Dismissed

Ganga Prasad and 8 Others Inre 7486 S/S 2011 v. State of U.P. Thru. Prin.Secy. Animal Husbandry and 3 Others

Allahabad HC1 Feb 2023SPLA/570/2016

Case brief

AI extract

What is this about?

Special appeal dismissed against High Court single judge order rejecting pension claim. Court held deputation expired per 1975 GO, appealing a were employees of State U.P. Pashudhan Udyog Nigam Limited after 13.05.1976. Delay in filing writ barred estoppel claim as there was no basis to challenge retrenchment order from 1998.

What did the court decide?

Special appeal dismissed; appellants not entitled to retiral benefits or pension.

Ganga Prasad and 8 Others Inre 7486 S/S… — Pension and Retirement Benefits | Allahabad HC (2023)

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Court No. - 1

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Case :- SPECIAL APPEAL No. - 570 of 2016

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Appellant :- Ganga Prasad And 8 Others Inre 7486 S/S 2011 Respondent :- State Of U.P. Thru. Prin.Secy. Animal Husbandry And 3 Others Counsel for Appellant :- Virendra Kumar Dubey,Virendra Kumar Dubey Counsel for Respondent :- C.S.C.

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Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.

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Heard Mr.O.P. Srivastava, learned Senior Advocate assisted by Mr. Kaushlendra Yadav, learned counsel for the appellants and Mr. V.P. Nag, learned Standing Counsel appearing on behalf of the State.

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By means of the instant special appeal, the appellants have challenged the judgment and order dated 26.09.2016, passed in Writ Petition No.7486 (S/S) of 2011, whereby the writ court has dismissed the writ petition filed by the petitioners-appellants.

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Briefly stated, the facts of the case are that the appellants/petitioners had filed the aforesaid writ petition claiming the payment of retiral benefits, including the pension and arrears thereof.

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The petitioners had submitted that the petitioners had joined their services as State government employees in Central Dairy Farm, Aligarh but thereafter they were adjusted in U.P. Pashudhan Udyog Nigam Limited. Ultimately, 116 employees including the petitioners were retrenched from Nigam. It has been stated in the writ petition that by means of a Government Order dated 14.05.1975 the farm was handed over to U.P. Pashudhan Udyog Nigam Limited and thereby the status of the employees had been changed without their consent or option.

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The petitioners further stated that they remained in service of the State Government all along till their retirement, but they were not given any pensionary benefits as has been given to the other government servants in accordance with the Government Order dated 18.01.1977.

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The Hon'ble Single Judge dismissed the writ petition by means of judgment and order dated 26.09.2016 holding that the petitioners were retrenched in the year 1998 and the writ petition was filed in the year 2011 i.e. after thirteen years since their retrenchment. The basis for filing writ petition was a judgment dated 14.05.1999, passed by U.P. Public Services Tribunal in Claim Petition No.894 of 1996; Ajit Kumar Jain Vs. State of U.P. and others and the judgment and order dated 14.03.2007, passed by this Court in Civil Misc. Writ Petition No.49644 of 2002; Narendra Kumar Bhargawa Vs. U.P. Pashudhan Udyog Nigam Limited and others. The petitioners contended that they were government employees who had never been absorbed in the Corporation and, therefore, they are entitled to the retiral benefits, including pension as government servant. The Hon'ble Single Judge has held that the cases referred by the petitioners related to the employees who had completed more than ten years' of service under the government while working in U.P. Government Central Dairy Farm and therefore the learned Tribunal had held them to be entitled to retiral benefits considering the fact that they had put in more than ten years' of service as government employee. The Hon'ble Single Judge further held that Narendra Kumar Bhargawa was a case of voluntary retirement and it was held in that case that as there were no separate rules for the employees of the Corporation, the rules available to the government employees would apply to them, however, the petitioners could not get any such benefit as none of them had completed ten years' service

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as government employee and they do not fulfill minimum qualifying period for payment of pension. The Hon'ble Single Judge further held that the petitioners were retrenched on 31.12.1998 and they did not challenge the order of retrenchment and therefore the writ petition filed thirteen years after their retrenchment seeking payment of retiral benefits including pension, could not be entertained especially because the petitioners did not ever approached this court claiming the status of government servant.

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Challenging the aforesaid judgment and order passed by Hon'ble Single Judge, Mr. O.P. Srivastava, learned Senior Advocate appearing for the appellants has submitted that the appellants continued to be employees of the State Government and their status of working and working conditions did not ever changed and therefore the petitioners are entitled to be paid retiral benefits, including the pension payable to government employees.

