Hon'ble Rang Nath Pandey,J.
Heard learned counsel for the petitioner and Sri I.P.Singh, learned counsel representing the respondents-U.P. Jal Nigam.
The petitioner, who was compulsorily retired from the post of Assistant Engineer (Civil) vide order dated 02.09.2005 from the services of U.P. Jal Nigam, has filed this petition with the prayer to issue a direction to the appropriate authorities of the Jal Nigam to make fixation of his pension for the period commencing on 02.09.2005 till 27.06.2014.
So far as the facts of this case are concerned, there is no dispute between the parties.
The petitioner, as stated above, while serving U.P. Jal Nigam, was compulsorily retired from the post of Assistant Engineer (Civil) vide an order dated 02.09.2005 passed by the Chief Engineer/Appointing Authority. The petitioner thereafter challenged the order of compulsory retirement dated 02.09.2005 by way of filing a writ petition before this Court, namely, Writ Petition No.1962 (S/B) of 2005 which was dismissed by a Division Bench of this Court by means of the order dated 30.10.2014.
It appears that after dismissal of the writ petition, pension papers of the petitioner were processed and Pension Payment Order (PPO) was issued by the Chief Accountant of U.P. Jal Nigam on 05.11.2014, which has been annexed as annexure no.2 to the writ petition. According to the said document, pension has been made admissible to the petitioner w.e.f. 27.06.2014 whereas the fact remains that he was retired on 02.09.2005. The respondents while calculating the pension and making payment thereof have completely ignored the period from 02.09.2005 till 27.06.2014 i.e from the date of his retirement till he is said to have made application for grant of pension.
It has been stated by learned counsel for the petitioner that there is no reason why the petitioner should not be paid pension for the aforesaid period and further that the impugned action on the part of the authorities of U.P. Jal Nigam withholding the pension for the aforesaid period is not supported by any rule or law.
Per contra, learned counsel representing U.P. Jal Nigam has stated that in terms of the provisions contained in Para 930 of Civil Service Regulations, since the petitioner had submitted his application for grant of pension only on 27.06.2014, as such he shall be entitled for payment of pension from the date on which he presented the application and not from the date when he retired.
We have considered the competing arguments made by learned counsel for the parties.
There is no dispute about the applicability of the provisions of Civil Service Regulations on the employees working in U.P. Jal Nigam. However, reliance placed by learned counsel for the petitioner on Para 930 of Civil Service Regulations to deny the pension to the petitioner for the period in question is not tenable for the reasons which follow.
Para 930 of Civil Service Regulations is extracted hereinbelow:-
930. Apart from special orders, a pension, other than a Wound or extraordinary pension under the Uttar Pradesh Civil Services (Extraordinary Pension) Rules, is payable from the date on which the pensioner ceased to be borne on the establishment, or from the date of his application, whichever is later. The object of this latter alternative is to prevent unnecessary delay in the submission of applications. The rule may be relaxed, in this particular, by the authority sanctioning the pension when the delay is sufficiently explained.
1. The pension of an officer who under Article 436, has received a gratuity in lieu of notice is not payable for the period in respect of which the gratuity is paid."
According to the provisions contained in Para 930 as extracted hereinabove except in case of extraordinary pension or wound pension under Uttar Pradesh Civil Services (Extraordinary Pension) Rules, pension is payable to a retiring employee from the date on which the pensioner ceases to be borne on the establishment or from the date of his application, whichever is later.
The said provision further states that the object of the latter alternative of making payment of pension from the date the application by the pensioner is made, is to prevent unnecessary delay in submission of application for grant of pension. It further provides that the rule may be relaxed by the authority sanctioning the pension when the delay is sufficiently explained.
The question, which arises in this case is as to whether Para 930 of Civil Service Regulations will have any applicability in case of grant of pension to an employee who is compulsorily retired.
The matters relating to compulsory retirement of a government employee are governed by Fundamental Rule 56 of the Financial Handbook Vol-II, Part-II to IV. Regulation 56 is quoted hereinbelow:-
"56 (a) Except as otherwise provided in that Rule, every Government Servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of compulsory retirement with the sanctioned of the Government on public grounds., which must be recorded in writing but he must not be retrained after the age of 60 years except in very special circumstances.
(b) A Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. He must not be retained in service after the date, except in very special circumstances and with sanction of the Government.
(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 fifty years or such Government servant may by notice to the appointing authority, voluntarily retire at any time after attaining the age of [forty five years] or after he has completed qualifying service for twenty years.
(d) The period of such notice shall be three months:
Provided that-
(i) any such Government servant may by order of the appointing authority without such notice or by a shorter notice be retired forthwith at any time after attaining the age of fifty years and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances if any for the period of the notice or as the case may be for the ;period by which such notice fall short of three months at the same rates at which he was drawing immediately before his retirement;
(ii) It shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice:
Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted.
Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority.
(e) A retiring pension shall be payable and other retirement benefits if any shall be available in accordance with the subject to the provisions of the relevant rules to every government Servant who retires or is required or allowed to retire under this rule.
Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rules the appointing authority may allow him for the purposes of pension and gratuity, if any the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation whichever be less.] Explanation- (i) The decision of the appointing authority under clause (c) to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest, but nothing herein contained shall be construed to require any recital in the order of such decision having been taken in the public interest.
