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2013 DIGILAW 1057 (ALL)

State of U. P v. Shiv Dayal

2013-04-08

SATISH CHANDRA, UMA NATH SINGH

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JUDGMENT Dr. Satish Chandra By this appeal, the State has assailed the order dated 26.04.2006 passed by Hon'ble the Single Judge in writ petition No.1909 (SS) of 2005. 2. The brief facts of the case are that the opposite party was engaged on the post of Taqvi Peon in Agriculture Department initially for a period i.e. from 26.01.1973 to 31.07.1975 on ad-hoc basis. When the aforesaid post of Taqvi Peon was abolished under the Government Order, the opposite party was declared surplus. Thereafter, the opposite party was again appointed on the post of Seasonal Collection Peon in Tehsil Gonda on 06.02.1976, where he worked till 30.09.1985 as and when the work was available. 3. On 03.10.1988, the opposite party was appointed as Nazarat Peon in the Collectrate Gonda on ad-hoc basis where he worked till 31.01.2005. He was not regularized during this period as the Government Order dated 03.11.1997, 19.10.2004 and 17.01.2005 have imposed ban against the appointment on Group 'D' Post. It is claimed that the opposite party was working on a clear vacant post. Later, he attained the age of superannuation on 30.01.2005. After the retirement, the opposite party has claimed for the retrial benefits, which were denied by the appellant. Being aggrieved, the opposite party has filed a writ petition before the learned Single Judge, who vide its impugned order has directed the appellant i.e. State, to count the services rendered by the opposite party on the post of Nazarat Peon w.e.f. 03.10.1988 till his retirement i.e. 30.01.2005 for the purposes of pensionary benefits by ignoring the breaks, if any. Not being satisfied, the State-appellant has filed this Special Appeal. 4. With this background, heard learned Standing Counsel for the appellant-State, who submits that the opposite party was never appointed on regular basis against a clear vacancy. He was engaged as Seasonal Collection Peon on the basis of requirement of work for a short period purely on ad-hoc / temporary basis. There was no substantive vacancy till the retirement of the opposite party. Learned Standing Counsel also submits that the learned Single Judge has ignored the provisions of the Government Order in respect of providing post retiral benefits or pension to a retired Government employee. He also submits that the impugned order passed by Hon'ble Single Judge is contrary to the various decisions of the Hon'ble Supreme Court. Learned Standing Counsel also submits that the learned Single Judge has ignored the provisions of the Government Order in respect of providing post retiral benefits or pension to a retired Government employee. He also submits that the impugned order passed by Hon'ble Single Judge is contrary to the various decisions of the Hon'ble Supreme Court. So, he made a request that the impugned order dated 26.04.2006 passed by Hon'ble Single Judge may kindly be set aside. 5. On the other hand, Sri Ashok Pande, learned counsel for opposite party has justified the impugned order. 6. After hearing both the parties and on perusal of record, it appears that prior to 03.10.1988, the opposite party was working as Taqvi Peon in Collectrate, Gonda and thereafter as Seasonal Collection Amin on the basis of availability of work till 30.09.1985 but this period of service was not counted for the purposes of pensionary benefits. So, the services rendered by the opposite party prior to 30.10.1988, requires no comments. 7. However, it is undisputed fact that the opposite party was appointed as Nazarat Peon in Collectrate, Gonda. During the period 03.10.1988 to 31.01.2005 i.e. when the opposite party attains the age of superannuation. During this period, there was a ban imposed by the State Government regarding appointment on Group 'D' post. So, the services of opposite party were not regularized though he was working on clear vacancy. When the ban was lifted, all the peons, even junior to the opposite party, were regularized but by that time, opposite party has attained the age of superannuation. There was no fault on the part of the opposite party. Had there been no ban, he might have been regularized in due course. 8. The 'circumstances' speak for themselves as per maxim RES IPSA LOQUITUR. The opposite party was vigilant about his right and made several requests for regularization but due to the ban imposed by the Government, his case was not considered. In the meantime, the opposite party attains the age of superannuation. For no fault of the opposite party, he could not be denied for the benefit specially when he had continuously worked for a period 03.10.1988 to 31.01.2005. For this period, the opposite party is entitled for getting the post retiral benefits. Thus, there is no irregularly or illegality in the impugned order passed by the learned Single Judge. For no fault of the opposite party, he could not be denied for the benefit specially when he had continuously worked for a period 03.10.1988 to 31.01.2005. For this period, the opposite party is entitled for getting the post retiral benefits. Thus, there is no irregularly or illegality in the impugned order passed by the learned Single Judge. The same is hereby sustained along with the reasons mentioned therein. 9. Thus, the Special Appeal is dismissed.