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2025 DIGILAW 444 (ALL)

Radheshyam Shukla v. State of U. P.

2025-03-06

SAURABH SHYAM SHAMSHERY

body2025
JUDGMENT : Saurabh Shyam Shamshery, J. 1. Heard S/Sri Nawal Kishor Mishra, Praveen Tiwari, Bhagwan Dutt Pandey, Rajesh Tripathi, Vijay Kumar Rai, Ram Krishna Yadav, Ashok Kumar Yadav, Pashant Singh, Anurag Shukla, Satish Chandra Tiwari, Brijendra Kumar Srivastava, Suresh Singh, Rajesh Kumar, Vinod Kumar Singh, Chandra Bhan Gupta, Chheda Lal Verma, Rajnish Kumar Srivastava, Anil Kumar Sharma and Ms. Durga Tiwari, learned counsels for petitioners, Sri Ashish Kumar Nagvanshi and Sri Rajesh Kumar Tiwari, learned A.C.S.C. for State along with other connected writ petitions. 2. This is bunch of writ petitions. All the petitioners have retired many years ago from the U.P. Government of Higher Education Department and are receiving pension and they have received benefits of a lump sum amount by Commutating their respective pension under Uttar Pradesh Civil Pension Commutation Rules , 1941. 3. The petitioners are aggrieved that their commutation amount has already recovered in about 10 to 12 years, however, by an Office Memorandum dated 08.12.2008, recovery from pension is directed to continue up to 15 years and as such the government has received much more amount than it was commuted. All the writ petitioners have challenged the said Office Memorandum dated 08.12.2008 on similar ground that according to their contention, the commutation amount was not loan, therefore, the exact amount could only be recovered and not more. 4. Learned counsels for petitioners have also argued that there is no provision that by way of an Office Memorandum dated 08.12.2008, number of years to recover commutation value could be determined upto 15 years, without any basis and otherwise also it was excessive and arbitrary. 5. This Court has earlier asked the counsels for petitioners to go through a recent judgement passed by Division Bench of this Court in case of Ashok Kumar Agrawal and 48 others versus Union of India and another , 2025:AHC:6439-DB , wherein similar arguments were rejected in regard to petitioners therein i.e. employees of Punjab National Bank. For reference the relevant part thereof is mentioned hereinafter :- “Having accepted such offer, a binding contract comes into existence between the employee and the employer as per which the original pension is to be restored after 15 years. Having acquiesced to the commutation policy with open eyes, it is not open for the retiring employee to contend later that the period of restoration of full pension be reduced from 15 years to 10 years. Having acquiesced to the commutation policy with open eyes, it is not open for the retiring employee to contend later that the period of restoration of full pension be reduced from 15 years to 10 years. Whether or not the lumpsum amount gets equalised on expiry of 10 years or 11 year is not decisive or material. What is material is the nature of obligation which enures upon the parties when the retiring employee accepts the provision of commutation of pension. The employee with his open eyes having availed the policy, cannot subsequently turn around or seek modification in its terms. The argument that the table or the figures were not adequately disclosed, is also not acceptable, inasmuch as the chart specifies the manner in which the commutation is to be fixed and the period after which the original pension is to be restored. In case, the employees had any misgivings about it, they could have sought appropriate clarification before accepting the offer. Once, the petitioners have acquiesced to the policy and accepted the offer, their subsequent attempt to resile or seek change in its computation would clearly be impermissible. The writ petition lacks merit and is, accordingly, dismissed. The view taken by us clearly finds support from the adjudication made by the Supreme Court in "Common Cause" A Registered Society And Others Vs. Union of India, (1987) 1 Supreme Court Cases, 142 , R. Gandhi Vs. Union of India And Others , (1999) 8 SCC 106 as well the judgment of Delhi High Court in Forum Retired IPS Officers (FORIPSO) Vs. Union of India & Another, 2019 SCC Online Del 6610 and Punjab & Haryana High Court in Shila Devi Vs. State of Punjab in CWP No. 9426 of 2023 ." 6. In regard to above judgment, learned counsels for petitioners have submitted that in their case there was no contract or specific regulation in regard to period of 15 years for the purpose of return of commuted amount. 7. Per contra, learned counsels for State have supported the impugned order and referred that issue has already been settled by the Supreme Court in ‘Common Cause’ A Registered Society and others Vs. Union of India, (1987) 1 SCC 142 . 8. I have considered the above submission and perused the record. 9. 7. Per contra, learned counsels for State have supported the impugned order and referred that issue has already been settled by the Supreme Court in ‘Common Cause’ A Registered Society and others Vs. Union of India, (1987) 1 SCC 142 . 8. I have considered the above submission and perused the record. 9. It is not under much dispute that all petitioners have got benefit of a lump sum amount after commutation of their respective pension at the time when they respectively attained the age of superannuation and pension was determined. Relevant Rules of Uttar Pradesh Civil Pension Commutation Rules , 1941 are reproduced hereinafter :- 10. As referred above, an opportunity was granted to petitioners that they can committed their pension to get a lump sum amount as and when their respective pension was determined which could preferably be used for the above referred purposes (See Rule 4 of Rules 1941), though, none of petitioners have declared that they have used said amount for any of referred purpose and for any ancillary purpose. Though the Court is not entering into such dispute at this stage, however, it has to be noted that purpose of commutation was beneficiary for pensioners, so they could get a lump sum amount to use it for their benefit and for that some fixed amount to be deducted from their pension upto certain years which is now 15 years. 11. All the petitioners are guilty of approaching this Court at the very belated stage. The impugned notification is of year 2008 and they have approached this Court in the year 2024 i.e. after more than 16 years , probably being fence sitter and since some other High Courts have granted stay on further recovery when pensioners of their State approached to challenge number of years of recovery, which was later on followed by this Court and co-ordinate Benches have passed certain interim orders. 