Allahabad HC sets aside order denying post-retirement benefits to Dalit employee

The Allahabad High Court has set aside an order which denied a retired Scheduled Caste employee his pensionary benefits and other retiral benefits just because there was no Annual Confidential Report on him.

A Single Bench of Justice Neeraj Tiwari heard the petition filed by Lal Chand.

The petition has been filed seeking following reliefs:-

“v) Issue appropriate writ, order or direction in the nature of certiorari quashing the order dated 07.01.2021 passed by respondent No 4.

17. vi) Issue appropriate writ, order or direction in the nature of mandamus directing the respondents to treat the service of petitioner from the date of his promotion (17.08.1999) on the post of Assistant Development Office (Cooperative) as qualifying service for pension and release the pension and other retiral benefits of the petitioner.”

The counsel for the petitioner submitted that petitioner was appointed to the post of Cooperative Supervisor in District Ballia on 21.07.1978 under Schedule Caste Category.

In the seniority list of Cooperative Supervisors, petitioner was at Serial No 699 while some juniors to petitioner, who were at Serial Nos 702, 704, 709 & 710 in the same seniority list, were promoted from the post of Cooperative Supervisor to the post of Assistant Development Officer (Cooperative).

The petitioner was not promoted due to the lack of Annual Confidential Report (ACR) compelling him to file writ petition before the Court which disposed of the order dated 08.01.1999 directing respondent-authorities to consider the grievance of petitioner. Thereafter, petitioner has filed representation, which was considered by respondent-authorities and petitioner was temporarily promoted to the post of Assistant Development Officer (Cooperative) vide order dated 17.08.1999 subject to confirmation of promotion by the Departmental Promotion Committee.

It is next submitted that the case of petitioner was never placed before the Departmental Promotion Committee (DPC) and petitioner has retired from service on 31.07.2014. On the date of his retirement, order dated 31.07.2014 was passed mentioning therein that service rendered by the petitioner on ad hoc basis cannot be considered for grant of pensionary and other retiral benefits. In the very same order, it is accepted that officers junior to the petitioner have been given the said benefits.

The petitioner has challenged the order dated 31.07.2014, which was disposed of by this Court vide order dated 04.11.2020 with direction to reconsider the case of petitioner in light of fact that juniors to the petitioner have been provided all benefits, which are claimed by the petitioner.

During the pendency of the petition, after retirement of petitioner, DPC was conducted on 04.01.2017 by UP Public Service Commission and promotion of petitioner was confirmed and his service was also regularized against the vacancy of recruitment year 2007-08. A direction was also sought vide letter dated 27.02.2019 from respondent No 2-Registrar Cooperative Societies about the payment of post-retiral benefits to the petitioner on the basis of regularization.

In compliance with the order of the Court dated 04.11.2020, the petitioner moved representation dated 11.11.2020 along with certified copy of order for release of pensionary and other retiral benefits considering his promotion from the date his juniors were promoted.

Complying order dated 04.11.2020 passed in writ petition of 2014, impugned order dated 07.01.2021 has been passed rejecting the claim of petitioner.

The counsel for petitioner assailed the impugned order basically on two grounds. He firstly submitted that for the purpose of retiral benefits, service of petitioner is governed by the provisions of The Uttar Pradesh Retirement Benefits Rules, 1961, therefore, qualifying service includes continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation on the same or any other post. Undisputedly, the petitioner was continuous in service and ultimately, he was temporarily promoted to the post of Assistant Development Officer (Cooperative) vide order dated 17.08.1999, therefore, for the pensionary benefits, service rendered by the petitioner in temporary or officiating capacity must have been considered while calculating qualifying service.

The second ground so taken by the counsel for the petitioner is that, it is admitted fact that juniors to petitioner who have been promoted in 1994 have also been granted all pensionary and post retiral benefits calculating the qualifying service in light of Rule 3(8) of Rules, 1961, therefore, there cannot be a discrimination in the matter of petitioner.

Per contra, Standing counsel opposed the submissions of the counsel for the petitioner, but could not dispute this fact that juniors to petitioner have been given promotion and also all pensionary and retiral benefits given to them, which are claimed by the petitioner.

He only submitted that earlier service of petitioner was governed by The Uttar Pradesh Qualifying Service For Pension And Validation Ordinance, 2020 when he was working on the post of Cooperative Supervisor whereas after promotion on the post of Assistant Development Officer (Cooperative), his service was governed by Rules, 1961, therefore, he is not entitled for the pensionary and other retiral benefits as claimed by him.

Standing counsel could not dispute that service of juniors to petitioner, who were granted promotion earlier, were also governed by the provisions of Ordinance, 2020 as well as Rules, 1961, but they have been given all the benefits. He also admitted that while promotion was granted to the juniors to petitioner, A.C.R of petitioner was incomplete, for which petitioner is not responsible.

The Court held that,

Facts of the case are undisputed. In the seniority list, petitioner was higher in rank to the other employees, who had been promoted prior to petitioner. It is also undisputed that promotion of petitioner was not considered only due to unavailability of ACR, for which petitioner was not responsible.

So far as this case is concerned, it is on much better footing than the cases so relied upon by counsel for petitioners. There is no dispute upon the appointment of petitioner on the post of Cooperative Supervisor in District Ballia on July 21, 1978 coupled with this fact that he was senior to others who have been granted promotion on the post of Assistant Development Officer (Cooperative) and petitioner has not been promoted only due to unavailability of ACR, for which he is absolutely not responsible.

Further, the order dated 17.08.1999, petitioner has been granted ad hoc promotion and his service was also regularized vide meeting of DPC dated 04.01.2017 against the vacancy of the recruitment year 2007-08 without assigning any reason as to why he has not given promotion/regularization from the date his juniors were promoted and ultimately, he was deprived from the pensionary benefits and other retiral benefits, which is absolutely bad in law and in teeth of Rules, 1961 as well as law laid down by the Apex Court and the Court.

In fact, in light of Rule, 3 (8) of Rules, 1961, qualifying service is derived from Article 368 of the Civil Service Regulations coupled with continuous temporary or officiating service under the Government of Uttar Pradesh and ultimately, confirmation on the same post or any other post without interruption. Irrespective of the date of promotion/regularization, for the purpose of pension, his all service period has to be considered, if it is in accordance with Rule 3(8) of Rules, 1961 and there cannot be any other interpretation for the same.

Therefore, apart from many other grounds, this alone is sufficient to grant full pensionary benefits to the petitioner considering his continuous service started from his appointment on the post of Cooperative Supervisor to his superannuation on the post of Assistant Development Officer (Cooperative). There is also no dispute on this point that once petitioner is not at fault, he is fully entitled for all pensionary and other retiral benefits from the date his juniors were promoted.

“In the case, petitioner has not been promoted due to want of ACR, and his service was not regularised, but later on he has been promoted/regularized from a later date from which his juniors were promoted/regularized is bad and cannot be accepted. It is required on the part of respondent-authorities to grant notional promotion as well as regularization from the date his juniors were awarded promotion and regularization. Therefore, under such facts of the case as well as law laid down by the Court, impugned order dated 07.01.2021 is bad and hereby set aside,” the Court observed while allowing the writ petition.

The Court directed that the Respondent-authorities grant full pensionary and other retiral benefits to the petitioner considering his full service i.e from the date of appointment to the date of superannuation as qualifying service for grant of retiral benefits. Further, petitioner shall also be entitled for all other financial benefits, which have been granted to his juniors treating him notionally promoted/regularized from the date his juniors were promoted/regularized.

Courtesy : India Legal

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