Ram Pratap Shukla Son of Late Kewala Prasad Shukla Vs. State of U.P. Through Its Secretary, Irrigation Department and ors. - Court Judgment

Shishir Kumar, J.

1. The present writ petition has been filed for quashing the order dated 31.1.2003 (Annexure 4 to the writ petition) passed by the respondent No. 5 and issuing a writ of mandamus directing the respondents to grant pension and other post retirement benefits to the petitioner forthwith with interest at the rate of 18% till the actual payment is made to the petitioner.

2. The facts arising out of the present writ petition are that the petitioner was initially appointed as helper under the control of the respondent No. 3 w.e.f. 20.12.1976 and thereafter the petitioner was given all the benefits of revised pay scale from time to time. The work and conduct of the petitioner was always excellent and no disciplinary proceeding was initiated against the petitioner. Taking into consideration the work and seniority of the petitioner, the respondent No. 4 confirmed the petitioner in the pay scale of Rs. 750-940. A copy of the same has been annexed with the writ petition as Annexure 1 to the writ petition. The respondent No. 4 served a notice of retirement-dated 30.7.2002 upon the petitioner indicating therein that the petitioner will be retired in the after noon of 31.7.2002 on attaining the age of superannuation. Though, it was obligatory on the part of the respondents to complete all the papers within a period of six months before the retirement of the petitioner for payment of post retrial benefits but with a malafide intention the respondents have not done anything. When nothing was done for the purposes of payment of post retrial benefits to the petitioner, the petitioner moved an application on 25.4.2003 to the respondent No.3 for making the payment of post retrial benefits to the petitioner. It is necessary to mention here that the petitioner received a copy of the letter of Additional Director, Pension, Allahabad, in which it has been stated that the matter of the petitioner shall be dealt by the respondent No 4, as the petitioner belongs to Class IV category and further as the services rendered by the petitioner is less than 10 years, as such, the petitioner is not entitled for pension. A copy of the order-dated 31.1.2003 has been filed as Annexure 4 to the writ petition. It has been submitted by the petitioner that the petitioner was in continuous service since 20.12.1976 and retired on 31.7.2002 and has rendered service for more than 26 years, as such, the petitioner is entitled for pension and other post retrial benefits. This Court has held that if the temporary and regular employee in the government service appointed and if he is working on any post and has completed 10 years of service is entitled to get the pension under the law. Admittedly, the appointment of the petitioner is 20.12.1976 in accordance with the rules and after completing all the requisite formalities, and as such, there was no occasion not to count the services from 20.12.1976 to 1993. i.e. the date of regularization and thus, the past services rendered by the petitioner ought to have counted for calculation of pension and other post retrial benefits. Aggrieved by the aforesaid order, the petitioner has filed the present writ petition.

3. The writ petition was entertained and the counter and rejoinder affidavit have been filed, as such, the writ petition is being disposed of finally.

4. It has been submitted on behalf of the petitioner that the Government order dated 1,7.1989 relates to regularization of service, 10 years continuous service have been treated as regular service and 20 years has been treated on temporary basis. The contention of the respondents to this effect that the petitioner is not eligible for pension and other post retrial benefits is totally misconceived. The petitioner is entitled to get the pensionary benefits after rendering continuous service for about 26 years. The respondents are disputing the claim on the ground that the employment of the petitioner was not on substantive character. It is further stated that after amendment of Fundamental Rules, 1956, by U.P. Act No. 24 of 1975 which allows retirement of a temporary employee also and provides in Clause (e) that a retiring pension is payable and other retrial benefits shall be available to every government servant who retires under this Rule. It is further stated that the provisions of Fundamental Rules 56 shall prevail over Civil Service Regulations and moreover, on the government orders which have been annexed upon by the answering respondent. Words 'regular service' has not defined in the Government Order. The word ten years regular service has been referred to service rendered and not to the status of an employee and employee substantively appointed and permanent is automatically entitled for pension. The Government Order dated 1 7.1989 does not contemplate 10 years 'substantive service'. The words 'regular service' used in the Government Orders is not anonymous to substantive service. The benefit of Government servant is to be extended to temporary government servant. The temporary government servant cannot be said to have substantive regular service, as such, the word 'regular service' has not been used as specifying the capacity or status as a whole but has been used to denote and specify the nature of his service rendered, meaning thereby that the service should be regular.

