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2009 DIGILAW 3167 (ALL)

KISHAN SINGH v. STATE OF U. P.

2009-09-18

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri G.P. Pal, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. It is not in dispute that the petitioner was engaged as Seasonal Collection Peon on 13.6.1963, regularised as Collection Peon on 31.1.1996, confirmed on the post of Collection Peon on 4.9.2000, attained the age of superannuation on 28.2.2005 and retired from the said post. Considering his qualifying service of less than 10 years, the respondents have not paid any pension to him hence this writ petition. Reliance is placed by learned counsel for the petitioner on a Division Bench decision of this Court in Board of Revenue and others v. Prasidh Narain Upadhyay, 2006(1) ESC 611. 3. However, having heard learned counsel for the petitioner and perusing the record, I do not find any merit in the writ petition. 4. It is no doubt true that pension being deferred wages, as held by Hon’ble Apex Court in D.S. Nakara v. Union of India, 1983 (1) SCC 305 , is not a bounty but right but simultaneously it is also true that pension when payable is governed by the statutory rules or the statute and in case the rules do not provide for the same it cannot be claimed at all. The petitioner from 1963 to January, 1996 remained a Seasonal Collection Peon and only on 31.1.1996 he was appointed against a substantive vacancy, kept on one year probation and was appointed in pay scale of Rs. 750-940 as Collection Peon. After completion of period of probation vide order dated 4.9.2000 he was also confirmed on the post of Collection Peon. He retired on 28.2.2005 after attaining the age of superannuation i.e., 60 years as provided under Fundamental Rule 56. 5. 750-940 as Collection Peon. After completion of period of probation vide order dated 4.9.2000 he was also confirmed on the post of Collection Peon. He retired on 28.2.2005 after attaining the age of superannuation i.e., 60 years as provided under Fundamental Rule 56. 5. The submission of learned counsel for the petitioner that in Prasidh Narain Upadhyay (supra) also the incumbent was a Seasonal Collection Peon and was held to be entitled for pensionary benefits taking into account his service rendered as Seasonal Collection Peon as qualifying service is not correct inasmuch as in the said case the Board of Revenue which had filed an intra Court appeal before the Division Bench has taken a plea that the employee was not substantively appointed and confirmed on the post of Collection Peon but had throughout worked as Seasonal Collection Peon which fact was not found correct either by Hon’ble Single Judge or by the Division Bench as is evident from para 5 of the judgment which is reproduced as under : “5. From the record it is not disputed that the respondent has worked as Collection Peon since 10.2.1962 till 31st July, 1999 when he attained the age of superannuation on attaining 60 years of age and was retired from service (except of notional break of three months in the year 1989). Thus, apparently the respondent worked in the service of the appellants for almost more than 37 years. The appellants although submitted that the respondent was employed as Seasonal Collection Peon but the Hon’ble Single Judge on the basis of the perusal of the service book of the respondent has found that the employment of the petitioner-respondent has been mentioned as Collection Peon (Temporary) but subsequently in the service book it has been mentioned that he is working as Seasonal Collection Peon. The entry of initial appointment of the petitioner-respondent as temporary Collection Peon is not disputed. That being so, it is not possible to assume as to how the respondent has been shown as Seasonal Collection Peon in the subsequent part of the service book. The appellants could not explain this aspect even in the present appeal, although in para-7 of the affidavit they have admitted that in the 2nd column of the service book, a formal entry “temporary” of the service of the respondent is mentioned. The appellants could not explain this aspect even in the present appeal, although in para-7 of the affidavit they have admitted that in the 2nd column of the service book, a formal entry “temporary” of the service of the respondent is mentioned. It is also mentioned that the notice of retirement dated 5.5.1999 filed as Annexure-2 to the paper book of the appeal shows that the designation of the petitioner-respondent has been shown as Sangrah Chaprasi (Collection Peon) and not as a Seasonal Collection Peon, i.e. Samyik Sangrah Chaprasi. The order passed on the petitioner-respondent’s representation by the appellants also shows that in the year 1996 the appellants recommended the petitioner-respondent for regularization to the Board of Revenue but the matter remained pending for years together and no order could be issued due to inaction on the part of the Board of Revenue and in the meantime the respondents attained the age of superannuation on 31.7.1999.” 6. After having recorded a finding that he was a temporary employee since very beginning and not a seasonal one, the only question which was considered in that case whether mere non-confirmation of the employee would be a sufficient reason to deny him pension when he has worked for about 37 years as temporary employee. This question was considered by the Court in the light of the amendment made in Fundamental Rule 56 read with Article 424 Chapter 18 of Civil Service Regulations, and, as interpreted by a Division Bench of this Court in Dr. Hari Shankar Asopa v. State of U.P. and others, 1989 ACJ 337 and it was held that by amendment in Fundamental Rule 56 even a temporary Government servant was allowed to retire and Clause (e) thereof provide for retiring pension to all such persons meaning thereby the same would also include a temporary Government servant. This Court did not accept the contention that even a Seasonal Collection Peon would be entitled for pensionary benefits. In fact in Prasidh Narain Upadhyay (supra), objection about the status of the employee being seasonal was negatived, as is also find support from para 16 of the said judgment where the Division Bench took the following view : “16. This Court did not accept the contention that even a Seasonal Collection Peon would be entitled for pensionary benefits. In fact in Prasidh Narain Upadhyay (supra), objection about the status of the employee being seasonal was negatived, as is also find support from para 16 of the said judgment where the Division Bench took the following view : “16. Learned counsel for the appellants further submitted that since in the service book, the petitioner-respondent was also shown as Seasonal Collection Peon and, therefore, the mention of word “temporary” as his initial appointment will not make any difference. We do not agree. The contention of the appellants that the petitioner-respondent was a Seasonal Collection Peon and his engagement and post was extended from time to time by the Commissioner is totally unsubstantiated, as nothing has been brought on record to substantiate this plea. Even otherwise the continuous working of the petitioner-respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitioner-respondent flowing by rendering service for such a long service, cannot be brushed aside lightly.” 7. The provisions of Civil Service Regulations have been held sub-served to the statutory provision contained in Fundamental Rule 56 which was substituted by Legislative Act, i.e., U.P. Act No. 24 of 1975 only to the extent the regulations inconsistent with the legislative provision would be inoperative. This Court laid down that the provisions of Civil Service Regulations i.e., in respect to Article 361(1)(b), the word “substantive” and “permanent” is redundant since after the amendment made in Fundamental Rule 56 even a temporary Government servant was entitled for pension and, therefore, temporary service was held to be qualifying service for pension but rest of the provision continued to be valid and operative. A seasonal employee, cannot be equated with a temporary employee. This Court has not been shown any provision whereunder even a seasonal employee is entitled for pension. 8. Consistent with the provisions of Civil Service Regulations and Fundamental Rule 56 several Government Orders were issued from time to time and by the subsequent Government Order dated 1.4.1989 it was clarified that a temporary servant who has completed 10 years of service would also be entitled for pension. No provision has been shown to this Court which provide otherwise. 9. No provision has been shown to this Court which provide otherwise. 9. Admittedly, since the petitioner has not rendered qualifying service to the extent provided in the Rules entitling him for pension after his status as Seasonal Collection Peon ceased, I do not find any reason to interfere with the order impugned in this writ petition. The writ petition lacks merit and is accordingly dismissed. No costs. ————