peon on fixed emolument and in such capacity respondent continued till 30th November, 1995. Thereafter he was regularized in the pay scale of 750-940 w.e.f. 30th November, 1995. In paragraph 3 of the counter affidavit it was clearly stated that appointment of the petitioner-respondent w.e.f. 1st August, 1973 was as a Peon on fixed emolument and in such capacity respondent continued till 30th November, 1995. Thereafter he was regularized in the pay scale of 750-940 w.e.f. 30th November, 1995. It has been stated that the services of the respondent prior to 30th November, 1995 being on fixed salary were not to be taken into account for pension and the respondent, having not completed 10 years of qualifying service, is not entitled for pension. 6. The learned Single Judge by the impugned judgment has allowed the writ petition relying on the judgment of this Court in the case of Hans Raj Pandey (supra). 7. Sri C.K. Rai, learned counsel for the appellant challenging the judgment contended that the services of respondent on fixed emolument were not to be added for determination of qualifying period for pension, the regular services of the respondent being less than 10 years, he is not eligible for pension. Sri Rai submits that provisions of Regulations 44 and 45 were applicable only to the teachers while the respondent, who was only a Class IV employee, was to be dealt with under Regulation 46, which provide that only after completion of 10 years of eligible service, an employee becomes entitled for pension. He further contended that the judgment in the case of Hans Raj Pandey (supra) did not examine that the services of an employee on fixed emolument are not to be added in the eligible period for pension. He submits that the decision in the case of Hans Raj Pandey (supra), which is based on earlier judgment of this Court in the case of Shakuntala @ Brahmo Devi (Smt.) v. Director of Pension; 2002(3) ESC 200 (All), is not applicable in the case of fixed pay employees. He clarifies that the judgment in the case of Shakuntala (supra) was in respect of a temporary employee and in that context the Court has held that the temporary employees, who completed 10 years of service, are entitled for pension by virtue of the Government Order dated 1.7.1989. 8. Learned counsel for the respondent supported the impugned judgment and contended that the services of the respondent prior to 30th November, 1995 have also to be treated as temporary. 8. Learned counsel for the respondent supported the impugned judgment and contended that the services of the respondent prior to 30th November, 1995 have also to be treated as temporary. He submits that he was paid fixed salary but at the initial of the scale prescribed by the State Government, which was revised with every revision of the pay scale. He submits that the judgment in the case of Hans Raj Pandey (supra) is fully applicable in the facts of the present case and the earlier period of service is liable to be added for the purposes of pension. He further contends that Regulations 44 and 45 also become applicable to the Class-IV employee in view of Regulation 1 of Chapter 5 of the Regulations framed under the U.P. Basic Education Act, 1972. 9. We have considered the submissions and perused the records. 10. A Class-IV employee working under the control of Basic Shiksha Parishad, having rendered 10 years’ qualifying service, is eligible for grant of pension. There is no dispute to the entitlement of a Class-IV employee who has put in 10 years of qualifying service. The issue in the present case is as to whether the period of service rendered by the respondent prior to 30th November, 1995 can be treated as qualifying service. According to Regulation 44, the temporary and officiating appointment can be added, if on the same post or another post the person has been confirmed subsequently, as qualifying service. The said Regulation 44 (Kha) does not help the respondent since the appointment of the respondent cannot be termed as temporary or officiating. The appointment of respondent was on fixed emoluments. 11. Sri C.K. Rai, learned counsel for the appellant has brought to our notice a Government Order dated 8th August, 1994, whereby recommendation of Basic Shiksha Parishad for giving the benefit of general provident fund, group insurance and pension to the fixed pay Class-IV employee was turned down by the Government on the ground that since the fixed pay employees are not appointed against any post, they cannot be treated to be regular employee. 12. The judgment in the case of Hans Raj Pandey (supra), on which much reliance has been placed by the learned counsel for the respondent, relied on earlier judgment in the case of Shakuntala (supra). 12. The judgment in the case of Hans Raj Pandey (supra), on which much reliance has been placed by the learned counsel for the respondent, relied on earlier judgment in the case of Shakuntala (supra). The judgment in the case of Shakuntala is on the facts where the husband of the petitioner was employed as Panchayat Mantri on 12th August, 1958. Subsequently the post of Panchayat Mantri was designated as Gram Vikas Adhikari. The said employee was compulsory retired on 21.12.1992. In that context the question arose qua payment of pension. In the counter affidavit, filed in that case, it was stated that the said employee was a temporary Government servant. This Court interpreting the Civil Services Regulation as well as Government Order dated 1st July, 1989 took a view that a temporary Government servant, who has rendered 10 years service as such, is also entitled for the pension. The relevant paragraphs of the judgment in the case of Shakuntala (supra), as has been relied and quoted in the judgment of Hans Raj Pandey’s case, read as follows : “11. From the aforesaid guidelines it is clear that the said guidelines are not an independent provision in force but the said guidelines have been issued for guidance of pension sanctioning authority. Thus the consequence of the Government Order dated 1.7.1989 has to be looked into while deciding as to whether the temporary Government servant compulsory retired