Dr. Sushil Chandra Tiwari vs State Of U.P. Thru. Addl.Chief ...
2021 Latest Caselaw 10966 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved on 11.08.2021
 
Delivered on 27.08.2021
 

 
Case :- SERVICE SINGLE No. - 14287 of 2021
 
Petitioner :- Dr. Sushil Chandra Tiwari
 
Respondent :- State Of U.P. Thru. Addl.Chief Secy. Labor Lko. & Ors.
 
Counsel for Petitioner :- Amol Kumar, Alok Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Amol Kumar, learned counsel for the petitioner and Sri Raghvendra Kumar Singh, learned Advocate General of U.P. assisted by Sri Manjive Shukla, learned Additional Chief Standing Counsel for the State-respondents.

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

"(I) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.03.2021, having reference No.1054/A.N.C./PENSION/M.I-15731 passed by the Joint Director Pension, Kanpur Mandal, Kanpur, by means of which, the pension to the petitioners was stopped with immediate effect as well as the order dated 15.02.2021 having reference No.3625/2021/4217 issued by the Director, Employees State Insurance Scheme, Labour and Medical Services, Uttar Pradesh passed by the opposite part No.3, contained as Annexure Nos.1, 2 & 3.

(II) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to release the pension to the petitioner, without any delay or interruption."

3. The brief facts, as per learned counsel for the petitioner, are that pursuant to the advertisement in the Newspaper on 30.01.1986 for making appointment on adhoc vacancy of Medical Officers in the Employees State Insurance Scheme, Labour and Medical Services, Uttar Pradesh (here-in-after referred to as the "department in question"), the petitioner was appointment as Medical Officer on adhoc basis in the department in question on 17.03.1989.

4. Initially, the medical services rendered by the department in question was looked after by the Department of Medical & Health Services, U.P., however, vide Government Order dated 10.06.1985 a separate wing was created with regard to medical and paramedical staff. The option was also given to the doctors of the medical & health to opt for services of the department in question as the separate directorate and separate cadre for the department was proposed with the separate service rules, on the same emoluments and perks which are paid to the doctors of Medical & Health Department. Such Government Order has been annexed as Annexure No.5 to the writ petition. Admittedly, the aforesaid Government Order has been issued after getting prior approval from the Finance Department and Medical & Health Department of U.P. and also with the order and approval of the Governor.

5. Since pursuant to the Government Order dated 10.06.1985 no service rules were promulgated governing the service condition of the petitioner, therefore, the initial appointment of the petitioner was made on 17.03.1989 by the Competent Authority following the due procedure required for making appointment on adhoc basis. However, the rules were later on promulgated in the name of U.P. Employees State Insurance Scheme, Labour Medical Services Rules, 1993 (here-in-after referred to as the "Rules, 1993").

6. The services of the petitioner were regularized with effect from 24.07.2009 on the basic pay-scale of Rs.8000-13500 pursuant to the order dated 22.12.2011 (Annexure No.6).

7. Learned counsel for the petitioner has submitted with vehemence that the department was created vide Government Order dated 10.06.1985 with due approval by the Finance Department and the Medical & Health Department and also by the order and approval of the Governor creating 345 posts of employees including one Additional Director. The separate directorate and separate cadre was also proposed to be created and separate service rules to be created. Therefore, it cannot be said that pursuant to the advertisement dated 30.01.1986 the appointment of certain employees was not made as per law. Besides, the petitioner has continuously and permanently discharged his duties of Medical Officer till 31.05.2015, i.e. the date of his superannuation.

8. Sri Amol Kumar, learned counsel for the petitioner has further submitted that adhoc services of the petitioner are to be counted for grant of pension as per Regulation 370 of Civil Service Regulations (here-in-after referred to as the "C.S.R."), which clearly states that continuous temporary or officiating service of the government servant followed by the confirmation in the same or any other post shall qualify for pension.

