1. The record of writ petition was initially directed to be transmitted to Armed Force Tribunal, Lucknow by order dated 26.02.2010 passed by Hon. Rajiv Sharma, J, though the matter did not pertain to Armed Force Tribunal. The record sent thereto has been received back with letter dated 28.05.2002 by registered post. The order-sheet says that this matter does not relate to Armed Force and therefore, Tribunal has no jurisdiction . The learned counsel for the parties agreed that for some mistake record was transmitted to Tribunal though it did not pertain to Armed Force. Since pleadings are complete, on the request of learned counsel for the parties, this writ petition is being finally heard and decided at this stage under the Rules of the Court.
2. Heard Shri G.K. Singh, learned counsel for the petitioner, Shri Ashutosh Vaish, learned counsel for the respondent nos. 2 and 3 and learned Standing Counsel for the respondent no.1.
3. The orders dated 27.11.2006, 29.11.2006 and 02.12.2006 are impugned in this writ petition.
4. The first letter dated 27.11.2006 is annexure-2 to the writ petition whereby Executive Engineer, Paschimanchal Vidyut Vitran Nigam Ltd., EDD, Dhampur has informed petitioner that her husband working on the post of Complaint Recorder died on 14.01.2004, ought to have retired on 31.01.2002 on attaining the age of superannuation but having continued thereafter illegally till date of his death, his family pension was wrongly fixed by taking his service beyond 58 years and, therefore, it is being revised and re-fixed to Rs.1913.00 per month. Earlier orders otherwise issued are cancelled. It is also said that amount already paid in excess shall be adjusted against other dues payable to petitioner.
5. The second letter dated 29.11.2006 is annexure-3 to the writ petition, which also gives similar reasons and states that since petitioner's husband continued illegally in service till 14.01.2004, he was allowed leave encashment of 268 days though it ought to be only 207 days, therefore, earlier order dated 28.10.2005 allowing 268 days of leave encashment is being cancelled. The amount of 61 days leave encashment paid in excess to petitioner shall be adjusted towards other dues of late Shri Brijendra Singh, petitioner's husband.
6. The third letter dated 2.12.006 is annexure 4 to the writ petition issued by respondent no.3 stating that petitioner's husband actual date of retirement was 31.01.2002 and, therefore, annual increment allowed to him on 01.04.2002 , 01.04.2003 and 01.04.2003 is being cancelled and amount paid in excess shall be adjusted.
7. The facts in brief giving rise to the present dispute is that petitioner's husband was employed as ''Complaint Recorder' in erstwhile U.P. State Electricity Board. Initially he joined services as work-charged employee on 1st May 1970. Thereafter he became regular on 1st May 1973. The pay-scale in which he was appointed was Rs.70-118/-. Petitioner's husband was a Class IV 'Inferior Service' employee. Provision for retirement in erstwhile UPSEB was similar to that of Fundamental Rule 56 and it provides that an employee in 'Inferior Service' shall retire on attaining the age of 60 years. What would constitute 'Inferior Service' was explained by Board's Order No. 1725-SEB (AS-XVIII)/81-15-WBC/77 dated 6th July 1981, which reads as under:-
" I am directed to invite a reference to Board's O.M. No. 1051-Karmik (IX) SEB-81 15 WBC/77 of 15 Feb on the above subject and to say that the matter has since been examined and it is hereby clarified that employees drawing pay in the pay scale of Rs. Rs.22-27/ Rs.27-32/Rs 32-37 (prior to 1-4-65) which were received to Rs.55.57/Rs.60-80 (w.e.f 1-4-65), Rs.55-90 Rs. 70-118 (w.e.f 1.4.1969) and Rs. 255-298/Rs.260-313 (w.e.f 1-4-74) will be deemed to be in "Inferior Service" for purpose of computation of ager superannuation under regulation 2(b) of the U.P. State Electricity Board (Employees Recruitment) Regulation, 1975. The age of superannuation of all such employees shall accordingly be the date on which they attain the age of 60 years.
You are requested to kindly clarify the above to filed officers accordingly."
8. In view thereof petitioner's husband continued beyond 58 years of age but unfortunately just a few days before attaining the age of 60 years he died on 14.01.2004. The family pension was calculated taking petitioner's husband service upto 60 years of age and all other benefits were also determined accordingly. All of sudden petitioner thereafter, received impugned orders.
9. A supplementary affidavit has been filed by petitioner placing on record photo copy of service book of petitioner's husband stating that he was appointed on the post of ''Complaint Recorder' in the scale of Rs.70-118/- and not Rs.80-145/-.
10. The respondent nos. 2 and 3 have filed counter affidavit sworn by Executive Engineer, Electricity Distribution Division, Dhampur, District Bijnor. It is said therein that petitioner's husband was engaged as ''Complaint Recorder/Attendant Grade-II' initially temporarily in work charge establishment on 01.05.1970, where he worked till 30.04.1973 and thereafter, was appointed in regular establishment on 01.05.1973 on the same post, in the scale of Rs.70-118/-. Later on, petitioner's husband was allowed higher scale of Rs.82-145/- w.e.f date of his appointment i.e. 01.05.1973. In view thereof he seized to be a member of 'Inferior Service' but entered into the superior service. It is in this view of the matter that impugned orders have been issued and amount paid in excess is being sought to be recovered from other dues of petitioner's husband. It is also said that petitioner's husband ought to have retired on 31.01.2002 but by mistake he continued beyond it . He, however, died on 14.01.2004 just a few days earlier to attaining the age of 60 years. In para 15 of counter affidavit it is said that petitioner's husband was given superior employee pay-scale of Rs.80-145/- w.e.f. 01.05.1973 and Rs.265-330 w.e.f. 01.04.1974, hence he was a superior employee and not in 'Inferior Service'.