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The Central Dairy Farm, Aligarh had been transferred by the Government to U.P. Pashudhan Udyog Nigam Limited by means of a Government Orderdated 14.05.1975, which provides that the permanent government servant would serve the U.P. Pashudhan Udyog Nigam Limited for a period of one year since 15.05.1975 on deputation in the Corporation under Fundamental Rule 10. During this period, the Corporation should make arrangement for their permanent absorption and should prepare its service rules etc. The period of deputation will not be extended beyond one year in any circumstance. The Government Order further provided that the procedure for absorption in the Corporation will be that the concerned officers/employees will be invited by the Corporation for taking them into its service. Such officers/employees who gave option

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of being absorbed in the service of Corporation, will tender resignation from the government service and they will be absorbed in the service of the Corporation. However, the officers/employees who will not submit their option within prescribed period, they will be retired from the government service after giving them three months' notice as provided under Regulation 436 of the Civil Service Regulations.

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Thus, aforesaid Government Order clearly provides that the period of deputation will not be extended beyond the period of one year in any circumstance. In view of the aforesaid provisions contained in Government Order dated 14.05.1975 the period of deputation of the petitioners in the Corporation expired on 13.05.1976.

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Learned counsel for the appellants-petitioners has submitted that the Corporation did not give an option to the appellants for being absorbed in the service of the Corporation. We are of the view that the failure of the Corporation to give the option to the appellants will not result in the petitioners' continuing in service of the State Government beyond a period of one year stipulated in the Government Order dated 14.05.1975, in spite of specific provisions in the aforesaid Government Order that the period of deputation will not exceed one year in any circumstance. Therefore, we are of the considered view that the submission of learned counsel for the appellants that the appellants continued to remain government servants till their retrenchment, has no force and cannot be accepted.

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Assailing the reasons given by the Hon'ble Single Judge for dismissing the writ petition that the petitioners had not challenged the order of their retrenchment passed on 17.12.1998 and the same was not challenged even in the writ

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petition filed thirteen years after their retrenchment in which the petitioners had claimed retiral benefits, Mr. O.P. Srivastava, the learned Senior Advocate appearing on behalf of the appellants submitted that the retrenchment order was null and void as the petitioners were not employees of the Corporation and the Corporation had no authority to retrench them. He has further submitted that an order which is null and void has no existence in the eyes of law there is no need to challenge such an order.

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As we have already held in the preceding paragraphs of this judgment, the appellants' relationship with the State Government as its employees came to an end on 13.05.1975 in accordance with the provisions of Government Order dated 14.05.1975, therefore, it cannot be accepted that the petitioners continued to be employees of the State Government till their retrenchment. Therefore, we are unable to accept the submissions made by learned counsel for the appellants that the retrenchment order was null and void and there was no need for the appellants to have challenged the order of their retrenchment.

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Per contra, opposing the submissions made by learned counsel for the appellants, Mr. V.P. Nag, learned Standing Counsel has submitted that the appellants were retrenched on 17.12.1998 and they did not challenge the order of retrenchment for as long as thirteen years and even in the Writ Petition No.7486 (S/S) of 2011 filed thirteen years after their retrenchment, the only prayer made by the petitioners was for issuance of a writ of mandamus for payment of retiral benefits during the period they had served in the Central Dairy Farm, Aligarh or in the Corporation as government servants. He has submitted that having not challenged the order of their retrenchment, the petitioners had accepted its binding nature by

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their conduct and therefore they are stopped from claiming retiral benefits without having the challenged the retrenchment order. He has further submitted that the writ petition filed thirteen years after the appellants' retrenchment suffered from latches.

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Replying to the aforesaid, Mr. O.P. Srivastava, learned Senior Advocate has submitted that there is no estoppel against the statutory provisions and the principle of estoppel would not apply against the appellants as they continued to be in government service.

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Having considered the aforesaid submissions made by learned counsel for the parties, we are of the considered view that the submission of learned counsel for the appellants that the appellants continued to remain employees of the State Government, has already been negatived in the preceding paragraphs of this judgment. All other submissions made by learned counsel for the appellants are based on the premise that the appellants continued to be employees of the State Government as the foundation for these submissions has already gone away, the submission of learned counsel for the appellant that the plea of estoppel would not apply against the petitioners, is not sustainable. We are of the view that having been retrenched on 17.12.1998 the petitioners kept quite for as long as thirteen years and even in the writ petition filed after thirteen years they did not challenge the order of their retrenchment and in these circumstances they would not be entitled to claim the relief of payment of retiral dues, without establishing that they had been retired from government service and they had not been retrenched from the Corporation's service.

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In view of the aforesaid discussions, we find ourselves in

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the agreement with the view taken by the Hon'ble Single Judge that the petitioners could not make out any factual and legal basis for claiming the relief. The observations made and conclusions arrived at by the writ court does not call for any interference by this Court.

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The special appeal lacks merit and the same is accordingly dismissed . However, no orders as to the costs.

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(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

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Order Date :- 1.2.2023 Ram.

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Digitally signed by :- RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

Ganga Prasad and 8 Others Inre 7486 S/S 2011 v. State of U.P. Thru. Prin.Secy. Animal Husbandry and 3 Others

Case brief

What is this about?

What did the court decide?

Ganga Prasad and 8 Others Inre 7486 S/S 2011 v. State of U.P. Thru. Prin.Secy. Animal Husbandry and 3 Others

Case brief

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