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Allahabad High Court · body

2019 DIGILAW 2373 (ALL)

Dashrath Lal v. State of U. P.

2019-10-18

AJIT KUMAR

body2019
JUDGMENT : 1. Heard Sri Gautam Baghel, learned counsel for the petitioner, learned Standing Counsel appearing for the State respondents and perused the record. 2. By means of this petition under Article 226 of the Constitution, the petitioner has challenged the order dated 21.02.2017, whereby, the total pensionable service of the petitioner has been counted as 14 years 9 months and 10 days and the period running from 26.06.1987 to 21.12.2001 during which the petitioner worked only on ad-hoc capacity has been held to be not countable for the purposes of pension. 3. Briefly stated facts of the case are that the petitioner was appointed on 25.06.1987 on the post of Senior Clerk on regular pay scale but on ad-hoc basis and his appointment was to last till regular selection was to be made. 4. It transpires that the petitioner continued to work on ad-hoc basis until he came to be regularized on 01.06.2016. The order regularizing the services of the petitioner dated 01.06.206 for convenience, is reproduced hereunder: ^^dk;kZy; vf/k'kk"kh vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx] iz[k.M bykgkckn i=kad 523@xzk0v0fo0@2016&17 fnukad 01&6&16^^ dk;kZy; vkns'k 'kklukns'k la[;k 15@18@86&dk&1&2001 y[kuÅ fnukad 20-12-2001 esa fufgr funsZ'k ds varxZr Jh n'kjFk yky dfu"B lgk;d ¼rnFkZ :i ls fu;qDr½ dk fofu;ferhdj.k v/kh{k.k vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx] ifje.My bykgkckn ds i=kad 650@xzk0v0fo0@LFkk0@fofu;ferhdj.k@2012&13 fnukad 16-8-2012 esa fd;k x;k FkkA funs'kd ,oa eq[; vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx] m0iz0 y[kuÅ ds i=kad 2147&2246@xzk0v0fo0@LFkk0&2@vejthr&bykgkckn@2014&15 fnukad 17-11-2014 ds vuqikyu esa v/kh{k.k vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx] ifje.My bykgkckn ds i=kad 1295@xzk0v0fo0@LFkk0@fo0fu0@2014&15 fnukad 01-12-2014 }kjk fofu;ferhdj.k dk;Zokgh fd, tkus dk funsZ'k fn;k x;kA mDr ds vuqikyu esa Jh n'kjFk yky dfu"B lgk;d dks mijksDr lanfHkZr 'kklukns'k fnukad 20-12-2001 ds ifjikyu esa iz[k.M esa rRle; miyC/k dfu"B lgk;d ds in ds lkis{k fnukad 20-12-2001 ls dfu"B lgk;d ds in ij fofu;ferhdj.k fd;k tkrk gSA vf/k'kk"kh vfHk;Urk xzkeh.k vfHk;U=.k foHkkx iz[k.M bykgkckn i=kad ,oa fnukad mijksDrkuqlkj& izfrfyfi& fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"krA 1& lacaf/kr deZpkjh] xzkeh.k vfHk;U=.k foHkkx] iz[k.M bykgkcknA 2& v/kh{k.k vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx] ifje.My bykgkcknA 3& eq[; ofj"B lgk;d] xzkeh.k vfHk;U=.k foHkkx] iz[k.M bykgkcknA 4& O;fDrxr i=koyh gsrqA vf/k'kk"kh vfHk;Urk xzkeh.k vfHk;U=.k foHkkx iz[k.M bykgkckn 5. From the bare reading of the aforesaid order regularizing the services of the petitioner, it is clearly revealed that the petitioner has been regularized against the post on which he had continued since 1986 on ad-hoc basis. From the bare reading of the aforesaid order regularizing the services of the petitioner, it is clearly revealed that the petitioner has been regularized against the post on which he had continued since 1986 on ad-hoc basis. The petitioner thereafter, attained the age of superannuation on 30.09.2016. 6. The question then arose relating the period of service that the petitioner has rendered for the purposes of computation of pensionable service and by the impugned order dated 21.02.2017, the period during which the petitioner continued on ad-hoc basis, has been left out and the period from 2001 until the age of superannuation by the petitioner worked on a regular basis after his regularization in service, has only been computed. 7. The argument advanced by learned counsel for the petitioner is that the issue regarding qualifying period of service for pension purpose whether would include temporary, ad-hoc or work charge period of service, is no more res integra and for this purpose, he has placed reliance of a judgment of this Court in the case of Shashi Srivastava v. State of U.P. & Another, 2019 (7) ADJ 302 (DB). 8. Considering the relevant provisions of Rule 3(8) of Civil Services Regulations, as contained in Regulation 368, the Division Bench has held that the period during which a person has continued on ad-hoc basis in a permanent establishment, shall also count towards the pensionable service. The relevant paragraphs of the judgment in the case of Shashi Srivastava (supra) are reproduced hereunder: "6. Under U.P. Retirement Benefit Rules, 1961 (hereinafter referred to as "Rules, 1961") "qualifying service" is defined in Rule 3(8). It means 'service' which qualifies for pension in accordance with provisions of Article 368 of C.S.R. 