HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Misc. Writ Petition N0. 48665 of 2011 Hira Lal..............................................................Petitioner. Vs. State of U.P. and others....................................Respondents. Hon'ble Rajes Kumar, J.
Heard Sri Gulrez Khan, learned counsel for the petitioner and Ms. Suman Sirohi, learned Standing Counsel for the respondents.
By means of the present writ petition, the petitioner is seeking a direction to the respondents to pay pension, gratuity, provident fund and other retiral dues to the petitioner along with 18% interest.
By the amendment application, the petitioner has further prayed for mandamus to treat him as a regular employee from 4.8.1999 or at least from 28.11.2004 and in the nature of mandamus declaring Regulation 370 (ii) of the Civil Services Regulation to be ultra vires as being hit by Articles 14, 19 and 31(1) of the Constitution of India.
The brief facts of the case, stated in the writ petition, are that initially the petitioner was engaged by oral order as Beldar in the Department of respondent no.2 in the year 1987 and after continuously serving three years he was issued appointment letter on 1.1.1990 appointing him temporarily for the period 1.1.1990 to 28.2.1990. In the appointment letter, it was clearly stipulated that the services of the petitioner shall be terminated after the expiry of aforesaid period without any notice. The petitioner continued to work regularly even after the expiry of stipulated period. The petitioner continued to work after 28.2.1990 and paid monthly salary. In the year 1999, respondent no. 3 by order dated 4.8.1999 resolved to regularize all the ad hoc employees working for the years against the sanctioned post in their districts.
The contention of the petitioner is that though the exercise for regularization was to be completed in the year 1999-2000 but the order of regularization was issued on 23.11.2004 in which the petitioner's name found place at serial no. 23 in the pay-scale of Rs.2550-3200/-. The appointment letter dated 23.11.2004 is Annexure-3 to the writ petition. The petitioner, after completing the age of superannuation, was retired from the post of Beldar by office order dated 21.5.2011.
The petitioner is now claiming post retiral benefit. He is challenging the Regulation 370 (ii) of the Civil Services Regulation to be ultra vires which provides that only those employees, who were in regular service for a period of 10 years, are entitled for pensions and post retiral benefits.
Learned counsel for the petitioner submitted that order dated 23.11.2004 by which the petitioner has been appointed against a vacant post should be treated as the appointment on regular basis, though in the order, it is mentioned that the appointment is on temporary basis because the said order has been issued in pursuance of the letter of the Chief Engineer, Jhansi Region, P.W.D., Jhansi dated 4.8.1999, which relates to the regularization of service. He submitted that as per the order dated 4.8.1999, issued by respondent no.3, the regularization of ad hoc employee had to be completed within 11.8.1999, though the order was passed on 8.11.2004 but the petitioner services should be considered to have been regularized in the year 1999.
In support of the contention, he relied upon the Division Bench decision of this Court in the case of Dr. (Kumari) Ranjana Saxena Vs. Vice Chancellor, Rohilkand University, Bareilly and others, reported in 1980 UPLBEC-225, Dakshin Haryana Bijli Vitran Nigam & Others Vs. Bachan Singh, reported in J.T. 2009 (10) SC-252, Babu Singh Vs. State of U.P. and others, reported in 2006 (6) ALJ-500 and Yashwant Hari Katakkar v. Union of India and others, reported in (1996) 7 SCC-113.
Learned Standing Counsel submitted that both the appointment letters dated 1.1.1990 and 23.11.2004 reveal that the appointment of the petitioner was temporary. At no stage, the petitioner's services have been regularised and he was appointed on a regular basis. In the order dated 23.11.2004, it was specifically mentioned that the appointment was temporary against the vacancy and the services can be terminated by giving one month's notice. The petitioner could not challenge the said order. Therefore, it is not open to the petitioner to submit that the order dated 23.11.2004 be considered to be the appointment on regular basis. It is further submitted that even from 23.11.2004, the petitioner does not complete 10 years service as a regular employee and, therefore, he is not entitled for the pension or any post retiral benefit in view of Regulation 370 (ii) of the Civil Services Regulation. The challenge of the validity of Regulation 370 (ii) of the Civil Services Regulation as ultra vires to Articles 14, 19 and 31 (1) of the Constitution of India is not based on any factual and legal foundation. This Regulation is applicable to all the employees of the civil services and is not discriminatory nor it is unreasonable. Reliance has been placed in the case of State of Rajasthan and others Vs. Jagdish Narain Chaturvedi, reported in (2009 ) 12 SCC 49.
