Salamat Ullah Khan vs State Of U.P.And 2 Ors
2017 Latest Caselaw 1629 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- WRIT - A No. - 65045 of 2014
 

 
Petitioner :- Salamat Ullah Khan
 
Respondent :- State Of U.P.And 2 Ors
 
Counsel for Petitioner :- Pankaj Srivastava
 
Counsel for Respondent :- C.S.C.
 
Alongwith
 
(i) Case :- WRIT - A No. - 65042 of 2014
 
Petitioner :- Awadhesh Prasad Pandey
 
Respondent :- State Of U.P.And 2 Ors
 
Counsel for Petitioner :- Pankaj Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
(ii) Case :- WRIT - A No. - 25977 of 2014
 
Petitioner :- Ram Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Pankaj Srivastava
 
Counsel for Respondent :- C.S.C.
 
(iii) Case :- WRIT - A No. - 66487 of 2014
 
Petitioner :- Ram Krishna Dwivedi
 
Respondent :- State Of U.P. And 2 Ors
 
Counsel for Petitioner :- Pankaj Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

In the abovemetioned Writ Petitions in question, as common question of law has been engaging the attention of this Court, the Writ Petitions in question are being decided collectively and Writ A No. - 65045 of 2014 is being treated to be leading case.

Heard Shri Pankaj Srivastava, learned counsel for the petitioner; Shri Pankaj Rai, learned Additional Chief Standing Counsel alongwith Shri Sanjay Kumar Singh, learned Standing Counsel for the State respondents.

Salamat Ullah Khan is seeking a direction to the respondents to grant him full pension on attaining the age of superannuation by computing his qualifying service rendered between 29.06.1991 to 08.01.2002. The entire claim has been set up on the ground that petitioner since 01.11.1975 to 01.01.1995 rendered continuous service on fixed wages/voucher basis as provided under the Forest Account Rules and since 02.01.1995 to 09.01.2002 in regular pay scale and since 29.06.1991 to 09.01.2002 as qualifying service as provided under the Uttar Pradesh Regularization of Daily Wages Appointments on Group C post (outside the purview of Public Service Commission) Rules, 1998 (hereinafter in brevity referred to as the "Rules 1998").

These facts are not being disputed by learned Additional Chief Standing Counsel as they are matter of record and admittedly benefit of pension has been extended to the petitioner except the fact that full pension has not been accorded to the petitioner.

Petitioner has come up with the case that admittedly petitioner's service has been regularized with effect from 13.09.2002 and since then till his date of superannuation, he had completed 11 years 3 months and 15 days of service and for the said period, admittedly 40% pension has been accorded by the Department concerned and as such, the Department concerned has erred in law in not counting his previous service and during said period, petitioner was also accorded with regular salary and in case the said period is counted, then definitely the petitioner would be entitled for full pension.

The matter was entertained by learned Single Judge on 02.12.2014 whereon he has proceeded to allow the Writ Petition with following observations:-

"These facts are not disputed by the learned standing counsel Shri Vikram Bahadur as they are matter of record and pension has also been granted to the petitioner except that the respondents have not granted full pension to the petitioner.

Shri Pankaj Srivastava, learned counsel for the petitioner submits that the petitioner was regularized on 10.1.2002 and then from that date he has completed 12 years of service and besides his earlier period of service if taken into consideration he has served a total period of 39 years 7 months 00 days. He has placed reliance upon a decision of the Division Bench of this Court passed in W.P. No. 1114 (S/B) of 2007 Kailash Pati Tripathi Vs. State of U.P. and others wherein the Court relying upon other judgments of this Court has held that merely because the services has neither been confirmed nor regularized would not be a ground for denying the regular pension to the petitioner. In the present case the petitioner has been regularized w.e.f. 13.9.2002. The other decision relied upon is that of W.P. No. 4470 (S/S) of 2004 Rajendra Nath Pandey Vs. State of U.P. and others decided on 26.4.2006 which was also a matter relating to the forest department and it has been held that onece the petitioner has been regularized in service, his services should have been counted from the date of initial appointment and retiral benefit should be calculated accordingly. This judgment of the learned Single Judge was subsequently upheld by the Division Bench in Special Appeal No. 607 of 2007 (State of U.P.Vs. Rajendra Nath)Special Appeal No. 445 of 2011 (Bhuneshwar Rai Vs. State of U.P. and others) decided on 18.9.2014. by judgment dated 14.10.2008 and the special appeal filed by the State of U.P was dismissed. Another decision has been referred to by the learned counsel for the petitioner passed in.

