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2025 DIGILAW 135 (TS)

L. Golya v. State of Telangana

2025-03-18

SUREPALLI NANDA

body2025
ORDER : Surepalli Nanda, J. Heard Sri Ch.Ganesh, learned counsel appearing on behalf of the petitioners and learned Government Pleader for Services-I I appearing on behalf of the respondents. 2. The petitioners approached the Court seeking prayer as under: “…….to issue an order or direction more particularly one in the nature of Writ of Mandamus to declare the action of the respondents in not counting the past temporary service rendered by the Petitioners in the contingent establishment from the date of their initial appointment to till the date of regularization for commencement of qualifying service as per G.O.Ms.No.156, Finance and Planning (FW.PEN.1) Department, dated 29/04/1983, for the purpose to sanction of pension based on the judgment of the Honourable Supreme Court in the case of Prem Singh Vs. State of Uttar Pradesh and others in Civil Appeal No. 6798 of 2019 and batch dt. 02/09/2019, and the same was reported in (2020) 1 SCC(L&S) 1 and (2019) 10 SCC 516 , and in the case of Habib Khan Verses State of Uttarakhand and others in Civil Appeal No.10806 of 2017 and batch dt. 23-08-2017, which was reported in (2020) 1 SCC (L&S) 28, (2019) 10 SCC 542 , and in Review Petition ( C ) No. 9 of 2018, dt. 16/01/2018, in Civil Appeal No. 10806 of 2017, in the case of State of Uttarakhand and others Vs. Habib Khan and others and the same was reported in (2020) 1 SCC (L&S) 31 (1), (2019) 10 SCC 545 and basing on the Division Bench Judgements of this Honourable Court in W.P. No. 8201 of 2016, dt.17/03/2016, and the orders of this Honourable Court in WP No.17700 of 2016, dt.20/06/2017, as highly illegal, arbitrary, unjust, unconstitutional against the principles of natural justice , equity and fair play and prays to direct the respondents herein to count the pre-absorption service of Petitioners herein in temporary capacity in the contingent category for the purpose of commencement of qualifying service for sanction of pension and other benefits to the Petitioners herein and pass such order or orders in the interest of justice.….” 3. The specific grievance of the petitioners is that the respondents are not counting the past temporary service i.e., from the date of petitioners initial appointment to the date of regularization, rendered by the petitioners in the contingent establishment, for commencement of qualifying service as per G.O.Ms.No.156, Finance and Planning (FW.PEN.1) Department , dated 29.04.1983 for the purpose of sanction of pension based on the judgment of the Hon’ble Apex Court in the case of Prem Singh Vs. State of Uttar Pradesh and Others in Civil Appeal No.6798 of 2019 and batch, dated 02.09.2019 reported in (2020) 1 SCC (L&S) 1 & (2019) 10 SCC 516 , and in the case of Habib Khan Vs. State of Uttarkhand and Others in Civil Appeal No.10806 of 2017 & batch, dated 23.08.2017 reported in (2020) 1 SCC (L&S) 28, (2019) 10 SCC 542 and in Review Petition (C) No.9 of 2018, dated 16.01.2018, in Civil Appeal No.10806 of 2017, in case of State of Uttarakhand and Others Vs. Habib Khan and Others and reported in (2020) 1 SCC (L&S) 31(1), (2019) 10 SCC 545 and the Division Bench judgment of this Court in W.P.No.8201 of 2016, dated 17.03.2016 and the judgment of this Court in W.P.No.17700 of 2016, dated 20.06.2017. Aggrieved by said action of the respondents, the petitioners approached the Court by filing the present Writ Petition. PERUSED THE RECORD 4. The Division Bench of this Court vide its order dated 17.03.2016 in W.P.No.8201 of 2016 very clearly held that the Tribunal had rightly come to the conclusion that temporary service shall be counted as qualifying service for the purpose of pension under Rules 13 and 14 of the Andhra Pradesh Revised Pension Rules, 1980. 5. Under similar circumstances in pursuance to the order dated 20.06.2017 passed in W.P.No.17700 of 2016 one Sri P. Dasharadham, approached this Court for the relief as prayed for in the present Writ petition and the court was pleased to grant the relief as prayed for thereunder and the same was implemented by the respondents therein vide Lr.No.6047/CRP&RE/C-2/2018, dated 10.10.2018 and also communicated the same to the petitioner thereunder vide letter Rc.No.B10/4170/2015, dated 08.10.2018. The petitioner herein pleads for similar relief to the petitioner. 6. The Apex Court in the judgment reported in (2020) 1 SCC (L&S) in Prem Singh v State of Uttar Pradesh and others, at para 36 observed as under: “36. The petitioner herein pleads for similar relief to the petitioner. 6. The Apex Court in the judgment reported in (2020) 1 SCC (L&S) in Prem Singh v State of Uttar Pradesh and others, at para 36 observed as under: “36. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work- charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in State of Karnataka versus Umadevi (3)11. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one-time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularization as others have been regularized, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work- charged establishment shall be counted as qualifying service for purpose of pension.” 7. The judgment reported in (2019) 10 SCC 542 , Habib Khan v State of Uttarakhand in paras No. 6 and 7, it is observed as under: “6. The pari materia provision contained in Rule 3.17(ii) of the Punjab Civil Services Rules had been struck down by a Full Bench decision of the Punjab and Haryana High Court in Kesar Chand v. State of Punjab. The challenge by the State against the aforesaid decision of the Full Bench of the Punjab and Haryana High Court was negatived by this Court. The matter came up for consideration before this Court, once again, in Punjab SEB versus Narata Singh. The challenge by the State against the aforesaid decision of the Full Bench of the Punjab and Haryana High Court was negatived by this Court. The matter came up for consideration before this Court, once again, in Punjab SEB versus Narata Singh. While dealing with the said question this Court in Para 25 of the report held that the Full Bench decision of the Punjab and Haryana High Court was perfectly justified in striking down Rule 3.17(ii) of the Punjab Civil Services Rules resulting in obliteration of the distinction made in the said Rules between "temporary and officiating service" and work- charged service on the said basis, this Court took the view that the period of work-charged service should be reckoned for purposes of computation of "qualifying service" for grant of pension. 