Allowed

Indra Kumar v. State of U.P. Thru Prin.Secy.Deptt.of P.W.D. ANUBHAG-4 andORS.

Allahabad HC6 Dec 2024WRIA/28192/2016

Case brief

AI extract

What is this about?

The High Court quashed a revised pension payment order issued after ex-gratia reduction of pensionable service period, holding administrative authority lacked power to review settled pension orders without statutory provision or opportunity of hearing, restoring previous order.

What did the court decide?

Writ allowed. Impugned fresh pension payment order quashed. Previous pension order restored. Dues paid with interest @8% if unpaid within four weeks. Cost Rs.15,000 awarded.

Indra Kumar Vs State of U.P. Thru… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:81817

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Court No. - 6

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Case :- WRIT - A No. - 28192 of 2016

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Petitioner :- Indra Kumar

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Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of P.W.D. Anubhag-4 Andors. Counsel for Petitioner :- Ashok Kumar Mishra,In Person Counsel for Respondent :- C.S.C.

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Hon'ble Alok Mathur,J.

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C.M. Application for amendment.

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Heard Sri Indra Kumar, the petitioner in person as well as learned Standing counsel for the respondents.

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The cause shown is sufficient. Application is allowed.

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The petitioner is permitted to carry out necessary amendment in the memo of the petition during course of the day.

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Order on memo

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Heard Sri Indra Kumar, the petitioner in person as well as learned Standing counsel for the respondents.

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The petitioner has retired from the post of Junior Engineer (Technical) on 31.8.2007 and subsequent to his retirement he was given all his post retiral due including the pension, gratuity and other benefits till passing of the impugned order.

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The petitioner has approached this court challenging the revised pension payment order dated 5.1.2016 wherein the length of services of the petitioner has been reduced from 34 years 3 months to 27 years, 2 days . This has been done on account of the fact that the services rendered by the petitioner after his initial appointment on the post of Junior Engineer on 1.6.1973 till his date of his regularization on 7.1.1980 has been excluded from the pensionary service period of the petitioner.

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Brief facts leading to filing of the present case are that the petitioner was appointed on temporary basis against regular vacancy in the office of Superintending Engineer 30th Circle PWD, Lucknow on 1.6.1973. He continued to discharge his functions efficiently when his services were regularized on 7.1.980 vide letter dated 20.1.1981 issued by Chief Engineer,

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P.W.D.. During his services the petitioner was given grade pay, promotional pay scale, special increments which were pay-scale on completion of 8, 16, 22 and 26 years of services which was done after adding the temporary services of the petitioner. When the petitioner superannuated from service on 31.8.2007 the pension payment order was duly prepared taking into account the services rendered by the petitioner on temporary basis since 1.6.1973 and it was determined that the petitioner has worked for 34 years and 3 months.

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The petitioner was aggrieved by the fact that one promotional pay scale and increments has not been added and, therefore, moved representation for revision of his pay on which vide letter dated 24.9.2013 of the Executive Engineer (Traffic Study & Survey Division) P.W.D., Lucknow the pay was revised and the said letter was referred to other senior authorities and finally to Additional Pension Directorate. It is at this stage while reexamining the service conditions of the petitioner that the respondents changed their opinion and found that the petitioner was not entitled to be given the benefit of 7 and half years' services rendered from 1.6.1973 till 7.1.1980 and accordingly were of the opinion that his pension payment order has been wrongly prepared and also sought to deduct the same from gratuity an amount of Rs.88,545/- and also an amount of Rs.2,43,558/- from his commuted portion of the pension and accordingly they issued fresh pension payment order on 5.1.2016.

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It is noticed that neither was any opportunity of hearing was given to the petitioner prior to issuance of fresh pension payment order on 5.1.2016 nor any reason has been disclosed while passing the fresh pension payment order and the excess money purportedly paid to the petitioner has also been sought to be recovered.

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It has been submitted by learned counsel for the petitioner that initially his pension payment order have been duly considering the period spent as Junior Engineer Technical on temporary basis prior to his regularization. He submits that the law in this regard has been settled and also considered by a Division Bench of this Court in the case of Dr. Amrendra Narain Srivastava Vs. The State of U.P. and others, decided on 1.3.2012 in Writ-A No.61974 of 2011, wherein in similar circumstances the Division Bench has opined as under:-

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"The qualifying service, as defined in sub-rule (8) of Rule 3, includes the service, which qualifies for pension in accordance with the provisions of Section 368 of Civil Services Regulation. The petitioner does not fall in any of the exceptions inasmuch

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as the period of his temporary service was not in a nonpensionable establishment after he was regularized in the State Government.

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For the aforesaid reasons, we find that the petitioner has rendered qualifying pensionary service with effect from the date of his joining in the State Government on his option, and which shall be treated as service qualifying for pension and for which under the Government Orders, by which the hospitals were provincialised, the contribution of his pension has been deposited by the Zila Parishad. The objection, that the contribution of pension, has not been deposited in the relevant account head, is too technical to be accepted. The amount has been credited to the account of the State Government in the Treasury. It is for the Treasury Officer to appropriate the amount in the correct account head. An error in depositing the amount in the wrong account head cannot be treated to have taken away the right of petitioner to pension based upon his continuance in the State Government beginning from 1991.

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The writ petition is allowed. The impugned order dated 20.9.2011 is quashed. The petitioner shall be entitled to pension with effect from 01.2.1991, the date on which he joined in the State Government. The State Government will calculate his pension and issue the pension payment order within two months. The entire arrears of pension shall be paid over to him within a period of three months."

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A perusal of the aforesaid judgment and order clearly indicates that there is no infirmity committed by the respondents while counting the temporary/ services performed by the petitioner prior to his regularization. Even otherwise, once pension payment order has been issued and his post retiral dues been duly computed there was no provision for the respondents to have revisited the entire order after a lapse of nearly 8 years.

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It is noticed that Supreme Court as well as High court has repeatedly stated 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 Art. 309 and clause (5) of Art. 148 of the Constitution; that the pension is not an ex-gratia payment but it is a payment for the past service rendered; and 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 a lurch.

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When the petitioner had superannuated, the respondents had duly computed his post retiral dues and issued pension payment order without there being any application on behalf of the petitioner seeking review of the pension payment order nor any fresh fact being brought to the knowledge of the respondents we do not find that there was any vested right with the respondents to have revisited the pension payment order of the petitioner.

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The administrative authorities do not have power to review its decision unless and until special provision is provided for the same. In the present case, we find that the revision of pension payment order is bereft of any rule or any statutory provisions and has been passed without giving any opportunity to the petitioner and accordingly is illegal and arbitrary, therefore, quashed.

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In view of the above, the writ petition is allowed .

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The previous pension payment order dated 26.2.2008 stands restored and all the dues of the petitioner including the pension shall be paid in accordance with pension payment order dated 26.2.2008. Any amount deducted from the petitioner shall be paid, expeditiously, say within a period of four week. In case the payment is not made within four weeks, the respondents shall pay the same with interest at the rate of 8 per cent per annum till the date of its actual payment.

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Considering that the petitioner, who is a retired government servant, has been forced to litigate and run from pillar to post to get his post retiral dues we quantify the cost at Rs.15,000/to be paid by the respondents within next four weeks.

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(Alok Mathur, J.)

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Order Date :- 6.12.2024 RKM.

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Digitally signed by :- RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

Indra Kumar v. State of U.P. Thru Prin.Secy.Deptt.of P.W.D. ANUBHAG-4 andORS.

Case brief

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Indra Kumar v. State of U.P. Thru Prin.Secy.Deptt.of P.W.D. ANUBHAG-4 andORS.

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