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2020 Supreme(All) 395
IN THE HIGH COURT OF ALLAHABAD
Sudhir Agarwal, J.
Ramdhani And Others - Petitioner
Versus
State of U.P. and Others - Respondents
Writ -A No. - 39283 of 2004
Decided On : 13-04-2020
For the Petitioner: S.A. Lari, Digvijay Tiwari
For the Respondent: C.S.C., K.K. Roy, Rajendra Srivastva, Rakesh Kumar Srivastava, Shyam Krishna Gupta
Point of Law:
Service rendered on Fixed Pay, prior to appointment on regular pay scale, will not be treated as qualifying service
Headnote:
Constitution of India - Article 226 – issue of a writ of mandamus commanding respondents to pay pension to petitioners from the date of their retirement and continue to pay the same, month to month, as and when it falls due. Petitioners have also prayed for a writ of mandamus commanding respondents to pay Life Insurance Policy amount of petitioner-2 with interest – Whether service rendered by petitioners on Fixed Pay is liable to be computed as qualifying service for the purpose of pension – Held, bound by Division Bench judgments of this Court, in State of U.P. vs. Gaya Ram noticed above, no option but to hold that services rendered by petitioners on Fixed Pay as Class IV employee will not be treated as qualifying service, hence, relief prayed by petitioners, cannot be granted – Petition dismissed
Facts of the Case
“Junior High School” of Avra Chauro, Area Baitalpur, District-Deoria is a recognized “Senior Primary School” governed by the provisions of U. P. Basic Education Act, 1972 After completing 31 and 47 years of service, petitioner-1 attained age of superannuation and retired on 31.03.2003 while petitioner-2 retired on 03.08.2001
Finding of the Court:
Bound by Division Bench judgments of this Court, in State of U.P. vs. Gaya Ram noticed above, no option but to hold that services rendered by petitioners on Fixed Pay as Class IV employee will not be treated as qualifying service, hence, relief prayed by petitioners, cannot be granted
Result: Petition dismissed
JUDGMENT :
1. Heard Sri Digvijay Tiwari, learned counsel for learned counsel for petitioners, learned Standing Counsel for State-respondent-1 and Sri Shyam Krishna Gupta, learned counsel for respondent-2.
2. This writ petition under Article 226 of Constitution of India has come up before this Court at the instance of two petitioners namely, Ramdhani son of Shri Mahesh and Mallu son of Ghaur, who have prayed for issue of a writ of mandamus commanding respondents to pay pension to petitioners from the date of their retirement and continue to pay the same, month to month, as and when it falls due. Petitioners have also prayed for a writ of mandamus commanding respondents to pay Life Insurance Policy amount of petitioner-2 with interest.
3. Facts in brief, giving rise to present writ petition, are, that “Junior High School” of Avra Chauro, Area Baitalpur, District-Deoria is a recognized “Senior Primary School” governed by the provisions of U. P. Basic Education Act, 1972 (hereinafter referred to as “Act, 1972”) and Rules framed there under. Petitioner-1 was appointed as Class IV employee on 01.10.1972 and petitioner-2, similarly, was appointed as Class IV employee on 01.01.1957. After completing 31 and 47 years of service, petitioner-1 attained age of superannuation and retired on 31.03.2003 while petitioner-2 retired on 03.08.2001. After retirement, petitioner-2 was paid a sum of Rs.4538/-towards Insurance amount on 29.10.2003.
4. Petitioner-2 was paid fixed salary from 01.01.1957 to 30.11.1997 and thereafter the prescribed pay scale of Rs.750-940/-with effect from 01.12.1997. Petitioner-1 was given fixed pay up to 31.10.1997 and thereafter he was placed in prescribed pay scale w.e.f. 01.11.1997.
5. Since, pensionary benefits were not given, petitioners made representation dated 01.07.2003. Seeking clarification, whether pension is payable to petitioner-2, a letter was sent by District Basic Education Officer, Deoria (hereinafter referred to as “DBEO”) to Deputy Director, Secretariat Training and Management Institute, Gorakhpur Branch, Gorakhpur informing that petitioner-2 was appointed on 01.01.1957 on Class IV post (Peon) and paid fixed pay of Rs.24/-per month w.e.f. 01.01.1957, Rs.34/-per month w.e.f. 01.01.1976, Rs.165/-per month w.e.f. 01.04.1979, Rs.305/-per month w.e.f. 01.11.1982, Rs.750/-per month w.e.f. 01.01.1986 and Rs.2550/-per month w.e.f. 01.01.1996, besides dearness allowance. Petitioner-2 was placed in regular pay scale vide order dated 01.12.1997 and his pay was fixed as Rs.2550/-per month. He retired on 30.08.2001. He was declared permanent w.e.f. 01.12.1998. As per Regulation 368 of Civil Service Regulation (hereinafter referred to as “CSR”), no pension is payable unless government servant is permanent. In the present case, petitioner-2 became permanent on 01.12.1998 and has not completed 10 years of service till date of his retirement, as a confirmed employee. However, vide Government Order No.3-1152/Vas-915-86 dated 01.07.1989 it has been provided that those who have completed 10 years of regular service, shall be paid pension as payable to permanent employees. In these circumstances, DBEO, Deoria sought clarification whether pension is payable to petitioner-2 or not.
6. Contesting writ petition, counter affidavit has been filed on behalf of respondents sworn by Sri Awadhesh Narayan, Basic Shiksha Adhikari, Deoria. It is said that petitioner-1 was appointed in Primary School maintained by Basic Education Board (hereinafter referred to as “Board”) on 01.10.1972 on fixed salary of Rs.20/-per month. In District-Deoria there were 100 sanctioned posts of Peon in Junior High School, run and controlled by Board. Government orders provided that appointment of Peon on fixed salary cannot be made on sanctioned posts in case vacancies are available. Petitioner-1 was appointed on sanctioned post after permanent vacancy occurred on 01.01.1998 and on completion of 60 years of age retired on 31.03.2003. Similarly, petitioner-2 w
