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Board Of Revenue Through Its Chairman U.P Lucknow And Others v. Prasidh Narain Upadhyay
Structured Summary of the Court Opinion
Factual and Procedural Background
This is a special appeal under the Rules of the Court arising from the order of the Hon'ble Single Judge dated 16th August, 2005 in Civil Misc. Writ Petition No. 39298 of 2004. The bench for the appeal comprised S. Rafat Alam and Sudhir Agarwal, JJ. The parties were represented by Sri Ran Vijai Singh, learned Standing Counsel for the appellants and Sri J.P.N. Singh, learned Counsel for the sole respondent.
The undisputed factual matrix in the record is that the respondent worked as a Collection Peon from 10.2.1962 until 31.7.1999, when he attained the age of superannuation (60 years) and was retired. The service contained an apparent notional break of three months in 1989. The appellants describe the respondent as having been engaged as a "Seasonal Collection Peon" and contend he was not substantively appointed or confirmed and hence not entitled to pension. The Single Judge, after perusal of the original service book, recorded findings of fact concerning entries in the service book (initial appointment shown as "temporary Collection Peon"; subsequent entries mentioning "Seasonal Collection Peon"), and noted that in 1996 the appellants had recommended the respondent for regularization to the Board of Revenue but no formal confirmation/regularization order was issued before the respondent's superannuation due to inaction by the Board of Revenue.
Legal Issues Presented
- Whether a person not substantively appointed or confirmed to the post of Collection Peon is entitled to pensionary benefits in view of the provisions of para 368(1) of the Civil Service Regulations and related rules.
- Whether the respondent's characterization in the service book as a "Seasonal Collection Peon" (or the fact of engagement on seasonal/temporary basis) precludes entitlement to pension after long continuous service (approximately 37 years).
- Whether Fundamental Rule 56 (as amended by U.P. Act No. 24 of 1975) and specifically clause (e) of Rule 56 overrides the qualifying-service permanency requirement in the Civil Service Regulations (Article 361 / Chapter 16), making temporary employees eligible for retiring pension where they retire under the Rule.
Arguments of the Parties
Appellant's Arguments
- The respondent was not substantively appointed or confirmed to the post of Collection Peon and therefore is not entitled to pension under paragraph 368(1) of the Civil Service Regulations.
- The respondent was not even a temporary employee in the ordinary sense but was engaged only as a "Seasonal Collection Peon", and thus by the appellants' account he is not entitled to pension under the rules.
- The mention of the word "temporary" in the initial entry of the service book is not determinative because subsequent entries refer to him as Seasonal Collection Peon; overall the appellants argued that confirmation/regularization was never formally effected.
Respondent's Arguments
- All relevant aspects were considered by the Hon'ble Single Judge, who recorded a finding of fact after perusal of the respondent's original service book.
- The Single Judge's factual finding and his conclusion that the respondent was entitled to pension should be upheld; therefore the appeal should be dismissed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Deokinand Prasad v. The State of Bihar, AIR 1971 SC 1049 | Holds that pension is not a bounty payable at the sweet will of the Government; rather the right to pension is a valuable right vesting in a Government servant (referenced from para 32 of the judgment). | The court cited this authority to support the principle that pension is a vested right and not a mere bounty, reinforcing the legal basis for entitlement to pension rather than treatment as discretionary benevolence. |
| D.S. Nakara v. Union of India, 1983 47 FLR 42 SC | Describes pension as compensation for past service and a social welfare measure; states pension is not a bounty or ex gratia payment but creates vested rights subject to statutory rules (paras 22, 28, 31 quoted in the opinion). | The court relied on the principles articulated in D.S. Nakara to characterize pension as a vested social-welfare/compen satory right and to support the view that pension entitlement is not dependent on governmental whim. |
| Dr. Hari Shankar Ashopa v. State of U.P. | Interprets clause (e) of Rule 56 to recognize and guarantee retiring pension to every Government servant who retires on attaining the age of superannuation, including temporary employees retiring under Rule 56 (quotation and passage cited in the opinion). | The court cited this earlier decision to support the proposition that clause (e) of Rule 56 unequivocally recognizes retiring pension entitlement to government servants — whether permanent or temporary — who retire under the relevant clauses of Rule 56. |
Court's Reasoning and Analysis
The court proceeded by first setting out the undisputed factual findings: the respondent served with the appellants from 10.2.1962 until 31.7.1999 and thus accrued nearly 37 years of service, apart from a notional three-month break in 1989. The appellants accepted that the initial appointment entry in the service book described the respondent as "temporary", but they asserted that later entries showed "Seasonal Collection Peon" and that no substantive confirmation/regularization order was ever issued.
The court noted that the Single Judge had examined the original service book and recorded findings of fact; the appellants had not satisfactorily explained the inconsistency in entries (temporary vs. seasonal), and the retirement notice and other entries designated the respondent as Sangrah Chaprasi (Collection Peon). The court also observed that the appellants had recommended regularization to the Board of Revenue in 1996 but no formal order was passed before the respondent retired on attaining superannuation on 31.7.1999.
