Court No. - 13
Case :- WRIT - A No. - 19111 of 2006 Petitioner :- Ram Aasrey -Ii Respondent :- State Of U.P. And Others Counsel for Petitioner :- G.S. Singh Gautam,A.K.Nigam,Akhilesh Kumar Shukla,Atul Kumar Srivastava,P.K. Singh,P.K. Srivastava,Prabhakar Pandey,Sudhakar Pandey Counsel for Respondent :- C.S.C.,Gyan Prakash A.S.G.I.
Hon'ble Ajit Kumar,J.
1. Heard Shri Abhishek Kumar Kushwaha, learned counsel for the petitioner and learned Standing Counsel for the State- respondents.
2. The petitioner was initially appointed on 24.11.1970 as chaukidar in the office of Regional Food Controller, Kanpur Region, Kanpur, in the pay-scale of Rs. 55-1-75 along with dearness allowance as admissible under the Rules, from time to time. The petitioner, in terms of the appointment order submitted his joining and continued in service and received his salary. His services came to be regularized and confirmed vide order dated 28th November, 1985, as chaukidar in the pay-scale as admissible in law. The petitioner, ultimately, attained the age of superannuation on 31.7.1993. The petitioner drew continuously salary in regular pay- scale while working initially on temporary bias and then after regularization or confirmation in service and yet his claim for pensionary benefits has been rejected vide order dated 19.1.2001 on the ground that he did not have the requisite year of qualifying service for the purposes of pension.
3. Admittedly, the services of the petitioner rendered as temporary employee has not been taken into account.
4. In my considered opinion, the stand taken under the impugned order is not sustainable in view of the Division Bench judgment of this Court in the case of Board of Revenue and others vs. Prasiddha Narain Upadhyay, 2016 (1) ESC 611 (Alld) (DB). Herein, the Court held that the services rendered as a temporary employee in an establishment will count towards qualifying service.
5. In view of the amendment to the Fundamental Rules, 1956, vide paragraphs 7, 8, 9, 12, 13 and 14, the Court held thus:
"7. Now it is too late in the day to say that the pension is not a right. As long back as in the year 1971 in the case of Deokinandan Prasad v. The State of Bihar and Ors. the Hon'ble Apex Court in para32 of the judgment held as under:
"But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweetwill and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant."
8. Again the Hon'ble Apex Court in the case of D.S. Nakara and others vs. Union of India following the aforesaid judgment, held as under:
In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from undeserved ant was recognised and as a first steps pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto the master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, every one who qualifies for normal retirement receives the same amount (see Retirement Systems for Public Employees by Bleekney, page 33). (Para22) Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past.(Para28) From the discussion three things emerge:
(i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socioeconomic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during the last three years of service reduced to ten months under liberalized pension scheme. Its payment is dependent upon an additional condition of impeccable behavior even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure. (Para31)
9. Article 424 Chapter 18 of the Civil Service Regulations provides the following kinds of pension admissible to a government servant (a) compensation pension (b) invalid pensions (c) superannuation pensions (d) retiring pensions.
12. The term "qualifying service" is defined in Section 1 Chapter 16 of Article 361 of the Civil Service Regulations, which provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions:
(A) The service must be under Government.
(B) The employment must be substantive and permanent.
(C) The service must be paid by government.
13. In the present case, so far as the condition nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B, i.e., lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P. Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in Clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every government servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Conditions (Supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is inoperative.
14. A similar controversy came up for consideration earlier before this Court in the case of Dr. Hari Shankar Ashopa v. State of U.P. and Ors. reported in 1989 ACJ 337 : 1989(1) UPLBEC 501. After referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations, this Court observed as under:
Clause (e) of Rule 56 unequivocally recognizes, declares and guarantees retiring pension to every government servant who retires on attaining the age of superannuation, or who is prematurely retired or who retires voluntarily. To be precise, every government servant (whether permanent or temporary) who retires under Clause (a) or Clause (b), or who is required to retire, or who is allowed to retire under Clause (c) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied.”
6. Learned counsel for the petitioner has also relied upon the judgment dated 10.9.2015 passed in Writ petition No. 20961 of 2012 (Ramanand Chaubey vs. State of U.P. and others), wherein Proviso to Rule 3(8) of UP Retiral Benefit Rules, 1961, came to be interpreted and vide Paragraph 12, the Court held thus:
"12. Proviso to Rule 3(8) itself prescribes that continuous temporary service without interruption followed by confirmation shall count as qualifying service. Thus, it is wholly immaterial that the service of the petitioner was regularized on 3.5.2003, as he was continuously working since the date of initial appointment. Though earlier his working was against a temporary establishment, as there was no sanctioned post but after temporary post was sanctioned and later on converted into permanent post, the service so rendered by the petitioner, fully qualifies for being counted for purpose of payment of pension and retiral benefits."
7. In view of the above exposition of law, the impugned order cannot be sustained and is hereby set aside. The petitioner is held entitled to pensionary benefits, if there is no other legal impediment. Necessary exercise for passing the order regarding pension shall be completed within a period of three months from the date of production of certified copy of this order. The petitioner shall paid arrears of pension together with interest as may be admissible in law on unpaid arrears from the date it accrued till actual payment is made.
8. The writ petition succeeds and is allowed with the above observations and directions.
Order Date :- 24.4.2018 LN Tripathi