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2017 DIGILAW 2409 (ALL)

Shambhu Nath Tiwari v. State of Uttar Pradesh

2017-10-24

SURYA PRAKASH KESARWANI

body2017
ORDER : Surya Prakash Kesarwani, J. Rejoinder affidavit filed today is taken on record. 2. Heard learned counsel for the petitioner and the learned standing counsel for the State-respondents. 3. Learned counsel for the petitioner submits that the petitioner was appointed as daily wager against the substantive post of Beldar on 1.6.1983 but was regularised on 11.11.2011 and retired from service on 31.1.2012 and, therefore, he is entitled for pension in terms of Article 361 of Civil Services Regulation and the Services rendered by him as daily wager is liable to be added for the purposes of computation of service in terms of para 474 of the Civil Service Regulation. In support of his submissions he relied upon a decision of this Court dated 17.2.2011, in Writ - A No. - 63506 of 2008, Beni Prasad v. State of U.P. & Others. 4. Learned standing counsel supports the impugned order. 5. I have carefully considered the submissions of learned counsel for the parties and perused the record. 6. Briefly stated undisputed facts of the present case that since 1.6.1983, the petitioner was given work on the basis of muster roll in the respondent's Department (Irrigation Department). Subsequently, he was disengaged w.e.f. 4.5.1988. He raised a labour dispute and a Reference Case No.13 of 1989 was registered. An ex-parte award was passed on 26.6.1995 on the ground that the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947, was not complied with while disengaging the petitioner although the petitioner worked for more than240 days on muster roll. He was awarded the complete backwages even without any work. The Writ Petition No.11600 of 1999 (State of U.P. v. Labour Court, Varanasi and another) filed by the State respondents was dismissed by this Court by order dated 30.8.2001. However, the award for payment of full backwages was modified and was reduced to 50% upto the date of award. No finding was recorded in the award that the petitioner remained unemployed after his disengagement till the date of the award. 7. In compliance to the award, the petitioner was again engaged as daily wage labour by order dated 19.7.2002, issued by office of the Executive Engineer, Musha Khand Bandh Prakhand Varanasi. A consequential order dated 27.7.2002 was passed by the Assistant Engineer-III, Musha Khand Bandh Prakhand Varanasi, for engagement of the petitioner. 7. In compliance to the award, the petitioner was again engaged as daily wage labour by order dated 19.7.2002, issued by office of the Executive Engineer, Musha Khand Bandh Prakhand Varanasi. A consequential order dated 27.7.2002 was passed by the Assistant Engineer-III, Musha Khand Bandh Prakhand Varanasi, for engagement of the petitioner. By order/letter No.3776, dated 27.11.2006, issued by the Executive Engineer for payment of bonus to daily wager for the year 2005-06, the petitioner was paid bonus. 8. The petitioner pressed for his regularisation and as per regularisation Rules he was regularised by order/letter No.3112/bZ -12 dated 11.11.2011. Subsequently, he attained the age of superannuation on 31.1.2012 and was accordingly retired from service. Since the petitioner has worked as regular employee only for about three months and as such his claim for pension was rejected on the ground that the petitioner has not completed 10 years regular service before retirement in terms of para 474 of the Civil Service Regulation. 9. Thus, the sole question involved in the present writ petition is as to whether the service rendered by the petitioner as daily wager before his regularisation is liable to be added for the purposes of computation of his length of service for pension? 10. Para 361 of the Civil Service Regulation provides for the service which would qualify for pension, as under: "Para 361 the service of an officer does not qualify for pension unless it conforms to the following three conditions: First-The service must be under Government. Second-The employment must be substantive and permanent. Third-The service must be paid by Government." 11. From the admitted facts of the case, it is clear that the petitioner was initially working on muster roll and was disengaged. He was again engaged on account of Labour Court award. He was engaged as daily wage labour by order of the Executive Engineer dated 19.7.2002. He was regularised by order dated 11.11.2011 and retired from service on 31.1.2012 after a notice of retirement dated 15.11.2011 was given to him. Thus, the petitioner has not completed 10 years of qualifying regular service as provided in para 474 of the Regulation. 12. Under the circumstances, I do not find any merit in the claim of the petitioner for pension. The impugned order rejecting the claim of the petitioner for pension has been lawfully passed. Thus, the petitioner has not completed 10 years of qualifying regular service as provided in para 474 of the Regulation. 