Turning to the legal framework, the court summarized the relevant rules:
- Civil Service Regulations (Article/Chapter references): Article 424 (kinds of pensions), provisions relating to qualifying service (Article 361 / Chapter 16) which set out three conditions for qualifying service (A: service under Government; B: employment must be substantive and permanent; C: service must be paid by Government).
- Fundamental Rule 56 (clause (e)) — provides that a retiring pension shall be payable and other retiral benefits shall be available in accordance with relevant rules to every Government servant who retires or is required or allowed to retire under that rule; the court quoted clause (e) and the proviso regarding voluntary retirement.
The core analytical move by the court was to reconcile (or resolve the conflict between) the Civil Service Regulations' qualifying-service condition requiring permanency and the later statutory amendment of Fundamental Rule 56 by U.P. Act No. 24 of 1975. The court held that the 1975 amendment to Fundamental Rule 56 permits retirement of temporary employees and expressly provides that retiring pension is payable to every Government servant retiring under the rule. Because that amendment was effected by an Act of the Legislature, the provisions of Fundamental Rule 56 prevail over pre-constitutional Civil Service Regulations to the extent of any inconsistency. Consequently, the permanency requirement in Article 361 (condition B) was regarded as inconsistent with FR 56 and thus inoperative in the present context.
The court reinforced its statutory interpretation with authority, citing Deokinand Prasad and D.S. Nakara to emphasize that pension is a vested right and a social-welfare/compensatory measure, not a bounty. The court also cited Dr. Hari Shankar Ashopa to support the view that clause (e) of Rule 56 unequivocally guarantees retiring pension to government servants who retire under that rule, whether permanent or temporary.
On the facts, given the respondent's lengthy continuous service, the absence of a formal explanation for the "seasonal" entry in the service book, the appellants' failure to secure formal regularization earlier, and the operation of Fundamental Rule 56 as amended, the court rejected the appellants' contention that lack of substantive confirmation or the label "Seasonal Collection Peon" deprived the respondent of pensionary benefits.
Holding and Implications
APPEAL DISMISSED.
Holding (direct effect): The court dismissed the appellants' special appeal and affirmed the conclusion reached by the Hon'ble Single Judge. The appellants' contention that the respondent was not entitled to pension because he was not a permanent/confirmed employee or was only a Seasonal Collection Peon was rejected. By rejecting that contention, the court affirmed the respondent's entitlement to pensionary benefits on the facts and under the applicable rules as interpreted.
Implications: The decision applies Fundamental Rule 56 (as amended by U.P. Act No. 24 of 1975) to hold that retiring pension entitlement is available to government servants who retire under Rule 56, notwithstanding a conflicting permanency requirement in pre-constitutional Civil Service Regulations. The opinion relies on established Supreme Court authorities (Deokinand Prasad and D.S. Nakara) to underscore that pension is a vested and compensatory right rather than a discretionary bounty. The immediate consequence is the dismissal of the appeal and the upholding of the Single Judge's order in favour of the respondent. The opinion does not purport to create a novel legal principle beyond the application and reconciliation of the cited rules and authorities to the facts of this case.
Judges: S. Rafat Alam and Sudhir Agarwal, JJ. Appeal disposed of by dismissal (Appeal Dismissed).
S. Rafat Alam and Sudhir Agarwal, JJ.:— This special appeal, under the Rules of the Court, arises from the order of Hon'ble Single Judge dated 16th August, 2005 in Civil Misc. Writ Petition No. 39298 of 2004.
2. We have heard Sri Ran Vijai Singh, learned Standing Counsel appearing for the appellants and Sri J.P.N Singh, learned Counsel for the sole respondent.
3. Learned Counsel for the appellants vehemently contended that since the respondent was not substantively appointed and confirmed on the post of Collection Peon and hence is not entitled for pension in view of the provisions contained in para 368(1) of the Civil Service Regulations. He also submitted that the respondent was not even a temporary employee but he was engaged, as Seasonal Collection Peon only and, therefore, by any stretch of imagination, is not entitled to get pension under the rules.
4. Learned Counsel for the respondent, however, disputed the aforesaid submission of the appellant and submitted that all the aspects have been considered by the Hon'ble Supreme Court Judge, who has also recorded a finding of fact after perusal of the original service book of the respondent and, therefore, the present appeal is liable to be dismissed.
