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2017 (4) TMI 999 - ALLAHABAD HIGH COURT

2017 (4) TMI 999 - ALLAHABAD HIGH COURT - TMI - Retiral benefits from post of Member Trade Tax Tribunal (UPTT) - opposite parties refused to pay the pension - The simple reason given in the impugned order is to the effect that the services are not pensionary - Held that:- the appointment order was issued in the year 1998 and the advertisement was issued in the year 1997. A subsequent Government Order cannot alter the conditions of service unilaterally to the prejudice of the petitioner. - Ju .....

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nt : C.S.C. ORDER 1. This petition has been filed challenging the order dated 22.6.2010 issued by opposite party No.1 and Government Order dated 5.5.2000, contained as Annexure-1 and 1-A respectively to this writ petition. It has been further prayed that the opposite parties may be directed to pay all the pensionary as well as the retiral benefits to the petitioner. 2. The brief facts are as follows: The petitioner who was a Law Graduate registered himself as an Advocate on 20.3.1976. He started .....

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ected on the said post. An appointment letter dated 18.4.1998 was issued to him and he was posted as Member Trade Tax Tribunal Haldwani on a vacant post. After joining at Trade Tax Tribunal Head Quarter, Lucknow on 21.4.1998, the petitioner resumed charge at Haldwani on 22.4.1998. The petitioner served at various place of posting and finally attained the age of superannuation on 30.6.2010 from the department. The petitioner has submitted his paper for retiral benefits to the opposite parties, wh .....

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er of the Trade Tax Tribunal and served the department till the age of superannuation. 4. Learned Standing Counsel has defended the action of the opposite parties on two grounds. Firstly, that the advertisement clearly mentioned that the post on which the petitioner is being invited to apply will be non-pensionable and secondly, that a Government Order was issued on 5.5.2000, which has specifically mentioned that the post of member of Trade Tax Tribunal will not be pensionable, further that the .....

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usal of the advertisement dated 29.3.1997 (contained as Annexure-2 to the writ petition) shows that it does not contain any such stipulation. Sri Tung Nath Tiwari has further argued that advertisement can never be taken as the terms of the appointment and conditions of service. The conditions of service will be governed by the appointment order which has been issued to the petitioner and the same cannot be altered on the basis of the advertisement. The advertisement is always prior to the appoin .....

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al of the appointment order clearly says that Jai Prakash, Advocate (petitioner) is being appointed under the provisions of Section 10 (1) of the U.P. Trade Tax Act, 1948. It will be important to understand the provisions and the conditions given in Section 10 (1) of the said Act. For convenience relevant portion of Section 10 (1) is being quoted here below: "(1) There shall be a Tribunal consisting of such members including a President as the State Government may, from time to time, deem i .....

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advocates unless he has paid income-tax on income from such profession (exclusive of all other incomes) in each of the five consecutive years preceding such appointment. (1-A) The State Government may prescribe such other qualification or conditions for the appointment of the President and the other members of the Tribunal as it may deem fit. (1-B) The provisions of the rule 56 of the U.P. Fundamental Rules shall continue to apply to every member of the Tribunal including the President whether .....

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shall apply to any other government servant. The petitioner has been able to demonstrate that the Uttar Pradesh Government Servants' Conduct Rules, 1956 gives the definition of "Government Servant" and it is also quoted here-below for convenience: "2. (a) xxx (b) "Government servant" means a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh; Explanation- A government servant whose services are placed at the di .....

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f the Fundamental Rules. His services shall therefore be pensionable. Aforesaid Rule 56 (e) is quoted here-below of convenience: "A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant Rules to every Government Servant who retires or is required or allowed to retire under this Rule." 9. Sri Tung Nath Tiwari, learned counsel for the petitioner has forcefully argued that once Rule 56 o .....

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opposite parties, Opposite parties vide their order dated 23.1.2001 started the deduction once again. The order of the opposite parties has been annexed as R.A.-1 in the rejoinder affidavit annexed with the writ petition. The petitioner having obtained the requisite relief from the State Government itself did not press the claim petition any further and moved an application for dismissal of the claim petition as not pressed. The claim petition was therefore, dismissed as not pressed. The petiti .....

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