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2017 DIGILAW 2985 (ALL)

SUDAMA PRASAD v. STATE OF Uttar Pradesh

2017-12-19

NEERAJ TIWARI, RAN VIJAI SINGH

body2017
JUDGMENT By the Court.—Heard Sri Gautam, learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 2. By means of this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 15.10.2014 passed by the Principal Secretary (Planning) Uttar Pradesh Government, Lucknow, by which the petitioner’s representation, for adding the period spent on ad hoc basis for the purpose of calculating the qualifying period for pension, has been rejected. Prayer has also been made to issue a writ of mandamus commanding the respondents to fix pension, gratuity etc. of the petitioner after including his services from the date of his ad hoc appointment dated 9.1.1984. Prayer has also been made to direct the respondents to pay the amount curtailed from the pension, gratuity etc. of the petitioner on account of calculation of service from the date of regularization i.e. 10.12.1993. Further prayer has been made to direct the respondents to fix pay of the petitioner on 1.7.2010 as Rs. 18,750/- and thereby the total pay be fixed to the tune of Rs. 27,720/- on 4.7.2012. Further prayer has been made to direct the respondents to pay an amount of Rs. 97,973/- recovered from the gratuity of the petitioner. 3. The facts of this case, in brief, are that the petitioner was initially appointed on ad hoc basis on the post of Economic and Statistic Inspector/Assistant Development Officer (Statistic) vide office memorandum dated 22.12.1983. In fact the petitioner had joined the service on 9.1.1984 against the substantive vacancy in the permanent establishment. He continued on ad hoc basis since 9.1.1984 and it is on 10.12.1993 he was regularized on the substantive post on probation for a period of two years. Thereafter the petitioner was confirmed on the post on 14.12.1995. While working as Additional Statistic Officer, Gorakhpur he retired on 31.3.2013. After retirement the pension of the petitioner has been reckoned from the date of his regularization i.e. 10.12.1993 by over looking the period of ad hoc services of the petitioner in the department from 9.1.1984. In this regard the petitioner had made a representation before the Director, Economics research and Statistic U.P.Lucknow on 31.7.2013 but that was of no avail. 4. From the perusal of the records it also transpires that the petitioner was granted higher pay scale of Rs. 18,750/- which was later on reduced to Rs. In this regard the petitioner had made a representation before the Director, Economics research and Statistic U.P.Lucknow on 31.7.2013 but that was of no avail. 4. From the perusal of the records it also transpires that the petitioner was granted higher pay scale of Rs. 18,750/- which was later on reduced to Rs. 18,600/- and the petitioner’s pay had been fixed w.e.f 1.7.2012 as Rs. 26,740/- in place of total Rs. 27,720/-. This has been done treating the petitioner in service in substantive capacity w.e.f. from the date of his regularization in services i.e. 10.12.1993. After retirement the pension of the petitioner has been fixed from the date of his regularization i.e. 10.12.1993 as a consequence thereof the petitioner is deprived from drawing full pension, as his pension, gratuity etc. has been curtailed due to which the petitioner is suffering a lot. In this regard the petitioner has made a representation. When nothing was done on his representation the petitioner knocked the door of this Court under Article 226 of the Constitution of India by means of Writ Petition No. 28117 of 2014. The writ petition was disposed of vide order dated 20.5.2014 with the direction to the respondent No. 1 to consider the grievance of the petitioner and dispose of representation by passing reasoned speaking order within a period of three months from the date of production of certified copy of the order of this Court. 5. The concerned authority thereafter has rejected the petitioner’s representation on 15.10.2014 holding that in view of Regulations 361 and 368 of the Civil Services Regulations (in short CSR) the petitioner does not qualify the period of service for the purpose of full pension. The aforesaid order has been made subject-matter of the present writ petition. 6. Before this Court it has been argued by the learned counsel for the petitioner that the Regulations 361 and 368 do not prohibit the respondents to add the period of service performed by the petitioner on ad hoc basis while calculating the qualifying period for pension. Considering the argument of the learned counsel for the petitioner this Court on 10.12.2014 granted four weeks time to the learned standing counsel to file counter-affidavit and rejoinder-affidavit, if any, was to be filed within two weeks thereafter. Pursuant thereto two counter-affidavits, first on behalf of respondent Nos. 1,2,3 and 7 and second on behalf of respondent Nos. Considering the argument of the learned counsel for the petitioner this Court on 10.12.2014 granted four weeks time to the learned standing counsel to file counter-affidavit and rejoinder-affidavit, if any, was to be filed within two weeks thereafter. Pursuant thereto two counter-affidavits, first on behalf of respondent Nos. 1,2,3 and 7 and second on behalf of respondent Nos. 4,5 and 6 have been filed to which two rejoinder-affidavits have also been filed. 7. Counter and rejoinder-affidavits have been exchanged, therefore, with the consent of the learned counsel for the parties the writ petition is taken up for final disposal. 