Dr. Ram Sharan Tripathi vs State Of U.P. And Another
2021 Latest Caselaw 11091 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - A No. - 15529 of 2018
 

 
Petitioner :- Dr. Ram Sharan Tripathi
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Shashank Shekhar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Suneet Kumar,J.

1. Heard learned counsels for the parties.

2. The second respondent, Director, Ayurvedic and Unani Services, Lucknow, issued an advertisement on 23.05.1987, for appointment on the post of Ayurvedic and Unani Medical Officers in the State of U.P. The advertisement invited applications for 206 posts of Unani Medical Officers and 1194 posts of Ayurvedic Medical Officers. 53 posts was reserved for female candidates. Petitioner, being fully qualified, was called for interview; on being recommended, petitioner came to be appointed by order dated 18.06.1988 on the post of Medical Officer (Ayurvedic). The name of the petitioner finds place at sl.no. 91. Petitioner resumed duty on 12.07.1988 at the State Ayurvedic Dispensary. After appointment, petitioner was posted at various State Ayurvedic Dispensaries. Petitioner after putting in 17 years of service, came to be regularized on 16.03.2005 in terms of U.P. Regularization of Ad-hoc Appointments (on the Post Outside the Purview of Public Service Commission) Rules, 19791. The name of the petitioner finds place at sl.no. 125. Petitioner retired on the attaining the age of superannuation on 31.01.2014 from State Ayurvedic Dispensary, Guda, District Lalitpur. During the service period, petitioner was sanctioned Assured Carrier Progression scale (A.C.P.), Government Provident Fund and Group Insurance Scheme. Petitioner on retirement claimed pension, however, the same was not considered on the plea that petitioner lacks the requisite qualifying service of ten years. In other words the ad-hoc services rendered by petitioner since 1988 was not being counted towards pensionary benefits. Aggrieved, petitioner approached this Court by filing a petition, being Writ Petition No. 67672 of 2015, which came to be disposed of vide order dated 08.04.2016, directing the competent authority to decide the representation of the petitioner towards counting of ad-hoc service. Pursuant thereof, the impugned order dated 04.01.2018 has been passed by the first respondent, Secretary/Special Secretary, Ayush-1, U.P., Lucknow, whereby, petitioner has been denied the benefit of ad-hoc service.

3. It is noted in the impugned order that the appointment of the petitioner was made on stop gap basis as Medical Officer and not as regular officer of the State Government; petitioner was appointed on temporary basis, hence, not entitled to pension under the Rules governing pension. Petitioner came to be regularized in 2005 and retired in 2014 without completing qualifying service of ten years. It is further submitted that in view of U.P. Qualifying Service for Pension and Validation Act, 2021 (U.P. Act No. 1 of 2021)2 the services rendered by petitioner as ad-hoc employee would not count as "qualifying service" defined thereunder.

4. Learned counsel for the petitioner submits that petitioner came to be appointed against substantive vacancy of Medical Officer in the Unani and Ayurvedic Hospitals of the State Government, the appointment was against the pay scale admissible to a Medical Officer. The appointment was made after due approval by the Hon'ble Governor. As per appointment letter, petitioner was entitled to all benefits of pay scale, D.A., A.C.P. etc. It is not being disputed by learned counsel appearing for the State that appointment of the petitioner was against a substantive vacancy on the post of Medical Officer. The advertisement was duly issued by second respondent on approval of the State Government. Thereafter, services of the petitioner came to be regularized under Rule, 1979. It is further submitted that the services of Medical Officers, Community Health Centre were regularized under Rule, 1979 from retrospective date, i.e., from the date of their appointment on ad-hoc basis. The averment has not been denied in the counter affidavit.

5. It is further urged that services of the petitioner rendered on ad-hoc basis is covered by expression 'qualifying service' as defined under Act, 2021. Reliance has been placed on several judgments of this Court, whereby, petitions filed by similarly situated Medical Officers came to be allowed and their ad-hoc service was directed to be counted towards pensionary benefit. Reliance has been placed on the decision rendered by the Division Bench in Dr. Akhilesh Kumar Singh Vs. State of U.P. and others3. The order is extracted:

"The petitioner has invoked the extra-ordinary jurisdiction of this Court for quashing of the order dated 14.8.2017 passed by the Principal Secretary, Medical Education U.P., respondent no. 1 which has been filed as annexure 1 to the writ petition and for a direction to add his adhoc services for the purposes of payment of pension. A further prayer has been made that 12% interest per annum may be allowed for the delayed payment of pension and gratuity.

