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2018 DIGILAW 150 (ALL)

STATE OF U. P. v. MAHENDRA CHAUBEY

2018-01-16

SHASHI KANT, SUDHIR AGARWAL

body2018
JUDGMENT By the Court.—Heard Chief Standing Counsel for appellant and Sri J.P.N. Singh, learned counsel for respondent. 2. This intra-Court Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as ‘Rules, 1952’) has arisen from judgment dated 8.2.2006 passed by learned Single Judge allowing appellant’s Writ Petition No. 47338 of 2000 and directing District Magistrate, Ballia to pay pension and retiral benefits to petitioner-respondent. 3. It is contended by learned Chief Standing Counsel that appellant was engaged as Seasonal Collection Amin till 31.10.1981. Thereafter, he was made temporary and since then he continuously worked till the date of retirement on 31.8.1999, hence is not entitled to pension or other retiral benefits under U.P. Collection Amin’ Service Rules, 1974 (hereinafter referred to as “Rules, 1974”) Reliance is placed by learned Chief Standing Counsel on the judgment dated 23.5.2013 passed by a learned Single Judge in Writ Petition No. 29292 of 2013 (Ghanshyam Mishra v. State of U.P. and others). 4. Per contra, learned counsel for respondent contended that appellant was entitled to be treated in continuous service entitled to retrial benefits, in view of law laid down in Board of Revenue and others v. Prasidh Narain Upadhyay, 2006(1) ESC 611 (All) (DB), which has been followed in Special Appeal No. 1891 of 2009 (State of U.P. Through Secretary Revenue Dept. and others v. Ram Sundar Ram) whereagainst Special Leave to Appeal (CC) No. 426 of 2017 has been dismissed by Supreme Court on 21.4.2017. 5. Before examining the correctness of rival submission, it would be appropriate to have a bird eye view to relevant facts giving rise to this appeal. 6. Petitioner respondent Mahendra Chaubey was appointed as Collection Amin on temporary basis in Agriculture Department in District Ballia on 27.11.1963 and ceased to work on 31.8.1975. Thereafter he was engaged as Seasonal Collection Amin on 12.3.1976 and worked till 31.10.1981, when he was made temporary on the post of Collection Amin and since then he continued to work till he attained age of superannuation on 31.8.1999 and retired under Fundamental Rule 56. He claimed that his entire service rendered in Agriculture Department and thereafter as Seasonal Collection Amin in Revenue Department should have been computed as qualifying service for the purpose of pension and other retiral benefits. He made a representation but same was rejected by order dated 15.5.2000. He claimed that his entire service rendered in Agriculture Department and thereafter as Seasonal Collection Amin in Revenue Department should have been computed as qualifying service for the purpose of pension and other retiral benefits. He made a representation but same was rejected by order dated 15.5.2000. The said order was challenged by petitioner respondent in Writ Petition No. 40722 of 1999. The aforesaid writ petition was disposed of vide judgment dated 22.9.1999, directing District Magistrate Ballia to decide petitioner’s representation, if made afresh taking all the grounds for redressal of his grievances by a reasoned order in the light of Government Order dated 1.7.1989. Pursuant to this, District Magistrate has rejected representation dated 22.11.1999 submitted by petitioner respondent, vide order dated 15.5.2000. District Magistrate has held that petitioner worked in the office of District Agriculture Ballia from 1.7.1963 to 1973 and thereafter was terminated therefrom, then he was engaged as Seasonal Collection Amin on 12.3.1976 in Revenue Department. He was selected and appointed on substantive basis as Collection Amin vide order dated 18.7.1999. Since 18.7.1994 to 31.8.1999 only for about five years and no more petitioner had served in substantive capacity, hence having not completed requisite period of qualifying service, petitioner respondent is not entitled to any pension. It is this order which was challenged by petitioner respondent in Writ Petition No. 47338 of 2000, which has been allowed by learned Single Judge vide impugned order dated 8.2.2006. This judgment is under challenge in the present appeal. 7. Learned Standing Counsel submitted that petitioner was only a Seasonal Collection Amin up to 1994. The aforesaid period cannot qualify for pension and learned Single Judge erred in law in allowing writ petition by taken the view otherwise. 8. Learned counsel for petitioner respondent when confronted could not dispute that earlier he was engaged in the office of District Agriculture, Ballia as Collection Amin on temporary basis on 27.11.1963 and retrenched from service on 31.8.1975. After a break of about six months and more, he was engaged as Seasonal Collection Amin in Revenue Department on 12.3.1976 and posted in District Ballia. We also find from record that petitioner respondent specifically has pleaded in para 3 of writ petition that he worked as Seasonal Collection Amin only up to 31.10.1981 and thereafter he was appointed as Collection Amin on temporary basis. We also find from record that petitioner respondent specifically has pleaded in para 3 of writ petition that he worked as Seasonal Collection Amin only up to 31.10.1981 and thereafter he was appointed as Collection Amin on temporary basis. This fact has also been noticed in the judgment of learned Single Judge and we find no rebuttal or contradiction of this fact on the part of appellant respondent. 