S. Cheralu v. The State of Telangana

Petition unde,r Section 151 CPC praying that in the circumstances stated in the affidavit frlecl in support of the petition, the High Court may be pleased to direct the 3rd respondent to release the pension and pensionary benefits for which the petrtioner is entitled as he was retired from service on 301612020 as Sweeper'cum-Watchman in the office of the 3rd respondent, and passing orders on representatron rlt 30/1212020, which is pending before the 3rd respondent, pending disposal ol the above writ petition. Counsel for the Petitioner: SRI C.RAJA SEKHAR REDDY Counsel for the Respondent No.1, 2 & 4: GP FOR lRRl AND COMM AREA DEV Counsel for the Respondent No.3: GP FOR SERVICES-ll The Court made the following: ORDER HON'BLE MRS. JUSTICE SUREPALLI NANDA WRIT PETITION o.26606 0F 2022 ORDER: Heard Sri C. Raja Shekar Reddy, learned counsel appearing on behalf of the petitioner, learned Government Pleader for Irrigation & Command Area Development, appearing on behalf of the respondent Nos.1 and 2, and the learned Government Pleader for Services-Il, appearing on behalf of respondent No.3.

2. The oetitioner a oo roached the Court seekino oraver asu der: "...to issue an appropriate Writ, Order of direction preferably one in the nature of Writ of Mandamus and to declare the inaction of the respondents are not releasing the pension and pensionary benefits of the petitioner though he was retired from service vide proceedings dt 30/612020 as Sweeper-cum-Watchman in the office of the 3'd respondent is highly illegal, arbitrary, unreasonable, discriminatory and also in violation of principles of natural justice and also in violation of Articles L4, 16 and 21 of the Constitution oF India and declare the same as bad in law and consequently direct the respondents to release the pension and pensionary benefits for which the petitioner ls entitled as he was retired from service on 30/6/2020 as Sweeper cum r l 2 SN, J \ tP 26606 2012 Watch .na n in pass...". the office of the 3d respondent and to {l

3. The r.,tse of the petitioner, in brief, is that the petitioner was initiallv appointed as Contingent Sweeper_cum_Watchman on 20.07.1989 and thereafter the services of the petitioner were absorbed and converted into regular post in the last grade service as pr:r the proceedings dated 25.04.200t.. The petitioner was also givr:n special grade scale after completion of B years of service in the last grade service. Thereafter, the 2nd respondent issued proce,3dings dated 31.03.2009 canceIing the conversion order of the petitioner as a last grade servrce as per G.O.Ms.No.1B4, dated 28.06.1991 without issurng any notice to the petitioner-, The petitioner filed O.A. No.5161 of 2009 before the Tribunal .hallenging the impugned cancellation of conversion orders dated 25.04.2001 and the same was suspended by the Tribunal vide orders dated 09.04.2009. The Government filed vMA No.164 of 2010 against the order dated 09.04.2009 and the same was dismissed vide orders dated 14.O9.2)ll. The petitioner had retired from service on 30.06.2020 and after retirement petitioner submitted all the documents for pensionary beneFits, but the respondents have not taken any action till date even after multiple re p resen tations. Aggrieved by the same, the petitioner approached the Court by filing the present writ SN, J wt' 26606 20ZZ petition. ERU HE RECO A. Th e relevant oo ion of the ord er of this Cour dated nd4 7L ot 2Oz o .2656 ed in .2023 P t racted hereunder:-

