Rameshwar Dayal Gangwar vs State Of U.P.& 2 Ors.
2015 Latest Caselaw 1915 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 28
 
Case :- WRIT - A No. - 53217 of 2013
 
Petitioner :- Rameshwar Dayal Gangwar
 
Respondent :- State Of U.P.& 2 Ors.
 
Counsel for Petitioner :- R.N.Tripathi
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Mahesh Chandra Tripathi,J.

1. Heard R.N. Tripathi, learned counsel for the petitioner and Shri Pankaj Rai, learned  Additional Chief Standing Counsel for the State respondents.

2. By means of present writ petition, the petitioner has prayed for direction in the nature of mandamus commanding the respondents to pay the amount of pension and post retiral benefits to him counting his services w.e.f. 3.1.1989 to 31.12.2008.

3.  Brief facts giving rise to the present case are that the petitioner applied and was selected on the post of Cooperative Supervisor through proper selection by the Cooperative Commissioner, Lucknow. He was initially appointed as Cooperative Supervisor in District Almora on 6.4.1977 and thereafter, he was posted in various districts and discharged his duty continuously till 3.1.1989. On 3.1.1989 he was promoted on the post of Assistant Development Officer (Cooperative) at Block Bisalpur, District Pilibhit on adhoc basis. His promotion was made against a clear and substantive post, which was vacant at that time and he continuously worked on the post of A.D.O. (Cooperative) w.e.f. 3.1.1989.

4. On 27.11.1991, the Registrar, Cooperative Societies, Lucknow required the name of Cooperative Supervisors for promotion on the post of A.D.O. (Cooperative) from the District Assistant Registrar, Cooperative Societies, Pilibhit. In pursuance thereof, the name of the petitioner was sent by the District Assistant Registrar, Cooperative, Pilibhit to the office of Registrar, Cooperative Societies, Lucknow for promotion on the post of ADO (Cooperative). It has been averred in the writ petition that 50% of the posts of A.D.O. (Cooperative)/Inspector Grade-II are filled up by direct recruitment, and 50% post by promotion. The State Government framed Regularization of Adhoc Promotion Rules, 1988 and according to the said rule, if any employee was promoted on the said post and completed three years' service continuously, he is entitled for regularization on his promotional post. The petitioner has completed four years' service on that post and he deemed to be regularizaed on the post of ADO (Cooperative) and is entitled to receive all the benefits of regular employee.

5. By the order dated 9.9.1993 the District Assistant Registrar, Cooperative Societies, Pilibhit reverted the petitioner from the post of ADO (Cooperative) to the post of Cooperative Supervisor. Aggrieved by the reversion order dated 9.9.1993 the petitioner filed a Writ Petition No.39319 of 1993 in which an interim order was passed staying the operation of the order dated 9.9.1993. This Court vide judgment and order dated 16.2.2012 allowed the writ petition with following observations:-

"The petitioner was promoted on adhoc basis as Assistant Development Officer (A.D.O.) in the Cooperative Society on 5.1.1989 initially for a period of 90 days. He was served a notice that the collection of revenue is less than 70%. He was required to improve his collection. The petitioner submitted his reply in which he stated that he improved the collection to more than 80%. The petitioner services have been terminated by the respondents on 9.9.1993 on the ground that promotion was on adhoc basis. The petitioner in the rejoinder affidavit has stated that the persons junior to him who were appointed on adhoc basis have been allowed to continue on the said post, and subsequently been regularised also. The order cancelling the promotion of the petitioner is arbitrary and discriminatory.

I have heard learned counsel for the parties.

Adhoc promotion does not create any right in favour of the person who holds such appointments. However, if promotions of several persons are made on adhoc and some are allowed to continue and others are reverted it suffers vice of discrimination.

The grievance of the petitioner is that he was issued a notice by the respondents that his revenue collection was below to 70% and he was required to improve his revenue collection. He submitted his reply that his revenue collection has been improved and is above 70%. Without addressing themselves to that question, the order of promotion has been cancelled by the respondents.

