1. Heard Sri L.K. Pathak, learned counsel for the petitioner, Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State-respondents and Sri Ajay Kumar, learned counsel for the opposite party Nos.3, 4 & 5.
2. By means of this writ petition, the petitioner has assailed the order dated 05.01.2017, passed by the Secretary, Department of Education (Basic), Anubhag-5, Government of U.P., Civil Secretariat, Lucknow, whereby the claim of the petitioner for counting his requisite services for the purposes of pension, has been denied. This order has been passed in compliance of order dated 17.05.2016 passed by this Court, which has been quoted in the order dated 05.01.2017 itself.
3. The facts of the issue are that the petitioner was initially appointed on the substantive post of Peon on 02.07.1973 on the fixed pay of Rs.20/- and for taking additional work from him, he was paid additional Rs.33/-. The petitioner remained posed at Junior High School, Aihar, Block-Rudauli, District-Barabanki (now District-Faizabad) till 02.07.1980 and thereafter he was transferred to Poorva Madhyamik Vidyalay, Bhawanipur, Block-Mawai, District-Barabanki (now District-Faizabad) and started functioning over there. However, since 01.01.1996 he was being paid salary in the regular pay-scale and thereafter retired from service on 31.01.2005. As a matter of fact, the petitioner has rendered more than 32 years of his service as a Peon and he was paid regular salary with effect from 01.01.1996.
4. After his retirement, the petitioner was not paid his post retiral dues for the reason that he has not completed ten years qualifying service which is necessary to get the pensionery benefits inasmuch as he has only completed 9 years and one month service.
5. Feeling aggrieved out of the said inaction, the petitioner preferred writ petitions before this Court. In his first writ petition bearing Writ Petition No.319 (S/S) of 2013; Ram Naresh Tiwari vs. the Secretary, Basic Education & others; this Court was pleased to pass order dated 18.03.2015 thereby permitting the petitioner to prefer a representation before the Competent Authority directing the Authority Concerned to pass appropriate order, strictly in accordance with law, within a stipulated time. In compliance of the order of this Court dated 18.03.2015, the order has been passed wherein it has been indicated that since the petitioner has not completed 10 years qualifying service which is necessary for the purpose of providing pension, therefore, he may not be provided the pensionery benefits. The petitioner assailed that inaction of the authority concerned before this Court by filing writ petition bearing Writ Petition No.5512 (S/S) of 2015; Ram Naresh Tiwari vs. State of U.P. & others wherein by order dated 17.05.2016 this Court was pleased to direct the State Government to pass appropriate order. It was informed at the bar that in such a situation the State Government has power to relax the condition of qualifying service to the extent of 12 months and not beyond. Since only 11 months period were short, therefore, the petitioner preferred representation to the State Government seeking relaxation for the period of qualifying service and the State Government vide impugned order dated 05.01.2017 has rejected the claim of the petitioner indicating the reasons that if the petitioner has been granted relaxation, it would have far reaching effect. In the aforesaid order, the State Government has not cited any legal impediments but only this much has indicated that relaxation in question would have far reaching effect.
6. Learned counsel for the petitioner has referred to the judgment of this Court rendered in re: Ram Sajiwan Maurya vs. State of U.P. & others reported in [2010 (28) LCD 1756] submitting that in identical facts and circumstances this Court was pleased to quash such order being passed by the Competent Authority directing the opposite parties to pay the petitioner his pension and other pensionery benefits. This Court in the said judgment has referred the judgment of Hon'ble Apex Court in re: D.S. Nakara and others vs. Union of India reported in AIR 1983 SC 130. The relevant portion of the said judgment has been quoted by this Court in that judgment and the same are being quoted here-in-below:-
"8. Again the Hon'ble Apex Curt in the case of D.S. Nakara and others v. Union of India, AIR 1983 SC 130 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 want was recognised and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitute in old age. The quid pro quo, was that when the employee was physically and mentally alert, he rendered unto 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 Bleakney, page 33) (para 22).
Pension 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.
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 Art. 309 and clause (5) of Art. 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 socio-economic 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 last three years of service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to requirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure."