This legal position has not been disputed by the learned standing counsel.

In this view of the matter the writ petition is allowed and a direction is issued to the respondents to recompute the total service period of the petitioner from the date of his initial appointment and thereafter fix his pension and pay the pensionary benefit accordingly.

This exercise shall be completed by the respondents within a period of three months from the date of receipt of certified copy of this order."

Issues to the similar effect have been raised in connected Writ Petition No.66487/2014 and this Court has proceeded to allow the said Writ Petition vide order dated 09.12.2014 and subsequently, the same was subjected to challenge by the State Government by preferring Special Appeal No.414 of 2015 (State of U.P. and others vs. Ram Krishan Dwivedi) precisely on the ground that Writ Petition was allowed in absence of substantive defence of the State in response to the Writ Petition. The Division Bench of this Court has proceeded to dispose of the Special Appeal by remitting back the matter vide order dated 05.08.2015 to be decided afresh and as such, the present matter again has come up before this Court for final hearing in the matter.

On the matter being taken up today, Shri Pankaj Srivastava, learned counsel for the petitioner has again reiterated the aforementioned judgements, which have been relied upon while allowing the Writ Petition in question by learned Single Judge. It has been sought to be contended that once the petitioner had completed more than 20 years service as daily wager employee, which was qualifying service for his regularization and his services were treated as qualifying service for regularization and thereafter eventually services of petitioner were regularized by the respondents, then the clear language of statute cannot be used in negative for any other purpose including the purpose of pension. He further made submission that while framing Rules 1998, the State Government had defined that prior to and in between the cut off date, the services of an incumbent would be treated for his regularization and as such it is sought to be contended that there cannot be another interpretation by the Executive Authorities on this legislative enactment. It is a settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statutes are to be taken together, and each word, phrase or sentence is to be considered in the light of the general purpose of the Act itself. However in the present case, the Competent Authority is blowing hot and cold at the same time in respect to language of legislative intent. At one hand for the purpose of regularization of service, the Competent Authority is treating the services rendered on daily wage basis as sine qua non and now for the purpose of depriving petitioner of his valuable rights of pension for computing such period, the Competent Authority is not treating such period as qualifying services.

He has placed reliance on Rule 3(8) of Uttar Pradesh Retiral Benefits Rules 1961, which is liable to be read with Regulation 368 of Civil Service Regulations and in support of his submission he has placed reliance on the law laid down by Apex Court in the case of Punjab State Electricity Board and another vs. Narata Singh and another AIR 2010 SC 1467 wherein it has been held that while computing qualifying service for the purposes of pensionary entitlement of employee of electricity Board, the work charged service rendered by the employee under State/Central Government has to be considered.

Shri Pankaj Srivastava, learned counsel for the petitioner also submits that the Rules 1998 as well as Rules 1961 are welfare legislation and as such submitted that Law, not being an abstraction but a pragmatic exercise and interpretation of pragmatic exercise are to be in prevailing circumstances and has placed reliance in paragraph 6 and 7 of the judgement in the case of Sant Ram vs. Rajinder Lal and others AIR 1978 SC 1601 (1), which provides as follows:-

"The life style of the people shapes the profile of the law and not vice-versa. Law, not being an abstraction but a pragmatic exercise, the legal inference to be drawn from a lease deed is conditional by the prevailing circumstances. The intention of parties from which we spell out the purpose of the lease is to be garnered from the social milieu. Thus viewed, it is difficult to hold, especially when the lease has not spelt it out precisely, that the purpose was exclusively commercial and incompatible with any residential use, even of a portion.

Two rules must be remembered while interpreting deeds and statutes. The first one is:

"In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand."(1) The second one is more important for the Third World countries. Statutory construction, so long as law is at the service of life, cannot be divorced from the social setting.

