Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2920 (ALL)

State of U. P. v. Ram Sunder Ram

2016-08-23

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2016
JUDGMENT 1. The present Special Appeal has been filed against the judgement and order dated 16.3.2009 passed by learned Single Judge of this Court in Writ Petition No.30952 of 2007 (Ram Sunder Ram vs. State of UP and ors) wherein he has proceeded to dispose of the writ petition, relying upon the judgement passed by Division Bench of this Court in case of Board of Revenue and ors vs. Prasidh Narain Upadhyay reported in 2006 (1) ESC 611 (All) (DB), and directed the respondent no.2 to consider the claim of the petitioner after taking into consideration the service rendered by the petitioner on the post of Temporary Collection Peon from 4.2.1981 to 1.1.1990 for the purpose of computing his pension. 2. Shri Pankaj Rai, Additional Chief Standing Counsel appearing for the appellants-respondents has contended that the petitioner-respondent had worked as Seasonal Collection Peon in Tehsil Bairya, District Ballia from 2.2.1976 to 30.9.1991 with some artificial breaks. Again he worked from 1.12.1981 to 1.1.1990 on Temporary Seasonal Collection Peon. He did not hold any regular post and worked on non-pensionable establishment on the availability of work and fund. The provisions of Government order dated 13.12.1977 are applicable only to the temporary officiating employee and not to the seasonal employee and since the petitioner-respondent was seasonal employee, therefore, the Government order dated 13.12.1977 is not applicable to his case. His appointment as Seasonal Collection Peon cannot be termed as temporary or permanent appointment against a post. The Government order dated 1.7.1989 provides for pension to the persons, who were appointed on temporary basis and had worked for 10 years of regular service. The petitioner-respondent was not appointed against a regular vacancy either on temporary basis or permanent basis. 3. Shri Pankaj Rai further submits that Articles 352, 361, 368, 370 and 424 of Civil Service Regulations relating to pension (as adopted for application in Uttar Pradesh) do not conceive a seasonal employee like the petitioner-respondent for the purposes of grant of pension, and therefore, the period from 4.2.1981 to 1.1.1990 (Temporary Collection Peon) cannot be clubbed. The finding/conclusion drawn by learned Single Judge, while disposing of the writ petition, is contrary to the facts and law. The finding/conclusion drawn by learned Single Judge, while disposing of the writ petition, is contrary to the facts and law. Learned Single Judge has relied upon the judgement in Board of Revenue vs. Prasidh Narain Upadhyay (supra) ignoring that the facts of the present case are entirely different from that of the case of Prasidh Narain Upadhyay inasmuch as the case of Prasidh Narain Upadhyay related to the appointment on temporary basis whereas the case of petitioner-respondent is of Seasonal Collection Peon. In Civil Misc. Writ Petition No.28770 of 2006 (Hawaldar Singh vs. Board of Revenue and ors) decided on 26.10.2007 it was held that a seasonal engagement does not qualify for pension in any manner under the provisions of law and as such, this Court should come to rescue and reprieve the appellants. 4. In support of his submission, Shri Pankaj Rai, Additional Chief Standing Counsel has also placed reliance on the judgement of this Court in State of UP and ors vs. Dukh Haran Singh (2009) 3 UPLBEC 2080 in which it was observed as follows: - "28. Similarly, in the case of Prasidh Narain Upadhyay (supra), the Division Bench, on fact, found that the employee was a temporary employee and on that finding, he has right to receive pension. This would be evident from paragraph 5 of the judgement, which reads as follows: - "The appellants although submitted that the respondent was employed as Seasonal Collection Peon but the Hon'ble Single Judge on the basis of the perusal of the service book of the respondent has found that the employment of the petitioner-respondent has been mentioned as collection Peon (Temporary) but subsequently in the service book it has been mentioned that he is working as Seasonal Collection Peon. The entry of initial appointment of the petitioner-respondent as temporary Collection Peon is not disputed. That being so, it is not possible to assume as to how the respondent has been shown as Seasonal Collection Peon in the subsequent part of the service book. The appellants could not explain this aspect even in the present appeal, although in para-7 of the affidavit they have admitted that in the 2nd column of the service book, a formal entry "temporary" of the service of the respondent is mentioned..." 29. The appellants could not explain this aspect even in the present appeal, although in para-7 of the affidavit they have admitted that in the 2nd column of the service book, a formal entry "temporary" of the service of the respondent is mentioned..." 29. Thus, neither in the case of Babu Singh nor in the case of Prasidh Narain Upadhyay (supra), this Court, as a proposition of law, has held that seasonal employees shall be entitled to pension. 30. Here, in the present case, I have already observed that the service rendered by the writ petition prior to his regularisation by order dated 25.9.1997 does not qualify for grant of pension as in terms of Regulations 361 and 370 of the Regulations, services rendered prior to that are neither substantive, permanent nor temporary. In my opinion, the service rendered by the writ petitioner subsequent to his regularisation on 25.9.1997 only qualifies for pension and he having retired before rendering 10 years continuous service, is not entitled to get pension. 