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-changed 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-changed 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 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 pensionable establishment, it will not constitute an interruption of service." (emphasis added) 7. Article 368, C.S.R., provides that service does not qualify, unless officer holds a substantive office in a permanent establishment. Articles 368 and 369 are quoted herein below: "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 on actual duty on the first day on which the establishment was again re-employed." 8. It is not in dispute that petitioner was appointed on substantive post in permanent establishment which is/was pensionable. Nature of his appointment i.e. ad-hoc appointment is not of much relevance in as much as period spent by him as ad-hoc was in permanent pensionable establishment, which ultimately resulted into regularization of petitioner without any break in service. 9. Moreover, vide Sub-rule 8 of Rule 3 of Rules 1961, qualifying service includes temporary service followed by confirmation and continued without interruption. In this view of the matter, services rendered by petitioner on ad-hoc basis followed by Regularization would stand covered under "qualifying service" defined under Rule 3(8) of Rules 1961, for the purpose of pension. 10. In taking this view we are fortified by a Division Bench decision in State of U.P. and Others vs. Dr. Amrendra Narain Srivastava, 2012 (8) ADJ 376 . Similar issue recently has been considered by this Court in Dr. 10. In taking this view we are fortified by a Division Bench decision in State of U.P. and Others vs. Dr. Amrendra Narain Srivastava, 2012 (8) ADJ 376 . Similar issue recently has been considered by this Court in Dr. Indrapal Singh Sachan vs. State of U.P. and 4 Others, (Writ-A No. 62179 of 2015) decided on 07.02.2018, wherein this Court has followed judgment passed in Writ Petition No. 65873 of 2014 and directed that adhoc service would be counted for payment of retiral benefit treating the same as "qualifying service". Judgment passed in Dr. Indra Pal Singh Sachan (supra) reads as under:- "Heard Shri Ashok Khare, learned Senior Counsel, assisted by Shri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents. Pleadings have been exchanged between the parties and we have perused the same. The petitioner is aggrieved by the office order dated 9th September, 2015, passed by the Principal Secretary, AYUSH, State of U.P., whereby the representation of the petitioner, for payment of pensionary benefits, has been rejected. The petitioner was appointed as Ayurvedic doctor on contract basis vide order dated 1.12.1988. The petitioner continued to function as such. A Writ Petition No. 4806 of 1990 (U.P. Anskalik Chikitsak Sangrah Samiti vs. State of U.P. and another), came to be filed by association of Ayurvedic doctors. It was decided vide judgment and order dated 11.9.1992, with a direction to consider the claim of their regularisation within six months and for the payment of full salary of a Medical Officer. In pursuance of the above judgment of this Court, an office order was issued on 28.2.1992, directing for treating the services of the contract basis Ayurvedic doctors on ad hoc basis. The petitioner was also included in the list attached with the aforesaid office order and his services also were treated on ad hoc basis. Subsequently, by order dated 25th September, 2009, the services of all ad hoc doctors were regularized and, accordingly, the services of the petitioners were also regularized with effect from 16.3.2005. The petitioner, ultimately, retired on 30.9.2007. On his retirement, he raised a claim for grant of pensionary benefits, which was not accepted. Therefore, he filed Writ Petition No. 49467 of 2012 (Dr. The petitioner, ultimately, retired on 30.9.2007. On his retirement, he raised a claim for grant of pensionary benefits, which was not accepted. Therefore, he filed Writ Petition No. 49467 of 2012 (Dr. Indrapal Singh Sachan vs. State of U.P. and others), which was disposed of on 22.4.2015, observing that the issue arising in the petition stand answered by the decision of the Court, rendered in Writ Petition No. 61974 of 2011 (Dr. Amrendra Narain Srivastava vs. State of U.P. and others), which has been followed in Writ Petition No. 65873 of 2014 (Dr. Mohd. Mahboob Husain Abbasi vs. State of U.P. and 4 others). Accordingly, the Principal Secretary, Department of Medical Education, Government of U.P., Lucknow, was directed to consider the claim of the petitioner within a time-bound period, keeping into mind the parameters as has been settled in the aforesaid