HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 1090 (S/S) year 2003 Heera Ballabh Bhatt & 80 others Versus State of Uttaranchal and 7 others Approved for reporting. _______________________ Not approved for reporting Date of decision. 3.11.2003 Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL. Writ Petition No. 1090 (DS/S) 2003 CIVIL SIDE: Heera Ballabh Bhatt & 80 others. ….. Petitioners. Versus State of Uttaranchal & 7 others. ….. Respondents. Hon’ble Rajesh Tandon-J. By the present writ petition the petitioners have prayed for the issue of a writ, order or direction in the nature of mandamus directing and commanding the respondents to release the pension of the petitioners as they were getting before 31st of July,2003 and also direct the respondents to pay it continuously by month to month. The facts giving rise to the present writ petition are that the petitioners retired as employees of U.P. Jal Nigam before 7th of November, 2002. They were getting the pension and all of a sudden the pension has been stopped from 31st of July 2003 in pursuance of the order dated 30.08.2003. The order dated 30.08.2003 provides as under: “isU”kulZ dks isU”ku Hkqxrku fd;s tkus ds lEcU/k esa mRrjkWpy` 'kklu }kjk fy, x;s fu.kZ; ds vuqlkj fnukad 7-11-2002 ls iwoZ m0iz0 ty fuxe ds eSnkuh laoxZ ds lsokfuo`r dkfeZdksa dks isaU”ku dk Hkqxrku m0iz0 ty fuxe }kjk fd;k tkuk gS] ,oa mRrjkapy is;ty fuxe dk nkf;Ro ioZrh; milaoxZ ds lsok fuo`r dkfeZdksa dks iasU”ku Hkqxrku rd gh flfer jgsxkA vr% fnukad 07-11-2002 esa iwoZ lsok fuo`r iZorh; milaoZx ds dkfeZdksa dh lwph bl vk”k; ls layXudj izsf"kr dh tk jgh gS fd mDr lwph esa vafdr lsok fuo`r dkfeZdksa gh fnukad 31-7- 2003 ds i'pkr iasU”ku dk Hkqxrku fd;k tkuk tkjh j[kk tk;s” A layXu mijksDrkuqlkj A A perusal of the aforesaid order dhows that a cut off date was given as 7th November,2002. The Chief Engineer, Uttaranchal Pey Lal Sansthan Vikas Avam Nirman Nigam has expressed his inability to pay the pension to the employees who were not of the Hill sub cadre and has retired from the Plane cadre before 7th of November,2002. According to them U.P. Jal Nigam is only responsible for payment of the pension to the employees of the plane cadre after 7th of November,2002. The counsel for the petitioners has stated that the petitioners were continuously getting their pension from the State of Uttaranchal till January, 2003. From 1st of February, 2003 the pension to the employees have been stopped those who have retired before 7th of November,2002. The cut off date has been shown because of the fact that the Uttaranchal Pey Jal Sansthan Vikas Avam Nirman Nigam was constituted on the said date. The petitioners have stated that they have served valuable services for the last 32 – 35 years and now at the age of 65 – 70 years the respondents have illegally stopped their pension. The petitioners have also referred the letter dated 24th March 2003 which has been annexed as Annexure IV to the writ petition where it has been specifically mentioned that by virtue of the U.P. Reorganization Act all those employees who have retired before 7th November,2002 will be getting their pension from Uttaranchal. The relevant letter dated 24th March,2003 is quoted below: “ bl dk;kZy; ds Kki fnukad 15-11-2002 }kjk mDr ds vfrfjDr ;g Hkh vf/klwfpr fd;k x;k Fkk fd vf/klwpuk la[;k 2231@uh&2 ¼12vf/k0½@2001nsgjknwu fnukad 07 uoEcj] 2002 }kjk vaxhd`r] mRrj izns”k ty lEHkj.k ,ao lhoj O;oLFkk vf/kfu;e&1975 ds v/;k;&4 o mRrj izns”k iquZxBu fo/ks;d&2000 ds v/;k;&6 esa fn;s x;s izkfo/kkuksa ds v/;k;h mRrj izns”k ty fuxe dh lh0 ,.M Mh0,l0 dh bdkbZ;ksa dks NksM+dj vU; leLr bdkbZa;ksa ,ao muesa fufgr ijlEifRr;ksa] muls lEcfU/kr vkfLRk;ksa ,oa nkf;Ro] mDr vf/klwpuk fnukad 07-11-2002 ls mDr vf/klwpuk dh /kkjk&3¼1½ ds vUrxZr l`ftr mRrjkapy is;ty lalk/ku fodkl ,oa fuekZ.k fuxe dks ladzkar fd;s tkrs gSA” mRrj izns”k iquZxBu fo/ks;d&2000 ds v/;k;&6 dh /kkjk&42¼2½ es ;g Li"V izkfo/kku nf;k x;k gS fd mRrj izns”k 'kklu ds }kjk iwoZ esa fy, x, fu.kZ;ksa o ikfjr vknsa”kksa ds vk/kkj ij (Successor State (mRrjkapy jkT;) leLr ykHk izkIr djus dk vf/kdkjh rFkk leLr foRrh; Hkkj ogu djus dk mRrjnk;h gksaxk A vr% mDr izkfo/kku ds vulkj mRrj izns”k ty fuxe ds fnukad 07-11- 2002 ls iwoZ lsokfuo`Rr vf/kdkjh@deZpkjhx.k] tks fd mRrjkapy jkT; ls lEc) gq, dk;kZy;ksa ls ias”ku izkIr djrs pys vk jgs gS] os mlh izdkj mRrjkapy jkT; ds [kpsZ ij gh mUgh dk;kZy;ksa ls ias”ku izkIr djrs jgsaxs” A Thereafter another clarification was made by the Director Finance U.P. Jal Nigam where from the U.P. Jal Nigam a direction was made to pay the pension is quoted below: “mijksDr ifjfLFkfr;ksa ,oa lwpukvksa dks n`f"Vxr j[krs gq;s vkils vuqjks/k djuk gS fd tc rd bl fo”ks’k izdj.k esa dksbZ leqfpr fu.kZ; ugha gks tkrk gS rc rd iwoZ dh HkkWfr ias”kujksa dks isa”ku dk Hkqxrku vius Lrj ds djkus dh d`ik