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2018 DIGILAW 103 (ALL)

Ram Sumer Prasad v. State of U. P.

2018-01-10

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 2. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of learned counsel for the parties present petition is being decided at this stage itself. 3. Present petition has been filed for quashing the order dated 7.8.2013 passed by the respondent no. 3-Sub Divisional Magistrate, Pharenda, Maharajganj. Further prayer has been made seeking direction to the respondent to give pensionary benefits and other retiral benefits to the petitioner for which he is entitled. 4. The stand taken by the petitioner as well as stand taken by the respondent authorities is entirely covered by the judgment of this Court passed in Writ Petition No. 20923 of 2011 (Babban Ram vs. State of U.P. and others), which was decided on 9.3.2017 on the basis of the judgment of this Court dated 24.1.2017 passed in Writ Petition No. 65198 of 2012 (Sonia Devi vs. State of U.P. and others), which has been quoted in the aforesaid judgment. In the case of Sonia Devi after direction of this Court the claim of the petitioner was rejected by the concerned authority on the ground that the employee was working as seasonal Collection Peon and was not working as regular employee and has not completed 10 years of qualifying service. The same is the position in the present case. 5. The ground taken in the impugned order is that the petitioner was regularized on 29.9.2009 as Collection Peon and retired on 31.7.2010 and as such he is not entitled for pension. All such facts were considered and matter was remanded back to the authority concerned for decision afresh. 6. Learned counsel for the petitioner has also relied upon various judgment of Hon'ble Apex Court and Division Bench of this Court. 7. I am not inclined to refer those judgments as the matter is fully covered by the judgment dated 9.3.2017 passed in Writ Petition No. 20923 of 2011 (Babban Ram vs. State of U.P. and others), which is quoted as under:- "Heard learned counsel for the petitioner and learned Standing Counsel. Counter and rejoinder affidavits have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of at the admission stage itself. Counter and rejoinder affidavits have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of at the admission stage itself. Present writ petition has been filed seeking a direction in the nature of mandamus directing the respondents to pay the retiral and pensionary benefit with effect from 01.01.2011 and gratuity to the petitioner as admissible to the post of Collection Peon in accordance with Government Order dated 01.07.1989. At the very outset, learned counsel for the petitioner submits that this case is entirely covered by judgment and order of this Court dated 24.1.2017 passed in Writ A No. 65198 of 2012, Sonia Devi Vs. State of U.P. and others. It was submitted that the case is identical in nature and learned Standing Counsel though sought to dispute the aforesaid position, however, on attention being drawn to Annexure-3 to the writ petition could not dispute the fact that in the document filed by the respondent authority the name of Sri Prasidha Narain Upadhyay finds place at Serial no. 8 whereas the name of present petitioner finds place at Serial no. 5 and the case of Sri Prasidha Narain Upadhyay was considered and allowed by this Court in the case of Board of Revenue Vs. Sri Prasidha Narain Upadhyay 2006 (1) ESC 611 (All.) (DB). Identical case has been considered by the Hon'ble Division Bench in Special Appeal No. 1891 of 2009, State of U.P. Vs. Ram Sunder Ram. Learned Standing Counsel could not dispute the aforesaid legal position. The judgment and order dated 24.1.2017 passed in the case of Sonia Devi (supra) is quoted as under: ''Heard learned counsel for the petitioner as well as learned Standing Counsel and have perused the record. Counter and rejoinder affidavits have been exchanged between the parties and with their consent present petition is being disposed of at the admission stage itself. Present petition has been filed for quashing the impugned order dated 2.11.2012 passed by District Magistrate, Ballia. Further prayer is to issue a direction in the nature of mandamus directing the respondents to pay the family pension with gratuity of petitioner husband to petitioner, in pursuance of Government order dated 1.7.1989 and 26.8.1989 has been made. Present petition has been filed for quashing the impugned order dated 2.11.2012 passed by District Magistrate, Ballia. Further prayer is to issue a direction in the nature of mandamus directing the respondents to pay the family pension with gratuity of petitioner husband to petitioner, in pursuance of Government order dated 1.7.1989 and 26.8.1989 has been made. Husband of the petitioner late Babban Singh was appointed as Collection Peon in the respondent department on 17.02.1976 and worked till 19.6.1983 with some notional break and subsequently, after some break, the petitioner's husband was again appointed as Temporary Collection Peon on 20.6.1983 on substantive post and perform his duty without a single day break till his death i.e. 29.8.2005. It is submitted that the husband of the petitioner has continuously worked from 2.6.1983, but his service has not been regularized, although he had been paid month to month salary with all annual increment, bonus, leave encashment etc. and was also granted revised pay scale from time to time. Earlier Writ Petition No. 46934 of 2012 (Sonia Devi vs. State of U.P. and Others) filed by the petitioner was finally disposed of vide order date 19.9.2012 directing the concerned authority to consider the claim of the petitioner on its own merits. Pursuant thereto the impugned order dated 20.11.2012 was passed by the District Magistrate Ballia rejecting the claim of the petitioner on the ground that the petitioner's husband was working as Seasonal Collection Peon and was not working as regular employee and therefore, the Government order dated 1.7.1989, which provides that on completion of 10 years of temporary service, the employee shall be entitled for pension, is not applicable in the present case. Learned counsel for the petitioner referred to several judgments of this Court, whereby such impugned orders were set aside and matter was remanded back to the authority for fresh consideration. Suffice to refer to the judgment rendered by Hon'ble Division Bench of this Court in Special Appeal No. 1891 of 2009 (State of U.P. Through Secretary, Revenue Department and others vs. Ram Sunder Ram), wherein the question of "qualifying service" in a case of Temporary Seasonal Peon was considered and the judgment of Learned Single Judge whereby the authority was directed to consider the claim of the petitioner was upheld. The judgment was upheld and on the ground that once the respondents had accorded pay scale and increments, which were duly approved by the competent authority since very beginning as such working of the petitioner cannot be considered as Seasonal and therefore, no interference was warranted in the order of the Learned Single Judge. From perusal of the counter affidavit and the supplementary counter affidavit, the same position is reflected in the present case. The service book annexed with the supplementary counter affidavit reflecting that the petitioner was granted annual increment and revised pay scale from time to time and he had continuously worked since 20.6.1983 till his death in the year 2005. Per contra, learned Standing Counsel had tried to support the impugned order, however could not dispute the aforesaid legal position as laid down by this Court in Special Appeal No. 1891 of 2009. In such view of the matter, the impugned order dated 2.11.2012 passed by respondent no.3-District Magistrate, Ballia is not sustainable in the eye of law and is hereby quashed. The matter is remanded back to the respondent no.3-District Magistrate, Ballia to consider the claim of the petitioner afresh in the light of judgment rendered in the Special Appeal No. 1891 of 2009 (State of U.P. Through Secretary, Revenue Department and others vs Ram Sunder Ram) preferably within three months from the production of certified copy of this order. With the aforesaid observations, this petition stands disposed of.'' Present writ petition also stands disposed of in terms of the aforesaid judgment quoted above. No order as to costs." 8. Present petition is also disposed of in terms of the aforesaid judgment dated 9.3.2017 and it is provided that in such view of the matter, the impugned order dated 7.8.2013 passed by the respondent no. 3-Sub Divisional Magistrate, Pharenda, Maharajganj is quashed. Matter is remitted to the respondent no. 2-District Magistrate, Maharajganj, who shall consider the claim of the petitioner in the light of the aforesaid judgment.