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2008 Supreme(All) 2917
[2009(2) ADJ 601 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND ARUN TANDON, JJ.
STATE OF U.P. AND OTHERS .....Appellants
Versus
GAYA RAM .....Respondent
(Special Appeal No. 1858 of 2008, decided on 17th December, 2008)
Counsel :
C.K. Rai for the Appellants; G.P. Gupta for the Respondents.
Headnote:(A) Pension—Petition of respondent-employee was allowed by Single Judge, directing payment of pension, w.e.f. 3.12.2004 following judgment of Hans Raj Pandey—Appeal against, by State of U.P.—Respondent was initially appointed on fixed salary of Rs. 165 p.m.—Subsequently, increased to Rs. 750, w.e.f. 1.1.1986—Was paid, till he was regularised—In order, dt. 2.6.2005, Finance and Accounts Officer has also noted that respondent, prior to regularisation, was working on fixed pay of Rs. 750—Thus, contention of appellant that respondent was a temporary employee, cannot be accepted—Respondent, after being regularised on 30.11.1995, retired on 31.12.2004—And rendered more than 9 years service—This is a fit case in which B.S.A. (appellant-4) may recommend claim of respondent for exemption of period, which falls short of 10 years period to State Government (appellant-1)—Held, judgment of Single Judge, dt. 5.8.2008 modified by issuing a direction to Secretary, Basic Shiksha Parishad to forward claim of respondent for exemption of period of service to the extent it falls short of 10 years, for payment of pension—Open for State Government to obtain necessary reports with regard to fact as to whether respondent was appointed against post, or not—If it is found that he was appointed against a post, Government may further consider question of treating service, rendered on fixed pay as a qualifying service. [Paras 19, 20, 21, 22, 23 and 24]
(B) Appointment—Temporary and permanent—There is a difference in nature of appointment of temporary employee vis-a-vis an employee, who is appointed as fixed salary—A temporary appointment, can be made against a permanent post, or temporary post—Whereas for appointment on fixed pay, there is no requirement of a post. [Para 15]
By the Court.—Heard Sri C.K. Rai, learned Standing Counsel for the appellants and Sri G.P. Gupta, learned counsel appearing for the respondent.
2. This is an intra Court appeal against the judgment and order of learned Single Judge dated 5th August, 2008 whereby the writ petition filed by the respondent has been allowed by directing payment of pension w.e.f. 3.12.2004 following the judgment of learned Single Judge in the case of Hans Raj Pandey v. State of U.P., 2007(2) UPLBEC 2073.
3. Against the said judgment the State of U.P., Finance and Account Officer, Basic Education Officer as well as Secretary, Basic Shiksha Parishad, Allahabad have filed this appeal. Parties agree that the appeal be disposed of without calling for any further affidavits.
4. The brief fact necessary for deciding the issues raised in the appeal are that: the respondent petitioner was appointed as a Class-IV employee in an institution of the U.P. Basic Shiksha Parishad. Initial appointment of respondent was on fixed emolument. By an order dated 30th November, 1995 the services of the respondent were regularized in the pay scale of Rs. 750-940. The respondent retired from service on 31.12.2004. His claim with regard to payment of pension was forwarded by the Basic Shiksha Adhikari. The Finance and Account Officer, Basic Education, Sonebhadra on 2nd June, 2005 wrote a letter to the Basic Shiksha Adhikari pointing out that the services of respondent prior to his regularization i.e. 30th November, 1995 were on fixed salary, therefore, cannot be treated as qualifying service. The period of qualifying service for pension is only 9 years, hence he is not entitled for pension. The respondent challenged the said order by means of the writ petition, praying for quashing the order of the Finance and Account Officer, Basic Education, Sonebhadra and a mandamus for payment of pension w.e.f. 31.12.2004.
5. In the writ petition a counter affidavit was filed by the Finance and Account Officer. In paragraph 3 of the counter affidavit it was clearly stated that appointment of the petitioner-respondent w.e.f. 1st August, 1973 was as a Peon on fixed emolument and in such capacity respondent continued till 30th November, 1995. Thereafter he was regularized in the pay scale of 750-940 w.e.f. 30th November, 1995. It has been stated that the services of the respondent prior to 30th November, 1995 being on fixed salary were not to be taken into account for pension and the respondent, having not completed 10 years of qualifying service, is not entitled for pension.
6. The learned Single Judge by the impugned judgment has allowed the writ petition relying on the judgment of this Court in the case of Hans Raj Pandey (supra).
7. Sri C.K. Rai, learned counsel for the appellant challenging the judgment contended that the services of respondent on fixed emolument were not to be added for determination of qualifying period for pension, the regular services of the respondent being less than 10 years, he is not eligible for pension. Sri Rai submits that provisions of Regulations 44 and 45 were applicable only to the teachers while the respondent, who was only a Class IV employee, was to be dealt with under Regulation 46, which provide that only after completion of 10 years of eligible service, an employee becomes entitled for pension. He further contended that the judgment in the case of Hans Raj Pandey (supra) did not examine that the services of an employee on fixed emolument are not to be added in the eligible period for pension. He submits that the decision in the case of Hans Raj Pandey (supra), which is based on earlier judgment of this Court in the case of Shakuntala @ Brahmo Devi (Smt.) v. Director of Pension; 2002(3) ESC 200 (All), is not applicable in the case of fixed pay employees. He clarifies that the judgment in the case of Shakuntala (supra) was in respect of a temporary employee and in that context the Court has held that the temporary employees, who completed 10
