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2010 DIGILAW 2346 (ALL)

Sita Ram & Anr. v. State of U. P. & Ors.

2010-08-04

SHABIHUL HASNAIN

body2010
Shabihul Hasnain,J.:- This matter has been remanded back by a Division Bench of this Court, by an order passed in Special Appeal No. 6639 of 2009 State of U.P. vs. Sita Ram and another. The writ petition was allowed by Hon'ble Single Judge on 11.2. 2009. The State preferred the special appeal and the matter has been sent back. 2. During the course of argument, it was found that petitioner no. 2 Surendra Singh has already rendered qualifying service of ten years and therefore, his claim was adjudicated in his favour finally and he was found entitled for pensionary benefits on completion of qualifying service. 3. So far petitioner no. 1 Sita Ram is concerned, his claim was allowed by Hon'ble Single Judge on the ground that he had been working for more than thirty seven years on the post of Seenchpal, though there was no existing post and therefore, he was entitled to have pensionary benefits. 4. In special appeal, appellant- State argued that the petitioner no. 1 could not be given pensionary benefits as he did not have the required ten years of regular service to his credit. 5. The facts giving rise to the writ petition are summarized as below:- Petitioner- Sita Ram was appointed on the post of Pump Operator on 18.5. 1970, he has worked for thirty eight years and retired from the post of Seechpal, on 31.1. 2008, still his services were not regularized, although this is not true for his junior. Petitioner says that in spite of these facts, the entire service period was not counted for providing the pensionary benefits. He says that the pensionary benefits have been denied merely on the pretext that the petitioner- Sita Ram has completed only 9 years, 8 months and 25 days as regular employee, which is less than ten years, whereas he has completed more than thirty eight years of service. Learned counsel for the petitioner pointed out that vide official notification dated 6.12. 1997, the petitioner including others, have been declared successful as trained Seenchpal, but the regularization orders have been passed on 1.5. 1998. The opposite parties have ignored the notification dated 6.12.1997 in this regard, and have counted the regular service only w.e.f. the date of order dated 1.5.1998 otherwise if the regular service on the post of Seenchpal is taken into consideration w.e.f. 6.12. 1987, the petitioner no. 1998. The opposite parties have ignored the notification dated 6.12.1997 in this regard, and have counted the regular service only w.e.f. the date of order dated 1.5.1998 otherwise if the regular service on the post of Seenchpal is taken into consideration w.e.f. 6.12. 1987, the petitioner no. 1 shall be fully entitled for pensionary benefits. 6. The Division Bench has remanded this matter mainly on the ground that there was no sanction post, the petitioner has worked against non sanctioned post, although for petty long period. His appointment was dehors the rules and hence pensionary benefits cannot be given to the petitioner. It was observed by the Division Bench that the Hon'ble Single Judge has decided the writ petition and these aspect of the matter have not been considered at all. 7. Sri R.J. Trivedi, for the petitioners says that the action of the State for not giving the benefits of regularization to the petitioner no. 1 with effect from 6.12.1997 and regularizing him with effect from 1.5. 1998 is mala-fide action. He further submits that as far back as in the year 1991, interim mandamus was issued in the writ petition, filed by him earlier requiring the respondents to consider the regularization of petitioner no. 1 or to show- cause as to why petitioner no. 1 should not be regularized, but the said order was not complied with. The said writ petition is still pending but the matter of his regularization was never considered before 6.12.1997. 8. After regularization on 1.5.1998 when the petitioner no. 1 was not given pensionary benefits, he made a representation before the authority concerned and when his representation was rejected, this writ petition was filed. 9. Now in the wake of observation of the Division Bench, Sri R.J. Trivedi has drawn the attention of this Court towards annexure- 3 and the Office Order dated 6.12.1997. A perusal of this order shows that the newly constituted committee vide G.O. No.762/92- Sinchai-7-80 (VI) 89- 16.9. 1993 and the letter of Chief Engineer (Sajja and Samigri Prabandh) No.293 dated 23.12.1996, regarding regularization, eight Seenchpals, who were eligible and had been given training and declared successful, were considered for regularization, were recommended for regular appointment, by the selection committee held on 24.11. 