Court No. - 13
Case :- WRIT - A No. - 40551 of 2009
Petitioner :- Sri Krishna Tiwari Respondent :- State Of U.P. & Others Counsel for Petitioner :- J.P.N. Singh Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
The petitioner has worked as a Collection Peon though on a temporary basis ,but has been permitted to draw salary on full time basis w.e.f. 1.12.1981 until he attained the age of superannuation on 31.12.2008. Thus, the petitioner retired from service while working temporarily as a Collection Peon. The petitioner has brought on record his service book alongwith supplementary affidavit in which it is clearly entered that under the orders of Sub Divisional Magistrate, the petitioner was awarded pay-scale alongwith efficiency bar as prescribed under the Rules. Thus, though the petitioner is shown to be a Seasonal Collection Peon in the service book but he has not worked on a fixed pay. He continuously discharged his duties as a Collection Peon as he has been paid regular salary of the Collection Peon until the age of his retirement.
From perusal of the service book, it also transpires that petitioner has been paid increments also from time to time. Thus, service book of the petitioner has been prepared like that of a regular employee but admittedly he discharged his duties on a temporary basis.
The arguments advanced, therefore, on behalf of the learned Standing Counsel is that petitioner having discharged duties only as Seasonal Collection Peon, should be treated as a Seasonal employee and no benefit of pension can be conferred upon. However, learned Standing Counsel could not place any document on record or could show any averment in the counter affidavit to contradict the service book and entries therein regarding pay-scale given to the petitioner and increments from time to time as well.
This Court in the case of Board of Revenue and Others v. Prasidh Narain Upadhyay, 2006 (1) ESC 611 (All) (DB) has extensively dealt with the right to pension in respect of a temporary government servant and has held that as far as condition B of Article 361 of the Civil Service Regulation are concerned, same stands diluted in view of the amendment in Fundamental Rule 56 by inserting vide clause 'e' that retiring pension is payable and other retirement benefits, if any shall be available to every government servant who retires or who is required to retire, or who is allowed to retire under these Rules.
The petitioner has been made to retire on attaining the age of superannuation. The case before division bench in Prasidh Naraian Upadhyay (supra) was also relating to a Seasonal Collection Peon. In my opinion, the petitioner is entitled to the same benefit as has been held in respect of Prasidh Naraian Upadhyay who was also a Seasonal Collection Peon .
Learned counsel for the petitioner has further relied upon a judgement of another division bench of this Court of the case of State of U.P. Through Secretary, Revenue Department and Others v. Ram Sunder Ram, decided on 23.8.2016 in Special Appeal No. 1891 of 2009, which was in relation to the controversy regarding payment of post retirement dues in respect of Seasonal Collection Peon.
I find that ratio laid down in the two judgements (supra) are fully applicable to the present case and therefore impugned order passed by District Magistrate, Ballia dated 11th July, 2009, Annexure 7 to the writ petition rejecting the claim of the petitioner for pension is hereby quashed.
The writ petition is accordingly allowed with direction to the District Magistrate, Ballia to pass appropriate order in the light of judgments of this Court in the case of Board of Revenue and Others v. Prasidh Narain Upadhyay and State of U.P. Through Secretary, Revenue Department and Others v. Ram Sunder Ram (Supra). Necessary order shall be passed within period of three months from the date of production of certified copy of this order.
Order Date :- 30.5.2018 Sanjeev