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2024 DIGILAW 349 (UTT)

Shail Saxena v. State of Uttarakhand

2024-05-16

PANKAJ PUROHIT

body2024
JUDGMENT : PANKAJ PUROHIT, J. 1. Petitioner has moved this Court by filing the present petition for a writ of mandamus commanding the respondents to fix the pension of the petitioner and release the same to the petitioner from the date of her retirement alongwith interest thereon. 2. The facts shorn-off unnecessary details are that the petitioner was appointed with the respondents-Education Department as Head Mistress on 14.09.2001 and posted as such in Sharda Public Junior High School, Upper Rajeeb Nagar, Dehradun, a recognized Non-Government grant-in-aid school. The petitioner retired on her superannuation on 30.06.2011 after putting in a period of service i.e. 9 years, 9 months and 16 days. The petitioner was given the session-end benefit and after availing the said benefit, granted to the petitioner by the State, she finally stepped out on 31.03.2012, after completing 10 years 06 months 17 days service more than the qualifying service legally required for grant of pension. 3. The controversy, which falls for consideration before this Court, is that ignoring the period of extension, the petitioner is not fulfilling qualifying service (10 years) required for the purpose of pension and if the extension is added, the petitioner is possessing the qualifying service of 10 years, to her credit. 4. The contention of learned counsel for the petitioner is that petitioner was given extension by virtue of Government Order dated 30.11.2007 Annexure C.A No. 3 to the counter affidavit. The case of the petitioner is that period of service, which has been rendered by her after availing the session-end benefit, if added, she would complete qualifying service and therefore, her case would be matured enough for the payment and sanction of pension to her. It is wrong, petitioner submitted, on the part of respondent to say that service rendered by her as session-end benefit was not extension of service but was re-appointment as per Government Order dated 30.11.2007. 5. In order to meet the Government Order dated 30.11.2007 the strong reliance was placed by the learned counsel for the petitioner on Government Order dated 20.09.2011 whereby the session-end benefit has been treated as continuation of service. A subsequent Government Order dated 28.02.2012 is also annexed by the petitioner alongwith the writ petition as annexure 2 (legible copy in connected WPSS No. 1311 of 2011 Shri Mahabaleshwar & others vs. State of Uttarakhand & others. A subsequent Government Order dated 28.02.2012 is also annexed by the petitioner alongwith the writ petition as annexure 2 (legible copy in connected WPSS No. 1311 of 2011 Shri Mahabaleshwar & others vs. State of Uttarakhand & others. Relevant portion of the said Government Order is quoted herein-below: ^^¼1½ ftu f'k{kdksa dks vf/ko"kZrk vk;q iw.kZ djus ds mijkUr 'kS{kf.kd l= 2011&12 ds vUr rd iwoZ fu/kkZfjr O;oLFkk vUrxZr iquZfu;qfDr Ánku dh x;h gSa] ls lacaf/kr vkns'k la'kksf/kr ugha fd;s tk;saxsA ¼2½ ,sls f'k{kd ftudh vf/ko"kZrk vk;q iw.kZ djus ds mijkUr iquZfu;qfDr@l=kar ykHk gsrq fu/kkZfjr le;kUrxZr vkosnu fd;k x;k gS rFkk mUgsa iquZfu;qfDr@l=kar ykHk Lohd`r ugha fd;k x;k gks] dks 'kklukns'k fnukad 20 flrEcj 2011 ds Øe esa l=kar ykHk vuqeU; fd;k tk;sxkA ¼3½ ,sls f'k{kd tks vDVwcj 2011 esa lsokfuo`Rr gq, gSa rFkk ekg vDVwcj esa gh vkosnu fd;k gS] mUgsa mDr 'kklukns'kkuqlkj l=kar ykHk ns; gksxkA** 6. It is submitted by the learned counsel for the petitioner that by means of this subsequent Government Order dated 28.02.2012 it has been specified that those who retired prior to 20.09.2011 shall be treated to be reappointed while persons, who retired after 20.09.2011 shall be treated as having been given the session-end benefit. He further relied upon the judgment and order dated 08.08.2013 passed by this Court in Writ Petition (S/S) No. 1311 of 2012 Shri Mahabaleshwar & others vs. State of Uttarakhand & others, which according to the learned counsel for the petitioner has been passed in the similar set of circumstances and the session end benefit was treated to be in continuation of the service. 