Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 89 (AP)

P. Thimmappa v. State of Andhra Pradesh

2023-01-06

VENKATESWARLU NIMMAGADDA

body2023
ORDER : 1. This writ petition under Article 226 of the Constitution of India is filed seeking the following relief: “.......to issue a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the proceedings in Rc. No. 161/2021431, dated 7.8.2021 issued by the District Audit Officer, State Audit Ananthapuram, Ananthapuram District rejecting the claim of the petitioner for payment pension and abruptly stopping payment of pension to the petitioner as wholly illegal, arbitrary, violative of Articles 14, 16 and 21 of the Constitution of India apart from being violative of principles of natural Justice and consequently declare that the petitioner is entitled for payment of pension uninterruptedly and pass and to pass such other order.....” 2. The case of the petitioner in brief is that initially the petitioner herein was appointed as Helper on 14.08.1986 in Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited, Anantapur. Later, the services of the petitioner were regularized and probation was declared in the cadre of Helper from 31.12.1991. 3. While so, the Executive Engineer/3rd respondent, Andhra Pradesh State Co-operative Rural Irrigation Corporation Limited, Anantapur requested the District Collector/4th respondent, Anantapur to absorb the petitioner and other employees in the vacancies available in different departments. In view of the said request, the 4th respondent issued proceedings dated 02.08.2003 allotting the petitioner to the Office of the Executive Engineer (PR), Dharmavaram Division at Anantapur District to work on deputation basis as Watchman and later transferred to Tadipatri No. II. Since then, the petitioner is working as Watchman under Last Grade Service in Panchayat Raj Department. 4. Later, the petitioner was appointed to Special Grade Post and also as Special Adhoc Promotion Post with time scale on completion of 8 years and 12 years respectively. Therefore, the petitioner is being treated as a Last Grade Servant in Panchayat Raj Department. While so, the Managing Director, Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited, Hyderabad issued proceedings dated 19.05.2016 retiring the petitioner from service w.e.f. 31.05.2016 on attaining age of superannuation of 58 years. Questioning the same, the petitioner herein filed W.P. No. 16684 of 2016 before the Hon’ble composite High Court, wherein the composite High Court granted an interim order dated 26.05.2016 directing the respondents to continue in service till the age of superannuation of 60 years. 5. Questioning the same, the petitioner herein filed W.P. No. 16684 of 2016 before the Hon’ble composite High Court, wherein the composite High Court granted an interim order dated 26.05.2016 directing the respondents to continue in service till the age of superannuation of 60 years. 5. Subsequently, keeping in view the legal and rule position, the 4th respondent issued proceedings dated 19.04.2017 posting the petitioner as Office Subordinate in the office of Deputy Director Ground Water Department, Anantapur in the existing vacancy and had been worked till the age of superannuation. Thereafter, the 5th respondent issued letter dated 17.07.2018 to the 3rd respondent regarding claim of the retirement and pensionary benefits of the petitioner in the parent department. The 6th respondent issued orders dated 07.09.2018 sanctioning monthly pension of Rs. 16,762/-. More so, an amount of Rs. 6,86,464/- was sanctioned towards towards Death-cum-Retirement gratuity and an amount of Rs. 6,59,191/- was sanctioned towards commutation of pension. 6. While things stood thus, the 6th respondent issued proceedings dated 16.07.2019 requesting the District Treasury Officer to stop the pensionary benefits of the petitioner without any prior notice to the petitioner on the ground that the pensionary benefits were only can be granted to the Government employees. Thereafter, the pension proposals of the petitioner were sent to the 6th respondent along with the service register. Thus, the 6th respondent issued another proceedings dated 18.07.2019 requesting the 3rd respondent to recover the pensionary benefits paid to the petitioner and credit the same to the Government funds on the ground that the pensionary benefits of the petitioner are irregular and are in deviation of Andhra Pradesh Revised Pension Rules, 1980. 7. The further case of the petitioner is that as per the Section 11 of the Pension Act, pensionary benefits cannot be recovered. It is further submitted that as per F.R. 14-A (e) the lien of a Government employee, which is automatically suspended from the date of relievement of the petitioner in the parent department and under clause (g) of F.R. 14 that services of the petitioner shall automatically get terminated in the parent department on the date on which the probation of the petitioner is declared at the new department or on the date on which the probation is deemed to have been declared or on the date on which he/she completed three years of service at the new department, whichever is earlier. In the case on hand, the petitioner herein admittedly completed 13 years of service. Therefore, the petitioner is deemed to be the employee of the Panchayat Raj department. 