Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2833 (ALL)

RAMANAND CHAUBEY v. STATE OF U. P.

2015-09-10

MAHESH CHANDRA TRIPATHI

body2015
JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard Shri R.B. Tripathi, learned counsel for the petitioner and Shri H.C. Pathak, learned Standing Counsel for the State respondents. 2. By means of present writ petition, the petitioner has prayed for quashing the impugned order dated 26.12.2011 (Annexure 14 to the writ petition) passed by the respondent No. 3 and further to grant all consequential benefits to him. 3. Brief facts giving rise to the present case are that the petitioner was appointed as Seasonal Collection Amin on 1.7.1978 and he continued till 30.9.1981. Thereafter, the petitioner was appointed on 20.3.1982 on a temporary post of Collection Amin and continued till his retirement i.e. 31.12.2011. The service book of the petitioner had been prepared by the respondents wherein the nature of appointment of petitioner had been mentioned as ‘temporary’ and nature of post as ‘substantive’. The petitioner had been given benefit of annual increment, earned leave and the benefit of pay fixation in the consequence of Vth Pay Commission in the year 1996. In this regard, the service book of the petitioner has been filed as Annexure 1 to the writ petition. The respondents have regularized the service of the petitioner under the provision of U.P. Collection Amin Service Rules, 1974 and the selection committee recommended for regularization of the petitioner alongwith respondent No. 4 by a common recommendation order dated 2.5.2003 which was approved by the District Magistrate on 3.5.2003. On assumption of wrong facts, the respondent No. 2 vide common order dated 2/3-8-2003 had cancelled the regularization of the petitioner alongwith respondent No. 4. Being aggrieved with the cancellation order dated 2/3-8-2003, the petitioner had filed Writ A No. 28865 of 2004 (Ashok Kumar and others v. State of U.P. and others) in which stay order was granted and the said writ petition was disposed of vide order dated 4.9.2009 with following observations : “The petitioners who were Seasonal Collection Amins have sought regularisation under 35 percent quota provided under Rule 5 (1) of the U.P. Collection Amin Service Rules, 1974. Earlier, the petitioners had approached this Court by filing writ petition No. 19850 of 1993 and this Court directed the authority concerned to regularise the services of the petitioners within specified time as per the select list prepared by the authority, but one of the selected candidate is said to have expired, therefore, the entire selection was cancelled. Earlier, the petitioners had approached this Court by filing writ petition No. 19850 of 1993 and this Court directed the authority concerned to regularise the services of the petitioners within specified time as per the select list prepared by the authority, but one of the selected candidate is said to have expired, therefore, the entire selection was cancelled. One of the petitioner in the aforesaid writ petition had filed writ petition No. 59738 of 2005, Ram Uchhah Verma and another v. State of U.P. and others, in which this Court vide its order dated 7.5.2009 has held that on account of death of one person in the select list, the entire select list cannot be cancelled. Under the aforesaid facts and circumstances, it is directed that the petitioners shall also get the same benefit as that of the petitioners of writ petition No. 59738 of 2005, Ram Uchhah Verma and another v. State of U.P. and others, decided on 7.5.2009. The present writ petition is disposed of in terms of the aforesaid decision." 4. The respondents had prepared seniority list in which the substantive appointment of the petitioner and respondent No. 4 has been shown as on 2.5.2003 but for the purposes of salary, the petitioner is being discriminated whereas the respondent No. 4 being junior was paid pay scale of Rs. 5500-9000/-. Thereafter, the petitioner and other persons made representation on 12.1.2011 to the Tehsildar, Bansdeeh. But due to inaction on the part of the respondent-authority, the petitioner was compelled to file Writ Petition No. 54721 of 2011 (Ramanand Chaubey and others v. State of U.P. and others) and the said writ petition was disposed of vide order dated 21.9.2011 with direction to the respondent No. 3 to decide the representation of the petitioner within three months. In compliance of the order of this Court dated 21.9.2011, the respondent No. 3 has passed the impugned order dated 26.12.2011. 5. Learned counsel for the petitioner submits that the petitioner was discharging his duties as Seasonal Collection Amin since the year 1978, and he has already completed the minimum required period for pension. Under U.P. Regularization of Ad-hoc Promotion (On Post Outside the Purview of Public Service Commission) Rules, 1988, as amended on 20.12.2011, the petitioner became entitled for regular promotion. Learned counsel for the petitioner submits that the petitioner was discharging his duties as Seasonal Collection Amin since the year 1978, and he has already completed the minimum required period for pension. Under U.P. Regularization of Ad-hoc Promotion (On Post Outside the Purview of Public Service Commission) Rules, 1988, as amended on 20.12.2011, the petitioner became entitled for regular promotion. Rule 4 of the Regularization Rules of 1988 provides that