Allahabad High Court
Sukh Devi vs State Of U.P & 3 Others on 27 July, 2021
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 7732 of 2021
Petitioner :- Sukh Devi
Respondent :- State Of U.P & 3 Others
Counsel for Petitioner :- Javed Husain Khan
Counsel for Respondent :- Narendra Pratap Singh
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and Sri Narendra Pratap Singh for the Nagar Palika Parishad and the learned Standing Counsel for the State respondents.
Learned counsel appearing for the Nagar Palika Parishad fairly concedes to the position that the petitioner would be entitled to the period spent in service and prior to the order of regularisation having been passed being included while computing qualifying service. The aforesaid issue stands settled in favour of the petitioner in light of the judgment rendered by the Court in Kishori Sharan Nagaich v. State of U.P. And Others [Writ A No. 430 of 2012]. Dealing with an identical question, this Court in Kishori Sharan Nagaich held thus:-
"Insofar as the claim for pension and other retiral benefits of persons working in non-centralised services under the Nagar Palika is concerned, there is no dispute that those are governed by the Uttar Pradesh Nagar Palika Non-Centralised Service Retiral Benefit Rules 1984. The expression "qualifying service" has been defined in those rules and reads thus:-
"???????? ????" ?? ???????? ??? ???? ?? ?? ?? ?????????? ?? ?????, ???-??? ?? ??? ??????? ????? ?????? ????????? ?? ???????? 368 ?? ????? ?? ?????? ????? ?? ??? ?????? ?????? ???? ??:-
(??) ??????? ????????? ????? ?? ???? ????? ???? ???????? ??? ??????? ?? ?????????? ???? ????;
(??) ???? ????? ???????? ???????? ??? ???? ?? ????; ??
(???) ???? ??? ?? ?? ????? ??? ??????? ???? ?? ?????? ???? ???? ??, ???? ?? ????:
?????? ??????? ????? ?? ???? ?????? ??????? ?? ?????????? ???? ?? ???? ?? ???? ???????? ???? ?? ??? ??? ?? ????? ??? ??? ?? ???? ???? ?? ?? ???? ?? ???? ??????? ?? ???? ??? ??? ??? ?????? ?? ??? ????"
Rule 3 stipulates the categories of employees who would stand covered for the purposes of extension of retiral benefits. That rule is in the following terms:-
"?- ???????? ?? ???? ???? - (1) ?? ?????????? ?????????? ?? ???? ????:
(?) ???????????? ?????? ?? ?? ????? ????????? ?? ?? ?? ???????? ?? ???????? ???? ?? ?????? ?????? ?????? ????? ????? ????? ???? ?? ????? ??? ?? ??????? ???? ????:
(?) ???????????? ?????? ?? ?? ????? ????????? ?? ?? ?? ???????? ?? ???????? ???? ?? ?????? ?? ?????? ?????? ????? ????? ????? ???? ?? ???? ????? ???????? ?? ??: ??
(?) ???????????? ?????? ?? ?? ????? ????????? ?? ?? ?????? 01 ??????, 1979 ?? ????? ?????? ?????? ???????????? ???? ?? ???? ?? ?? ??????? ??, ?????? ?? ?????????? ?? ??????? ?? ????? ????-??????? ?? ???? ???, ?????? ?? ?? ?? ???????? ?? ???????? ???? ?? ?????? ?? 90 ??? ?? ???? ?? ?????????? ?????? ????????? ???? ?? ??? ???? ?????? ??? ?? ???????? (2) ?? ???????????? ??????? ?? ?????? ???? ???? ????"
The expression "qualifying service" is identical to the provisions made in Regulation 368 of the Civil Service Regulations as applicable in the State of U.P. That expression excludes the following classes of services alone for the purposes of computation and eligibility to pensionery benefits:
A. Temporary or officiating services provided in a non pensionable establishment.
B. Period spent against or in a work charged establishment and
C. Service spent on a post whose payments are made out of contingency funds.
The Proviso to Regulation 368 is however of significance. It provides that continuous temporary or officiating service will be calculated as qualifying service if the services of the employee concerned are ultimately confirmed. As in the present case the services of the petitioner were confirmed on 31 May 2011 when an order of regularisation was passed and the petitioner stood regularised with effect from 13 May 2011. His claim for pensionery benefits consequently clearly fell within the scope and ambit of the proviso to Regulation 368 which stands mirrored in the 1984 Rules. The mere fact that the petitioner prior to the order of regularisation had worked on a temporary or ad hoc basis clearly pales into insignificance thereafter. In any case the third respondent clearly erred in seeking to consider the issue of eligibility to grant of pensionery benefits merely taking into consideration the services rendered by the petitioner post his regularisation. That view clearly cannot be countenanced even on the basis of the provisions made in the 1984 Rules. The Court consequently finds itself unable to sustain the order impugned."
In view of the aforesaid position in law which is not disputed, it was submitted by Sri Narendra Pratap Singh that the Executive Officer of the Nagar Palika Parishad shall duly examine the claim of the petitioner in accordance with the legal position noted above and a final decision communicated with expedition and in any case within a period of two months from the date of presentation of a duly authenticated copy of this order.
This petition shall stand disposed of in light of the statement noted above.
Order Date :- 27.7.2021
faraz