is entitled or not entitled for the pensionary benefits. As observed above the aforesaid Government Order was issued with intent and object of Government extending pensionary benefits to temporary Government servants who have completed ten years of regular service. The provisions of Rule 56(c) of Fundamental Rules has clearly provided that notwithstanding anything contained in clause (a) or clause (b), the Appointing Authority may, at any time, by notice to any Government servant whether permanent or temporary, without assigning any reason, require him to retire after he attains the age of fifty years....... Thus, the provisions of Fundamental Rule 56 are applicable both on permanent and temporary employees as noted above, sub-rule (e) of Rule 56 mandates grant of retiring pension to every Government servant who retires or is required or allowed to retire under this rule. The opening line of Rule 56(e) are of significance which provides .... retiring pension shall be payable. The opening line of Rule 56(e) are of significance which provides .... retiring pension shall be payable. Thus, the intendment of Rule 56(e) is to provide retirement pension to every Government Servant who retires or is required to retire under Rule 56. Thus, the intendment of statutory Rule 56(e) is to extend benefit of retiring pension to both category of person i.e., persons compulsory retired or persons voluntary retired. From the above intendment of rule it is clear that no distinction or discrimination has been maintained with regard to payment of retiring pension to persons voluntary retired or compulsory retired. Thus, by Government Order dated 1.7.1989 the temporary Government servant compulsory retired cannot be excluded from benefits of retiring pension. When the statutory Rule i. e., 56(e) does not maintain any distinction with regard to payment of retiring pension to person compulsory retired and voluntary retired, no such classification can be created by a Government Order, which is an executive order. The object of the Government Order as noted above was to extend pensionary benefits to temporary Government servants who have rendered ten years regular service. Thus, the persons compulsory retired cannot be excluded from the pensionary benefits and if it is accepted that the Government Order dated 1.7.1989 creates such classification then the said classification will be arbitrary and unreasonable. It is, thus, held that the benefit of Government Order dated 1.7.1989 is also available to the temporary Government Servants who are compulsory retired. There is no rational basis for any such classification nor there can be any valid object for such classification. 12. Learned Standing Counsel Sri Ajay Bhanot has laid much emphasis on the words “nl o"kZ dh fu;fer lsok “ as used in the Government Order dated 1.7.1989. The submission of the learned Standing Counsel as that the petitioner was only temporary Government Servant hence he cannot be said to have rendered regular ten years service; hence he is not entitled for the benefit of Government Order dated 1.7.1989. The words “nl o"kZ dh fu;fer lsok iw.kZ dj yh gks A” used in the Government Order dated 1.7.1989, means completion of ten years regular service. Words ‘regular service’ has not been defined in the Government Order. The words “nl o"kZ dh fu;fer lsok iw.kZ dj yh gks A” used in the Government Order dated 1.7.1989, means completion of ten years regular service. Words ‘regular service’ has not been defined in the Government Order. From a reading of the Government Order it is clear that the word “ten years regular service” has been referred to the service rendered and not to the status of employee, an employee substantively appointed and permanent is automatically entitled for pension. The Government Order dated 1.7.1989 does not contemplate ten years substantive service. The words “regular service” used in the Government Order is not anonymous to substantive service. Admittedly the benefit by Government Order is to be extended to temporary Government servant. The temporary Government servant cannot be said to have substantive or regular service. Thus, the words “regular service” used in the Government Order dated 1.7.1989 has not been used as specifying he capacity or status of its holder rather the words “regular service” has been used to denote and specify the nature of service rendered. The emphasis is that service should be regular. While defining the word “regular” the Apex Court in AIR 1980 SC 1464 , Mrs. Raj Kanta v. Financial Commissioner, Punjab and another, has held in paragraph 10 as under: “To begin with, the word “regular” is derived from the word “regular” which means "rule” and its first and legitimate signification, according to Webster, is conformable to a rule, or agreeable to an established rule, law, or principle to a prescribed mode. In Words and Phrases (Vol. 36-A, P. 241) the word “regular" has been defined as steady or uniform in course practice or occurrence, etc. and implies conformity to a rule, standard, or pattern. It is further stated in the said Book that ‘regular’ means steady or uniform in course, practice, or occurrence, not subject to unexplained or irrational variation. The word “regular” means in a regular manner, methodically, in due order. Similarly, Webster’s New World Dictionary defines ‘regular’ as ‘consistent or habitual in action’ not changing, uniform, conforming to a standard or to a generally accepted rule or mode of conduct.” 14. Government Order dated 1.7.1989 meant ten years of temporary Government servant should be regular in nature meaning thereby that if the temporary Government servant has performed his duties irregularly i.e., with gaps of years, his service may not be treated to be regular. Government Order dated 1.7.1989 meant ten years of temporary Government servant should be regular in nature meaning thereby that if the temporary Government servant has performed his duties irregularly i.e., with gaps of years, his service may not be treated to be regular. Thus, the contention of the learned Standing Counsel that the words “regular service” used in the Government Order means substantive service or service rendered by an employee in regular capacity cannot be accepted. Sri Som Dutt Sharma had admittedly rendered 34 years service and District Panchayat Raj Officer who is Appointing Authority has already recommended for grant of pensionary benefits by holding that his entire 34 years’ service qualify for pension. In view of the above, Sri Sharma had completed ten years of regular service as contemplated in the Government Order dated 1.7.1989.” 