Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 1323 (ALL)

JALESHWAR PRASAD v. STATE OF U. P.

2015-05-21

P.K.S.BAGHEL

body2015
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is a retired employee of a Local Body namely Nagar Panchayat, Bhatani Bazar, district Deoria. His claim for pension has been rejected on the ground that he has not completed the qualifying period of service. 2. The essential facts of the case are that the petitioner was initially engaged as a Lineman by the third respondent on casual basis in the year 1987. In the year 1991 his services were dispensed with. He raised Industrial Dispute which was referred to the Labour Court which was registered as Case No. 194 of 1991. The Labour Court vide its award dated 8.5.1999 declared the termination of the petitioner as illegal and directed the employer to reinstate the petitioner with back wages with continuity of his service. From the record it appears that the award of the Labour Court was not challenged by the third respondent and it complied the said order. 3. Later on the petitioner moved a representation for his regularization but the State Government vide order dated 4.4.2001 has rejected the claim of the petitioner for regularization. Aggrieved by the order of the State Government dated 4.4.2001 the petitioner preferred a Writ Petition No. 23824 of 2001. The said writ petition was allowed on 27.3.2003 by issuing a direction upon the respondents to consider the regularization of the petitioner in accordance with law. A copy of the judgment has been brought on record as Annexure-3 to the writ petition. In compliance of the order of this Court dated 27.3.2003 the State Government found that the petitioner is entitled for regularization in terms of the U.P. Regularization of Daily Wages Appointments on Group ‘D’ Posts Rules, 2001 (for short Rules, 2001). Consequent upon, the third respondent passed an order dated 3.3.2005 regularizing the services of the petitioner. The petitioner retired on 31.12.2009. 4. After retirement of the petitioner when his pension was not paid to him, he moved a representation for the payment of his pension and other retiral dues, that came to be rejected by means of impugned order dated 9.9.2010, only on the ground that the petitioner has worked only for 5 years 4 months and 7 days, which is less than the requisite service period of ten years, therefore he is not entitled for pension. 5. A counter-affidavit has been filed on behalf of the State Government and the third respondent. 5. A counter-affidavit has been filed on behalf of the State Government and the third respondent. In the counter-affidavit of the State Government it is mentioned that the Executive Officer/Chairman of the Town Area were under obligation to send the Service Record alongwith the recommendation for payment of retiral dues to the petitioner and thereafter the State Government required to consider the case of the petitioner as provided under 13 (2) of the Uttar Pradesh Town Area Committee (Akendriyat Sewa Nivritti Labh) Niyamawali, 1992 (for short Rules, 1992). 6. The third respondent has taken the stand that no post of Lineman has been sanctioned in any Nagar Panchayat of Uttar Pradesh and just to accommodate the petitioner one post of Chaukidar/Chaprasi was surrendered/abolished from Nagar Panchayat Bilthara Raod, district Ballia and the same was given to Nagar Panchayat Bhatani Bazar, Deoria over which the petitioner was appointed on 3.3.2005, in pursuance of the letter/direction of the District Magistrate dated 2.12.2004 in which there was no order of regularization. It is also stated that the petitioner was not discharging his duty of Chaukidar/Chaprasi and he was absent. It is stated that total service of the petitioner as Chaukidar/Chaprasi is below ten years hence Rules,1992 dated 10.7.1992 do not have the force of law and departmental instruction do not apply to the case of the petitioner. 7. Learned counsel for the petitioner has not pressed any relief against the respondent No. 4. Notices were sent to the respondent No. 4, but no memo of appearance has been filed on his behalf. 