8. In view of the facts and circumstances of the case as has been discussed herein above and the stand taken by the respondent in not extending the benefit of full pension as claimed by the petitioner by not including the period of service on ad hoc basis by the impugned order dated 15.10.2014, we find it appropriate to quote Regulations 361 and 368 of the CSR: Regulation 361: The service of an officer does not qualify for pension unless it conforms to the following three conditions: First: The service must be under Government. Second: The employment must be substantive and permanent. Third: The service must be paid by Government. Regulation 368: Service does not qualify unless the officer holds a substantive office on a permanent establishment. 9. From the perusal of Regulation 361 of the CSR it transpires that the service of an officer does not qualify for pension unless the service is under the Government, the employment is substantive and permanent and the service benefit is paid by Government. Whereas from the perusal of Regulation 368 of the CSR it transpires that the service of the officer does not qualify for pension unless the officer holds a substantive office in a permanent establishment. 10. From the facts narrated herein above and the conditions imposed under Regulations 361 and 368 of the CSR for full pension we find that it is not in dispute that the service of the petitioner is under the Government and it is paid by Government. Further the initial appointment of the petitioner was made against the substantive post in the permanent establishment. 11. Further the initial appointment of the petitioner was made against the substantive post in the permanent establishment. 11. Learned standing counsel although contended that the initial appointment of the petitioner was not against substantive post in permanent capacity as the petitioner continued on ad hoc basis with effect from 9.1.1984 till 10.12.1993, therefore, he will not be covered under the second condition of Regulation 361 of the CSR. We are of the view that the argument advanced by the learned standing counsel is fallacious having no weight as the nature of vacancy and capacity has to be seen on the date of retirement and not on the date of initial appointment. 12. Another question which requires our consideration is as to whether the petitioner was appointed against the substantive post in the permanent establishment or not. For testing that we have to go through the pleadings of the petitioner as made in the writ petition. For this purpose we would like to quote paragraph No. 22 of the writ petition, which reads as under: “22. That in spite of the ad hoc appointment of the petitioner was in the substantive capacity in a permanent establishment and which ultimately resulted into regularization on 10.12.1993 without any break in service, the fixation of pension of the petitioner has been done after calculating the services of the petitioner from the date of his regularization of his service i.e. 10.12.1993. The said act of the respondent is absolutely arbitrary, illegal and unjustified.” 13. Reply of paragraph 22 of the writ petition has been made in paragraph 14 of the counter-affidavit, which reads as under: “14. That the contents of paragraphs 21,22 and 23 of the writ petition has already been replied in the preceding paragraph of this counter-affidavit, hence need no comments. It is further submitted that according to paragraph 368 and 361 of CSR, pension is not payble on ad hoc services of the petitioner.” 14. It is stated that the appointment of the petitioner was in substantive capacity in the permanent establishment. The factum of nature of the vacancy and establishment has not been denied in the counter-affidavit. What has been stated in the counter-affidavit is that the petitioner will not be entitled for the relief claimed in view of the provisions contained under Regulations 361 and 368 of the CSR. 15. The factum of nature of the vacancy and establishment has not been denied in the counter-affidavit. What has been stated in the counter-affidavit is that the petitioner will not be entitled for the relief claimed in view of the provisions contained under Regulations 361 and 368 of the CSR. 15. We have already interpreted the wordings contained in Regulations 361 and 368 of the CSR, meaning thereby the nature of employment and vacancy has to be seen at the time of retirement and not prior to that. Here in this case when the petitioner was retired, he was holding the permanent post in substantive capacity. In view of the averments made in paragraph 22 of the writ petition the appointment of the petitioner was made against substantive post in the permanent establishment which has not been denied by the respondents, therefore, the stand taken by the respondents in the impugned order cannot be sustained in the eyes of law. The view taken by us finds support from the judgment rendered by this Court in Writ A No. 61974 of 2011 (Dr. Amrendra Narain Srivastava v. State of Uttar Pradesh and others). 16. In the result, the writ petition succeeds and is allowed. The impugned order dated 15.10.2014 passed by the Principal Secretary (Planning) Uttar Pradesh Government, Lucknow, respondent No. 1 is hereby quashed. The respondent No. 1 is directed to pass a fresh order in view of the observations made herein, above. 17. For redressal of his grievance the petitioner is at liberty to make a fresh representation alongwith certified copy of this order before the respondent No. 1. In the event of filing a representation, the respondent No. 1 is directed to pass a reasoned speaking order on the representation of the petitioner within a period of two months from the date of receipt of such representation. While deciding the representation, in case the respondent No. 1 finds that the petitioner is entitled for the relief claimed for, the payment shall be made to the petitioner alongwith 6% interest within a period of two months from the date of the order and in case the authority finds that the petitioner is not entitled for the relief claimed, reasons for the same be recorded.