two decisions. In pursuance of the above, the impugned order has been passed, rejecting the representation of the petitioner with regard to the claim of the pentionary benefits. The claim of the petitioner has been distinguished in it from that of Dr. Amerendra Narain Srivastava, on the ground that the petitioner was never confirmed, therefore, his services cannot be counted for the purposes of grant of pension. In the case of Amrendra Narain Srivastava, the Division Bench has dealt with the Uttar Pradesh Retirement Benefit Rules, 1965, and the period of qualifying service mentioned therein vis a vis Regulation 368 of the Civil Services Regulations and came to the conclusion that the petitioner therein shall be entitled to pension from the date on which he joined the services by adding the services rendered by him in temporary capacity to his services rendered by him with the Government Department on substantive basis. In other words, on being absorbed in the Government Department in substantive capacity or being regularized, it was provided that the services earlier rendered by him may be in a temporary capacity has to be counted for the purposes of payment of pension. The aforesaid decision has been followed in the case of Dr. Mohd. Mahboob Husain Abbasi. In the instant case also, the services of the petitioner, treated to be on ad hoc basis vide order dated 28.2.1992, was ultimately regularized vide order dated 25.9.229 with effect from 16.3.2005. The aforesaid decision has been followed in the case of Dr. Mohd. Mahboob Husain Abbasi. In the instant case also, the services of the petitioner, treated to be on ad hoc basis vide order dated 28.2.1992, was ultimately regularized vide order dated 25.9.229 with effect from 16.3.2005. Thus, once the petitioner stood duly regularized/confirmed, the services, rendered by him prior to his regularization on ad hoc basis, would be included in his length of service for the purposes of grant of pension. In this way, for the purposes of pension, the petitioner has rendered service with effect from 28.2.1992 till 30.9.2007. The said period is more than the qualifying service period of 10 years necessary for the grant of pensionary benefits. In view of the aforesaid facts and circumstances, the distinction, made by the Principal Secretary in passing the impugned order, is not tenable and, accordingly, the same is hereby quashed, holding that services rendered by the petitioner with effect from 28.2.1992, shall be counted in his services rendered by him after his regularization for the purposes of grant of pension. The respondents are, as such, directed to work out the pension admissible to the petitioner as aforesaid and to start paying the same as well as the arrears. The arrears shall be paid with interest of 8 per cent within a period of three months. The writ petition is allowed, accordingly." 9. Very recently, the Apex Court in the case of Prem Singh v. State of U.P., 2019 LawSuit (SC) 1557 has observed in quite unequivocal terms that even the service period of an employee in capacity of a work charged employee shall be added while counting qualifying service for computation of pension. Vide para 29 and 30, the Apex Court has observed thus: "29. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. Payment used to be made monthly but the appointment was made in the pay scale of Rs.200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation. 30. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment. (Emphasis added) 10. Learned Standing Counsel appearing for the contesting respondents does not dispute the above legal position. 11. In view of the above facts and circumstances of the case and the legal position emerging out from the judgment (supra), this writ petition deserves to be allowed. 12. The writ petition succeeds and is accordingly allowed. 13. (Emphasis added) 10. Learned Standing Counsel appearing for the contesting respondents does not dispute the above legal position. 11. In view of the above facts and circumstances of the case and the legal position emerging out from the judgment (supra), this writ petition deserves to be allowed. 12. The writ petition succeeds and is accordingly allowed. 13. The order dated 21.02.2017 (Annexure No. 8 to the writ petition) and the order dated 24.03.2017 (Annexure No. 10 to the writ petition) are hereby quashed and the respondents are directed to include the period of service which the petitioner has spent on ad-hoc basis from 25.06.1987 till 20.12.2001 towards pension and the pension shall accordingly be calculated and the due amount as consequence thereof shall be paid within a period of three months from the date of production of certified copy of this order.