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2023 DIGILAW 1408 (ALL)

Satya Prakash Sharma v. State of U. P.

2023-05-23

AJIT KUMAR

body2023
JUDGMENT : Ajit Kumar, J. Heard Sri Vashishtha Tiwari, learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. In compliance of my last order dated 22nd March, 2023, an affidavit of compliance has been filed, which is taken on record. 3. In the compliance affidavit State Government has come with a case that in view of the judgment in the case of Virsh Bhan Sharma v. State of U.P. and others passed in Writ - A No. 23690 of 2018 decided on 9th January, 2019, an officiating principal cannot be said to have held the said post in substantive capacity and, therefore, an interpretation to Rule 19(b) of U.P. Contributory Provident Fund Insurance Pension Rules, 1964 is sought to be urged to be providing that a person must be holding substantive post to hold him entitled to receive pension. 4. In Virsh Bhan's case, accordingly, the petitioner in that case was refused pension. The ratio of the judgment as contained in paragraph 9 is reproduced hereunder: ''9. According to Rule-19 (a) of the Rules, service rendered by an employee would not be counted for pension unless the employee holds a substantive post on a permanent establishment. Sub Rule (b) of Rule-19 is an exception, according to which the Continuous temporary or officiating service would also be included for the purposes of payment of pension, if such continuance is followed without any interruption by confirmation in the same or another post. The statutory scheme, therefore, clearly suggests that it is either a post held substantively by a Government servant which would be the relevant criteria for determination of pension or the service on continuous, temporary or officiating basis, which is followed with the confirmation on that post or on similar post. The determination of qualifying service is essential aspect, which is dealt with by Rule 19 (b) of the Rules, while the right of pension payable would be regulated by Rule 19 (a). It is the substantive post held by an employee which, therefore, would determine his entitlement to receive pension. Since the petitioner held the post of Lecturer on substantive basis, his pension will have to be determined with reference to his substantive appointment and the respondent, therefore, have committed no error in determining his pension accordingly.'' 5. Petitioner has relied upon two judgments of concurrent Bench of this Court. Since the petitioner held the post of Lecturer on substantive basis, his pension will have to be determined with reference to his substantive appointment and the respondent, therefore, have committed no error in determining his pension accordingly.'' 5. Petitioner has relied upon two judgments of concurrent Bench of this Court. The first one in the case of Narsingh Rai v. Deputy Director of Education, Varanasi and others, 2018(11) ADJ 135 , wherein the view of the Supreme Court as expressed in the case of Isharat Jahan v. State of U.P. and others passed in Writ - A No. 5737 of 2018 has been referred, had relied upon a judgment in the case of Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25 . Interpreting service jurisprudence his Lordship referred to the aspect of the matter that a person holding position for a long period of time having requisite qualification, would entitle him to get the pensionary benefits as the pension is to be determined on the basis of last pay drawn. 6. The word 'substantive basis' is sought to be interpreted to mean a person must be holding the post substantive in nature with requisite qualification. Thus, thin distinction is sought to be drawn between substantive post and holding the post on substantive basis. Judgement as quoted in paragraph 4 of the Narishing Rai's case is reproduced hereunder: ''4- Against the afore-quoted order, the petitioner filed Writ -A No. 7439 of 2016 (Narsingh Rai v. State of U.P. and others), which was allowed by this Court by order dated 21.3.2018, as under: ''Heard Shri Adarsh Singh, learned counsel for the petitioner and learned Additional Chief Standing Counsel for State respondents. The petitioner is before this Court assailing the order dated 15.2.2018 passed by the third respondent, Deputy Director of Education (Secondary), 5th Region, Varanasi whereby he has declined to sanction his pension and for direction to the third respondent to sanction his pension on the post of Assistant Teacher L.T. Grade and to pay the same with effect from the date of his retirement i.e. 31.3.2018. Learned counsel for the petitioner submits that the petitioner was initially appointed as Assistant Teacher in L.T. Grade in a recognised and aided institution namely 'Gramodaya Inter College Gaura Badshahpur, District Jaunpur' on 2.7.1994. In pursuance thereof, he joined in the institution on 8.7.1994. Learned counsel for the petitioner submits that the petitioner was initially appointed as Assistant Teacher in L.T. Grade in a recognised and aided institution namely 'Gramodaya Inter College Gaura Badshahpur, District Jaunpur' on 2.7.1994. In pursuance thereof, he joined in the institution on 8.7.1994. Since then, he has been teaching in the institution in question on the said post, and has also been paid regular salary including annual increments and selection grade of LT Grade after 10 years of