Court No. - 6
Case :- WRIT - A No. - 63 of 2020 Petitioner :- Rajendra Kumar Tyagi Respondent :- State of U.P. and Another Counsel for Petitioner :- Sanjay Kumar Mishra,Anoop Trivedi (Senior Adv.) Counsel for Respondent :- C.S.C.,Ravi Prakash Pandey,Rohan Gupta Hon'ble Pankaj Bhatia,J.
Heard Shri Anoop Trivedi, learned Senior Advocate assisted by Shri Sanjay Kumar Mishra, learned counsel for the petitioner and Shri Rohan Gupta, Advocate appearing on behalf of Ghaziabad Development Authority.
The present petition has been filed alleging that in terms of an advertisement issued for appointment of Cost-Accountant, Assistant Cost- Accountant, Legal Assistant and Stenographer-Typist in the newspaper on 18.2.1988. The petitioner applied for being appointed to the post of Legal Assistant. The petitioner was called for interview and an appointment letter was issued to the petitioner on 7.5.1988 (Annexure-4 to the writ petition), appointing the petitioner on the post of Legal Assistant on ad hoc basis till further orders.
In pursuance to the said appointment order, the petitioner joined and worked on probation for a period of one year, subsequently, however, the petitioner continue to work as a Law Assistant. It is also on record that the Law Officer, Shri Naresh Dutt Tyagi was holding the post of Law Officer in the respondent-Development Authority and retired on 30th September, 2000 and after the said retirement, the said Law Officer was paid his pension. It has been pleaded that the Board of Ghaziabad Development Authority passed a resolution on 4.6.1977, resolving to create a post of Law Officer, which according to the respondents vested with the Ghaziabad Development Authority (Annexure-5 to the writ petition).
It is stated that the requirement of a Law Officer was felt in view of the request made by the Development Authority to the State Government to create a post of Law Officer on deputation basis, which was not acceded to and the State Government vide its order dated 6.4.1977 directed the Ghaziabad Development Authority to take action in terms of the provisions of Section 5 (2) of the U.P. Urban Planning and Development Act, 1973.
It is stated that in pursuance to the said directions given by the State Government Shri Naresh Dutt Tyagi was appointed as Law Officer, thus all these facts have been stated to demonstrate that it was the Ghaziabad Development Authority, whose Board was empowered to sanction the post of Law Officer.
Learned counsel for the petitioner argues that by means of a Government Order dated 10.3.2017, the post of Law Assistant and Law Officer was merged and was re-designated as Law Officer (Annexure-9 to the writ petition). It is stated that thereafter the petitioner was absorbed on the post of Law Officer in terms of an order dated 15.3.2017.
It is stated that the petitioner had attained the age of superannuation and retired on 31.7.2018 and submitted his request for payment of pension. On the request so made by the petitioner, a report was prepared to the effect that the petitioner was entitled to the benefits as claimed by him and it was also recorded that the petitioner was always granted the service benefits during the time he worked since the first date of his appointment, however, the Ghaziabad Development Authority in its 154th Meeting held on 28.9.2019, while considering the claim of the petitioner for payment of the pension, declined the same solely on the ground that the post of Law Assistant was not sanctioned and thus the petitioner was not entitled for payment of the pension.
Shri Anoop Trivedi, learned Senior Advocate appearing on behalf of petitioner argues that in terms of the U.P. Development Authorities Centralized Services Retirement Benefits Rules, 2011, the petitioner was entitled. In terms of the said Rules of 2011, the eligibility as prescribed for the persons who are entitled to payment of the pension and retiral dues is specified in Rule 2 (i) of the said Rules of 2011.
A perusal of the said Rules of 2011 shows that the retiral benefits are payable to the persons who have completed the following eligibility criteria:-
“(झ) “ अर्ह!कारी सेवा" का तात्पर्य! सेवा के किकसी सदस्र्य की ऐसी सेवा से र्है जो कि6म्6लि9लि:त शत< को पूरी करता र्होः-
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In any event, he argues that the petitioner continued to discharge his duties as a Law Assistant in pursuance to a substantive appointment made in accordance with law and continue to draw his salary from the State funds throughout the tenure of his appointment.
Shri Rohan Gupta, appearing on behalf of Ghaziabad Development Authority does not dispute the fact that the salary of the petitioner throughout was paid by the State Government and not by the Ghaziabad Development Authority out of his own funds. He, however, justifies the impugned order on the basis that as the post was not sanctioned post, the petitioner would not be entitled for benefit of retiral dues.
In terms of the Retirement Benefits Rules of 2011, it is clear that the necessary services to be rendered before a person can be said to be qualified for service is 20 years of service and in terms of Rule 2 (i) (2) of the Retirement Benefits Rules, 2011, when seen in the light of the appointment of the petitioner, makes it clear that the appointment of the petitioner was a regular appointment, which is also fortified by the fact that the petitioner was paid the salary through the State funds and had completed 20 years of service from the date of his initial appointment i.e. on 7.5.1988.
Considering the fact that the petitioner qualified the eligibility criteria prescribed under the Retirement Benefits Rules of 2011 and had rendered the qualified service of more than 20 years, the decision of the respondents in not paying the retiral benefits cannot be sustained.
Accordingly, the writ petition is allowed. the order dated 28.9.2019, insofar as it relates to Agenda Item No. 17 (in respect of the petitioner) is set aside. The respondents are directed to take steps for payment of the retiral benefits to the petitioner in accordance with law expeditiously, preferably within a period of four months from the date of filing of a copy of the order before the Vice Chairman, Ghaziabad Development Authority.
In view of the fact that the stand taken by the respondents for non- payment of the pension has been repelled by this Court, it is directed that the petitioner shall be entitled to payment of pension alongwith interest at the rate of 6% per annum from the date of his retirement till actual payment.
The writ petition stands allowed in terms of the said order.
Copy of the order downloaded from the official website of this Court shall be treated as certified copy of this order.
Order Date :- 22.9.2021
S. Rahman