2017 (4) TMI 1540 - HC - VAT and Sales Tax

Entitlement to pension or not - service was pensionable in view of Government Order dated 05.05.2000 or not - HELD THAT - Fundamental Rule 56 in State of Uttar Pradesh is not a piece of subordinate legislation under proviso to Article 309 of the Constitution but it is a provincial principal legislation enacted by Uttar Pradesh Fundamental Rule 56 (Amendment and Validation) Act 1976 (U.P. Act No. 33 of 1976). It clearly declares that a person who retired under Fundamental Rule 56 shall be entitled for retiring pension and other benefits shall be such as applicable in accordance with law. Qualifying service is prescribed under CSR read with Rules 1961 and therein if a person has continued to work for 10 years and more he is entitled for pension. In the present case it was not open to respondents to declare through an executive order that service rendered by petitioner is not pensionable when statute itself declare that retiring pension shall be paid to petitioner or any other person who retire under Fundamental Rule 56 read with Section 10(1)(b) of Act 1948. Petition allowed - decided in favor of petitioner.

Summary

Issues:
Challenge to denial of pension benefits based on Government Order dated 05.05.2000.

Analysis:
The writ petition challenged the State Public Service Tribunal's decision dismissing the claim petition, stating the claimant was not entitled to pension due to the Government Order dated 05.05.2000. The petitioner argued that the service rendered should be pensionable based on the Executive Order and appointment letter. It was noted that the petitioner had completed the qualifying service under the Civil Service Regulations and Retirement Benefit Rules.

The Government Order dated 05.05.2000 was issued, stating that service of selected candidates from the Advocate's quota shall not be pensionable. However, the Fundamental Rule 56 was applicable to every Member of the Tribunal, as per Section 10(1B) of the Act, which provides for retirement benefits to government servants. The Court highlighted that statutory rules cannot be modified by an executive order unless there is a statutory amendment.

Fundamental Rule 56(e) ensured that retiring pension and retirement benefits are available to every government servant who retires under the rule. The Court emphasized that in the absence of a statutory amendment, it was not permissible to declare the service as non-pensionable through an executive order. The Fundamental Rule 56 was considered principal legislation, not subordinate legislation, entitling a person who retired under it to retiring pension and other benefits as per the law.

The Court concluded that the respondents were not authorized to declare the service as non-pensionable through an executive order when the statute provided for retiring pension under Fundamental Rule 56 and Section 10(1)(b) of the Act. Consequently, the writ petition was allowed, setting aside the impugned orders and directing the respondents to pay pension and other retiral benefits to the petitioner in accordance with the rules.