7. As already observed, the provisions of Regulation 370 of the Civil Services Regulations applicable to the State of Uttarakhand are pari materia with the provisions of Rule 3.17(ii) of the Punjab Civil Services Rules, discussed above. If that is so, we do not see as to why the period of service rendered on work-charged basis by the appellants should not be counted for purposes of computation of "qualifying service" for grant of pension . The pari materia provisions of Rule 3.17(ii) of the Punjab Civil Services Rules having been interpreted and understood in the above manner by this Court in Narata Singh we do not find any room for taking any other view except to hold that the appellants are entitled to reckon the period of work-charged service for purposes of computation of "qualifying service for grant of pension We order accordingly, allow these appeals and set aside the impugned orders passed by the High Court.” 8. The Review Petition (C) No.9 of 2018 filed before the Apex Court Aggrieved by the orders dated 23.08.2017 passed in Civil Appeal No. 10806 of 2017 in Habib Khan v State of Uttarakhand was dismissed by the Apex Court vide orders dated 16.01.2018 and a similar view was taken by the Apex Court in the judgment dated 18.01.2022 in the State of Gujarat and others v Talsibhai Dhanjibhai Patel observing as follows: "It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand. In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years service. Hence, the Special Leave Petition stands dismissed.” 9. I n a judgment of the Apex Court in State of Jharkhand and others versus Jitendra Kumar Srivastava and another reported in 2013 (12) SCC 210 it was held that pension and gratuity are not bounty, but property within the meaning of Article 300-A of the Constitution of India. Paragraphs 16 and 17 of the said judgment are extracted hereunder: 16. The fact remains that there is an imprimature to the legal principle that the right to receive pension is recognized as a right in "property". Article 300-A of the Constitution of India reads as under: "300-A. Persons not to be deprived of property save by authority of law No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed b US in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. 17. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be turned as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as stat story Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different." 10. A similar view was taken by the Apex Court in the judgment dated 18.02.2022 in the State of Gujarat and others v Talsibhai Dhanjibhai Patel observing as follows: "It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand. In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 years service. Hence, the Special Leave Petition stands dismissed.” 11. Learned counsel appearing on behalf of the petitioners placed reliance on the judgment of this Court, dated 24.11.2022 passed in W.P.No.7343 of 2019 and contends that the petitioners are entitled for the relief as prayed for by the petitioners in the present Writ Petition and as granted to petitioners in W.P.No.7343 of 2019. 12. Learned counsel appearing on behalf of the petitioners placed reliance on the judgment of this Court, dated 24.11.2022 passed in W.P.No.7343 of 2019 and contends that the petitioners are entitled for the relief as prayed for by the petitioners in the present Writ Petition and as granted to petitioners in W.P.No.7343 of 2019. 12. Learned Assistant Government Pleader for Services-I I appearing on behalf of the respondents does not dispute the said submissions made by the learned counsel appearing on behalf of the petitioners. 13. I n view of the settled law on the subject issue pertaining to reckoning the period of work charged service for purposes of computation of “ qualifying service for grant of pension and the observations of the Apex Court on the subject issue in various judgments (referred to and extracted above). This Court opines that petitioner is entitled for the relief as prayed for by the petitioner herein. 14. Taking into consideration:- a) The aforesaid facts and circumstances of the case. b) The submissions made by the learned counsel appearing on behalf of the petitioner and learned Assistant Government Pleader for Services-I I , appearing on behalf of the respondents. c) The order of this Court, dated 24.11.2022 passed in W.P.No. 7343 of 2019. c) The judgments of the various Courts enlisted below :- (Referred to and extracted above) i) Judgment of the Division Bench of Andhra Pradesh High Court, order dated 17.03.2016 passed in W.P.No.8201 of 2016 ii) Judgment of the Andhra Pradesh High Court, order dated 20.06.2017 passed in W.P.No.17700 of 2016 iii) The judgment of the Apex Court in Prem Singh Vs. State of Uttar Pradesh and others reported in (2020) 1 SCC (L&S) iv) The judgment of the Apex Court in Habib Khan Vs. State of Uttarakhand reported in (2019) 10 SCC 542 v) The judgment of the Apex Court in the State of Gujarat and others Vs. Talsibhai Dhanjibhai Patel, dated 18.02.2022 The Writ Petition is disposed of directing the respondents to consider the request of the petitioners to count the temporary service i.e., pre-absorption service rendered by the petitioners herein in temporary capacity in the contingent category before the regularization of the petitioners services, for the purpose of commencement of qualifying service for sanction of pension and other benefits to the petitioners herein as per G.O.Ms.No.156, Finance and Planning (FW. PEN.1) Department, dated 29.04.1983 in accordance to law, by duly taking into consideration the observations of the Apex Court in the judgments referred to and extracted above within a period of four (04) weeks from the date of receipt of copy of the order and pass appropriate orders, and duly communicate the decision on the subject issue to the petitioners herein. How ever, there shall be no order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.