That is why, welfare legislation like the one with which we are now concerned, must be interpreted in a Third World perspective. We are not on the Fifth Avenue or Westend of London. We are in a hilly region of an Indian town with indigents struggling to live and huddling for want of accommodation. The law itself is intended to protect tenants from unreasonable eviction and is, therefore, worded a little in favour of that class of beneficiaries. When interpreting the text of such provisions-and this holds good in reading the meaning of documents regulating the relations between the weaker and the stronger contracting parties-we must remember what is an earlier decision of this Court, has been observed :(1) "Where doubts arise the Gandhian talisman becomes a tool of interpretation; "Whenever you are in doubt.... apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him."

If we remember these two rules, the conclusion is easy that there is no exclusiveness of purpose that can be spelt out of the lease deed. That knocks at the bottom of the case of the land-lord."

Reliance has also been placed in paragraph 28, 29 and 30 of the judgement in the case of Moti Ram and others vs. State of M.P. AIR 1978 SC 1594, which is reproduced as follows:-

"The truth, perhaps, is that indecisive and imprecise language is unwittingly used, not knowing the draftsman's golden rule:

"In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand." (Lux Genthum Lex-Then and Now 1799-1974, p. 7) If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed with, after being found guilty if during trial when the presence to instruct lawyers is more necessary, an accused must buy release only with sureties while at the appellate level, suretyship is expendable, there is unreasonable restriction on personal liberty with discrimination writ on The, provisions. The hornet's nest of Part 111 need not be provoked it read 'bail' to mean that it popularly docs, and lexically and in American Jurisprudence is stated to Mean, viz., a generic expression used to describe judicial release from Custodia. Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigent's rights, we hold that bail covers both-release on one's own bond, with or without sureties.

When sureties should be demanded and what sum should be insisted on are dependent on variables.

Even so, poor men-Indians in monetary terms indigents young persons infirm individual and women are weak categories and courts should be liberal in releasing them on their own recognisances put whatever reasonable condition you may."

In this backdrop, it is contended that for the purpose of computing 20 years qualifying service, for all practical purposes, the date was required to be taken into consideration as 13.01.1994, as from the said date he was getting regular pay scale and emoluments as Forester, as is provided under Rules 1961 as well as the Rules 1998. Learned counsel for the petitioner also submits that under the aforesaid circumstances, the petitioner is entitled to be paid full pension and denial of the same is arbitrary act on behalf of respondents and as such, this Court should come for rescue and reprieve of petitioner.

Per contra, Shri Pankaj Rai, learned Additional Chief Standing Counsel alongwith Shri Sanjay Kumar Singh, Advocate has vehemently opposed the Writ Petition in question and raised preliminary objection regarding maintainability of the present Writ Petition precisely in the backdrop that earlier petitioner had preferred Writ Petition no.29386 of 1990 alongwith two other persons, in which interim order dated 13.01.1994 has been passed and on the basis of the same, the petitioner continued to work in the Department and was accorded regular pay scale on voucher basis without any annual increment.

No doubt his services were regularized by the Forest Conservator, Bundelkhand Region Jhansi vide order dated 13.09.2002 on the post of Van Daroga and finally he had attained the age of superannuation 31.12.2013 and on the basis of total length of service of petitioner as regular employee on the post of Van Daroga i.e. 11 years 03 months 15 days, he was accorded 40% pension and as such it has been sought to be contended that on account of interim order dated 13.01.1994, petitioner continued to work in the Department and on the basis of an interim order such rights have been crystallized.

In support of his submission, he has placed reliance on the impugned order dated 07.08.2015 and objection is being taken that once the petitioner alongwith other incumbents made request through their representations dated 01.06.2013 and 26.06.2013 for their absorption against the substantive post and accordingly their seniority were liable to be fixed and also claimed that he was also liable to be accorded promotional pay scale and other benefits and consequently their rights have been considered in the light of Rules 1998 and much emphasis has been placed on provisions contained under Rules 7(1) of Rules 1998 and as such, he submits that once the seniority has been fixed and for all practical purposes, the relevant date is to be date of joining after the regularization and the said period would only be reckoned towards the counting of his services for pensionary and other benefits.