such ad-hoc appointees shall be promoted before any regular appointment is made against such vacancy under the Rules and therefore, the petitioner was entitled for regular promotion. The petitioner was appointed on temporary basis on a substantive post and was in fact treated to be regular employee throughout for the period of 29 years by deducting the GPF and granting him all service benefits including pay scales and increments of Seasonal Collection Amin. 6. Learned counsel for the petitioner has placed his reliance on a Division Bench judgment of this Court in Amrendra Narain Srivastava v. State of U.P. and others, 2012(8) ADJ 376 (DB). The relevant paragraph Nos. 6, 7, 10, 11, 12, 13 and 14 are reproduced hereinafter : “6. It is submitted by Shri Ashok Khare, that under the Uttar Pradesh Retirement Benefits Rules, 1961, the qualifying service, defined in Rule 3 (8), means service, which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations. Rule 3 (8) is quoted as below : “Rule 3 (8)- “Qualifying service” means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations: Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except- (i) periods of temporary or officiating service in a non-pensionable establishment. (ii) periods of service in a work-charged establishment, and (iii) periods of service in a post, paid from contingencies, shall also count as qualifying service. (ii) periods of service in a work-charged establishment, and (iii) periods of service in a post, paid from contingencies, shall also count as qualifying service. Note—If service rendered in a non-pensionable establishment, work-charged establishment or in a post paid form contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionble establishment, it will not constitute an interruption of service.” Regulation 368 of the Civil Services Regulations, provides that service does not qualify, unless the officer holds a substantive office in a permanent establishment. Regulations 368 and 369 provides as follows : “368. Service does not qualify unless the officer holds a substantive office on a permanent establishment. 369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was not on actual duty on the first day on which the establishment was again re-employed.” 10. The petitioner was appointed in temporary capacity in Zila Parishad on 21.3.1983. The non-Government medical hospitals of Zila Parishad were provincialised on 8.11.1990. The petitioner’s option for absorption in the State Ayurvedic and Unani Medical Services was accepted, and that he was taken as a Medical Officer, Ayurvedic and Unani on adhoc basis. There is no denial, that he held a substantive office in a permanent establishment. His services ultimately came to be regularized on 16.3.2005 without any break. At no point of time the petitioner, after his absorption, was not in substantive office, which was not in permanent establishment. His services, therefore, have to be counted with effect from the date of his absorption and the joining in the State Government. 11. The qualifying service, as defined in sub-rule (8) of Rule 3, includes the service, which qualifies for pension in accordance with the provisions of Section 368 of Civil Services Regulation. His services, therefore, have to be counted with effect from the date of his absorption and the joining in the State Government. 11. The qualifying service, as defined in sub-rule (8) of Rule 3, includes the service, which qualifies for pension in accordance with the provisions of Section 368 of Civil Services Regulation. The petitioner does not fall in any of the exceptions inasmuch as the period of his temporary service was not in a non-pensionable establishment after he was regularized in the State Government. 12. For the aforesaid reasons, we find that the petitioner has rendered qualifying pensionary service with effect from the date of his joining in the State Government on his option, and which shall be treated as service qualifying for pension and for which under the Government Orders, by which the hospitals were provincialised, the contribution of his pension has been deposited by the Zila Parishad. 13. The objection, that the contribution of pension, has not been deposited in the relevant account head, is too technical to be accepted. The amount has been credited to the account of the State Government in the Treasury. It is for the Treasury Officer to appropriate the amount in the correct account head. An error in depositing the amount in the wrong account head cannot be treated to have taken away the right of petitioner to pension based upon his continuance in the State Government beginning from 1991. 14. The writ petition is allowed. The impugned order dated 20.9.2011 is quashed. The petitioner shall be entitled to pension with effect from 1.2.1991, the date on which he joined in the State Government. The State Government will calculate his pension and issue the pension payment order within two months. The entire arrears of pension shall be paid over to him within a period of three months.” 