Saghirul Hasan And 2 Ors. vs State Of U.P. Thru Secy. Labour ...
2021 Latest Caselaw 10052 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 8							     
 
Case :- SERVICE SINGLE No. - 29948 of 2018
 

 
Petitioner :- Saghirul Hasan And 2 Ors.
 

 
Respondent :- State Of U.P. Thru Secy. Labour Lucknow And Others
 

 
Counsel for Petitioner :- Pradip Kumar Srivastava,Renu Misra
 

 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1: Heard Sri Pradip Kumar Srivastava, learned counsel for the petitioners and Sri Shatrughan Chaudhary, learned Additional Chief Standing Counsel for State-respondent.

2: By means of the present writ petition, the petitioners have prayed for issuance of writ of mandamus commanding the respondents to count the ad hoc service rendered by the petitioners prior to their regularization towards qualifying service for the grant of pension, gratuity and other retiral benefits and to grant third time pay scale on completion of 26 years of service taking into consideration the ad hoc service, which was made basis of grant of regularization to the petitioners.

3: Facts in brief are that the petitioners were granted appointment following the procedure of selection on the post of Vice Principal, I.T.I. vide order dated 5.10.1988 (petitioner Nos.1 and 2) and 17.12.1988 (petitioner No.3) and on completion of satisfactory service, pay scales were provided to them and ultimately, petitioner Nos.1 and 2 were regularized vide order dated 20.12.2013 and petitioner No.3 was regularized vide order dated 30.12.2014 w.e.f. 14.2.2010. On completion of satisfactory service, benefits of second time bound pay scale was granted to the petitioners w.e.f. 14.10.2010 and thereafter, on attaining the age of superannuation, the petitioners retired from service on 31.12.2019, 30.9.2019 and 30.6.2019 respectively. After retirement of the petitioners, they were not paid the retiral dues and pension, on the ground that they have not completed ten years of service to their credit for consideration of claim for the payment of retiral dues as well as pension. It has also been the ground for non payment of third A.C.P. that the petitioners have not completed regular 26 years of service, thus, they are not entitled for the grant of third A.C.P.

4: Learned counsel for the petitioners submits that the law in this regard is settled by this Court as well as by the Hon'ble Apex Court that while calculating the qualifying service, ad hoc service rendered shall be taken into consideration in grant of pension and other retiral dues.

5: In support of his submission, he placed reliance upon the following judgments :-

(i) Hari Shankar Asopa Vs. State of U.P. & Another [1990 LAB I.C. 292]

(ii) Yashwant Hari Katakkar Vs. Union of India & Others [1995 LAB I.C. 718]

(iii) State of U.P. & Another Vs. Dr. Sri Kant Chaturvedi & Others [Service Bench No. 1896 of 2015]

(iv) State of U.P. & Others Vs. Vimal Kumar Shukla [Special Appeal Defective No.1084 of 2020]

(v) Bhanu Pratap Singh Vs. State of U.P. & Others [Writ Petition No.6518 (S/S) of 2012]

6: On the basis of the aforesaid, his submission is that the petitioners are entitled for calculation of their service rendered on ad hoc basis for reckoning the qualifying service for the grant of pension and other benefits. Next submission is that the respondents are acting arbitrarily and for no valid justification, they have ignored the ad hoc service of the petitioners and have not released the post retiral dues and pension in favour of the petitioners. Last submission is that the claim setup by the petitioners is fully covered by the judgment relied upon, which are part of the writ petition as Annexure-7 to the writ petition.

7: On the other hand, Sri Chaudhary, learned Additional Chief Standing Counsel submits that for the payment of pension and other retiral dues, service rendered on ad hoc basis cannot be made a ground for reckoning as a qualifying service. The petitioners have not completed ten years of service, therefore, they are not entitled for pension and other benefits admissible to the post. He next submits that the present petition was filed prior to retirement from the post, therefore, there may not be a prayer to release the post retiral dues and pension in favour of the petitioners. Last submission is that there is no illegality on the part of the respondents in not releasing the said benefit.

