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2013 DIGILAW 814 (UTT)

GIRISH KUMAR JAGTA v. STATE OF UTTARAKHAND

2013-12-20

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J. Undisputedly, petitioner was given adhoc appointment on the permanent post of Lab Assistant available in Government Ayurvedic College, Gurukul Kangri, Haridwar on 23.04.1976. Perusal of the appointment letter dated 23.04.1976 would reveal that appointment offered to the petitioner was neither a tenure appointment nor was of a limited period. Petitioner gave his joining pursuant to the appointment letter dated 23.04.1976 on 05.05.1976. Petitioner regularly and continuously worked on the post of Lab Assistant in Government Ayurvedic College, Gurkul Kangri, Haridwar and stood retired on 31st July, 2010 on attaining the age of superannuation i.e. 60 years. Petitioner was denied pensionary benefits saying since, services of the petitioner were never regularized or in other words petitioner was never confirmed, therefore, petitioner was not entitled for pensionary benefits. 2. Undisputedly, State of U.P. on 1st July, 1989 has issued one Government Order to the effect that such temporary government employees who have worked continuously and stood retired without confirmation of the services would also be entitled for the pensionary benefits. As per Section 87 of the U.P. Re-organisation Act, 2000, any law made before the appointed day shall be applicable in the State of Uttaranchal (now Uttarakhand) until altered, repealed or amended by the competent Legislature or other competent authority of the State of Uttarakhand. As per section 2 (f) of the Act, “law” includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of Uttar Pradesh. Therefore, in the humble opinion of this Court, Government Order/notification dated 1st July, 1989 has full application within the territory of Uttarakhand in view of the fact it has never been repealed or modified by the State of Uttarakhand after the appointed day. 3. Full Bench of this Court in the case of Madan Mohan chaudhary Vs. State of Uttaranchal and others reported in 2011 (1) U.D. 6 in paragraph 8 and 12 has held as under :- “8) The genesis of receiving a pension is indicated in Article 361 of the CSR. One such condition is that the employment must be substantive and permanent which is reiterated in Article 368 of the CSR. Article 370(ii) excludes periods of service spent in a workcharged establishment for the purpose of calculating the qualifying service. One such condition is that the employment must be substantive and permanent which is reiterated in Article 368 of the CSR. Article 370(ii) excludes periods of service spent in a workcharged establishment for the purpose of calculating the qualifying service. The Government Order dated 01.07.1989 talks about temporary employees in a Government Service retiring without being made permanent, and are therefore not getting pensionary benefits in view of Article 368 of the CSR, which requires an employee to hold a permanent post. Para 2 of the aforesaid G.O. indicates that such Government employee, namely, temporary employees, who have worked for a minimum period of 10 years in a regular service, would be given pensionary benefits in the same manner as given to a permanent employee. A temporary employee, even though temporary is working on a substantive post, though not permanent. In this light, the Government thought fit to include temporary employees for the purpose of receiving pensionary benefits. A workcharged employee is not working on a substantive post and is specifically excluded under clause (ii) of Article 370 of the CSR. Consequently, the period rendered in a workcharged establishment cannot be included for claiming pension. Sub Rule (8) of Rule 3 of the U.P. Retirement Benefit Rules, 1961, supports this view. Said sub Rule defines qualifying service with the note that if a person serves in a pensionable job, then in work-charge establishment, and again there after in regular service, such interruption would not be disqualification. Similar provision is contained in Article 422 of the CSR. 12) In our considered opinion, the Government Order dated 01.07.1989 recognizes only status of a temporary employee on regular post as that of a confirmed employee, for the purposes of pensionary benefits, as is apparent from Para 1 of the Government Order quoted above, in which it is mentioned that many temporary government employees get retired without their services getting confirmed, and they get deprived of pension due to non-confirmation on account of condition mentioned in Article 368 of CSR. To remove the difficulty of such temporary employees they are treated as a confirmed employees by the Government for the purposes of pension. The Government Order nowhere says that it is applicable to workcharged employees who are neither temporary government servants, nor permanent employees. The Government Order dated 1st July 1989, nowhere interferes with Clause (ii) of Article 370 of CSR, quoted above.” 4. The Government Order nowhere says that it is applicable to workcharged employees who are neither temporary government servants, nor permanent employees. The Government Order dated 1st July 1989, nowhere interferes with Clause (ii) of Article 370 of CSR, quoted above.” 4. In view of the dictum of Full Bench of this Court in the case of Madan Mohan Chaudhary (Supra), temporary employees on regular post shall also be entitled for pensionary benefits treating them akin to permanent employees. 5. Mr. Subhash Upadhaya, learned Standing Counsel has placed reliance on the judgment of the Apex Court in the case of University of Rajasthan and another Vs. Prem Lata Agarwal reported in (2013) 3 SCC 705 wherein Hon’ble Apex Court has held that adhoc appointees who continued in service for almost two decades but whose services were never regularized shall not be entitled for pensionary benefits. 6. The careful perusal of the judgment of the Apex Court in the case of University of Rajasthan (Supra) would reveal that there was specific provision to the effect that adhoc employees shall not be entitled for pensionary benefits until and unless their services were regularized/confirmed before attaining the age of superannuation. 7. In the case in hand, Government Order dated 1st July, 1989 has full application which provides otherwise as observed hereinbefore. Therefore, judgment relied upon by the learned Standing Counsel in the case of University of Rajasthan (Supra) has no application in the facts of the present case and is liable to be distinguished. 8. Net result of the observation and discussion made hereinbefore is that petitioner is entitled for pensionary benefits in view of the Government Order dated 1st July, 1989. 9. Consequently, writ petition is allowed. Respondents are directed to compute the pension of the petitioner within eight weeks from today and to release the entire arrears within next eight weeks. If arrears are not released within the period as stipulated hereinbefore in that event, petitioner shall also be paid interest @ 18% p.a. on the arrears from 1st September, 2010 (after one month from the date of superannuation) till the actual payment is released in favour of the petitioner. 10. No order as to costs.