7. Learned counsel for the petitioner has also relied upon the judgment in Bhuneshwar Rai v. State of U.P. and others, 2014(9) ADJ 4 (DB), Para 5 of the judgment is reproduced herein below : “5. In support of his aforesaid contention, learned counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of Punjab State Electricity Board and another v. Narata Singh, 2010-Laws (SC)-2-40, which has been relied upon by the learned Single Judge of this Court in the case of Mohd. In support of his aforesaid contention, learned counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of Punjab State Electricity Board and another v. Narata Singh, 2010-Laws (SC)-2-40, which has been relied upon by the learned Single Judge of this Court in the case of Mohd. Mustafa v. State of U.P., (2010 (1) ADJ 329 (All)(LB). holding that where the petitioner has put in 23 years of service including 113 months and 11 days i.e. 9 years 5 months and 11 days of regular service then denial of pension for not having completed 10 years of regular service, was not proper. In that case, the Court directed the respondents to grant pensionary benefit to the petitioner considering him to have completed 10 years of regular service and pay him regularly every month from the date of retirement. The State of U.P. preferred an appeal against the aforesaid judgment in re: Mohd. Mustafa v. State of U.P. (Special Appeal Defective No. 254 of 2013), State of U.P. and others v. Prem Chandra and others, wherein the Court relying upon the judgment of the Apex Court in Punjab Electricity Board (supra) vide its judgment dated 13.5.2013 held that the provisions of regulation 370 of the U.P. Civil Service Regulation have to be read down in line with the judgment of the Apex Court. Aggrieved, the State of U.P. preferred SLP (Civil) No. CC 22271 of 2013, State of U.P. and others v. Prem Chandra and others before the Apex Court, which was dismissed vide judgment and order dated 7.1.2014.” 8. Learned counsel for the petitioner submits that as per Rule 3(8) of the Uttar Pradesh Retirement Benefit Rules, 1961, the petitioner had completed 10 years of qualifying service and is, thus, entitled to pensionary benefits. He has placed reliance on the judgment of this Court reported in 2006 (8)ADJ 371 , 2011 (4) AWC 3564 . 9. On the other hand, learned Standing Counsel does not dispute the legal position. He submits that since the petitioner had not completed 10 years of service from the date of regularisation and he was rightly not paid pension and other retiral benefits. 10. 9. On the other hand, learned Standing Counsel does not dispute the legal position. He submits that since the petitioner had not completed 10 years of service from the date of regularisation and he was rightly not paid pension and other retiral benefits. 10. Rule 3(8) of the Rules, defines “qualifying service” provides as under : “Rule 3 (8)- “Qualifying service” means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations: Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except- (i) periods of temporary or officiating service in a non-pensionable establishment. (ii) periods of service in a work-charged establishment, and (iii) periods of service in a post, paid from contingencies, shall also count as qualifying service. Note—If service rendered in a non-pensionable establishment, work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionble establishment, it will not constitute an interruption of service.” 11. Regulation 368 and 369 of the Civil Services Regulations reads as under : “368. Service does not qualify unless the officer holds a substantive office on a permanent establishment. 369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was not on actual duty on the first day on which the establishment was again re-employed.” 12. Proviso to Rule 3(8) itself prescribes that continuous temporary service without interruption followed by confirmation shall count as qualifying service. Thus, it is wholly immaterial that the service of the petitioner was regularised on 3.5.2003, as he was continuously working since the date of initial appointment. Proviso to Rule 3(8) itself prescribes that continuous temporary service without interruption followed by confirmation shall count as qualifying service. Thus, it is wholly immaterial that the service of the petitioner was regularised on 3.5.2003, as he was continuously working since the date of initial appointment. Though earlier his working was against a temporary establishment, as there was no sanctioned post but after temporary post was sanctioned and later on converted into permanent post, the service so rendered by the petitioner, fully qualifies for being counted for purpose of payment of pension and retiral benefits. 13. It is admitted fact that during pendency of aforesaid writ petition since 2004 to 2009, the petitioner was being paid salary with benefit of increment and earned leave. 14. For the aforesaid reasons, the Court finds that the petitioner had rendered qualifying pensionary service as the petitioner’s appointment was made on substantive post on temporary basis and which shall be treated as service qualifying for pension. 15. In the aforesaid facts and circumstances the impugned order dated 26.12.2011 (Annexure 14 to the writ petition), cannot be sustained to the effect that the petitioner is not eligible for pensionary benefits as he did not have qualifying service of ten years and is quashed. 16. The writ petition is allowed. The respondents are directed to finalize the petitioner’s pension treating him to be regularized w.e.f. 3.5.2003 under the Regularization Rules of 1988 and quantify the retiral benefits payable to him and to pay the same to him within three months from the date of production of certified copy of this order before the respondents.