9. Learned counsel for the petitioner has further submitted that the Regulation 350 of the C.S.R. provides that all establishments whether temporary or permanent shall be deemed to be pensionable establishments.

10. Therefore, learned counsel for the petitioner has submitted that despite the fact that the petitioner has continuously discharged his services with effect from 17.03.1989 till his retirement on 31.05.2015, therefore, after completing more than 26 years of continuous service, pentionary benefits cannot be denied by means of impugned order dated 31.03.2021 which has been issued after about six years from the retirement of the petitioner holding that the petitioner has not discharged qualify service of ten years for making pension and pensionery benefits withholding of his pension and pensionery benefits, is patently illegal, arbitrary, discriminatory and unwarranted. Besides, the impugned order dated 31.03.2021 has been wrongly issued under Regulation 351-A of C.S.R. inasmuch as there is a bar of four years from the event or reason having taken place.

11. Learned counsel for the petitioner has given instances of as many as 22 employees who are identically placed with the present petitioner, vide para-19 of the writ petition who have been paid pension and all retiral benefits as has been paid to the petitioner.

12. Learned counsel for the petitioner has submitted that as per the trite law the pension is treated as "Property" as per Article 300-A of the Constitution of India, therefore, the same cannot be stopped or curtailed or withheld without following due procedure of law. The impugned order dated 31.03.2021 has not only been passed in an illegal and unwarranted manner but also without affording an opportunity of hearing to that effect.

13. Learned counsel for the petitioner has further submitted that the law is trite on the point that if any order involves the civil consequences which affects the person monitorily, such order cannot be passed without affording of any opportunity of hearing.

14. Learned counsel for the petitioner has referred the dictum of the Constitutional Bench of Hon'ble Apex Court in re: Deokinandan Prasad vs. State of Bihar reported in 1971 (2) SCC 305, whereby the Hon'ble Apex Court has held that the pension is a right and the payment thereto does not depend upon the discretion of the government. The Hon'ble Apex Court in re: Dr. Hira Lal vs. State of Bihar, Civil Appeal No.1677-1678 has held that the executive instructions of the State cannot stop the pension of an employee unless and until any order is passing by the government exercising power under Article 309 of the Constitution of India.

15. Sri Amol Kumar, learned counsel for the petitioner, has further submitted that not only for the reason that more than four years have passed, to be more precise more than six years, since the retirement of the petitioner provisions under Regulation 351-A of C.S.R. may not be invoked but for another legal reason that neither any departmental enquiry nor judicial proceeding were pending against the petitioner at the time of his retirement, therefore, such exercise under Regulation 351-A of C.S.R. may not be invoked.

16. Sri Amol Kumar, learned counsel for the petitioner, has placed reliance upon the dictum of Hon'ble Apex Court rendered in re: Prem Singh vs. State of U.P. & others rendered in Civil Appeal No.6798 of 2019 referring paras-32, 33, 34 & 35 to strengthen his submission that after rendering about 26 years of service, the services rendered by the petitioner on adhoc basis may not be ignored for the purposes of making payment of pension and retiral dues. Further, if on technical ground such services of an employee are ignored that may cause serious prejudice to the employee concerned. The Hon'ble Apex Court in the case of Secretary, State of Karnataka & Ors v. Uma Devi,  2006 (4) SCC 1 had directed that if some employees have rendered their ten years continuous service be regularized and they be paid all pensionery benefits counting their entire length of services. For convenience, paras-32, 33, 34 & 35 of Prem Singh (Supra) are being reproduced here-in-below:-

"32. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.

33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.

34. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

35. 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 & Ors v. Uma Devi,  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."

17. Per contra, Sri Raghvendra Kumar Singh, learned Advocate General of U.P. has submitted that the petitioner is not entitled for pension as initially he was appointed on adhoc Medical Officer on 17.03.1989 and later on his services were regularized on 22.12.2011, w.e.f. 24.07.2009 and finally he was retired from service on 31.05.2015. Since the petitioner has not rendered ten years of service with effect from his regularization, therefore, he could have not been paid pension and retiral benefits for not completing ten years qualified service.