Submission advanced by learned Additional Chief Standing Counsel is that the amendment was incorporated under the pension rules, which has not been considered in the judgments relied upon by the learned counsel for the petitioners, therefore, the ratio of the judgment are not attracted to the facts and circumstances of the present case.

8: I have considered the submission advanced by learned counsel for the parties and perused the material on record.

9: On perusal, it is evident that the petitioners were granted ad hoc appointment by following the procedure prescribed under the applicable rules. They continued for a long spell of time and taking into consideration their ad hoc service, they have been regularized in service.

10: I have also gone through the judgment relied upon by learned counsel for the petitioners in the case of Hari Shankar Asopa (Supra). Relevant paragraph Nos.17 and 18 are quoted below :-

"17. Clause (e) of Rule 56 unequivocally recognises, 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 Cl. (a) or Cl. (b), or who is required to retire, or who is allowed to retire under Cl. (e) of R.56, becomes entitled for a retiring pension, provided, of course, the first and third conditions stipulated in Art. 361 of the Regulations are satisfied.

18. In the instant case, indisputably, Dr. Asopa, who (was) allowed to retire under Cl. (e) of R. 56 and the first and third conditions envisaged in Art. 361 of the Regulations were satisfied. He, therefore, became qualified for a retiring pension notwithstanding the fact that he was not permanent or any of the posts held by him during the tenure of his continuous services of State Medical Colleges of Uttar Pradesh Government. Denial of retiring pension to Dr. Asopa on the ground of his not being permanent on any post of the Government service was clearly violative of Cl. (e) of R.56 of the Rules. Condition contained in para 2 of the order dt. 21st Feb., 1983 (Annexure 10 to the writ petition), depriving Dr. Asopa of retiring pension cannot, therefore, be sustained. The contention of learned Standing Counsel for the State of Uttar Pradesh that Dr. Asopa was not entitled to any pension lacks merit and has got to rejected."

11: In the aforesaid judgment, Dr. Asopa, whose case was under consideration, was ad hoc employee and continued for several years and retired from service. The Hon'ble Supreme Court after considering the submission of Standing Counsel in the matter that Dr. Asopa was not entitled to any pension, held that the contention of learned Standing Counsel lacks merit and thereafter, direction was issued to release the pension in his favour.

12: Relevant paragraph-3 of the judgment in the case of Yashwant Hari Katakkar (Supra) is quoted below :-

"Dr. Anand Prakash, learned senior Advocate appearing for the Union of India, has contended that on March 7, 1980 when the appellant was pre-maturely retired he had put in 18½ years of quasi-permanent service. According, to him to earn pension it was necessary to have minimum of 10 years of permanent service. It is contended that since the total service of the appellant was in quasi-permanent capacity he was not entitled to the pensionary benefit. There is nothing on the record to show as to why the appellant was not made permanent even when he had served the Government for 18½ years It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the Government. The appellant having served the Government for almost two decades it would be unfair to treat him temporary/quasi-permanent. Keeping in view the facts and circumstances of this case we hold that the appellant shall be deemed to have become permanent after he served the Government for such a long period. The services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits. We allow the appeal, set aside the judgment of the Tribunal and direct the respondents to treat the appellant as having been retired from service on' March 7, 1980 after serving the Government for 18½ years (more than 10 years as permanent service) and as such his case for grant of pension be finalised within six months from the receipt of this order. The appellant shall be entitled to all the arrears of pension from the date of retirement. No costs."

13: In the case of State of U.P. & Another Vs. Dr. Sri Kant Chaturvedi & Others, the order passed by the State Public Services Tribunal, Lucknow was under challenge, whereby the ad hoc service rendered by respondent Nos.1 and 2 has been directed to be counted towards pensionary benefits and also for allowing the pension to respondent Nos.1 and 2. The Division Bench of this Court, taking into consideration entire facts and circumstances of the case, affirmed the judgment passed by the Tribunal and the petition has been dismissed, which was challenged in Special Leave to Appeal (C) No.18622/2016 (State of U.P. & Another Vs. Dr. Srikant Chaturvedi & Another), which has also been dismissed, affirming the order passed by the Tribunal, Lucknow.

