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2017 DIGILAW 1763 (ALL)

DAN BAHADUR SINGH v. STATE OF U. P.

2017-07-31

SANGEETA CHANDRA

body2017
JUDGMENT : Hon'ble Mrs. Sangeeta Chandra,J. 1. This writ petition has been filed by the petitioner praying for issuance of a Mandamus to the Authorities concerned to make payment of pension and other retiral dues along with 18 per cent interest for the late payment and with a further prayer for issuance of mandamus to the Authority i.e. Deputy Director of Education, 7th Region, Gorakhpur to take a decision pertaining to the claim of pension of the petitioner and other retiral dues within the time prescribed by this Court. 2. It is the case of petitioner that he was initially appointed as an Assistant Teacher L.T. grade on 24.08.1991 in an aided recognized Secondary School namely Janta Inter College, Bankata Station, Deoria under the provisions of the Removal of Difficulties Order, 1981. 3. As per the averments made in the writ petition a substantive vacancy of the post of Assistant Teacher L.T. Grade was created due to retirement of one Vasudhanand Pandey. In this substantive vacancy of Assistant Teacher, L.T. grade one Rajendra Singh working as C.T. grade teacher was promoted on ad hoc basis. In the resultant C.T. grade vacancy the petitioner was appointed on ad hoc basis till regularly selected candidate from the U.P. Secondary Education Service Selection Board became available. The ad hoc appointment of the petitioner was approved by the then District Inspector of Schools, Deoria treating the C.T. grade vacancy created after promotion of Rajendra Singh as converted into L.T. Grade vacancy. 4. Further, it is the case of petitioner that although the District Inspector of Schools granted financial approval to the ad hoc appointment of the petitioner as Assistant Teacher L.T. Grade till availability of regularly selected candidate from the U.P. Secondary Education Service Selection Board; no such regularly selected candidate from the Selection Board was sent to the Institution concerned and the petitioner continued to work w.e.f. 24.08.1991 till 30th of June, 2014. His pension papers were sent to the Deputy Director of Education, 7th Region, Gorakhpur who raised an objection that there is no entry of regularisation in his Service Book. On 02.03.2015 a letter was written by District Inspector of Schools, Deoria to the Manager/Principal of the College directing them to immediately remove the objection and forward the pension papers of the petitioner. On 02.03.2015 a letter was written by District Inspector of Schools, Deoria to the Manager/Principal of the College directing them to immediately remove the objection and forward the pension papers of the petitioner. The pension papers of the petitioner have since then been forwarded but the matter has been pending with the Deputy Director of Education, 7th Region, Gorakhpur. A counter affidavit has been filed by the State-Respondents wherein the facts as mentioned in the writ petition are not disputed. But it is said that regular pension cannot be given to the petitioner since his ad hoc services have not been regularised. Reliance has been placed upon Article 361 of the Civil Service Regulations where three conditions for grant of superannuation pension have been mentioned. One of the conditions mentioned therein is that service should be regular and permanent. This second condition not being satisfied by the petitioner no pension can be given to the petitioner. 5. The counsel for the petitioner in rejoinder affidavit has relied upon a judgment rendered by a Coordinate Bench of this Court in the case of Prem Singh Vs. State of U.P. and others, 2014 (1) U.P.L.B.E.C 760 wherein in similar circumstances pension was refused to a teacher after he completed more than 17 years of continuous service. In that case the Court was considering the order rejecting the case of the writ petitioner therein for grant of pension passed by the Joint Director of education on 03.11.2012. The rejection was primarily on the ground that the petitioner was an ad hoc/temporary employee and pension is admissible only to regular/permanent teacher. It was held therein that if ad hoc/stopgap/temporary employee having essential qualification is appointed in terms of the statutory Rules and he continues for a long time and fulfills the qualifying service he is entitled for pension and other retiral benefits. 6. This Court for arriving at the conclusion aforesaid relied upon the government order dated 01.07.1989 and judgment rendered in the case of Hansraj Pandey Vs. State of U.P. and others, reported in (2007) 3 UPLBEC 2073 and Ram Pratap Shukla Vs. State of U.P. and others, 2006 (3) AWC 2909 to hold that the reliance placed by the learned Standing Counsel on Article 465 A and Article 361 of the Civil Service Regulations wherein conditions have been laid down for qualifying service, was misconceived. State of U.P. and others, reported in (2007) 3 UPLBEC 2073 and Ram Pratap Shukla Vs. State of U.P. and others, 2006 (3) AWC 2909 to hold that the reliance placed by the learned Standing Counsel on Article 465 A and Article 361 of the Civil Service Regulations wherein conditions have been laid down for qualifying service, was misconceived. In the Intermediate Education Act, 1921 the word "ad hoc" or "temporary" is not defined and under Section 16 E (11) of the Act, 1921 temporary appointment was permissible. Moreover, Regulation 2 sub-clause 1 also permits the Committee of Management to make appointment against a temporary vacancy caused by grant of leave for a period not exceeding six months or by death or retirement or suspension of a regular teacher. Even under the Selection Board Act 1982, the Committee of Management was empowered to make an ad hoc appointment