Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
The petitioner before this Court was employed in the Medical Health Department of the State of Uttar Pradesh. He submitted an application for voluntary retirement which was allowed. An order to that effect was communicated to the petitioner vide letter dated 19.12.2013. The order contained a recital that the petitioner would be entitled to the benefit of the Government Order dated 24.01.1977 (the correct date of the Government Order is 24.08.1977), in the matter of addition of five years of service for the purpose of computation of pension etc. This benefit of additional five years of service was not provided in the matter of fixation of pension.
The petitioner, therefore, filed writ petition no.58847 of 2013 which was disposed of vide order dated 25.10.2013 permitting the petitioner to make a representation for ventilating his grievance before the Director, Pension Nideshalaya, U.P. Indira Bhawan, 8th Floor, Ashok Marg, Lucknow. The Director in turn was required to pass a reasoned order within the time permitted.
Under the order impugned, the Director has recorded that the provision for addition of five years of service in the case of an employee who opts for voluntary retirement has since been withdrawn under Clause 6 of the Government Order dated 08.12.2008. This Govt order which was in force on the date the order accepting the request of voluntary retirement was issued i.e. 27.02.2009. It has been, therefore, held that the petitioner is not entitled to addition of five years of service for the purpose of computation of pension etc. This order is challenged on the ground that under fundamental Rule 56 A Chapter IX proviso to Clause Anga qua a government servant opts for retirement or who is retired under the provision of the said Act, the appointing authority may issue an order for addition of five years of service or such period of service which an employee would have worked, if he had not been so retired for the purpose of computation of gratuity, pension etc. It is submitted that it is with reference to this proviso to fundamental Rule 56 A, the State Government had issued the Government Order dated 24.08.1977 for addition of five years of service in respect of an employee who opts for voluntary retirement in the matter of the computation of pension. The order impugned is based on non-consideration of statutory nature of proviso to Rule 56 A Clause Anga. Even otherwise an assurance was held out to the petitioner at the time of acceptance of compulsory retirement application that he would be entitled to addition of a period of five years of service in the matter of computation of pension etc. which assurance would act as an estoppel against the State.
We have heard the counsels for the parties and examined the records.
From proviso 56 A which has been so vehemently relied upon by the counsel for the petitioner, we find that a discretion has been conferred upon the appointing authority to add period of five years or such other period as the appointing authority may decide in respect of an employee who opts for voluntary retirement for the purpose of computation of pension etc. It is with reference to this provision that an earlier Government Order dated 24.08.1977 was issued providing for addition of five years of service in the case of employees who opt for retirement, in the matter of pension but the position has changed thereafter. On recommendation of Sixth Pay Commission, and pay revision committee, the State of U.P. has also revised the benefit of pension, gratuity etc. payable to its employees. The Government Order dated 08.12.2008 issued for the purpose under Clause 6 provides as follows:-
^^6- vgZdkjh ls vfrfjDr lsok dh x.kuk mijksDr izLrjksa 1 ls 5 esa mfYyf[kr isa'ku gsrq vgZdkjh lsok dh x.kuk O;oLFkk ds ifjizs{; esa vfrfjDr lsok dks isa'ku gsrq vgZdkjh lsok esa x.kuk dh O;oLFkk lekIr gks tk,xh rFkk lacaf/kr fu;e rn~uqlkj la/kksf/kr le>k tk,xkA^^ From simple reading of the Government Order, it is apparently clear that the State Government has decided to withdraw the earlier provision of adding five years of additional service for the purpose of computation of pension in the case of person who is retired / seeks voluntary retirement. It has also been provided that relevant Rule in that regard shall be deemed to have been amended accordingly.
So long as the Government Order dated 08.12.2008 stands on record, there could have been a direction in the order dated 27.02.2009 for providing addition of five years of service in the matter of computation of pension of the petitioner in terms of the Government Order dated 24.08.1977 (wrongly mentioned as 24.01.1977 in the order) inasmuch as on the date of issuance of order dated 27.02.2009, facility in that regard stood withdrawn by the Government Order dated 08.12.2008. This takes the Court to the 2nd issue namely the challenge made to the Government Order dated 08.12.2008 by means of the prayer no.2 in the present writ petition.
The only ground pressed for challenging the Government Order is that it cannot have retrospective effect and cannot violate statutory provision of Rules 56 A. In our opinion, both the contentions raised on behalf of the petitioner are wholly misconceived. Neither the Govt order impugned has been given retrospective, in any case the issue has no bearing in the facts of this case as the petitioner had admittedly voluntary retired in the year 2009 when the Government Order dated 08.12.2008 had already seen the light of the day.
So far as challenge on the ground of violation of statutory provision of fundamental Rules is concerned, we find that Rule 56 A (Da) proviso itself contemplates a power upon the appointing authority to issue orders for granting such benefit of additional period of service being added in the case of voluntary retirement of the employees. It is with reference to this provision that earlier Government Order dated 24.08.1977 had been issued. If by means of the subsequent Government Order, the facility has been withdrawn, it cannot be said that the State Government has acted contrary to the statutory provisions.
Learned counsel for the petitioner submitted at this stage that under the order of compulsory retirement, the petitioner was held entitled to the benefit of addition of five years of service, the State Government cannot deny the said benefit now.
In our opinion, the contention, has only been raised to be rejected. The State Government is bound by the Government Order issued from time to time. If any mistake had been committed in the order dated 27.02.2001, the Court will not direct enforcement of such illegal condition. There can be no estoppel against law.
For the reasons recorded above, the writ petition is dismissed.
Order Date :- 25.3.2014 rkg