djsa A bl lEcU/k esa tks nkf;Ro nksuks jkT;ksa ds e/; ns; gksxk mlds lek/kku gsrq fu.kZ; lqfuf”pr dj fy;k tk;sxk”A layXu&;Fkksifj A The reminders were sent to pay to pension to the petitioners by the Secretary, Uttaranchal Shasan to the Chief Engineer,, Pey Jal Nigam, Dehradun on 1st of May,2003. A direction was also made by the Secretary concerned to pay the amount of pension. The same is quoted below: “ mi;ZqDr fo"k;d 'kklukns”k la0&662@ukS-&2&is0@2003 fnukad 25 vizSy 2003 ds dze esa eq>s ;g dgus dks funsZ”k gqvk gS fd fnukad 7-11-2002 ds iwoZ m0iz0 tu fuxe ds eSnkuh laoxZ ds dkfeZdksa ftUgsa tuojh 2003 rd mRrjkapy is;ty fuxe }kjk ias’ku dk Hkqxrku fd;k tk jgk Fkk] mu dkfeZdksa dks ekuoh; vk/kkj ij vkxkeh rhu ekg vFkkZr 31-7-2003 rd iwoZor~ ias”ku dk Hkqxrku mRrjkapy is;ty fuxe ls fd;k tkrk jgsxk” A Counsel for the petitioners has stated that complete list of plane cadre as well as Hill Sub cadre have also been submitted before the Pey Jal Nigam. The petitioners have also brought to the notice of the court that they have also given their options at the time when the options were invited on account of creation of U.P.Hill Sub Cadre Rules 1992 and all the officers/employees have submitted their options on the competent authorities time to time. Before creation of Uttaranchal State the petitioners were working in Uttar Pradesh Jal Nigam but they have been posted in Hill stations and they have given their options under Hills Sub Cadre Rules, 1992, which were duly accepted by the respondents authorities. After the creation of Uttaranchal Stated Hill Sub Cadre is being abolished no question of Hill Sub Cadre or Plane Cadre arises The petitioners have also referred section 42 Part 6 which is quoted below: “Section 42. (1) The provisions of this part shall apply in relation to the apportionment of the assets and liabilities of the existing State of Uttar Pradesh immediately before the appointed day. (2) The successor States shall be entitled to receive benefits arising out of the decisions taken by the predecessor State and the successor States shall be liable to bear the financial liabilities arising out of the decision taken by the existing State of Uttar Pradesh (3) The appointment of assedts and liabilities would be subject to such financial adjustment as maybe necessary to secure just, reasonable and equitable appointment of the assets and liabilities amongst the successor States. (4) Any dispute regarding the amount of financial assets and liabilities shall be settled through mutual agreement, failing which by order by the Central Government on the advice of the Comptroller and Auditor-General of India.” So far as the liability of the pension is concern the same has been extended to the State of Uttaranchal by virtue of section 54 of the Reorganization Act. Section 54 is quoted below: “Pensions- The liability of the existing State of Uttar Pradesh in respect of pensions shall pass to, or be apportioned between, the successor State of Uttar Pradesh and Uttaranchal in accordance with the provisions contained in the Eighth Schedule to this Act.” For that purpose the Eighth Schedule has been introduced which provides for the adjustment of the successor state in regard to the pensions. Clause (a) of Eighth Schedule is relevant and the same is quoted below: “Subject to the adjustments mentioned in paragraph 3, each of the successor States shall, in respect of pensions granted before the appointed day by the existing State of Uttar Pradesh, pay the pensions drawn in its treasuries.” Similar controversy came up for interpretation in Surendra Singh Negi Vs State of Uttaranchal reported in 2003 Uttaranchal Decisions page 423 where the Division Bench of the Uttaranchal High Court has considered the grievance of the pensioners are according to the opinion of the Division Bench the pensioners can not be debarred from their pensions merely as the formation of Uttaranchal Dpey SDJal Sansthan. The observations of the Division Bench is quoted below: “We find merit in the writ petition. Prior to 9th November, 2000, in the Nigam, employees were categorized in the two cadres,namely, hill cadre and plane cadre for the purpose of seniority, promotion and reservation, however, such classification cannot be applied to pension. On the cut off date,i.e. 7th November, 2002 for purpose of pension, all employees belong to the Nigam. For pension one cannot have hill cadre and plane cadre. For purpose of pension, there cannot be any difference. When an employee retires from the Nigam, he is entitled to pension for the number of years of service he has put in the Nigam. Pension is not a bounty. It is a valuable right. In the circumstances, there is no rational in categorizing the employees of the Nigam, for the purposes of pension, between hill cadre and plane cadre. One