V.C.Misra - (1.) -Heard Sri D. K. Srivastava, learned counsel for the petitioner, learned standing counsel and perused the record of the case. Counter and rejoinder-affidavit have been exchanged. On the joint request of learned counsel for the parties, this writ petition is being decided finally at the admission stage itself in terms of the Rules of the Court.
(2.) THE facts of the case of the petitioner in brief are that the petitioner was appointed on 29.12.1966 to the post of Boring Mechanic in the office of the respondents, and his services were regularised w.e.f. 1.4.1975. He was promoted to the post of Junior Engineer on 7.7.1983 and continued to discharge his duties as such till he attained the age of superannuation, i.e., 31.7.2004. THE respondents did not release his post retiral benefits, as pension, Gratuity, G.P.F. etc., therefore, he filed Writ Petition No. 5416 of 2004 before this Court which was disposed of with the direction to the respondents to decide the representation of the petitioner expeditiously. Since his representation was not decided by the respondents in terms of the direction issued by this Court, the petitioner invoked the jurisdiction of this Court in Contempt Petition No. 1048 of 2005 and only when the respondents were directed to appear in person before the Court, the respondents passed order dated 10.5.2005 for payment of retiral benefits, but they wrongly fixed vide impugned order dated 13.9.2005 his salary @ Rs. 6,375 per month for the purpose of his pension against the post of Boring Mechanic, though the petitioner had worked for more than 23 years on the post of Junior Engineer on the ground that the petitioner had not been regularised on the post of Junior Engineer and therefore, he was not entitled for promotional pay scale of Class II. Being aggrieved the petitioner has filed the present writ petition for quashing impugned order dated 13.9.2005 to the extent whereby the petitioner was treated as having retired from the post of Boring Mechanic and he was not entitled to get the benefit of promotional pay scale of Class II. The relief sought in the writ petition is in the nature of mandamus directing the respondents to fix the pension of the petitioner against the post of Junior Engineer and to release Rs. 59,915 as gratuity amount available to him and to fix monthly pension providing increment for the year 2001-2004 after consequential relief. In support of his case the petitioner has enclosed the order dated 31.7.2004 (Annexure-3 to the writ petition) passed by the Block Development Officer, Hollagarh, Allahabad, wherein he has been shown as Junior Engineer in the irrigation department. The impugned order at the bottom has also a reference to the effect that the petitioner had worked on the post of Junior Engineer in stop-gap arrangement and was also paid salary in the pay scale of Junior Engineer. Learned counsel for the petitioner contended that vide order dated 5.12.2005 the respondents illegally and arbitrarily withheld the payment of Rs. 59,915 towards gratuity. This was against the provisions of C.C.R. Rules and in contravention of Article 351 (A) and Article 41 of the Constitution of India. In para 14 of the writ petition it has been stated that junior persons to the petitioner including other similarly situated employees had been awarded promotional pay scale of Rs. 8,000-13,500 w.e.f. 1.4.1997, whereas the said pay scale was not provided to the petitioner arbitrarily and illegally.
(3.) LEARNED counsel for the petitioner has relied upon decisions of this Court passed on 14.12.1999 in Writ Petition No. 3491 of 1988, Abhimanyu Dev Pandey v. State of U. P. and others and on 18.10.2006 in Writ Petition No. 1783 (S/S) 2004, Shamim Ahmad Siddique v. The State of U. P. and others, wherein the incumbents were similarly situated person who had been appointed as Boring Mechanic and thereafter promoted to the post of Junior Engineer on stop-gap arrangement and had worked continuously several years till the date of their retirements. The said writ petitions have been allowed on the ground that they had worked on the post of Junior Engineer for substantial period, which could not be ignored while settling the pension and for payment of other retiral benefits admissible to them. He has relied upon a decision rendered in the case of Dr. Uma Agrawal v. State of U. P. and another, (1999) 3 SCC 438 : 1999 (2) AWC 1486 (SC), wherein it has been held that pension is not a bounty but right of retired employee. Government is obliged to initiate process for payment according to time-schedule prescribed in the departmental rules. Non-observance of the time-schedule is one of the factors which Court may take note of. He has also relied upon a decision of the Hon'ble Apex Court in the case of Vijay L. Mehrotra v. State of U. P. and others, AIR 2000 (2) SC 3513, wherein it has been observed that the State is liable to pay simple interest at the rate of 18% per annum, if the retiral benefits are wrongly withheld. Learned counsel for the petitioner submitted that Office Memorandum No. Sa. 3-1152/Das-915/89, Lucknow, dated 1 July, 1989, was issued by the Government of U. P. for providing retiral benefits to the Government employees who retired without their services being regularised and as to how their services were to be regularised. The Regulation 368 of Civil Service Regulation is not available to the Government servant unless and until he is not regularised on the said post. The aforesaid Government order was issued for the removal of such difficulties, since there was grievance of a lot of retired employees who were working on ad hoc basis in stop gap arrangement and regularisation of their services though had been granted for consideration, but the Government due to fulfilment of certain technicality in the process of regularisation could not do so. The incumbent retired on attaining the age of superannuation and he was deprived of his pensionary benefits. In Clause 2 itself it has been mentioned that the State Government has been pleased to provide the benefit of pension, gratuity and family pension etc., to such Government servants who though had not been regularised but had completed their 10 years regular service and had been retired on attaining the age of superannuation and that they would be treated at par with the permanent employee on the said post. In Clause 3 it has been provided that the said condition shall also be applied in case the incumbent has completed 20 years of temporary service. This order has been made applicable and effective from 1.6.1989 vide the aforesaid Office Memorandum.;