8. Subsequently, the petitioner filed W.P. No. 10284 of 2019 before the Hon’ble high Court questioning the stoppage of pensionary and other benefits. Wherein this Court was pleased to disposed of the writ petition on 15.02.2021 by setting aside the impugned proceedings dated 16.07.2019 and 18.07.2019 and it is left open to the petitioner to raise any objections treating that the said proceedings as show cause notice and to submit his explanation within 15 days from the date of receipt of the order. The petitioner herein submitted his explanation within time as directed. However, the 6th respondent without considering Rule 13 of the Andhra Pradesh Revised Pension Rules, and F.R. 14-A rejected the claim of the petitioner for payment of pension. It is further submitted that in the similar circumstances the Government of Andhra Pradesh issued G.O.Ms. No. 77, Industries & Commerce (F.R.II) Department dated 26.02.2009 directing the authority concerned to absorb the redeployed employees by treating them as Government employees w.e.f. 03.05.1993 by protecting their seniority and giving pay scales on par with the Government employees with all consequential benefits. 9. That the petitioner was declared surplus in Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited, he was absorbed in Government service and rendered continuous service in Government Department. Therefore, the petitioner is entitled for pension and other pensionary benefits on par with the Government employees. Hence, the Writ Petition. 10. Learned counsel for the petitioner would submit that as per Section 11 of pension Act, 1980 pensionary benefits which were paid cannot be recovered. He further submits that as per F.R. 14-A (e) the lien of a Government employee, which is automatically suspended from the date of relievement of the petitioner in the parent department, and under clause (g) of F.R. 14 the services of petitioner shall automatically get terminated in the parent department on the date on which the probation of the petitioner is declared in the new department or on the date on which the probation is deemed to have been declared or on the date on which he/she completed three years of service in the new department, whichever is earlier. But the petitioner completed 13 years of service at Panchayat Raj Department. But the petitioner completed 13 years of service at Panchayat Raj Department. Therefore, the petitioner should have been deemed that the employee of the panchayat Raj department. 11. Learned counsel for the petitioner further submits that after discharging his services for period of more than 13 years at 3rd respondent organisation he cannot be deprived of retiremental benefits along with regular pension on the ground that the petitioner is originally appointed at Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited, Anantapur. He further submits that in view of excess staff at the Corporation, the petitioner’s services were engaged by the 3rd respondent herein till the date of his retirement on superannuation and the petitioner was deemed as an employee of the department and he was sanctioned all the retiremental benefits as well as the regular pension. He further submits that once any corporation of the Government had become defunct, the employees working in those corporations lost their jobs, the Government have been absorbing such employees in the Government departments by extending all consequential benefits by treating them as Government employees. It is further submitted that in one occasion vide G.O.Ms. No. 77 dated 26.02.2009, the Government absorbed all the employees of Allywn company, a Government undertaking as Government employees. As such, the learned counsel for the petitioner submits that the case in hand similar to the case mentioned above. Hence, the similar benefit can be extended to the petitioner herein in view of the law laid down by the Hon’ble Apex Court as well as this Court. 12. Learned counsel for the petitioner placed reliance on the judgments reported in D.S. Nakara and Others vs. Union of India, (1983) 1 Sessions Court 305 wherein the Hon’ble Apex Court held as follows: “Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day to life to your employer, in days of invalidity, economic security by way of periodical payment is assured. One such saving in kind is when you give your best in the hey-day to life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison detre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. The discernible purpose thus underlying pension scheme or a statue introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the courts may not so interpret such statute as to render them inane.” 