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2019 Supreme(All) 203
ALLAHABAD HIGH COURT (LB)
RAJESH SINGH CHAUHAN, J.
RAM NARESH TIWARI - Appellant
Vs.
STATE OF U P THRU SECY DEPTT OF EDU (BASIC) LUCKNOW & ORS - Respondent
Service Single No. 1187 of 2017
Decided on : 23-01-2019
Advocate Appeared:
Shashi Kant Mishra, Adv., Jyotindra Prakash Pathak, Adv., Laxmi Kant Pathak, Adv., Ajay Kumar, Adv.
Headnote:
Constitution of India, 1950 – Article 226 – Petitioner challenging order passed by Secretary, Department of Education –Claiming for his requisite services for purposes of pension, has been denied – Challenged – Held, Nature of mandamus is issued commanding opposite parties to pay pension, as admissible to petitioner, with effect from date of his retirement treating petitioner having completed his qualifying service of 10 years as required under law – Opposite parties are also directed to make compliance of this order within a period of three months from date of presentation of certified copy of this order, failing which, petitioner shall be entitled for interest at rate of 9% per annum with effect from date of his retirement till actual payment is made – Writ petition allowed. (Para 17)
Facts of the Case:
By means of this writ petition, petitioner has assailed order passed by Secretary, Department of Education (Basic), whereby claim of petitioner for counting his requisite services for purposes of pension, has been denied. This order has been passed in compliance of order passed by this Court, which has been quoted in order itself.
Findings of the Case:
Nature of mandamus is issued commanding opposite parties to pay pension, as admissible to petitioner, with effect from date of his retirement treating petitioner having completed his qualifying service of 10 years as required under law – Opposite parties are also directed to make compliance of this order within a period of three months from date of presentation of certified copy of this order, failing which, petitioner shall be entitled for interest at rate of 9% per annum with effect from date of his retirement till actual payment is made
Result : Writ petition allowed.
Rajesh Singh Chauhan, J.
Heard Sri L.K. Pathak, learned counsel for the petitioner, Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State-respondents and Sri Ajay Kumar, learned counsel for the opposite party Nos.3, 4 & 5.
2. By means of this writ petition, the petitioner has assailed the order dated 05.01.2017, passed by the Secretary, Department of Education (Basic), Anubhag-5, Government of U.P., Civil Secretariat, Lucknow, whereby the claim of the petitioner for counting his requisite services for the purposes of pension, has been denied. This order has been passed in compliance of order dated 17.05.2016 passed by this Court, which has been quoted in the order dated 05.01.2017 itself.
3. The facts of the issue are that the petitioner was initially appointed on the substantive post of Peon on 02.07.1973 on the fixed pay of Rs. 20/- and for taking additional work from him, he was paid additional Rs. 33/-. The petitioner remained posed at Junior High School, Aihar, Block-Rudauli, District-Barabanki (now District-Faizabad) till 02.07.1980 and thereafter he was transferred to Poorva Madhyamik Vidyalay, Bhawanipur, Block-Mawai, District-Barabanki (now District-Faizabad) and started functioning over there. However, since 01.01.1996 he was being paid salary in the regular pay-scale and thereafter retired from service on 31.01.2005. As a matter of fact, the petitioner has rendered more than 32 years of his service as a Peon and he was paid regular salary with effect from 01.01.1996.
4. After his retirement, the petitioner was not paid his post retiral dues for the reason that he has not completed ten years qualifying service which is necessary to get the pensionery benefits inasmuch as he has only completed 9 years and one month service.
5. Feeling aggrieved out of the said inaction, the petitioner preferred writ petitions before this Court. In his first writ petition bearing Writ Petition No.319 (S/S) of 2013; Ram Naresh Tiwari vs. the Secretary, Basic Education & others; this Court was pleased to pass order dated 18.03.2015 thereby permitting the petitioner to prefer a representation before the Competent Authority directing the Authority Concerned to pass appropriate order, strictly in accordance with law, within a stipulated time. In compliance of the order of this Court dated 18.03.2015, the order has been passed wherein it has been indicated that since the petitioner has not completed 10 years qualifying service which is necessary for the purpose of providing pension, therefore, he may not be provided the pensionery benefits. The petitioner assailed that inaction of the authority concerned before this Court by filing writ petition bearing Writ Petition No.5512 (S/S) of 2015; Ram Naresh Tiwari vs. State of U.P. & others wherein by order dated 17.05.2016 this Court was pleased to direct the State Government to pass appropriate order. It was informed at the bar that in such a situation the State Government has power to relax the condition of qualifying service to the extent of 12 months and not beyond. Since only 11 months period were short, therefore, the petitioner preferred representation to the State Government seeking relaxation for the period of qualifying service and the State Government vide impugned order dated 05.01.2017 has rejected the claim of the petitioner indicating the reasons that if the petitioner has been granted relaxation, it would have far reaching effect. In the aforesaid order, the State Government has not cited any legal impediments but only this much has indicated that relaxation in question would have far reaching effect.
6. Learned counsel for the petitioner has referred to the judgment of this Court rendered in re: Ram Sajiwan Maurya vs. State of U.P. & others reported in,2010 28 LCD 1756 submitting that in identical facts and circumstances this Court was pleased to quash such order being passed by the Competent Authority directing the opposite parties to pay the petitioner h
