Kashi Prasad vs State Of U.P. & Others
2011 Latest Caselaw 2896 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. 39
 
Reserved on 01st April 2011
 
Delivered on  21st July, 2011
 

 
Civil Misc. Writ Petition No. 43227 of 2009
 

 
Kashi Prasad
 

 
Versus
 

 
State of U.P. and others
 

 
Hon'ble V.K.Shukla,J.

Petitioner has approached this Court requesting therein that a writ in the nature of mandamus be issued commanding the respondents to fix pension of the petitioner by treading him as regular/permanent Collection Amin and to disburse the same regularly every month and also to disburse the arrears of pension w.e.f. 01.05.2007 till date within a period to be specified by this Court.

Brief background of the case as is reflected from the pleadings as set out that petitioner was granted appointment as Seasonal Collection Amin in Tehsil Kalpi of District Jalaun in the year 1976 for the first time. The said seasonal appointment was followed by successive seasonal appointments granted to the petitioner in Tehsil Kalpi during the years 1976 to 1986. Petitioner claims that in the year 1986 petitioner alongwith others was granted adhoc appointment as Collection Amin in regular pay scale applicable to the said post. Petitioner has further contended that service of the petitioner and other similarly circumstanced Collection Amin were terminated by the district authority in the year 1989. At the said stage petitioner filed Civil Misc. Writ Petition No. 10802 of 1989 (Kashi Prasad and another Vs. District Magistrate and other) wherein interim order was passed directing continuance of petitioner in service. Petitioner claims that pursuant to said order, he continued to function as Collection Amin. Petitioner has further stated that said writ petition was finally decided on 28.11.1989 with following order:

"The two petitioners were appointed as Collection Amins in Tehsil Orai, district Jalaun by the Tehsildar and Sub-Divisional Magistrate, Orai. The petitioners have alleged that they were functioning as Collection Amins since 31.08.1978 and that by passing fake orders from time to time their services were broken and again appointments were given. On the assertion that the petitioners were entitled to be regularized the petitioners sought relief 'C' which reads as under:-

"issue a writ order or direction of a suitable nature commanding the respondents to regularize the petitioners in service on the post of Collection Amin and not to interfere in their functioning on the said post."

Paragraph 7 of the counter recites that appointments on substantive vacancies were being considered by the authorities in accordance with U.P. Collection Amins Seva Niyamawali 1984 read with the forth amendment incorporated in 1984. In view of what has been stated in the counter affidavit itself it appears that cases of petitioners for regularization are receiving attention of consideration of the authorities and as the petitioners are continuing on the post of Collection Amin under the stay orders granted by this Court on 18.05.1989, we need do nothing more and we direct the concerned respondents to consider the regularisation of the petitioners at an early date, in accordance with law applicable to the same. The petitioners will continue till final orders in respect of regularization are not passed. If however, the petitioners are found not entitled to be regularized the stay order granted by this court will come to an end automatically."

Petitioner has further stated that thereafter an order was passed on 31.01.1990 wherein reference was given of the order passed by this Court, that service of petitioner be not dispensed with merely on the ground of petitioners service being ad-hoc in nature, and service can be dispensed with on other ground. Petitioner continued to function but had never been regularized and ultimately has attained the age of superannuation on 30.04.2007. Petitioner thereafter has contended that various other incumbents have been regularized as such exercise be undertaken for consideration of his claim also for confirmation and for ensuring payment of pension and gratuity etc. Petitioner at this said stage has rushed to this Court with the relief quoted in the prayer part.

Pleadings inter se parties have been exchanged and thereafter present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Learned counsel for the petitioner Sri Sidharth Khare, Advocate contended with vehemence that in the present case on account of inaction on the part of the respondents petitioner was not confirmed and the proceedings were pending and petitioner in the meantime attained the age of superannuation, in this background as petitioner is not at all at fault, as such petitioner cannot be denied pension, and in the facts of the case, it has to be accepted that petitioner has to his credit, ten years of regular service.

Countering the said submission learned Standing counsel on the other hand contended that services of petitioner had never been regularized, as such no benefit can be extended to petitioner as has been prayed for.

After respective arguments have been advanced factual situation which emerges is that petitioner's initial engagement at Kalpi district Jalaun from year 1976 to 1986 was on seasonal basis and thereafter as per petitioner in the year 1986 he was accorded adhoc appointment as Collection Amin in regular pay scale applicable to the said post. Petitioner has further proceeded to mention that at the said juncture service of petitioner had been dispensed with and then Civil Misc. Writ Petition No. 10802 of 1989 had been filed wherein interim order was passed directing continuance of petitioner and on the strength of aforesaid interim order dated 18.05.1989 petitioner continued to function and thereafter on 28.11.1989 final orders were passed to the effect that till the case of the petitioner for regularization is not considered by the authority concerned, petitioner will continue. Petitioner submits that before his claim for regularization could be considered he has attained the age of superannuation. Petitioner's claim is that on account of inaction of respondents he was not regularized in this background keeping in view long length of service his request for pension etc. which are governed by statutory rules be considered.

