Allowed

Mithilesh Kumar Srivastava v. State of U.P. and 7 Others

Allahabad HC7 Dec 2022WRIA/5645/2021

Case brief

AI extract

What is this about?

The Single Judge held the Court allowed the writ petition, directing authorities to compute and pay the petitioner's full pension and gratuity treating him as continuously in service from 1996 to 2019, with interest on the delayed amounts.

What did the court decide?

Directions to compute and pay full pension and balance gratuity treating service as continuous from 01.12.1996 to 31.10.2019, with interest at 6% on delayed payments.

Mithilesh Kumar Srivastava Vs State of… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 36

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Case :- WRIT - A No. - 5645 of 2021

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Petitioner :- Mithilesh Kumar Srivastava Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Sanjay Srivastava,Daya Shanker Mani Tripahti

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Counsel for Respondent :- C.S.C.

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Sanjay Srivastava learned counsel for the petitioner and the learned Standing Counsel for the State respondents.

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Present writ petition has been filed seeking a direction upon respondent Nos. 6 and 7 to pay the pension to the petitioner as sanctioned by the Deputy Director of Education, 5th region, Varanasi and also for a direction upon respondent No. 6 to pay the gratuity amount Rs. 5,08,131/- as computed by the Director of Education vide order dated 11.8.2020. Also interest has been claimed on the delayed payments @ 12%.

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Petitioner was initially appointed on the post of Clerk at Sri Saraswati Kanya Inter College, Neelkanth, Varanasi. He had joined that institution on 04.6.1992. Financial approval to that appointment was sought by the Management. At that stage, the matter became pending. The petitioner approached this Court by means of Civil Misc. Writ Petition No. 36918 of 1993, M.K. Srivastava Vs. Regional Inspectress of Girls Schools and another, to claim a direction upon the Regional Inspectress of Girls Schools to make full salary payment to the petitioner with effect from 04.6.1992. During pendency of that petition, office of the DIOS, Varanasi issued communication dated 19.12.1996 granting provisional financial approval subject to outcome of the aforesaid writ petition filed by the petitioner.

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Subsequently on 25.5.2004, Civil Misc. Writ Petition No.

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36918 of 1993 came to be dismissed with the following observations:-

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"In the instant case, the appointment of the petitioner was made without obtaining permission from the Regional Inspectress of Girls Schools. The petitioner has annexed a communication dated 13.8.1991 sent by the Manager to the Regional Inspectress of Girls Schools seeking permission for making appointment but no document has been filed to indicate that such permission was granted by the Regional Inspectress of Girls Schools."

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Petitioner challenged the above order by means of intra court appeal being Special Appeal No. 1497 of 2009. As a consequence of the order of the learned single judge, the Committee of Management of the above described institution vide its order dated 26.12.2008 discontinued salary payment of the petitioner and stopped taking work from him.

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Subsequently, vide order dated 21.7.2015, the Division Bench of this Court allowed the Special Appeal filed by the petitioner with the following observations:-

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"12. We have perused the Government Order dated 23rd September, 1981 and circular dated 8th January,1988 issued by the Regional Inspectress of Girls Schools, Vth Region, Varanasi. The said Government Order does not provide any prior permission for making the appointment by the Committee of Management. It also does not provide in case the appointment is made without taking the permission, the approval of payment of salary shall not be granted. Therefore, the direction in the Circular dated 8th January, 1988 stating that the appointment be made after getting the permission and further that no appointment be made without prior permission and in case it is made approval of payment of salary shall not be granted, is beyond the Government Order and therefore illegal and for non-compliance of the aforesaid direction, the appointment cannot be held to be invalid. There is no dispute that Committee of Management is appointing authority of class-III employee in an institution.

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13. The learned Standing Counsel has not shown any other provision which provides prior permission for making the appointment, prior to the introduction of the Regulation 107 which has been introduced on 30.07.1992.

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14. In view of above, we are of the view that for making the appointment of the petitioner on 01.06.1992 on the post of clerk no prior permission was required from the Regional Inspectress of Girls Schools.

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15. In the circumstances, we direct the Regional Inspectress of Girls Schools, 5th Region, Varanasi to examine the correctness of the appointment of the petitioner by the Committee of Management and if appointment has been made following the procedure, the sanction for

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payment of salary be accorded within a period of one month from the date of presentation of a certified copy of this order in accordance to law.

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16. The appeal stands allowed. The order dated 25th May, 2004 passed by learned Single Judge is set aside."

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In short, the order of the learned single judge was set aside and the matter remitted to the Regional Inspectress of Girls Schools, Varanasi to re-examine the issue of validity of appointment of the petitioner. It is undisputed, the above order attained finality. Further, the Regional Inspectress of Girls Schools, Varanasi vide order dated 01.10.2015 clearly found the initial appointment of the petitioner to be in accordance with law. No illegality was found in that order. This order has also not been altered or modified till date.

