Neelam Rani vs State Of Punjab & Ors.

Sandeep Moudgil, J

The jurisdiction of this Court has been invoked under Articles 226/227 of the Constitution of India seeking issuance of a writ in the nature of Certiorari for quashing the impugned order dated 16.11.2021 (Annexure P-6), whereby the earlier order dated 26.12.2017, issued vide endorsement dated 05.01.2018 (Annexure P-3), granting regularization and seniority to the petitioner w.e.f. 06.10.1988, was withdrawn and her retiral benefits were directed to be released by treating 13.07.1995 as her regular date of appointment. The petitioner has further sought issuance of a writ in the nature of Mandamus directing the respondents to count her entire service from 22.11.1985 to 31.01.2021 as qualifying service for the purpose of pension and other retiral benefits, and consequently to revise her pension and retiral dues and release the arrears thereof along with interest @ 18% per annum.

The petitioner, Neelam Rani, joined Punjab Roadways as a Ticket Verifier on daily-wage basis on 22.11.1985 and, after termination of her services on 16.07.1986, raised an industrial dispute culminating in an award dated 20.01.1993 whereby the Labour Court, Bathinda directed her reinstatement with continuity of service and back wages w.e.f. 15.04.1991; she was accordingly reinstated in July 1993. Following subsequent proceedings concerning her proposed retrenchment, she was adjusted in the regular pay scale w.e.f. 13.07.1995 and thereafter continued as Ticket Verifier. She sought regularization from 06.10.1988, the date from which her juniors had been regularized, and during the pendency of the proceedings, the Director, State Transport, Punjab, by order dated 26.12.2017, regularized her services and granted seniority w.e.f. 06.10.1988. The petitioner was subsequently promoted as Inspector and retired on 31.01.2021; however, by order dated 16.11.2021, the respondents withdrew the benefit granted by treating 13.07.1995 as her regular date of appointment. Aggrieved, the petitioner filed the present writ petition challenging the order dated 16.11.2021 and seeking counting of her entire service from 22.11.1985 to 31.01.2021 as qualifying service for pension and other retiral benefits, with consequential revision and arrears.

Learned counsel for the petitioner contends that the impugned order dated 16.11.2021, whereby the benefit of regularization and seniority granted to the petitioner w.e.f. 06.10.1988 vide order dated 26.12.2017 was withdrawn after nearly four years, that too without giving any opportunity of hearing, which is arbitrary and unsustainable. It is submitted that the petitioner was senior to employees whose services had been regularized from 06.10.1988 and subsequent dates and, therefore, her regularization and fixation of seniority from 06.10.1988 had been rightly granted by the competent authority. It is further contended that the ground taken for withdrawing the said benefit, namely that objections from other employees of the cadre had not been invited before fixing her seniority, cannot be attributed to the petitioner, particularly when no employee had challenged the order granting her regularization and seniority.

Learned counsel further submits that the petitioner is entitled to have her service rendered prior to regularization counted towards qualifying service for pensionary benefits and to support the said submission, reliance has been placed upon the Full Bench judgment rendered in the case of “Kesar Chand v. State of Punjab and others,” AIR 1988 P&H 265, wherein ad hoc service followed by regular service was held countable for pensionary benefits. Accordingly, exclusion of the petitioner's service from 22.11.1985 to 12.07.1995 for computation of pension and other retiral benefits is assailed as arbitrary and violative of Articles 14 and 16 of the Constitution of India. Moreover, the said order will not only change the date of regularization but also the pensionary benefits, for which the petitioner becomes entitled for after the retirement and hence, the change of date of the regularization of the service of the petitioner is totally arbitrary and illegal.

Learned State counsel submits that the petitioner was initially engaged as a Ticket Verifier on daily-wage basis and, pursuant to the award of the Labour Court, was reinstated with the benefits admissible to her; however, her services came to be regularized only w.e.f. 13.07.1995, whereafter seniority was also assigned to her from the said date vide order dated 13.03.2008. It is contended that although the petitioner was subsequently granted seniority w.e.f. 06.10.1988 vide order dated 26.12.2017/05.01.2018, upon re-examination of the record, the competent authority found the same to be erroneous, as the earlier seniority fixed w.e.f. 13.07.1995 had been determined after considering objections of the concerned Ticket Verifiers. Consequently, a show-cause notice dated 07.08.2019 was issued to the petitioner, to which she submitted her reply dated 26.08.2019, and she was also afforded an opportunity of personal hearing on 18.12.2019 before the impugned order dated 16.11.2021 was passed, restoring her seniority w.e.f. 13.07.1995. It is further submitted that the petitioner is not entitled to count the period from 22.11.1985 to 12.07.1995 as qualifying service for pension and other retiral benefits and that all retiral benefits admissible to her have already been released by treating 13.07.1995 as the date of regularization. The judgment relied upon by the petitioner regarding counting of pre-regular service is stated to be inapplicable to the facts of the present case; hence, the impugned order is asserted to have been validly passed by the competent authority in accordance with the applicable rules and the writ petition is liable to be dismissed.