I have considered the rival submissions and perused the documents annexed along with the writ petition.
I do not find any substance in the argument of learned counsel for the petitioner.
Initially the petitioner was engaged as a daily wager. By the appointment letter dated 1.1.1990, he was engaged temporarily for a period of two months. Even after the expiry of the stipulate period, he continued to work as a temporary employee. By order dated 23.11.2004 also his engagement against the vacancy was on temporary basis. The petitioner's services have never been regularised. The appointment letter dated 23.11.2004 clearly states that the appointment was on temporary basis and the services could be terminated after giving one month's notice. The petitioner has not challenged the said order at any point of time. Therefore, at this stage, it is not open to the petitioner to say that by the said order, the petitioner's services should be considered to have been regularised and his appointment was on substantive basis. The challenge of the validity of Regulation 370 (ii) of the Civil Services Regulation is neither based on factual nor legal foundation. Under Regulation 370 (ii) of the Civil Services Regulation, only those employees, who are regularly appointed on substantive basis and have completed 10 years of service, are entitled for pension and post retiral benefits.
The "qualifying service" for the purposes of pension is provided in Section (i) of Chapter 16. The Regulation 361 of the Civil Service Regulations provides the condition of the qualification, which reads as follows :
361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:
(A) The service must be under Government.
(B) The employment must by substantive and permanent.
(C) The service must be paid by Government.
Regulation 368 of Civil Service Regulation provides that service does not qualify unless the officer holds a substantive office on a permanent establishment.
Regulation 370 of Civil Service Regulation after the amendment w.e.f. 20.4.1977 reads as follows:
"370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except--
(i) periods of temporary or officiating service in non- pensionable establishment;
(ii) periods of service in work charged establishment; and
(iii) periods of service in a post paid form contingencies."
Regulation 370 as quoted above, expressly proceeded to mention, that continuous temporary or officiating service followed without interruptions by confirmation in the same post or any other post shall qualify except for the period expressly excluded in the services, such as (i) period of temporary and officiating service in non-pensionable establishment (ii) period of service in work charge establishment and (iii) periods of service in a post paid from contingencies.
Article 424 of Chapter 18 of the Civil Service Regulations provides the following kinds of pension admissible to a Government servant (a) compensation pension (b) invalid pensions (c) superannuation pension (d) retiring pensions.
Fundamental Rule 56 provides for retiring of a Government servant on attaining the age of 58 years or 60 years as the case may be. It is not disputed that in the present case, the age of superannuation of the petitioner-respondent was 60 years. Clause (e) of Fundamental Rule 56 reads as under:
(e) "A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required allowed to retire under this rule:
Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less."
Article 465 and 465-A provides as under:
"465 (1) A retiring pension is granted to a Government servant who is permitted to retire after competing qualifying service for 25 years or on attaining the age of 50 years.
(2)A retiring pension is also granted to a Government servant who is required by Government to retire after attaining the age of 50 years.
465-A. For officers mentioned in Article 349-A, the rule for the grant of retiring pension is as follows;
(1)An officer is entitled on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years, or on attaining the age of 50 years.
(2)A retiring pension is also granted to an office who is required by Government to retire after attaining the age of 50 years."
Government Order dated 01.06.1989 has been issued, keeping in view the provision of Regulation 368, and the practical situation that confirmation takes its own time and incumbent attains his age of superannuation, and in order to overcome and remedy such situation to extend pensionary benefits to temporary employee, in effect such provision has been relaxed, who have served for at least ten years regular service.
The expressions 'regular service' has not been defined either under the provisions of the Act or rules framed thereunder or under U.P. Fundamental Rules contained in Chapter 2 Vol. 2 Part II to IV of Financial Handbook, which defines various general conditions of Government service, therefore, it is necessary to examine the content and import of the aforesaid expressions by taking help of dictionary meaning assigned to the aforesaid expressions and other recognised mode of interpretation of statute.
In Law of Lexicons the expression ' regular' and 'regular services' have been assigned meanings at page 1638-1639 as under:
" Regular - Webster defines "regular" to mean conformable to a rule; methodical; periodical.
"REGULAR" is derived from "regular", meaning "rule", and its first and legitimate signification, according to Webster, is "conformable to a rule' agreeable to an established rule, law, or principle, to a prescribed mode, or according to established, customary forms."
