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Allahabad High Court · body

2025 DIGILAW 1374 (ALL)

Manoj Kumar Mishra v. State of U. P.

2025-12-01

J.J.MUNIR

body2025
JUDGMENT : J.J. MUNIR, J. 1. This writ petition has been instituted by the petitioner, Manoj Kumar Mishra, a retired Assistant Engineer (Civil), belonging to the U.P. Palika Centralised Service, seeking our mandamus, ordering the respondents to sanction and fix his pension and gratuity, taking into account his entire length of service from 07.03.1995 to 30.06.2024, that is to say, including the period during which he worked ad hoc. The petitioner has further prayed that he be paid his monthly pension regularly, together with arrears, and, further, that gratuity be also determined and paid to him. 2. The petitioner’s case is that he was appointed as a Junior Engineer (Civil) on daily-wages w.e.f. 29.05.1985 with the Nagar Palika Parishad, Mainpuri. He has remained in employment continuously eversince. In the year 1995, proceedings were taken by the State Government to grant appointment as Junior Engineers (Civil) under Rule 31 of the Uttar Pradesh Palika (Centralised) Services Rules, 1966 (for short, ‘the Rules of 1966’) to persons working on daily-wage/ contract/ ad hoc basis in the various Nagar Nigam/ Nagar Palika Parishad. In the aforesaid proceedings, the petitioner’s name was also included for consideration. On 07.03.1995, an order was issued by the State Government, whereby 58 persons were appointed as Junior Engineers (Civil) under Rule 31 of the Rules of 1966. The petitioner’s name figures at serial No.53 of the said list. In terms of the order dated 07.03.1995, the petitioner submitted his joining report to the Director, Local Bodies, U.P., Lucknow. He was posted at Nagar Palika Parishad, Mahoba, where he joined and discharged duties assigned to him. The petitioner was transferred and posted to different establishments. His work and conduct was always found satisfactory. There was no complaint with regard to his performance etc. by his superiors. 3. The petitioner’s appointment vide order dated 07.03.1995 was an ad hoc appointment under Rule 31 of the Rules 1966. The Rules of 1966 were amended on 10.04.2003 vide the Uttar Pradesh Palika (Centralised) Services (Twenty-First Amendment) Rules, 2003, which introduced Rule 21-A into the said Rules. It provided for regularization of ad hoc employees, which applies to the petitioner's case. The petitioner’s appointment vide order dated 07.03.1995 was an ad hoc appointment under Rule 31 of the Rules 1966. The Rules of 1966 were amended on 10.04.2003 vide the Uttar Pradesh Palika (Centralised) Services (Twenty-First Amendment) Rules, 2003, which introduced Rule 21-A into the said Rules. It provided for regularization of ad hoc employees, which applies to the petitioner's case. The petitioner asserts that under Rule 21-A st of the Rules of 1966, as amended by the 21 Amendment, his services should have been regularized in the year 2003 itself, but on account of the respondents' lethargy, there was a time lag in issuing the necessary regularization orders. A regularization order, relating to the petitioner along with some other employees, was made on 11.10.2006 by the Director, Local Bodies, U.P., Lucknow. 4. At the time when the regularization order was made, the petitioner was posted with the Nagar Nigam, Agra. He continued with that Nagar Nigam until the year 2016, when he was transferred to the Nagar Palika Parishad, Kayamganj, District Farrukhabad. In the year 2017, the petitioner was moved to the Agra Development Authority, Agra. While working with the Development Authority aforesaid, he was promoted as an Assistant Engineer (Civil) in the year 2023. He retired from service on 30.06.2024 upon attaining the age of superannuation. The petitioner says that regular deductions from his salary were made towards his GPF from the month of March, 1995 until his retirement. During his service, he was sanctioned several benefits worked out on the basis of his length of service, reckoned w.e.f. 07.03.1995. 