31. In view of the aforesaid, the conclusion arrived at by the learned Judge that the writ petitioner had rendered 32 years service and was entitled for pension cannot be sustained. 32. In the result, the appeal succeeds and is allowed. The judgement and order dated 22.8.2008 passed by the learned Judge in Writ Petition No.1378 (S/S) of 2008 is set aside but without any order as to costs." 5. Countering the submission advanced by Additional Chief Standing Counsel, Shri J.P.N. Singh, learned counsel appearing for the petitioner-respondent has vehemently opposed the present Special Appeal by submitting that the petitioner was initially appointed as Seasonal Collection Peon in District Ballia on 27.5.1970 and his services were retrenched on 31.8.1975. Thereafter he was re-appointed on 2.2.1976 and worked till 31.8.1979 as Temporary Collection Peon and his services were regularized on 01.1.1990. Finally he has retired on attaining the age of superannuation on 30.6.2004. He further apprised to the Court that admittedly the appellants have accorded pension to the petitioner-respondent vide order dated 29.1.2005 calculating 18 years and 9 months' service but actually he had rendered more than 31 years' service and as such, he was entitled for calculating his earlier services so that he could get full pension. He further apprised to the Court that admittedly the appellants have accorded pension to the petitioner-respondent vide order dated 29.1.2005 calculating 18 years and 9 months' service but actually he had rendered more than 31 years' service and as such, he was entitled for calculating his earlier services so that he could get full pension. He further makes submission that the petitioner's services were retrenched in the year 1975 and the State Government had issued the Government order dated 6.3.1977 for absorption of the retrenched employee in the revenue department. On the basis of his seniority, the petitioner was appointed on the post of Temporary Collection Peon on 4.2.1981 against substantive post and worked continuously without any break till 1.1.1990. Thereafter the petitioner's services were regularized on the post of Collection Peon in Tehsil Bairiya, District Ballia w.e.f. 1.1.1990. Ultimately the petitioner has retired from service on 30.6.2004. 6. Shri J.P.N. Singh has apprised to the Court that the petitioner was paid regular pay scale against substantive post. Once the petitioner had continuously worked in the department for decades for the whole year without any break even single day and he has spent his life for more than three decades in a regular pay scale, which clearly indicates that his engagement was not as seasonal and he was engaged in the department in the regular capacity, then at this stage technical view cannot be taken by the respondents that his initial engagement was as Seasonal Collection Peon. The department on its own wisdom had accorded the pay scale and other benefits and even the increment had also been given to him and as such work and nature was perpetual in nature and same cannot be deemed to be as seasonal. He submits that learned Single Judge has rightly proceeded, keeping in view of all factual aspects that the petitioner, who has retired from service way back on 30.6.2004; has been paid very meagre amount and as such, the present special appeal is liable to be dismissed. In support of his submission, he has placed reliance on the judgement of this Court in Special Appeal Defective No.503 of 2008 (State of UP through the Secretary Revenue and ors vs. Panmati Devi and another) decided on 7.7.2008. 7. We have considered the rival submissions made by the learned Counsel for the parties and have perused the record. 8. In support of his submission, he has placed reliance on the judgement of this Court in Special Appeal Defective No.503 of 2008 (State of UP through the Secretary Revenue and ors vs. Panmati Devi and another) decided on 7.7.2008. 7. We have considered the rival submissions made by the learned Counsel for the parties and have perused the record. 8. In order to appreciate the respective arguments of the parties, it would be appropriate to reproduce Articles 424, 465 and 465-A, Chapter XVIII of the Civil Service Regulations: - "424. Pensions for "Superior and Inferior services" are divided into four classes, the Rules for which are prescribed in the following sections of this Chapter: (a) compensation pension (See Section II), (b) invalid pensions (See Section III), (c) superannuation pensions (see Section IV), (d) retiring pensions (See Section V). 465. (1) A retiring pension is granted to a government servant who is permitted to retire after completing qualifying service for 25 years or on attaining the age of 50 years. (2) A retiring pension is also granted to a government servant who is required by Government to retire after attaining the age of 50 years. 465-A. For officers mentioned in Article 349-A, the rule for the grant of retiring pension is as follows : (1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years, or on attaining the age of 50 years. (2) A retiring pension is also granted to an officer who is required by Government to retire after attaining the age of 50 years." 9. The term "qualifying service" is defined in Section-1 Chapter 16 of Article 361 of the Civil Service Regulations which provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions namely (A) the service must be under Government; (B) the employment must be substantive and permanent and (C) the service must be paid by Government. It is clearly reflected from the record in question that so far as the condition Nos.(A) and (C) are concerned, it is admitted situation that the petitioner-respondent had worked under the Government and had been paid salary by the Government and as such, there is no dispute. 10. In Dr. It is clearly reflected from the record in question that so far as the condition Nos.