Regular- Conformable to rule; periodical; recurring or repeated at fixed times or uniform intervals; properly constituted; normal; marked by steadiness or uniformity of action, procedure or occurrence.
Regular services- The expression 'regular forces' mean officers and soldiers who by their commission, terms of enlistment, or otherwise are liable to render continuously for a term military service to His Majesty in every part of the world or in any specified part of the world. R.v. Governor of Wormwood Scrubbs Prison, (1948) 1 All ER 438, 441 (KBD). [Army Act. S. 190(8)]"
In the Writ Petition NO. 43227 of 2009, Kashi Prasad Vs. State of U.P. and others, the learned Single Judge of this Court on consideration of dictionary meaning of word "regular' and the provisions of the Civil Service Regulation, referred herein above, has held as follows:
"From a bare reading of the dictionary meaning of aforesaid expressions, it appears that expression 'regular' has been assigned various meanings, therefore, it is very difficult to find out appropriate meaning of the expressions 'regular service' from dictionary meaning so as to enable the court to come to a definite conclusion. The proper course in such cases is to search out and follow the true intent of the legislature and to adopt that sense of the word which harmonises best with the context and advance the object of the legislature. While determining as to the meaning of particular word in a particular statute it is, therefore, permissible to consider two aspects; viz (I) the external evidence derived from the circumstances such as previous legislation and decided cases and (II) internal evidence derived from the statute itself.
In this connection, it is necessary to point out that in case, the rule making authority would have intended to prescribe completion of merely ten years continuous service, which may legitimately include seasonal, casual daily rated and adhoc services also, there would have been no occasion to use the expression 'regular ' as adjective before the word 'service' used in the said rules/government order therefore, the expression 'regular' must have its significance under the rule/government order in question and the words used in the statute cannot be treated to be surplus and superfluous without any meaning being assigned to it. It is also well settled rule of construction of statute that unless it is unavoidable a construction renders a provision superfluous must be rejected. Statutory enactment must ordinarily be construed according to plain and natural meaning of its language and no words should be added, altered or modified unless it is plainly necessary to do so in order to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with rest of the statute. The expression 'regular service' must be given different meaning from "mere continuous uninterrupted service". It should not be equated with the continuous service, further the expression 'regular service' should also not be equated with the services rendered by adhoc appointee as in that event of the matter, there would have been no occasion for the rule making authority to use the expression 'regular service' instead of merely using the expression 'continuous service'. This view does neither lead to any anomalous result nor lead to any absurdity and also finds support from the decision rendered by Hon'ble Apex Court in State of Haryana Vs. Haryana Veterinary and A.H.T.S. Association's 2000 (8) SCC 4."
In the case of State of Rajasthan and others Vs. Jagdish Narain Chaturvedi, reported in (2009) 12 SCC-49, the Apex Court while dealing the question relating to promotion has dealt the word "regular". The Apex Court has held that promotion has to be amongst the persons, who are borne on a regular cadre in service. The service rendered on ad hoc, daily wages or work-charged basis, prior to being borne on a cadre in service, does not count for the purpose of determining the eligibility for promotion. The initial appointment might have been against a post but appointment being on ad hoc, daily wages and work-charged basis, persons so appointed were not borne 0n a cadre until their regularisation and, therefore, service rendered prior to regularisation could not count for eligibility.
Recently again Hon'ble Apex Court in the case of State of Punjab Vs. Ashwani Kumar AIR 2009 SC 186, has taken note of the aforesaid judgment and held as follows: Paragraphs 2 to 6 are being extracted:
Challenge in this appeal is to the order passed by a Division Bench of the Punjab and Haryana High Court holding that the ad-hoc services of the respondents were to be counted for the purpose of seniority. Reliance was placed on certain other orders of the High Courts passed earlier. It is stated by learned counsel for the appellants that this Court had occasion to deal with the appeals filed by the State questioning correctness of the judgments on which reliance has been placed by the High Court.Respondents were initially appointed during the period 1978 to 1987 as Clerks on ad-hoc basis and were regularized between the period from 1980 to 1990. Respondents submitted representations claiming the benefit of their ad-hoc services relying on the judgment to which reference has been made by the High Court in the impugned judgment. Prayer was to the effect that the ad-hoc service was to be counted for all intents and purposes including seniority.
