Raghunandan Prasad vs State Of U.P. Thru. ...
2021 Latest Caselaw 10637 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 

 
Case :- SERVICE SINGLE No. - 1284 of 2015
 

 
Petitioner :- Raghunandan Prasad
 
Respondent :- State Of U.P. Thru. Prin.Secy.,Minor Irrigation & Ground Wat
 
Counsel for Petitioner :- S.R. Shukla,Ram Dev Tiwari,S.C. Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri R.D. Tiwari, learned counsel for the petitioner and Sri Vivek Kumar Shukla, learned Standing Counsel for the State-respondent.

By means of this writ petition, the petitioner has prayed the following reliefs:-

"(i) to issue a writ, order or direction in the nature of certiorari quashing the order dated 03.02.2015 passed by the opposite party no.3 contained as Annexure no.1 to the instant writ petition.

(ii) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to count the service rendered by the petitioner under work charge establishment towards the qualifying service for purpose of payment of pension."

Learned counsel for the petitioner has drawn the attention of this Court towards para 6 to 9 of the writ petition wherein he has indicated that on 01.07.1980 the petitioner was appointed as Helper in the Department of Ground Water Works and had continuously discharged his services. He has also submitted that the petitioner was having requisite qualification to that effect. The services of the petitioner were regularized on 24.05.2004 and the petitioner retired from services on 31.12.2012.

Learned counsel for the petitioner has submitted that the authority concerned is only considering the services of the petitioner with effect from 24.05.2004 till 31.12.2012, the date of retirement, but the earlier services rendered by the petitioner with effect from July, 1980 to 2004 has not been considered, therefore, the impugned rejection order dated 03.02.2015 (Annexure No.01) is patently illegal.

Per contra, Sri Vivek Kumar Shukla, learned Chief Standing Counsel has submitted that the petitioner has not enclosed his appointment letter with the writ petition. He has not demonstrated as to where the petitioner was initially appointed. In the absence of such document and specific recital to that effect, it may not be verified as to whether the initial appointment of the petitioner was made strictly in accordance with law/policy or not. Therefore, the impugned order dated 03.02.2015 has been rightly issued and there is no infirmity or illegality in the said impugned order.

Learned counsel for the petitioner has drawn the attention of this Court towards the latest judgment of Division Bench of this Court dated 09.06.2021 passed in Special Appeal No. 97 of 2021 (State of U.P. and others vs. Bhanu Pratap Sharma) whereby this Court while considering the decision of Hon'ble Apex Court in re:- Prem Singh vs. State of U.P. and others [reported in AIR 2019 SC 4390] as well as the relevant provisions of Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 directed that the case of such employees be considered in the light of dictum of Hon'ble Apex Court in re:- Prem Singh (supra). For the convenience, the order dated 09.06.2021 is being reproduced herein-below:-

"Matter is taken up through Video Conferencing.

Ms. Subhash Rathi, learned counsel appears on behalf of appellant.

State of Uttar Pradesh and its functionaries take exception to order dated 06.10.2020 passed in Writ A No.35301 of 2017.

The petition was filed against the non grant of pension which was denied on the anvil of Regulation 370 of the Civil Service Regulation.

Learned Single Judge on the findings that the petitioner was initially appointed on 25.04.1979 as Helper in Department of Irrigation, Jhansi., later regularized on 05.08.2006, and retired on attaining the age of superannuation on 31.01.2017 and relying on the decision in Prem Singh Vs. State of Uttar Pradesh and Others (AIR 2019 SC 4390) allowed the petition. In Prem Singh (supra) it is held:

"36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed. "

The exception to impugned order is taken on the ground that with the promulgation of Uttar Pradesh Qualifying Service for Pension and Validation Ordinance (Ordinance No.19 of 2020) published in Uttar Pradesh Gazette (Extraordinary) dated 21.10.2020. It is urged that in view of newly promulgated Ordinance, particularly the non obstante clauses Section 2, 3 and 4, the petitioner is not entitled to claim the period of service from 1979 to 2006 as qualifying service for the pension. It is urged that the payment for said period and thereafter from the date of regularization was from the Contingencies fund.

The Ordinance 2020 is reproduced for ready reference:

"NO. 1877(2)/LXXIX-V-1-2020-2(ka)20-2020

Dated Lucknow, October 21,2020.

In pursuance of the provisions of clause (3) of Article 348 of the Constitution of India, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Pension Hetu Aharkari Sewa Tatha Vidhimanyakaran Adhyadesh, 2020 (Uttar Pradesh Adhyadesh Sankhya 19 of 2020) promulgated by the Governor. The Vitta ( Sammanya) Anubhag-3 is administratively concerned with the said Ordinance.