12. Under the circumstances, I do not find any merit in the claim of the petitioner for pension. The impugned order rejecting the claim of the petitioner for pension has been lawfully passed. The judgment in the case of Beni Prasad (supra) relied by the petitioner has no application on the facts of the present case. In the case of Beni Prasad (supra) facts were that Beni Prasad was initially appointed in Junior High School on 8.10.1964 on a fixed pay of Rs. 40/- per month. As per Service Book substantive appointment was given to the said Beni Prasad on 1.7.1990. He retired on 31.1.1999. He worked on substantive post from 1.7.1990 to 1.7.1999. His pay was revised w.e.f. 1.1.1986 to Rs. 750/- and entry was accordingly made in his service book. His date of joining was also shown in the service book as 1.7.1990. On these facts the Court considered the provisions of fundamental Rule 79 and Article 361 of the Civil Services Regulations and held as under: 9. It is not in dispute that in the matter of teachers of a primary school maintained by Basic Education Board, the provisions applicable to the comparable Government Servants are applicable in so far as specific provisions have not been made for such teachers. Article 361 contemplates only three things: firstly, it is service under Government which in the case of teachers of Basic Education Board would be that the service is under the Board; secondly, the employment is substantive and permanent and thirdly it is paid by the Government. Here also the word "Government" will mean Basic Education Board since the primary schools in question are being run by the Basic Education Board. In fact for the purpose of applicability of the provisions of Government pension the learned Standing Counsel did not dispute that certain provision of Civil Services Regulations including Article 361 are attracted & that would determine whether the service rendered by petitioner would qualify for pension or not. He, however, could not place anything before this Court to show that service rendered on a sanctioned substantive post having at the relevant point of time sanctioned fixed monthly pay would not qualify for pension. 10. He, however, could not place anything before this Court to show that service rendered on a sanctioned substantive post having at the relevant point of time sanctioned fixed monthly pay would not qualify for pension. 10. Though slightly in a different context, in Anuj Kumar Dey & another v. Union of India & others JT (1996) 10 SC 679 it was contended that the petitioner was not enrolled since he was paid during training a fixed pay. An attempt to draw force in the submission was made by referring to Section 12 of the Navy Act. The Apex Court in paragraph no. 8 and 12 of the Judgment held as under : "8. Section 12 lays down that where a person after his enrolment has for a period of three months from the date of such enrolment been in receipt of pay as Sailor, he shall be deemed to have been duly enrolled. Now, there is no dispute that the appellant had received pay regularly after his enrolment. It has been contended on behalf of the respondents that the appellant was allowed an allowance during the term of the training. The case of the appellant is that he used to get a fixed pay during the period of the training. The fact that he used to get a fixed pay does not go to show that he did not receive pay regularly after his enrolment. 12. The qualifying period for earning pension is service of 15 years under the Navy. Having regard to the facts of the case and the documents annexed to the appeal, there is little doubt that the training period as Artificer Apprentice will have to be included in the computation of the qualifying period of service. Regulation 79 lays down that all service from the date of enrolment or advancement to the rank of ordinary seaman or equivalent to the date of discharge shall qualify for pension or gratuity. Therefore, the date of advancement is not the only starting point for computation of the qualifying period of service. In the case of the appellant the date of enrolment should be the material date. He was administered oath as a Sailor even before the date of his advancement to the rank of Electrical Artificer Vth Class. Therefore, the date of advancement is not the only starting point for computation of the qualifying period of service. In the case of the appellant the date of enrolment should be the material date. He was administered oath as a Sailor even before the date of his advancement to the rank of Electrical Artificer Vth Class. In fact, the Discharge Certificate issued by the Navy to the appellant is to the following effect and puts the matter beyond any doubt: This is to certify that Anuj Kumar Dey, Chief Electrical Artificer (Air), NO. 052264-H has served in the Indian Navy from 12 August 1971 to 31ST JANUARY, 1988 as per details overleaf. This is a statutory certificate which has to be given under Sub-section (4) of Section 17 of the Navy Act. The Discharge Certificate must state the full period of service in the Indian Navy. According to the calculation made by the Navy itself, this period of service is more than the qualifying period of 15 years." 11. I may also point out, at this stage that placement of the petitioner in time scale of pay in 1997 did not affect his status qua the post he was holding since 1964. The only distinction it could make after 28.2.1997 is that the mode of payment got changed and from fixed pay it became time scale of pay. 13. Thus facts of the case of Beni Prasad (supra) are wholly distinguishable from the facts of the present case. Government Order No. 3-2049/......-915-89, dated 26.8.1989, provides for admissibility of pension to a Government Employee on rendering minimum of 10 years regular service on a substantive post. Referring to para 368 of the Civil Services Regulations another Government Order No.....-3-1152/.... -915/89, dated 1.7.1989 was issued which also provides that pension shall be admissible to a permanent Government employee on completion of 10 years regular service. Since the petitioner has not completed 10 years regular service on a permanent post and as such he is not entitled for pension. 14. In view of the above discussion, I do not find any merit in this writ petition. Consequently, writ petition fails and is hereby dismissed.