7. Learned State Counsel has filed its counter affidavit. In para 9 of the counter affidavit it is clarified that petitioner has not completed 10 years of eligible service, for entitlement of pension; on the date of her superannuation i.e. 30.06.2011, therefore, pension is not sanctioned by the Directorate, Pension and Entitlement. The employer of petitioner i.e. Manager of school has also verified her service till her appointment i.e. till 30.06.2011. thereafter the petitioner was remained under re-appointment till 31.03.2012. As per Govt. Order No. 694 dated 30.11.2007 the system of the appointment is only for completing teaching work, till the end of academic year; so that smooth functioning of teaching will not interrupted till the arrangement of new Teacher. thereafter the petitioner was remained under re-appointment till 31.03.2012. As per Govt. Order No. 694 dated 30.11.2007 the system of the appointment is only for completing teaching work, till the end of academic year; so that smooth functioning of teaching will not interrupted till the arrangement of new Teacher. There is no provision of adding the period of reappoint ment for the purposes of pension. The petitioner has mentioned the Govt. order regarding reappointment and benefits of session-end are not applicable for adding in the total length of service for the purpose of pension. 8. In the counter affidavit it is merely contended that petitioner will not be entitled to get pension for the reason that she has not put in 10 years regular service on the post, which is required as qualifying service for the purpose of pensionary benefits. 9. In support of his contention, learned State Counsel submitted that petitioner had not rendered 10 years regular service. The session-end benefit, which is extended to the petitioner is not in continuation of her service rather it was a reappointment by virtue of Government Order dated 30.11.2007 annexed as Annexure No. C.A. 3 to the counter affidavit. 10. The rejoinder affidavit has been filed by the petitioner. In the rejoinder affidavit, petitioner has reiterated the case as put up in the writ petition. In the rejoinder affidavit reliance is placed in the case of Shri Mahabaleshwar (Supra). 11. In the case of Mahabaleshwar, this Court while interpreting the provisions of Government Order dated 28.02.2012 has declared the portion of the Government Order which relates to the persons, who have retired prior to 20.09.2011 as ultravires and the said portion is set aside being violative of Article 14 of the Constitution of India. 12. The attention of this Court was drawn by the learned State Counsel to the Government Order dated 30.11.2007 and it is contended that session-end benefit shall not be treated as continuation of the earlier services rather it will be reappointment as reflected from the very language of the aforesaid Government Order. 13. 12. The attention of this Court was drawn by the learned State Counsel to the Government Order dated 30.11.2007 and it is contended that session-end benefit shall not be treated as continuation of the earlier services rather it will be reappointment as reflected from the very language of the aforesaid Government Order. 13. Having considered the submission of learned counsel for the parties and having perused the record as well as the Government Orders dated 30.11.2007, 20.09.2011 and 28.02.2012, this Court is of the opinion that petitioner’s services rendered after his retirement till 31.03.2012 as session end benefit shall be calculated towards regular service and if that period of service is added to the regular service, the petitioner would successfully complete 10 years of service as regular employee and she is entitled to be granted pension. 14. The upshot of the above discussion would irresistibly lead to only one conclusion that petitioner had 10 years qualifying service to her credit. The service rendered by her as session-end benefit shall be calculated as regular and continuous service. The petitioner is entitled to get pension and all other benefits shall be sanctioned and paid to the petitioner forthwith alongwith its arrears with effect from the date it fell due. Writ of mandamus is issued, accordingly. 15. With these observations, the writ petition is allowed. No order as to costs.