Disposed

State of Uttarakhand v. Gopal Singh Bisht

Uttarakhand HC1 May 2019SPA/179/2019

Case brief

AI extract

What is this about?

Appeal against a Single Judge order granting pension benefits to an employee of the Inter-Rural Road Construction Scheme. The High Court set aside the lower order, noting the Single Judge ignored a 2006 order superseding the 1997 instrument relied upon by the Supreme Court. The writ petition was restored for re-examination of its applicability.

What did the court decide?

Special Appeal disposed; Order of Single Judge set aside; Writ Petition restored to file; No costs.

State of Uttarakhand Vs Gopal Singh Bisht — Pension and Retirement Benefits | Uttarakhand HC (2019)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL SPECIAL APPEAL NO. 179 OF 2019

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State of Uttarakhand and others. ….Appellants.

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Vs.

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Gopal Singh Bisht ...Respondent

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Sri Vikas Pande, learned Standing Counsel for the State of Uttarakhand / appellants. Sri Ghanshyam Joshi, learned counsel for the respondent-writ petitioner.

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Dated: 1^st May, 2019

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Coram: Hon’ble Ramesh Ranganathan, C.J. Hon’ble N.S. Dhanik, J.

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Ramesh Ranganathan, C.J. (Oral)

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This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 40 of 2018 dated 27.10.2018.

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The respondent-writ petitioner had invoked the jurisdiction of this Court seeking a writ of certiorari to quash the order passed by the third respondent dated 25.02.2017, and to direct the respondents to pay pension to the petitioner from the date of his super-annuation.

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Facts, to the limited extent necessary, are that the respondentwrit petitioner was initially appointed as a Class-IV employee on 10.06.1975 in the Inter-Rural Road Construction Scheme (Antar Gramin Sadak Nirman Yojana) started by the Government of Uttar Pradesh under the control of the Cane and Sugar Commissioner. On bifurcation of the State of Uttar Pradesh, the respondent-writ petitioner is said to have exercised his option to be allotted to the State of Uttarakhand. He continued to discharge his services in the State of Uttarakhand till he attained the age of superannuation, and retired from the services of the Inter-Rural Road Construction Scheme (controlled by the Cane and Sugar Commissioner, Uttarakhand), on 30.11.2016.

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The respondent-writ petitioner was paid all the retiral benefits which a government servant was entitled to. He was, however, not

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paid pension on the ground that the pension scheme is applicable only to Government servants; employees working in the Inter-Rural Road Construction Scheme were not Government servants; and they were, therefore, not entitled to claim pension which was extended only to Government servants.

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The respondent-writ petitioner submitted a representation to the third respondent who, by his order dated 25.02.2017, rejected his representation holding that he was not entitled for payment of pension in terms of the service rules.

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Aggrieved thereby, the respondent-writ petitioner invoked the jurisdiction of this Court by filing Writ Petition (S/S) No. 40 of 2018 claiming parity with another employee Sri. Vinod Kumar Goel who had retired from service as an Executive Engineer. Sri Vinod Kumar Goel had earlier filed Writ Petition (S/B) No. 348 of 2005 contending that he was also entitled to be extended pension on par with Government servants. On a Division Bench of this Court rejecting his claim for pension, by its order in Writ Petition (S/B) No. 348 of 2005 dated 09.11.2011, Sri Vinod Kumar Goel filed Civil Appeal No. 227 of 2014, arising out of SLP (Civil) No. 6222 of 2012, and the Supreme Court, by its order dated 10.01.2014, directed the respondents to pay pension and arrears of pension to him.

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In the order under appeal, the learned Single Judge observed that the respondent-writ petitioner was, admittedly, appointed by the Joint Cane Commissioner, Kashipur; in Vinod Kumar Goel vs. State of Uttarakhand & Others , the Supreme Court had observed that the very same issue was earlier raised before the Supreme Court in Civil Appeal No. 2511 of 2004 and, by order dated 16.04.2004, the Supreme Court had held that the Cane Commissioner was the appointing authority of the appellant, and the appellant was working under the Cane Commissioner in the Antar Gramin Sadak Nirman Yojana; the contention that the Rules regarding retirement applied only to Government employees, and the appellant was not a

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Government employee to whom these Rules were applicable, could not be accepted, since, as per Exhibit P-1 order of the Cane Commissioner, the rules applicable to Government employees had been adopted for the Cane Development Department; and in the light of Annexure P-1, the appellant was entitled to continue till 60 years.

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Following the order in Civil Appeal No. 2511 of 2004 dated 16.04.2004, the Supreme Court, in Vinod Kumar Goel vs. State of Uttarakhand (order in Civil Appeal No. 227 of 2014 dated 10.01.2004), observed that, in the earlier case, the Supreme Court had not accepted the stand of the State of Uttarakhand that the appellant was not a Government employee; the rules applicable to Government employees had been adopted for the Cane Department; the Rules of the State were applicable to the appellant for the purpose of superannuation and other consequential benefits; the earlier decision was binding on both the parties; and the respondents could not deny the retiral benefits, including pension, to the appellant.

