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2020 DIGILAW 1294 (ALL)

Om Prakash Singh Tomar v. State Of U. P.

2020-11-05

AJIT KUMAR

body2020
JUDGMENT : 1. Heard Sri Ashutosh Srivastava, learned counsel for the petitioner and learned Standing Counsel appearing for the contesting respondents. 2. By means of the present writ petition preferred under Article 226 of the Constitution of India, the petitioner has challenged the order dated 16.9.2016 passed by the Assistant Accountant (Treasury and Pension), Kanpur Division, Kanpur rejecting the period of service rendered by the petitioner as Seasonal Collection Amin between 16.4.1990 and 9.6.2006, the date on which he was regularized as Collection Amin. 3. It is submitted by learned counsel for the petitioner that the petitioner's service came to be regularized on the basis that he was holding a position as per the service rules, which made him eligible for regularization and therefore, the period while he had rendered service in the capacity of Seasonal Collection Amin which would be a temporary employment, ought to have been counted towards pensionable service. 4. Learned counsel for the petitioner relied on the judgment of Hon'ble Apex Court in the case of "Prem Singh Vs. State of U.P. and others, 2019 (10) SCC 516 ." He has placed reliance upon paragraphs 36 & 37 of the judgment that runs as under:- "36. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in State of Karnataka and others Vs. Uma Devi 2006 (4) SCC 1 . This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. 37. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed." 5. Learned counsel for the petitioner has further relied upon in the case of Division Bench of this Court in the Case of "Dr. Hari Shankar Asopa Vs. State of U.P. and others 1989 ACJ 337" and further judgment of this Court "2006 (1) ESC 611. 6. Learned counsel for the petitioner submits that in view of the ratio laid down by the authorities of this Court and the Hon'ble Apex Court, the petitioner is entitled to avail pensionery benefits counting period of his service rendered as Seasonal Collection Amin, inasmuch as, it is contended that the order passed by the competent authority is absolutely non-speaking one as it does not specify as to why the period of service rendered by the petitioner as Seasonal Collection Amin are not to be counted. He further submits that the law laid down by the Hon'ble Supreme Court, shall have application as a law existed in all times. 7. Learned Standing Counsel justifies order for the reasons assigned therein. 8. Having heard learned counsel for the parties, I find that the only issue that is required to be adjudicated upon is as to whether the period of service rendered by the petitioner as Seasonal Collection Amin deserves to be counted towards pensionable service or not. 9. 7. Learned Standing Counsel justifies order for the reasons assigned therein. 8. Having heard learned counsel for the parties, I find that the only issue that is required to be adjudicated upon is as to whether the period of service rendered by the petitioner as Seasonal Collection Amin deserves to be counted towards pensionable service or not. 9. I have gone through the authorities cited above before me and find that the Supreme Court in its judgment has very categorically held that the services rendered whether in temporary or ad-hock basis or work charge basis deserve to be counted for pensionable service to make an employee eligible for pension. 10. From the perusal of the order impugned it transpires that claim for pension has been rejected in a very cursory manner, and no reason has been assigned for taking such a decision. 11. In view of above, the order passed by the authorities rendered to be non-speaking as well the order dated 16.9.2016 cannot be questioned and is accordingly set-aside. 12. The matter is remitted to the competent authority namely respondent no.2 to consider the claim of the petitioner, afresh in the light of the judgment of the Apex Court (supra) and shall be disposed of by means of reasoned and speaking order within a further period of eight weeks from the date of production of copy of this order. 13. It is further directed that if the petitioner's services are held to be admissible towards pensionable service, the pension of the petitioner would be determined and finally paid to him within a further period of eight weeks. 14. The present petition is allowed.