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2024 DIGILAW 1606 (ALL)

Shaukat Ali Khan v. State of Uttar Pradesh

2024-07-04

SUBHASH VIDYARTHI

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JUDGMENT : SUBHASH VIDYARTHI J. 1. Heard Sri Bhanu Bhushan Jauhari, the learned counsel for the petitioner, Sri Dhirendra Pratap Singh, the learned Standing Counsel. 2. By means of the instant writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the validity of an order dated 11.10.2010 passed by the Director of Education (Secondary Education), Uttar Pradesh, whereby while deciding a representation submitted by Smt. Nafees Jahan, widow of late Nawab Khan, a deceased employee, the petitioner’s claim for payment of family pension has also been rejected. 3. Briefly stated, the facts of the case are that the petitioner was initially appointed as a demonstrator in the Chemistry Department in Gandhi Faiz-E-Aam College, Shahjahanpur, on a temporary basis, till 30.06.1974. Two other persons namely Nawab Khan and Bhagwan Singh were also appointed in a similar manner along with the petitioner and all of them continued to work without any interruption till they attained the age of superannuation. The Director of Education had raised some objection regarding payment of salary to the three demonstrators (including the petitioner), upon which the State Government had issued a direction that salary of the three demonstrators could not be paid from the maintenance grant. The management of the institution submitted a representation for payment of their salaries. The petitioner claims that on 06.03.1968, a Government Order had been issued whereby three posts of demonstrators had been sanctioned in Gandhi Faiz-E-Aam College, Shahjahanpur and he had been appointed against a sanctioned post of demonstrator and, accordingly, the salary was paid to him from the maintenance grant. The petitioner and two other similarly situated demonstrators Sri Nawab Khan and Bhagwan Singh had filed Civil Misc. Writ Petition No. 10455 of 1978 claiming payment of salary. An interim order dated 25.01.1979 was passed in the aforesaid writ petition whereby respondents were directed to pay salary to the petitioner in the revised scale of pay prescribed for demonstrator for intermediate classes. 4. On 29.01.1979, Principal of the Gandhi Faiz-E-Aam College, Shahjahanpur had passed an order transferring the petitioner and the other two demonstrators to work as demonstrators in intermediate classes at Islamia Inter College, Shahjahanpur. The aforesaid Civil Misc. 4. On 29.01.1979, Principal of the Gandhi Faiz-E-Aam College, Shahjahanpur had passed an order transferring the petitioner and the other two demonstrators to work as demonstrators in intermediate classes at Islamia Inter College, Shahjahanpur. The aforesaid Civil Misc. Writ Petition No. 10455 of 1978 was disposed of by means of an order dated 25.05.2006 directing the Director of Education (Higher Education) to examine the matter after getting a report from the concerned District Inspector of Schools and to take a final decision in respect of the petitioner’s claim. As one of the petitioners Nawab Khan had died during pendency of Writ Petition No. 10455 of 1978, it was provided that the question of his retiral benefits shall be decided. 5. The Director of Education (Higher Education) passed an order dated 04.06.2007 in which it was recommended that keeping in view the long tenure of service rendered by the petitioner and other demonstrators, the Director of Education (Secondary Education) should take an appropriate decision for payment of retiral dues to them. The Director of Education (Secondary Education) thereafter passed the impugned order dated 07.10.2010 holding that the appointment of the petitioner and other demonstrators had not been made in accordance with due process of law and due to want of approval by the competent authority, no deduction was made from their salary towards contribution of General Provident Fund, after their services were transferred to Islamia Inter College. The petitioner’s claim for payment of retiral dues was rejected for the aforesaid reason. 6. The State has filed a counter affidavit inter alia stating that the petitioner was not appointed on a regular basis and, therefore, no amount was deducted towards Provident Fund/General Provident Fund and the Director of Education (Secondary Education) had rightly denied the petitioner’s claim by means of the impugned order dated 11.10.2010 in pursuance of the Government Order dated 14.12.1986. However, a copy of the Government Order dated 14.12.1986 has not been annexed with the counter affidavit. 7. The petitioner has filed a rejoinder affidavit denying the aforesaid averments made in the counter affidavit. 8. I have heard the submissions of the learned counsel for the parties. However, a copy of the Government Order dated 14.12.1986 has not been annexed with the counter affidavit. 7. The petitioner has filed a rejoinder affidavit denying the aforesaid averments made in the counter affidavit. 8. I have heard the submissions of the learned counsel for the parties. Sri Bhanu Bhushan Jauhari, the learned counsel for the petitioner, has submitted that at the time of the petitioner’s appointment in the year 1973, there were no service rules governing temporary/ad-hoc appointments and the appointment was made as per the then prevailing practice. The petitioner was continuously paid salary till he retired after attaining the age of superannuation and after putting in 35 years service. He has relied upon a judgment of the Hon’ble Supreme Court in case of D.S. Nakara & Others versus Union of India, (1983) 1 SCC 305 , wherein the Hon’ble Supreme Court held that: “29. 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 of 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 d’etre 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. 30. The discernible purpose thus underlying pension scheme or a statute 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 (see American Jurisprudence, 2d, 881). 31. 30. The discernible purpose thus underlying pension scheme or a statute 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 (see American Jurisprudence, 2d, 881). 31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to 10 months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.” 