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The clear position in law that therefore, arises is, there was no defect in the petitioner's initial appointment by the Committee of Management pursuant whereto he had joined services at the above described institution on 04.6.1992. It is also not disputed between the parties that as a result of earlier order dated 19.12.1996, the petitioner received full salary from 1996 up to the year 2008. Occasioned by the order dated 26.12.2008, passed by the Committee of Management in direct consequence of the order of the learned single judge dated 25.5.2004 passed in Civil Misc. Writ Petition No. 36918 of 1993, that salary payment was discontinued and the petitioner deprived of work at the above institution. That status continued to operate till further order came to be passed by the DIOS, Varanasi dated 01.10.2015. As a consequence of that order, petitioner started receiving due salary. He attained the age of superannuation and retired on 31.10.2019.

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Those being undisputed facts and since the petitioner is not claiming payment of salary for the period of disengagement suffered by him from 2008-2015, there is no real need to call for counter affidavit. Only the plain consequence of the orders

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noted above has to be examined. Therefore, the issue is found to be purely legal. Accordingly, the writ petition has been heard.

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Perusal of the order sheet reveals, despite numerous orders passed on 08.7.2021, 26.7.2021, 17.8.2021, 07.9.2021, 23.9.2021 and 28.9.2021, gratuity amount claimed by the petitioner treating him to have remained in service all throughout, has not been paid. Further, pension amount has not been paid to the petitioner on the reasoning, petitioner had not served for ten years from 2015 before attaining the age of superannuation.

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Having heard learned counsel for parties and having perused the record, in the first place, it may be noted, financial approval was granted to the appointment of the petitioner on 19.12.1996 with effect from 01.12.1996. It was made subject to final outcome of the writ petition No. 36918 of 1993. The decision in that writ petition was reversed in Special Appeal No. 1497 of 2009, Mithlesh Kumar Srivastava Vs. Regional Inspectress of Girls Schools and another. Special Appeal proceeding was only continuation of the writ proceedings. Therefore, once the division bench found the view taken by the learned single judge to be unsustainable and remitted the matter to the DIOS to pass fresh order, it cannot be said that the rights of the petitioner stood finally adjudicated by virtue of the decision of the learned single judge dated 25.5.2004 in Civil Misc. Writ Petition No. 36918 of 1993.

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Final adjudication was made by the division bench of this Court. It would govern the rights of parties as that is the decision on the writ petition. At that stage, the original order dated 19.12.1996 was not set aside. While giving effect to the order of the division bench, the DIOS, Varanasi clearly found that there was no defect in the initial appointment of the

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petitioner and that discontinuance of the salary payment was not in accordance with law. Therefore, financial approval earlier granted to the petitioner, stood re-confirmed.

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What flows by way of direct consequence of the above is, the petitioner had always to be treated regularly employed, even for the period of discontinuance from service suffered in the interregnum. That consequence was by way of effect caused by the order of the learned single judge of this Court that came to be reversed by the decision of the Division Bench.

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In view of the above, petitioner had to be treated to have remained in service from the date of financial approval accorded to his appointment i.e. 01.12.1996 till the date of retirement i.e. 31.10.2019. Seen in that light, he would remain entitled to computation and payment of gratuity, after including in the years of service- the period of severance suffered by him, contrary to law. Also computed from 01.12.1996, petitioner served for about 23 years. It is much more than the qualifying service of ten years prescribed by law, to claim pension. The claim of the petitioner is near about perfect in law. It is difficult to accept the situation where the petitioner has been deprived of full gratuity payment and payment of pension for a long period of time that despite sufficient opportunities granted by this Court, in the present proceedings. Mere audit objection raised could never have led to the consequence of withholding of pension by the authorities who were obligated in law to ensure such payment. For that reason, the petitioner has also become entitled to payment of interest for the delay caused. Accordingly, writ petition is allowed with the following directions:

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(i). Respondent No. 4 shall ensure computation of correct amount of gratuity payable to the petitioner treating him to have

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remained in service from 01.12.1996 till 31.10.2019 (on notional basis). After deducting the amount already paid towards gratuity, balance gratuity amount may be paid out to the petitioner within one month together with interest @ 6% from 01.11.2019 till the date of its actual payment.

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(ii). The entire amount of pension due (upto the date of payment), to the petitioner may be computed treating him to have remained in continuous service from 01.12.1996 to 31.10.2019 (on notional basis) within a period of three months. It may be paid out within a further period of three months together with interest @ 6% from the date 01.11.2019 to the date of actual payment.

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(iii). Thereafter, the current and future pension may be paid out to the petitioner on month to month basis as and when becomes due to the petitioner.

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(iv). Computation may be made granting (notionally), to the petitioner benefit of ACP and other increments and emoluments that may have otherwise arisen to the petitioner had he continued in service. For that purpose, petitioner would always be treated to have remained eligible to such benefits. This observation has been made keeping in mind the fact that the petitioner has been dealt with in a wholly unfair manner.

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(v). No direction is being issued with respect to payment of salary for the period 26.12.2008 to 30.9.2015 as that dispute is not before the Court.

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Order Date :- 7.12.2022 Faraz

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Digitally signed by FARAZ AHMAD Date: 2022.12.07 17:31:00 IST Reason: Location: High Court of Judicature at Allahabad

Mithilesh Kumar Srivastava v. State of U.P. and 7 Others

Case brief

What is this about?

What did the court decide?

Mithilesh Kumar Srivastava v. State of U.P. and 7 Others

Case brief

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