5. On 23.05.2017, an office order was issued by the Director, Local Bodies, whereby benefits of financial upgradation were sanctioned to persons, whose names appear in the said order. The petitioner's name finds place at serial No.41 of the last mentioned order. A perusal of the order indicates, as the petitioner says, that on completion of 10 years’ satisfactory service, he was sanctioned his first financial upgradation w.e.f. 01.12.2008, and, upon completion of 16 years of service, a second financial upgradation w.e.f. 09.03.2011. It is also said that the benefit of the Assured Career Progression (ACP) scheme was sanctioned for the petitioner, computing his service from the month of March, 1995. The case of the petitioner is that upon retirement, he was paid his provident fund and dues on account of leave encashment. It is also said that the benefit of the Assured Career Progression (ACP) scheme was sanctioned for the petitioner, computing his service from the month of March, 1995. The case of the petitioner is that upon retirement, he was paid his provident fund and dues on account of leave encashment. However, he was neither paid gratuity nor sanctioned or disbursed his pension. Apparently, as the petitioner acknowledges, he has been denied his pension and gratuity on ground that his services were regularized on 11.10.2006, and that being a date subsequent to 01.04.2005, the new pension scheme had come into force, which was a contributory pension scheme and the old pension scheme had been abolished. 6. It is pleaded on behalf of the petitioner that he was appointed on 07.03.1995 in accordance with Rule 31 of the Rules of 1966. This appointment, though called ad hoc, is indeed one made in accordance with Rules and is not ad hoc in the sense in which the term is understood. Since the petitioner has functioned continuously from 07.03.1995, after being appointed under Rule 31 of the Rules of 1966, followed by regularization in service on 11.10.2006, the entire period has to be reckoned as regular service, entitling him to pension under the pre-existing or old pension scheme. 7. It is also asserted that the entitlement of the petitioner to regularization would crystallize under the Amendment of 2003 to the Rules of 1966 in the month of April, 2003. The delay in issue of the regularization order is a lapse on the respondents' part, for which the petitioner cannot be denied his right, that would otherwise accrue. It is also pleaded that the regularization order, albeit issued on 11.10.2006, would relate back to the date of the petitioner's entitlement to regularization. The petitioner represented his cause to the Director, Local Bodies in June, 2021, but the representation did not elicit response. No action was taken. 8. It is the denial of the petitioner's pension and gratuity, which has brought him to this Court. 9. A notice of motion was issued on 25.10.2024. A counter affidavit filed on behalf of the Agra Development Authority on 14.11.2024. Two separate counter affidavits were filed, one on behalf of the State, and the other, the Director, Local Bodies, on 09.12.2024 in Court. These were taken on record. Mr. Ashok Khare, learned Senior Advocate assisted by Mr. 9. A notice of motion was issued on 25.10.2024. A counter affidavit filed on behalf of the Agra Development Authority on 14.11.2024. Two separate counter affidavits were filed, one on behalf of the State, and the other, the Director, Local Bodies, on 09.12.2024 in Court. These were taken on record. Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Aditendra Singh, learned Counsel for the petitioner, waived his right to file a rejoinder. 10. Parties having exchanged affidavits, the writ petition was admitted to hearing, which proceeded forthwith. It was re-heard on 02.06.2025, connecting it to Writ-A No.17940 of 2024. We do not think that connection of the two writ petitions was required, because a different set of rules apply to the petitioners in the two writ petitions, notwithstanding the similarity of cause of action and relief. This petition was heard further on 18.07.2025, 04.08.2025, 19.08.2025 and 25.08.2025, when judgment was reserved. 11. Heard Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Kauntey Singh, learned Counsel for the petitioner, Mr. Akhilesh Kumar Tripathi, learned Standing Counsel on behalf of respondent Nos. 1 and 2, Mr. S. C. Dwivedi, learned Counsel appearing on behalf of the Agra Development Authority and Mr. Kunal Shah, learned Amicus Curiae. 12. Upon hearing learned Counsel for the parties, we find that the petitioner was appointed as a daily-wager way back on 29.05.1985. Some orders were made by the State Government under Rule 31 of the Rules of 1966 to appoint daily-wagers, who had worked for three years or more, prior to 01.10.1994, and were in service on 07.03.1995 on ad hoc basis. It is not in dispute that the petitioner was found fit and eligible to be appointed on ad hoc basis under Rule 31 of the Rules of 1966 as a Junior Engineer. Now, this was not an appointment de hors the rules, but had some regularity about it. Rule 31 of the Rules of 1966 reads: “ 31. Ad hoc and temporary officiating appointments. – Notwithstanding anything contained in Rule 21, the State Government may also make ad hoc appointments or temporary officiating arrangements for the posts falling vacant substantively or temporarily” 13. Rule 21-A was introduced in the Rules of 1966 vide notification dated 10.04.2003. It reads: “ 