14: In the case of State of U.P. & Others Vs. Vimal Kumar Shukla, the relevant paragraph is quoted below :-

"The issue aforesaid is now not open for debate after the judgment of Apex court in Prem Singh vs. State of Uttar Pradesh and others, 2019 (10) SCC 516. Para 36 of the said judgment covers the issue and for ready reference, is quoted hereunder :

"There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka and Ors. v. Umadevi, (2006) 4 SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension."

The para, quoted above, has otherwise been referred by the learned Single Judge in his judgment. It was found that petitioner was appointed on the post of Assistant Store Keeper in the year 1978 in regular pay scale thus was against substantive vacancy. He continued in service with all due benefits, as are made available to regular employees.

In the circumstances aforesaid, the petitioner's case is covered by para 36 of the judgment of the Apex Court in Prem Singh (supra), as quoted above. Learned Single Judge accordingly allowed the writ petition after noticing that the petitioner/non-appellant was even allowed the revised pay scale from time to time as and when revised pursuant to the recommendation of Pay Commission.

Taking into consideration the facts aforesaid, we do not find any error in the judgment of learned Single Judge rather the matter is squarely covered by the judgment of Apex court in the case of Prem Singh (supra). We therefore, find no merit in the appeal and even no reason to accept the application for condonation of delay.

Accordingly application for condonation of delay as well as appeal are dismissed."

15: In the case of Bhanu Pratap Singh (Supra) passed by the learned Single Judge, the relevant paragraph is quoted under :-

"It is not in dispute between the parties that the petitioner was appointed on ad hoc basis on the post of Principal in the College in question pending availability of a duly selected candidate from the Board of Secondary Education. When the provisions of sub-section 2 of section 18 of the Act, 1982 specifically provide that the senior most lecturer would be appointed as ad hoc principal and he would be entitled to the salary payable to the Principal, the said benefit cannot be denied to the petitioner. It is not in dispute between the parties that the salary of the Principal is Rs. 29,500/- and in case of the petitioner the same has been reduced to Rs. 27,870/- which is wholly illegal and arbitrary being in violation of statutory Rules and therefore the impugned orders dated 07.01.2011 and 31.05.2012, Annexure-2 and Annexure-5 to the writpetition respectively cannot survive.

The order dated 07.01.2011 to the extent it relates to the reduction of salary of the petitioner and the order dated 31.08.2012, Annexure-2 and Annexure-5 are therefore quashed.

The writ petition is allowed. At the time of admission, this Court had been pleased to stay the operation of the impugned order dated 31.05.2012, Annexure-5 to the writ petition and had directed the opposite parties to pay the petitioner's salary which he was being paid on his initial appointment prior to the passing of the impugned order.

A direction is, therefore, issued to the respondent no.2 to ensure thatthe petitioner is paid the salary of a Principal i.e. at the basic pay of Rs.29,500 from the date he was appointed as ad hoc principal i.e. 01.08.2010 alongwith arrears thereof."

15: I have gone through the law report relied upon by learned counsel for the petitioners and came to the conclusion that the issue in regard to the inclusion of ad hoc service rendered by the employee and subsequently regularized, the service is countable for reckoning the qualifying service for the payment of pension.

16: On consideration of the same, the Court is of the opinion that there is no res-integra to consider the submission as advanced by learned Additional Chief Standing Counsel. Once it is settled that the ad hoc service, which has been made basis of regularization, has been considered in catena of judgments and it has been held that the same is countable for reckoning the qualifying service for the payment of pension.

17: In view of the above, I am of the opinion that the petitioners are entitled for calculation of their ad hoc service for reckoning the qualifying service. In view of the reasons recorded above, the writ petition succeeds and is allowed.

18. In view of the reasons recorded above, the respondents are directed to calculate the ad hoc service rendered by the petitioners for reckoning qualifying service and in case the petitioners fulfill the required qualifying service, it is directed to pay them the pension and other benefits admissible to them and release the same within a period of six weeks from the date of production of certified copy of this order.

19: The parties shall bear their own costs.

Order Date :- 11.8.2021

Gautam