under Section 18 of the Act. 7. An appointment of teacher on ad hoc basis having been approved by the District Inspector of Schools was entitled to be considered as substantive and permanent. The terms "ad hoc" was considered by the Supreme Court in the case of Rudra Kumar Sain Vs. Union of India and others: 2000 (8) SCC 25 and in Ramesh Kumar Sharma Vs. Rajasthan Civil Services, 2001 (1) SCC 637 and it has been held that if an incumbent holds the post for indefinite period then it cannot be said to be adhoc appointment. The relevant para is extracted below:- "If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment, not being either stopgap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stopgap basis then such an appointment cannot be held to be on substantive basis. The expression "substantive basis" is used in the service jurisprudence in contradistinction with ad hoc or purely stopgap or fortuitous." 8. This Court also in the case of Dr. Hari Shanker Asopa Vs. The expression "substantive basis" is used in the service jurisprudence in contradistinction with ad hoc or purely stopgap or fortuitous." 8. This Court also in the case of Dr. Hari Shanker Asopa Vs. State of U.P. and another reported in 1989 1 UPLBEC 501 interpreted the Article 361 of the Civil Services Regulation as applicable to the State of U.P. and sub clause (e) of Rule 56 of the Fundamental Rules of the Financial Hand Book and held that since Dr. Hari Shanker Asopa was allowed to voluntarily retire by the State Government and therefore, he was entitled to pension. 9. This Court also relied upon a judgment rendered in the case of Board of Revenue through its Chairman, U.P. Lucknow and others Vs. Prasidh Narain Upadhyay reported in 2006 (1) ALR 839 and Rajendra Singh Vs. Accountant -General, 2002 4 LLN 566 wherein a Division Bench of this Court also considered the Government Order dated 01.07.1989 and held that "regular appointment" means an appointment made according to Rule and Procedure prescribed and against a substantive vacancy on a post. This Court thereafter came to a conclusion that there cannot be any difference between ad hoc/stop gap/temporary appointment with regular appointment if the employee concerned is appointed having undergone the procedure prescribed for such appointment. 10. The order of Joint Director of Education rejecting the pension to the writ petitioners therein was set aside with a direction to pay all retiral benefits to the writ petitioners in accordance with law at an interest of 9 per cent per annum on delayed payment along with a cost of Rs.2,000/-. 11. I have perused the judgment rendered by a Coordinate Bench of this Court in State of U.P. Vs. Gaya Ram, 2009 (75) ALR 77 wherein it has been held that the words "regular service" used in the Government Order dated 01.07.1989 is synonymous to substantive service and I am in respectful disagreement with the said judgment in view of the law laid down by the Hon'ble Supreme Court in the case of State of Rajasthan Vs. Jagdish Narain Chaturvedi; 2009 (2) SCC 49; State of Haryana Vs. Shakuntala Devi; 2008 (15) SCC 380 ; and University of Rajasthan Vs. Jagdish Narain Chaturvedi; 2009 (2) SCC 49; State of Haryana Vs. Shakuntala Devi; 2008 (15) SCC 380 ; and University of Rajasthan Vs. Premlata Agarwal, 2013 (3) SCC 705 wherein it has been held that if there was no need to regularise the ad hoc appointment, then, no provision would have been made for regularisation of ad hoc appointment in the Service Rules. Similarly, Section 33-C would have not been added to the Selection Board Act, 1982 nor would there have been any more additions like 33-D and 33-F and 33-G if no regularisation orders were to be passed. Regularisation is a must. It is to be considered in accordance with law and thereafter only, the case of petitioner can be considered for grant of pension. 12. Since there is already a provision under Section 33-C of the Selection Board Act, 1982 for regularization of certain appointments made on or after 14th of May, 1991 but not later on 6th of August, 1993 and the case of the petitioner seems to be covered by the said provision under Section 33-C, the Regional Joint Director of Education is directed to refer the matter of regularization of the petitioner to the Regional Committee within fifteen days from the date of a certified copy of this order is produced before him. The Regional Committee shall take a decision with regard to the regularisation of the petitioner in accordance with law and pass appropriate orders thereon within two weeks thereafter. In case petitioner's ad hoc appointment is found to be in order and liable to be regularised then appropriate order shall be passed with regard to release of his pension and all other retiral dues within four weeks thereafter. 13. It is made clear that regularisation of the petitioner shall be considered in accordance with law as settled by this Court in Larger Bench decision rendered in the case of Daya Shanker Misra vs. State of U.P. in Civil Misc. Writ Petition No.20843 of 2002, decided on 31.3.2010 wherein it has been held that Rakesh Chandra Misra's case reported in 2004(22) LCD 1604 Allahabad, is not a good law for ad hoc appointment on substantive vacancy. Writ Petition No.20843 of 2002, decided on 31.3.2010 wherein it has been held that Rakesh Chandra Misra's case reported in 2004(22) LCD 1604 Allahabad, is not a good law for ad hoc appointment on substantive vacancy. If the petitioner is found liable to be regularised and yet no payment of his retiral dues is made within the time period prescribed as aforesaid, then, the Authorities shall be liable to pay interest as admissible as per relevant government orders on delayed payment of pension and retiral dues to the petitioner. 14. The writ petition is disposed of.