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Following the judgment of the Supreme Court in Vinod Kumar Goel , the learned Single Judge, in his order in Writ Petition NO. 40 of 2018 dated 27.10.2018, held that the decision of the Supreme Court, in Vinod Kumar Goel, was binding; and the counsel for the State Government could not show any ruling, or advance any argument, to rebut the respondent-writ petitioner’s contention that the judgment of the Supreme Court was binding. The writ petition was allowed, and a mandamus was issued to the respondent authorities to extend, to the petitioner, the pensionary benefits forthwith, calculate the arrears of pension, and release the same in favour of the petitioner within a period of two months.

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Aggrieved thereby, the Government of Uttarakhand, the Cane and Sugar Commissioner, Kashipur and the Joint Cane and Sugar Commissioner, Kashipur are in appeal before us.

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Sri Vikas Pandey, learned Standing Counsel for the State Government, would submit that Exhibit P-1, which was relied upon by the Supreme Court in its order in Civil Appeal No. 2511 of 2004 dated 16.04.2004, is the order of the Cane Commissioner dated 04.11.1997/12.11.1997; this order of the Cane Commissioner was superseded later by the order of the Cane Commissioner dated 14.06.2006; the respondent-writ petitioner has not challenged the validity of the proceedings of the Cane Commissioner dated 14.06.2006; and though the appellants had specifically referred to this order of the Cane Commissioner, in their counter affidavit, the learned Single Judge has not considered the effect, of the said order dated 14.06.2006, in the order under appeal.

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On the other hand Sri Ghanshyam Joshi, learned counsel for the respondent-writ petitioner, would submit that the law declared by the Supreme Court, in Vinod Kumar Goel, is binding on this Court under Article 141 of the Constitution of India; the State of Uttarakhand was a party to the said order of the Supreme Court; and the learned Single Judge was justified in granting the relief, sought for by the respondent-writ petitioner, in view of the law declared by the Supreme Court in Vinod Kumar Goel .

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In his order dated 04.11.1997/12.11.1997, the Cane Commissioner had observed that there were no separate rules for the employees and officers working in the headquarters, districts, and areas under the Inter-Rural Road Construction Scheme, created under Sugarcane and Sugar Commissioner, Uttar Pradesh, due to which various kinds of difficulties were arising in taking decisions in establishment related cases; and, therefore, it was decided that all the employees and officers of the Inter-Rural Construction Scheme would be covered by the Service Rules, Government Orders, Rules and Regulations, as are applicable from time to time, in equivalent posts of the Cane Development Department. This order, passed by the Cane Commissioner dated 04.11.1997 / 12.11.1997, formed the basis of the order of the Supreme Court in Civil Appeal No. 2511 of 2004 dated 16.04.2004, and in Civil Appeal No. 227 of 2014 dated

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10.01.2014, and the appellant therein was directed to be continued in service till he attained the age of superannuation of 60 years, and to be paid all other consequential benefits.

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The Supreme Court passed the order, in Civil Appeal No. 227 of 2014 dated 10.01.2014, in an appeal preferred against the judgment of a Division Bench of this Court in Writ Petition (S/B) No. 348 of 2005 dated 09.11.2011. The said order of the Division Bench records that Sri Vinod Kumar Goel was made to retire on 31^st July, 2002 at the age of 58 years. In the light of the order of the Supreme Court, in Civil Appeal No. 227 of 2014 dated 10.01.2014, the services of Sri Vinod Kumar Goel was extended from 31.07.2002 to 31.07.2004.

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The order of the Cane Commissioner, on which the appellants place reliance upon, is dated 14.06.2006; and the case of Sri Vinod Kumar Goel related to a period anterior thereto. The validity of the subsequent order of the Cane Commissioner dated 14.06.2006, could not therefore, and did not in fact, arise for consideration in the Civil Appeal before the Supreme Court.

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In his order dated 14.06.2006, the Sugar and Cane Commissioner, Uttaranchal observed that there were no service rules for all employees under the Inter-Rural Road Construction Scheme employed under the Sugarcane and Sugar Industry Department created under the Sugarcane Commissioner of the undivided Uttar Pradesh; keeping in view the difficulties in decision making, in matters related to the establishment of employees under the Scheme, it was arranged, by the order of the Sugarcane Commissioner, that all employees and officers of the Inter-Rural Road Construction Scheme would be covered by the relevant Service Rules, Government Orders, Rules and conditions from time to time, in equivalent posts of the Sugarcane Development Department; employees and officers employed under the Scheme, claiming themselves to be identical to the State employees, were misrepresenting the aforesaid orders of the Cane Commissioner, Uttar Pradesh, though the purpose of the said order was to provide

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decision-making facility on matters related to establishment of employees working under the Inter-Rural Road Construction Scheme; and keeping in view the above mentioned circumstances, and in supersession of all orders passed earlier, it was ordered that, in future, implementation of any Government Order, in the InterRural Road Construction Scheme, would not be made without the permission of the head of the department. The Sugar and Cane Commissioner, Uttaranchal also clarified that any other provision, and order prevailing in this regard, will not qualify any employee / officer, employed under the Inter-Rural Road Construction Scheme, as a Government employee.