18. Sri Raghvendra Kumar Singh, learned Advocate General has further submitted that since the petitioner was Incharge Medical Officer when he retired from Kanpur, therefore, taking advantage of his position he himself forwarded his pension papers to the Chief Medical Officer, E.S.I Labour Medical Services, Kanpur without indicating the fact that initially he was adhoc appointee and subsequently regularized on 22.12.2011 w.e.f. 24.07.2009.

19. Sri Raghvendra Kumar Singh, learned Advocate General has submitted that as per the Government Order dated 22.06.1987 a government employee for being entitled for grant of pension must have put at least ten years or more regular satisfactory service, but the petitioner has not completed such qualified service.

20. Sri Singh has drawn attention of this Court towards Annexure No.SCA-6, which is the judgment and order dated 22.07.2014 passed in the case of the petitioner by the Division Bench of this Court in Writ Petition No.1573 (S/B) of 2012; Dr. Sushil Chandra Tiwari and others vs. State of U.P. & others, whereby the Division Bench has interpreted the meaning and purport of the term "substantive appointment" and while applying the nature of substantive appointment in the case of the petitioner, it has been held in para-15 that the initial appointment of the petitioner may not be treated as substantive appointment.

21. Sri Singh has further submitted that the petitioner has not assailed the judgment and order dated 22.07.2014 before the Hon'ble Apex Court, therefore, that judgment has attained finality and in that way the petitioner cannot say that his initial appointment was a substantive appointment. If the same was not a substantive appointment, he cannot claim the benefit of those services rendered on adhoc basis whereas, the pensionery benefits accrued with effect from the date the employee has rendered ten years regular services.

22. However, on being confronted the learned Advocate General as to whether the State has assailed the judgment and order dated 22.07.2014 inasmuch as in the operative paragraph i.e. para-17 , the Division Bench has categorically observed that the petitioner cannot be discriminated with the similarly placed employees getting protection of Article 14 of the Constitution of India, directing the opposite parties for giving all service benefits including continuity of service to the petitioner so given to the similarly placed employees, learned Advocate General has fairly submitted that the State has also not assailed that order. Therefore, to me, that order of Division Bench has attained finality for both the parties.. For convenience, operative portion of para-17 is being reproduced here-in-below:-

"17. In our considered opinion if this is the position on facts, then the petitioners cannot be discriminated as that would violate Article 14 of the Constitution of India. Consequently, the State Government is required to delve into this factual aspect and in the event it is established that the petitioners belong to the same category of employees prior to the enforcement of the Rules, and if other employees have been extended the service benefits in a similar fashion, then there is apparently no reason to discriminate the petitioners for extension of such benefits.

Consequently, we dispose of this writ petition with the aforesaid observations and a direction is issued to the State Government to consider the claim of the petitioners in the light of observations made herein above and pass appropriate orders within three months from the date of production of a certified copy before the competent authority."

23. On being further confronted as to whether any opportunity of hearing has been provided to the petitioner before passing the impugned order dated 31.03.2021, learned Advocate General has submitted that in view of the facts and circumstances of the present case, it would have been a futile exercise to provide an opportunity of hearing inasmuch as the petitioner could have not been able to demonstrate any material protecting his claim for making payment of pension and pensionery benefits for not rendering qualifying service of ten years.

24. Sri Singh has drawn attention of this Court towards Annexure Nos.SCA-9 to SCA-11 of the short counter affidavit whereby the orders have been passed against those doctors who have been paid pension and pensionery benefits after their retirement in the same manner as has been paid to the petitioner. Sri Singh has also drawn attention of this Court towards Annexure No.SCA-12 of the short counter affidavit which is the ordinance known as Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020, which has been converted into the Act in the name of Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 (here-in-after referred to as the "Validation Act, 2021") drawing attention towards Section 2 of the Validation Act, 2021 which explains "Qualifying Service" for pension.

