High Court
Case Details
Court No. - 35 Case :- WRIT - A No. - 5823 of 2022 Petitioner :- Shahnaz Fatma Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Dileep Kumar Pandey,Rajneesh Kumar Mishra Counsel for Respondent :- C.S.C.,Manoj Kumar Singh Hon'ble Ajit Kumar,J.
Legal Reasoning
1. Heard learned counsel for the parties and perused the record. 2. By means of this writ petition filed under Article 226 of the Constitution, the petitioner has challenged the order dated 11th March, 2022 passed by the respondent No.-2 and issued by the respondent No.- 3, by which claim of the petitioner for grant of pensionary benefits and other retiral dues has come to be rejected.
Legal Reasoning
3. Learned counsel for the petitioner submits that petitioner's husband has retired from Nagar Nigam Prayagraj on 28th February, 2019 on attaining the age of superannuation and claims that though he was initially engaged by the respondent Local Body as a daily wager, he is entitled for pensionary benefits on the ground that once his services came to be regularized by respondent on 24th January, 2008, his past services rendered as a daily-wager in the establishment from 2nd February, 1989 ought to have been taken into account towards pensionable service for the purpose of making him entitled for pension.
Decision
4. It is pleaded in the writ petition that the factual position with regard to his continuance in the establishment on daily-wage basis till the year 2008 and thereafter regularization of the petitioner's husband in the year 2008 is not disputed and even if he is taken by the respondents to be in service as workman on daily-wage basis prior to his regularization as per order impugned passed by the Nagar Ayukta Local Body, the respondent has manifestly erred in rejecting the claim of the petitioner for pension by taking stand contrary to the settled legal position emerging out from the various authorities of this Court and Supreme Court. 5. Sri Manoj Kumar Singh, learned counsel appearing for the respondent submits that the stand of the respondents remained the same as contained in the order impugned because of legal question and no facts are required to be verified. 6. Learned counsel for the petitioner has relied upon judgment of the Supreme Court in the case of Prem Singh v. State of U.P.; 2019 (10 ) SCC 516, in which it has been held that merely because employee has worked on month to month payment basis prior to his being absorbed in permanent establishment, he cannot be denied pension provided of course he has retired from establishment where services are pensionable. 7. Learned counsel for the petitioner has relied upon the the order of Supreme Court in the case of The State of Gujarat and others v. Talsibhai Dhanjibhai Patel (Special Leave to Appeal (C) No.- 1109 of 2022) decided on 18th February, 2022. The Supreme Court while dismissing the special leave to appeal under the order has observed thus: "It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/ pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continuous service shall be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand. In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 yeas service. Hence, the Special Leave Petition stands dismissed. Pending application(s), if any, shall stand disposed of." 8. Learned counsel for the petitioner has also relied upon the judgment of a coordinate bench of this Court in the case of Kaushal Kishore Chaubey and 4 Others v. State of U.P. and 2 Others ( Writ-A No. 5817 of 2020) decided on 08.10.2021 wherein the employees working as Seasonal Collection Amin on different dates in the Tehsil department of the district who were regularized later on service the period so rendered by them prior to regularization, has been been directed to be considered for the purposes of pension. After discussing and referring to a number of decisions of this Court and Supreme Court vide paragraphs 22, 23 & 24 the Court has finally held thus: "22. From the judgments referred above, it is clear that the Courts has consistently held that the services rendered by an employee either as work charged employee or Seasonal Collection Amin are to be counted for granting the pensionary benefit to them, and the nomenclature of their appointment, be a daily wager, temporary or whatever, is not material to consider their claim for grant of pensionary and retiral benefits. 23. Further, it is also pertinent to mention that the petitioners have worked for decades as Seasonal Collection Amin discharging the same duty which has been discharged by the regular Collection Amin and have been extended same benefits which have been extended to the regular Collection Amin, therefore, in such factual scenario denying the petitioners the benefit of pension and other benefits which have been extended to Regular Collection Amin would not only be arbitrary but against the concept of the right to equality as enshrined in Article 14 of the Constitution of India. 24. In view of the above discussion and given the law elucidated by the Apex Court as well as by this Court in various pronouncements referred above, the services rendered by the petitioners as Seasonal Collection Amin cannot be ignored for extending the benefits of pension and other retiral benefits to them on the pretext that their appointment is to be treated from the date of regularization and not from the date of their engagement as work charged employee." 9. Learned counsel appearing for the respondent could not dispute the above legal position and agrees that in the identical facts and circumstances of a case of another local body, Division Bench of this Court in the Special Appeal (Defective) No.- 1278 of 2020, Chetram v. State of U.P. and others, has directed the same Local Body to award pension. 10. Having heard learned counsel for the respective parties and having gone through the authorities cited before this court, I find that the issue is no more res integra. The temporary service, service spent as work charge employee, service spent on fixed pay or on day to day basis by employees, if he continued in service on the date of regularization, for the purposes of pension such period deserves to be counted to make service pensionable if otherwise pension is admissible to the employees of the establishment in question. 11. In this case, there is no dispute that petitioner's husband has retired from establishment to which pension is admissible. 12. In view of above, this writ petition succeeds and is allowed. The order impugned dated 11th March, 2022 passed by the respondent No.- 2 issued by the respondent No.- 3 is hereby quashed. 13. Respondents are directed to determine pension of the petitioner in the light of the above observations and award, pensionary benefits, alongwith arrears that may so accrue upon calculation and fixation of pension and pay the same within a period of three months from the date of production of certified copy of this order. Order Date :- 25.5.2022 Atmesh Digitally signed by ATMESH KESARI Date: 2022.05.26 10:21:46 IST Reason: Location: High Court of Judicature at Allahabad