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2012 DIGILAW 1447 (ALL)

Mano Devi v. State of U. P. and Others

2012-07-04

B.AMIT STHALEKAR

body2012
Hon'ble B. Amit Sthalekar,J.— By this writ petition the petitioner is seeking a direction in the nature of mandamus commanding the respondents to pay the pension and other retiral benefits along with the interest from the date of his superannuation i.e. 15.7.2001. The facts of the case, in brief, are that the petitioner was appointed as Sevika in the Kanya Junior High School, Akbarpur, District Kannauj on 2.5.1970 and her services were also regularised as such with effect from 24.8.1995. Her contention is that she has retired from service on 15.7.2001 on attaining the age of superannuation but she has not been paid any pension or retiral benefits. I have heard Sri Arun Kumar Tiwari, learned counsel appearing for the petitioner and Sri K.Shahi, learned counsel appearing for respondent nos.2 to 5. The submission of learned counsel for the petitioner is that the petitioner was appointed on 2.5.1970 as a Sevika in the Kanya Junior High School, Akbarpur, District Kannauj, which is run under the Zila Parishad and her services are governed by the U.P. Basic Education Act, 1972. It is further submitted that the services of the petitioner were regularised by order dated 6.4.1999 with effect from 24.8.1995 by the District Basic Education Officer, District Kannauj and the petitioner was joined on regular scale of Rs.750-12-870 D.A.14-940 with effect from 24.8.1995. Her case is that since she has been working continuously, w.e.f. 1970, therefore, she is entitled for counting the entire period of service towards pension and other retiral benefits. Per contra, learned counsel for the respondents submitted that the qualifying service of the petitioner will be counted only from 24.8.1995, which comes to less than six years and the period of service put in by her on fixed pay, cannot be counted towards qualifying service for purposes of pension and grant of retiral benefits. This fact that the services rendered by the petitioner from 1970 upto 1995 on fixed pay has not been disputed by the learned counsel for the petitioner. Sri Sahi has placed reliance upon a decision of a Division Bench of this Court reported in 2009(2) ADJ 601 , State of U.P. and others vs. Gaya Ram. This fact that the services rendered by the petitioner from 1970 upto 1995 on fixed pay has not been disputed by the learned counsel for the petitioner. Sri Sahi has placed reliance upon a decision of a Division Bench of this Court reported in 2009(2) ADJ 601 , State of U.P. and others vs. Gaya Ram. The Division Bench while interpreting the provisions of the Regulations 44 and 45 read with Regulation 1 of Chapter V of the Regulations framed under the U.P. Basic Education Act, 1972 has held that relaxation of the period prior to qualifying service can be considered by the Secretary, Basic Shikha Parishad only to the extent of six months it falls short of period of ten years required for making an employee eligible for pension and retiral benefits. In the case before the Division Bench, the period of service, short of ten yeas, was only six months and it was in that context that the Division Bench considered the provisions of Chapter V of the Regulations and Regulations 44 and 45 framed under the U.P. Basic Education Act, 1972, and directed the matter to be reconsidered by the Secretary, Basic Shiksha Parishad. Learned counsel for the petitioner on the contrary sought to place reliance upon the Single Judge decision of this Court reported in 2007 (2) UPLBEC 2073, Hansraj Pandey vs. State of U.P. wherein the learned Single Judge had directed that the entire period of service rendered by the employee even on fixed pay, prior to regularisation, be counted towards qualifying service for purposes of fixation of pension and grant of retiral benefits. The Division Bench in the case of Gaya Ram (supra) has, however, considered the judgement of the learned Single Judge in the case of Hansraj (Supra) and observed that in so far as it holds that the period of service rendered on fixed pay, prior to regularisation shall be added in his qualifying service, cannot be upheld. The Division Bench has held as fallows:- "14. In Hans Raj Pandey's case the employee was appointed on 6.2.1970 and was regularzied on 15.10.1996. Subsequently he retired after obtaining the age of superannuation on 30th June, 2002. He had rendered six years regular service. The Division Bench has held as fallows:- "14. In Hans Raj Pandey's case the employee was appointed on 6.2.1970 and was regularzied 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 onfixed pay but the consequence of being on fixed pay was not considered in its true prospective and the jugement in the case of Shakuntala (Supra) was relied for giving benefit to the said employee. In paragraph 14 of the said judment 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. Thus, the judgement in the case of Hans Raj Pandey (Supra), in so far as it hold that the period of service rendered on fixed pay, prior to regularisation, 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 regularised. 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 regularisation, 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. 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 regularisation, 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 upto 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 Shikhsa Adhikari-appellant No4 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." In the circumstances, the admitted position being that the service rendered by the petitioner from 1970 upto regularisation in 1995 was only on a fixed pay and, therefore, in view of the law laid down by the Division Bench of this Court in the case of Gaya Ram the total regular service of the petitioner was less than six years. Therefore, in view of the law laid down by the Division Bench in the case of Gaya Ram (supra) the petitioner is not entitled for the relief of pension or retiral benefits. At this stage learned counsel for the petitioner requested that a direction may be given to the District Basic Shikha Adhikari, Kannauj to consider the case of the petitioner for relaxation of the period of service prior to her regularisation. Such a direction cannot be given particularly in the light of the provisions of the Regulation 45 framed under the U.P. Basic Education Act, 1972 since the Controlling Authority has been conferred the power to condone the period only upto six months for the purpose of qualifying service. Even otherwise this relief, which was granted by learned Single Judge in the case of Hansraj (supra) has been negated by the Division Bench in the case of Gaya Ram (supra). Even otherwise this relief, which was granted by learned Single Judge in the case of Hansraj (supra) has been negated by the Division Bench in the case of Gaya Ram (supra). In view of the above discussions on the facts and circumstances of the case and law laid down by the Division Bench, the writ petition devoid of merit and accordingly is dismissed. _