In support of his submission, he has placed reliance on the judgement of Apex Court in the case of State of Karnataka vs. Uma Devi reported in (2006) 4 SCC 1 and submits that on the basis of interim order, no benefits can be extended to the petitioner. He further made submission that since 1973 to 12.01.1994, petitioner has worked as a daily wager even though his services were regularized on 13.09.2002 as per the Rules and only thereafter his status was changed. The total length of service as employee on the post of Van Daroga was approximately 11 years 3 months 15 days. It is submitted that all service benefits like gratuity and other emoluments have been extended to the petitioner alongwith pension as per his length of service for the date of his regularization on the post of Van Daroga strictly in accordance with Civil Services Regulations.

In view of rival submissions, questions which fall for determination are :-

(i) whether the services rendered by petitioner from 26.06.1991 till his regularization is qualifying him for adding towards full pension.

(ii) whether the services rendered by petitioner after payment of regular salary with allowances w.e.f. 13.01.1994 should be added upto 13.09.2002 till regularization towards qualifying services for full pensionary benefits.

Most surprising feature of the case is that even though the previous writ petition of petitioner has been pending consideration, Shri Pankaj Srivastava, learned counsel for the petitioner made an statement at bar that the said Writ Petition was disposed of in the year 2016 ex-parte and at present he does not have even any idea regarding the fate of the said Writ Petition.

In response to the directives issued by Apex Court in the case of State of U.P. vs. Putti Lal 2002 (2) UPLBEC 1595, in exercise of powers conferred by the provisions to Article 309 of the Constitution of India, the Uttar Pradesh Regularization of Daily Wages Appointments on Group C post (outside the purview of Public Service Commission) Rules, 1998 have been framed and the same was gazetted on 09.07.1998. For the purpose of the case, Rule 4 of the Rules 1998 reproduced hereinunder:-

(1) Any person who-

(i) was directly appointed on daily wage basis on Group 'C' posts in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and

(ii) possessed requisite qualifications prescribed for regular appointment for that post at the time of such appointment under the relevant service rules on daily wages basis, shall be considered for regular appointment on group 'C' post in permanent or temporary vacant as may be available on the date of commencement of these rules, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.

(2) In making regular appointments under these rules, reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes, other Backward Classes and other categories, shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and the Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 as amended from time to time, and orders of the Government in force at the time of regularization under these rules.

(3) For the purpose of sub-rule (1) the appointing authority shall constitute Selection Committee in accordance with the relevant provisions of Service Rules.(4) The appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of order of appointment and, if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered necessary to assess their suitability.

(5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4) and if it considers necessary, it shall interview the candidates also to assess their suitability.

(6) The Selection Committee shall prepare a list of selected candidates arranging their names in order of seniority and forward the same to the appointing authority.

(7) (l) A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall in all cases, be placed below the persons appointed in accordance with the relevant Service rules, or as the case may be, the regular prescribed procedure, prior to the appointment of such person under these rules.

(ll) If two or more persons are appointed together their seniority inter shall be determined in the order mentioned in the order of appointment."

Record in question clearly reflects that on the basis of Rules 1998, the services of petitioner had been regularized. Sub Rule 4 of Rule 4 provides that appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of order of appointment and, if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. Sub Rule 5 of Rule 4 provides that Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4) and if it considers necessary, it shall interview the candidates also to assess their suitability. Sub-Rule 6 of the said Rule provides that Selection Committee shall prepare a list of selected candidates arranging their names in order of seniority and forward the same to the appointing authority.

Rule 7 of the Rules 1998 would go to show that an incumbent appointed under the Rules 1998 shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall in all cases, be placed below the persons appointed in accordance with the relevant service rules, or as the case may be, the regular prescribed procedure, prior to the appointment of such person under these rules.

Admittedly, in the present matter, the entire exercise towards regularization in question has taken place in pursuance to the Rules 1998 itself, which clearly proceeds to mention that the same is applicable for the daily wager's appointment on Group C post. This is also an admitted position that at the time of regularization of petitioner, the Department, for all practical purposes, has accepted that petitioner was working in the Department as daily wager.

No doubt in the present matter, he was receiving regular salary but the same cannot alter the situation. At one hand, the Authorities has considered the regularization as per the provision contained under Rules 1998 and on the basis of said exercise, which was subjected to confirmation by the Apex Court, finally his services were regularized on 13.09.2002.

On the face of record, it is an admitted situation that entire exercise towards the regularization on the post of Van Daroga has been done under Uttar Pradesh Regularization of Daily Wages Appointments on Group C post (outside the purview of Public Service Commission) Rules, 1998 and as such for all practical purposes, the previous service rendered by him on the basis of interim order was on ad-hoc basis.

