Smt. Kanti Devi v. State Of U.P And Another

Hon'ble Sudhir Agarwal, J.-

Heard Sri Ram Lal Singh, Advocate assisted by Sri R.C. Tiwari for the petitioner and learned Standing Counsel for the respondents.

2. District Magistrate, Sonbhadra vide order dated 26.06.2006 has rejected the claim of petitioner for payment of retiral benefits as well as family pension to the petitioner after the death of petitioner's husband, Sri Kamla Kant Chaubey and aggrieved thereto the present writ petition has been filed seeking a writ of certiorari for quashing of the same and also a writ of mandamus directing the respondents to pay arrears of salary, pensionary benefits including family pension etc.

3. The facts in brief as not disputed are that the petitioner's husband Late Kamla Kant Chaubey was employed as Lekhpal on temporary basis on 18.11.1957 and was terminated by order dated 29.11.1963 passed by the District Magistrate, Mirzapur. The said order of termination was assailed in Writ Petition No. 219 of 1964 which was allowed vide judgement dated 24.04.1966. The Writ Petitions No. 215 of 1964 and 217 of 1964 involving a similar controversy were decided on merits and the petitioner's writ petition was decided in terms of the judgement passed in Writ Petition No. 215 of 1964, the operative part whereof is reproduced as under:

"I accordingly allow these writ petitions and declare that services of the petitioners have not been legally terminated. I further direct the respondents to treat the petitioners as continuing if their service till either services are legally terminated or they are made permanent, the petitioners will be entitled to their costs of these petitions."

4. It appears that a Special Appeal No. 495 of 1966 was filed by the State of U.P. and others wherein this Court agreed with the findings of Hon'ble single Judge that the services of the petitioner-respondents were not terminated validly and dismissed the special appeal vide judgement dated 17.04.1972. The respondents, however, did not implement the above judgement immediately or within a reasonable time but could reinstate him on 01.02.1981 as Lekhpal on temporary basis whereafter he attained the age of superannuation i.e, 58 years, and retired on 30.09.1981. The respondents treated the petitioner's husband's non-employment from 29.11.1963 to 31.01.1981 as break in service/extraordinary leave and, therefore, did not pay any retiral benefits since according to them he had not completed the qualifying service of 20 years. Only a provisional family pension/family gratuity to the tune of Rs. 63,655/- has been paid to the petitioner on 03.11.2004 and reiterating these very reasons the impugned order has been passed by the District Magistrate, Sonbhadra.

5. Learned counsel for the petitioner submitted that non-reinstatement by respondents of the petitioner's husband till 31.01.1981 cannot be attributed to the said employee since it was incumbent upon the respondents to treat him in continuous service in view of the declaration made by this Court vide judgement dated 24.04.1966 where this Court held that the respondents shall treat the petitioners as continuing in service till either their services are legally terminated or they are made permanent. Meaning thereby the continuous service of petitioner's husband did not depend on the fact whether the respondents actually reinstated him or not but in law it was deemed to continue with all legal consequences. Any delay or non-compliance on the part of respondents for not actually reinstating the petitioner's husband cannot cause any irreparable loss to the benefits accrued to petitioner's husband or to the petitioner inasmuch as that would amount to allowing the respondents to take advantage of their own wrong. Further he submits that in view of the amendment made in fundamental rule 56 in the year 1975 by U.P. Act No. 24 of 1975 even a temporary Government servant was held entitled for retiring pension under clause (e) thereof. Merely because the petitioner's husband continued to be a temporary employee, he could not have been deprived of pensionary benefits. The entire service including the period when he was not allowed to work by the respondents is qualifying service for the purpose of pension since the fault lie on the part the respondents. The total service rendered by the petitioner's husband comes to more than 20 years and, therefore, he was entitled for retiring pension under Fundamental Rule 56(e) and the petitioner accordingly is entitled for family pension, gratuity etc. after the death of her husband. He placed reliance on a Division Bench decision of this Court in Board of Revenue and others Vs. Prasidh Narain Upadhyay, 2006(1)ESC 611, and Single Judge's judgements in Veerpal Singh Vs. State of U.P. and others, 2006(4) ESC 2360, Ram Pratap Shukla Vs. State of U.P. and others, 2006(2) LBESR 492 and Babu Singh Vs. State of U.P. and others, 2007(1) LBESR 291.