The respondents had a right to cancel the promotion as the adhoc appointments are made to overcome an emergent situation. Once a person is allowed to continue on the said post for considerable period of time as it happened in this case very intend of giving adhoc promotion is washed. There is need to continue the person on the said post. It is not disputed that the petitioner is not eligible to hold the post but what has been stated by the respondents is that since the promotion was on adhoc basis, as such he is being reverted back. The petitioner's contention is that juniors who were promoted on adhoc basis are continuing on the said post and are in service. The respondents reverted only the petitioner and allowed his juniors to continue. It is stated that the petitioner has retired from service in 2008.

I, therefore, allow the writ petition and set aside the order and direct the respondents to regularise the service of the petitioner as ADO with effect from the date the juniors have been regularised. The emoluments shall also be released accordingly, which includes pensionary benefits also, within a period of three months from the date a certified copy of this order is produced before the respondents." 

6. The Court set aside the reversion order dated 9.9.1993 while passing the order dated 16.2.2012 in Writ A No.39319 of 1993, and directed to the respondents to regularize the services of the petitioner from the date of regularization of his juniors and emoluments etc. was directed to be released accordingly. In the meantime, the petitioner retired on 31.12.2008 after attaining the age of superannuation from the post of A.D.O. (Cooperative). The petitioner served the certified copy of the judgment dated 16.2.2012 on the respondents. In compliance thereof, the respondents passed an order on 16.8.2012 regularizing the services of the petitioner w.e.f. 9.6.1997, even though it has been averred in the writ petition that the services of  his juniors had been regularized w.e.f. 3.1.1989 on the post of A.D.O. (Cooperative).  On 1.7.2008 the pay of the petitioner was fixed @ Rs.14,707/- and the post retiral benefit as well as pension was counted w.e.f. 22.5.1995 and paid after the date of retirement of the petitioner dated 31.12.2008 but the period w.e.f. 3.1.1989 upto 22.5.1995 was not taken into account for calculating the amount of pension as well as other post retiral benefits.

7. Learned counsel for the petitioner submits that the petitioner was appointed on 6.4.1977 on the post of Cooperative Supervisor in substantive capacity and continuously discharged his duty on the said post upto 3.1.1989. On 3.1.1989 the respondents promoted him on the post of A.D.O. (Cooperative) at Block Bisalpur, District Pilibhit on adhoc basis against the substantive and clear post and the petitioner joined on the said post on 5.1.1989 and since then he continuously worked thereon upto the date of his retirement i.e. 31.12.2008. In the meantime, the respondents reverted him from the post of ADO (Cooperative) to the post of Cooperative Supervisor. Against the reversion order, the petitioner filed a Writ Petition No.39319 of 1993 in which an interim order was passed. The said writ petition was allowed on 16.2.2012 and the reversion order was quashed. In pursuance of the promotional order dated 3.1.1989 the petitioner continuously worked on his post till the date of his retirement. 

8. Learned counsel for the petitioner submits that the period from 5.1.1989 to 21.12.2008 may be counted for payment of all post retiral benefits as well as pension in view of Fundamental Rule 56-A of Civil Services Regulation. Regulation 350 of the aforesaid regulation provides that all establishment, whether temporary or permanent, shall be deemed to be pensionable establishment subject to some proviso, which has not been followed in the case of the petitioner. Regulation 351 provides condition of calculation for pension i.e. 1st the service must be under Government; IInd the employment must be substantive and permanent and 3rd the salary must be paid by the Government and the same conditions are fully explained by Section 361-A and 361-B. The temporary service of the employees are also countable for providing the benefit of pension as well as post retiral benefit.

9. Learned counsel for the petitioner has also placed his reliance on a judgment of this Court  in Writ A No.33208 of 1990 (Love Pd. Dwivedi & ors vs. State of UP & ors) decided on 27.4.2015. The relevant paragraphs of the judgment are reproduced herein under:-

"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.

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."

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." 