Counsel for the petitioner has also placed reliance on Rules 1961 that have been framed under Article 309 of the Constitution of India and submits that the same are applicable to all government servants.

In order to appreciate the controversy in hand and submissions advanced by the parties, it is appropriate to have a glance with the relevant provisions relying upon for grant of pension.

In the State of Uttar Pradesh, the statutory Rules known as Uttar Pradesh, the Statutory Rules known as Uttar Pradesh Retiral Benefits Rules 1961 (in brevity "Rules 1961") have been framed wherein Rules 2(2), 3(2), 3(6), 3(8), 4 and 5 of Rules 1996 are relevant for the purpose of the case. The same are reproduced below:-

"2. Application........

(i)....

(ii)The pension provisions contained in Civil Service Regulations shall continue to apply to officers governed by these rules except in so far as they are inconsistent with any of the provisions of these rules.

3.Definitions

(i)......

(ii) "Emoluments" means the pay as defined in Rule 9(21) of the U.P. Fundamental Rules, which the officer was receiving immediately before his retirement:

Provided that in the case of an officer, who on the date of his retirement is drawing pay in the scale of pay as in force on 29.03.1962 the term "emoluments" shall also include the dearness allowance as admissible therein on that date.

Note:- If an officer immediately before his retirement or death, has been absent from duty on leave with allowance, his emoluments for the purpose of calculating service gratuity and/or death-cum-retirment gratuity should be taken at what they would have been, had he not been absent from duty.

Provided that the amount of gratuity is not increased on account of increase in pay not actually drawn and that benefit of higher officiating or temporary pay is given only if it is certified that he would have continued to hold the higher officiating or temporary appointment but for his proceedings on leave.

(iii)......

(iv)......

(v).....

(vi) "Officer" means a Government Servant (whether belonging to superior or inferior service) who holds a lien on a permanent pensionable post under the Government or would have held a lien on such a post had his lien not been suspended;

(vii).......

(viii) "Qualifying Service" meas which qualifies for pension in accordance with the provisions of Regulation 368 of the Civil Service 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 period of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service.

4. Pension:- (1) The amount of superannuation, retiring, invalid and compensation pension or gratuity shall be the appropriate amount set of in the annexure.

(2) No special or additional pension shall be granted.

5. Death-cum-retirement Gratuity :(1) An officer may, on retirement, be paid an additional gratuity, the amount of which shall, subject to a maximum of 16-1/2 times the emoluments, be an amount equal to one-fourth of the emoluments multiplied by the total number of completed six monthly periods of qualifying service.

(2) if an officer dies while in service a gratuity, the amount of which shall, subject to a minimum of 12 times and a maximum of 16½ times the emoluments, be an amount equal to one-fourth of the emoluments of the officer multiplied by the total number of six monthly periods of qualifying service, shall be paid to the person or persons on whom the right to receive the gratuity is conferred under sub-rules (1) to (8) of Rule 6 and if there is no such person, it shall be paid in the manner indicated in sub-Rule (9) of that rule.

(3) If an officer who has become eligible for or has actually received, a pension or gratuity under part I of these Rules, dies within a period of five years from the date of retirement and the aggregate of any sums admissible to him or actually received by him till the time of death on account of such gratuity or pension together with the gratuity granted under sub-rule (1) and the commuted value of any portion of pension commuted by him is less than the amount equal to 12 times his "emoluments" a gratuity equal to the deficiency shall be granted to the person or persons referred to in sub-rule (2).

(4) The amount of gratuity admissible in accordance with sub-rule (1) or sub-rule (2) above shall in no case, exceed Rs.36,000 and the emoluments exceeding Rs.2,500 per month shall be ignored in computing the amount of such gratuity."

From a perusal of the aforementioned provisions of the Retirement Benefits Rules, it is clear that the meaning and definition of qualifying service has to be traced in the provisions contained in Article 368 of the Civil Service Regulations. Article 368 of the Civil Service Regulations is negatively worded, according to which, the service does not qualify unless the officer holds a substantive office on a permanent establishment. Article 368 of the Civil Service Regulations is extracted hereinbelow:-

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

In view of aforesaid, in terms of the provisions contained in Rule 3(8) of the Retirement Benefits Rules read with Article 368 of the Civil Service Regulations, unless the officer/employee concerned holds a "substantive office on a permanent establishment", any period of service rendered by such an officer/employee will not qualify for pension.

