Allahabad High Court
State Of U.P. Through ... vs Vimal Kumar Shukla on 8 January, 2021
Bench: Munishwar Nath Bhandari, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 1084 of 2020
Appellant :- State Of U.P. Through Secretary,Department Of Technical Education And 4 Others
Respondent :- Vimal Kumar Shukla
Counsel for Appellant :- Pramod Kumar Pandey
Counsel for Respondent :- Siddharth Khare
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Rohit Ranjan Agarwal,J.
This appeal has been filed with an application for condonation of delay of 252 days in filing the appeal. Before addressing the application, we are touching merits of the appeal.
By this appeal, a challenge is made to the judgment dated 17.9.2019 by which the writ petition of non-appellant was allowed. It is a case where petitioner-non appellant was engaged as Assistant Store Keeper pursuant to advertisement 30.10.1977. The qualification for the post was prescribed in the advertisement. The petitioner was selected and accordingly recommended for appointment by the Selection Committee vide its order dated 1st April, 1978. The petitioner/non-appellant was however appointed as Assistant Store Keeper on ad hoc basis but in regular pay scale. He was continued in service without interruption and was given all the benefits, as were available to the regularly selected candidate. The petitioner, when retired from service, was denied benefit of pension on the pretext that his service was not regularized.
It is stated that petitioner was not in possession of requisite qualification at the time of appointment thus not entitled to the benefit of pension. Learned Single Judge found that the non-appellant was having requisite qualification of the post of Assistant Store Keeper. The technical qualification provided in the advertisement was only for the purpose of preference. In view of the above, the main objection for grant of pensionary benefits was not accepted.
The second limb of argument was regarding nature of service of non-appellant. It was taken to be ad hoc thus, the plea was taken that an employee, not regularized in service, is not entitled for pensionary benefis.
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.
Order Date :- 8.1.2021
KA