10. Learned Additional Chief Standing Counsel, on the other hand, submits that the petitioner was selected on the post of Cooperative Supervisor by U.P. Cooperative Institutional Service Board. He joined in District Almora on 6.4.1977 in pursuance of the order dated 25.3.1977 passed by the Deputy Registrar, Cooperative Societies, UP, Nainital. He worked as Cooperative Supervisor from 1.6.1978 to 31.8.1984 in District Budaun and from 1.9.1984 to 4.1.1989 in District Pilibhit. Since there was a vacancy in the cadre of Cooperative Inspector Group-2, the petitioner was promoted on adhoc basis in exigencies of work for 90 days from 3.1.1989. The petitioner joined as Cooperative Inspector Group-2 on 5.1.1989. He submits that 34% of vacancies on the post of Cooperative Inspector Group-2/Assistant Development Officer (Cooperative) is to be filled up by promotion and out of which, 16% vacancies is to be filled up from the cadre of Cooperative Supervisors. At the time of adhoc promotion of petitioner, quota of promotion of Cooperative Supervisors was complete and the vacancy was available in the cadre of direct recruitment. Since there was no eligible candidate at that time for direct recruitment, the petitioner was promoted on adhoc basis in alternative arrangement for 90 days. In exigency of work, the aforesaid adhoc promotion of the petitioner was extended from time to time for 90/89 days. By the order dated 12.7.1993 the petitioner was directed to join on his substantive post of Cooperative Supervisor. Against the said order, the petitioner filed a Writ Petition in which an interim order was passed on 13.10.1993. The petitioner was on medical leave from 10.9.1993 to 15.10.1993 and thereafter, he reported for duty on 16.10.1993. The said writ petition was allowed on 16.2.2012. The junior to the petitioner Shri Kanshi Ram Shukla was given regular promotion on 22.5.1995 and hence from the date of regularization of his junior, the petitioner was also given the benefit of regularization from that effect. All the post retiral benefits and pension etc have been calculated from the date of regularization of his junior and paid to the petitioner.

11. As per record, the petitioner was initially inducted on the post of Cooperative Supervisor on 6.4.1977 after the selection and continued thereon upto 3.1.1989. Thereafter, he was promoted against substantive post of Assistant Development Officer (Cooperative) on 3.1.1989 on adhoc basis initially for 90 days, which was extended from time to time upto 1993 without any break and accordingly he was paid salary. The work and conduct of the petitioner was also found excellent and the department had issued so many Prashashtra Patras. The details have been given in the rejoinder affidavit. In this background the respondent no.3 had also sent his name for regularization on the post of Assistant Development Officer (Cooperative) as per Regularization Rules of Adhoc Promotion 1988 on 27.11.1991. It has also been averred that he had been yearly paid increments and other emoluments from 3.1.1989 to the date of his retirement. But meanwhile, on 9.9.1993 he was reverted from the post of Assistant Development Officer (Cooperative) to the post of Cooperative Supervisor, which was assailed by means of Writ Petition No.39319 of 1993 in which an interim order was granted by this Court on 13.10.1993 and the effect and operation of the reversion order dated 09.9.1993 was stayed. Finally the writ petition was allowed on 16.2.2012 and the reversion order dated 9.9.1993 was quashed. The petitioner has attained the age of superannuation on 31.12.2008.

12. It is apparent that the petitioner had discharged his duty on the post of Assistant Development Officer (Cooperative) from 3.1.1989 to 31.12.2008 and I am of the considered opinion that the case of the petitioner is also covered by the judgment passed in Love Prasad Dwivedi's case (supra) and the petitioner is entitled to receive the amount of post retiral benefit and pension counting his entire service period from 3.1.1989 to 31.12.2008.

13. In the aforesaid facts and circumstances the writ petition is also allowed. The respondents are directed to finalise the petitioner's pension treating him to be promoted on the post of Assistant Development Officer (Co-operative) on regular basis w.e.f. 3.1.1989 under the Regularization Rules of 1988, and quantify the retiral benefits payable to him and to pay the same to him within three months from the date of production of certified copy of this order before them. 

(Mahesh Chandra Tripathi,J.)

Order Date :- 20.8.2015

RKP