11. In the rejoinder affidavit, facts stated in counter affidavit have been denied and it is said that no amount is either recoverable from petitioner or is liable to be re-determined by means of the impunged order, since petitioner's husband was entitled to continue till the age of 60 years.
12. The only short question up for consideration whether petitioner's husband was a member of ''Inferior Service' or not.
13. The Board's order dated 6.7.1981 clearly shows that employees who were in the pay scale of Rs.72-118/- w.e.f. 1-4-1969 or in the scale of Rs.255-298/260-313 w.e.f 1-4.1974 shall be deemed to be in "Inferior Service" for the purpose of computation of age of superannuation under Regulation 2(b) of U.P. State Electricity Board (Employees Recruitment) Regulation, 1975 (hereinafter referred to as '1975 Regulation') and such employees shall retire on attaining the age of 60 years. The copy of service book has been placed on record along with supplementary affidavit, which is not disputed by counsel for the respondents. He has also placed reliance thereupon.
14. The service book appears to have been prepared on 21.1.1974 as is evident from page 8 of supplementary affidavit. On page 9, it shows petitioner's date of birth as 01.05.1973. He was appointed as Complaint Recorder/Attendant Grade-II. His basic pay was fixed at Rs.70/- and his status was shown as 'temporary'. In the last column of remark it is mentioned that post of ''Complaint Recorder' was in the scale of Rs.70-118/- created for him in regular establishment w.e.f 01.05.1973 vide B.O. No. 4970 No./SEB/4-60-K/73 dated 10.9.73 after completion of continuous service in work charge from 01.05.1970 to 30.05.1973. There is another noting(seal) in the last column immediately after first one, which reads as under:-
"appointed as Complaint Recorder w.e.f 01.05.1973 in a regular Esstt. In the scale of Rs.70-118/- w.e.f 0105.1973. ....F.N./A.N. vide SE's E.N.R.E. Circle 1, Moradabad O.M. No.23202-HM (E) S-1.......Dt 11-10-1973 read with E.D. MED, Bijnor OM No.8064/EMDB/ Esstt.....Dated 7-11-1973."
15. In the first line there is cutting at one stage and word ''pay revised' is mentioned but in the entire first page revised scale etc. is not mentioned. On the contrary at the top also, details of the entire time scale of pay Rs.70-118/- is given and thereafter basic pay of Rs.70/-. Petitioner's husband pay with annual increment appears to have been re-fixed at Rs.82/- w.e.f 01.05.1973 and this appears to have been done taking into account his three years past service and thereby giving him increment for fixation of pay. On the next page i.e. page 10 there is an endorsement in the last column which reads as under:-
" Pay revised and fixed at Rs.82/- w.e.f 01.05.1973in time scale of Rs.70-118/- vide B.O. No.3182-.../SEB/IR-171 dated 21.07.1973."
14. Thereafter pay scale of Rs.80-4-120/- is also mentioned. It appears that petitioners' husband pay was fixed again as under:-
" Basic Pay w.e.f.
15. Page 11 thereafter shows that pursuant to Board's No.302-wage/allSEB/78 dt-28/10/78, petitioner husband's pay in the scale of Rs.232-306/- was revised w.e.f 01.04.74 and pay-fixation was made as under:-
" 232- - 1-4-74 237/- - 1-4-75 242/- - 1-4-76 247/- - 1-4-77 252/- - 1-4-78 257/- - 1-4-79"
16. There appears to some re-fixation and petitioners' husband pay w.e.f. 1-4-74 was given in the scale of Rs.238-330/- and it was fixed as under:-
" 1-4-74 238/-
1-4-75 244/-
1-4-76 250/-
1-4-77 256/-
1-4-78 262/-
17. Now two things are clear that petitioner's husband was appointed in the scale of Rs.70-118/- w.e.f 1-4.1973. Though it is true that this pay was re-fixed w.e.f. 1.5.1973 in the scale of Rs.80-145/- but then it is also true that w.e.f 1-4-74 his pay was fixed in the scale of Rs.238-330/-. The Board's order while referring to scale Rs.70-118/- (w.e.f 1-4-1969) also refers to the scale of Rs. 255-298/Rs.260-313 (w.e.f 1-4-74) and therefore, given higher scale w.e.f. 1-4-1974 was treated in "Inferior Service". It cannot be said that petitioner's husband whose pay was fixed in the scale of Rs.238-330/- (w.e.f 1-4-1969) seized to be an employee in Inferior Service. It is inconceivable that if a person in the higher scale w.e.f 1-4-1974 was treated to be "Inferior Service" employee, lesser pay scale at the corresponding period would certainly be in "Inferior Service".
18. In the result I have no hesitation to hold that petitioner's husband was a member of ''Inferior Service' and , therefore, was entitled to continue till he attained the age of 60 years. The family pension and other dues after death of petitioner's husband, therefore, were rightly determined on his death on 14-01-2004 i.e. about a fortnight earlier to his date of retirement. The impugned orders directing recovery and re-fixation of pay are wholly illegal .
19. In the result, the writ petition is allowed. The impugned order dated 27.11.2006. 29.11.2006 and 02.12.2006 passed by respondent no.3 are hereby quashed. If any amount has already been recovered from the petitioner, it shall be refunded forthwith and in case some dues are still unpaid the same shall be paid without any further delay.
20. The petitioner shall also be entitled for cost which is quantified to Rs.5000/-
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