9. Having regard to the rival contention and the material on record, this Court finds that the petitioner has been converted as a Sweeper-cum-Watchman vide proceedings dated 25.04.200I and the cancellation have been challenged before the Tribunal and the Tribunal has already set aside the same by holding such orders to be in violation of principles of natural justice. However, liberty was given to the respondents to take action in accordance with law. In spite of the orders being passed by the Court in the year 2011, the respondents have not taken any action to re-initiate proceedings against the petitioner for cancellation of regularization. The interim direction of the Tribunal was to continue the petitioner in the last grade service and he was also sanctioned regular annual grade increments every year and also regular PRCs were admittedly released in favour of the petitioner. Since, the appointment oF the petitioner and absorption thereafter has not been disputed by the authorities, the petitioner is entitled for pension and pensionary benefits consequent to 4 SN, J \!P 26606 2022 his rel.irement on attaining the age of superannuation. Therefrtre, the reasons given by the respondents for rejecting the representation of the petitioner or denying the p.,nslon, pensionary benefits are not sustainable. Further in respect of GpF amount alsci the petitioner has given the details of GpF account and also the pay slips to prove tlat the deduction has been made towards GpF from the petitioner's salary account. Since the deductions have been nrade from the salary of the petitioner, which is the petitioner's own money, which cannot be cJetained by the respondents for whatsoever reasons, it has to be refunded to the petitioner. B. The DE lea rn ed Assi ant ov r m nt Plead r for Services-II, ao artnq on behalf resoon dent N .3 Dla ced re lia n ce on the a verment s made in the coun ter affidavit a rticular. Daqe No.6 Dar No. 2, oa qe No.7 paqe No.8 pa ra No.3 and the same are para No extract d here under: "The Full Time Contingent employees are also not eligible as per G.O.tys.No.212 dated 22.O4.7gg4 for regularizatiln as Last Grade Service. It is submitted that the clarification issued by the ENC reads as follows:- st. No 1. Description Remarks C onversion from part The Conversion I rom Part Time Sweeper into Fu ll Time employees into Full Trme nt Time em Io ees is not as Co 5 SN, J wP 26606 2022 2 Sweeper cum Watchman G.O.Ms.No.184, F & P (FW:PRC.III) Dept, Dt : 28.06.1991. conditions for conversion into LGS Para 4 (1) they should have already received the benefit as per G.O.Ms.No.233, F&P Dept, Dt : 19.08.1983 G.O.Ms.No.344, F&P Deptt, Dt : 13.11.1989 Para 4 (2), they should not have received the benefit of the orders issued G.O.Ms.No.38, F&P Dept, Dt:01.02.1980 and G.O.Ms. No.9, F&P, De tt Dt:08.01.1981 Para 4 (3), the posts which they are holding should have been in existence for 10 years as on 01.06.1991. per ru les provision conversion as there ts no Including extending Rs.74O/- minimum pay allowances in RPS, 1988 on completion of 5 years retrospectively by L994 Since on the date of issue of G.O. they have not completed 5 years in Full time. the petitioner not covered as G.O.Ms.No.233, Dt.19.08.1983, The petitioner is working as Part Time Sweeper but not Fu ll Time Contingent. Therefore, the condition of Para 4 G.O.Ms.No.184, Dt 28.06.1191 was also not fu lfilled, And not existed er the said G.Os. AS (I) They are not existed as per the said G.O. The Petitioner is not hold ing the Full Time contingent Sweeper Cum Watchman for 10 years as on 01.06.1991 and actually completed 2 years only in the Full Time as on 01.06.1991. The petitioner is converted to Fu Il Time Contin ent in I- i L- 3 6 SN, J wP 26606 2022 P ara 4 (4), they should have completed 10 years of Service as on 01.06.1991. As per G. O, [4s. No.212, Dl : 22.4.7994, whe re in the s,tip u lated condjtions for t ,:g ularization of Full Time Contingent emp lyees ts shall have com p leted 5 years of SCTV CE 25.11.1983 with 7th class pass as O.S AS ON

29.0 7.1989 and not fulfills cond ition The Fu ll Time contingent Sweeper cum watchman are completed 2 years as on 01.06.1991, the appointment- into Full time Contingent is 20.07.1999 respectively only and retrospective conversion by taking 10 yr:ars of Full Time Contingent service is not in accordance with the para 4 (4) and not fulfill condition. These employe e is not eligible for reqularization as he is not having 5 years service as Fu ll Time Contingent service as on 2 5.11. 1993. It is respectfully submitted that the conversion of the above Part Trme Contingent into Full Time Contingent and also further conversion into Last Grade Service is irregular which is aga inst provision of Act 2 of 1994, and 22.4.7994, Circular t4emo G. O. Ms. N,r. 2 12, No.16921/125/A2/pC.ilI/g7, dated 10.09.1997 and there is no violatic,n of rules. Hence Sri S. Cheralu is not eligible for conversion into Last Grade Service and any such benefits as per the above Act, rules,,. c P R les 13 n L4 of EA dhr Pr IOn 19 o for h t ER s d 7 SN, J wP 26606 2022 oualifvinq service of a temDorarv emDlovee for the n t nsion. These Rules re u nd er: "13. Commencement of qualifying service: Subject to the provisions of the rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that - (a) in the case of a Government servant in a Class IV service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th November, 196O, service rendered before attaining the age of sixteen years shal! not count for any purpose; and (b) in the case of a Government servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity.

