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2014 DIGILAW 151 (JK)

Samitri Devi v. State

2014-04-02

TASHI RABSTAN

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1. By the medium of this petition, the petitioner is seeking a direction to the respondents to release the pension and other consequential benefits in her favour from the date her husband retired from service, on the grounds taken in the writ petition. 2. The facts, as averred in the writ petition, are that the husband of the petitioner, namely, Balak Ram was initially engaged as a Cook on daily wage basis in the Police Department in the year 1983. He worked as such upto October 1991 when he was appointed as Water Carrier against available vacancy vide order dated 22.10.1991. it is contended that the husband of petitioner after rendering more than 18 years of service against a clear vacancy retired in the year 2010. The necessary documents were forwarded to the Office of Accountant General, Jammu vide communication dated 30.04.2010. The Senior Superintendent of Police, Rajouri also furnished all necessary information to the office of Accountant General for settlement of his pension case. The office of Accountant General vide communication dated 25.06.2010 intimated the SSP Rajouri that the husband of petitioner had rendered 18 years, 7 months and 9 days service, but as he was not confirmed nor declared quasi-permanent, therefore, is entitled to terminal gratuity only in terms of Rule 11(a) of J&K Civil Service Regulation (Temporary Service) Rules, 1961. Before the controversy could be set at rest, the husband of petitioner expired on 30.09.2011 and this is how the petitioner has filed the instant petition seeking release of family pension and other retiral benefits in her favour. 3. Respondents have filed objections. It is admitted by respondents 1 to 6 in their objections that husband of petitioner was initially engaged as a Daily Wager in the year 1983 and in October, 1991 was appointed as a Cook against a clear vacancy. They have also not disputed about the service and retirement of husband of petitioner as also forwarding of relevant documents to the Office of Accountant General for processing his case for issuance of Pension Payment authority Letter. Thus, the official respondents have admitted that the husband of petitioner rendered more than 18 years of service against a clear vacancy in the Police Department. However, due to deficiency pointed out by the Office of Accountant General, the petitioner was granted terminal gratuity only to the tune of Rs. Thus, the official respondents have admitted that the husband of petitioner rendered more than 18 years of service against a clear vacancy in the Police Department. However, due to deficiency pointed out by the Office of Accountant General, the petitioner was granted terminal gratuity only to the tune of Rs. 64,878/- in terms of Rule 1 l(a) of J&K CSR (Temporary Service) Rules, 1961. 4. Heard learned counsel for the parties and considered the matter. 5. It would be appropriate to reproduce Rule 177-A of J&K CSR hereunder: "177-A. Notwithstanding anything contained in Art. 177, a work charged employee/whole time contingent paid staff including daily rated workers [excluding casual/seasonal workers] who is/are brought on regular establishment and retires/retire without having been declared substantive or quasi-permanent, shall be allowed to count 50% of his/her work charged/contingent paid service as qualifying for pension together with the period of service rendered in regular establishment. If the total of two spells is 20 years or more, he will be eligible for pension under the preceding proviso. "Pending cases in Accountant General's Office/various departments shall be decided accordingly.'" 6. Any provision of pension is beneficial in nature, which ought to receive a liberal interpretation so as to serve the object underlying not only of the Pension Scheme but also any special scheme under which family of the deceased employee have been given the benefit of family pension. 7. A Division Bench of this Court in case, titled as, State of J&K v. Karmo Devi, LPASW No.39/2011, decided on 26.12.2013, has also dealt with the same issue. Paragraph 4 whereof is reproduced hereunder: "4. Perusal of the aforesaid provision would show that it carves out two sets of employees. In the first set the service has been considered as qualifying service. In other words, if an employee at the time of superannuation was holding a substantive office on a permanent establishment then his preceding temporary officiating service including temporary service on temporary establishment or quasi permanent service followed without interruption by confirmation, was to count as qualifying service. In other words, this set of employees would enjoy the benefit of pension by reckoning the service rendered by them prior to the date of their shifting to a substantive office on a permanent establishment. In other words, this set of employees would enjoy the benefit of pension by reckoning the service rendered by them prior to the date of their shifting to a substantive office on a permanent establishment. The other set of employees contemplated and accepted by the provision is those who also hold the substantive office on the date of their superannuation but the period of their service paid on work charge establishment, or paid from contingencies was to be excluded. In the present case we are concerned with the period of service paid on work charge establishment. There is no rationale basis for according such a hostile classification because the set of employees who are grouped together for grant of benefit are not different than the one who are grouped together for depriving those benefits. The nature of services rendered by both prior to coming over to the permanent establishment by holding a substantive office is not different in content. It refers to temporary officiating including temporary service in a temporary establishment or quasi permanent services followed without interruption by confirmation. If temporary officiating service has to qualify for pension there is no reason why the period of service paid on work charge establishment has to be excluded. It was in the aforesaid facts and circumstances that the Full Bench of Punjab & Haryana High Court in the case of Kesar Chand (supra) considered a similar rule and reached the conclusion which is extracted below from the head note of the report. "Once the services of a work-charged employee have been regularized, there is no logic to deprive him of the pensionary benefits as are available to other public servants under rule 3.17 of the Rules. Equal protection of laws must mean the protection of equal laws for all persons similarly situated. Article 14 strikes at arbitrariness because a provision which is arbitrary involves the negation of equality. Even the temporary or officiating service under the State Government has to be reckoned for determining the qualifying service. It looks to be illogical that the period of service spent by an employee in a work-charged establishment before his regularization has not been taken into consideration for determining his qualifying service. Even the temporary or officiating service under the State Government has to be reckoned for determining the qualifying service. It looks to be illogical that the period of service spent by an employee in a work-charged establishment before his regularization has not been taken into consideration for determining his qualifying service. The classification which is sought to be made among Government servants who are eligible for pension and those who started as work-charged employees and their services regularized subsequently, and the other is not based on any intelligible criteria and, therefore, is not sustainable at law. After the services of a work-charged employee have been regularized, he is a public servant like any other servant. To deprive him of the pension is not only unjust and inequitable but is hit by the vice of arbitrariness, and for these reasons the provisions of sub-rule (ii) of rule 3.17 of the Rules would be liable to be struck down being violative of Art. 14 of the Constitution. The fact that the authorities had granted exemption from rules in certain cases would not be justifiable reason for excluding others from the grant of pension and gratuity benefits. For this reason too, rule 3.17 (ii) is bad at law, as it enables the Government to discriminate between employees similarly situated." 8. Therefore, in view of the Regulation and the judgment, referred to hereinabove, it becomes crystal clear that the services rendered by an employee preceding to his coming over to a permanent establishment by holding a substantive office would not be a different in nature and context. Therefore, it would be arbitrary, discriminatory and violative of Article 14 of the Constitution of India to create such a classification, because it has no nexus with the objective sought to be achieved. 9. In view of the above discussion, this writ petition is disposed of with a direction to the respondents to consider the case of petitioner under Rule 177-A of J&K CSR for grant of family pension and other consequential benefits in her favour by taking her husband's first engagement as a Daily Wager/Cook in the year 1983 and on that basis work out the amount, if any due, to the petitioner by way of pension etc. 10. Disposed of along with connected CMA.