Babu Lal Tewari vs State Of U.P. And Others
2018 Latest Caselaw 3755 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 44732 of 2003
 
Petitioner :- Babu Lal Tewari
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Hari Om Khare
 
Counsel for Respondent :- C.S.C.,B.G. Singh
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Hari Om Khare, learned counsel for petitioner, learned Standing Counsel and perused the record.

2. Pensionary benefits have been denied to the petitioner on the ground that he did not complete 10 years' service as a regular employee. However, it is evident from record that petitioner was appointed on temporary basis as Peon vide appointment letter dated 17.8.1960 and the said appointment has continued.

3. It is contended that under Fundamental Rule 56 amended by U.P. Act 24 of 1975 even temporary service qualify for pension. Reliance is placed on a Division Bench judgments in Dr. Hari Shankar Ashopa Vs. State of U.P. and others, 1989 ACJ 337; Board of Revenue and others Vs. Prasidh Narain Upadhyay, 2006(1)ESC 611; Babu Singh Vs. State of U.P. and others, 2006(8) ADJ 371 and Bansh Gopal Vs. State of U.P., 2006 (3) ESC 2248 (All).

4. When questioned, learned Standing Counsel could not dispute that even temporary service qualify for pension.

5. It is not disputed that retirement of petitioner is governed by fundamental Rule 56 read with relevant provisions of Civil Services Regulation (hereinafter referred to as "C.S.R."). Every employee, whether permanent or temporary or ad-hoc is liable to retire on attaining age of superannuation as provided under fundamental Rule 56.

6. Under U.P. Retirement Benefit Rules, 1961 (hereinafter referred to as "Rules, 1961") "qualifying service" is defined in Rule 3(8). It means 'service' which qualifies for pension in accordance with provisions of Article 368 of C.S.R. 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-changed 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 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 pensionable establishment, it will not constitute an interruption of service." (emphasis added)

7. Regulation 368, C.S.R., provides that service does not qualify, unless officer holds a substantive office in a permanent establishment. Regulations 368 and 369 are quoted herein below:

"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 on actual duty on the first day on which the establishment was again re-employed."

8. It is not in dispute that petitioner was appointed on substantive post in permanent establishment which is/was pensionable. Nature of his appointment i.e. ad-hoc appointment is not of relevance in as much as period spent by him as ad-hoc was in permanent pensionable establishment, which ultimately resulted into regularization of petitioner without any break in service.

9. Moreover, vide Sub-rule 8 of Rule 3 of Rules 1961, qualifying service includes temporary service followed by confirmation and continued without interruption. In this view of the matter, services rendered by petitioner on ad-hoc basis followed by Regularization would stand covered under "qualifying service" defined under Rule 3(8) of Rules 1961, for the purpose of pension. In taking this view we are fortified by a Division Bench decision in State of U.P. and Others vs. Dr. Amrendra Narain Srivastava, 2012 (8) ADJ 376.

10. Similar issue recently has been considered by this Court in Dr. Indrapal Singh Sachan vs. State of U.P. and 4 Others, (Writ -A o. 62179 of 2015) decided on 07.02.2018, wherein this Court has followed judgment passed in Writ Petition No. 65873 of 2014 and directed that adhoc service would be counted for payment of retiral benefit treating the same as "qualifying service". Judgment passed in Dr. Indra Pal Singh Sachan (supra) reads as under :-

"Heard Shri Ashok Khare, learned Senior Counsel, assisted by Shri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.

Pleadings have been exchanged between the parties and we have perused the same.

The petitioner is aggrieved by the office order dated 9th September, 2015, passed by the Principal Secretary, AYUSH, State of U.P., whereby the representation of the petitioner, for payment of pensionary benefits, has been rejected.

The petitioner was appointed as Ayurvedic doctor on contract basis vide order dated 1.12.1988. The petitioner continued to function as such. A Writ Petition No. 4806 of 1990 (U.P. Anskalik Chikitsak Sangrah Samiti vs. State of U.P. and another), came to be filed by association of Ayurvedic doctors. It was decided vide judgment and order dated 11.9.1992, with a direction to consider the claim of their regularisation within six months and for the payment of full salary of a Medical Officer.

In pursuance of the above judgment of this Court, an office order was issued on 28.2.1992, directing for treating the services of the contract basis Ayurvedic doctors on ad hoc basis. The petitioner was also included in the list attached with the aforesaid office order and his services also were treated on ad hoc basis.

