Durga Prasad Gupta vs Union of India and Others

Sujoy Paul, J.—Since matters are similar, on the joint request of the parties, same are analogously heard and decided by this common order. The facts are taken from Writ Petition No. 3026/2004:

The petitioner was retired from State Government department. Thereafter, he was engaged on contract basis in the respondent No. 2-Institution vide order dated 12.6.1998 (Annexure P-4). The petitioner''s appointment was on a consolidated pay of Rs. 3000/- for 90 days. It is contended that this appointment order was extended from time to time. The petitioner has prayed for two fold relief. Firstly, it is contended that the impugned order, Annexure P-1, dated 30.10.2004 is bad in law. By this order, the respondent No. 3 informed the petitioner that his period of extension of service stood expired on 3.10.2004 and, therefore, his services are discontinued. Attacking this order, it is contended that the respondent No. 3 was not competent to discontinue the services of the petitioner. Secondly, it is contended that petitioner is entitled for DA on pension. For this reliance is placed on a Circular of Department of Pension & Pensioners Welfare''s (Government of India) dated 2.7.1999 (Annexure R/4 of WP No. 3084/2004). It is contended that as per clause 2(a) of the said Office Memorandum (OM), the petitioners are entitled for DA of Fifth Central Pay Commission (CPC). Shri Anil Sharma, learned counsel for the petitioners, by taking this Court to the document, Annexure P-20, submits that it is a fabricated document and audit objection needs to be overruled. For this he placed heavy reliance on Annexure P-23 (with rejoinder). On the basis of this document, it is submitted that the petitioner is entitled for the benefit of DA on pension as per Fifth CPC Recommendations.

Per Contra, Shri K.N. Gupta, learned senior counsel submits that the petitioner was a contractual employee and has no right to continue beyond his last extension which was up to 3.10.2004. He supported the action of the employer in not granting the benefit.

I have heard learned counsel for the parties and perused the record.

So far first contention regarding validity of the order dated 30.10.2004 is concerned, a bare perusal of this order shows that the respondent No. 3 has merely communicated that the petitioner''s extended period of service stood expired on 3.10.2004. On that basis, his services were discontinued. There is no material on record to show that the petitioner''s services were extended beyond 3.10.2004 nor there exists any material to show that the petitioner''s services were extended and the same are curtailed by the respondent No. 3. In absence of showing any material that the petitioner had any right to continue on contract basis beyond 3.10.2004, no fault can be found in the communication, Annexure P-1. Thus, the first contention is devoid of substance and is hereby rejected.

So far second contention regarding claim of DA on pension is concerned, a microscopic reading of Annexure P-23 dated 16.1.2004 shows that a proposal was placed before the Director by his office regarding grant of DA to the petitioners. If the said document is examined in juxtaposition to the audit objection, it does not throw light about ultimate decision taken by the respondents on this aspect.

Considering the aforesaid, I deem it proper to direct the respondents to take a final decision on Annexure P-23 regarding grant of benefit to the petitioner by taking into account aforesaid OM, issued by the Central Government dated 2.7.1999. The petitioners shall prefer a representation claiming the aforesaid benefit along with copy of this order. The respondent No. 2, in turn, shall take a final decision on the said representation by taking into account the relevant provisions and Annexure P-23. The said decision shall be taken within sixty days from the date of communication of this order. The outcome shall be communicated to the petitioner. It is made clear that this Court has not expressed any opinion on the merits of the case. If the respondent No. 2 comes to the conclusion that any dues are payable to the petitioners, the same shall be paid within the same time. Petitions are disposed of. No costs.