In operative portion, in para-7 thereof this Court has held as under:-
"7. In the present case, the petitioner was appointed on class IV post on 01.11.1995 and continuously worked till the date of his retirement on 31.10.1999, during this forty five years of his tenure,his entire service remained unblemished. He was his paid his provident fund and group insurance but his pension and other pensionery have not been paid on The ground that since he has not completed ten years of service as confirmed employee, therefore, pension cannot be given to him. This cannot be done as held in the case reported in Board Revenue and others vs. Parsidh Narain Upadhya (Special Appeal No.743 of 2005, decided on 02.12.2005) (supra), in which their Lordship's, relying upon the decision of Hon'ble Apex Court in the case of Deokinandan Prasad vs. State of Bihar & others, AIR 1971 SC 1949, D.S. Nakara & others vs. Union of India, AIR 1983 SC 130, as well as fundamental rules, 56 and referring to the provisions of Civil Services Regulations have laid down 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, and thus, allowed the pensionery benefits to the respondent, who had completed 37 years of continuous service but he was not regularized. The decision rendered by the Division Bench is fully applicable to the present case. Therefore, the argument that since the petitioner was not a permanent confirmed employee and hence is not entitled for pension, is wholly misconceived.
8. In the result, the writ petition succeeds and is allowed. A writ in the nature of certiorari quashing the impugned rejection order of the representation dated 18.10.2004 passed by opposite party No.2 is issued. The respondents are directed to pay to the petitioner his pension and other pensionery benefits from the date of his retirement i.e. 31.10.1999 within a period of two months from the date a certified copy of this order is placed before them."
7. As per learned counsel for the petitioner, the aforesaid judgment has been complied with by the Competent Authority and the petitioner of that writ petition is getting his pension.
8. Learned counsel for the petitioner has also referred one more judgment of this Court dated 26.08.2011 passed in Writ Petition No.6258 (S/S) of 2008; Banshi Lal vs. State of U.P. & others, which was decided in terms of judgment rendered in the case of Ram Sajiwan Maurya (supra). Learned counsel for the petitioner has further submitted that since he was the counsel of that writ petition, therefore, he knows very well that the petitioner of that writ petition, namely, Banshi Lal is getting his retiral benefits in compliance of order of this Court dated 26.08.2011.
9. Learned counsel for the petitioner has also referred to letter dated 16.11.2018, which is contained as Annexure No.A-2 to the personal affidavit of the Principal Secretary, Department of Basic Education filed on 03.12.2018, sent by the Assistant Director of Education (Basic), Faizabad Mandal, Faizabad addressing to the Special Secretary, Department of Basic Education, Anughag-5, Government U.P., Lucknow, which clearly provides that the petitioner was initially appointed on the post of Peon on 02.07.1973 and was being paid the salary for the substantive post and he continuously worked in the Institution till his retirement, however, he was paid regular salary with effect from 01.01.1996. Therefore, learned counsel for the petitioner has submitted that when the Assistant Director of Education (Basic) vide his letter dated 16.11.2018 is submitting that the petitioner was being paid salary with effect from 01.07.1973 on the substantive post. Therefore, he may not be discriminated for the reason that he has started getting regular salary with effect from 01.01.1996 and for the purpose of providing the pensionery benefits, his entire service should have been counted.
10. Per contra, Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State-respondents has submitted that since the petitioner was appointed on fixed pay, therefore, in view of the Government Order dated 08.08.1994, his services should have not been treated as substantive services for the period he worked on the fixed pay and his qualifying services would be effected from the date when he was paid regular salary i.e. with effect from 01.01.1996. In support of his submission, learned Additional Chief Standing Counsel has referred the Division Bench judgment of this Court in re: State of U.P. & others vs. Gaya Ram rendered in Special Appeal No.1858 of 2008.
11. As per learned Additional Chief Standing Counsel, this Court was pleased to disallow the claim of identically placed employee for the reason that such employee was a fixed pay appointee, therefore, he may not be entitled for the benefit of entire service rendered as a fixed pay appointee, particularly, in view of the Government Order dated 08.08.1994. The Division Bench of this Court in re: Gaya Ram (supra) has held as under:-
"Before we close the order, it is necessary to observe that the distinction between a fixed pay appointee and a temporary appointee for denial of the benefit of service rendered as such, as indicated by the Government Order dated 08.08.1994, is that fixed pay employee are not employed against any post. Counsel for the respondents before us has contended that respondent was appointed against a post. Substantial material has not been brought on record of the writ petition for this Court to come to a definite conclusion as to whether the respondent, who was engaged on fixed pay, was employed against a post or not.