13. He further placed reliance on judgment referred in Bhaskar Ganjanan Kajrekar vs. Administrator, Dadra and Nagar Haveli and Others, (1993) 3 SCC 237 wherein the Hon’ble Apex Court held as follows: We, therefore hold that the appellant having served the respondents for about thirteen years on June 14, 1967 when the post of Chief of Police was made permanent and there being nothing adverse against him at that point of time, he was entitled to be confirmed in the said post. In that view of the matter the appellant was a confirmed employee when he retired from service on July 31, 1977. We, therefore, direct the respondents to treat the appellant as having been retired as a confirmed employee and fix his pension and other post-retiral benefits on that basis. We further direct the respondents to complete the pension case of the appellant within three months from today and pay him all the arrears of the pension within two months thereafter along with 12% interest on the said arrears. 14. He further relied on the judgment reported in Smt. G. Madamma vs. Commission and Others, 2021 (2) ALT 527 (DB) wherein the Hon’ble Apex Court held as follows: Pension is not a bounty given by the State to its employees. 14. He further relied on the judgment reported in Smt. G. Madamma vs. Commission and Others, 2021 (2) ALT 527 (DB) wherein the Hon’ble Apex Court held as follows: Pension is not a bounty given by the State to its employees. It is a right avaial be to a superannuated employee and thereafter to his family as family pension (if the rules permit) for the past services rendered. The 1980 Rules laid down the provisions for grant of pension including family pension to the employees in the State including those employed by municipality. Rules 13 & 14 of the 1980 Rules defined the nature of service which would be countenanced as 'qualifying service' for the purposes of grant of pension under the said Rules. Rules 13 and 14 of the 1980 Rules read as follows: “13. Commencement of qualifying service: Subject to the provisions of the rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: (a) in the case of a Government servant in a Class IV service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th November, 1960, service rendered before attaining the age of sixteen years shall not count for any purpose. (b) in the case of a Government servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity. 14. Conditions subject to which service qualified: (1) The service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government. (2) For the purposes of sub-rule (1), the expression service means service under the Government and paid by the Government from the Consolidated Fund of the State but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by the Government. From the aforesaid Rules, it appears ‘qualifying service’ would commence from the date an employee is appointed in a permanent or temporary capacity provided his service conditions and pay are determined by the Government. The Rules do not make a distinction between a permanent or temporary employee. From the aforesaid Rules, it appears ‘qualifying service’ would commence from the date an employee is appointed in a permanent or temporary capacity provided his service conditions and pay are determined by the Government. The Rules do not make a distinction between a permanent or temporary employee. Admittedly, the deceased employee, while working as NMR in Kurnool Municipality, was governed by conditions of service prescribed by the Government and paid from the State exchequer. Even the Municipality accepted this fact and recommended the case of the petitioner observing as follows: “It is also to state that in APRP 1980 under Rule 14 that the service rendered as fulltime contingent post i.e. preabsorption of all full time contingent employees service is countable as qualifying service for pensionary benefits in relaxation of article 361 of Civil Service regulations as per G.O.Ms. No. 156/Fin & Plg (FW Pen.I) Department dated 29.04.1983 for pensionary benefits. A copy of the representation submitted by the widow of Ramanjaneyulu, Ex-PH Worker is enclosed here with perusal.” Hence, the employee had a vested right to pension as a contingent employee under the 1980 Rules. 15. On the other hand, learned Government Pleader for Services-III filed counter affidavit on behalf of the 5th respondent wherein it is stated that the petitioner claiming that he was retired at the Ground Water Department is not correct. It is further submitted that the petitioner is not concerned to the 5th respondent department and he belongs to the Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited, Anantapur. It is further submitted that the petitioner had been worked in the 5th respondent department is purely on deputation basis i.e. from 27.04.2017 to 30.04.2018 later repatriated to his parent department and relieved by the 5th respondent department on 30.04.2018. It is further submitted that finally the petitioner was retired in parent company i.e. Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited, Anantapur on 31.05.2018. It is further submitted that the 5th respondent department neither processed the regular pension nor other pensionary benefits proposals but stopped his pension and other pensionary benefits to the petitioner. 