9. Whether temporary service followed by substantive appointment would count as qualifying service for the purpose of retiral benefit is an issue which has been considered and decided by Division Bench of this Court in Dr. Hari Shankar Ashopa v. State of U.P. and others, 1989 ACJ 337 and Court clearly held as under: “Clause (e) of Rule 56 unequivocally recoognizes, 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 condition stipulated in Article 361 of the Regularizations are satisfied. In this view of the matter, the contention of the appellants that since the petitioner-respondent was not a permanent confirmed employee and hence not entitled for pension is clearly misconceived is rejected.” 10. Following above decision another Division Bench in Board of Revenue and others v. Prasidh Narain Upadhyay, 2006(1) ESC 611 (All) (DB) has held that if a person is appointed as Seasonal Collection Amin and thereafter appointed on temporary basis as Collection Amin, the date from which he has been appointed on temporary basis till the date of retirement, if he has worked for more than 10 years, in view of Fundamental Rule 56 read with Government Order dated 1.9.1989, he would be entitled to retiral benefit and pension. 11. Learned Standing Counsel, however, placed reliance on a Single Judge judgment in Ghanshyam Mishra (Supra) to contend that temporary service would not count as “qualifying service”. 11. Learned Standing Counsel, however, placed reliance on a Single Judge judgment in Ghanshyam Mishra (Supra) to contend that temporary service would not count as “qualifying service”. Having gone through the aforesaid judgment we find that learned Single in Ghanshyam Mishra (Supra) has referred to Government Order dated 1.6.1989/01/07/1989 and Article 368 of Civil Service Regulation (hereinafter referred to as “CSR”) to hold that it is regular service and not temporary service which would count for pension. His Lordship has also referred to Articles 352, 361, 368 and 370 of CSR to support the aforesaid Government Order, stating that aforesaid Government Order is in conformity with the aforesaid provisions of CSR. However we find that His Lordship has not looked into the fact that it is Fundamental Rule 56 which was enacted by Provincial Legislation in 1975, substituting earlier Fundamental Rule 56 which was referable to proviso to Article 309 of the Constitution of India. Rule framed by Governor stood substituted by statutory provision which came to be enacted by U.P. Act 24 of 1975. 12. Clause (e) of Fundamental Rule 56 confers right upon a person retiring under Fundamental Rule 56 that ‘a retiring pension’ shall be payable, and in respect of other retiral benefits, it says that same shall be available in accordance with and subject to the provisions of relevant rules to every Government Servant who retires or is required/allowed to retire under Fundamental Rule 56. Article 370 of CSR stipulates that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post, shall qualify except period of temporary or officiating service in non pensionable establishment or work charge establishment or period of service in a post paid from contingencies. Therefore, temporary service followed without interruption, would qualify for pension under Article 370 of CSR. 13. In Dr. Hari Shankar Ashopa (Supra) this Court took the view that right to claim retiring pension has been conferred by Fundamental Rule 56 (e) and in respect of other benefits, they are available in accordance with Rules but so far as the retiring pension is concerned, it has to be paid in terms of Fundamental Rule 56 14. 13. In Dr. Hari Shankar Ashopa (Supra) this Court took the view that right to claim retiring pension has been conferred by Fundamental Rule 56 (e) and in respect of other benefits, they are available in accordance with Rules but so far as the retiring pension is concerned, it has to be paid in terms of Fundamental Rule 56 14. The aforesaid judgment of learned Single Judge does not lay down correct law by relying on the word ‘regular’ used in Government Order dated 1.7.1989, since an executive order cannot override a statutory provision. In our view, the aforesaid judgment would not help appellant at all. 15. In the present case, petitioner respondent as discussed above, earlier engaged as Seasonal Collection Amin was appointed on temporary basis on 1.11.1981 and it was followed with substantive appointment of petitioner respondent as Collection Amin in 1994. He, therefore, completed more than 18 years of service in 1999 when he retired, therefore, entitled to pension. Otherwise view taken by District Magistrate, Ballia by rejecting claim of petitioner respondent vide order dated 15.5.2000, therefore has rightly been held incorrect by learned Single Judge but further direction of learned Single Judge to count qualifying service rendered since 1963, in the office of District Agriculture cannot be accepted for the reason that the aforesaid service came to an end after termination of petitioner respondent and thereafter he was appointed afresh in Revenue Department, initially as Seasonal Collection Amin and thereafter as Collection Amin on temporary basis and then on substantive basis. 16. In the result, appeal is partly allowed. Judgment of learned Single Judge is modified to the extent that appellant shall treat ‘qualifying service’ for the purpose of pension to petitioner-respondent with effect from 1.11.1981, and give all consequential benefits, accordingly.