13. The judgment of Shakuntala’s case was thus on different facts where the status of the employee as temporary was not denied. In Hans Raj Pandey’s case also the Court noticed that petitioner was a Class-IV employee on the fixed pay, who was subsequently regularized and after regularization he had not completed ten years of service. 14. In Hans Raj Pandey’s case the employee was appointed on 6.2.1970 and was regularized on 15.10.1996. Subsequently he retired after obtaining the age of superannuation on 30th June, 2002. He had rendered six years regular service. Learned Single Judge although noticed that the employee was appointed on fixed pay but the consequence of being on fixed pay was not considered in its true prospective and the judgment in the case of Shakuntala (supra) was relied for giving benefit to the said employee. In paragraph 14 of the said judgment the learned Single Judge observed that it has not been disputed that nature of appointment of petitioner was temporary in nature. Learned Single Judge, in paragraph 3 having noticed that he was a fixed pay employee, proceeded to decide the case with an observation that nature of appointment was temporary. 15. There is a difference in the nature of the appointment of temporary employee vis-a-vis an employee who is appointed on fixed salary. A temporary appointment can be made against a permanent or temporary post, whereas for the appointment on fixed pay there is no requirement of a post. Thus, there is a major difference in the nature of appointment of two classes of employees. A temporary appointment can be made against a permanent or temporary post, whereas for the appointment on fixed pay there is no requirement of a post. Thus, there is a major difference in the nature of appointment of two classes of employees. Thus, the judgment in the case of Hans Raj Pandey (supra), in so far as it holds that the period of service rendered on fixed pay, prior to regularization, shall also be added in his qualifying service, cannot be upheld. 16. Learned counsel for the respondent submits that in the service-book of the petitioner the word “temporary” has been mentioned, he was a temporary employee. Petitioner has also produced photo copy of the service-book, which we have perused. From the perusal of the service-book it is clear that the respondent was initially appointed on fixed emolument of Rs. 165/- per month and the said fixed emolument was subsequently increased w.e.f. 1.1.1986 to Rs. 750/-, which emolument was paid till he was regularized. While fixing the scale w.e.f. 1.1.1986 it has been mentioned that his salary was Rs. 750/-. In the order dated 2.6.2005 the Finance and Account Officer has also noted that the respondent, prior to regularization, was working on fixed pay of Rs. 750/-. 17. In view of the aforesaid, the contention that respondent was a temporary employee cannot be accepted. 18. At this stage learned counsel for the respondent contended that by virtue of Regulation 45, the controlling authority have been given power to condone the period up to six months in qualifying service. 19. In the present case the respondent, after being regularized on 30th November, 1995, retired on 31st December, 2004. He has rendered more than 9 years service. The controlling authority has been empowered to exempt a period up to six months only. We are of the view that this is a fit case in which the Basic Shiksha Adhikari-appellant No. 4 may recommend the claim of the respondent for exemption of period, which falls short of 10 years period, to the State Government-appellant No. 1. 20. In view of the aforesaid the judgment and order of the learned Single Judge dated 5.8.2008 is modified by issuing a direction to Secretary, Basic Shiksha Parishad to forward the claim of respondent petitioner for exemption of the period of the service to the extent it falls short of 10 years for payment of pension. 20. In view of the aforesaid the judgment and order of the learned Single Judge dated 5.8.2008 is modified by issuing a direction to Secretary, Basic Shiksha Parishad to forward the claim of respondent petitioner for exemption of the period of the service to the extent it falls short of 10 years for payment of pension. Respondent No. 1 may take an appropriate decision regarding the retiral benefits to be paid to the respondent in accordance with law. Necessary recommendation shall be forwarded by the authority within one month from today and the State Government shall take appropriate decision expeditiously, preferably within four months. 21. Before we close the order it is necessary to observe that the distinction between a fixed pay appointee and a temporary appointee for denial of the benefit of service rendered as such, as indicated by the Government Order dated 8th August, 1994, is that fixed pay employee are not employed against any post. 22. Counsel for the respondent before us has contended that respondent was appointed against a post. Substantial material has not been brought on the record of the writ petition for this Court to come to a definite conclusion as to whether the respondent, who was engaged on fixed pay, was employed against a post or not. 23. It is open for the State Government to obtain necessary reports with regard to the fact as to whether the respondent was appointed against a post or not. If it is found that he was appointed against a post, Government may further consider the question of treating the services rendered on fixed pay as the qualifying service. 24. With the aforesaid observations/directions the appeal is disposed of. The judgment and order of the learned Single Judge is modified accordingly. ————