25. Sri Singh has further submitted that the aforesaid Validation Act, 2021 has got retrospective affect with effect from 01.04.1961. As per Section 2, the qualifying service means a services rendered by an officers appointed on temporary or permanent post in accordance with the provisions of service rules prescribed by the government for the post.

26. Since the petitioner has rendered his services with effect from 17.03.1989 till 24.07.2009, cut off date of Regularisation ordeer as on adhoc basis, therefore, such period of service cannot be treated as temporary or permanent. After regularization on 22.12.2011 w.e.f. 24.07.2009 the petitioner has rendered less than ten years of service, to be more precise about six years service, therefore, he could have not been paid pension and pensionery benefits.

27. Sri Raghvendra Kumar Singh, learned Advocate General has drawn attention of this Court towards a recent judgment of Hon'ble Apex Curt dated 28.07.2021 (reportable) rendered in Rashi Mani Mishra & others vs. State of U.P. & others in Civil Appeal No.2898 of 2021 and other connected civil appeals by submitting that the Hon'ble Apex Court has categorically held that adhoc appointee cannot be deemed to be appointed as substantive appointees, therefore, such adhoc appointees shall be placed below the substantive appointees/ direct recruits. In the aforesaid judgment, the Hon'ble Apex Court has considered all the relevant judgments of the issue e.g. (i) Secretary, Minor Irrigation Department vs. Narendra Kumar Tripathi reported in (2015) 11 SCC 80, (ii) Santosh Kumar and others vs. G.R. Chawla and others reported in (2003) 10 SCC 513, (iii) State of Urrarakhand vs. Archana Shukla reported in (2011) 15 SCC 194, (iv) Direct Recruit Class-II Engineering Officers' Association reported in (1990) 2 SCC 715 and (v) Dr. Chandra Prakash & others vs. State of U.P. reported in (2002) 10 SCC 710 etc. The relevant paras-9 and 10 of the judgment of Rashi Mani Mishra (supra) are being reproduced here-in-below:-

9. Now so far as the reliance placed upon the decision of this Court in the case of Direct Recruit Class II Engg. Officers' Assn. (supra), relied upon by the learned Senior Advocate appearing on behalf of the ad hoc appointees is concerned, it is required to be noted that even in the said decision also, it is observed and held that where initial appointment was made only ad hoc as a stop gap arrangement and not according to the rules, the officiation in such post cannot be taken into account for considering the seniority. In the case before this Court, the appointments were made to a post according to rule but as ad hoc and subsequently they were confirmed and to that this Court observed and held that where appointments made in accordance with the rules, seniority is to be counted from the date of such appointment and not from the date of confirmation. In the present case, it is not the case of confirmation of the service of ad hoc appointees in the year 1989. In the year 1989, their services are regularised after following due procedure as required under the 1979 Rules and after their names were recommended by the Selection Committee constituted under the 1979, Rules. As observed here-in-above, the appointments in the year 1989 after their names were recommended by the Selection Committee constituted as per the 1979 Rules can be said to be the "substantive appointments". Therefore, even on facts also, the decision in the case of Direct Recruit Class II Engg. Officers' Assn.(supra) shall not be applicable to the facts of the case on hand. At the cost of repetition, it is observed that the decision of this Court in the case of Direct Recruit Class II Engg. Officers' Assn. (supra) was considered by this Court in the case of Santosh Kumar (supra) when this Court interpreted the very 1979 Rules.