5. The regular means steady or uniform in course practice or occurrence not subject to unexplained or irrational variation. The right of the petitioner flows from rendering of service for such a long period, which is a statutory right of the petitioner and cannot be ignored in any manner.

6. The reliance has been placed by the petitioner in Shakuntala alias Bhahmodevi (Smt.) v. Director of Pension reported in 2002 (3) UPLBEC 2521, the said judgment followed by : [1980]3SCR1006 Rajkanta v. The Finance Commissioner, Punjab and Anr. The reliance has been placed upon Para 10 of the said judgment. The same is being reproduced below:

10. Fundamental Rule 56 empowers the Government to compulsory retire a Government servant after he attains the age of 58 years. The same provision i.e. Sub-clause (c) also provides that Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of 45 years or after completing qualifying service of 20 years. Sub-clause (e) of Fundamental Rule 56 is relevant for the present controversy. Sub-clause (e) provides that the 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 very Government Servant who retires or is required or allowed to retire under this rule. Fundamental Rule 56(e) thus clearly contemplate payment Of retiring pension in both categories i.e., voluntary retirement and compulsory retirement. Fundamental Rule, thus, mandate for payment of retiring pension even to a person who has compulsory retired. Thus, the rule do not make any distinction with regard to payment of retiring pension to a person who has voluntary retired or has been compulsory retired. By Government Order dated 1.7.1989 it was provided that temporary Government Servants who have rendered ten years regular service are also entitled for the retirement benefits. The aforesaid Government Order was issued with intent to extend the pensionary benefits to temporary Government Servants, which is clear from the first Paragraph of the Government Order. Paragraph 2 of the Government Order further provides that those temporary Government Servants who have completed minimum ten yeas regular service on the date of retirement/superannuation or who have declared invalid by the appointing Authority will be entitled the superannuation/invalid pension, gratuity, family pension as admissible to a permanent employee. Paragraph 3 further provides that this provision will also be applicable in those cases where permission has been granted for voluntary retirement in accordance with the Fundamental Rule 56. The Government Order do hot specifically provide that the persons who are compulsory retired will not be given the benefit. Reliance has been placed on the guidelines of Clause 14 circulated along with Government order dated 24.6.1996. The aforesaid Clause 14 provides :14- vfuok;Z lsokfuo`fr 1-7-89 ds lkluknsl ls vkPNkfnr ugha gS vr% vfuok;Z lsokfuo`fr ij islau dh ns;rk ds fy;s LFkkbZ gksuk vkoL;d gS A

7. The ad hoc employee on daily wages basis, contract basis or work charge basis to be treated as falling within ambit of expression ad hoc appointee continued fairly long spell of time, as such, presumption may arise that there was a regular need of service, as such, it was obligatory on the part of the employer to take steps for regularization of such employees which has been held in various judgments The reliance has been placed upon a judgment reported in 1997 AWC (Supplement) 550 Anil Kumar Kaushik v. New Okhla Industrial Development Authority Nodia and Anr. and 2000 (2) AWC 1261 State of U.P. and Ors. v. Dileram and Ors. It has been submitted that the Court has considered that rendering a service for a long period is status of such employee in absence of material on record to show as to why he had not been permanent despite such a long service. It has been held that he should be deemed to have become permanent as such, he is entitled for pension. The reliance has been place upon a judgment of this Court in Yashwant Hari Katakkar v. Union of India and Ors. reported in 1996 part-7, Supreme Court Cases, 113. It has also been held that an employee who has served more than 20 years of service is entitled for pension and denial of retiring pension to the petitioner on the ground of not being permanent in on any post clearly violative to Clause (e) of Fundamental Rules, 56 which clearly entitle for pension. The temporary department cannot keep a person as temporary or on daily wages indefinitely. It has been submitted that in case reported in (1995) 3 UPLBEC 1842 (Supplement) A.P. Srivastava v. Union of India and Ors. the Apex Court has clearly taken a view the condition precedent for being entitlement to pension in case of a temporary employee who has rendered 20 years of service is entitled to pension. The Apex Court while dealing with 'substantive capacity' the emphasis imparted by the adjective 'substantive' is that a thing is substantive if it is essential part of constituent or relating to what is essential. Therefore, when a post is vacant, however, designated in officilase, the capacity in which the person holds the post has to be ascertained by the State. The substantive capacity refers to capacity in which person holds the post and not necessarily to the nature and character of the post. Thus, a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially for a long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation. The reliance has been placed in AIR 1981 Supreme Court, 41 Baleshwar Dass v. State of U.P. and reliance has been placed upon Para 9 of the said judgment, The same is being reproduced below:

9. So, the order of appointment to the service is decisive of Seniority and the survive horoscope of each Assistant Engineer has to be cast with reference to his appointment order. The next question then, is when is an engineer appointed to the service? When, under the Rules, he becomes a member of the Service. For until he gains entry into the service he cannot claim to be appointed to it. To hover around with prospects of entry is not the same as actual entry. Therefore, we have to examine when an engineer becomes a member of the Service under the Rules. Clause (b) of Rule 3 defines 'Member of the Service' to mean a Government servant 'appointed in a substantive capacity under the provisions of these rules... to a post in the cadre of the Service.' What, then, is the cadre of the Service?. What do we mean by appointment in a substantive capacity to a post in the cadre? Can there be a temporary post included in the cadre. Here. Rule 4 becomes relevant. Rule 4 prescribes the sanctioned strength of the cadre. It provides that the Government may, subject to the provisions of Rule 40 of the Civil Service (Classification, Control and Appeal) Rules, 1930 'increase the cadre by creating permanent or temporary posts from time to time as may be found necessary.' So a cadre post can be permanent or temporary and if an engineer were appointed substantively to a temporary or permanent post he becomes a member of the Service. The touchstone then is the substantive capacity of the appointment. Here we get into service jargon with slippery semantic and flavored officalese.

8. The further reliance has been placed by the counsel for the petitioner in a Division Bench Judgment of this Court reported in 2006 (1) ESC 611 (Allahabad) (Division Bench) Board of Revenue and Ors. v. Prasidh Narayan Uoadhayay and has submitted that in the aforesaid case, the interpreting various position this Court has taken a view that 'continuous working for more than 37 years of the petitioner cannot be ignored on the basis of vague and unsustainable plea which has been raised by the appellant.' The statutory right of the petitioner respondent flowing by rendering service for such a long service, cannot be brushed aside lightly. The court has also taken into consideration the Articles 465 and 465(A) of Civil Service Regulation.

9. In such a situation, the petitioner submits that action of the respondents is wholly illegal and without jurisdiction and against the well settled principle of law and as the petitioner has continuously worked, as such, he is entitled for pension.

10. A counter affidavit has been filed and in the counter affidavit it has been stated that as the petitioner has not completed 10 years of regular service and the competent authority has clearly held that he is not entitled for post retrial benefits due to non completion of service of 10 years either in regular or temporary. According to Civil Regulation, Rule 368, the service does not qualify unless the officer holds a substantive office on a permanent establishment. Further Rule 370 provides that period of service in work charged establishment does not qualify a person for an entitlement of pension. As such, the petitioner is not entitled for pensionary benefits. According to Government Order, dated 26.5.1993, the calculation of post retrial benefits is made by the head of the department.

11. In view of the aforesaid fact, the respondents' submits that the petitioner is not entitled for post retrial benefits.

12. I have heard learned Counsel for the petitioner and learned Standing Counsel and have perused the record

13. It is clear from the record that there is no dispute between the partiers regarding the facts. Admittedly, the petitioner has rendered 26 years of service. In the counter affidavit it is admitted that in accordance with the Government Order dated 1.7.1989 a temporary government servant who retires after completing 58/60 years of age or voluntary retires from service is entitled for pensionary benefits.

14. The provisions relating to sanction of pensionary benefits to a government servant are contained in Civil Service Regulation framed by the Government. The qualifying service and other provisions pertaining to entitlement of pensionary benefits have been provided in Civil Service Regulations, Regulation 361 of the Civil Service Regulation provides that service of an officer does not qualify for pension unless the employment is substantive and permanent. Rule 361 is being quoted below-

361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:

First- The service must be under Government.