12. the Supreme Court way back in the year 1987 in case of of "Common Cause" A Registered Society And Others Vs. 12. the Supreme Court way back in the year 1987 in case of of "Common Cause" A Registered Society And Others Vs. Union of India, reported in 1987 SCC (1) 142 , has held that commutation of pension is an option and is exercised by choice and it is not mandatory or compulsory to seek commutation and being a policy matter cannot be subjected to judicial review except being mala fide or extremely arbitrary or contrary to Statute or irrational and held that:- “Commutation brings about certain advantages. The commuting pensioner gets a lump sum amount which ordinarily he would have received in course of a spread over period subject to his continuing to live. Two advantages are certainly forthcoming out of commutation--(1) availability of a lump sum amount, and (2) the risk factor. Many State Governments have already formulated schemes accepting the 15 years rule. This Court would not be justified in disturbing the 15 years formula so far as civilian pensioners are concerned” 13. Similarly a Division Bench of High Court of New Delhi in Forum Of Retired IPS Officers (FORIPSO) Vs. Union of India and another, AIR ONLINE , 2019 DEL 508 , has considered similar argument and has negated it, with following observations, after taking note of recommendations of 6 th Pay Commission and other factors that :- “We would want most favourable terms for the pensioners, but there are restraints and the field experts and not the Court is the best judge to evaluate on different and somewhat conflicting factors that have to be taken into consideration. This is not to say that courts do not have jurisdiction and aggrieved pensioners/employees if they are unjustly treated cannot be granted relief, but for such interference the Court should come to a firm conclusion that a grave error had crept in which makes the court's interference absolute to do justice. Interference in such matter can result in creating all kinds of problems and cascading effects as these are highly complexed and difficult matters requiring balancing of various competing interests, which would to some extent include financial resources available” 14. Interference in such matter can result in creating all kinds of problems and cascading effects as these are highly complexed and difficult matters requiring balancing of various competing interests, which would to some extent include financial resources available” 14. The Division Bench of this Court in Ashok Kumar Agrawal (supra) has also taken note of above referred judgments and declined the objections of petitioners therein about fixing a period of 15 years to return commuted amount, therefore, the principle laid in Ashok Kumar Agrawal (supra) is also applicable in present case and no circumstances exists to take a different view. 15. The impugned notification is being promulgated under the provisions of 1941 Rules, and has only prescribed the method of commutation amount and period thereof which is now 15 years and only on ground that government has received some more amount to the amount commuted way back 12 years to 15 years ago would itself not be a ground to quash the notification not being an irrational decision, even rate of interest if calculated would be on very low side. 16. The Court also takes note that in one of writ petitions, petitioners have mentioned that they have paid in terms of their commutation lump sum amount more than, ranging from 1 to 7 lac but it would itself not be a ground to quash any said notification since they have not only taken advantage of lump sum taken 12 or 15 years ago to spend on specific purposes as described in Rules 1941 on a certain undertaking and that they have not disclosed whether such amount was used for said purpose or any ancillary purpose. It is not a case that due to return of commuted amount till 15 years, the State has enriched substantially. 17. The Court also takes note of another judgment passed by Supreme Court in R. Gandhi Vs. Union of India and another, (1999) Supp. 1 SCR, wherein Common Cause (supra) was followed that “the decision in Common Cause (supra) has been understood in all subsequent judgments of this Court as 15 years from the date of commutation and we are in respectful agreement with the same. Union of India and another, (1999) Supp. 1 SCR, wherein Common Cause (supra) was followed that “the decision in Common Cause (supra) has been understood in all subsequent judgments of this Court as 15 years from the date of commutation and we are in respectful agreement with the same. This neither prejudices the rights of any of the parties nor confers any undue advantage upon any party” and accordingly, impugned memorandum therein was upheld whereby it was decided that the commuted pension would be recovered for a period of 15 years. The Supreme Court has also followed Common Cause (supra) in Welfare Association Of Absorbed Central Government Employees in Public Enterprises Vs. Union of India and others , (1991) 2 SCC 265 as well as Bharat Petrolium Corporation Limited Ex. Employees Association and others Vs. Chairman and Managing Director Bharat Petrolium Corporation Limited Bombay and others , (1993) 3 SCALE 424 . (also see : T.R. Single and others Vs. State of Punjab and others , (2003) 2 ILR Punjab and Haryana 254 , and Shila Devi and others Vs. State of Punjab and others and converted 807 petitions decided by Punjab and Haryana High Court on 27.11.2024, wherein also policy of fixing 15 years for recovery of commuted part of pension was upheld) 18. The Court also takes note that commuted amount petitioners has range from 12 lakh to 14 lakh and installment is between 11,000/- and 14,000/- per month, which is not exorbitant. The petitioners has also not disclosed their respective pension amount. It is also relevant to note that for purpose of other benefits, pension amount is considered without taking note of commuted amount and accordingly, all writ petitions are dismissed and correspondently interim orders passed in all writ petitions are vacated. 19. A copy of this order be communicated to Principal Secretary (Finance), Government of U.P. at Lucknow. 20. Registrar (Compliance) to take steps.