10. Similarly, the decision of this Court in the case of Rudra Kumar Sain (supra), relied upon by the learned counsel appearing on behalf of the ad hoc appointees also shall not be applicable to the facts of the case on hand. In the case before this Court, the promotees appointed on ad hoc were continued for fairly long periods and their appointments were made after due consultation with, or approval of Service Commission, and therefore their appointments were held not to be ad hoc or fortuitous or stopgap. It is to be noted that in the present case when the ad hoc appointees were appointed in the year 1985, there was no consultation with the UPSC and as such there was no recommendation by the UPSC. Their services came to be regularised  as per the 1979 Rules and after they were selected by the Selection Committee constituted under the 1979 Rules, which specifically provides that for the purpose of regularisation of ad hoc appointments, the appointing authority shall constitute a Selection Committee and consultation with the Commission shall not be necessary. It is also to be noted that when the ad hoc appointees were appointed in the year 1985, they were appointed on the basis of the recommendations of the Selection Committee constituted for ad hoc appointments and when subsequently their services were regularised and they were appointed in the year 1989, they were appointed by the order of Governor. This is one additional ground to hold that their substantive appointments can be said to be only from the date of their regularisation/appointment made in the year 1989 after their names were recommended by the Selection Committee constituted under the 1979 Rules and their services were regularised as per the 1979 Rules after following the procedure as required under the 1979 Rules, i.e., in the year 1989. Therefore, their seniority is to be counted only from 23.02.1989, the date of their regularisation and the services rendered by the ad hoc appointees prior thereto, i.e., from the date of their initial appointments in the year 1985 is not to be counted for the purpose of seniority, vis-à-vis, the direct recruits appointed prior to 1989."

28. Therefore, Sri Singh has submitted that the Hon'ble Apex Court in re: Rashi Mani Mishra (supra) has clarified the position that the length of service of adhoc appointees shall be counted with effect from the date of their regularization for the purposes of pension, so the adhoc service rendered by the present petitioner may not be counted for the purpose of making pension and the pensionery benefits. Accordingly, the writ petition is devoid of merits and is liable to be dismissed.

29. I have heard learned counsel for the respective parties and perused the material available on record.

30. At the outset, I shall deal the arguments of learned counsel for the petitioner regarding violation of principles of natural justice while passing the impugned order dated 31.03.2021 (Annexure No.1).

31. Admittedly, no opportunity of hearing has been provided to the petitioner before passing the impugned order dated 31.03.2021 whereby the pension and pensionery benefits of the petitioner have been withheld for the reason that the petitioner has not rendered ten years qualified service. The Hon'ble Apex Court in re: D.T.C. vs. Balwan Singh reported in AIR 2017 SC 396 in para-5 has observed as under:-

"5. Prima facie, we are of the view that no adverse effect can be permitted upon the right of the employee to receive pension unless he was given notice by appropriate entry in the service book or through other notice that his absence will be treated as unauthorised absence and will not be counted towards qualifying service for pension. In absence of such notice, after the respondent-employee has taken voluntary retirement under VRS and that too on the ground that he has completed ten years of service, it may be unjust and very harsh to inflict him with such adverse consequences. No doubt in sub-rule (2) of Rule 28 of the Pension Rules which relates to condonation of interruption of service, an opportunity of representation is required to be given to the employee before making entry in service book regarding forfeiture of past service only, but there appears to be some substance in the submission that Rules of Natural Justice may be attracted even in other similar situation where the entry is regarding unauthorised absence, if it is to have the effect of break in service adversely affecting the length of qualifying service for pension."

[Emphasis Supplied]

32. Further, admittedly, the petitioner was being paid pension and pensionery benefits since his retirement i.e. 31.05.2015 i.e. after lapse of about six years the impugned order has been passed without seeking any explanation from the petitioner despite the fact that such impugned order involves civil consequences, therefore, it would be causing serious prejudice to the petitioner and on the basis of principles of fairness good conscience the principles of natural justice should be followed. This law is trite from the very beginning as observed by the House of Lords in re: Frome United Breweries Company Ltd. and another vs. Keepers of the Peace and Justice for Country Borough to Bath reported in 1926 AC 586."

"... It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State."

[Emphasis Supplied]

The Hon'ble Apex Court in re: State of Orissa vs. Dr. (Miss) Binapani Dei and others reported in AIR 1967 SC 1269 has followed the aforesaid dictum of House of Lords in re; Frome United Breweries Company Ltd. (Supra).