14. Conditions subject to which service qualifies: (1) The service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government. 1 8 SN.,I wP 26606 2022 (2) For the purposes of sub-rule (1), the expression service means service under the Government and paid by the Government from the Consolidated Fund of the State but does not include service in a non pensionable establishment unless 'such service is treated as qualifying service by the Government." From the above reproduced Rules, it is clear that qualifying service of a Government servant commences from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity, subject to the exceptions contained in clauses (a) and (b) of Rule 13 of the Rules. A temporary employee shall further satisfy the conditions stipulated in Rule 14 of the Rules for counting his temporary service for pensionary benefits. Under this Rule, unless his duties and pay are regulated by the Government or under the conditions determined by the Government, such service was not qualified for pension. The meaning of the word "service" under sub-Rule (1) of Rule 14 of the Rules is explained in sub-Rule (2) thereof, as per which the service is under the Government and the salary is paid by the Government from the Consolidated Fund of the State, but the same does not include the service of a non-pensionable establishment, unless such service is treated as qualifying service by the Government. o SN, J wP 26606 2022 D. DISCUSSIO N AND CONCLUSION:-

5. The learned counsel appearing on behalf of the petitioner placing reliance on the common order of this Court dated

23.09.2023 passed in W.P. Nos. 26566 and 4t971 of 2022 and the order dated 10.07.2024 passed in Review I.A. No. t of 2023 in W.P. No. 41971 of 2022 filed by the State of Telangana and others against the order dated 23.09.2023 passed in W.P. Nos. ? 26566 and 47971 of 2022, contends that the petitioner is entitled for the similar relief as extended to the petitioners there under in the said cases.

6. The learned Assistant Government Pleader for Services-Il, appearing on behalf of respondent No.3 based on the averments made in the counter alfidavit filed by the respondents (referred to and extracted above) contends that the petitioner is not entitled for the relief as prayed for in the present writ petition.

7. This Court opines that pension and pensionary benefits of the petitioner who retired from service vide proceedings dated

30.06.2020 as Sweeper-cum-Watchman in the office of the 3'd respondent cannot be withheld by the respondents which is petitioner's own money. I i I I I l0 SN, J \\tP 26606 2022 8 Sta te of d m tof eA Co f Jhar and others v ra Kumar ava a dan her r ort in2 3 L2 sc 2LO i w sh rty within he meanin qof Article 300-A of the Constitution of India. Pa raqra phs 16a dLTol udI ment i s extracted hereunder: "16. The fact remains that there is an inrprimatur to the legal principle that the right to receive pension is recogni;red as a right in ,'property,,. Article 300_A of the Constitu tion of India reads as under: ,'300_A. persons not to be deprived of property save by authority of law._No person :;hall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment become:; too obvious. A person cannot bL deprived of this pension without the authority of law, which is the constitulional mandate enshrined in Articte 300_A of the Constitr.rtron. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrag€, oF administrative instruction cannot be countenanced.