4 The main question that arises for consideration in this appeal is whether the period of ad-hoc services rendered by the respondents is to be included for calculating the seniority. This question was considered by a three-Judge Bench of this Court in State of Haryana v. Haryana Veterinary & AHTS Association and Anr. (2000 (8) SCC 4) wherein this Court took the view that for calculating 8/18 years service required for giving higher scale of pay and for determination of seniority only regular service rendered by the employee is to be counted and not ad-hoc service.
5. Learned counsel for the respondents strenuously contended that the respondents who are Clerks serving under the State of Punjab are governed by a set of Rules and circulars different from those which were considered in the decided case and, therefore, the ratio in that case will not be applicable in these cases. We have carefully considered the said contention. We have also considered the Government Letter No.4/8/85-3PPI/4408 dated 13.3.1996 containing the policy instructions. On a plain reading of the letter, it is clear that the instructions contained therein were based on the decision of the Punjab and Haryana High Court taking the view that ad-hoc service should be taken into account for the purpose. This letter in our view can no longer form the basis of the contention in view of the recent decision by this Court in State of Hayana v. Haryana Veterinary & AHTS Association and Anr. (supra). Undisputedly, the respondents at the time of their appointment were governed by the Punjab Civil Services (General and Common Conditions of service) Rules, 1994. In Rule 8 of the said Rules it is provided that the seniority of the persons appointed on purely provisional basis or on ad-hoc basis shall be determined as and when they are regularly appointed keeping in view the date of such regular appointment. Further, in the orders appointing the respondents on ad-hoc basis, it was specifically stated that they will be governed by the aforementioned Rules. It was further stated in paragraph III of the appointment letter that the appointees' seniority will be determined only by merit in which he or she is placed by Punjab Public Service Commission. Thus it is clear that only regular service is to be counted towards seniority.
6. We do not feel it necessary to delve further into merits of the case in view of the decision of this Court in State of Hayana v. Haryana Veterinary & AHTS Association and Anr. (supra). We are satisfied that the ratio in that case applies to the case in hand. The resultant position that emerges is that the judgment/order passed by the High Court holding that ad- hoc service is to be included in calculating the period of service for giving the higher scale of pay is unsustainable and has to be vacated. Accordingly, the appeal is allowed and the judgment/order of the High Court under challenge is set aside.
In the case of IDPL Vs. Workmen IDPL SLP NO. 3862 of 2006, 2007 (1) SCC 408 decided on 16.11.2006 by Hon'ble Apex Court held that such category of temporary employees, unless and until they have to their credit "10 years of regular service" cannot be said to be eligible for grant of pension, in such a situation, confirmation would be of no consequence as there is distinction in between regularization and confirmation in service.
In the case of Bansh Gopal Vs. State of U.P. (Supra) the petitioner was engaged as muster roll employee as Beldar in the year 1983. The petitioner was thereafter taken under work charge establishment in the year 1987 and subsequently in the year 1999 his services were regularised in regular employment as Class-IV employee. He completed 60 years age of superannuation on 31.5.2005. The Division Bench of this Court on the consideration of the decision of the Division Bench in the case of Board of Revenue Vs. Prasidh Narain Upadhyay and another and Regulation 370 of Civil Services Regulation, held that the period of service in work charge establishment cannot be included since his services as a regular employee was less than 10 years he was not eligible for pension.
In the case of Gambhir Singh Vs. State of U.P. and others (Supra) also the learned Single Judge of this Court has followed the Division Bench decision in the case of Bans Gopal Vs. State of U.P. and held that the period during which a person worked in work charge establishment cannot be included in the regular service for the purposes of pension if the service as regular employee on a substantive basis is less than 10 years and he is not entitled for pension or pensionary benefit.
Hon'ble Apex Court in the case of State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 , has dealt with in detail viz-a-viz the status of daily wagers, temporary employee and ad-hoc employees and has clearly ruled, that Courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate by-passing of constitutional and statutory mandates. Said judgment has again been extensively dealt with in the case of Uttranchal Jal Sansthan Vs. Laxmi Devi 2009 (SCC) 7 205, by mentioning that before person claims status of government servant, not only his appointment may be made in terms of recruitment rules, he must otherwise fulfil criteria provided for. Appointment made in violation of constitutional scheme is nullity. Rendition of service for a long time, it is well known does not confer permanency, it is furthermore not a mode of appointment.
It would be relevant to refer some of the paragraphs of the Constitution Bench decision in the case of Secretary, State of Karnataka Vs. Uma Devi (Supra) :
"16. In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937], this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.