16. It is further submitted that finally the petitioner was retired in parent company i.e. Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited, Anantapur on 31.05.2018. It is further submitted that the 5th respondent department neither processed the regular pension nor other pensionary benefits proposals but stopped his pension and other pensionary benefits to the petitioner. 16. Learned counsel for the 7th respondent also filed counter wherein it is stated that the petitioner was retired from non-pensionable cadre at Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited and his services were not absorbed in Andhra Pradesh Panchayat Raj Department or Ground Water department in which he rendered his services on purely deputation/temporary basis. It is further submitted that employees who are working in Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited are not eligible for pension and pensionary benefits under Andhra Pradesh Revised Pension Rules, 1980. It is further submitted that F.R. 14(e) is not applicable to the petitioner on the ground that he was not absorbed in the Panchayat Raj department and not terminated by the parent department i.e. Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited. Moreover, he cannot be considered as Government employee even though he worked for 13 years in Panchayat Raj Department on the ground that he worked on temporary basis. 17. He further submitted that when Hyderabad Allwyn ltd has become defunct, the employees working there were absorbed in the Government departments as per G.O.Ms. No. 77 dated 26.02.2020. But in the case on hand, the Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited has not become defunct. Hence, the petitioner has not deserved any merit consideration for pension and pensionary benefits on par with the Government employees, as was done in the case of Allwyn Ltd. 18. Learned counsel for the respondents also placed reliance on the judgment rendered in Union of India and Others vs. Bhanwar Lal Mundam, (2013) 12 SCC 433 wherein the Hon’ble Apex Court held as follows: In Puranjit Singh vs. Union Territory of Chandigarh, 1994 Supp. (3) Sessions Court 471, 1995 Sessions Court (L&S) 95, (1994) 28 ATC 518)) it has been held that when a deputationist is repatriated he cannot claim promotions in the parent department on the basis on officiation in a higher post in the borrower organization. (3) Sessions Court 471, 1995 Sessions Court (L&S) 95, (1994) 28 ATC 518)) it has been held that when a deputationist is repatriated he cannot claim promotions in the parent department on the basis on officiation in a higher post in the borrower organization. In State of Punjab and Others vs. Inder Singh and Others, (1997) 8 Sessions Court 372 : 1998 Sessions Court (L&S) 34, the learned Judges elaborately adverted to the concept of deputation and the right of a deputationist and in that context opined thus: “The concept of “deputation” is well understood in service law and has a recognised meaning. “Deputation” has a different connotation in service law and the dictionary meaning of the word “deputation” is of no help. In simple words “deputation” means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules.” In the case at hand, as stated earlier, the respondent was getting higher scale of pay in the post while he was holding a particular post as a deputationist. After his repatriation to the parent cadre on selection to a higher post he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. Such fixation of pay, needless to say, was erroneous and, therefore, the authorities were within their domain to rectify the same. Thus analysed, the irresistible conclusion is that the tribunal and the High Court have fallen into error by opining that the respondent would be entitled to get the pension on the basis of the pay drawn by him before his retirement. Consequently, the appeal is allowed in part and the orders passed by the tribunal as well as by the High Court are set aside directing fixation of pension on the base of pay drawn by the respondent. However, as conceded to by Mr. Singh, there shall be no recovery from the excess amount paid to the respondent. There shall be no order as to costs. 19. However, as conceded to by Mr. Singh, there shall be no recovery from the excess amount paid to the respondent. There shall be no order as to costs. 19. On the other hand, learned counsel for the respondents would submit that the petitioner was originally employed by the Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited, Anantapur. He further submits that the services of the employees of any organization other than the Government services are non pensionable under Andhra Pradesh Revised Pension Rules, 1980. He further submits that as per Rule 14 of the Andhra Pradesh Revised Pension Rules, 1980, the services shall not qualify unless his duties and pay are regulated by the Government but does not include services in a non-pensioner establishment unless such service is treated as qualifying service. He further submits that the service of the petitioner never absorbed by the respondents herein and the services of the petitioner has been continued on deputation/temporary basis only. Moreover, his services were never terminated by the parent corporation. He further submits that he was repatriated to his parent department and he was retired at his parent department only but not at the 3rd respondent or 5th respondent. 