(A) and (C) are concerned, it is admitted situation that the petitioner-respondent had worked under the Government and had been paid salary by the Government and as such, there is no dispute. 10. In Dr. Hari Shankar Ashopa v. State of UP and ors 1989 ACJ 337 after referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations, this Court observed that Clause (e) of Rule 56 unequivocally recognizes, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation, or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Clause (a) or Clause (b) or who is required to retire, or who is allowed to retire under Clause (c) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied. 11. It is also relevant to indicate that the Fundamental Rule 56 had been amended by the State of UP through U.P. Act No.24 of 1975 which allows retirement of a temporary employee also and provides in Clause (e) that a retiring incumbent is also entitled for retiral benefits, if any, which is available to every Government servant. 12. We have occasion to peruse the entire record in question and find that the petitioner-respondent was initially appointed on the post of Temporary Seasonal Collection Peon in agriculture department on 27.5.1970 and subsequently on 31.8.1975 his services were retrenched. Taking shelter of the Government order dated 6.3.1977, which provided that the retrenched employee was to be absorbed in revenue department on the basis of seniority, the petitioner was again appointed on the post of Temporary Collection Peon on 4.2.1981 on substantive post and he worked continuously without any break upto 1.1.1990. Thereafter the petitioner's services were regularized on the post of Collection Peon w.e.f. 1.1.1990. The petitioner has retired on attaining the age of superannuation on 30.6.2004. The petitioner filed the writ petition in question in the year 2007 for counting his temporary services on the post of Temporary Collection Peon from 4.2.1981 to 1.1.1990. Thereafter the petitioner's services were regularized on the post of Collection Peon w.e.f. 1.1.1990. The petitioner has retired on attaining the age of superannuation on 30.6.2004. The petitioner filed the writ petition in question in the year 2007 for counting his temporary services on the post of Temporary Collection Peon from 4.2.1981 to 1.1.1990. Learned Single Judge has proceeded to dispose of the writ petition in question on 16.3.2009 with following observations: - "Thus in view of the mater, the contention of the respondents that the service rendered by the petitioner as Temporary Collection Peon is not liable to be taken into consideration for the purpose of computing petitioner's pension is clearly misconceived and is rejected. Respondents are liable to consider the temporary continuous service rendered by the petitioner on the post of Collection Peon from 4.2.1981 to 1.1.1990 for the purpose of computing his pension. For the aforesaid reasons, the writ petition is finally disposed of with a direction to the petitioner to file a fresh comprehensive representation for revision of his pension on the grounds raised in the present writ petition alongwith the certified copy of this order before the respondent no.2 within two weeks from today and in case any such representation is preferred by the petitioner as directed above, the same shall be considered and decided by the respondent no.2 strictly in accordance with law by a reasoned and speaking order after taking into consideration the service rendered by the petitioner on the post of Temporary Collection Peon from 4.2.1981 to 1.1.1990 as expeditiously as possible preferably within a period of two months from the date of receipt of the petitioner's representation." 13. The service record of the petitioner, which is appended alongwith supplementary affidavit filed by the State on 22.12.2015, clearly reveals that no doubt the petitioner was initially inducted in the agriculture department as Seasonal Collection Peon on temporary basis in the year 1976 but he had been accorded regular pay scale and the increment was also given by the department concerned on 1.2.1986 and thereafter he was paid regular pay scales. The engagement of the petitioner was made against substantive post and this is admitted case that he has been accorded pay scales and regular increments and at no point of time the said document had been disputed by the appellants. 14. The engagement of the petitioner was made against substantive post and this is admitted case that he has been accorded pay scales and regular increments and at no point of time the said document had been disputed by the appellants. 14. In the case of Dukh Haran Singh (supra) the Court has taken a view that the petitioner does not qualify for grant of pension as in terms of Regulations 361 and 370 of the Regulations, the services rendered prior to that are neither substantive, permanent nor temporary. The same would not be applicable in the present case as the relief, which has been accorded by learned Single judge is in consonance with the Regulations wherein the petitioner had been accorded pay scale and other benefits against substantive post and as such, his claim cannot be negated on the ground that his nomenclature was as seasonal. The same would not help to the appellants-respondents. 15. We have proceeded to consider the order dated 16.3.2009 and find that the aforesaid fact has also been dealt in detail by learned Single Judge. Once this is the factual situation that the petitioner-respondent had been accorded pay scale and increments, which were duly approved by the competent authority since very beginning, then we are of the considered opinion that the working of the petitioner-respondent cannot be treated as seasonal and no interference is required by us to the order of learned Single Judge. 16. The Special Appeal is dismissed, accordingly.