Court No. - 62
Case :- WRIT - A No. - 12501 of 2004
Petitioner :- Deepak Dutta
Respondent :- State Of U.P. And Others
Counsel for Petitioner :- Satish Mandhyan,Saumya Mandhyan
Counsel for Respondent :- C.S.C.
Hon'ble Rajiv Joshi,J.
This writ petition under Article 226 of the Constitution of India has been filed for quashing the impugned orders dated 2.8.2003 & 12.9.2003 passed by the Additional Commissioner (Accounts) Trade Tax, U.P. Lucknow, whereby the petitioner's representation was rejected.
The brief facts for consideration by this Court are as under:
The petitioner was appointed on 16.7.1975 as Routine- Grade-Clerk on compassionate ground under U.P. Recruitment of Dependents of Government Servants (Dying-in-Harness) Rules, 1974 in the department of Sale Tax (now Trade Tax) and his date of birth as per the High School Certificate is 25.2.1955.
Subsequently, he was promoted as senior clerk in the office of Trade Tax Department. The petitioner applied for voluntary retirement on 31.10.1995 having completed 20 years' service which is the qualifying service in the said Department. The application for voluntary retirement was kept pending and ultimately on 20.10.1997, his application for voluntary retirement was accepted. The petitioner regularly worked and performed his duties in the said department from the date of his application for voluntary retirement i.e. 31.10.1995 to till 20.10.1997 i.e. the date of acceptance of his application for voluntary retirement..
In the meantime, the recommendations of 5th Pay Commission was made effective and the pay-scales were revised w.e.f. 1.1.1996. But since the petitioner was retired on 20.10.1997 with retrospective date i.e. 31.10.1995, therefore, the department did not extend the benefit of 5th Pay Commission to him and calculated his retiral and pensionary benefits on the basis of old pay- scale.
Aggrieved by the said action on the part of the respondents, the petitioner filed writ petition No. 49786 of 1999 seeking for quashing the order dated 24.8.1998 and 20.10.1997 with a direction in the nature of mandamus commanding the respondents to give benefit of additional 5 years of service for the purposes of his pensionary benefits in view of the Rule 56 (c) of the U.P. Financial Hand Book. The said writ petition was ultimately allowed on 25.4.2002 with a categorical finding that the petitioner had attended his duties till 20.10.1997 and as such he was entitled to all consequential benefits treating his voluntary retirement on 20.10.1997. Copy of the said judgment dated 25.4.2002 is on record as annexure -9 to this petition.
Pursuant to the aforesaid judgment of this Court, the petitioner was deemed to be in service till 20.10.1997 and the respondents allowed the benefit of 5th Pay Commission w.e.f. 1.1.1996 and send a recommendation vide letter dated 27.12.2002 for pension to the Additional Commissioner (Accounts) Trade Tax, U.P. Lucknow, in which duration for the purposes of fixation of pension was shown that the petitioner had worked 22 years 3 months and 5 days and giving the benefit of 5 years of service which was in accordance with the judmgnet of this Court, the total period for fixation of pension was about 27 years 3 months 5 days. But in spite of the said recommendation, pension fixation paper of the petitioner was sent vide order dated 2.8.2003 to the Treasury, Allahabad wherein his pension has been fixed at Rs. 895/- plus allowances. The benefit 5th Pay Commission has not been extended to the petitioner even though he was voluntarily retired on 20.10.1997 in view of the judmgnet dated 25.4.2002 passed by this Court in his writ petition referred to above, when 5th Pay Commission was effective.
Aggrieved the petitioner moved a representation dated 16.8.2003 which was rejected on the ground that total service of the petitioner was 22 years, 3 months 5 days but he remained on extraordinary leave for a period of 4 years, 7 months & 4 days and thus, his total service period remained 17 years & 06 months only, and further that at the time of his voluntary retirement he was less than 45 years of age,therefore, he is not entitled for benefit of 5 years of service.
I have heard Sri Ashok Khare, learned Senior Advocate assisted by Ms. Soamya Madhyan, learned counsel for the petitioner and learned Standing counsel for the respondents.
The contention of learned counsel for the petitioner is that respondents have illegally not given benefit of 5 years additional service as he was voluntarily retired on 20.10.1997 and Rule 56 (c) clearly provides that a Govt. servant can take voluntary retirement at any time after attaining the age of 45 years or after he has completed qualifying service of 20 years.
Learned counsel for the petitioner further contends that the period of 4 years 7 months 4 days has wrongly been deducted from his qualifying service. It was extraordinary leave and its deduction from the total period of service is contrary to Rule 408 of Civil Services of Regulation.
Per contra, learned Standing counsel supported the findings as recorded in the impugned order.
I have considered the rival submissions of the parties and gone through the records.
There is no dispute that the petitioner was working as Senior Clerk in the office of Trade Tax, he applied for voluntary retirement on 30.10.1995 after completing his 20 years of service and that he was voluntarily retired on 20.10.1997. It is also apparent from the judgment of this Court dated 24.5.2002 passed in writ petition no. 49786 of 1999 that during the period from 21.10.1995 to 20.10.1997, the petitioner had actually worked in the office of respondents and was deemed to be retired on 20.10.1997 with all consequential benefits, and therefore, the petitioner is entitled for the benefit of 5th Pay Commission with effect from 1.1.1996.
Rule 56 (c) of the U.P. Financial Hand Book which deals with voluntary retirement, provides as under:
"56 (c) Notwithstanding anything contained in clause (a) or clause (b) the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary) without assigning any reason, require him to retire after he attains the age of 50 years, or such Government servant may, by notice to the appointing authority, voluntarily retire at any time after attaining the age of 45 years or after he has completed qualifying service of 20 years."
The petitioner had actually worked till 20.10.1997 and therefore, petitioner was entitled for fixation of his pension deeming him to have voluntarily retired on the said date i.e. 20.10.1997. So far as deduction of 4 years and odds period from the qualifying services of the petitioner is concerned, the same has been granted as extraordinary leave on medical ground vide order of competent authority on submission of certificate issued. Further as per rule 408 of Civil Services of Regulations, the period of extraordinary leave is to be taken towards qualifying service for the purposes of pension if it is granted on medical certificate by the competent authorities. Therefore, in terms of Rule 408 all periods of leave with allowances, except the leave refused under fundamental rules 86 or 86-A , shall count as service.
The case of the petitioner falls within explanation of Rule 408 and therefore, the respondent has committed illegality while deducting the said period in the impugned order.
As a result of aforesaid discussion. the writ petition succeeds and is allowed. The impugned orders dated 2.8.2003 & 12.9.2003 passed by the Additional Commissioner (Accounts) Trade Tax, U.P. Lucknow are hereby quashed.
Respondents are directed to make fixation of petitioner's pension afresh in light of the observations made above expeditiously within a period of three months from the date of production of the certified copy of this order.
No order as to costs.
Order Date :- 29.3.2018 Akbar