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2012 DIGILAW 379 (JK)

Chief Engineer EM&RE Wing & Ors. v. Sarla Chopra & Ors.

2012-07-09

HASNAIN MASSODI, VIRENDER SINGH

body2012
Per Massodi, J.— 1. The short controversy involved in the Letters Patent Appeal in hand relates to availability of benefits under Proviso(1) to Article 226 the Jammu and Kashmir Civil Service Regulations 1956 to a Government employee, though a member of inferior service within the meaning of Article 20-C of the Regulation on 10th October, 1966, yet ceases to have such status on the date of his retirement on superannuation. The controversy rises against following backdrop. 2. Late Sat Paul Chopra, husband of respondent No.1 and father of respondent nos. 2 to 4, joined respondent-department as Fitter-Cum-Turner on 13th August, 1962. Sh. Chopra on the strength of his merit and seniority rose up the ladder and on 23rd October, 1976 was promoted as Meter-Reader and was retired from service on attaining age of 55 years on 31st August, 1982. 3. The legal heirs of Sh. Chopra(deceased) aggrieved that Sh. Chopra was retired five years before he was to retire on superannuation in terms of the Rules, approached the Writ Court with Writ Petition registered as SWP No. 202/2001. Petitioners' case was that Sh. Chopra appointed as Fitter-Cum-Turner, was a member of "inferior service" as on 10th October, 1966 and in terms of proviso(1) to Article 226 read with Article 20-C to Civil Service Regulations 1956, was to continue in service till he attained age of 60 years. The writ petitioners/respondents insisted that deceased was to be deemed to have been in service till 31st August 1987 and they were entitled to the benefit that would have otherwise come to the deceased-government employee. 4. The Writ Petition was opposed by the appellants herein, respondents before the Writ Court on the ground that late Mr. Chopra ceased to be a member of inferior service, after his promotion to the post of Meter Reader on 23rd October, 1976 and as he was not a member of inferior service on his attaining age of 55 years (now 58 years), he was not entitled to the benefit available to the member of "inferior service" under rules. 5. The Writ Court on going through the pleadings, material placed before it and on hearing learned counsel for the parties allowed the Writ Petition. 5. The Writ Court on going through the pleadings, material placed before it and on hearing learned counsel for the parties allowed the Writ Petition. The Writ Court was of the opinion that deciding factor for availability of benefit under the proviso (1) to Article 226 read with Article 20-C to Regulations was whether such an employee was a member of inferior service on 10.10.1966 and not whether he was member of inferior service on the date of attaining age of 55 years (now 58 years). Learned Writ Court referred in detailed to the rule position and found merit in writ petition. The Writ Petition was accordingly allowed and Late Sat Paul Chopra directed to be deemed to have been in government service till the age of 60 years. As a consequence of declaration, Sh. Chopra was held entitled to the salary and other emoluments attached to the post held by him till he attained age of 60 years. The writ petitioners as successors-in-interest of the deceased government employee, were entitled to all the said emoluments and consequential post retiral benefits that would have otherwise come in the way of the deceased employee. 6. The Writ Court judgment dated 3rd December, 2005 was initially questioned by the appellant through the medium of Review Petition registered as Rev. (SWP) No. 12/2007. However, the Review Petition did not find favour with the Court and was dis-allowed on 16th November, 2007. The appellant un-daunted by its failure get the Writ Court judgment reviewed, have come up with the Letters Patent Appeal, questioning the Writ Court Judgment dated 3rd December, 2005 on the grounds set out in the memorandum of the Appeal. 7. We have gone through the memo of appeal and the judgment impugned in the appeal. We have heard learned counsel for the parties at length. 8. The State Government as a model employer while prescribing rules as regards superannuation and the retirement of a person in Government service, carved out an exception in favour of members of "inferior service" and decided to prescribe their age of retirement different from one prescribed from the other government servants. The object seemingly has been to extend the benefits as regards the age of retirement in favour of the members of inferior service not made available to other government servants. The object seemingly has been to extend the benefits as regards the age of retirement in favour of the members of inferior service not made available to other government servants. The underlying idea appears to be that member of "inferior service" having regard to the nature of his duties would be in a position to render service and discharge such duties even after attaining age of 55 years (now 58 years). Hidden in the Proviso to Article 226(1) to Civil Service Regulations where-under the benefits of retirement on attaining age of 60 years is extended to the members of "inferior service", possibly is a concession extended to such members, having regard to the fact that such government servants have lowest status in the government hierarchy as also lowest paid in such hierarchy and by and large are drawn from under privileged and disempowered section of the society. This fact is borne out by the definition of "inferior service" as given in Article 20-C read with Schedule-II to the Regulations. In terms of SRO-406 dated 10th October, 1966 the definition of term "Inferior Service" was directed to be deemed as deleted except for the purpose of its application with reference to Proviso to Article 226(1). In terms of aforesaid SRO, the distinction between members of inferior service and other government servants stands obliterated prospectively with effect from 10th October, 1966. Resultantly, 10th October, 1966 is the crucial date as regards extension of benefits available under the Proviso to Article 226(1) Civil Service Regulations to the members of the service. A government servant who became or has become member of inferior service on or before 10th October, 1966 would be entitled to the benefits of Proviso to Article 226(1) Civil Service Regulations, while such benefits would not be available to an appointee against the post that find place in Schedule-II to the Regulation, after 10th October, 1966. This, however, does not clinch the matter. 