Amar Nath Sharma vs State Of U.P. And 4 Others
2021 Latest Caselaw 4586 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 5030 of 2021
 
Petitioner :- Amar Nath Sharma
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Fuzail Ahmad Ansari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri F.A. Ansari, learned counsel for the petitioner and learned Standing Counsel for the State respondents.

The petitioner is before this Court challenging the impugned orders dated 03.7.2020 and 07.7.2020 passed by the second and third respondents, wherein his claim for payment of retiral benefits, including pension, has been declined on the ground that services of petitioner had not been regularized under the provisions of U.P. Secondary Education Services Selection Board Act, 1982.

It appears that the petitioner was appointed on the post of Assistant Teacher in L.T. Grade in 'Sri Jawahar Inter College Gohan, Jalaun', which is a recognized institution under the provisions of U.P. Intermediate Education Act, 1921 and receiving grant-in-aid from the State Government. The provisions of U.P. Act No.24 of 1971 is also applicable to the institution in question. The approval to the appointment of the petitioner was granted by the District Inspector of Schools, Jalaun vide order dated 30.8.1991. In pursuance of the appointment letter dated 30.6.1991, the petitioner joined his duties in the institution on 01.9.1991. Since then, the petitioner was continuously working in the institution as Assistant Teacher L.T. Grade. After completion of 10 years of satisfactory service the he has also been granted selection grade by the District Inspector of Schools, Jalaun at Orai vide order dated 06.12.2005. The salary of the petitioner has been regularly revised in the admissible pay scales from time to time and the benefit of recommendation of VIIth Pay Commission has also been accorded to him. Finally, the petitioner retired from the post of Assistant Teacher on 31.3.2019 after attaining the age of superannuation but he has not been paid his pension and other retiral benefits.

In this backdrop, learned counsel for the petitioner submits that the petitioner was permitted to join as Assistant Teacher in the institution under the orders of competent authority and was continuously receiving the salary from the date of joining. After putting more than 27 years regular continuous service in the institution, the petitioner retired on 31.3.2019 but instead of considering the same, the authorities have rejected his claim for payment of retiral benefits. Reliance has been placed upon a decision of this Court in Writ Petition No.23825 of 2017 (Onkar Nath Saxena vs. State of U.P. and others) in which following orders have been passed on 2.5.2018:-

"Petitioner claims to have been appointed as a teacher in CT Grade, which was approved by the District Inspector of Schools on 11.9.1987. Petitioner continued to work and receive salary. Ultimately the approval order was cancelled on 8.8.1988, on the ground that incorrect facts were forwarded before the authorities. A writ petition was filed by petitioner alongwith others being Writ Petition No.17039 of 1988, in which an interim order was passed on 6.9.1988. Petitioner continued to work and receive salary pursuant to the interim order. The writ petition ultimately came to be allowed by this Court on 6.2.2004, vide following orders:-

"Heard Sri R.K. Jain, Senior Advocate, assisted by Sri D.K. Srivastava for petitioners and learned Standing Counsel for respondents.

Four petitioners in this writ petition were qualified to be appointed as C.T. grade teachers. They were appointed on short term vacancies, after advertisement, by committee of management vide its resolution on the basis of quality point marks. Their appointments were approved by the District Inspector of Schools on 11.9.1987, and that all the petitioners joined and are working. By the impugned order dated 8.8.1988 passed by the District Inspector of Schools, Jalaun, he has cancelled the approval on the ground that the management had forwarded incorrect, false and misleading information with regard to petitioners above appointment.

Counsel for petitioners states that no reason has been given for cancelling the approval nor any opportunity was given to the petitioners or the management before impugned orders were issued.

In the counter affidavit of District Inspector of Schools, Jalaun filed on 12.7.1997, the averments with regard to vacancies and due procedure followed in making petitioner's appointment has not been denied. She has not denied that the petitioner's appointment were approved and they were working and were being paid salary. She has not made any comment and has not defended the order dated 8.8.1988 by which the approval were cancelled.

An interim order was passed in this writ petition on 6.9.1988. While staying the operation of the impugned order it was made open to the District Inspector of Schools to pass orders afresh after giving an opportunity to the petitioner. There is no averment in the counter affidavit or any material on record that any further opportunity was given to the petitioner or any fresh order was passed. There is no averment made in the counter affidavit denying the validity of petitioners ad hoc appointment. They were not given any notice before the order was cancelled. The order, therefore, is not only arbitrary but also unreasonable and violates the principle of natural justice.

For the aforesaid reasons, the writ petition is allowed. The impugned order dated 8.8.1988 is set aside. Petitioners shall be allowed to continue in service with all consequential benefits."