5. From the record it is not disputed that the respondent has worked as Collection Peon since 10.2.1962 till 31st July, 1999 when he attained the age of superannuation on attaining 60 years of age and was retired from service (except of notional break of three months in the year 1989). Thus, apparently the respondent worked in the service of the appellants for almost more than 37 years. The appellants although submitted that the respondent was employed as Seasonal Collection Peon but the Hon'ble Single Judge on the basis of the persual of the service book of the respondent has found that the employment of the petitioner-respondent has been mentioned as Collection Peon (Temporary) but subsequently in the service book it has been mentioned that he is working as Seasonal Collection Peon. The entry of initial appointment of the petitioner-respondent as temporary Collection Peon is not disputed. That being so, it is not possible to assume as to how the respondent has been shown as Seasonal Collection Peon in the subsequent part of the service book. The appellants could not explain this aspect even in the present appeal, although in para 7 of the affidavit they have admitted that in the 2nd column of the service book, a formal entry “temporary” of the service of the respondent is mentioned. It is also mentioned that the notice of the retirement dated 5.5.1999 filed as Annexure-2 to the paper book of the appeal shows that the designation of the petitioner-respondent has been shown as Sangrah Chaprasi (Collection Peon) and not a Seasonal Collection Peon, i.e Samyik Sangrah Chaprasi. The order passed on the petitioner-respondent's representation by the appellants also shows that in the year 1996 the appellants recommended the petitioner-respondent for regularization to the Board of Revenue but the matter remained pending for years together and no order could be issued due to inaction on the peon of the Board of Revenue and in the meantime the respondents attained the age of superannuation on 31.7.1999
6. Thus, for the only reason of non issuing of formal order of confirmation or regularization by the appellants can it be said that though the respondent has rendered 37 years of continuous service with the appellants, yet is not entitled for pensionary benefits.
7. Now it is too late in the day to say that the pension is not a right. As long back as in the year 1971, in the case of Deokinand Prasad v. The State of Bihar . AIR 1971 SC 1049., the Hon'ble Apex Court in para 32 of the judgment held as under:—
“But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet-will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a Government servant.”
8. Again the Hon'ble Apex Court in the case of D.S Nakara v. Union of India . 1983 47 FLR 42 SC., following the aforesaid judgment, held as under:—
“In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from undeserved ant was recognised and as a first steps pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto the master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, every one who qualifies for normal retirement receives the same amount. See Retirement Systems for Public Employees by Bleekney, page 33. (Para 22).
“Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past.” (Para 28)
“From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during the last three years of service reduced to ten months under liberalized pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.” (Para 31).
9. Article 424, Chapter 18 of the Civil Service Regulations provides the following kinds of pension admissible to a Government servant (a) compensation pension (b) invalid pensions (c) superannuation pensions (d) retiring pensions.
10. Fundamental Rule 56 provides for retiring of a Government servant on attaining the age of 58 years or 60 years as the case may be. It is not disputed that in the present case, the age of superannuation of the petitioner-respondent was 60 years. Clause (e) of Fundamental Rule 56 reads as under:—
(e) “A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule.
Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less.”
11. Articles 465 and 465-A provides as under:—
“465. (1) A retiring pension is granted to a Government servant who is permitted to retire after completing qualifying service for 25 years or on attaining the age of 50 years.
(2) A retiring pension is also granted to a Government servant who is required by Government to retire after attaining the age of 50 years.
465-A. For officers mentioned in Article 349-A, the rule for the grant of retiring pension is as follows:
(1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years, or on attaining the age of 50 years.
(2) A retiring pension is also granted to an officer who is required by Government to retire after attaining the age of 50 years.”
12. The term “qualifying service” is defined in section 1 Chapter 16 of Article 361 of the Civil Service Regulations, which provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions:—
(A) The service must be under Government.
(B) The employment must be substantive and permanent.
(C) The service must be paid by Government.
13. In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B, i.e, lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government servant who retires or is required or allowed to retire under this rule. Since the aforesaid Amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Conditions (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is inoperative.
14. A similar controversy came up for consideration earlier before this Court in the case of Dr. Hari Shankar Ashopa v. State of U.P 3. After referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations, this Court observed as under:—
“Clause (e) of Rule 56 unequivocally recognizes, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation, or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under clause (a) or clause (b), or who is required to retire, or who is allowed to retire under clause (c) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in article 361 of the Regulations are satisfied.”
15. In this view of the matter, the contention of the appellants that since the petitioner-respondent was not a permanent confirmed employee and hence not entitled for pension, is clearly misconceived and is rejected.
16. Learned Counsel for the appellants further submitted that since in the service book, the petitioner-respondent was also shown as Seasonal Collection Peon and, therefore, the mention of word “temporary” as his initial appointment will not make any difference. We do not agree the contention of the appellants that the petitioner-respondent was a Seasonal Collection Peon and his engagement and post was extended from time to time by the Commissioner is totally unsubstantiated, as noting has been brought on record to substantiate this plea. Even otherwise the continuous working of the petitioner-respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitioner-respondent flowing by rendering service for such a long service, cannot be brushed aside lightly.
17. In this view of the matter, we do not find any reason to interfere with the judgment of the Hon'ble Single Judge although we have given additional reasons to support the ultimate conclusion reached by the Hon'ble Single Judge.
18. This appeal, therefore, being without any merit, is accordingly dismissed.
Appeal Dismissed.
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