The petitioner was initially appointment as part time Medical Officer on honorarium in the year 1988. He continued as such for some time and then under the Government Order dated 1.10.1991, pursuant to the recommendations of the Committee constituted, he was appointed on adhoc basis along with 591 other Medical Officers on 28.2.1992.

The adhoc services of the petitioner were regularized w.e.f. 16.3.2005 and he ultimately retired on 31.7.2014.

On retirement he has not been granted pension. The Additional Director, Treasury and Pension is of the opinion that he has not completed a minimum of 10 years of qualifying service on regular basis which is mandatory for payment of pension.

The petitioner in such a situation filed writ petition 1592 (S/B) 2014 before the Lucknow Bench which was disposed of vide order dated 13.11.2014 with the direction to the Principal Secretary to consider the grievance of the petitioner for adding adhoc services rendered by him for the purposes of counting his qualifying services for the payment of pension.

In pursuance to the above order, the representation of the petitioner claiming pension after adding his adhoc services to his regular services came up for consideration before respondent no. 1 but the same has been rejected by the impugned office order dated 14th August 2015. Respondent no. 1 has refused to add the adhoc services rendered by the petitioner for the purposes of pensionery benefit after distinguishing his case from that of one Dr. Yashwant Singh but without assigning any reason for such a distinction.

We have heard Sri Shashank Shekhar Mishra, learned counsel for the petitioner and Dr. Rajeshwar Tripathi, Chief Standing counsel-II for the respondents.

In view of the respective submissions advanced on behalf of the parties the sole question which crops up for consideration is whether the adhoc services rendered by the petitioner as Medical Officer from 28.2.1992 to 15.3.2005 are liable to be added in the regular service rendered by him as Medical Officer from 16.3.2005 to 31.7.2014 for determining the qualifying services for the payment of pension.

It is not a issue that under Rule 574-B of the Civil Service Regulations the minimum qualifying services for grant of pension is 10 years.

A similar question had come up for consideration before the Court in Writ Petition No. 61974 of 2011 (Dr. Amrendra Narain Srivastava Vs. State of U.P., and another) decided on 1.3.2012 and it was held that the period of adhoc services rendered by the Government servant is to be counted for the purposes of payment of pension.

In another Writ Petition No. 27579 of 2014 (Dr. Prem Chandra Pathak and another Vs. State of U.P. an others) decided on 16.5.2014 it was held that if against substantive post a government servant is working on adhoc basis, the adhoc services rendered by him would be counted for determining the qualifying service for grant of pensionery benefits.

Several other writ petitions were decided following the proposition of law as laid down in the above two decisions and in all of them adhoc period of service was directed to be counted towards qualifying service for the payment of post retiral dues.

It may be noted that the decision in the case of Dr. Amrendra Narain Srviastava was allowed to become final as it was not challenged any further.

In the case of State of U.P. and another Vs. Dr. Sri Kant Chaturvedi and others Service Bench No. 1896 of 2015 the Division Bench of this Court vide order dated 10.12.2015 relying upon the case of Dr. Hari Shankar Asopa Vs. State of U.P. and another reported in (1989) 1 UPLBEC 501 held that the benefit of adhoc services is to be given for pensionery benefits.

The relevant paragraph of the aforesaid judment is reproduced below:-

"The ratio of the judgment in no uncertain terms provides that the benefits of adhoc services is to be given to the petitioners while deciding their representation if pensionery benefits will be available to them."

In view of the above decisions, the law in no uncertain terms provides that the benefit of adhoc services is to be given to the government servants for the purposes of grant of pensionery benefits.

In writ petition 63440 of 2015 Dr. Prem Chandra Pathak (Retired) and another Vs. State of U.P., and two others decided on 27.2.2013 this Court relying upon the above decisions quashed the order of respondent no. 1 rejecting the representation of the petitioner therein with regard to counting of adhoc service for his pensionery benefits holding that it is not justified to refuse to add adhoc services rendered by the government servant for the purposes of qualifying service for grant of pension.

The Chief Standing Counsel-II after going through the aforesaid decisions accepts that the controversy arising in this petition stands covered by the decision by this Court in the case of Dr. Prem Chandra Pathak.

In view of the aforesaid facts and circumstances, notwithstanding any distinction if any, with the case of Dr. Yashwant Singh, as the petitioner had worked on adhoc basis against a substantive post from 28.2.1992 to 15.3.2005, the said period is liable to be added in the regular service rendered by him from 16.3.2005 to 31.7.2014. In this view of the matter, the petitioner had rendered substantive service from 28.2.1992 to 31.7.2014 ie. for about 22 years and as such is in no way disqualified for getting the pension.