THE UTTAR PRADESH QUALIFYING SERVICE FOR PENSION AND VALIDATION ORDINANCE, 2020

(U.P. Ordinance no. 19 of 2020)

(Promulgated by the Governor in the Seventy-first Year of the Republic of India).

AN

ORDINANCE

to provide for qualifying service for pension and to validate certain actions taken in this behalf and for matters connected therewith or incidental thereto.

WHEREAS, the State legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action;

NOW,THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor is pleased to promulgate the following Ordinance:-

1.(1) This Ordinance may be called the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020.

(2) It shall extend to the whole of the State of Uttar Pradesh.

(3) it shall be deemed to have come into force on April 1,1961.

2. Notwithstanding anything contained in any rule, regulation or Government order for the purposes of entitlement of pension to an officer , "Qualifying Service" means the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post.

3. Notwithstanding any judgment, decree or order of any Court, anything done or purporting to have been done and may action taken or purporting to have been taken under or in relation to sub-rule (8) of rule 3 of the Uttar Pradesh Retirement Benefit Rules, 1961 before the commencement of this Ordinance, shall be deemed to be and always to have been done or taken under the provisions of this Ordinance and to be and always to have been valid as if the provisions of this Ordinance were in force at all material times with effect from April 1,1961.

4. Save as otherwise provided, the provisions of this Ordinance shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Ordinance.

ANANDIBEN PATEL

Governor,

Uttar Pradesh

By order

U.P. Singh-II,

Pramukh Sachiv "

It is informed that this Ordinance has been enacted by U.P. Act No.1 of 2021 on 05.03.2021 as the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021.

It is clear from the perusal of section 2 of the Act of 2021 that it would have effect notwithstanding anything contained in U.P. Retirement Benefit Rules, 1961 or Regulation 361 and 370 of the Civil Service Regulation. Careful reading thereof, however, revels that "Qualifying Service" has been defined to mean the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post. In the counter affidavit filed by present appellant in the writ petition it was categorically admitted by the appellant that the petitioner was appointed in the office of Executive Engineer, Nalkoop Nirman Khand I, Bareilly on the post of Rig Assistant on work charge basis on 25.04.1979. Subsequently, the petitioner was regularized from work charge basis to regular establishment on the post of helper on 18.03.2006.

Thus admittedly, the petitioner was appointed on a post in work charge establishment. The record reveals that the initial appointment of the petitioner was as helper. Thus the post which is referred to in the counter affidavit is that of Helper on which he was regularized. The post of Helper thus permanently existed. Further more, it is not the case of the appellant that the respondent was not appointed in accordance with the provisions of Service Rules. Thus having been initially appointed on the post of Helper, the appellant were not justified in denying the service benefit.

The impugned order when tested on the anvil of above analysis cannot be faulted with.

In view whereof no indulgence is caused.

Consequently, appeal fails and is dismissed. No costs."

Sri Vivek Kumar Shukla, learned Chief Standing Counsel has drawn the attention of this Court to the operative portion of the judgment and order dated 09.06.2021 passed by the Division Bench of this Court which clearly provides that the benefit of the order of Prem Singh (supra) has been extended to such Helpers whose post was permanently existed and such appointment was made strictly in accordance with the provisions of service rule. Therefore, if the present petitioner fulfills those conditions of the judgment and order dated 09.06.2021, his case may be considered in terms of judgment order dated 09.06.2021 passed by this Court in re:- Bhanu Pratap Sharma (supra).

Considering the rival submissions of learned counsel for the parties, I hereby dispose of this writ petition finally permitting the petitioner to prefer a fresh representation to the respondent no.1 taking all pleas and grounds which are available to him enclosing therewith relevant documents which are necessary for disposal of his representation within a period of ten days from today. If such representation is preferred, the competent authority shall consider and decide the case of the petitioner in terms of judgment and order dated 09.06.2021 passed in re:- Bhanu Pratap Sharma (supra) if the petitioner fulfills the conditions of judgment and order dated 09.06.2021 in re:- Bhanu Pratap Sharma (supra). Before passing appropriate order, the authority concerned shall verify those facts carefully and the petitioner may be afforded an opportunity of hearing, if it is so required under the law. Appropriate orders shall be passed with expedition preferably within a period of three months from the date of production of certified copy/computer generated copy of this order.

In view of above, the present writ petition is disposed of in the aforesaid terms.

Order Date :- 19.8.2021

Vikas/-