6. Learned Standing Counsel, however, relying on the reasons contained in the impugned order supported the same and submitted that the petitioner is not entitled for anything else except what she has already been paid.

7. Having heard learned counsel for the parties, I find substance in the submissions advanced by the learned counsel for the petitioner.

8. The petitioner's husband was admittedly appointed on temporary basis. His order of termination was set aside by this Court and the said judgment having attained finality declared that the said employee was entitled to be treated as continuing in service. A highly belated compliance on the part of the respondents by actual reinstatement of petitioner's husband on 1.2.1981 i.e. about after 15 years from the date of judgement of Single Judge and about nine years of judgement of Division Bench will not denude the legal consequences flowing from the judgment of this Court setting aside termination of the petitioner's husband and declaring him as continuing in service. In law, the petitioner's husband was entitled to be treated in continuous service since 18.11.1957 when he was appointed, till he retired from service on attaining the age of superannuation, i.e. 30.09.1981. Therefore, having rendered more than 20 years of service, petitioner's husband cannot be denied retiral benefits under the rules on the pretext that he did not actually discharge any duty after he was terminated on 29.11.1963 till 30.1.1981 and the said period is liable to be treated as break in service/extraordinary leave, which would not qualify for pension under the rules. It is evident from the record that the order of termination was declared illegal by this Court in its judgment dated 24.04.1966 itself and the petitioner's husband was declared to be treated as continuing in service till he is legally terminated. It is not the case of the respondents that thereafter at any point of time, he was legally terminated. On the contrary, the judgment of the Hon'ble Single Judge was confirmed by the Division Bench in intra-Court appeal on 17.4.1972. Even thereafter, the respondents took about 9 years in complying with the judgement and could actually allow the petitioner's husband to assume charge only on 01.02.1981. If this period of absence from 24.04.1966 till 31.01.1981 when the respondents for their own fault did not comply with the judgment of this Court and did not allow the petitioner's husband to resume duty is allowed to be treated as break in service/extraordinary leave without pay not qualifying for pension, it would result in permitting the respondents to have benefit of their own wrong and that too in the teeth of the specific and clear verdict of this Court setting aside the order of termination and declaring the petitioner's husband as entitled to be treated in continuous service. The above period by no stretch of imagination and by no principle of law, in my view, can be excluded from being treated as qualifying service. The term "qualifying service", as defined in Article 361 of the Civil Service Regulations provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions, namely,

1. The service must be under Government;

2. The employment must be substantive and permanent;

3. The service be paid by the Government.

9. It is not disputed by the learned Standing Counsel that so far as the conditions no. 1 and 3 are concerned, the husband of the petitioner fulfilled the same. The question is only with respect to the second condition, i.e., the employment must be substantive and permanent. According to the learned Standing Counsel, since the petitioner's husband was a temporary hand and was never confirmed, therefore, the condition no. 2 is not satisfied. This submission is also not correct in view of the statutory provision contained in fundamental rule 56 as also interpreted by this Court in Prasidh Narain Upadhyay (supra) and Hari Shankar Ashopa Vs. State of U.P. 1989 ACJ 337.

10. It may be noticed at this stage that before 1975, the position of law with respect to "qualifying service" under Article 361 of Civil Service Regulations was same as has been argued by the learned Standing Counsel before this Court. But fundamental rule 56 was substituted and amended by U.P. Act No. 24 of 1975 providing for retirement of a temporary employee under certain contingencies even before attaining the age of superannuation prescribed under Fundamental Rule 56 (1). Clause (e) was inserted in fundamental rule 56 (3), which provides that every Government servant, who retires either on attaining the age of superannuation or otherwise under fundamental rule 56, whether permanent or temporary, shall be entitled to a retiring pension. This statutory alteration has the result of modifying condition no. 2 under Article 361 (supra) to the extent that the requirement of permanent and substantive service to qualify for pension stood dispensed with and even a temporary employee was held entitled for retiring pension, if he retires in accordance with provision of Fundamental Rule 56. In order to construe Article 361 of Civil Service Regulations in harmony with the legislative enactment of fundamental rule 56 as amended vide U.P. Act No. 24 of 1975, the Division Bench of this Court in Hari Shankar Ashopa held 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."