This is accepted position, that pursuant to interim order in question petitioner continued on the said post and ultimately this Court proceeded to pass order directing that claim of the petitioner be considered for regularization but the claim of the petitioner has not at all been considered within the parameter of U.P. Collection Amins Seva Niyamawali 1974. Counter affidavit reflects that claim of the petitioner has been considered on the parameters of U.P. Regularisation of Adhoc Appointments (on the post outside the purview of the Public Service Commission)(Third Amendment) Rules 2001, and by the time final decision could be taken petitioner had already attained the age of superannuation. The question is as to whether petitioner has to his credit 10 years of regular service, and thus entitled for pension.

The term "qualifying service" is defined in Section 1 Chapter 16 of Article 361 of the Civil Service Regulations, which provides that 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, clearly proceeds to mention that service does not qualify, unless the Officer holds a substantive office on permanent establishment.

Regulation 370 of Civil Service Regulation is also being looked into which is being extracted below:

"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 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.

At this juncture the various view points of this Court based on interpretation of such provision is being extracted below.

This particular provision has been considered by Division Bench of this Court, in the case of Board of Revenue Vs. Board of Revenue Vs. Prasidh Narain Upadhyay reported in 2006 (1) ESC 611, in following terms:

"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 of condition No. B, i.e. lack of permanent character of service. However, in our 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 employee 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 consistent. Condition B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus, is inoperative.

A similar controversy came up for consideration earlier before this Court in the case of Dr. Hari Shankar Ashopa Vs. State of U.P. and others, 1989 ACJ 337. After referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations, this Court observed as under:

"Clause (e) of Rule 56 unequivocally recognizes, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation, or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Clause (a) or Clause (b) or who is required to retire, or who is allowed to retire under Clause (c) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied."

In this view of the matter, the contention of the appellants that since the petitioner-respondent was not a permanent confirmed employee and hence not entitled for pension is clearly misconceived is rejected."

Said Division Bench judgment has again been considered by this Court in the case of Babu Singh Vs. State of U.P. decided on 15.06.2006 as follows:

"No doubt pension and retiral benefits are no longer a bounty but a right of a retired employee. However, the aforesaid right is governed by Rules and retiral benefits are payable only in accordance with the Rules. In D.S. Nakara and Ors. Vs. Union of India MANU/SC/0237/1982: (1983) ILLJ 104SC, the Apex Court held that the pension is neither a bounty nor a matter of grace depending upon the sweet-will of the employer, but is a vested right subject to the rules governing mode and manner of payment thereof. It was also held that the pension is not an ex gratia payment but is a payment for the past service rendered by the employee and it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.

In the present case it is not disputed that the retirement of the petitioner employee is governed under Fundamental Rule 56 read with relevant provisions of Civil Service Regulations. Every employee whether permanent or temporary or adhoc is liable to retire on attaining the age of superannuation as provided under Fundamental Rule 56.

Fundamental Rule 56(e) as amended by U.P. Act No.24 of 1975 provides that a retiring pension shall be payable and other retiral 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 in required or allowed to retire under the said rule. It is not disputed that the petitioner, in the present case has been made to retire on attaining the age of superannuation under Fundamental Rule 56. The provisions of Civil Service Regulations which are pre-constitutional provisions will have to sub-serve Fundamental Rule 56 which has been enacted through a legislative enactment. Since Fundamental Rule 56 also gives a right of retiring pension to a temporary employee, the provisions of Civil Service Regulations have to be read consistent with the scheme of Fundamental Rule 56 so as to permit payment of pension and retiral benefits to the temporary employee as well. This results in reading down the provision of CSR which excludes temporary and non substantive service from being included in qualifying service. I do not find any reason to dilate on this aspect since it has already adjudicated by two Division Benches of this Court in Dr. Hari Shankar Ashopa Vs. State of U.P. and Ors. 1989 ACJ 337 and Board of Revenue and Ors. v. Prasidh Narain Upadhyay (supra). In the later case the Division Bench (in which I was also a party) the service rendered by a Seasonal Collection peon before his formal engagement a temporary Collection Amin was also directed to be counted towards qualifying service for the purpose of pensionary rights. In paras 13 and 16 of the judgment the Division Bench held as under:

13. 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 of condition No. B, i.e. lack of permanent character of service. However, in our 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 employee also and provides in Clause (e) that a retiring pension is payable and oilier retiral benefits, if any shall be available to every Government servant who retires or is required or allowed to retire under this Rule.