It is open for the State Government to obtain necessary reports with regard to the fact as to whether the respondent was appointed against a post or not.
If it is found that he was appointed against a post, Government may further consider the question of treating the services rendered on fixed pay as the qualifying service.
With the aforesaid observations/ directions, the appeal is disposed of. The judgment and order of the learned Single Judge is modified accordingly."
12. I have heard the rival contentions of learned counsel for the parties and perused the material available on record.
13. It has been noted that while passing the impugned order dated 05.01.2017, the Secretary, Department of Basic Education has not rejected the claim of the petitioner on the basis of Government Order dated 08.08.1994, rather, it has been indicated that if the petitioner is granted relaxation, it would have far reaching effect. As per the aforesaid observation of the Secretary of the department concerned, he was very well aware that he could have relaxed the condition in favour of the petitioner as it was very well within the domain of him but since his predicament was that if he relaxes this condition of qualifying the services of the petitioner, it would have far reaching effect.
14. This observation of the Competent Authority is not in conformity with the direction being issued by the Hon'ble Apex Court in re: D.S. Nakara (supra), which clearly mandates that the pension to a civil employee of the government is neither bounty nor a matter of grace depending upon the sweet will of the employer. Further, as per the letter dated 16.11.2018 issued by the Assistant Director of Education (Basic), Faizabad Mandal, Faizabad, the petitioner was initially appointed on the post of Peon and was being paid salary for a substantive post, therefore, the petitioner may not be denied his claim for relaxation of services in the light of the judgment and order dated 17.12.2018 passed by this Court in re: Gaya Ram (supra) inasmuch as in that case, the petitioner of that writ petition could not substantiate the fact as to whether he was appointed on the post of Peon and the Division Bench has referred the matter to the State Government to examine the case of that petitioner with the direction that if the State Government finds that the petitioner of that writ petition was appointed against the post, his case be reconsidered. Further, the present petitioner was not only being paid salary of Peon which has been treated as substantive post, but he was later on transferred from one Institution to another Institution like regular employee also. Therefore, the case of present petitioner is different from the petitioner in re: Gaya Ram (supra).
15. Therefore, in view of the facts, circumstances, reasons and also in the light of the dictum of Hon'ble Apex Court on the subject, I am of the considered view that the order dated 05.01.2017, which is impugned in the instant writ petition, passed by the Secretary, Department of Basic Education, Anubhag-5, Government of U.P., Civil Secretariat, Lucknow is arbitrary and uncalled for, therefore, the same is liable to be quashed.
16. Accordingly, the order dated 05.01.2017, passed by the Secretary, Department of Basic Education, Anubhag-5, Government of U.P., Civil Secretariat, Lucknow, which is contained as Annexure No.1 to the writ petition, is hereby quashed.
17. The writ in the nature of mandamus is issued commanding the opposite parties to pay the pension, as admissible to the petitioner, with effect from the date of his retirement treating the petitioner having completed his qualifying service of 10 years as required under law. The opposite parties are also directed to make compliance of this order within a period of three months from the date of presentation of a certified copy of this order, failing which, the petitioner shall be entitled for interest at the rate of 9% per annum with effect from the date of his retirement till the actual payment is made.
18. In view of the above, the writ petition is allowed.
19. No order as to costs.
20. Before parting with, it has been informed by learned Additional Chief Standing Counsel and Sri Ajay Kumar, learned counsel for the opposite party Nos.3 to 5 that in compliance of order dated 03.10.2018, the service book of the petitioner has been kept on record in this Court. However, the service book has not been presented before this Court today, but if the service book of the petitioner has been kept on record in the office of this Court, the same shall be returned back to Sri Ajay Kumar, learned counsel for the opposite party Nos.3 to 5, for which, Sri Ajay Kumar shall contact with the concerned officer of the record Section with promptness for doing needful.
Order Date :- 23.1.2019 Suresh/ [Rajesh Singh Chauhan,J.]