What is significant is that the officer should have served a substantive office on a permanent establishment. Proviso appended to Rule 3(8) of the Retirement Benefits Rules provides that in case of an employee working on continuous temporary or officiating service, which is followed by confirmation without interruption shall also count provided that such temporary/officiating service should not be in a non-pensionable establishment and that it should also not be in work-charged establishment and also that such a service is not rendered in a post which is paid from contingencies. Thus, a conjoint reading of the provisions of Rule 3(8) of the Retirement Benefits Rules and the provisions contained in Article 368 of the Civil Service Regulations makes it abundantly clear that what is significant is " substantive office on a permanent establishment." The provision of Article 368 does not talk about. Accordingly, an officer/employee, even if serves on ad hoc basis, in a substantive office on a permanent establishment, will be entitled for the benefits of such ad hoc services being counted for reckoning the qualifying service.

Chapter XVI of Civil Service Regulations also provides for consideration of qualifying service. Regulation 361 provides for service, which is qualified for pension. It also provides that service of an Officer does not qualify for pension unless it confirms to the following three conditions:-

(i) the service must be under Government.

(ii) employment must be substantive and permanent

(iii) the service must be paid by Government.

Regulation 361 is akin to Rule 3.12 of Punjab Civil Service Rules, Vol. II Part I. The Apex Court has the occasion to consider the aforesaid provision in the case of State of Haryana and others vs. Shakuntla Devi, 2008 AIR SCW 8180, and on review of its earlier judgements, the Supreme Court observed as follows:

"28. With the aforementioned legal principles in mind, we may analyse the provision of the scheme.

The scheme in terms of paragraph 3 is applicable to all regular employees in pensionable establishment, temporary or permanent who were in service. Thus, whether temporary or permanent, the employee must be regular employee which would mean employee appointed on a regular basis, i.e., in accordance with Rules. Only because services of ad hoc employees were continued, the same would not mean that thereby his status has been changed. It will bear repetition to state that status of an employee can change either by reason of a contract or by reason of a statute. Nothing has been shown to us that the concerned employees either under the contracts of service or under any statute or statutory rules became regular employees of the State.

If the scheme did not apply to the respondents, the provisions as to how the scheme would be administered are not of any significance."

While considering the aforesaid conclusion, the Apex Court in paragraph 24 of the said has observed as follows:-

"24. The very fact that a regularization scheme was framed by the State is a clear pointer to show that the concerned employees were not regularly employed. They had sought for regularization of their service and at least in one case, as noticed hereinbefore, for one reason or the other, the said request was turned down. The validity thereof was not questioned. It attained finality.

In the case of Rama Devi, a contention was raised in the writ petition that the offer of appointment in law was not for a period of six months but for an indefinite period. Such a contention cannot be upheld. If the initial appointment was for a fixed period and the appointment could be terminated without any notice and without assigning any reason, such appointment cannot be said to be an appointment on a permanent post or a temporary sanctioned post. Unless and until the post itself is a permanent or a temporary one, the same would not answer the description of a substantive and permanent employment. In this case, it had been shown that the services of Karan Singh was being renewed for a period of six months on the expiry of the original or extended tenure."

Similarly, the Division Bench of this Court had also the occasion to consider the aforesaid issue in the case of Bansh Gopal vs. State of U.P. and others 2006 (6) ALJ 549, in which it has been held as follows:-

"15. In Board of Revenue's case (supra), the Division Bench took the view that respondent retired as temporary collection peon. It was held by the Division Bench that temporary collection peon who retired after rendering 37 years of service was entitled for pension and it was not necessary that his services should have been substantive and confirmed. The Division Bench took the view that the requirement under Regulation 361 of Civil Services Regulation that the employment must be substantive and permanent shall be deemed to be over ridden by Fundamental Rule 56."

Regulation 370 of the Civil Service Regulations, which also is relevant for the purpose, provides that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post shall qualify except the periods of temporary or officiating service in non-pensionable establishment; periods of service in work-charged establishment; and periods of service in a post paid from contingencies.