Subsequently, by order dated 25th September, 2009, the services of all ad hoc doctors were regularized and, accordingly, the services of the petitioners were also regularized with effect from 16.3.2005. The petitioner, ultimately, retired on 30.9.2007. On his retirement, he raised a claim for grant of pensionary benefits, which was not accepted. Therefore, he filed Writ Petition No. 49467 of 2012 (Dr. Indrapal Singh Sachan vs. State of U.P. and others), which was disposed of on 22.4.2015, observing that the issue arising in the petition stand answered by the decision of the Court, rendered in Writ Petition No. 61974 of 2011 (Dr. Amrendra Narain Srivastava vs. State of U.P. and others), which has been followed in Writ Petition No. 65873 of 2014 (Dr. Mohd. Mahboob Husain Abbasi vs. State of U.P. and 4 others). Accordingly, the Principal Secretary, Department of Medical Education, Government of U.P., Lucknow, was directed to consider the claim of the petitioner within a time-bound period, keeping into mind the parameters as has been settled in the aforesaid two decisions.

In pursuance of the above, the impugned order has been passed, rejecting the representation of the petitioner with regard to the claim of the pentionary benefits.

The claim of the petitioner has been distinguished in it from that of Dr. Amerendra Narain Srivastava, on the ground that the petitioner was never confirmed, therefore, his services cannot be counted for the purposes of grant of pension. In the case of Amrendra Narain Srivastava, the Division Bench has dealt with the Uttar Pradesh Retirement Benefit Rules, 1965, and the period of qualifying service mentioned therein vis a vis Regulation 368 of the Civil Services Regulations and came to the conclusion that the petitioner therein shall be entitled to pension from the date on which he joined the services by adding the services rendered by him in temporary capacity to his services rendered by him with the Government Department on substantive basis. In other words, on being absorbed in the Government Department in substantive capacity or being regularized, it was provided that the services earlier rendered by him may be in a temporary capacity has to be counted for the purposes of payment of pension.

The aforesaid decision has been followed in the case of Dr. Mohd. Mahboob Husain Abbasi.

In the instant case also, the services of the petitioner, treated to be on ad hoc basis vide order dated 28.2.1992, was ultimately regularized vide order dated 25.9.229 with effect from 16.3.2005. Thus, once the petitioner stood duly regularized/confirmed, the services, rendered by him prior to his regularization on ad hoc basis, would be included in his length of service for the purposes of grant of pension. In this way, for the purposes of pension, the petitioner has rendered service with effect from 28.2.1992 till 30.9.2007. The said period is more than the qualifying service period of 10 years necessary for the grant of pensionary benefits.

In view of the aforesaid facts and circumstances, the distinction, made by the Principal Secretary in passing the impugned order, is not tenable and, accordingly, the same is hereby quashed, holding that services rendered by the petitioner with effect from 28.2.1992, shall be counted in his services rendered by him after his regularization for the purposes of grant of pension. The respondents are, as such, directed to work out the pension admissible to the petitioner as aforesaid and to start paying the same as well as the arrears. The arrears shall be paid with interest of 8 per cent within a period of three months.

The writ petition is allowed, accordingly."

11. Even otherwise, I find that Fundamental Rule 56, as operative in Uttar Pradesh made by provincial legislation, clearly provides that any person who retires under Fundamental Rule 56 would be entitled for retiring pension. Fundamental Rule 56 since it is a provincial enactment would prevail over Civil Service Regulations, which are pre-constitutional provision. This aspect was considered by a Division Bench of this Court in Prasidh Narain Upadhyay (supra), and the Court held:

"12. 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 be substantive and permanent.

(C)The service must be paid by Government.

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 to 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 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 inconsistent. Condition B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus, is inoperative.

14. A similar controversy came up for consideration earlier before this court in the case of Dr. Hari Shanker 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) of 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."

12. This has been followed and further clarified in Babu Singh (supra) and the above decision fully support the case of petitioner with which I am in agreement.

13. In the result, this writ petition is allowed. The impugned order dated 02.01.2002 (Annexure 6 to the writ petition) so far as it relates to petitioner is hereby quashed. The respondents are directed to compute pensionary benefit payable to petitioner after taking into account his entire temporary service. The amount payable to petitioner shall be computed within a period of three months from the date of presentation of a certified copy of this order and the same shall be paid within next two months and also continue to pay current pensionary benefits as and when the same fell due.

Order Date :- 16.11.2018

KA