33. I have noted that the impugned order dated 31.03.2021 has been passed taking recourse of Regulation 351-A of C.S.R., therefore, had the petitioner been issued a show cause notice before passing the order dated 31.03.2021 the petitioner would have apprised the authorities that no such impugned order could be passed taking recourse of Regulation 351-A of C.S.R. on account of bar of four years under such provisions of law. The petitioner could have also apprised the Competent Authority by submitting his explanation that for the purposes of seniority or promotion his services rendered as an adhoc basis could have not been counted but for making payment of pension and pensionery benefits such order could have not been passed. Since no such opportunity has been extended to the petitioner, therefore, the impugned order dated 31.03.2021 is violative of principles of natural justice and may not sustain in the eyes of law on this point alone.

34. The Government Order dated 10.06.1985 (Annexure No.5) whereby a conscious decision has been taken by the Competent Authority that separate cadre of the doctors of the department in question shall be created. A separate Directorate shall be established. Service rules governing the conditions of service shall be formulated. The doctors and paramedical staff appointed in the department in question shall be paid the same salary and allowances which is being paid to the doctors and paramedical staff of Medical & Health Services. Such Government Order has been passed after getting prior approval from the Finance and Medical Department and by the order and approval of the Governor of the State. Later on such service rules were formulated in the year 1993.

35. Not only the above, the Annexure No.RA-2 of the rejoinder affidavit is the Government Order dated 08.02.1989 which provides the vacant posts of Medical Officer are pending consideration in the State Government and option was asked from the Medical Officers to give three options with regard to their posting, if they were found suitable for adhoc appointment, then the appointment letter would be issued to them. However, in case, there is no vacant post in accordance with option, the Medical Officer would be posted nearest to home district where the vacancies are available. Therefore, the aforesaid Government Order clearly provides that such appointment would be made on a clear vacancy through proper channel. Thereafter the petitioner was appointed on the post of Medical Officer in the department in question on 13.07.1989 and admittedly he discharged his continuous and uninterrupted services till his retirement on 31.05.2015.

36. I have also seen Annexure No.8 of the writ petition, which is an affidavit of service being filed by the Principal Secretary of the Department before the Contempt Court bearing Criminal Misc. Case No.1317 (S) of 2015; Dr. Sushil Chandra Tiwari vs. Arun Kumr Sinha and others indicating in para-6 that the petitioner has been paid his all retiral benefits including the pension. Such affidavit of compliance has been filed on 07.08.2015 i.e. after the retirement of the petitioner. Therefore, if there was any anomaly on the part of the petitioner for not apprising the department correctly about his status at the time of his retirement, such fact could have been brought into the notice of the Contempt Court or any review application could have been filed Before the Division Bench which granted the similar benefit to the petitioner, but admittedly, the judgment and order dated 22.07.20214 passed by the Division Bench of this Court has not been assailed by the State Government nor any review application has been filed nor any action has been taken for about six years from the retirement of the petitioner.. Therefore, for all practical purposes, the judgment and order dated 22.07.2014 has attained finality and the compliance of order dated 22.07.2014 has been made by the department by filing affidavit of compliance on 07.08.2015, so in these circumstance the impugned order dated 31.03.2021 would be nullity in the yes of law.

37. Not only the above, the learned Advocate General has himself stated that the judgment and order dated 22.07.2014 has attained finality, therefore, the initial appointment of the petitioner may not be treated as substantive appointment but at the same time the judgment and order dated 22.07.2014 has been accepted by the State Government by making compliance thereof providing all the post retiral benefits which have been paid to the similarly placed employees, therefore, the aforesaid compliance decision may not be reversed by the State Government after about six years and such action be barred from the principles of estoppel.

