Allahabad High Court
State Of ... vs Ashok Kumar Dixit on 20 July, 2021
Bench: Devendra Kumar Upadhyaya, Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 10
Case :- SPECIAL APPEAL No. - 280 of 2020
Appellant :- State Of U.P.Throu.Secy.Vocational & Technical Edu.And Ors.
Respondent :- Ashok Kumar Dixit
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Abhishek Dwivedi
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Ajai Kumar Srivastava-I,J.
Heard learned State counsel representing the appellant and Sri Pradeep Chandola and Sri Abhishek Dwivedi, learned counsel representing the sole respondent.
This intra-court appeal has been filed by the State challenging the judgment and order dated 29.04.2020 passed by learned Single Judge in Writ Petition No.4319 (S/S) of 2010 whereby the writ petition filed by the respondent was allowed and the order rejecting the claim of pensionary benefits as also the order rejecting the claim of regularization of the respondent were quashed. Learned Single Judge by the said order also issued a direction commanding the State authorities to pay post-retiral benefits including pension, gratuity etc. to the respondent from the date he attained the age of superannuation.
It has been argued by learned State counsel that it is only those government servants whose appointment is substantive and permanent in nature are entitled for pensionary benefits and since the respondent was adhoc employee he is not entitled for pensionary benefits and accordingly to that extent judgment rendered by learned Single Judge dated 29.04.2020 is erroneous.
Further argument made by learned State counsel is that various judgments relied upon by learned Single Judge while rendering the judgment under appeal in this case, dated 29.04.2020 are based on the provisions contained in Fundamental Rule 56 where the provisions of Article 361 and 368 of Civil Service Regulations have not been considered. Accordingly the learned State counsel representing the appellant in this case has stated that as per provisions contained in Article 370 of Civil Service Regulations, adhoc services rendered by any employee do not qualify for grant of pensionary benefits.
On the other hand, learned counsel representing the respondent has submitted that the judgment and order dated 29.04.2020 which is under challenge in this special appeal primarily relied upon the judgment rendered by Hon'ble Supreme Court in the case of Prem Singh vs. State of U.P. and others, reported in 2019 (10) SCC 516 and another judgement of this Court in the case of Vimal Kumar Shukla vs. State of U.P. and others rendered on 17.09.2019 in Writ -A No.60332 of 2016.
Sri Chandola learned counsel for respondent further submits that by the judgment rendered by this Court in the case of Vimal Kumar Shukla (supra) the Court relying upon the judgment in the case of Prem Singh (supra) has opined that it is the uninterrupted continuous service which is relevant for the purposes of grant of pension irrespective of the fact that the services rendered by the employee were in adhoc capacity or temporary capacity or in the capacity of daily wager or in a work charge establishment. He has further drawn attention of the Court to judgment rendered by the Division Bench of this Court on 08.01.2021 whereby the Special Appeal filed by the State challenging the judgment in the case of Vimal Kumar Shukla (supra) rendered by learned Single Judge has been dismissed. The said judgment dated 08.01.2021 delivered by the Division Bench in the case of Vimal Kumar Shukla (Special Appeal Defective No.1084 of 2020) has been annexed along with an application for disposal of special appeal moved on 10.02.2021. He has further relied upon yet another judgment of this Court delivered on 09.06.2021 in Special Appeal No.97 of 2021; State of U.P. and four others vs. Bhanu Pratap Sharma wherein reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Prem Singh (supra) where it has been observed that the services rendered in work charge establishment by an employee are to be treated to be eligible for qualifying service for the purpose of payment of pension.
Learned State counsel has however, attempted to distinguish between the present case and the case of Bhanu Pratap Singh (supra) by stating that Bhanu Pratap was initially engaged in the work charge establishment, however he was subsequently regularized whereas the respondent in the present special appeal, namely Ashok Kumar Dixit was initially appointed in adhoc capacity and he continued to work in the said capacity till attaining the age of superannuation.
The aforesaid submission of learned State counsel representing the appellant does not appear to be tenable in view of the observations made by learned Single Judge while deciding the case of Vimal Kumar Shukla (supra) vide judgement dated 17.09.2019 rendered in Writ-A No. 60332 of 2016. Learned Single Judge in the said case has inter alia observed as under:-
"The principle that emerges from the said spectrum of the decisions is that a temporary employee appointed on the regular establishment of the Government is entitled to pension under Fundamental Rule 56. The nomenclature viz adhoc, temporary, daily wage/work charge is of no relevance. The incumbent must have rendered continuous regular service which certainly does not mean substantive service".
As noted above, the special appeal filed by the State against the aforesaid judgment dated 17.09.2019 rendered by learned Single Judge in the case of Vimal Kumar Shukla (supra) has been dismissed by the Division Bench of this Court vide judgment and order dated 08.01.2021 (Special Appeal Defective No.1084 of 2020). Even otherwise, the issue being now pressed by the State in this case stands settled by the Hon'ble Supreme Court in the case of Prem Singh (supra).
So far as the submission of learned State counsel that Hon'ble Supreme Court and this Court in their judgments including in the case of Prem Singh (supra), has not considered the provisions of Article 361, 368 and 370 of Civil Service Regulations is concerned, we may notice that Hon'ble Apex Court in the case of Prem Singh (supra) has clearly considered the provisions of Article 370 of Civil Service Regulations and has even struck down the same after reading down the provision contained in the note appended to Rule 3 (A) of U.P. Retirement Benefits Rule 1961.
In view of the aforesaid discussion and also taking into account the judgment rendered on 09.06.2021 by the Division Bench of this Court in Special Appeal No. 97 of 2021 as also the judgement dated 08.01.2021 passed by the Division Bench in Special Appeal Defective No. 1084 of 2020, we do not find any force in this special appeal as well, which is hereby dismissed.
Order Date :- 20.7.2021
Renu/-