8. I have heard and considered the rival submissions of learned counsel for the parties. The petitioner was engaged on casual basis in the year 1987. When his service was dispensed in year 1991 the matter was referred to the Labour Court, after contest, the Labour Court declared the termination of the petitioner as illegal and has directed for reinstatement of the petitioner with full consequential benefits. It was also directed that petitioner shall be reinstated with the continuity of his service. From the record it transpires that the award of the Labour Court was not challenged and it has been implemented. It was also directed that petitioner shall be reinstated with the continuity of his service. From the record it transpires that the award of the Labour Court was not challenged and it has been implemented. The petitioner’s representation was rejected by the State Government on 4.4.2001, against which he preferred a Writ Petition before this Court and the order was set aside with a direction to the State Government to consider the representation of the petitioner. The State Government by its reasoned order has found that the petitioner was entitled for regularization in terms of the Rules,2001 and accordingly a direction was issued to the third respondents for regularization of his services. The order of the State Government dated 14th August, 2004 was complied by the third respondent on 3.3.2005. 9. It is surprising that although the State Government has issued the direction to regularize the services of the petitioner, even then the third respondent has mentioned in the appointment letter that the petitioner’s services are temporary. Thus the appointment letter itself is inconsistent with the direction of the State Government. The State Government in its counter-affidavit has rightly taken the view that the petitioner’s claim ought to have been considered by the third respondent in terms of the Rule 1392) of the Rules, 1992 but the third respondent did not send any document to the State Government in the light of the said Rules. The third respondent in its counter-affidavit has taken the view that Service Rules has no force. In paragraph 17 of the counter filed by the third respondent following stand has been taken : “That the contents of para No. 25,26 and 27 of the writ petition are absolutely false and misleading hence denied and it is submitted that the G.O. dated 1.7.1989 is not helpful to the petitioner in any manner as the total service of the petitioner as Chaparasi/Chowkidar is below 10 years and the regulation notified on 10.7.1992 alleged in para 26 under reply do not have the force of law and is departmental instruction and also do not apply to the case of the petitioner.” The counter-affidavit has been sworn by Sub. Divisional Officer, Tehsil Salempur, district Deoria also holding the charge of Executive Officer, Nagar Panchayat, Bhatni Bazar, district Deoria. It is surprising that the said Officer has failed to comprehend the difference between the Service Rules and Regulations. Divisional Officer, Tehsil Salempur, district Deoria also holding the charge of Executive Officer, Nagar Panchayat, Bhatni Bazar, district Deoria. It is surprising that the said Officer has failed to comprehend the difference between the Service Rules and Regulations. From the stand taken by the third respondent in the counter-affidavit it is evident that the petitioner’s representation has been rejected on wrong premise. Relevant part of Rule 2 (M) of the Rules, 1992 is extracted below : **ijUrq fdlh desVh ds v/khu fujUrj vLFkk;h ;k LFkkukiUu lsok dh vof/k dh x.kuk vgZdkjh lsok ds :i esa dh tk;sxh ;fn mlh ;k fdlh vU; in ij lsok ds fdlh O;o/kku ds fcuk ckn esa mls LFkk;h dj fn;k tk;A** 10. Learned counsel for the petitioner has placed reliance on the judgment of this Court in Bhuneshwar Rai v. State of U.P and others, 2014(9) ADJ 4 (DB); Special Appeal Defective No. 842 of 2013 (State of U.P. and others v. Panchu) and Mohd. Mustafa v. State of U.P., 2010(1) ADJ 329 (LB), wherein this Court has taken the view that the service rendered on casual basis has to be considered for the pension and other retiral benefits. In the case of Bhuneshwar Rai (supra) the Division Bench has relied on the judgment of the Supreme Court passed in Punjab State Electricity Board and another v. Narata Singh, 2010-Laws (SC)-2-40. 11. In view of the above the impugned order dated 9.9.2010 passed by the respondent No. 2 is set aside. The matter is remitted to the third respondent/Executive Officer, Nagar Panchayat, Bhatani Bazar, district Deoira to consider the matter afresh and pass appropriate order in accordance with law expeditiously preferably within a period of six weeks from the date of communication of this order and forward the decision to the State Government for the appropriate decision. Writ petition is allowed. 12. Office is directed to send a copy of this judgment to the District Magistrate, Deoria who shall apprise Sri Tribhuwan Vishwakarma, who has sworn the counter-affidavit filed on behalf of the respondent No. 3 in this case to be careful in future. No order as to costs.