1997. The letter of recommendation was issued on 6.12.1997. 10. Vide annexure IV dated 1.5.1998, persons mentioned in annexure no. 1997. The letter of recommendation was issued on 6.12.1997. 10. Vide annexure IV dated 1.5.1998, persons mentioned in annexure no. 3 were given regular appointment, on the basis of the recommendation of the selection committee held on 24.11.1997 as mentioned in annexure- 3 dated 6.12.1997. 11. The name of the petitioner is at serial no. 2 in the list of recommendees. A close scrutiny of these two letters would go to show that on 24.11. 1997, the petitioner was found eligible for regular appointment. Letter dated 6.12. 1997 also says that eight persons were found eligible for the selection against regular vacancy. The availability of post, therefore, cannot be denied by the opposite parties in the wake of annexure- 3. The sole question, which remains to be decided is that when the selection committee was held on 24.11.1997, and the recommendations were made on 6.12.1997 why the letter was issued on 1.5. 1998. The petitioner argues that this delay for six months in issuing the regular appointment letter on 1.5.1998, is the deliberate act on the part of the opposite parties, which can only be termed as unreasonable and arbitrary. Had the letter been issued forthwith, the required ten years of regular service would have been available to the petitioner. It has been stated in para- 4 of the rejection of representation dated 20.6.2008, that the petitioner could not complete ten years on the date of his retirement on 31.1.2008. Thus the petitioner's regular service falls short by about five months on the date of his retirement. The petitioner had effectively rendered regular service of nine years, five months and eighteen days. It is clear from this calculation that if the appointment order had not been delayed and issued on 6.12. 1997, the petitioner would have rendered ten years of regular service and would have qualified for pensionary benefits. No reason has been explained for this delay. It is ample clear that this delay was not caused because of any fault of the petitioner, rather the delay can be attributed on the part of the opposite parties. Thus the petitioner has, over all, put in thirty seven years of service. Even if earlier, 27 years of service of the petitioner were against non sanctioned post, regular service of the petitioner cannot be wished away. 12. In these circumstances, the petitioner cannot be denied pensionary benefits. Thus the petitioner has, over all, put in thirty seven years of service. Even if earlier, 27 years of service of the petitioner were against non sanctioned post, regular service of the petitioner cannot be wished away. 12. In these circumstances, the petitioner cannot be denied pensionary benefits. This Court in its judgment reported in 2009(27) LCD- 1163, Mohd. Mustafa vs. State of U.P. and others, has taken into consideration all these aspect of the matter, in which in para- 10 and 11 of the report, it has been held as under :- “Learned counsel for the petitioner has placed reliance on the following cases :- 1. Direct Recruit Class II Engg. Officer's Association. vs. State of Maharashtra, AIR 1990 SC- 1607. 2. Santosh Kumar vs. State of Andhra Pradesh and others, (2003) 5 SCC- 511 : ( AIR 2000 SC 1578 ) 3. Raj Bhushan Gandhi v. Secretary, Haryana State Electricity Board and another, (1994) Supp. (1) SCC- 56 : (1993 AIR SCW 2743) 4. Uttar Haryana Bijli Vitran Nigam Ltd. and others vs. Surji Devi (2008) 2 SCC 310 : ( AIR 2008 SC 1114 ) and 5. State of U.P. and others vs. Rajendra Nath Pandey 2008 (26) LCD 1760. 13. In the case of State of U.P. and others vs. Rajendra Nath Pandey (supra) a Division Bench of this Court while deciding the special appeal has granted pension to a person who has rendered regular service of only 7 months and 26 days. Their Lordship dismissed the special appeal of the State and held that the entire service of the petitioner shall be counted for the purpose of pensionary benefits and the employee was granted pension without giving any benefit of seniority. 14. This case is at the better footing than the case reported above. Therefore, the writ petition is allowed. The order dated 20.6.2008 rejecting the representation of the petitioner is quashed. The opposite parties are directed to pay the pensionary benefits to petitioner no. 1, within a period of two months from the date a certified copy of this order, is placed before them.