service. The appointment of the petitioner was also duly approved by the District Inspector of Schools, Jaunpur on 15.7.1995. Subsequently, by the order dated 25.4.2017 passed by the Joint Director of Education, Varanasi Region, Varanasi, his services have also been regularized w.e.f. 22.3.2016. After serving more than 23 years, the petitioner has retired on 31.3.2018 on the said post after attaining the age of superannuation. Learned counsel for the petitioner apprises to the Court that the claim set up by the petitioner is squarely covered by the judgement and order passed by this Court dated 7.3.2018 in Writ A No. 5737 of 2018 (Ishrat Jahan v. State of UP and 3 others), which was allowed on 7.3.2018, with following observations : ''17. The short question which need determination in this case is whether the petitioner who was appointed on adhoc basis and also superannuated in the same capacity without her regularisation can be held to work on a regular basis. The terms under ''ad hoc'' ''stopgap'' and ''fortuitous'' came to be considered by the Supreme Court in the case of Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25 . The Court found that a person, who has a requisite qualification and who is appointed with the approval of the appropriate authority and if he is allowed to continue on the post for a considerable long time then such appointment cannot be held to be stopgap/fortuitous or purely adhoc appointment. The Supreme Court observed as under : ''In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be ''stopgap or fortuitous or purely ad hoc''. 18. 18. The Supreme Court in the case of Ramesh K. Sharma v. Rajasthan Civil Services, (2001) 1 SCC 637 , considered the word ''substantive basis'' following the judgment of Baleshwar Dass v. State of U.P. ( AIR 1981 SC 41 ). The Supreme Court held that if an incumbent holds the post for indefinite period then it cannot be said to be adhoc appointment. The Court held as under : ''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.'' 19. This Court in the case of Dr. Hari Shanker Asopa v. State of U.P. and another, (1989) UPLBEC 501, considered the Article 361 and Clause (e) of Rule 56 of Fundamental Rules as applied in Uttar Pradesh and the Civil Service Regulations. Dr. Hari Shanker Asopa was appointed on temporary basis on the post of lecturer in the department of Surgery at S.N.Medical College, Agra on 4th August, 1964. In the year 1969, he was appointed on a substantive post of Reader in Surgery at same College that appointment too was on temporary basis. The term of the appointment was one year or till the candidate selected by the U.P.Public Service Commission was available, whichever was earlier. After three years, he was promoted to the post of Professor in Surgery in Jhansi Medical College. The said appointment was also temporary and it was for a period of one year or till the candidate regularly selected by the U.P.Public Service Commission was available or till the services of Dr. Asopa were needed, whichever was earlier. Dr. Asopa uninterruptedly continued for 18 years as a Lecturer, Reader and Professor on temporary basis. His request for voluntary retirement was allowed by the State Government in the year 1983 with a condition that no pension would be paid to him, as he was not permanent on any post of the Government Service. Asopa were needed, whichever was earlier. Dr. Asopa uninterruptedly continued for 18 years as a Lecturer, Reader and Professor on temporary basis. His request for voluntary retirement was allowed by the State Government in the year 1983 with a condition that no pension would be paid to him, as he was not permanent on any post of the Government Service. Dr. Asopa feeling aggrieved by the said order dated 21.2.1983 preferred a writ petition before this Court. 20. In the case of Hans Raj Pandey v. State of U.P. and others, 2007 (3) UPLBEC 2073 (supra) this Court had occasion to consider the provisions of U.P. State Aided Educational Institution Employees Provident Fund, Insurance and Pension Rules, 1964 also. Rule 43, 44 and 45 of the said Rule has been considered at length by this Court and also the Regulations 465 and 465 A of the U.P. Civil Service Regulations. The Court held as under : ''In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B i.e., lack of permanent character of service. However, in out view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P.Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government Servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition -B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is in operative.'' ''21. The principle, which can be discerned from the above mentioned judgment, is that if adhoc/stopgap/temporary employee having essential qualification and is appointed in terms of the statutory Rules and he continues for a long time and fulfils the qualifying service, is entitled for pension and other retiral benefits. 22. The principle, which can be discerned from the above mentioned judgment, is that if adhoc/stopgap/temporary employee having essential qualification and is appointed in terms of the statutory Rules and he continues for a long time and fulfils the qualifying service, is entitled for pension and other retiral benefits. 