JKLR-Part(I)                                                    SWP 15/1992                                        Back To Index

(2001) 1 J & K LAW REPORTER
High Court of Jammu and Kashmir
at Jammu
Before
Hon’ble Mr. Justice O.P. Sharma, Judge

Soba Ram                                                                                                                                  Petitioner
                                                                               versus
State of J&K and Another                                                                                                          Respondents

SWP 15 / 1992 decided on 11.9.2000.

Constitution of Jammu and Kashmir, S. 126 - Constitution of India, Art. 311 - Daily wager regularised in terms of Government order w.e.f. 9.2.1984 - Retired from service at the age of 55 years- Awarded retiral benefits under Industrial Laws - Claiming pensionary benefits in terms of Civil Service Regulation-Plea that age of retirement be treated 60 years on the ground that he was member of inferior service - Plea held to be not liable - Petitioner cannot approbate and reprobate - Petition dismissed.

Advocates who appeared in this case:
Mr. Rahul Pant, Advocate for Petitioner
Ms. Seema Sheikhar, Advocate for Respondents
Case referred:
R.N. Gosain v. Yashpal Dhir - AIR 1993 SC 352

JUDGMENT AND ORDER

The petitioner is a retired employee of the Public Works Department. His prayer is that although he was retired from service in the year 1984 but pensionary benefits have been denied to him. Therefore, he seeks a direction to the respondents to grant him pensionary benefits. The undisputed facts of the case are as follows.

2. The petitioner was engaged as Gang Cooli on daily wage basis on 15.07.1956 in PWD (R&B) Division, Basholi. He was brought on regular establishment in terms of the Cabinet Decision no.119 dated 14.03.1980 read with Government order No.PW-458 of 1981 dated 01-09-1981 w.e.f. 09.02.1984. He was retired from service w.e.f. 31-05-1986 on attaining the age of 55 years in term of Article 226 of the Jammu and Kashmir Civil Services Regulation. He approached the Labour Court against his pre-mature retirement. The Presiding officer Industrial Tribunal/Labour Court vide award dated 15.07.1988 awarded him one month’s pay in lieu of notice of retrenchment and 15 months pay as compensation at the rate of Rs.561.40 Ps besides gratuity amounting to Rs. 8421/-. He was also awraded interest at the rate of 12%. So the amount of Rs.16842/- in addition to one month’s pay was awarded to him by the tribunal for his pre-mature retirement. This award has been satisfied.

3. The petitioner now claims pensionary benefits on the ground that he was wrongly retired because he has to retire at the age of 60 years under the proviso to Article 226(1) of the Civil Service Regulation.

4. Contention of Shri Pant is that since the petitioner was wrongly retrenched at the age of 55 years though he had retire at the age of 60 years as he belongs to inferior service, therefore, he is entitled to pension in terms of Article 177-A of the Jammu and Kashmir Cicil Service Regulation.

His other contention is that the petitioner was entitled to regularisation with effect from july 31, 1979 because by that time he had completed five years as Permanent Daily Labourer in terms of Government order dated 14.03.1980.

5. The stand of the respondents is that the petition is not maintainable because the petitioner having obtained benefit under the Industrial Act cannot now claim benefit under the service regulation. With regard to the age of retirement, it is stated that petitioner having not been appointed before 10.10.1966 he had to retire at the age of 55 years and was thus rightly retired. It is further stated that even if is deemed to have regularised from July 1979 he would still not be eligible for pension.

6. During the course of arguments Shri Pant placed on record a copy of a circular dated 29.12.1995issued by the Finance Department. By this circular the provisions of work charged employees service rules 1972 read with Article 177-A of the Jammu and Kashmir Civil Service regulation have been made applicable to contingent paid staff as well.

7. The first question is whether the petitioner belongs to inferior service which alone entitled him to be retained in service up to the age of 60 years. Article 226 of the CSR reads as under:-

"226(1). An officer shall retire compulsorily in his attaining the age of 55 years, unless the competent authority considers him efficient and permits him to remain in service. He may, however, be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds which must be recorded in writing but he must not be retained after the age of 60years except in very special circumstances:

Provided that the Government servants who were in service on 10.10.1966 and were treated inferior as per schedule II will retire on attaining the age of 60 years."

8. It is admitted case of the petitioner that he was entitled to regularisation only as per cabinet Decision No.119 dated 14.03.1980. it is also admitted that he was regularised in February 1984. Assuming that he was regularised with effect from July 31, 1979 even then he was not a Government servant belonging to inferior service because he was only working as permanent or temporary daily labourer. So the argument of Shri Pant that petitioner was entitled to regularisation from July 1979 and not from the date he was regularised is self defeated because if he was to be regularised in terms of Government order he could not be held to be a member of the inferior service as he was not holding any civil post. So he was rightly retired on attaining the age of 55 years.

9. Shri Pant then argued that the petitioner is entitled to the benefit of the Judgment dated 07.11.1991 passed in SWP No.622/1991. This Judgment however has no application because the case was decided on the facts of the cases. It has no application to the facts of this case as it does not lay down any proposition of law.

10. Moreover, having already got the benefit under the Industrial Act the petitioner cannot be allowed to be approbate and reprobate. He cannot now claim any thing more. In R.N.Gosain v. Yashpal Dhir (AIR 1993 sc 352) it has been laid down that:-

"10.Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that" a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage." ( see Verchures Creameries Ltd. V Hull and netherlands Steamship Co.Ltd., (1921) 2 KB 608, at p.612, Scrutton, L.J). According to Halsbury’s Laws of England, 4th Edn.,Vol.16."after taking an advantage under an order (for example) for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside." (Para 1508)."

This applies to the facts of the case.

11. Lastly, there is a question of delay. The petitioner has retired in 1984. He did not challenge the order of retirement. Instead he claimed benefit under Industrial Law. This petition was filed in 1992, almost more than eight years after his retirement. In case he was entitled to pension perhaps the delay and latches would not come in his way. But since he has not rendered qualifying service he cannot be permitted to challenge the order of retirement after eight years. Lastly the PDL employee are entitled to pension only if they satisfy the requirements of Article 177-A of the J&K Civil Service Regulations which reads as under:-

"177-A. Notwithstanding anything contained in Art.177-A work charged employee who is brought on regular establishment and retires without having been declared substantive or quasi-permanent, shall be allowed to count 50% of his work-charged service as qualifying for pension together with the period of service rendered on regular establishment. If the total of the two spells is 20 years or more, he will be eligible for pension under proceding proviso."

So the petitioner has to prove that he had atleast rendered 30 years service before he was regularised. It is admitted that he was engaged in 1956. Even if he is regularised with effect from July 1979 he would have rendered 24 years service before regularisation. So 50% of this would be 12 years. From 1979 to 1984 the period would be five years. So it will come only between 16 years to 17 years. He cannot make out the deficiency. So on this count also he cannot claim pension. Since he was retired on the date he was to retire in terms of the proviso, the petition is dismissed accordingly.