(2) In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause (c ) the appointing authority may take into consideration any material relating to the government servant and nothing herein contained shall be construed to exclude from consideration-
(a) any entries relating to any period before such Government servant was allowed to cross efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on ad hoc basis; or
(b) any entry against which a representation is pending, provided that the representation is also taken into consideration along with the entry; or
(c) any report of Vigilance Establishment constituted under Uttar Pradesh Vigilance Establishment Act 1965.
(2-A) Every such decision shall be deemed to have been taken in the public interest.
(3) The expression "appointing authority" means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire and the expression "qualifying service" shall have the same meaning as in the relevant rules relating to retiring pension.
(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause (d) at this rule shall have effect from the forenoon of the date of its issue, provided that if after the date of its issue, the Government servant concerned, bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the fact of his having earlier retired."
According to Fundamental Rule 56 (1) (c), the appointing authority may at any time require an employee to retire after he attains the age of 50 years by notice. Sub-clause (d) of Fundamental Rule 56 (1) provides that period of such notice shall be three months. Sub-clause (i) appended to sub-clause (d) of Fundamental Rule 56 (1) contains a proviso which permits the appointing authority to retire the employee without such notice or even by a shorter notice. However, in case an employee is retired by the appointing authority without notice as stipulated in sub-clause (d) of Fundamental Rule 56 (1) or by a shorter notice, in that eventuality, the employee concerned is entitled to a sum equivalent to the amount of his pay and allowances for the period of notice or for the period by which such notice falls short of three months, as the case may be.
Thus, there can be two modes which can be resorted to by the employer in case of compulsory retirement of an employee. An employee having attained the age of 50 years can be compulsorily retired by notice, period of which as stipulated in Fundamental Rule 56 (1) (d) is three months. The employer can take recourse to compulsorily retire an employee by waiving the period of notice or even by shortening the period of notice as the same is permissible in Fundamental Rule 56 (1) (d) (i). However, in case the entire notice period of three months is waived of or it is shortened, then in that situation, the employee being compulsorily retired, is entitled to pay for the notice period or for the period by which the shortened notice is given.
In a situation where compulsory retirement is taken recourse to by the appointing authority by notice of three months or even by shorter notice, the employee concerned will have prior notice or knowledge of date of his retirement. However, in a situation where the notice period is waived of and in lieu thereof, the sum equivalent to the salary and allowances of the said period is paid to the employee, it cannot by any stretch of imagination be said that such an employee being compulsorily retired will have any knowledge or notice of the date of his ensuing retirement.
Where an employee retires in ordinary course i.e. on attaining the age of superannuation as per the prescription available in the rules/regulations regulating the age of retirement etc., in that situation also such a retiring employee has the prior knowledge and notice of the date of his retirement.
As noticed above, Para 930 provides that an employee shall be entitled to pension from the date of his retirement or from the date of his application to be made by him for grant of pension. The underlying object of such provision is to prevent unnecessary delay in submission of the application for grant of pension.
However, what we notice is that the said provision contained in Para 930 of Civil Services Regulations does not have any application in case an employee is retired compulsorily waiving the period of notice as contemplated in Fundamental Rule 56 (1) (c). The said requirement of furnishing the application may be insisted upon only in case the employee concerned retires in ordinary course on his attaining the age of superannuation or in case he is compulsorily retired by notice. In any case, since an employee being compulsorily retired by waiving of the period of notice cannot be said to have any prior knowledge or notice, insistence on the provisions of Para 930 of Civil Service Regulations for denying an employee the pension for the period commencing on the date of his retirement and ending on the date he makes the application, is absolutely arbitrary and is not supported by any rationale whatsoever.
As observed above, the very purpose of making available the pension either from the date of retirement or from the date of making of the application is to avoid any unnecessary delay in submission of the application for grant of pension.
The said provision will be applicable only in case the employee concerned has prior knowledge or notice of his date of retirement, which, in our considered opinion, can occur only in two situations, firstly when the employee concerned is retired in ordinary course on his attaining the age of superannuation and secondly when he is compulsorily retired by notice.
Thus, in absence of any prior knowledge or notice of the date of retirement in case an employee is compulsorily retired without notice i.e. by waiving the period of notice as contemplated in Fundamental Rule 56 (1) (c), (d) and (d-(i)), applicability of Para 930 of Civil Service Regulation cannot be insisted upon.
We may also notice in this case that the petitioner had challenged the order of compulsory retirement dated 02.09.2005 by filing the writ petition as aforesaid before this Court and thus, he was legitimately expecting that the writ petition may be allowed. Further there is nothing on record which suggests in any manner that authorities of U.P. Jal Nigam ever required the petitioner to make any application or to furnish any document for the purposes of processing his pension papers.
As is well settled by this Court as also by Hon'ble Supreme Court in various judgments, pension to be paid to an employee is not a bounty; rather it is his right and for the purposes of sanction of pension all the documents and related records are always available with the establishment from where the employee retires. Thus, we, in the peculiar facts and circumstances of the case, are unable to find any fault on the part of the petitioner.
In view of the discussions made hereinabove, the writ petition is allowed and we categorically hold that the petitioner is entitled for grant of pension with effect from the date of his retirement i.e. 02.09.2005. We, thus, direct the respondents to pay the petitioner arrears of pension for the period commencing on 02.09.2005 till 27.06.2014 expeditiously, say, within a period of two months from the date of production of a certified copy of this order.
There will be no order as to costs.
Order Date :- 10.9.2018 Renu/-
(Ranj Nath Pandey,J) (Devendra Kumar Upadhyaya,J)