Learned counsel appearing on behalf of respondent No. 4 submits that the role of the Accountant General (A&E), Punjab is confined to authorization of pensionary benefits on receipt of a complete pension/family pension case duly recommended and sanctioned by the competent Pension Sanctioning Authority, and the determination of qualifying service does not fall within its domain. It is submitted that the petitioner’s pension case was forwarded by respondent No. 3 vide letter dated 31.12.2020 showing her date of appointment as 13.07.1995, on the basis whereof the pensionary benefits were authorized on 17.03.2021. It is further submitted that the question as to what period of service is to be treated as qualifying service for pensionary benefits is required to be determined by the Pension Sanctioning Authority; nevertheless, respondent No. 4 had requested the said authority vide letter dated 18.04.2022 to forward the petitioner’s complete revised pension case, if admissible, and undertakes to finalize the same in accordance with the Punjab CSR as and when such case is received. Accordingly, no independent cause of action is stated to arise against respondent No. 4 and the writ petition, qua the said respondent, is sought to be dismissed.

Having heard learned counsel for the parties and upon perusal of the record, this Court finds that the petitioner was initially appointed as a Ticket Verifier on daily-wage basis on 22.11.1985 and, after termination of her services, was reinstated pursuant to the award dated 20.01.1993 passed by the Labour Court, Bathinda, with continuity and consequential benefits as awarded therein. The record further reveals that the petitioner was subsequently brought on regular establishment and, upon consideration of her claim vis-à-vis her juniors, respondent No.2 passed the order dated 26.12.2017, issued vide endorsement dated 05.01.2018 (Annexure P-3), granting her regularization and seniority w.e.f. 06.10.1988. Significantly, the departmental record itself noticed that employees junior to the petitioner, who had joined service subsequently, had been regularized w.e.f. 06.10.1988 and, on that basis, the petitioner was held entitled to regularization from the same date for the purpose of fixation of seniority. The said benefit was, however, withdrawn vide the impugned order dated 16.11.2021 (Annexure P-6) and her seniority was restored w.e.f. 13.07.1995.

The justification furnished by the respondents for such withdrawal does not commend acceptance. Once the competent authority, after considering the service record and the dates of regularization of similarly situated junior employees, had consciously extended the benefit of regularization and seniority to the petitioner w.e.f. 06.10.1988, the same could not have been withdrawn merely upon a subsequent re-examination without disclosing any substantive legal or factual infirmity in the earlier decision. The official respondents have not disputed that employees junior to the petitioner were regularized from 06.10.1988. The petitioner, therefore, could not be placed below her juniors in the matter of seniority merely because she was formally adjusted against a regular post at a later stage. The impugned action, to that extent, results in an anomalous situation whereby a senior employee is denied the benefit of regular service from the date from which the same stood extended to her juniors. The order dated 16.11.2021 (Annexure P-6), therefore, cannot be sustained merely on the ground that the earlier seniority position had been re-examined.

There is yet another aspect of the matter. The petitioner seeks counting of the service rendered prior to regularization for the limited purpose of qualifying service towards pension. Her regularization having been restored w.e.f. 06.10.1988, the period of service preceding such regularization, to the extent admissible under the applicable service and pension rules, cannot be ignored merely because the employment during that period was on daily-wage basis. Accordingly, the three years of service rendered by the petitioner prior to her regularization shall be counted towards qualifying service for pensionary purposes. This benefit is confined to computation of qualifying service for pension and shall not be construed as granting regular status or seniority for any period anterior to 06.10.1988.

Consequently, the present writ petition is allowed.

The impugned order dated 16.11.2021 (Annexure P-6) is hereby quashed and the order dated 26.12.2017, issued vide endorsement dated 05.01.2018 (Annexure P-3), shall stand restored. The petitioner shall be entitled to all consequential benefits flowing therefrom, including seniority from the date of her regularization, i.e. 06.10.1988. The respondents are further directed to count three years of service rendered prior to 06.10.1988 towards qualifying service for the purpose of pension and to accordingly re-fix/revise her pension and other admissible retiral benefits. Respondent No.4 shall, upon receipt of the revised pension case duly sanctioned and forwarded by the competent Pension Sanctioning Authority, authorize the revised pensionary benefits in accordance with the applicable rules. The consequential exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order.