20. It is further submitted that the contention of the learned counsel for the petitioner, that the services of the petitioners can be absorbed when the corporation/company become defunct and the employees were adjusted and absorbed to the Government, accordingly, petitioner services were absorbed by the Government by considering financial status and functions of the Corporation is not sustained. Whereas, in the case on hand, the corporation is not defunct but in view of the excess staff engaged by the corporation that excess staff were adjusted by way of deputation at the request of the corporation itself. As such, the petitioner’s services were repatriated to the parent department and he got retired at the parent department. Therefore, the petitioner is not entitled for any pension as per the Andhra Pradesh Revised Pension Rules, 1980. 21. As such, the petitioner’s services were repatriated to the parent department and he got retired at the parent department. Therefore, the petitioner is not entitled for any pension as per the Andhra Pradesh Revised Pension Rules, 1980. 21. Having regard to the submissions made by the learned counsel for the petitioner and learned Government Pleader for the respondents, that the contention of the learned counsel for the petitioner that the petitioner rendered thirteen years of long service with the 2nd and 3rd respondents and his salary has been paid by the department i.e. through the treasury vide I.D. No. 1056494 and all the recoveries such as G.P.F. Group Insurance, profession tax etc. were recovered from the salary of the petitioner as a regular Government employees is not in dispute. The other contention of the petitioner that the petitioner having completed more than thirteen years of service in Panchayat Raj Department, the services of the petitioner should be treated as employee of the Panchayat Raj Department is untenable without there being any specific proceedings of absorption of services of the petitioner by the department concerned. The other contention of the learned counsel for the petitioner that as per the fundamental rule 14-A(e) the lien of a Government employee which is automatically suspended from the date of relieve of the petitioner from the parent department and under clause (g) of F.R.14 and services of petitioner shall automatically get terminated in the parent department on the date on which probation of the petitioner is declared at new department or on the date on which the probation of the petitioner is deemed to have been declared in the new department is not valid and applicable to the facts on hand. On the other hand, the contention of the learned Government Pleader that F.R. 14(e) is not applicable to the petitioner since he is not Government employee is valid and sustainable in the absence of any absorption proceedings by the 3rd respondent herein. The other contention of the learned Government Pleader that the claim of the petitioner, he retired from the 5th respondent organization is against the admitted facts but he was retired at his parent department on 31.05.2018 and he worked only for one year at the 5th respondent organization from 24.07.2017 to 30.04.2019 on deputation basis is acceptable. The other contention of the learned Government Pleader that the claim of the petitioner, he retired from the 5th respondent organization is against the admitted facts but he was retired at his parent department on 31.05.2018 and he worked only for one year at the 5th respondent organization from 24.07.2017 to 30.04.2019 on deputation basis is acceptable. The other contention that the services of the petitioner were never absorbed at Panchayat Raj department and his services were never terminated in the parent department is valid. Therefore, he cannot be considered as Government employee even though he worked for thirteen years long service at Panchayat Raj department which is only on temporary/deputation basis due to financial crisis of the parent department has to be considered. 22. In view of the foregoing discussions and reasons stated above, the learned counsel for the petitioner failed to prove the services of the petitioner was absorbed by the Panchayat Raj department or by the 5th respondent. Moreover, the Rules under Andhra Pradesh Revised Pension Rules were not applicable to the petitioner and the petitioner is not entitled for pension being the employee of the Andhra Pradesh State Cooperative Rural Irrigation Corporation Limited, Anantapur. As such, there are no merits in the present writ petition. 23. Accordingly, the writ petition is dismissed. There shall be no order as to costs. 24. Consequently, Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.