So far as petitioner's services having not been regularized is concerned, the authorities could have examined the petitioner's claim for regularization, in accordance with the provisions of Act of 1982. Admittedly such claim for regularization has not been examined so far. Reliance is placed upon a decision of this Court in Prem Singh Vs. State of U.P. and others, reported in (2014) 1 UPLBEC 760. Paras 30 and 31 of the judgment reads as under:-

"30. The principle which can be discerned from the above mentioned judgment is that if adhoc/stopgap/temporary employee having essential qualification and is appointed in terms of the statutory Rules and he continues for a long time and fulfills the qualifying service is entitled for pension and other retiral benefits.

31. Having regard to the facts and circumstances of the case I am of the view that petitioner is entitled for the post retiral benefits as his appointment was made in terms of the statutory Rules viz. Removal of Difficulties Order, 1981, against a short term vacancy with the approval of the appropriate authority/District Inspector of Schools and he worked uninterruptedly for 17 long years."

So far as the factual and legal aspect of the matter is concerned, the same is not disputed by learned Standing Counsel.

The Supreme Court in the case of Ramesh K. Sharma v. Rajasthan Civil Services, (2001) 1 SCC 637, considered the word "substantive basis" following the judgment of Baleshwar Dass v. State of U.P. (AIR 1981 SC 41). The Supreme Court held that if an incumbent holds the post for indefinite period then it cannot be said to be adhoc appointment. The Court held as under :-

"If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment, not being either stopgap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stopgap basis then such an appointment cannot be held to be on substantive basis. The expression "substantive basis" is used in the service jurisprudence in contradistinction with ad hoc or purely stopgap or fortuitous."

This Court in the case of Dr. Hari Shanker Asopa v. State of U.P. And another, reported (1989) UPLBEC 501, considered the Article 361 and Clause (e) of Rule 56 of Fundamental Rules as applied in Uttar Pradesh and the Civil Service Regulations. Dr. Hari Shanker Asopa was appointed on temporary basis on the post of lecturer in the department of Surgery at S.N.Medical College, Agra on 4th August, 1964. In the year 1969, he was appointed on a substantive post of Reader in Surgery at same College that appointment too was on temporary basis. The term of the appointment was one year or till the candidate selected by the U.P. Public Service Commission was available, whichever was earlier. After three years, he was promoted to the post of Professor in Surgery in Jhansi Medical College. The said appointment was also temporary and it was for a period of one year or till the candidate regularly selected by the U.P.Public Service Commission was available or till the services of Dr. Asopa were needed, whichever was earlier. Dr. Asopa uninterruptedly continued for 18 years as a Lecturer, Reader and Professor on temporary basis. His request for voluntary retirement was allowed by the State Government in the year 1983 with a condition that no pension would be paid to him, as he was not permanent on any post of the Government Service. Dr. Asopa feeling aggrieved by the said order dated 21.2.1983 preferred a writ petition before this Court.

In the case of Hans Raj Pandey v. State of U.P. and others, 2007 (3) UPLBEC 2073 this Court had occasion to consider the provisions of U.P. State Aided Educational Institution Employees Provident Fund, Insurance and Pension Rules, 1964 also. Rule 43 ,44 and 45 of the said Rule has been considered at length by this Court and also the Regulations 465 and 465 A of the U.P.Civil Service Regulations. The Court held as under :-

"In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B i.e., lack of permanent character of service. However, in out view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P.Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government Servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition -B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is in operative."

The principle, which can be discerned from the above mentioned judgment, is that if adhoc/stopgap/temporary employee having essential qualification and is appointed in terms of the statutory Rules and he continues for a long time and fulfils the qualifying service, is entitled for pension and other retiral benefits.

Having regard to the facts and circumstances of the case, I am of the view that petitioner is entitled for the post retiral benefits as his appointment was made in terms of the statutory Rules and the same was also approved by the District Inspector of Schools. Admittedly, the petitioner continued to work in the institution as Assistant Teacher w.e.f. 01.9.1991 and after completing ten years of satisfactory service, he has also been accorded selection grade on 01.9.2001. Finally, he retired from the post of Assistant Teacher on 31.3.1999 after serving more than 27 years regular service in the institution.

In the facts and circumstances, this Court is of the considered opinion that the impugned orders dated dated 03.7.2020 and 07.7.2020 cannot be sustained and are quashed.

Consequently, the writ petition is allowed and the respondents are directed to pay the post retiral benefits to the petitioner in accordance with law as expeditiously as possible preferably within three months from the date of communication of this order.

Order Date :- 25.3.2021

RKP