Allowed

Kamal Toppo v. Education

Jharkhand HC1 Aug 2018WPC/3491/2016

Case brief

AI extract

What is this about?

The High Court disposed of multiple writ petitions seeking payment of unpaid pension arrears arising from 5th and 6th pay revisions. The court held that claimants are entitled to 5% consolidated interest on delayed pension payments from three months after admissibility, rejecting the State's defense based on procedural verification delays.

What did the court decide?

Directing the respondent-Department/University to ensure consolidated payment of 5% interest on accumulated arrears of pension from the day it became admissible to the petitioners.

Kamal Toppo Vs Education — Pension and Retirement Benefits | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 7845 of 2011

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Chhedi Mahto ... ... Petitioner Versus The State of Jharkhand and others ... ... Respondents with W.P.(S) No. 1811 of 2013 Janki Devi ... ... Petitioner Versus The State of Jharkhand and others ... ... Respondents with W.P.(S) No. 3402 of 2017 Parmesh Chandra Singh ... ... Petitioner Versus The State of Jharkhand and others ... ... Respondents with W.P.(S) No. 3491 of 2016 Kamal Toppo ... ... Petitioner Versus The State of Jharkhand and others ... ... Respondents with W.P.(S) No. 3724 of 2015 Bhaba Taran Dutta ... ... Petitioner Versus The State of Jharkhand and others ... ... Respondents with

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W.P.(S) No. 4189 of 2017

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Jaipal Oraon ... ... Petitioner Versus The State of Jharkhand and others ... ... Respondents with W.P.(S) No. 4191 of 2017 Kannilal Ram ... ... Petitioner Versus The State of Jharkhand and others ... ... Respondents with W.P.(S) No. 511 of 2016 Nawal Kishore Soni ... ... Petitioner Versus The State of Jharkhand and others ... ... Respondents

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

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For the Petitioner(s) : Dr. S.K. Pandey, Adv. Mr. Sunil Kumar Agarwal, Adv. Mr. Shray Mishra, Adv. Mr. Saibal Mitra, Adv. Mr. Mahesh Tewari, Adv. Mr. J.S Tiwari, Adv. For the Resp.-State :Mr. Atanu Banerjee, G.A. For the Resp.-University:Mr. A.K. Mehta, Adv.

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11/01.08.2018 In this batch of writ petitions primarily the petitioners have sought a direction for payment of unpaid post-retiral benefits, revision in pension in terms of 5^th and 6^th pay-revision, arrears of pension etc.

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In many of these writ petitions a prayer for payment of interest on delayed payment of arrears of pension on account of revision in pension in terms of 5^th and 6^th pay-revision has been made. The respondent-State filed counter-affidavit and in many cases supplementary counter-affidavit also, but the claim for payment of interest was not specifically addressed in the affidavits filed by the respondent-State. Therefore, by an order dated 11.06.2018 the respondents were directed to file affidavit on the issue of payment of interest to the petitioners who have been granted 5^th and 6^th pay-revision benefits.

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On payment of interest to the petitioners stand taken by the petitioners is recorded in order dated 11.06.2018 which reads as under:

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“09/11.06.2018 During course of hearing a serious objection has been taken by the learned counsel for the petitioners on the common affidavit filed in W.P.(S) No. 6797 of 2011.

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Plea urged on behalf of most of the petitioners is that once a decision was taken to extend the benefits under 5^th Pay-revision w.e.f. 01.01.1996 and under 6^th Pay-revision w.e.f. 01.01.2006, such benefits if have not been paid, the petitioners are entitled for interest on the amount due and payable to them.

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Let all these matters appear after three weeks for filing an affidavit by the respondents on the issue of grant of interest to the petitioners who were entitled for benefits under 5^th Pay-revision and 6^th Pay-revision.

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Post these matters on 03.07.2018 under the heading “For Final Disposal”.

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Initially several other writ petitions were also posted together, however, some of them have been disposed of by separate orders. These writ petitions were heard on different dates and, in the meantime, affidavits were filed on behalf of the respondents indicating payment of pension and other post-retiral benefits to the petitioners.

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On grant of 5^th and 6^th pay-revision benefits now the respondent-Department of Higher, Technical Education and Skill Development has filed separate affidavits in these writ petitions asserting that proposals for grant of 5^th and 6^th pay-revision benefits to the petitioners have been approved and now it is responsibility of the respective Universities to pay arrears of pension to the petitioners for which consolidated fund has already been allocated to the Universities.

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In view of the above stand of the Department pleaded in the counter-affidavits/supplementary counter-affidavits the respondent-University is directed to ensure payment of arrears of pension and other pensionary benefits, if any, within 4 weeks.

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In compliance of order dated 11.06.2018 a common supplementary counter-affidavit dated 29.06.2018 on behalf of the respondent nos. 1 and 2 has been filed.

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In this affidavit the respondent-State has taken a stand that the petitioners are not entitled for interest on arrears of pension which has been paid to them or which shall now be paid to them as approval on the proposal for their pay-revision has been accorded by the Department. This stand of the respondent-State is primarily founded on the ground of procedural delay and delay by the University in sending proposal for pay-revision in terms of 5^th and 6^th pay-revision.

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The respondents have pleaded that in terms of recommendation for 5^th pay-revision an exercise for identification of the posts - whether the posts were sanctioned or not - was undertaken and thereafter approval of the Department to the proposal forwarded from the University was granted. It is pleaded that after bifurcation of Human Resources Development Department files of the Higher Education Department were shifted from the office situated at Nepal House, Doranda to the Project Bhawan which is about 6 k.ms. away from the Doranda headquarters. After narrating few more facts which are really not relevant, in para 24 of this affidavit it is stated as under:

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That at this backdrop the State Government has to tread a cautious path in granting approval of the pay of the employee, naturally it will take some time. Delay thus occurred is procedural and not intentional.

