State of Hp and anr. Vs. Brahma Nand Sharma - Court Judgment

Excerpt:
service - grant of pension - section 150 of himachal pradesh panchayati raj act, 1968 and ccs (pension) rules - petitioner filed writ petition against order of grant of pension to respondent - held, facts revealed that respondent was not employee of zila parishads and he was employee of panchayat samitis - section 150 of act did not covers employees of panchayat samitis and they were not entitled for retiral benefits, available to government servants, in accordance with provisions of pension rules - hence, writ petition allowed and impugned order of grant of pension to respondent set aside - surjit singh, j.1. petitioners have filed the present petition, under articles 226 and 227 of the constitution of india for judicial review of the order dated 3rd november, 2000, passed by the h.p. state administrative tribunal (now abolished), whereby original application, filed by respondent brahma nand, has been allowed and a direction has been issued to the petitioners to treat him as government servant and to grant him pension and other retiral benefits available to government servants, in accordance with the rules application to such servants.2. respondent brahma nand was employed as a clerk by district board, kangra, in the year 1942. he was confirmed in the year 1945. kangra district remained part of punjab upto the year of 1966, when on reorganization of the erstwhile state of punjab, the area of kangra, kulllu and certain other districts had been merged with the union territory of himachal pradesh. in the year 1962, when kangra was still part of punjab, an act called the punjab samitis and zila parishads act, 1961, was passed, whereby district boards were abolished. section 118 of the said act provided that the staff of the abolished district boards may be transferred to zila parishads, panchayat samitis or may be retired or compensated as the government deemed fit. services of respondent brahma nand, who was an employee of abolished kangra district board, were allocated to panchayat samiti, kullu, where he was already working. he continued to work with the panchayat samiti, kullu, until the year 1974, when he retired on attaining the age of superannuation. he was paid certain amount of money, on account of gratuity.3. in the year 1968, that is to say, after kullu became part of himachal pradesh union territory, an act known as himachal pradesh panchayati raj act, 1968, was passed and by virtue of that act, zila parishads were abolished. the staff of zila parishads, by virtue of provision of section 150 of the aforesaid act of 1968, became the staff of the government. however, section 150 did not cover the employees of the panchayat samitis. petitioner, after superannuating in the year 1974, made a representation, claiming that he was an employee of zila parishad and by virtue of the provision of section 150 of the himachal pradesh panchayati raj act, 1968, he became a government servant and as such he was entitled to all the retiral benefits, available to government servants, in accordance with the provisions of ccs (pension) rules. in the alternative, he claimed that he was entitled to pension even if his plea that he became a government servant did not find favour. his representation was rejected. then he filed an original application. tribunal allowed the application and passed the order to the aforesaid effect. writ petitioners are aggrieved by this order of the tribunal4. main contention raised on behalf of the writ petitioners is that respondent became a servant of panchayat samiti, after abolition of the district board and he continued to be a servant of such samiti until superannuated. their contention is that section 150 of the himachal pradesh panchayati raj act, 1968 provides for the employees of zila parishads, which had been abolished by the said act, being treated as employees of the government and it does not apply to the employees of panchayat samitis. section 150 of the aforesaid act reads as follows:150. employees of zila parishad to be employees of government and other matters.- notwithstanding the repeal of the punjab panchayat samitis and zila parishads act, 1961 (3 of 1961).-(a) every officer and every employee of every zila parishad in the transferred territory and serving under the zila parishad immediately before such repeal shall become an officer or other employee of the government and shall be employed in connection with the administration of union territory of himachal pradesh with such designation as the government may determine and shall hold office by the same tenure and at the same remuneration and on the same terms and conditions of service as he would have but for such repeal held the same and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the government:provided that:(i) the tenure, remuneration and terms and conditions of service of any such officer or other employee shall not be altered to his disadvantage;(ii) any service rendered by any such officer or other employee before such repeal shall be deemed to be service rendered in connection with the administration of the union territory of himachal pradesh;(iii) the government may employ any such officer or other employee in the discharge of such functions as it may think proper and every such officer or other employee shall discharge those functions accordingly;(b) anything done or any action taken (including any notification, order, scheme, rule, form, notice or bye-law made or issued, any permission granted) under the repealed act by or under authority of any zila parishad referred to in clause (a) shall in so far as it is not in consistent with the provisions of this act, continue in force unless and until it is superseded by anything done or any action taken in accordance with law;(c) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for any zila parishad referred to in clause (a), before such repeal shall be deemed to have been incurred, entered into or engaged to be done, in exercise of the executive power of the union for the purposes of the administration of the union territory of himachal pradesh;(d) all