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2022 DIGILAW 1839 (ALL)

Shree Ram v. State of U. P.

2022-11-23

SANGEETA CHANDRA

body2022
JUDGMENT : SANGEETA CHANDRA, J. 1. Heard learned counsel for the petitioner and Sri Mrigraj Singh, learned counsel appearing on behalf of Zila Panchayat as well as the learned Standing Counsel who appears on behalf of the respondent nos. 1 and 2. 2. This petition has been filed by the petitioner praying for quashing of the order dated 13.04.2018 served on the petitioner's counsel on 27.04.2022 in Contempt Petition No. 1587 of 2018 and praying for a mandamus to be issued to the respondents to pay entire pension along with interest thereon w.e.f. 31.07.1999. 3. It is the case of the petitioner that he was initially engaged as a Paid Apprentice Vaccinator in Zila Panchayat Gorakhpur in 1974. The District of Gorakhpur was bifurcated and new District of Maharajganj was created. The petitioner was transferred to Maharajganj along with other staff and had been working in Maharajganj since 1993. The petitioner retired on 31.07.1999 after rendering more than 26 years of service. He could not get post retiral benefits and therefore, he filed Writ Petition No. 61840 of 2005 (Shree Ram vs. State of U.P. and Others) which was allowed by learned Single Judge on 11.08.2009 with a direction to the respondent to pay retiral dues to the petitioner treating him to have retired from the post of Pound Keeper. A special appeal, namely, Special Appeal No. 785 of 2010 was filed by the Zila Panchayat Maharajganj which was allowed by the Division Bench on 28.02.2013 with a direction to the Single Judge to reconsider the matter afresh. Learned Single Judge thereafter rejected the writ petition of the petitioner by his order dated 12.04.2016 placing reliance upon the judgment of Full Bench of this Court in Babu Ram vs. State of U.P. and Others, 2016 (3) ADJ 149 , wherein the Court had held that period spent by an employee on work charge, cannot be counted for the purposes of calculating the qualifying service for retiral dues. The petitioner filed special appeal against the order of the Single Judge which special appeal was decided on 26.05.2017 with a direction to the Secretary, Department of Panchayat Raj to look into the grievance of the petitioner and to pass appropriate order thereon within a period of four months from the date of receipt of certified copy of that order. 4. 4. Now by the impugned order passed by the Secretary, Panchayat Raj, Government of U.P. dated 13.04.2018, the State Government had rejected the claim of the petitioner. Hence this petition. 5. It has been argued by learned counsel for the petitioner that the petitioner has been working since 1974 in District Gorakhpur and was thereafter transferred in 1993 to Zila Panchayat Maharajganj. The Zila Panchayat Maharajganj has been taken work from the petitioner and also paying him salary as is evident from the orders filed as Annexure-9 and 10 to the petition. It has been argued that the Zila Panchayat Maharajganj has been referring to the petitioner as Pound Keeper sometimes and also as Tax Collector at other time. After rendering 26 years of service, the petitioner has been left on road. Learned counsel for the petitioner has placed reliance upon several judgments of the coordinate Benches of this Court to say that in similar matters, this Court has directed payment of pension and other retiral benefits. Copies of the orders have been annexed as Annexure-13 to the petitioner collectively. 6. Learned Standing Counsel and Sri Mrigraj Singh have pointed out from the counter affidavit filed by them and also from the impugned order that the petitioner was initially engaged as a Paid Apprentice Vaccinator in Zila Panchayat Gorakhpur. The Paid Apprentice Vaccinator has no right to be appointed on a regular post. There was one post of Assistant Vaccinator/Superintendent and 21 Vaccinators in Zila Panchayat Gorakhpur which were converted into post of Pound Keepers/Tax Collectors by an order of Commissioner, Gorakhpur dated 14.08.1987. Three posts of Paid Apprentice Vaccinator however were not converted into the regular post. The petitioner as well as two others Paid Apprentice were transferred to Zila Panchayat Maharajganj on its creation in 1993. The petitioner reached the age of superannuation and retired in July 1999. Although it has been accepted by the respondents that the petitioner has been working on various assignments given to him and salary has been paid to him by the Zila Panchayat Gorakhpur and thereafter Zila Panchayat Maharajganj. It has been pointed out that there was no post created by any competent Authority on which the petitioner could be said to have been engaged at any point of time. Provident Fund Contributory deductions from the salary of the petitioner was also not done at any point of time. It has been pointed out that there was no post created by any competent Authority on which the petitioner could be said to have been engaged at any point of time. Provident Fund Contributory deductions from the salary of the petitioner was also not done at any point of time. The proposal sent to the Government for conversion of Paid Apprentice Vaccinator to post of Pound Keeper, had been rejected long ago. The petitioner was asked to work on various assignments due to administrative exigency and he was paid from contingency fund. The post on which the petitioner was working, was neither substantive nor permanent and therefore could not be said to be a post on the pensionable establishment as per clause 7(b) of Rule 2 of the U.P. (Zila Panchayat) Employees Post Retiral Benefits Service Rules, 1972. The petitioner’s case has therefore been rejected by the respondent no. 1. 7. This Court has considered the judgments passed by the coordinate Benches which have been placed on record collectively as Annexure-13 to the writ petition. 8. In Writ Appeal No. 8535 of 2014, Mahendra Singh vs. State of U.P. and Others, the writ petitioner was given temporary appointment in 1981 as Godown Chaukidar and was regularised with effect from 05.10.1997 and he retired on 30.06.2011. The Court placed Reliance upon the judgment of the Supreme Court in Prem Singh vs. State of U.P. AIR 2019 SC 4390 and judgment of the Supreme Court in Habib Khan vs. State of Uttarakhand, Civil Appeal No. 10806 of 2017, decided on 23.08.2107 to say that the petitioner was entitled for benefit of counting his previous service rendered before his regularisation in Department as temporary employee as qualifying service for pension. 