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From the aforesaid stand taken by the respondent-State it stands admitted that there was no delay or laches on the part of the petitioners; in fact, this is not the stand taken by the respondent-State in any of its affidavits filed in the present proceeding. Whether there was delay on the part of the University or on the

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part of the Department, one thing is clear that benefits of revision in pension on account of which arrears of pension has accumulated has not been granted to the petitioners from due date for no fault on their part.

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Mr. Atanu Banerjee, the learned G.A submits that the process of identification has continued till the year 2017. In the first place the respondent-State cannot plead that it has no details of its own employees. Secondly, it is shocking that the respondent-State has taken about 17 years to identify in one Department whether the persons working under it and claiming revision in their pension under 5^th and 6^th pay-revision were working against the sanctioned post or not. This is hardly a ground to deny interest to the petitioners on unpaid arrears of pension.

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Mr. Atanu Banerjee, the learned G.A has referred to an order passed by the Supreme Court in “State of Uttar Pradesh and Others Vs. Israr Ahamd and Others” reported in (2018) 2 SCC 672 to contend that on revised pay-scale interest cannot be paid. This decision is wholly inapplicable in the facts of these cases. On their own stand the respondents admit that the petitioners are entitled for 5^th and 6^th pay-revision and these are not cases in which a dispute on entitlement in a pay-scale was raised by the parties.

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The learned counsels for the petitioners have submitted that Appendix-VI to the Jharkhand Pension Rules, 2000 provides that 5% interest shall be payable on the amount of post-retiral benefits which has not been paid within 3 months when it became payable.

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After a Constitution Bench of the Supreme Court in “Deokinandan Prasad Vs. The State of Bihar & Ors.” reported in (1971) 2 SCC 330 has held that pension is akin to right to property under Article 300-A of the Constitution of India of which an employee cannot be deprived of without following due process of law, in a

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series of judgments it has been held that prompt payment of pension is Government's duty. In “State of Kerala & Others Vs. M. Padmanabhan Nair” reported in (1985) 1 SCC 429 , the Supreme Court has observed that “Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment”. Judgment in M. Padmanabhan Nair case was referred in several judgments including one of the earliest cases in “ Dr. Uma Agrawal Vs. State of U.P. and Another” reported in ( 1999) 3 SCC 438, and the recent one in “ State of Uttar Pradesh and Others Vs. Dhirendra Pal Singh” reported in (2017) 1 SCC 49.

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It is really not necessary to reproduce a bibliography of judgments on the subject, it is sufficient to record that denial of interest from date of entitlement till date of payment for no fault of the employee, at least pension and other post-retiral benefits – arrears of pension standing on a similar footing - is a denial of justice. In fact, the State Government is alive to the situation and that is the reason letter dated 07.11.1981 issued by the erstwhile State of Bihar has formed part of Appendix-VI of the Jharkhand Pension Rules, 2000. In this letter it is provided that if pension of an employee is delayed beyond 3 months for no fault of the employee it shall accrue 5% interest p.a.

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Assuming that the exercise undertaken for identifying the sanctioned post has consumed several years and there was delay on the part of the University in sending the proposals for 5^th pay-revision, I find no explanation why revision in the petitioners' pension in terms of 6^th pay-revision was not done within a reasonable time and not paid from the due date. The

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Department of Higher, Technical Education and Skill Development has all the details of employment of these petitioners. They have been found working on sanctioned posts and now they have superannuated from service.

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The contention that only when proposal is sent from the University necessary approval can be accorded by the department may be accepted insofar as 5^th pay-revision is concerned, but this can not be a condition for grant of 6^th pay-revision benefits. Once an employee is found entitled for benefits under 5^th pay-revision which according to the respondents has been granted on verification of their service records, claim for revision in pension and other post-retiral benefits under 6^th pay-revision could not have been with-held by the Department. After all it is the Department which is the final authority in the matter.

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Considering the plea raised by the respondents that it took some time to verify the sanctioned posts while a lenient view may be taken on delay in payment of arrears of pension accrued in terms of 5^th pay-revision, delay in granting benefits under 6^th pay-revision for revision in pension of these petitioners, if is ignored, it would really result in miscarriage of justice. Once a decision was taken by the respondent-State that the employees working in the University are entitled for pay-revision benefits, from that date it becomes due and payable; the teaching employees have been granted 6^th pay-revision benefits from 22.11.2010 and non-teaching staff from 13.03.2013. Even if proposals were forwarded belatedly, benefits under 6^th pay-revision must accrue to the petitioners from the date it was enforced. In the peculiar facts of the case, the petitioners are held entitled for interest on delayed payment of arrears of pension accrued in terms of 6^th pay-revision after 3 months from the date it became admissible to them till it is actually paid.

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Normally, interest shall be calculated on arrears of pension accumulated at the end of each year separately. In my opinion, however, it would serve the interest of justice if consolidated (one time) interest @ 5% on the entire accumulated arrears of pension payable to the petitioners is paid to them.

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Ordered accordingly.

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All these writ petitions stand disposed of, in the aforesaid terms.

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(Shree Chandrashekhar, J.)

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sudhir A.F.R

Kamal Toppo v. Education

Case brief

What is this about?

What did the court decide?

Kamal Toppo v. Education

Case brief

What is this about?

What did the court decide?

What the court decided

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