17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court, would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent."
In paragraph-45 of the above judgment, it has been held by the Constitution Bench that the engagement of the temporary or casual or daily wager is not an appointment to a post in the real sense of the term. Paragraphs-45, 46 and 47 of the judgment are referred herein below :
"45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain-not at arm's length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to avoid a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
[Emphasis provided]
46. Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularised since the decisions in Dharwad, Piara Singh, Jacob and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularised. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he was received assurance from the decision-maker they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. [See Lord Diplock in Council for Civil Services Union v. Minister of Civil Service, National Buildings Construction Corpn. v. S. Raghunathan and Chanchal Goyal (Dr.) v. State of Rajasthan.] There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularised in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the constitutional mandate. The argument in that behalf has therefore to be rejected.
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
in the case of Dr. (Kumari) Ranjana Saxena Vs. Vice Chancellor, Rohilkand University, Bareilly and others (Supra), an advertisement was issued for appointment on substantive post. The petitioner applied and called for interview. The interview letter did not indicate that the appointment will be for a certain period on temporary post. The petitioner selected by the Selection Committee but given temporary appointment. The Division Bench of this Court held that such appointment was in the teeth of Section 31 of the Uttar Pradesh State University Act, 1973 was not legal and has been accordingly quashed. It has been further held that even if, the petitioner accepted that appointment she was not estopped from ascertaining that such appointment be deemed to be on substantive basis.
The fact and issue of the said case were entirely different to the fact and issue involved in the present case. In the said case, an advertisement was issued for appointment on the substantive post and Section 31 of the Uttar Pradesh State University Act, 1973 did not contemplate any temporary appointment on a substantive post.
In the case of Dakshin Haryana Bijli Vitran Nigam & Others Vs. Bachan Singh (Supra), the respondent was engaged as Laboratory Attendant in the work-charge capacity on 16.5.1963 and continued to perform his duties on the work-charge basis on different posts until he was regularised as Head Mistry w.e.f. 14.10.1981. The respondent was a member of the Employees Provident Fund Scheme; during the period he remained a work-charge employee; he attained the age of superannuation and retired on 28.2.2001. It appears that Nigam had issued instructions dated 6.8.1993 for the grant of benefit for the work-charge service towards pensionary benefits wherein an option has been sought from the employees within a period of three months from the date of regularization or from the date of issue of this circular, whichever is later as to whether he/she intends to count the period of work-charged service rendered by him/her towards pensionary benefits or intends to continue to be a member of E.P.F. The option was required to be furnished in writing to his drawing & Disbursing Officer. It appears that similarly situated employees have been allowed pensionary benefits. The petitioner had been allowed the pensionary benefits from the date of regularisation. The Punjab and Haryana High Court allowed the pensionary benefits to the petitioner on the ground that the similarly situated persons have been given benefits. Secondly, that there is nothing on record to show that the instructions dated 6.8.1993 were actually got noted in writing by the respondent. The said view of the Punjab and Haryana High Court has been confirmed by the Apex Court. The fact and issue involved in this case were entirely different to the fact and issue involved in the present case. It is clearly distinguishable and not applicable to the present case.
In the case of Babu Singh Vs. State of U.P. and others (Supra), the issue involved was whether the temporary employee was entitled for pensionary benefits or not. The learned Single Judge of this Court on a consideration of the amendment in Fundamental Rule 56 of the U.P. Act No. 24 of 1975 held that the amended Rule 56 allows the retirement benefit to a temporary employee and clause (e) provides 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. The issue involved in the present case is not similar to the issue involved in the present case. Therefore, the said case is not applicable.
In the case of Yashwant Hari Katakkar v. Union of India and others (Supra), the employee had put 18 and ½ long years of quasi-permanent service allowed to retire permanently dehors the requirement of at least 20 years of service. The Apex Court has held that in the absent of material on record to show as to why he had not been made permanent despite such a long period of service, he should be deemed to have become permanent. Hence, entitled to pension under the Central Civil Services (Pension) Rules, 1972. This case is also clearly distinguishable on the fact inasmuch as the decision of the Apex Court appears to have been no longer a good law in view of the Constitution Bench decision of the Apex Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi (2) and others, reported in 2006 (4) SCC-1.
In view of the foregoing discussion, I do not find any merit in the present writ petition. The writ petition fails and is dismissed.
Dated: 30th September, 2011 OP