21-A. Regularisation of ad hoc appointments. Ad hoc and temporary officiating appointments. – Notwithstanding anything contained in Rule 21, the State Government may also make ad hoc appointments or temporary officiating arrangements for the posts falling vacant substantively or temporarily” 13. Rule 21-A was introduced in the Rules of 1966 vide notification dated 10.04.2003. It reads: “ 21-A. Regularisation of ad hoc appointments. – (1) Any person who– (i) was directly appointed on ad hoc basis before June 30, 1998 and is continuing in service as such on date of commencement of these rules; (ii) possessed requisite qualifications prescribed under Rule 12 for regular appointment at the time of such ad hoc appointment; and (iii) has completed or as the case may be, after he has completed three years continuous service, shall 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 such vacancy in accordance with the provisions contained in these rules.'" (2) In making regular appointment under these rules reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment. (3) For the purpose of sub-rule (1) Government shall constitute a, Selection Committee and consultation with the Commission shall not be necessary. (4) The Director of local bodies shall prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of order of their ad hoc appointment and if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with their character rolls and such other service records pertaining to them as may be considered necessary to judge their suitability. (5) The Selection Committee shall consider the case of the candidates on the basis of their records referred to in sub-rule (4). (6) The Selection Committee shall prepare a list of selected candidates, the names in the list being arranged in order of seniority and forward it to the Government and the Director of Local Bodies. (5) The Selection Committee shall consider the case of the candidates on the basis of their records referred to in sub-rule (4). (6) The Selection Committee shall prepare a list of selected candidates, the names in the list being arranged in order of seniority and forward it to the Government and the Director of Local Bodies. (7) The Government or Director of Local Bodies shall, subject to the provisions of sub-rule (2) of this rule and sub-rule (1) of Rule 6, make appointment from the list prepared under sub-rule (6) of these rules in order in which their names stand in the list. (8) Appointments made under sub-rule (7) shall be deemed to be made under relevant provision contained in Rule 21. (9) A person appointed under this rule shall be entitled to seniority only from the date of order of appointment after selection in accordance with this rule and shall, in the cases, be placed below the persons appointed in accordance with the procedure for direct recruitment contained in Part V of these rules prior to the appointment of such person under this rule. (10) If two or more persons are appointed together under this rule, their seniority inter se shall be determined in the order mentioned in the order of appointment. (11) The services of a person, appointed on ad hoc basis who is not found suitable or whose case is not covered by sub-rule (1) of this rule, shall be terminated forthwith and on such termination, he shall be entitled to receive one month's pay." 14. The petitioner was regularized under Rule 21-A of the Rules 1966, because he had been working for the requisite number of years, as contemplated under the relevant Government Order, galvanizing the process of regularization under Rule 21-A. He was found to have the necessary qualifications under the Rules and the regularization certainly contemplated the existence of a vacancy. It would also be noticed that when the petitioner was given an ad hoc appointment, that too was against a post, that was substantively or temporarily vacant. Rule 21-A also required that ad hoc appointees be considered for regularization before any regular appointment was made under the Rules of 1966. 15. It would also be noticed that when the petitioner was given an ad hoc appointment, that too was against a post, that was substantively or temporarily vacant. Rule 21-A also required that ad hoc appointees be considered for regularization before any regular appointment was made under the Rules of 1966. 