Allahabad High Court
Dr. Onkar Nath Dwivedi vs State Of U.P. And 3 Others on 8 July, 2019
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- WRIT - A No. - 9302 of 2019
Petitioner :- Dr. Onkar Nath Dwivedi
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Shashank Shekhar Mishra,Pusp Raj Singh
Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner claims to have been appointed as Medical Officer on adhoc basis in the Medical Department of State of Uttar Pradesh on 1.2.1986. This appointment was against substantive vacancy and funds for payment of of salary were released out of state coffers. Petitioner continued to work on adhoc basis and ultimately his services were regularized on 15.5.1998. The petitioner has also superannuated on 31.1.2017. Petitioner has been sanctioned pension by treating his qualifying service from 15.5.1998 till he attained the age of superannuation.
Learned counsel for the petitioner submits that adhoc services rendered by the petitioner from 1.2.1986 which continued till his services got regularized on 15.5.1998 are liable to be included towards qualifying service in view of rule 3(8) of the U.P. Retirement Benefit Rules, 1961. It is stated that claim of petitioner has not been examined with reference to rule 3(8) of Rules of 1961 and his pension has been fixed below his entitlement. In that regard petitioner has also made various representations but as claim of the petitioner has not been addressed, he is before this Court. Learned counsel for the petitioner places reliance upon a decision of this Court in Writ Petition No.39890 of 2015, which was disposed of vide following orders passed on 9.5.2019:-
"This writ petition is directed against an order dated 8.1.2015, contained in Annexure-1 to the writ petition, whereby petitioner's claim for inclusion of his services from 18.6.1988 to 7.7.1998 for the purposes of payment of pension has been denied. The order impugned records that services rendered on substantive basis alone would be counted for the purposes of payment of pension under the U.P. Retirement Benefits Rules, 1961.
Learned counsel for the petitioner submits that the authority concerned while passing the order has clearly failed to notice the provisions of Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, and therefore the order impugned is bad in law.
Learned Standing Counsel has tried to justify the order for the reasons recorded therein.
The issue that requires consideration in this petition is clearly regulated by the provisions of Rule 3(8) of the Rules of 1961, which defines qualifying service in following terms:-
"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."
Period of temporary or officiating services in a non-pensionable establishment without interruption followed by confirmation in the same or any other post would clearly be included within the definition of qualifying service for the purposes of payment of pension. This provision has clearly been omitted from consideration. This Court in Writ Petition No.63440 of 2015 (Dr. Prem Chandra Pathak (Retired) and another Vs. State of U.P. and others), decided on 27.2.2017, and in Writ Petition No.68873 of 2015 (Dr. Akhilesh Kumar Singh Vs. State of U.P. and others), decided on 13.12.2017, has been pleased to take similar view in the matter. Since the continuous working of petitioner from 1988 followed with his substantive appointment is not in dispute, therefore, the exclusion of petitioner's services rendered between 1988 to 1998 could not have been omitted for the purposes of payment of pension. Order impugned dated 8.1.2015, consequently, cannot be sustained and is quashed.
The authority concerned shall re-consider the matter, in light of the observations made above, and pass a fresh order within a period of two months from the date of presentation of certified copy of this order. The benefit, which is found due and payable to petitioner in terms of the aforesaid decision, would be released, within a further period of two months, thereafter.
Writ petition, accordingly, stands disposed of."
Learned Standing Counsel submits that such grievance of the petitioner shall be examined by the authority concerned, in accordance with law.
In the facts and circumstances, noticed above, this writ petition stands disposed of with a direction upon the respondent no.1 to accord consideration to petitioner's claim by passing a reasoned order, within a period of three months from the date of presentation of certified copy of this order. Petitioner's claim for inclusion of his services rendered in adhoc capacity from 1.2.1986 till his services got regularized on 15.5.1998 shall be specifically dealt with keeping in view the provisions of rule 3(8) of the Rules of 1961. It goes without saying that if petitioner's claim is accepted, all consequential benefits would be released within a further period of two months, thereafter.
Order Date :- 8.7.2019
Ashok Kr.
