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2011 DIGILAW 520 (UTT)

BHIM SINGH NAINWAL v. STATE OF UTTARAKHAND

2011-08-17

SUDHANSHU DHULIA

body2011
JUDGMENT (Oral) Heard Mr. M.S. Pal, Senior Advocate assisted by Mr. T.P.S. Takuli, Advocate for the petitioners, Mr. B.D. Upadhyay, Additional Advocate General for the State of Uttarakhand/respondent Nos. 1 to 4 and 7, Ms. Beena Pande, Standing Counsel present for the State of Uttar Pradesh/respondent nos. 5 and 6. 2. Kumaon University was earlier not a party in this case. During the course of hearing though it transpired that the University must be heard before any order could have been passed. Mr. B. D. Upadhyay, the learned counsel for the University was served with a copy of the petition and the University was formally made a party in this petition vide order dated 26.7.2011. Learned counsel for the University has very fairly stated before this Court that he need not file a counter affidavit in this case and submissions will be made only on the basis of record which is already before this Court. 3. Heard learned counsel for the petitioners as well as learned counsel for the respondents. 4. The three petitioners before this Court are working on Group-C post in the Kumaon University at Nainital. Prior to absorption in the services of the University, the petitioners were working in Government Degree College, Nainital. The issue before this Court is as to whether the services of the petitioners which they had put in as an employee of the Government Degree College should be counted while fixation of their pension and other post retirement benefits. The petitioners had earlier moved a representation before the Director, Accounts & Entitlement, Government of Uttarakand, which was rejected on 29th July, 2006 primarily on the ground that the petitioners had not put in 10 years of minimum service as an employee in Government Degree College and therefore they are not eligible for pension for as such employee. Aggrieved, the petitioners have filed present writ petition. 5. During the pendency of the present writ petition before this Court, petitioner no. 1 has already reached the age of superannuation and has retired. The remaining petitioners are still in service in the University. 6. It is an admitted case that, the services of all the petitioners for pensionary benefit have been counted from 1.2.1981, i.e. the date when they stood absorbed in the service of the University. 1 has already reached the age of superannuation and has retired. The remaining petitioners are still in service in the University. 6. It is an admitted case that, the services of all the petitioners for pensionary benefit have been counted from 1.2.1981, i.e. the date when they stood absorbed in the service of the University. What is to be noted is that just a day prior to that date i.e. on 31.1.1981 all the three petitioners tendered their resignation as government employees from Govemment Degree College. A fact which is admitted. In other words, there has been no break in their service and that there was a continuity of service. This fact has been admitted by the respondents as well. The petitioners have now relied upon a letter dated 1.5.1981, inter alia, by which the services of the petitioners were absorbed from the Government Degree College Almora, to the Kumaon University. The said order states that the employees already working in the Government Degree College, Almora/Nainital shall be absorbed in the Kumaon University according to the terms and conditions from the date of acceptance of their resignation (the date of resignation in this case is 31.1.1981). This letter dated 1.5.1981 passed by the Higher Education Department was subsequently modified/amended by adding that from the said date (i.e. 1.5.1981), they are allowed to be absorbed in the University along with retirement/pension/gratuity. It is further clarified that from that date they shall be considered to have been retired along with their pension, gratuity and other benefits. The terms and conditions of absorption have been given in the letter written by the Higher Education Department, Allahabad to the Registrar, Kumaon University/Garhwal University where condition No.6, inter alia, states that the employees who have been absorbed in the University (such as the present petitioners), in their case the conditions of Part-II, Chapter II to IV of the Fundamental Rules 56 (e) shall be relaxed to the extent of giving such an employee retirement, pension and other post retirement benefits and this amount will be given to the employee immediately. 7. Fundamental Rule 56 (e) reads as under: "56. (a) .... (b) .... (c) .... (d) .... 7. Fundamental Rule 56 (e) reads as under: "56. (a) .... (b) .... (c) .... (d) .... (e) A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant Rules to every Government servant who retires or is required or allowed to retire under this rule. Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less; Explanation.-(1) The decision of the appointing authority under clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest. (2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c) the appointing authority may take into consideration any material relating to the Government servant and nothing herein contained shall be construed to exclude from consideration- (a) any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis; or (b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry: or (c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965. (2-A) Every such decision shall be deemed to have been taken in the public interest. (3) The expression appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire; and the expression 'qualifying service' shall have the same meaning as in the relevant Rules relating to retiring pension. (3) The expression appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire; and the expression 'qualifying service' shall have the same meaning as in the relevant Rules relating to retiring pension. (4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) of this rule shall have effect from the afternoon of the date of its issue, provided that if after the date of its issue, the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired." 8. There is no dispute regarding the fact that in the said Fundamental Rule, the Government has fixed a minimum period which is ten years of service for a person to become eligible for the pensionary benefits. However, it is this ten years' condition, which has been relaxed in the case of the present petitioners. As it is evident from the order which were passed at the time of the absorption of employees in the Kumaon University, such as the petitioners. It is another matter that this amount which is pension etc was never paid to these petitioners immediately. 9. Learned counsel for the Kumaon University Mr. B. D. Upadhyay, however, states that the said provision clearly states that this pension was to be given to such employees immediately, meaning at the time of their absorption. We would examine this aspect as well. 10. The fact of the matter is that both the Government as well as the University and the petitioners who are absorbed in the University were conscious of the terms and conditions of absorption, which was very clearly stated and which was, inter alia, that the period of service they have already put in in the government service shall be counted while determining their pension and other post retirement benefits. This being the admitted position of the case of the petitioners, the denial of this pension by order-dated 29.7.2006 is a clear injustice done on the petitioners. This being the admitted position of the case of the petitioners, the denial of this pension by order-dated 29.7.2006 is a clear injustice done on the petitioners. The fact that the pension and other post retirement benefits were not given to the petitioners immediately, as required by order dated 1.5.1981 shall not come in the way of the petitioners getting their dues which is their right. 11. The Hon'ble Apex Court in R. Kapoor Vs. Director of Inspection (Painting and Publication), Income Tax and Anr. reported in 1995 (1) UPLBEC page 89, has held that the pension and gratuity are not bounty but a right of a retired government servant. 12. This writ petition is therefore disposed of with the following directions: 13. Respondent no. 7 is hereby directed to re-fix the pension of the petitioners adding 6 years 2 months 22 days in the case of petitioner no. 1, 8 years, 3 months 10 days in the case of petitioner no. 2 and 6 years, 2 months and 22 days in the case of petitioner no. 3 i.e. the number of period they have put in in the government service prior to their absorption in Kumaon University. The above directions, as given, shall be complied with by the concerned authority as expeditiously as possible, but definitely within a period of three months from the date a certified copy of this order is produced before the concerned authority. 14. No order as to costs.