15. It is asserted in paragraph No.25 of the writ petition that the petitioner was entitled to regularization in February, 2003, that is to say, the date when Rule 21-A was introduced in the Rules of 1966, and, further, that the mere fact that there existed a default on the respondents' part in passing timely orders, cannot affect the petitioner's legal entitlement, which means his entitlement to pension etc. The said paragraph is not specifically denied in the counter affidavit about the factum of delay in taking action for the petitioner's regularization. All that is said is that the petitioner was appointed on a regular basis to the post of Junior Engineer (Civil) against a vacant post by means of the Directorate's letter dated 11.10.2006. There is no justification offered as to why the delay occurred. There is no assertion of the fact that there was no vacant post, against which the petitioner could be regularized, when Rule 21-A was introduced. 16. Apparently, the petitioner had been appointed on an ad hoc basis way back on 07.03.1995, and that ad hoc appointment had to be against a vacant post, substantive or temporary, as the said Rule contemplates. There was, therefore, no justification for the respondents to have delayed issuing regularization orders after the amendment was notified on 10.04.2003. Therefore, the State's inaction or prolixity in issuing the necessary regularization order would not divest the petitioner of his right to regularization that accrued under Rule 21-A(1) of the Rules of 1966 at the relevant point of time, when the old pension scheme was still in force. The delayed issue of the regularization order on 11.10.2006 would not divest the petitioner of the right to receive pension under the old pension scheme, that was in vogue at the time when his right to regularization crystallized. 17. The delayed issue of the regularization order on 11.10.2006 would not divest the petitioner of the right to receive pension under the old pension scheme, that was in vogue at the time when his right to regularization crystallized. 17. If a different view of the matter is taken and one were to go simply by the date of regularization and the prevalent pension scheme, it would introduce an element of arbitrariness, in that, that the State could delay issuing the regularization order, to which the petitioner was entitled under the Rules on the date the Rule came into force until such time that the new pension scheme was introduced. There is no valid justification offered by the respondents for all the delay between 10.04.2003, when Rule 21- A came into force and 11.10.2006, when the regularization order was actually issued. The petitioner must, therefore, be held entitled to the benefit of the old pension scheme, that was in force prior to 01.04.2005, the date of the regularization order notwithstanding. 18. This issue was answered, the way we have understood it, in State of U.P. and others v. Chandra Mohan Yadav Retired Junior Engineer Civil, Nagar Nigam, 2025 SCC OnLine All 5210 , where it has been held: “ 16. There is, however, another aspect which may not be lost sight of. All the writ petitioners were appointed initially on temporary basis in late 1980s and they were offered ad hoc appointments with effect from 7.3.1995. They possessed requisite qualification for appointment to the post. By virtue of Rule 21-A(1), their services were liable to be considered for regularisation soon after the introduction of Rule 21- A(1) in the Rules, 1966. Merely because the State did not consider their services for regularisation for sufficiently long would not be a valid ground to allow the State to contend now that since their entry into service is after 1.4.2005, therefore, they would not be entitled to the benefit under the Old Pension Scheme.” 19. The aforesaid decision of the Division Bench was assailed before the Supreme Court by means of Special Leave to Appeal (C) No(s).22890-22893/2025, State of U.P. and another v. Chandra Mohan Yadav and another , where the Supreme Court vide order dated 22.08.2025 declined to grant leave and dismissed the petition for grant of special leave. 20. The aforesaid decision of the Division Bench was assailed before the Supreme Court by means of Special Leave to Appeal (C) No(s).22890-22893/2025, State of U.P. and another v. Chandra Mohan Yadav and another , where the Supreme Court vide order dated 22.08.2025 declined to grant leave and dismissed the petition for grant of special leave. 20. The issue is also covered by another Bench decision of this Court in State of U.P. and others v. Raj Bahadur Pastor, 2022 (3) ADJ 5 (DB) 21. Likewise, in State of U.P. and another v. Badri Narayan Agnihotri and others, 2022:AHC:92589-DB , it was held in the context of the same Rule 21-A of the Rules of 1966, which is subject matter of consideration in the present matter, thus: “A perusal of the aforesaid provisions of the Service Rules governing the field, it is borne out that an ad-hoc appointment is not to be treated as substantive appointment and an ad-hoc appointee becomes a Member of the Service only on the appointment to a post in the cadre of the Centralized Services under the Rules. The writ petitioner / respondent admittedly