cannot see any object behind such unreasonable classification. If the argument of the Nigam is accepted, it would led to a very bad precedent. In future, the Nigam will also pay different sets of salaries depending on the cadre to whih an employee belongs, that is not permissible. Such discrimination is arbitrary and unreasonable. As far as gratuity and pension are concerned, the above classification into cadres cannot be permitted. Ultimately, all are employees of the same Organization in the matter of gratuity and pension. Under the U.P.Reorganization Act 2000, assets and liabilities are required to be apportioned between Uttaranchal Pey Jal Sansthan Vikas Avam Nirman Nigam and U.P.PeyJall Nigam. Under that Act, Governments/ Organizations of the two states have to shear their liabilities and assets. Therefore, if there is any claim surviving in favour of Uttaranchal Pey Jal Sansthan Vikas Avam Nhirman Nigam, it can enforce such its claim against its counter part in U.P. But on that ground, the Nigam in Uttaranchal cannot stop payment to the pensioners (petitioners)” There was a specific direction in the aforesaid judgment that the pension is a valuable right and there isno rational in categorizing the Nigam between hill cadre and plane cadre. It has further been observed that the two states have to share their liabilities and assets. It has also been observed by the Division Bench that if there is any claim surviving in Uttaranchal Pey Jal Sansthan Vikas Avam Nirman Nigam it can endorce such claim against its counter part in U.P. But on that ground it can not stop the payment to the pensioners. Pension of the petitioners was earlier stopped from 1st of February,2003 and now again has been stopped from 1st of July,2003. Although the petitioners were given pension between 1st of February,2003 to June 30,2003 but subsequently no pension was paid to the petitioners. In 1985 (1) S.C.C. 429 State of Kerala and others Vs M. Padmanabhan Nair the Hon'ble Supreme Court has held that pension is a valuable rights and property in their hands which the petitioner has right to claim by virtue of the continuous services rendered by them. The observations are quoted below: “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 decision 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.” The aforesaid judgment of the Apex Court has also been followed in JT 1999(2) SC 359 Dr. Uma Agrawal Vs State of U.P. & Another and has held as under: “Now-a-days, several writ petitions are being filed in this court and various High Courts seeking relief for disbursement, of retrial benefits, because of inordinate delays in payment of these benefits. As Krishna Iyer,J, stated in State of Maysore Vs C.R.Sheshadri & others (1974(4) S.C.C. 308), ’a retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the pecuniary expectation of the superannuated public servant- not unusual in government’, it is becoming necessary to issue directions, in several cases, for early payment of these dues. In yet another case in State of Kerala and others Vs M. Padmanabhan Nair (1985 (1) SCC 429) this court had occasion to point out that usually ‘the delay occurs by reason of non-production of the I.P.C. (last pay certificate) and the N.L.C. (no liability certificate) from the concerned departments’ but both the documents pertain to matters, records whereof would be with the concerned government departments. It was observed that in as much as the date of retirement of every government servant was very much known in advance, it was difficult to appreciate why the process of collecting the requisite information and issuance of the abovesaid two documents should not be completed well before the date of retirement so that the payment of gratuity amount could be made on the date of retirement or on the following day and the pension, at the expiry of the following month. This court stated that the necessity for prompt payment of the retirement dues to a government servant immediately after his retirement could not be over emphasized and it would not be unreasonable to direct that there would be a liability to pay penal interest on these retirement benefits. In several cases, decided by this court, interest at the rate of 12% per annum has been directed to be paid by the State.” The petitioners, therefore, are entitled for the pension as they were getting earlier. The order dated 30th August, 2003 has already been set aside in writ petition No.476 of 2003. The writ petition, therefore, is allowed. The order dated 30th August,2003 is quashed. A writ of mandamus is issued directing the respondents to release the pension as they were getting before 31st of July,2003. With the above observations the writ petition is allowed. There will be no orders as to costs. Dated: 3.11.2003 (Rajesh Tandon, J.) Negi