16. Even otherwise the continuous working of the petitioner-respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitioner-respondent flowing by rendering service for such a long service, cannot be brushed aside lightly.

"11. In the present case admittedly the petitioner was appointed on 24.10.1973 and continued with the respondents till 30.6.2001, i.e. for almost 28 years and denial of retiral benefits to the petitioner after rendering such a long service is neither justified under the Rules nor, otherwise is in accordance with law. Article 361 of Civil Service Regulations has been interpreted and read down in the light of Fundamental Rule 56 by the Division Bench in Dr. Hari Shankar Ashopa Vs. State of U.P. and others (supra) which has been followed in Board of Revenue & others vs. Prasidh Narain Upadhyay (supra). Fundamental Rule 56 as amended in U.P. allows retiring pension to a temporary employee also, who retires or is required or allowed to retire under the said Rule. Therefore, it cannot be said that an employee must render permanent service, only thereafter he will be entitled for pensionary benefits. In the present case, the view taken by the respondent-authorities that the petitioner is not entitled for pension, since for the purpose of qualifying service, minimum period of 10 years must be completed by the employee from the date of his regularisation, is not correct and unsustainable in law."

Division Bench of this Court in the case of Bansh Gopal State of U.P. 2006 (3) ESC 2428 wherein incumbent had put in merely six years of regular service, has taken the view that he was not at all entitled for pension and therein Division Bench of this Court, has dealt with and explained the background of the case, in which Board of Revenue case (supra) was decided, and also clearly took the view that Government Order dated 01.07.1989 requires 10 years of regular service, which even higher than temporary service.

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.

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)]"

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.

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.

For getting benefit of pension, under Government Order dated 10.06.1989, the temporary employee is required to have, "ten years of regular service" to his credit and in the absence of the same it has to be accepted, that incumbent does not fulfill the requisite criteria of qualifying service required.

Term "temporary employee" is a general category, wherein incumbents are engaged as per exigencies of service, and the said general category has various sub-categories such as seasonal, causal, daily rated, adhoc employees etc, see IDPL Vs. Workmen IDPL SLP NO. 3862 of 2006, 2007 (1) SCC 408 decided on 16.11.2006 by Hon'ble Apex Court and 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.

Service can be said to be "regular", only when it is conformable to Rule, i.e. when the appointment is taken within the fold of relevant service rules, framed under Article 309 of the Constitution or as the case may be, the regular prescribed procedure issued by Government in respect of particular service. At this juncture the view point of Hon'ble Apex Court in the case of State of Karnataka Vs. Uma Devi (supra) is again also being looked into and extracted below:

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.

'Regular' or "Regularization" do not connote permanence, and are terms calculated to condone any procedural irregularities and are meant to cure defects as are attributable to methodology in making appointments. It is form the date when such defects are cured the service has to be treated regular service and not at all prior to it, as requirement is of "ten years of regular service", and non confirmation in such a situation would be of no consequence.

In the Bhaskar Gajanan Kajrekar Vs. Administration 1993 (3) SCC 237 question of confirmation was deferred on the ground that there were no recruitment rules. Here there are statutory Rules available, covering the respective field, and claim of petitioner, in the present case has not been non-suited on the ground of confirmation rather on the ground of not having "10 years of regular service".

On the dictum of Hon'ble Apex Court, the ad-hoc service rendered cannot be kept at par with regular service and benefit of the same cannot be extended for computing ten years regular service.

Under U.P. Regularization of Adhoc appointments (on the post outside the purview of U.P. Public Service Commission)(Third Amendment) Rules 2001 adhoc appointee who fulfills the term and condition mentioned therein is to be considered for regular appointment against any temporary/permanent vacancy, as the case may be on the basis of record/suitably before any regular appointment is made in such vacancy, as per the service Rules applicable or orders applicable. It is only when appointment is made under the Rules, as per Rule 6 it has to be deemed to be under the relevant service Rules.

Once ad-hoc services have not been kept at par with regular service, and petitioner's services had never been regularized then certainly in such a situation and in this background as petitioner continued to be ad-hoc employee and continued on the strength of interim order as such no relief or reprieve could be given to him as he has not to his credit "10 years of regular service", which is pre-requisite term and condition for grant of pension to a temporary employee also.

In term of the aforesaid present writ petition is dismissed.

Dated 21st July, 2011

Dhruv