assessments, valuation, measurements or divisions made by any zila parishad referred to in clause (a) above, shall, in so far as they are not inconsistent with the provisions of this act, continue in force unless and until they are superseded by any assessment, valuation, measurement or division made by the government in accordance with law;(e) all properties, movable and immovable, and all interests of whatsoever nature and kind, vested in any zila parishad referred to in clause (a) above immediately before such repeal shall, with all rights of whatsoever description, used, enjoyed or possessed by that zila parishad, vest in the government for the purpose of the administration of the union territory of himachal pradesh;(f) all rates, taxes, cesses, fees,. rents, fares and other charges, if any, which immediately before such repeal were being lawfully levied by any zila parishad referred to in clause (a) above, shall continue to be levied at the same rate at which they were being levied by the zila parishad immediately before such repeal until provision to the contrary is made by law;(g) all rates, taxes, cesses, fees, rents, fares and other charges, if any, due to any zila parishad referred to in clause (a) above, immediately before such repeal, shall be deemed to be due to the government in connection with the administration of the union territory of himachal pradesh;(h) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against any zila parishad referred to in clause (a) may be continued or instituted by or against the government of india.5. from a bare reading of the provision of section 150, as reproduced above, it is clear that it made the employees of zila parishads only as employees of the government. and it was for the reason that zila parishads had been abolished. there is no provision in the act for treating the employees of the panchayat samitis as government servants. the reason is that panchayat samitis had not only been retained, but in the original area of himachal pradesh union territory, where there were no panchayat samitis earlier, such samitis had been created. there is a provision in the act to the effect that the samitis can employ their own employees. there is another provision which says that the government may also depute its servants to assist panchayat samitis, in their functioning. the fact remains that employees of panchayat samitis, which were in existence at the time of passing of the aforesaid act of 1968, had not been made the employees of the government, as was done in the case of employees of zila parishads, by virtue of section 150 of the said act.6. learned counsel representing the respondent submits that the respondent was an employee of zila parishad. in support of this contention he places reliance upon a communication dated 20th march, 1962, written by the secretary, zila parishads, kangra to the chairman, panchayat samiti, kullu and sending therewith a statement of allocation. as per this communication and the statement, services of the respondent had been allocated to the panchayat samiti, on account of abolition of the district board. learned counsel says that services of the respondent were allocated to zila parishad, kangra. that is not correct, because a bare reading of the letter shows that the deputy commissioner, kangra had allocated the services of the staff of abolished district boards and as per his orders the services of the respondent had been allocated to the panchayat samiti.7. learned counsel submits that the allocation could not have been done by the government or the deputy commissioner. the contention is devoid of merit. section 118 of the punjab act of 1962 provided that services of the staff of the abolished district boards were to be allocated to zila parishads or to the panchayat samitis or the employees were to be retired or compensated, as the government deemed fit.8. in view of the above stated position, we are of the considered view that the petitioner became an employee of the panchayat samiti after the abolition of the district board and since the employees of the panchayat samitis did not become the employees of the government, on account of passing of the himachal pradesh panchayati raj act, and continued to be the employees of the panchayat samitis, the respondent cannot claim that he was a government employee and entitled to pensionary and other retiral benefits in the same manner and to the same extent as the government servants are.9. alternative submission made on behalf of the respondent is that even as employee of the panchayat samiti the respondent is entitled to pension. we do not agree with this submission, because sub-rule (2) of rule 158 of the himachal pradesh panchayati raj (general) rules, 1975 provides for payment of gratuity only to the employees of panchayat samitis and that too with the prior approval of the director. of course, section 90 of the panchayati raj act provides for framing of rules by the panchayat samitis for grant of pension or subscription on their behalf for pension or gratuity to the employees of the panchayat samitis, but it nowhere mandates that the employees of the samitis are to be paid pension or the rules in that behalf must be framed.10. learned counsel has drawn our attention to clause (17) of article 366 of the constitution of india, according to which, pension includes gratuity. he urged that when an employee is paid gratuity, he automatically becomes entitled to pension. definition of pension given in article 366, as relied upon by the learned counsel, in no way advances his submission and we have noticed it only for his satisfaction. otherwise it is totally irrelevant to this matter.11. in view of the above stated position, we allow this writ petition and set aside the impugned order of the tribunal, i.e. order dated 3rd november, 2000, passed in oa no. 1795/96. however, we direct that pension or arrears of pension, if any, already paid to the respondent, in compliance with the impugned order of the tribunal, shall not be recovered, as we have been told that the respondent is a very old man, aged about 95 years.writ petition stands disposed of.