22. Having regard to the facts and circumstances of the case, I am of the view that petitioner is entitled for the post retiral benefits as her appointment was made in terms of the statutory Rules and the same was also approved by the District Inspector of Schools by an order dated 8.5.2013. Admittedly, on account of an interim order dated 20.1.2004 passed in Writ Petition No. 38769 of 2000, the petitioner continued to work in the institution and finally retired on attaining the age of superannuation on 1.7.2017 (worked under the sessions benefit upto 31.3.2018) and she worked uninterruptedly for more than 25 long years. 23. A direction is issued to the respondents to pay the post retiral benefits to the petitioner in accordance with law as expeditiously as possible preferably within three months from the date of communication of this order. 24. Consequently, the writ petition is allowed.'' Learned counsel for the petitioner further states that the claim set up by the petitioner is on the better footing, as his services have already been regularized on 22.3.2016 as per provisions contained under Section 33-C of U.P. Intermediate Education Act, 1921. The request has been made that the present writ petition is also liable to be allowed in terms of the aforesaid judgement. Learned Additional Chief Standing Counsel does not dispute the factual and legal aspect of the matter. The Court has proceeded to examine the record in question and finds that while passing the order impugned the Deputy Director of Education (Secondary), 5th Region, Varanasi has taken note of the regularization of the petitioner by an order dated 22.3.2016 and thus, the case of the petitioner is squarely covered by the aforesaid judgement. In view of above, the impugned order cannot sustain and the same is accordingly set aside. In view of above, the impugned order cannot sustain and the same is accordingly set aside. Consequently, the writ petition is allowed and the matter is remanded back to the Deputy Director of Education (Secondary) to take appropriate decision afresh in the light of the aforesaid judgement passed in Ishrat Jahan's case (supra) within a period of two months from the date of production of certified copy of this order.” (emphasis added) 7. Another concurrent Bench of this Court in the case of Lakshman Veer v. State of U.P., 2019 (4) All LJ 116, specifically dealt with this issue and sought to draw in fundamental Rule 26 C and E with the amendment validation Act, 1975 to interpret that the rules do not distinguish between a permanent and a temporary employee. The Court in this case also has been in tune with the philosophy of service jurisprudence which requires a person to possess requisite qualification under the rules to hold a position. If the State, therefore, on its own inaction does not make appointment on substantive basis to a post, a person holding the post as officiating capacity but post being substantive in nature is drawing salary also as admissible to the said post, cannot be denied pensionary benefits in view of the judgment cited above. Relevant paragraphs 28, 29, 30 31 of the judgment are reproduced hereinunder: ''28. Rules 17 provides eligibility for the pension and Rule 17(1) says that employee shall be eligible for pension after retirement on attaining the age of superannuation or on the expiry of extension granted beyond supperannuation and in present case, undisputedly petitioner retired after attaining the age of supperannuation. So far as Rule 19-A is concerned, it says that for pension, employee should hold substantive post on a permanent establishment. Here the facts are also not disputed that petitioner was appointed on substantive post of a permanent establishment receiving grant-in-aid from the State Government. Therefore, as provided in Rule-17 and 19-A of Rules, 1964, petitioner is entitled for pension after attaining the age of supperannuation. 29. Learned counsel for the petitioner has placed reliance upon Article 361 of Civil Service Regulation and the same is also being quoted here in below : ''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. 29. Learned counsel for the petitioner has placed reliance upon Article 361 of Civil Service Regulation and the same is also being quoted here in below : ''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. These three conditions are fully explained in the following Section. 1. Substantive service in a permanent post qualifying for pension unless the service in a particular post in specifically declared as non-qualifying under Article 350 C.S.R. when a temporary post is made permanent or a permanent post is sanctioned, it is not necessary to state that the post in question would also be pensionable under Article 361 C.S.R. 361-A. The State Government may, however, in the case of service paid from General Revenues, even though either or both of conditions (1) and (2) are not fulfilled:- (1) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension; (2) in individual cases and subject to such conditions as it may think fit to impose in each case, allow service rendered by an officer to count for pension. Subject to such conditions as it may think fit to impose, the State Government may delegate its powers under this Article to the Heads of Departments. 