Fayaz Bukhari
SRINAGAR, Oct 20: In a landmark judgment, the State High Court has held that a Government employee is entitled to pension even for the period during which he was employed on temporary basis.
Justice Tashi Rabstan allowed the writ petition filed by petitioner seeking release of his pension and other retirement benefits, directed the authorities to pay and release the pension and other retirement benefits of deceased, in favour of petitioners, taking into account 14 years’ qualifying service of deceased petitioner within a period of eight weeks.
“For the reasons discussed here, writ petition is disposed of with a direction to respondents to pay and release the pension and other retiral benefits of deceased Ghulam Hassan Baqal, in favour of petitioners, taking into account 14 years’ qualifying service of petitioner (Ghulam Hassan Baqal), within a period of eight weeks from the date of receipt of certified copy of this order”, Court directed.
Accountant General submitted Status Report, in which he stated that petitioner was found not entitled to pension because he had rendered only 14 years’ service and his status was temporary, as such, he was not eligible to pension under Article 177 of J&K Civil Service Regulation.
Court while clarifying on Article 177 of CSR said it has been long since held that pension is property and pensioner has a fundamental right to receive it.
Underscoring the Article 177, Court said that a Government servant is entitled to pension if he is in substantive office on a permanent establishment, or if he holds a substantive office on permanent establishment, or holds temporary, or officiating, including temporary service on temporary establishment or department, or quasi-permanent service and thereafter confirmed in the same or another post.
“His service shall be counted in full as qualifying service except for the period during which he worked as on work charge establishment and/or was paid from contingencies”, Justice Tashi said.
Referring the second proviso to Article 177, Court said it provides that if a Government servant, who has five years or more continuous’ quasi permanent service, has not been confirmed on any post before the date of his retirement, including retirement on invalid pension, he shall be still entitled to count the entire period of quasi-permanent service and continuous temporary service whether on pensionable or temporary establishment/ department and he shall be eligible for pensionary benefits as if the entire period of temporary service and quasi-permanent service were permanent and pensionable.
“This proviso, therefore, leads us to the conclusion that even if a Government servant, whose services have been declared only quasi-permanent and has only five years’ quasi-permanent service, and not declared as a permanent service, is still entitled to pensionary benefits as if the entire period of temporary service and quasi permanent service were permanent and pensionable”, read the judgment.
Court also under Article 177 of CSR said a temporary Government servant who at the time of his retirement from service, or if he is declared permanently incapacitated for further Government service by appropriate medical authority, or who on his death while in service, has rendered temporary service of not less than 20 years, shall, for purposes of all pensionary benefits, be treated to have held a permanent pensionable post in a substantive capacity immediately before his retirement or death as the case may be.
“This clinches the matter as in terms whereof even if Government servant is a temporary Government servant, he is still entitled to pensionary benefits as if he was holding a permanent pensionable post in a substantive capacity immediately before his retirement or death as the case may be”, court said.
Court hence said the authorities objection to not grant pension to petitioner, in the present case, as his status was temporary, does not find favour with third Proviso to Article 177.
Petitioner was working as Assistant Craftsman (ACM) in the Craft Crewel Emb. on contract basis at Baramulla Training Centre (Elementary/Advance) in terms of order dated 1st May 1991 and had initially been appointed as ACM on contract basis vide order dated 1st June 1978, was temporarily placed in the time scale of Rs.900-1830 vide Government Order no.157-Ind of 1991 dated 21st June 1991, issued by Industries and Commerce Department.
In terms of the Government order, sanction was accorded to regularisation of Mater Craftsmen/Assistant Craftsmen, working on contract basis and their placement in the regular scale of Rs.1150-2050 and Rs.900-1830 with change of designation from Master Craftsmen to Senior Instructor and that of Assistant Craftsmen to Junior Instructor.
Thus, petitioner was also designated as Junior Instructor for Training Centre functioning at Bamurda vide Order no.86-HDT of 1992 dated 19th March 1992 and his age was recorded as 57 years on 25th May 1991 as determined in the Age Committee and accepted by Director, Handicrafts.
It is maintained in writ petition that petitioner was examined and his age declared as 50 years as on 25th May 1991, therefore, the age shown in terms of aforesaid order dated 19th March 1992 as 57 years as on 25th May 1991 was contrary to what was determined by Chief Medical Officer, Budgam.
It is pleaded that petitioner’s age determined as 50 years as on 25th May 1991, by Chief Medical Officer, Budgam, respondents had to retire him from service after allowing him to attain the age of 58 years, but sought to retire him from service in the year 1992 itself, forcing him to knock at portals of this Court with writ petition, being SWP no.1400/1992, seeking quashment of entry made in his service record, with further direction to respondents to follow medical report/certificate and record correct age of petitioner in the service records, which had been determined and assessed by medical board.
It appears that vide order dated 4th June 1992, respondents were directed to allow deceased petitioner to continue at his own risk and responsibility till the objections were filed by other-side and considered by the Court.
In view of the direction, petitioner was allowed to continue till final decision of the Court at his own risk and responsibility and in this behalf a letter was addressed by Assistant Director, Handicrafts Department, Budgam, vide no.HD/DDT/3565 dated 29th June 1992. It is also claimed in writ petition that petitioner continued in service and retired on superannuation on 24th May 1999 and therefore, after his retirement he was entitled to retiral benefits, but was not paid.
Referring the full bench judgment, court of Justice Tashi said even temporary or officiating service under the State Government has to be reckoned for determining qualifying service.
“It looks to be illogical that the period of service spent by an employee in a work-charged establishment before his regularisation has not been taken into consideration for determining his qualifying service”, court referred.
Petitioner’s counsel invited attention of the court to article 240-A (IV) which provides that 50% of average emoluments in all cases should be given and the amount of pension so arrived at will be related to the maximum qualifying service of 33 years.
“However, for Government servants, who at the time of retirement, have rendered qualifying service of 10 years or more, but less than 33 years, the amount of pension will be such proportion of the maximum admissible pension as the qualifying service rendered by them bears to the maximum qualifying service of 33 years”.
Court said, a Government employee becomes eligible in case he completes 10 years’ service and 20 years as is required in case of work-charged employees. Government has power of regularizing the deficiency in qualifying service for pensionary benefits in favour of its employees.
Referring the Division Bench ruling in this regard, which held that services rendered by a daily wager before his regularization in the regular pay scale would also qualify for pension.
“In the aforementioned enunciated law of land and analysis legal position, it is crystal clear that even an employee with 10 years’ service, is entitled to pension. For that reason, it would be arbitrary, discriminatory and violative of Article 14 of the Constitution of India to create such a classification, by which an employee, like petitioner, is disentitled of the benefit of pension, in that, it has no nexus with the objective sought to be achieved”, Justice Tashi concluded.
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