Second- The employment must be substantive and permanent.

Third- The service must be paid by Government.

These three conditions are fully explained in the following section.

15. There are four kind of pension, which have been defined in Regulation 424. The superannuation pension is granted to an officer in superior or inferior service entitled or compelled by Rule, to retire at a particular age Regulation 465 deals with retiring pension. 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 58 years. The retiring pension is also entitled to government servant, who is required by government servant to retire after attaining the age of 58 years. The age of retirement of a Government servant is prescribed under Fundamental Rules, 56.

16. The Standing Counsel has submitted and laid much emphasis on the word ^^nl nl dh fu;fer lsok** as used in Government order dated 1.7.1989, The submission of the learned Standing Counsel is that the petitioner was a worker charge employee and has not completed 10 years of regular service, as such, he is not entitled for pensionary benefits The words 'regular service' has not been defined in the government order From the repelling of the aforesaid government order, it is clear that words 'ten years regular service' has been referred to the service rendered and not to the status of employee, an employee substantively appointed and permanent automatically entitled for pension, if he has rendered a considerable period of service The Government Order dated 1.7.1989 does not contemplate the ten years substantive service The emphasis is that the service should be regular and the Apex Court in the judgment reported in : [1980]3SCR1006 (supra) has observed as follows-

To begin with the word 'regular' is derived from the word 'regular' which means 'rule' and its first the legitimate signification, according to Webster, is conformable to a rule, or agreeable to an established rule, law, or principle to a prescribed mode. In Words and Phrases (Vol. 36-A, P 241) the word 'regular' has been defined as steady or uniform in course practice or occurrence, etc. and implies conformity to a rule, standard, or pattern. It is further stated in the said Book that 'regular' means steady or uniform in course, practice, or occurrence not subject to unexplained or irrational variation. The word 'regular' means in a regular manner, methodically, in due order. Similarly, Webster's New World Dictionary defines 'regular' as 'consistent or habitual in action' not changing uniform, conforming to a standard or to a generally accepted rule or mode of conduct.

17. From the perusal of the above passage of the Apex Court the judgment which is clear that service of temporary employee should be in regular manner

18. The Government Order dated 1.7.1989 meant ten years government servant should be regular in nature meaning thereby that if the temporary government servant has performed his duties irregularly i.e. with gaps of years, his services may not be treated to be regular. Thus, the contention of the learned Standing Counsel that the words 'regular service' used in the Government Order means substantive service or service rendered by an employee in regular capacity cannot be accepted The petitioner admittedly, rendered 26 years under the respondent From the record, it is clear that the petitioner has continuous worked from 20.12.1976 and was permitted to retire at the age of superannuation on 31 6.2002 and from 1976 to 2002. he has continuously worked From the foregoing discussions it is clear that as the petitioner has rendered considerable period of service, he was entitled for the benefit of the Government Order dated 1.7.1989 and if the interpretation as given by the respondent is accepted, that the government order excluded the temporary government servants, who has retired after 26 years of service and is not entitled for pension the said Government Order will become bad on account of unreasonable and arbitrary classification put by the respondent. Furthermore, as observed the fundamental Rule 56 Sub-clause (e) mandate grant of retiring pension to the temporary Government Servants. The Government Order dated 1.7.1989 has to be read subject to the Fundament Rules 56(e). The similar controversy came up for consideration before this Court in case of Dr. Hari Shankar Asopa v. State of U.P. and Ors. reported in 1989 ACJ 337. (Supra). After referring to the fundamental Rule. 56. and various provisions contained in Civil Service Regulations, this Court has 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.

19. In view of the matter the contention of the respondents that since the petitioner was not a permanent confirmed employee and hence not entitled for pension, is clearly misconceived and is rejected.

20. In view of the aforesaid fact, and after going through the discussions the writ petition succeeds and is allowed. The order-dated 31.1.2003 (Annexure 4 to the writ petition) is hereby quashed. The respondents are directed to pay the pensionary benefits to the petitioner within a period of three months from the date of production of the certified copy of this order. It is also made clear that the petitioner will be entitled for interest at the rate of 6% from the date of entitlement till the date of payment.