30. By the perusal of Article 361 of Civil Service Regulation, it is very much clear that the petitioner is fulfilling the first and third contingencies and so far as the second contingency is concerned, argument of counsel for the petitioner is having force as his matter of regularisation was not decided due to inaction on the part of respondent No. 5 within time after order of this Court dated 25.4.2005 and that has been decided vide order dated 3.1.2015 after retirement of petitioner, which is not sustainable as discussed hereinabove. 31. Learned counsel for the petitioner has also placed reliance upon Rules 56(C) and (E) of Act, 1975 and the same is being quoted below : 56(c). 31. Learned counsel for the petitioner has also placed reliance upon Rules 56(C) and (E) of Act, 1975 and the same is being quoted below : 56(c). Notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notification to the appointing authority voluntarily retire at any time after attaining the age of fifty years or after he has completed qualifying service for twenty years. 56(e). A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with an subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule. Explanation-(1) The decision of the appointing authority under Clause (c) to retire the Government servant as specified therein shall be nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest. (2) Every such decision shall, unless the contrary is proved, the presumed to have been in the public interest. (3) The expression 'appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire; and the expression 'qualifying service' shall have the same meaning as the relevant rules relating to retiring person. (4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause(d) of this rule shall have effect from the afternoon of the date of its issue provided that if after the date of its issue, the Government servant concerned bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the facts of his having earlier retired.'' 8. The Full Bench of this Court in the case of Surendra Prasad Agnihotri v. State of U.P., (2010) 0 Supreme (All) 196, very categorically held that an officiating principal holding substantive post on the basis of seniority and possessing requisite qualification, if cannot be denied service benefits and in terms of salary, such person can equally be not denied pension which is also got the service benefits to which otherwise he would be entitled on the basis of last pay drawn. vide paragraph 17 of the judgment the Court answered the reference as under: ''17. In view of the aforesaid facts and circumstances and the legal position, we make reference for constitution of a Larger Bench to deal with the following question of law: ''Whether a teacher of Intermediate College who has already been appointed as officiating principal of the Institution by virtue of his seniority on attaining the age of superannuation in the extended period of his service shall continue as officiating principal or simply as a teacher?'' 9. Coming back to the judgment cited by and annexed as part of the personal affidavit filed by Mr. Mukesh Chandra, the Deputy Director of Education, Agra Region, Agra, with great respect, I would submit that the concurrent Bench did not notice the earlier judgment of earlier concurrent Bench in the case of Narsingh Rai (supra) and the reference answered by the Full Bench as quoted above in the case of Surendra Prasad Agnihotri (supra). 10. As far back as in 1982 the Constitution Bench of this Court in the case of D.S Nakara v. Union of India, 1983 AIR 130, had very clearly interpreted that the pensionary benefit rules have to be construed so as to ensure that the object with which rules are made, is achieved and the benefit reaches to the last man in queue. It would be sufficient enough in my considered view and in the light of the judgments cited above, only for holding a post which is substantive in nature and not holding a post substantively would make also the one entitled to pension provided he/she has qualifying service to his/her credit. It has rightly been said that a Judge while interpreting the provisions must bear in mind as to whether the interpretation he is putting forth is going to benefit the last man in the queue. 11. It has rightly been said that a Judge while interpreting the provisions must bear in mind as to whether the interpretation he is putting forth is going to benefit the last man in the queue. 11. Since the concurrent Bench in the case of Virsh Bhan Sharma (supra) has not noticed either the Narisingh Rai's case or the reference answered by the Full Bench (supra), it cannot be taken as a binding precedent and so I am not bound by the view taken in Virsh Bhan's case. 12. In the present case it is not disputed that the petitioner had held the position of officiating principal of the institution which was a substantive post and with the approval of the District Inspector of Schools he was also paid salary as his signatures were attested as such, and accordingly, I hold him to be entitled to pension as would be admissible in law otherwise, on the basis of last pay drawn by the petitioner as principal of the institution. 13. In view of the above, therefore, the writ petition succeeds and is allowed as above. 14. The Deputy Director of Education, Secondary Agra Region Agra is directed to calculate the pension of petitioner on the basis of last pay drawn as principal of the institution, and shall release the same within next three months' time. 15. In the circumstances, therefore, there will be no order as to cost.