17. It hardly needs to be emphasized that the executive instructions are not having statutory character and, thereforer, cannot be termed as'.law,, within the meaning of the aforesaid Article 300-A. On the basis of such a circular, wfign is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so Far as statutory Rules are conceined, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different.,, ','..' SN, J wP 26606 2022

9. This Court ooines that the Petitioner cannot be IV f his constitutional ri ht for en ton ex authoritv of law since Dension is not a bountv but nrnnarlw within t Constitution of India and therefore, the Detitioner is nt na nf A rtiala ham et ?lltt-A h + entitled for the relief as ora ed for tn the oresent Writ Peti ton. 1O. Takinq into consideration: a) The aforesaid facts and circumstances of the case, b) The submissions made by the learned counsel appearing on behalf of the petitioner and the learned Assistant Government Pleader for Services-I appearing on behalf of the respondents and, c) The order of this Court, dated 23.O9.2023 passed in W.P.Nos.26566 and 4t971 of 2O22 (referred to and extracted above) d) The averments made in the counter affidavit filed on behalf of the respondent No.3 (referred to and extracted above) t2 ,u, ,uuoo e) Rules 13 and Pension Rules, 1980 14 of the Andhra pradesh Revised "ilii (for short, 'the Rules,) (referred to and extracted above) f) The observations of the Apex Court in State of Jharkhand and others v. Jitendra Kumar Srivastava and another reported in 2013 (12) SCC 21O g) The order of this Court, dated 23.09.2O23 passed in W.P. Nos. 26566 and 4L97L of 2022, which had been confirmed in the Review I.A. No.l of 2023 in W.p. No. 4L977 ot 2022, dated 1O.O7.2024 h) The fact the petitioner retired from service as Sweeper-cum-Watchman from the office of the 3.d respondent on 3O.O6.2O20, The writ petition is disposed of directing the respondents to consider the request of the petitioner for release of pension and pensionary benefits of the petitioner since the petitioner retired from service vide Proceedings vide office order No.EElOC&I/Div.N o.S/KCC/ Wgl/ECL/ Lt7, dated 30.06.2O2O as Sweeper_Cum_ Watchman in the office of 3.d respondent and pass appropriate orders, in accordance to taw, within a period l3 SN, J wP 26606 2022 of four (4) weeks from the date of receipt of this order in accordance to law, duly takang into consideration the observations of the Apex Court in the judgment reported in 2O13 (12) SCC 21O in State of Jharkhand and others v. Jitendra Kumar Srivastava and another (referred to and extracted above) and also the common order of this Court dated 23.09.2O23 passed in W.P. Nos. 26556 and 4L97L of 2O22, (referred to and extracted above) which had been confirmed in the Review I.A. No.1 of 2023 in W.P. No. 4L97t of 2022, dated LO.O7.2O24, preferred by the respondent-Telangana Government and duly communicate the decision on the subject issue of release of pension, pensionary benefits, gratuity amounts due to the petitioner as per petitioners' legal entitlement as per law. However, there shall be no order as to costs. The miscellaneous applications, pending if any, shall stand closed. //TRUE COPY'/ I SDI.T. TI RUMALA DEVI PUTY REGISTRAR SECTION OF FICER o"o'nment' secretanat To, 1 rhe principar g."^i:Bgi" jflir3,:?t,.,Tgof#t Buildings' Hyderabao' ora'::- '^"^::t:n and Qualitv control circle' SRS 2 r h e s u pe ri {" Fl ".s HE lsr'l??: "[::ti,""t8lr'"i ? The Executive Engineer' land QC' Division No 5' KC Colony' Hanumakon< " 8,.,,, ", Warangal District I and CAD' Administration Wing' Jalasoudha Building' 4 The Enqineer-in-Chief '. - eti-"rri'it' HYderabad I +

5. One CC to SR C RAJA SEKHAR REDDY, Advocate [OPUC] 6 Two CCs to GP FOR lRRl AND COMM AREA DEV, High Court for the State of Telangana at HYderabad [OUT] TTwoCCstoGPFORSERVICES-Il,HighCourtfortheStateofTelanganaat Hyderabad [OIJT] B Two CD CoPies BSR \q- BS HIGH COURT DATED:18103t2025 \ CC TODAY ORDER WP.No.26606 ot 2022 1 ;rC ST41 t 19 APR 2U75 a c o ,/ \ * QFsPATcI^ 90 v a; r'l t DISPOSING OF THE WRIT PETITION, WITHOUT COSTS p- ..ttftA \+(r$'