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2024 DIGILAW 78 (ALL)

Suresh Kumar Sharma v. State of U. P.

2024-01-08

OM PRAKASH SHUKLA

body2024
JUDGMENT Om Prakash Shukla, J. Heard learned Counsel for the petitioner, learned Standing Counsel representing the respondent Nos.1 and 2 and Mr. Akhilesh Kumar Srivastava, learned counsel representing respondent No.3. 2. The present writ petition has been filed with the following main reliefs :- "i. To issue a writ, order or direction in the nature of certiorari to quash the impugned Order dated 07/08/2023 passed by the Opposite party No.-2 (Annexure no.-1). ii. To issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to regularize the service of petitioner from 26/08/2003 like similarly situated persons and accordingly ensure the payment of regular pension to the petitioner. iii. To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to Count the ad-hoc services of petitioner from 07-03-1995 for qualifying service for the purpose of payment of pension and other retiral dues at par with similarly situated persons. iv. To, issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay the arrear of pension to the petitioner along with admissible rate of interest." 3. Shorn off unnecessary details the facts of the case are that on 01.01.1990, the petitioner was engaged as Junior Engineer (Civil) on daily wage basis and while continuing as such, vide order dated 11.05.2010, he along with similarly situated persons were given ad hoc status w.e.f. 07.03.1995 like one Sri Ratnesh Saxena as per Rule 31 of U.P. Palika (Centralized Service) Rules, 1966. Subsequently, while continuing on work-charge establishment in pursuance of the aforesaid order, the services of the petitioner along with 23 similarly situated Junior Engineer (Civil) were regularized vide order dated 03.11.2015 under U.P. Palika (Centralized Services) (21st Amendment), Rules, 2003. Thereafter, the petitioner had retired from service on attaining the age of superannuation on 31.03.2023. After retirement, the petitioner had sought pension and other retirement dues in terms of Old Pension Scheme, which has been rejected vide order dated 07.08.2023 inter alia on the ground that since the services of the petitioner was regularized w.e.f. 13.11.2015, therefore, he is entitled for New Pension Scheme. It is this order dated 07.08.2023, which has been assailed in the instant writ petition. 4. It is this order dated 07.08.2023, which has been assailed in the instant writ petition. 4. Assailing the impugned order dated 07.08.2023, learned Counsel representing the petitioner has drawn attention upon the decision of this Court rendered in Writ-A No. 11333 of 2021 : Badri Narayan Agnihotri v. State of U.P. and 3 others, decided on 01.12.2021 and has argued that the issue involved in the instant writ petition has already been adjudicated and decided by this Court vide judgment/order dated 01.12.2021 (supra), whereby this Court, while allowing the writ petition, directed the authorities to release the current pension, arrears of pension and other unpaid retiral dues to the petitioner in accordance with the old pension scheme. According to the learned Counsel, this judgment/order dated 01.12.2021 was upheld by the Division Bench in Special Appeal No. 375 of 2022, decided on 16.05.2022 and by the Apex Court in Special Leave Petition (Civil) Diary No. 29048 of 2022 : the State of Uttar Pradesh and another v. Badri Narayan Agnihotri and others, decided on 21.11.2022. In this backdrop, learned Counsel for the petitioner prays that impugned order rejecting the claim of the petitioner for grant of old pension is liable to be quashed and the petitioner is liable to be entitled to get pension under old pension scheme in terms of the judgment/order dated 01.12.2021 (Supra). 5. Learned Standing Counsel representing the State and learned Counsel representing the respondent no.3-Municipal Corporation, Lucknow does not dispute the fact that the petitioner was given the ad hoc status w.e.f. 07.03.1995 vide order dated 11.05.2010 and while continuing as such, his services were regurlized w.e.f. 03.11.2015 along with 23 similarly situated persons and he, while continuing as such, retired from service on attaining the age of superannuation on 31.03.2023. They also does not dispute the fact that the petitioner's case is squarely covered by the judgment and order of this Court dated 01.12.2021 (supra), which has been affirmed by the Apex Court vide judgment/order dated 21.11.2022. 6. Having regard to the submissions of the learned Counsel for the parties and going through the record available before this Court, it is required to be noted that the petitioner was initially appointed as Junior Engineer (Civil) on daily wage basis on 01.01.1990 in Municipal Corporation, Lucknow. 6. Having regard to the submissions of the learned Counsel for the parties and going through the record available before this Court, it is required to be noted that the petitioner was initially appointed as Junior Engineer (Civil) on daily wage basis on 01.01.1990 in Municipal Corporation, Lucknow. Subsequently, vide order dated 11.05.2010, in terms of identical person like Sri Ratnesh Saxena, Junior Engineer (Civil), the petitioner including similarly situated persons were given ad-hoc status with effect from 07.03.1995 as per Rule 31 of U.P. Palika (Centralized Service) Rules 1966. Thereafter, vide order dated 03.11.2015, the Director, Local Bodies, Lucknow, U.P. regularized the services of 23 similarly situated Junior Engineer (Civil) including the petitioner against the vacant posts of Junior Engineer (Civil). After completion of service tenure, the petitioner retired on 31.03.2023. 7. Rule 21-A of the Uttar Pradesh Palika (Centralized) Services (Twenty First Amendment) Rules, 2003 reveals that such of the ad hoc employee who have completed 3 years of continuous service, a right is conferred upon them to be considered for appointment, in permanent or temporary vacancy as may be available on the basis of his service record and suitability before any regular appointment is made in accordance with the provisions contained in these Rules. 8. It has been contended by the learned Counsel for the petitioner that as the petitioner was appointed on ad hoc basis as Junior Engineer (Civil) w.e.f. 07.03.1995 vide order dated 11.05.2010, which attained finality and on completion of three years of services in the month of March, 1998, he became eligible to be considered for appointment in permanent/temporary vacancy as available and his suitability was to be considered on the basis of his service record. 9. It is not in dispute that much before the New Pension Scheme came into force w.e.f. 01.04.2005, the rights were confirmed in favour of the employee seeking regular employment in terms of Rule 21-A (iii) of the Rules, 2003. It is not the case of the respondents that there was no vacancy, permanent or temporary, available against which his candidature would have been considered for regular appointment prior to his order for regular appointment passed by the authorities on 03.11.2015. 10. It is not the case of the respondents that there was no vacancy, permanent or temporary, available against which his candidature would have been considered for regular appointment prior to his order for regular appointment passed by the authorities on 03.11.2015. 10. Considering the aforesaid facts and keeping in mind the decision of this Court rendered on 01.12.2021 (Supra), this Court is of the view that the petitioner's case is squarely covered by the decision of this Court dated 01.12.2021 (supra), which has been affirmed by the Apex Court vide order dated 21.11.2022 (Supra). 11. In view of the aforesaid, the writ petition is allowed. The impugned order dated 07.08.2023 issued by the respondent no.2 is hereby quashed. The competent authority/respondent no.2-the Director, Local Body, Lucknow, is directed to release the current pension, arrears of pension and other unpaid retiral dues to the petitioner in accordance with the old pension scheme, expeditiously, say, within a period of two months from the date of receipt of a certified copy of this order.