Allahabad High Court

Love Pd. Dwivedi & Others vs State Of U.P. & Others on 27 April, 2015

Bench: Mahesh Chandra Tripathi




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 9
 
Case :- WRIT - A No. - 33208 of 1990
 
Petitioner :- Love Pd. Dwivedi & Others
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Rajeev Sharma,Amit Saxena
 
Counsel for Respondent :- S.C.,J.P.Nigam
 
Hon'ble Mahesh Chandra Tripathi,J.

1. Heard Shri Amit Saxena, learned counsel for the petitioners and Shri Prashant Rai, learned Standing Counsel for the State respondents.

2. By means of present writ petition, the petitioners have prayed for quashing the impugned order dated 25.11.1990 (Annexure No.4 to the writ petition) passed by the respondent no.3. By the amendment application allowed on 29.7.2013, they have further prayed for direction in the nature of mandamus commanding the respondents to promote them on the post of Assistant Development Officer (Co-operative) on regular basis w.e.f. 20.12.2001 and to grant all consequential benefits to them, which will flow from the aforesaid regular promotion.

3. Shri Amit Saxena, learned counsel for the petitioners states that Shri Hariom Srivastava-petitioner no.6 filed an appeal, which was allowed and his services had been regularized. The petitioner no.6 is also receiving the pension and as such, he does not have any grievance. Shri Amit Saxena states that at present, he has instructions only with regard to petitioner nos. 1, 2 and 4. He does not have any instructions with regard to petitioner nos. 3 and 5.

4. Brief facts giving rise to the present case are that the petitioner nos. 1 to 4 were appointed as Cooperative Supervisors on 22.7.1978, 18.7.1978, 3.3.1960 and 3.17.1978 respectively and the petitioner no.5 was appointed as Gram Vikas Adhikari on 29.11.1956. The petitioner nos. 1 to 5 were eventually promoted as Assistant Development Officer (Cooperative) for 90 days vide an order dated 2.12.1988 (Annexure No.1 to the writ petition). Thereafter, they were given extension from time to time and as such the petitioners are working as Assistant Development Officer (Cooperative) since December, 1988.

5. Learned counsel for the petitioners submits that the post of Assistant Development Officer (Cooperative) falls under the State Government and they have been paid salary from the State exchequer. The petitioners are continuously discharging their duties with utmost satisfaction to their superior officers since the year 1988. Finally the petitioner no.1 retired on 31.7.2013; petitioner no.2 retired on 31.1.2015 and petitioner no.4 superannuated on 31.10.2012. By the order dated 16.11.2012 the respondents promoted the petitioner nos. 1 and 2 on regular basis from the date of their taking over charge.

6. Learned counsel for the petitioners that the petitioners were discharging their duties as Assistant Development Officer (Panchayat) since the year 1988, and they have already completed the minimum required period for pension. Under U.P. Regularization of Ad-hoc Promotion (On Post Outside the Purview of Public Service Commission) Rules, 1988, as amended on 20.12.2011, the petitioners became entitled for regular promotion by virtue of the fact that they were fully qualified for promotional post of Assistant Development Officer (Panchayat) and had already completed more than three years of service on the said post, and regular vacancies were in existence. Rule 4 of the Regularization Rules of 1988 provides that such ad-hoc appointees shall be promoted before any regular appointment is made against such vacancy under the Rules and therefore, the petitioners were entitled for regular promotion since 20.12.2001 itself. He further submits that once the petitioners had been promoted on ad-hoc basis and no person had joined on such posts and the petitioners could not have been reverted back, they became entitled for regular promotion on the basis of Regularization Rules, 1988. The petitioners were promoted on ad-hoc basis and were in fact treated to be regular promotee throughout for the period of 25 years by deducting the GPF and granting them all service benefits including pay scales and increments of regular Assistant Development Officers.

7. Learned counsel for the petitioners has placed his reliance on a Division Bench judgment of this Court in Amrendra Narain Srivastava vs. State of UP and others 2012 LawSuit (All) 2208. The relevant paragraph nos. 6, 7, 10, 11, 12 and 13 are reproduced hereinafter:-

"6. It is submitted by Shri Ashok Khare, that under the Uttar Pradesh Retirement Benefits Rules, 1961, the qualifying service, defined in Rule 3 (8), means service, which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations. Rule 3 (8) is quoted as below:-

"Rule 3 (8)- "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations:

Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except-

(i) periods of temporary or officiating service in a non-pensionable establishment.

(ii) periods of service in a work-charged establishment, and

(iii) periods of service in a post, paid from contingencies, shall also count as qualifying service.

Note- If service rendered in a non-pensionable establishment, work-charged establishment or in a post paid form contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionble establishment, it will not constitute an interruption of service."

7. Regulation 368 of the Civil Services Regulations, provides that service does not qualify, unless the officer holds a substantive office in a permanent establishment. Regulations 368 and 369 provides as follows:-

"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.

369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was not on actual duty on the first day on which the establishment was again re-employed."

10. The petitioner was appointed in temporary capacity in Zila Parishad on 21.3.1983. The non-government medical hospitals of Zila Parishad were provincialised on 8.11.1990. The petitioner's option for absorption in the State Ayurvedic and Unani Medical Services was accepted, and that he was taken as a Medical Officer, Ayurvedic and Unani on adhoc basis. There is no denial, that he held a substantive office in a permanent establishment. His services ultimately came to be regularized on 16.3.2005 without any break. At no point of time the petitioner, after his absorption, was not in substantive office, which was not in permanent establishment. His services, therefore, have to be counted with effect from the date of his absorption and the joining in the State Government.