was appointed as Revenue Inspector on ad-hoc basis on 25.8.1989 and was regularized by order dated 5.2.2008 and thus became a Member of the Service of the Municipal Corporation, Kanpur on regularization of his services i.e. on 5.2.2008. The New Pension Scheme has been introduced w.e.f. 1.4.2005 and in such view of the matter, the learned counsel for the appellants appears to be justified in submitting that the writ petitioner / respondent is entitled for Old Pension Scheme and not the New Pension Scheme. However, we find that the writ petitioner / respondent was directly appointed on ad-hoc basis on 25.8.1989 i.e. on a date anterior to June 30, 1998 mentioned under Rule 21-A (i) and has been continuing in service as such on the date of commencement of the Rules, 2003 and possessed the requisite qualifications prescribed under Rule 12 for regular appointment and has also completed three years continuous service was liable to be considered for appointment in permanent or temporary vacancy and as such, absorbed as "Member of the Service" since July, 2001 and in such view of the matter, he would stand entitled to the Old Pension Scheme. The State Government has proceeded to regularize the services of the writ petitioner / respondent only in the year 2008 even though he stood entitled to the same in the year 2001 itself. In our opinion, the writ petitioner / respondent could not be deprived of his absorption as a member of the services merely on account of the lackadaisical attitude of the Government.” 22. The aforesaid judgment of the Division Bench, upholding the Single Judge, when put in issue before the Supreme Court by the State vide Special Leave Petition (Civil) Diary No(s). 29048/2022, The State of Uttar Pradesh and another v. Badri Narayan Agnihotri and others , decided on 21.11.2022, was affirmed and the SLP dismissed. The following remarks of the Supreme Court in Badri Narayan Agnihotri (supra) are illuminating: “Respondent No.1- employee joined service on ad-hoc basis as Revenue Inspector in Municipal Corporation, Kanpur on 25.08.1989. Rule 21-A of The Uttar Pradesh Palika (Centralized) Services (Twenty First Amendment) Rules, 2003 indicates that such of the ad-hoc employees 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 services record and suitability before any regular appointment is made in accordance with the provisions contained in these Rules. The learned counsel for the respondent contends that as he was appointed on ad-hoc basis as Revenue Officer on 25.08.1989 and on completing 3 years of services in the month of August 1992, 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. Much before the new Pension Scheme came into force with effect from 01.04.2005, the rights were confirmed in favour of the employee seeking regular employment in terms of Rule 21-A (iii). It was never the case of the petitioner that there was no vacancy, permanent or temporary, available against which his candidature would have been considered for regular appointment prior to his order of regular appointment passed by the authorities on 05.02.2008.” 23. The contention of the petitioner that he is entitled to pension w.e.f. 07.03.1995, when he was appointed on ad hoc basis, however, cannot be accepted. The contention of the petitioner that he is entitled to pension w.e.f. 07.03.1995, when he was appointed on ad hoc basis, however, cannot be accepted. The entitlement to pension has to be limited to the date when the petitioner was actually regularized or in a case, such as this, when he was entitled to be regularized, but wrongfully deprived due to the respondents' inaction. It cannot be anything more. 24. In the result, this petition succeeds and is allowed . A mandamus is issued, directing the Principal Secretary, Nagar Vikas, Government of U.P., Lucknow, the Director, Local Bodies, U.P., Lucknow and the Secretary, Agra Development Authority, Agra, to ensure amongst themselves payment of pension and gratuity to the petitioner, reckoning his entitling service w.e.f. 10.04.2003 and pay the pension with effect from the month following his retirement, together with arrears, which will carry simple interest at the rate of 6% per annum. The arrears shall be paid within a period of two months from the date of communication of this order. The current pension shall be paid regularly month-by-month forthwith. Likewise, due gratuity shall be paid to the petitioner, also within a period of two months from the date of communication of this order. 25. There shall be no order as to costs. 26. Let a copy of this judgment be communicated to the Principal Secretary, Nagar Vikas, Government of U.P., Lucknow, the Director, Local Bodies, U.P., Lucknow and the Secretary, Agra Development Authority, Agra by the Registrar (Compliance).