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In the counter affidavit filed by the appellants herein, before the learned Single Judge in Writ Petition (S/S) No. 40 of 2018, it was stated that, after creation of the State of Uttarakhand, the Cane and Sugar Commissioner, Uttaranchal had issued a clarificatory order with regards incumbents who were similarly situated as the petitioner; a reference was also made, to the order dated 12.11.1997, in the order dated 14.06.2006; in his representation, the respondentwrit petitioner did not mention the order dated 14.06.2006 passed by the Cane and Sugar Commissioner, which was operating as on date; he had only given reference to the order dated 04.11.1997/12.11.1997, and had claimed parity with Sri Vinod Kumar Goel; at no point of time, did the respondent-writ petitioner mention the order dated 14.06.2006; the only order which was effective as on that date, and was effective on the date of superannuation of the respondent-writ petitioner, was the order dated 14.06.2006 of the Sugar and Cane Commissioner on which the respondent-writ petitioner had not relied upon; therefore, the claim of the respondent-writ petitioner could not be accepted; and the writ petition was liable to be dismissed.

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While Sri Vikas Pandey, learned Standing Counsel for the appellant-State of Uttarakhand, would submit that, by the order of the Sugar and Cane Commissioner, Uttaranchal dated 14.06.2006, the earlier order of the Cane Commissioner dated

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04.11.1997/12.11.1997 stood superseded, Sri Ghanshyam Joshi, learned counsel for the respondent-writ petitioner, would submit that the order of the Sugar and Cane Commissioner, Uttaranchal dated 14.06.2006 does not stipulate that the service rules, applicable to Government employees, would not apply to employees, of InterRural Road Construction Scheme, which was explicitly made applicable by the earlier order of the Sugarcane Commissioner dated 04.11.1997 / 12.11.1997.

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A specific plea was taken in the counter affidavit filed by the appellants herein, in Writ Petition (S/S) No. 40 of 2018, that the earlier order of the Sugarcane Commissioner dated 04.11.1997/12.11.1997 stood superseded by the subsequent order of the Sugar and Cane Commissioner dated 14.06.2006; and, consequently, the rules applicable to Government servants would no longer apply to the employees of the Inter-Rural Road Construction Scheme. This contention appears to have escaped the attention of the learned Single Judge, and the order under appeal was passed in ignorance of the order of the Sugar and Cane Commissioner, Uttaranchal dated 14.06.2006.

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The judgments of the Supreme Court, both in Vinod Kumar Goel (order in Civil Appeal No. 227 of 2014 dated 10.01.2014), and in Civil Appeal No. 2511 of 2004 dated 16.04.2004, were passed in view of the order of the Sugarcane Commissioner dated 04.11.1997/12.11.1997, and the scope of the subsequent order of the Sugar and Cane Commissioner, Uttaranchal dated 14.06.2006 did not arise for consideration therein. The question whether the subsequent order of the Cane Commissioner dated 14.06.2006 would apply to the respondent-writ petitioner, who retired from service on 30.11.2016, necessitated examination in the writ petition.

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Both Sri Vikas Pandey, learned Standing Counsel for the appellant-State of Uttarakhand, and Sri Ghanshyam Joshi, learned counsel for the respondent-writ petitioner, would submit that, instead of examining this question in the present appeal, it would

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suffice if the order under appeal is set aside, and the writ petition is restored to file.

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We consider it appropriate, in such circumstances, to set aside the order under appeal and restore Writ Petition (S/S) No. 40 of 2018 to file.

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The learned Single Judge shall examine, among others, the question whether, in view of the subsequent order passed by the Sugar and Cane Commissioner dated 14.06.2006, the orders of the Supreme Court, based on the earlier order of the Cane Commissioner dated 04.11.1997/12.11.1997, would apply to the case of the respondent-writ petitioner.

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The special appeal is disposed of accordingly. No costs.

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(N.S. Dhanik, J.) (Ramesh Ranganathan, C.J.) 01.05.2019 01.05.2019 Rathour

State of Uttarakhand v. Gopal Singh Bisht

Case brief

What is this about?

What did the court decide?

State of Uttarakhand v. Gopal Singh Bisht

Case brief

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