From a plain reading of the provisions of Regulation and the aforesaid decision of the Supreme Court in the case of Shakuntla Devi (supra) and of this Court in the case of Bansh Gopal (supra), it is evident that besides fulfilling other conditions, only such service shall qualify for pension when it is of substantive and permanent nature. Needless to state that appointment on a temporary post can also be substantive in nature and qualify for grant of pension. However, appointment on ad hoc basis or as a part-time employment is neither a substantive nor permanent in nature. Grant of equal pay as that of regular employees on the principle of 'equal pay for equal work' shall, in my opinion also not make the employment substantive and permanent or temporary in nature.

Similar controversy has also been dealt with by this Court in catena of decisions.

In State of U.P. and others vs. Dukh Haran Singh 2010 (2) Awc 1882 (LB), this Court has proceeded to clarify that the service rendered by the writ petitioner subsequent to the regularization only qualified for pension and he having retired before rendering 10 years continuous service, is not entitled to get pension.

In Rajesh Kumar Tiwari vs. State of U.P. and others 2010 (2) AWC 1891 (LB), this Court has proceeded to hold that the incumbent has not rendered his services in the regular establishment and was thus not entitled to pension under Regulation 370 of the Civil Services Regulations or even under amended FR 56, which provides for counting temporary services for the purpose of the computation of pension.

In Jai Prakash vs. State of U.P. and others 2014 (2) ADJ 69 (DB), this Court has clearly establishes that the work charged employees constitute a distinct class and they cannot be equated with regular employees and that the work charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant rules.

Bearing in mind the principal aforesaid, I have proceeded to consider the facts of the present case. Indisputably, the petitioner had joined as daily wager on 01.11.1975. Admittedly thereafter petitioner alongwith two other persons had preferred Writ Petition No.29836 of 1990. In the said Writ Petition, an interim order was accorded in favour of petitioner on 13.01.1994 and on the strength of an interim order so accorded, petitioner continued to receive regular pay scale on voucher basis but without any annual increment. In the present case, the services of petitioner were regularized according to the Rules 1998 on the post of Van Daroga w.e.f. 13.09.2002.

No doubt on the basis of interim order, petitioner was accorded regular pay scale since 13.01.1994 and thereafter his services have been regularized on 13.09.2002 and finally he has attained his age of superannuation on 31.12.2013. Admittedly the Department concerned, in its turn, on the basis of regularization made on the post of Van Daroga for approximately 11 years 3 months 15 days accorded 40% pension. The petitioner, thereafter, has waked up from the deep slumber and again re-agitated his claim by means of representations dated 01.06.2013 and 26.06.2013 on the ground that his previous service may also be clubbed for the purpose of computing full pension.

Once representations were made on 01.06.2013 and 26.06.2013, and the same were considered by the Forest Conservator and the claim of petitioner has been declined vide order dated 07.08.2015, the same has also been assailed before this Court by way of an amendment and the services of petitioner as Van Daroga were regularized w.e.f. 13.09.2002 and the said exercise was done on the basis of directions so issued by the Apex Court in the case of State of U.P. vs. Putti Lal 2002 (2) UPLBEC 1595 but at the relevant point of time no objection was raised by the petitioner and the said regularization was accepted even though, there was sufficient time to agitate before the Competent Authority that his seniority should be fixed from the date of payment of regular salary i.e. 13.01.1994 but the said claim has never been set up by petitioner and only in the year 2013 for the first time he has prayed before the respondent for fixing the seniority and also prayed for counting his previous services, then in this backdrop, the Court is of the considered opinion that the service record prior to regularization cannot be said to be continued as admittedly his services were regularized under the Rules 1998 hence on the face of language of Regulation 361 and 370 of the Civil Service Regulations, the services rendered prior to 13.09.2002 do not qualify for grant of pension.

Once such is the factual situation that petitioner continued to work on the basis of interim order, then such period cannot be counted towards the full pensionary benefits and any conferment would be in teeth of the dictum issued by the Apex Court in Uma Devi (supra) and as such no relief can be accorded to the petitioner.

Accordingly, present Writ Petition is dismissed and consequently all the connected Writ Petitions are also stand dismissed.

Order Date :- 7.6.2017

A. Pandey