38. I have noticed Annexure No.10 of the writ petition, which is the judgment and order dated 11.12.2019 passed by this Court in Writ-A No.52358 of 2017; Dr. Atul Darbari vs. State of U.P. & another, which is an identical case with the present petitioner and that writ petition has been allowed considering the decision of this Court in re: Dr. Amrendra Narain Srivastava vs. State of U.P. & others passed in Writ-A No.61974 of 2011 and Dr. Prem Chandra Pathak and another vs. State of U.P. & others passed in Writ-A No.27579 of 2014, wherein this Court has held that the entire period of adhoc services rendered by the employee shall be taking into account and counted for the purposes of grant of pensionery benefits. In the judgment of Dr. Atul Darbari (supra), this Court has followed the dictum of Hon'ble Apex Court rendered in re: Prem Singh vs. State of U.P. in Civil Appeal No.6798 of 2019 whereby even the services rendered in work charged establishment shall be treated as qualifying service. Therefore, this Court in re: Dr. Atul Darbari (supra) as directed the concerning authorities to make payment of retiral dues to the petitioner of that writ petition. Some more identical orders have been annexed with the writ petition wherein the similar benefits have been given. Further, there is one judgment and order dated 17.07.2019 passed by this Court in Dr. Khalid Ali Khan & another vs. State of U.P. & others; Writ Petition No.1744 (S/B) of 2015, which has been annexed as Annexure No.17 to the writ petition, is to be referred for the reason that the judgment and order dated 17.07.2019 passed by this Court in an identical matters has been upheld by the Apex Court when the State challenged the judgment and order dated 17.07.2019 before the Hon'ble Supreme Court by filing Special Leave Petition (Civil ) Diary No.5396 of 2020 (Annexure No.18), the Hon'ble Supreme Court has dismissed the Special Leave Petition vide order dated 05.06.2020.

39. It is also necessary to mention here that the latest dictum of Hon'ble Apex Court rendered in re: Rashi Mani Mishra (supra), it has been held that for the purposes of seniority or promotion the services rendered on adhoc basis shall not be counted but the said judgment does not debar the employees who have retired from service and their adhoc services have been counted for the purpose of pension and pensionery benefits.

40. At this stage, I would like to consider the U.P. Retirement Benefit Rules, 1961 (here-in-after referred to as the "Rules, 1961"). The qualifying service defines in Rule 3 (8) of the Rules, 1961 means service which qualifies for pension in accordance with the provisions of Article 368 of C.S.R. Rule 3 (8) of the Rules, 1961 is quoted as under:-

"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."

41. Regulation 368 of the Civil Services Regulations, provides that service does not qualify, unless the officer holds a substantive office in a permanent establishment. Regulations 368 and 369 provides as follows:-

"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 not on actual duty on the first day on which the establishment was again re-employed."

Therefore, the qualifying service, as defined in sub-rule (8) of Rule 3, includes the service, which qualifies for pension in accordance with the provisions of Section 368 of Civil Services Regulation. The petitioner does not fall in any of the exceptions inasmuch as the period of his temporary service was not in a non-pensionable establishment after he was regularized in the State Government.

42. In the light of the aforesaid provisions of law, it is clear that the petitioner has rendered qualifying pensionery service with effect from the date of his initial joining in the department in question, so the same shall be treated as service qualifying for pension and pensionery benefits.

43. In view of what has been considered above, the writ petition succeeds and is hereby allowed.

44. A writ in the nature of certiorari is issued quashing the orders dated 31.03.2021 passed by the Joint Director Pension, Kanpur Mandal Kanpur, the order dated 15.02.2021 issued by the Special Secretary U.P. and the order dated 05.03.2021 issued by the Director, Employees State Insurance Scheme, Labour and Medical Services, Uttar Pradesh, which are contained as Annexure Nos.1, 2 & 3 respectively to the writ petition. A writ in the nature of mandamus is also issued commanding the opposite parties to release the pension of the petitioner forthwith, preferably within a period of one month from the date of production of a certified/ computerized copy of this order, failing which, the petitioner shall be entitled for interest at the rate of 6% per annum.

45. No order as to costs.

[Rajesh Singh Chauhan,J.]

Order Date :- August 27, 2021

Suresh/