9. The learned counsel for the petitioner has also relied upon an order dated 31.03.2022 passed by the Hon’ble Supreme Court in Maan Singh versus State of Uttar Pradesh through Secretary & Others, Civil Appeal No. 7841 of 2011, wherein the Hon’ble Supreme Court set aside an order passed by this Court upholding cancellation of appointment of the appellant on the ground that the appellant was a relative of the Principal of the Committee of management on the ground that as per the provisions contained in Rule 4 of Chapter 3 of the regulations framed under Uttar Pradesh Intermediate Education Act, the appellant was not entitled to be appointed. The Hon’ble Supreme Court took into consideration the fact that the appellant had been appointed as Principal in the year 1974-75 and he had worked for almost 24 years before his appointment came to be cancelled. The Hon’ble Supreme Court took into consideration the fact that the appellant had been appointed as Principal in the year 1974-75 and he had worked for almost 24 years before his appointment came to be cancelled. The Hon’ble Supreme Court held that even if the appointment was irregular, as the appellant had discharged his duties, he was entitled to be paid pensionery benefits after his retirement. 10. The learned counsel for the petitioner has relied upon a judgment dated 04.04.2024 rendered by a Co-ordinate Bench of this Court in Hriday Narayan Singh versus State of U.P & 4 Others: Writ A No. 2219 of 2021, wherein this Court held where the petitioner rendered continuous service for a period of 23 years 5 months and 24 days, on ad-hoc basis, the same would qualify for payment of pension. 11. Per contra, Sri Dhirendra Pratap Singh, the learned Standing Counsel, has submitted that as per Regulation 19(a) of Chapter 1 of Uttar Pradesh Contributory Provident Fund Insurance Pension Rules, the service will not found for pension unless the employee holds substantive posts on permanent establishment. He has submitted that as the petitioner’s services were not regularized at any point of time, he is not entitled to receive pension as per provisions contained in Regulation 19(a). 12. I have considered the aforesaid facts and circumstances of the case and the law relied upon by the learned counsel for the parties. 13. It is undisputed that the petitioner was appointed on a post of demonstrator in the year 1973. The post of demonstrator had been sanctioned by means of a Government Order dated 06.03.1968 and, therefore, the petitioner was appointed on a sanctioned post. On that point of time, no rules had been framed regulating temporary appointments and, therefore, it cannot be said that the petitioner’s appointment had been made in violation of any rules. The petitioner was allowed to continue to work till he attained the age of superannuation after rendering about 35 years of service. Regulation 19 of the Uttar Pradesh Contributory Provident Fund Insurance Pension Rules provides as follows: “19. (a) Service will not count for pension unless the employee holds a substantive post on a permanent establishment. (b) Continuous temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service. Regulation 19 of the Uttar Pradesh Contributory Provident Fund Insurance Pension Rules provides as follows: “19. (a) Service will not count for pension unless the employee holds a substantive post on a permanent establishment. (b) Continuous temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service. (c) Leave without allowance, suspension allowed to stand as a specific penalty, overstayed of joining time or leave not subsequently regularised, and period of breaks in service shall not be reckoned as qualifying service. (d) Period of breaks between 2 periods of service due to termination of service, for no fault of the employee shall not be treated as interruption involving forfeiture of post qualifying service. In other cases breaks due to other causes shall result in forfeiture of past service unless condoned by Government. (e) Time passed on earned leave shall fully count as qualifying service, but time passed on other kinds leave with allowances shall count as qualifying service as follows : If the total service is not less than 13 years, but less than 30 years, one year of such leave shall count as qualifying service; If the total service is not less than 30 years, two years of such leave shall counts as qualifying service. Notes: (1) The term 'Earned Leave' means leave on full average pay. (2) In case of a married woman employee time passed on maternity leave may be allowed to count as qualifying service, provided that the period covered by such leave and also earned leave shall not exceed what: would have been admissible had she availed of the whole of the earned leave to which she was entitled under the rules. (3) 'Total Service' means total service rekoning from the date of commencement of service qualifying for pension and includes periods of leave referred to above. (4) The service put in by an employee before he has completed 18 years of age or after attaining the age of superannuation unless extended by competent authority or on re-employment after retirement shall not qualify for pension. (5) The entry relating to confirmation of an employee in the service book shall be countersigned. (6) In cases not covered by these rules qualifying service shall be determined by Government and its decision shall be final.” 14. (5) The entry relating to confirmation of an employee in the service book shall be countersigned. (6) In cases not covered by these rules qualifying service shall be determined by Government and its decision shall be final.” 14. The petitioner has rendered continuous temporary service without interruption and, therefore, as per the provision contained in Rule 19 (b), his service shall be counted as qualifying service for grant of pension. 15. In view of the law laid down by the Hon’ble Supreme Court in Maan Singh and Hriday Narayan Singh (Supra), the long continuous service makes the petitioner entitled to receive pension and other retiral benefits. 16. So far as plea of the State that no deduction was made from the salary of the petitioner towards contribution of Provident Fund, that would only disentitle the petitioner from claiming any amount towards: Provident Fund, which amount the petitioner is not claiming in any case. Non contribution towards Provident Fund would not have any adverse effect on the petitioner’s right to claim payment of pension. 17. In view of the aforesaid discussion, I am of the considered view that the impugned order dated 11.10.2010 rejecting the petitioner’s claim for pension is not sustainable in law. 18. Accordingly, the writ petition is allowed. The impugned order dated 11.10.2010 passed by the Director of Education (Secondary Education), Uttar Pradesh, is hereby quashed. 19. The opposite party no. 4-Regional Deputy Director of Education, Higher Secondary (Accounts & Pension), Bareilly is directed to pay the retiral dues to the petitioner within a period of two months from the date of passing of this order. 20. The parties shall bear their own costs of litigation.