9. In Writ Appeal No. 14387 of 2017, Om Prakash Singh Tomar vs. State of U.P. and Others the petitioner was a Seasonal Collection Amin and his service rendered as such w.e.f. 16.04.1990 to 09.06.2006 when he was regularised as Collection Amin, were not been counted for the purposes of qualifying service of pension. The Court placed reliance upon the judgment rendered in Prem Singh (supra) and also order passed in Dr. Hari Shankar Ashopa vs. State of U.P. and Others, 1989 (59) FLR 110 to say that temporary service rendered before regularisation can be counted as qualifying service after regularisation. 10. The Court placed reliance upon the judgment rendered in Prem Singh (supra) and also order passed in Dr. Hari Shankar Ashopa vs. State of U.P. and Others, 1989 (59) FLR 110 to say that temporary service rendered before regularisation can be counted as qualifying service after regularisation. 10. In Writ Appeal No. 6627 of 2021, Rakesh Kumar and Others vs. State of U.P. and Others, the Court was considering various orders passed against the writ petitioners rejecting their claim for counting their service on work charge establishment as qualifying service for pension. The Court also considered the U.P. Qualifying Service for Pension and Validation Ordinance, 2020 and the Court relied upon the judgment rendered by the Division Bench in State of U.P. vs. Mahendra Singh, Special Appeal Defective No. 1003 of 2020, wherein the Division Bench directed that service rendered in work charge establishment should be considered for calculating qualifying service for pension. Such judgment of the Division Bench was also relied upon by another Division Bench in State of U.P. and Others vs. Bhanu Pratap Sharma, Special Appeal No. 97 of 2021. 11. In Writ Appeal No. 35301 of 2017, Bhanu Pratap Sharma vs. State of U.P. and Others, the learned Single Judge had considered service rendered in work charge establishment by the writ petitioner as qualifying service for pension in view of the law settled by the Supreme Court in the case of Prem Singh (supra). The Special Appeal arising out of the judgment of the Single Judge had considered the U.P. Qualifying Service for Pension and Validation Ordinance, 2020 which was latter converted into Act No. 1 of 2021 on 05.03.2021 and Section 2 thereof where ‘Qualifying Service’ has been defined to mean the service rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of Service Rules prescribed by the Government for the post. In the counter affidavit, it had come out that the writ petitioner Bhanu Pratap Sharma had been appointed in the office of the Executive Engineer on the post of Rig Assistant on work charge establishment and thereafter petitioner was regularised on 18.03.2006. The Court observed that since the writ petitioner was appointed on a post in work charge establishment, the service rendered on such post shall be considered as qualifying service as he was regularised immediately thereafter. 12. The Court observed that since the writ petitioner was appointed on a post in work charge establishment, the service rendered on such post shall be considered as qualifying service as he was regularised immediately thereafter. 12. In State of U.P. and Others vs. Mahendra Singh, Special Appeal Defective No. 1003 of 2020 also, the Division Bench placed reliance upon admission in the counter affidavit that 415 temporary posts were created in persuance of the Government order issued in 1990 and the petitioner was appointed as Watchman on such temporary post which was latter converted into a regular post and the writ petitioner was regularised on 06.10.1997. The Court relied upon the judgment in Prem Singh (supra) and considered services reinded in temporary establishment immediately before regularisation as qualifying service for pension. 13. In Service Single No. 12417 of 2018, Madan Gopal Pandey vs. State of U.P. the Single Judge placed reliance upon the judgment rendered in Habib Khan (supra) and held that the petitioner who was working as Seasonal Collection Amin before his regular appointment as Collection Amin, shall be entitled to get his services rendered prior to his regularisation as qualifying service. 14. Learned counsel for the petitioner has placed reliance upon the judgment in A.P. Srivastava vs. Union of India, 1995 Law Suit (SC) 921 where the Supreme Court was considering the case of the appellant who had been appointed as temporary Lower Division Clerk and later on promoted on Upper Division Clerk thereafter again reverted and compulsory retirement order was passed under Rule 56 of the Fundamental Rules. The Court placed reliance upon the Rule 56(j) of the Fundamental Rules and observed that once an incumbent is compulsorily retired after rendering required number of years of service, he shall be allowed to be paid pension. The condition precedent for being entitled to pension in case of a temporary Government servant is rendering 20 years of service and the appellant had completed more than 20 years of service. 15. As is evident from a perusal of the orders passed by the co-ordinate Benches and Division Bench of this Court and the Supreme Court as aforesaid, service rendered in ad-hoc, temporary establishment and work charge establishment has been considered as qualifying service subsequent to regularisation of the incumbent. In case of the petitioner, he was engaged as a Paid Apprentice without any post. In case of the petitioner, he was engaged as a Paid Apprentice without any post. The proposal for converting the post of Paid Apprentice into the post of Tax Collector/Pound Keeper was rejected by the Government long ago. The petitioner was never regularised on any sanctioned post. No doubt, the petitioner was asked to work on in various capacities for 26 years by the respondents but such work that was taken from him, was out of administrative exigency and paid from contingency fund. There being no post in the regular establishment ever sanctioned by any competent Authority on which the petitioner could be said to have been engaged in accordance with the Rules framed by the Government in this regard, this Court cannot grant the relief as prayed for in this petition. 16. The writ petition lacks merit and is hereby dismissed.