9. The question that arises for consideration is as to whether a government servant, who was member of inferior service on 10th October, 1966 would get benefit available under Proviso(1) to Article 226 CSR even-though he has been promoted and at the time of his retirement is not the member of inferior service. 10. The question arose in LPA (SWP) No. 23/1995 titled State and other v. Shri Sita Ram. 10. The question arose in LPA (SWP) No. 23/1995 titled State and other v. Shri Sita Ram. The respondent/writ petitioner in the aforesaid Appeal was initially appointed in the year 1957 against the post belonging to inferior service within meaning of Article 20-C read with Schedule-II to the Civil Service Regulations. He was, however, subsequently promoted to the post of Technician-II in the pay scale of Rs. 1200-2440, a post admittedly not part of the inferior service within the meaning of Article 20-C read with Schedule-II to Civil Service Regulations. The respondents/writ petitioners' case was that as he was member of inferior service on crucial date viz 10th October, 1966 and even after his promotion was paid salary less then that he received before his promotion, he was entitled to continue in service upto the age of 60 years. Though the Writ Court accepted the plea, the Writ Court Judgment was set aside by the LPA Court observing that "intentment of the legislation" had escaped intention of the Writ Court. 11. The benefits available in terms of Proviso (1) to Article 226 to CSR as would be clear from above discussion, is linked with the status of government servant at the time he reaches the age of superannuation. If on his attaining the age of 55 years (now 58 years) he is a member of "inferior service" and was so, on 10th October, 1966 he is not to be sent home but allowed to continue in service till he attains the age of 60 years. However, if on attaining age of 55 years (now 58 years) he is no more a member of inferior service though he was member of such service on 10th October, 1966, he has to compulsory retire in terms of Article 226(1) on his attaining age of 55 years (now 58 years) and not to continue till he attains the age of 60 years. 12. Having regard to the underlying reasons and the objects ought to be achieved the age of superannuation in such cases is linked with the status of government employee on his attaining age of 55 years (now 58 years) and not only to his status on 10th October, 1966. The nature of service on the date the government servant attains the age of 55 years (now 58 years), would be a deciding factor in such a case. The nature of service on the date the government servant attains the age of 55 years (now 58 years), would be a deciding factor in such a case. Any other interpretation of Proviso to Article 226(1) read with Article 20-C and Schedule-II to Civil Service Regulations, would lead to irrational conclusion, inasmuch as, a government servant though initially appointed against a post in the "inferior service" on the strength of merit and seniority position goes three steps up ladder in the hierarchy and discharging same duties as are discharged by his colleagues in the office though not initially appointed against a post in the "inferior service", would get a benefit not made available to his such colleagues. The treatment given to the government servant initially appointed against in "inferior service" and his colleagues equal in status at the time of retirement but not initially appointed in "inferior service" would be discriminatory in character and in-conflict with mandate of Articles 14 and 16 of the Constitution of India. To illustrate, if a person appointed as a Peon-Orderly prior to 10th October, 1966 - a post included in Schedule-II to Civil Service Regulations as part of inferior service, earns a few promotions during service carrier and reaches up to the position of Head Clerk on his attaining age of 55 years (now 58 years) would be allowed to continue in service up to 60 years and his colleague in the office initially appointed as Junior Assistant (not part of inferior service) who also has risen up to the position of Head Assistant at the time of attaining 55 years (now 58 years) would be compulsory retired on attaining such age. 13. For the reasons discussed above, the writ Court has not appreciated the case projected before it in right prospective having regard to spirit of Article 226(1) read with Article 20-C and Schedule-II to Civil Service Regulations. The deceased initially appointed against a post belonging to inferior service within meaning of Article 20-C read with Schedule-II to Civil Service Regulation, continue to be member of inferior service till 10.10.1976, i.e. the date he was promoted as Meter Reader, was not a member of inferior service on his attaining age of 55 years on 31st August, 1982. Sh. The deceased initially appointed against a post belonging to inferior service within meaning of Article 20-C read with Schedule-II to Civil Service Regulation, continue to be member of inferior service till 10.10.1976, i.e. the date he was promoted as Meter Reader, was not a member of inferior service on his attaining age of 55 years on 31st August, 1982. Sh. Chopra in the circumstances was not entitled to the benefit available under Proviso to Article 226(1) and did not have a right to continue till he would have attained age of 60 years. Sh. Chopra was, therefore, rightly retired on superannuation on his attaining age of 55 years in terms of Article 226(1) of Civil Service Regulations with effect from 31st August, 1982. The decision taken in this behalf by the appellant did not call for any interference and no case was made out by the respondents herein to be entitled to the relief granted by the Writ Court. The Writ Court order dated 3rd December, 2005 is, therefore, liable to be set aside. 14. So viewed, the Letters Patent Appeal directed against the Writ Court order dated 3rd December, 2005 in SWP No.202/2001 is allowed and the Writ Court order dated 3rd December, 2005 is set aside. 15. Let the Appeal with Writ Court record go to records after due compilation.