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SMT. NAGESHWARI DEVI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt. Nageshwari Devi v. State Of U.P. And Others - WRIT - A No. 3772 of 2005 [2007] RD-AH 961 (15 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 3772  of 2005

Smt. Nageshwari Devi

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Petitioner is widow of late  Hit Lal Yadav, who was appointed as collection peon on 01.05.1967 and worked up to 30.09.1981, and thereafter he was appointed on 20.11.1981 and worked till 15.01.2004 without break of even single day, with satisfaction of the authority concerned. Petitioner has contended that services of her husband were not regularized. The  association of which husband of petitioner was also a member, preferred writ petition No.11009 of 1989, and in the said writ petition on 19.03.1998 directives were issued for deciding the claim of members of petitioners' association. It has been contended that the said claim was not decided. Contention of petitioner is that in consonance with the Government Order dated 01.07.1989, she is entitled for family pension. Petitioner has contended that as no action for providing family pension to her was taken, present writ petition has been filed.

Counter affidavit has been filed, and therein, it has been contended that petitioner's husband was seasonal collection peon, who died on 09.08.2005, and in this background, it has been contended that claim of petitioner is not acceptable.

Rejoinder affidavit has been filed, wherein averments made in counter affidavit have been disputed and that of writ petition have been reiterated.

After pleadings have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri J.P.N. Singh, learned counsel for the petitioner, contended with vehemence that benefit of Government Order dated 01.07.1989 is liable to be extended to petitioner and there is no reason not to extend the said benefit.  

Learned Standing Counsel, on the other hand, has contended that petitioner was only seasonal collection peon, as such no benefit of family pension can be accorded to his widow.

After respective arguments have been advanced, the undisputed factual position is that husband of petitioner functioned with effect from, 01.05.1967  to 30.09.1981 with notional break and with effect from 20.11.1981 to 15.01.2004 without any break of even single day. Division Bench of this Court in the case of Board of Revenue and others v. Prasidha Narain Upadhyaya, 2006 (1) ESC (All) (D.B.) 611, qua similarly situated incumbents has taken the following view, which ( paragraphs  5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16) is being quoted below:

"5. From the record it is not disputed that the respondent has worked as Collection Peon since 10.2.1962 till 31st July, 1999 when he attained the age of superannuation on attaining 60 years of age and was retired from service (except of notional break of three months in the year 1989). Thus, apparently the respondent worked in the service of the appellants for almost more than 37 years. The appellants although submitted that the respondent was employed as Seasonal Collection Peon but the Hon'ble Single Judge on the basis of the perusal of the service book of the respondent has found that the employment of the petitioner-respondent has been mentioned as Collection Peon (Temporary) but subsequently in the service book it has been mentioned that he is working as Seasonal Collection Peon. The entry of initial appointment of the petitioner-respondent as temporary Collection Peon is not disputed. That being so, it is not possible to assume as to how the respondent has been shown as Seasonal Collection Peon in the subsequent part of the service book. The appellants could not explain this aspect even in the present appeal, although in para-7 of the affidavit they have admitted that in the 2nd column of the service book, a formal entry "temporary" of the service of the respondent is mentioned. It is also mentioned that the notice of retirement dated 5.5.1999 filed as Annexure-2 to the paper book of the appeal shows that the designation of the petitioner-respondent has been shown as Sangrah Chaprasi (Collection Peon) and not as a Seasonal Collection Peon, i.e. Samyik Sangrah Chaprasi. The order passed on the petitioner-respondent's representation by the appellants also shows that in the year 1996 the appellants recommended the petitioner-respondent for regularization to the Board of Revenue but the matter remained pending for years together and no order could be issued due to inaction on the part of the Board of Revenue and in the meantime the respondents attained the age of superannuation on 31.7.1999.    

     6.  Thus, for the only reason of non issuing of formal order of confirmation or regularization by the appellants can it be said that though the respondent has rendered 37 years of continuous service with the appellants, yet is not entitled for pensionary benefits.

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 Versus The State of Bihar & others reported in AIR 1971 SC1049 the Hon'ble Apex Court in para-32 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 sweet-will 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 Versus Union of India reported in AIR 1983 SC130 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). (Para-22)

"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."(Para-28)

"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 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 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."   (Para-31)

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.

10.Fundamental Rule 56 provides for retiring of a government servant on attaining the age of 58 years or 60 years as the case may be. It is not disputed that in the present case, the age of superannuation of the petitioner-respondent was 60 years. Clause (e) of Fundamental Rule 56 reads as under:

(e) "A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and 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 rule 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."

11.Article 465 and 465-A provides as under:

"465(1) A retiring pension is granted to a government servant who is permitted to retire after completing qualifying service for 25 years or on attaining the age of 50 years.                            

(2) A retiring pension is also granted to a government servant who is required by Government to retire after attaining the age of 50 years.

465-A. For officers mentioned in Article 349-A, the rule for the grant of retiring pension is as follows:                              

(1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years, or on attaining the age of 50 years.

(2) A retiring pension is also granted to an officer who is required by Government to retire after attaining the age of 50 years. "

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-B (Supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is in operative.

14.A similar controversy came up for consideration earlier before this Court in the case of Dr. Hari Shankar Ashopa Versus State of U.P. and others 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. "

15.In this view of the matter, the contention of the appellants that since the petitioner-respondent was not a permanent confirmed employee and hence not entitled for pension, is clearly mis-conceived and is rejected.

16.Learned counsel for the appellants further submitted that since in the service book, the petitioner-respondent was also shown as Seasonal Collection Peon and, therefore, the mention of word "temporary" as his initial appointment will not make any difference. We do not agree. The contention of the appellants that the petitioner-respondent was a Seasonal Collection Peon and his engagement and post was extended from time to time by the Commissioner is totally unsubstantiated, as nothing has been brought on record to substantiate this plea. Even otherwise the continuous working of the petitioner-respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitioner-respondent flowing by rendering service for such a long service, cannot be brushed aside lightly."                              

The case in hand is squarely covered by the afore-quoted Division Bench  judgment of this Court. Consequently, present writ petition is also allowed, and the respondents are directed to consider the claim of petitioner for grant of family pension, and take appropriate decision within two months from the date of receipt of a certified copy of this judgment.

15.01.2007

SRY.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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