Accordingly, the impugned order dated 14th August 2015 is quashed and the respondent no. 1 is directed to work out the pension admissible to the petitioner as aforesaid by adding his adhoc services and start paying pension thereof on monthly basis. w.e.f 1st January 2018 and the arrears be paid within a period of three months with interest @ 12% per annum.

The writ petition is allowed."

6. Learned counsel for the respondents has not disputed the proposition adverted to in the aforenoted judgment. He, however, submits that in view of the amendment brought about by Act, 2021, defining ''qualifying service', the service rendered by petitioner as an ad-hoc employee would not fall within the ambit of the expression "qualifying service" defined under Section 2 of Ordinance dated 21.10.2020 (subsequently Act, 2021), which reads thus:

"2. Notwithstanding anything contained in any rule, regulation or Government order for the purpose of entitlement of pension to an officer, "Qualifying Service" means the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post."

7. The provision was considered by the Division Bench of this Court in State of U.P. through its Secretary, Foods and Civil Supplies Vs. Mahendra Singh4. The relevant portion of the order is extracted:

"It is clear from perusal of Section 2 of the Ordinance that it would have effect notwithstanding anything contained in U.P. Retirement Benefit Rules, 1961 or Regulation 361 and 370 of the Civil Service Regulation. Though it has been informed at the bar that in certain writ petitions, validity of the aforesaid U.P. Ordinance has been challenged, however, even if for purpose of adjudicating the present appeal the Ordinance is accepted as it is, section 2 thereof would inure to the benefit to the opposite party-petitioner and not to the benefit of appellants. The word "Qualifying Service" has been defined in Section 2 of the aforesaid U.P. Ordinance to mean the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post.

As discussed aforesaid, the appellants have admitted the appointment of the opposite party-petitioner on temporary post of Godown Chaukidar from 04.09.1981 till the date of his appointment on a regular post in 1997. Therefore, under this very U.P. Ordinance, the petitioner is entitled to his claim for counting the period of his service from the date of his appointment on 04.09.1981 on a temporary post till his regularization on the permanent post in the year 1997.

In view of the aforesaid, the present appeal is devoid of merit and is, accordingly, dismissed."

8. In the facts of the present case, the admitted position, inter se parties is, (i) petitioner came to be appointed against substantive vacancy; (ii) the salary was borne by Government; (iii) petitioner was entitled to all benefits as applicable to a State employee.

9. The expression "qualifying service", as defined under Act, 2021, would mean service rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of service rules prescribed by the Government for the post. In the present case, the Government, having regard to the large number of vacancies existing in State of U.P. of Ayurvedic and Unani Medical Officer, took a conscious decision to curtail the long procedure of appointment through the Public Service Commission by directly issuing advertisement inviting applications from eligible candidates for the post and on the recommendation of the selection committee, candidates were selected. The appointment letter were issued after obtaining approval from Hon'ble Governor. It cannot be said in the circumstances that the rules applicable for appointment were not followed. The rules, as were made applicable for appointment on ad-hoc basis was duly complied and followed and petitioner, admittedly, came to be appointed against substantive vacancy, thereafter, his service came to be regularized under Rule, 1979. In the circumstances, it cannot be said that appointment of the petitioner was against the service rules prescribed by Government. Under the pension rules a temporary government servant appointed against a substantive post is entitled to pension. The nomenclature ''ad-hoc' would have no bearing to non-suit the petitioner towards pension. The nature of appointment is temporary appointment against a substantive post after following the procedure laid down to appoint such ad-hoc/temporary Medical Officer. In the opinion of the Court, the petitioner's service would fall within the expression "qualifying service" as petitioner came to be appointed against substantive post by following procedure prescribed by the State Government. It is not in dispute that appointing authority of the petitioner is the Hon'ble Governor.

10. In the result, the writ petition is allowed. Impugned order dated 04.01.2018, is hereby set aside and quashed. It is held that the service rendered by petitioner on ad-hoc basis would count towards "qualifying service", consequently, petitioner is held entitled for pension. The first respondent is directed to compute pension and other post retiral dues admissible to the petitioner by adding the period of ad-hoc service rendered by him. Petitioner shall be entitled to pension on month to month basis with effect from the date of his superannuation. The arrears of pension would be computed and released within the period of three months, along with simple interest at the rate of 6% per annum from the date of retirement till actual payment.

11. No Cost.

Order Date :- 15.9.2021

P. Sri.