11. The qualifying service, as defined in sub-rule (8) of Rule 3, includes the service, which qualifies for pension in accordance with the provisions of Section 368 of Civil Services Regulation. The petitioner does not fall in any of the exceptions inasmuch as the period of his temporary service was not in a non-pensionable establishment after he was regularized in the State Government.

12. For the aforesaid reasons, we find that the petitioner has rendered qualifying pensionary service with effect from the date of his joining in the State Government on his option, and which shall be treated as service qualifying for pension and for which under the Government Orders, by which the hospitals were provincialised, the contribution of his pension has been deposited by the Zila Parishad.

13. The objection, that the contribution of pension, has not been deposited in the relevant account head, is too technical to be accepted. The amount has been credited to the account of the State Government in the Treasury. It is for the Treasury Officer to appropriate the amount in the correct account head. An error in depositing the amount in the wrong account head cannot be treated to have taken away the right of petitioner to pension based upon his continuance in the State Government beginning from 1991.

14. The writ petition is allowed. The impugned order dated 20.9.2011 is quashed. The petitioner shall be entitled to pension with effect from 01.2.1991, the date on which he joined in the State Government. The State Government will calculate his pension and issue the pension payment order within two months. The entire arrears of pension shall be paid over to him within a period of three months."

8. Learned counsel for the petitioner has also relied upon the judgment in Special Appeal No.445 of 2011 (Bhuneshwar Rai vs. State of UP & ors) decided on 18.9.2014. Paragraph-5 of the judgment is reproduced herein below:-

"5. In support of his aforesaid contention, learned counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of Punjab State Electricity Board and another versus Narata Singh, 2010-Laws (SC)-2-40, which has been relied upon by the learned Single Judge of this Court in the case of Mohd. Mustafa versus State of U.P., (2010 (1) ADJ-329 (All)(LB). holding that where the petitioner has put in 23 years of service including 113 months and 11 days i.e. 9 years 5 months & 11 days of regular service then denial of pension for not having completed 10 years of regular service, was not proper. In that case, the Court directed the respondents to grant pensionary benefit to the petitioner considering him to have completed 10 years of regular service and pay him regularly every month from the date of retirement. The State of U.P. preferred an appeal against the aforesaid judgment in re: Mohd. Mustafa versus State of U.P.(Special Appeal Defective No. 254 of 2013), State of U.P. and others versus Prem Chandra and others wherein the Court relying upon the judgment of the Apex Court in Punjab Electricity Board (supra) vide its judgment dated 13.5.2013 held that the provisions of regulation 370 of the U.P. Civil Service Regulation have to be read down in line with the judgment of the Apex Court. Aggrieved , the State of U.P. preferred SLP (Civil) No. CC 22271 of 2013, State of U.P. and others versus Prem Chandra and others before the Apex Court, which was dismissed vide judgment and order dated 7.1.2014."

9. Learned counsel for the petitioners submits that as per Rule 3(8) of the Uttar Pradesh Retirement Benefit Rules, 1961, the petitioners had completed 10 years of qualifying service and are, thus, entitled to pensionary benefits. He has placed reliance on the judgment of this Court reported in 2006 (8)ADJ 371, 2011 (4) AWC 3564.

10. On the other hand, learned Standing Counsel does not dispute the legal position. He submits that since the petitioners had not completed 10 years of service from the date of regularisation, and therefore, they were rightly not paid pension and other retiral benefits.

11. Rule 3(8) of the Rules, defines "qualifying service" as under:-

"Rule 3 (8)- "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations:

Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except-

(i) periods of temporary or officiating service in a non- pensionable establishment.

(ii) periods of service in a work-charged establishment, and

(iii) periods of service in a post, paid from contingencies, shall also count as qualifying service.

Note- If service rendered in a non-pensionable establishment, work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionble establishment, it will not constitute an interruption of service."

12. Regulation 368 and 369 of the Civil Services Regulations reads as under :-

"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.

13. Proviso to Rule 3(8) itself prescribes that continuous temporary service without interruption followed by confirmation shall count as qualifying service. Thus, it is wholly immaterial that the service of the petitioner was regularised on 1.2.2001, as he was continuously working since the date of initial appointment. Though earlier his working was against a temporary establishment, as there was no sanctioned post but after temporary post was sanctioned and later on converted into permanent post, the service so rendered, fully qualifies for being counted for purpose of payment of pension and retiral benefits.

14. For the aforesaid reasons, the Court finds that the petitioners had rendered qualifying pensionary service with effect from the date of his promotion in the year 1988 and which shall be treated as service qualifying for pension.

15. In the aforesaid facts and circumstances the impugned order dated 25.11.1990 (Annexure No.4 to the writ petition) and the order dated 16.11.2012 (Anneuxre RA No.2 to the rejoinder affidavit), cannot be sustained to the effect that the petitioners are not eligible for pensionary benefits as they do not have qualifying service of ten years and are quashed.

16. The writ petition is allowed. The respondents are directed to finalise the petitioners' pension treating them to be promoted on the post of Assistant Development Officer (Co-operative) on regular basis w.e.f. 20.12.2001 under the Regularization Rules of 1988 and quantify the retiral benefits payable to them and to pay the same to them within three months from the date of production of certified copy of this order before the respondents.

Order Date :- 27.4.2015

RKP

(Mahesh Chandra Tripathi,J.)