11. This was followed by another Division Bench (in which I was also a member) in Prasidh Narain Upadhyay (supra) and in para 13 of the judgment, this Court held as under :

"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 employee 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, Condition B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with fundamental rule 56 and thus, is inoperative."

12. The learned Standing Counsel also could not dispute that following the law laid down in Hari Shankar Ashopa (supra), a Government Order was issued on 01.07.1989 clarifying that a temporary Government servant, who retire under fundamental rule 56, shall be entitled for pensionary benefits provided he qualify the requisite service prescribed under the rules. It is now well settled that in order to determine "qualifying service", it need not be permanent and confirmed but even a continuous service of a temporary employee would qualify for pensionary benefits under the Rules. This is how this Court has understood the exposition of law in respect of Fundamental Rule 56 read with Article 361 of Civil Service Regulations in Babu Singh (supra), wherein in para 10 of the judgment, it has held under :

"10. In the present case admittedly the petitioner was appointed on 24.10.1973 and continued with the respondents till 30.6.2001, i.e. for almost 28 years and denial of retiral benefits to the petitioner after rendering such a long service is neither justified under the Rules nor, otherwise is in accordance with law. Article 361 of Civil Service Regulations has been interpreted and read down in the light of fundamental rule 56 by the Division Bench in Dr. Hari Shankar Ashopa Vs. State of U.P. and others (supra) which has been followed in Board of Revenue & others vs. Prasidh Narain Upadhyay (supra). fundamental rule 56 as amended in U.P. allows retiring pension to a temporary employee also, who retires or is required or allowed to retire under the said Rule. Therefore, it cannot be said that an employee must render permanent service, only thereafter he will be entitled for pensionary benefits. In the present case, the view taken by the respondent-authorities that the petitioner is not entitled for pension, since for the purpose of qualifying service, minimum period of 10 years must be completed by the employee from the date of his regularisation, is not correct and unsustainable in law."

13. The decision of the respondents that the period during which the petitioner's husband could not discharge any duty, i.e., from 29.11.1963 to 31.01.1981 resulted in non payment of salary to him as per decision taken by the respondents, therefore, the same would not qualify for pension is also illegal and arbitrary inasmuch once this Court held termination of the petitioner's husband illegal and declared him to be treated in continuous service, non payment of salary to the petitioner's husband despite of the judgment of this Court for the simple reason that the respondents took about 15 years in complying with the said judgment cannot be held valid. The said decision of the respondent is also clearly illegal and runs contrary to the judgment of this Court whereby the petitioner's husband was held entitled to be treated continuing in service meaning thereby he could not have been denied salary for the simple reason that the respondents themselves did not permit him to assume charge and discharge duties. It is well settled that no one can take advantage of his own wrong and, therefore, inaction on the part of the respondents in not complying with the judgment of this Court, which became final in favour of petitioner's husband will not result in prejudicing the interest of petitioner's husband. It will not cause benefit to the respondents as the action of the respondents was wholly illegal and arbitrary by not permitting him to resume duty or discharge his duties in accordance with law. This Court in the case of Brijendra Prakash Kulshrestha Vs. Director of Education & others 2007 (3) ADJ 1 (DB) has considered the applicability of "no work no pay" and it has been held that an employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to the employer.

14. The writ petition is, accordingly, allowed. Impugned Order dated 26.6.2006 (Annexure 18 to the writ petition) is hereby quashed. The respondents are directed to consider and determine applicability of retiral benefits to the petitioner's husband treating him in continuous service from 18.11.1957 till the age of retirement. The period during which he was not allowed to work for the fault of the respondents shall be treated as service rendered with all consequential benefits. The respondents shall pay arrears of salary and retiral benefits etc. accordingly within three months from the date of production of certified copy of this order. They shall also pay current retiral benefits, i.e., family pension etc. in accordance with law without any further delay. The petitioner shall also be entitled to cost which is quantified to Rs. 10,000/-.