RAM TIRATH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner who retired from the service of Municipal Corporation, Amritsar (respondent No. 3) (Corporation-for short), in this petition under Articles 226/227 of the Constitution of India seeks a mandamus for directing the respondents to count the entire service rendered by him from his initial appointment with the Municipal Committee, Amritsar effect from December 1961 upto the date of his superannuation on 31.10.1999 with the Corporation as "qualifying service" for the purpose of pension instead of counting it from 1.8.1975 i.e., the date from which he was confirmed and provident fund deductions were made and also for disbursing the arrears due to him with 18% interest.

(2.) The petitioner was initially appointed as Oilman in the Department of Public Health in the Municipal Committee, Amritsar in December 1961. Later, the Municipal Committee was made into a Municipal Corporation in terms of the Punjab Municipal Corporation Act, 1976 (1976 Act - for short) which was published in Punjab Government Gazette Extraordinary Legislative Supplement Part-I dated 1.1.1977. The designation of Oilman was later on changed to Assistant Tube-well Driver. The petitioner was promoted from Assistant Tube-well Driver to the post of Tube-well Driver. In the year 1985, the petitioner was posted and adjusted as Water Meter Repairer in the same grade by the Corporation vide its Resolution No. 591 dated 24.7.1985. The petitioner was contributing towards provident fund with effect from August, 1975. In fact, he had been pressing upon the Municipal Committee from his initial appointment that his contribution towards provident fund be deducted from his salary. However, the Municipal Committee did not do so and it is in the year 1975 that deduction were made as contribution of the petitioner towards provident fund. The State Government on 26.7.1994 published the rules known as the Punjab Municipal Corporation Employees Pension and General Provident Fund Rules, 1994 (for short - 'the Pension Rules 1994') which came into force with effect from 1.4.1990. In terms of the said Pension Rules, an option was given to the employees who were in service of the Corporation (respondent No. 3) between 1.4.1990 to the date of enforcement either to opt for provident fund or for pension. In case an employee opted for pension he was required to refund the contribution made by the Municipal Corporation (respondent No. 3) alongwith interest. The petitioner exercised his option for pension and he deposited all arrears of provident fund from December 1961 to August 1975 including the interest thereon till the date of his retirement on 31.10.1999 as per the order dated 23.12.1998 passed by the Assistant Commissioner (T), Municipal Corporation, Amritsar (respondent No. 3). The petitioner, who has now on 31.10.1999 retired from service of the Municipal Corporation (respondent No. 3) on attaining the age of superannuation, claims that his "qualifying service" for pension is more than 33 years which is liable to be counted from December, 1961 and not from August 1975, as has been counted by the respondents. Hence, the present writ petition for the counting of his entire service for the purpose of pensionary benefits.

(3.) Notice in the case was issued and the Joint Secretary to Government of Punjab Department of Local Government filed reply on behalf of the State of Punjab (respondent No. 1) and the Director, Local Government (respondent No. 2). A separate reply in the form of the affidavit of the Commissioner, Municipal Corporation, Amritsar was filed on behalf of respondent No. 3. In the replies filed, the stand that has been taken is that when the petitioner was appointed in the Municipal service, there was no pension scheme in existence. The services of the municipal employees were covered by the Contributory Provident Fund Rules (CPF Rules - for short) as enunciated in Chapter XVI of the Punjab Municipal Account Code 1930 read with the Payment of Gratuity Act, 1972. It is on the demand of the employees, that the Department of Local Government notified the pension scheme in the official gazette on 29.7.1994 and in pursuance of which the Pension Rules 1994 came into force and were made applicable w.e.f. 1.4.1990. The Municipal Corporation, Amritsar (respondent No. 3) stated that the petitioner was appointed as per Committee's resolution No. 1051-Z-1053 dated 8.11.1960 as Oilman. His probation period was extended for one year vide resolution No. 279 dated 16.6.1970 and he was confirmed by the date of Administrator's order dated 2.4.1975. The petitioner, it is stated, was confirmed on regular basis from 1.8.1975. On confirmation the contributory Provident Fund CPF rules and the Payment of Gratuity Act, 1972 applied to him. Accordingly his provident fund deductions from his pay were started from the said date of confirmation. It is stated that the provident fund deductions from 1961 to July 1975 were deposited in the pension fund which was contrary to the provisions of Pension Rules 1994 which were in force from 1.4.1990. There was no provision in the Pension Rules, which were in force from 1.4.1990. There was no provision in the Pension Rules, 1994 which required the deposit of contribution for the non contributory period from December, 1961 to August 1975. The orders of the Assistant Commissioner (T) were violative of the Pension Rules 1994 and accordingly the amount deposited by the petitioner for the period from December 1961 to July 1975 was refunded. Annexure R1 has been placed on record to clarify this position. It is further stated that Rules 1 and 5 of the Pension Rules 1994 make it amply clear that the service qualifying for pension starts from the day an employee opting for the said rules started contributory towards pension fund and any period not covered by the CPF Rules and Pension Rules 1994 is not to count for pension. Therefore, it is prayed that the writ petition be dismissed.