Lal Chand vs State Of U.P. And 3 Others
2022 Latest Caselaw 11358 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							A.F.R.
 
							Reserved On : 18.08.2022
 
							Delivered On : 29.08.2022
 

 
Case :- WRIT - A No. - 4083 of 2021
 

 
Petitioner :- Lal Chand
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Arun K. Singh Deshwal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Neeraj Tiwari,J.

Heard learned counsel for petitioner and learned standing counsel for State-respondents.

Present petition has been filed seeking following reliefs:-

"v) Issue appropriate writ, order or direction in the nature of certiorari quashing the order dated 07.01.2021 passed by respondent No. 4.

vi) Issue appropriate writ, order or direction in the nature of mandamus directing the respondents to treat the service of petitioner from the date of his promotion (17.08.1999) on the post of Assistant Development Office (Co-operative) as qualifying service for pension and release the pension and other retiral benefits of the petitioner."

Pleadings are exchanged between the parties. With the consent of counsels for parties, writ petition is being decided at the admission stage.

Learned counsel for petitioner submitted that petitioner was appointed on the post of Cooperative Supervisor in District Ballia on 21.07.1978 under Schedule Caste Category. In the seniority list of Cooperative Supervisors, petitioner was at Serial No. 699 while some juniors to petitioner, who were at Serial Nos. 702, 704, 709 & 710 in the same seniority list, were promoted from the post of Cooperative Supervisor to the post of Assistant Development Officer (Cooperative). Petitioner was not promoted in lack of Annual Confidential Report (in short, ''A.C.R.') compelling him to file Writ Petition No. 42401 of 1998 before this Court which was disposed of vide order dated 08.01.1999 directing respondent-authorities to consider the grievance of petitioner. Thereafter, petitioner has filed representation, which was considered by respondent-authorities and petitioner was temporarily promoted on the post of Assistant Development Officer (Cooperative) vide order dated 17.08.1999 subject to confirmation of promotion by the Departmental Promotion Committee. It is next submitted that case of petitioner never placed before the Departmental Promotion Committee (hereinafter referred to as ''D.P.C.') and petitioner has retired from service on 31.07.2014. On the date of his retirement, order dated 31.07.2014 was passed mentioning therein that service rendered by the petitioner on ad hoc basis cannot be considered for grant of pensionary and other retiral benefits. In the very same order, it is accepted that Officers, who are junior to petitioner have been given the said benefits. Petitioner has challenged the order dated 31.07.2014 by filing Writ-A No. 50207 of 2014, which was disposed of by this Court vide order dated 04.11.2020 with direction to reconsider the case of petitioner in light of fact that juniors to the petitioner have been provided all benefits, which are claimed by the petitioner. During the pendency of Writ-A No. 50207 of 2014, after retirement of petitioner, D.P.C. was conducted on 04.01.2017 by U.P. Public Service Commission and promotion of petitioner was confirmed and his service was also regularized against the vacancy of the recruitment year 2007-08. A direction was also sought vide letter dated 27.02.2019 from respondent No. 2-Registrar Cooperative Societies about the payment of post retiral benefits to the petitioner on the basis of regularization.

In compliance of order of this Court dated 04.11.2020, petitioner moved representation dated 11.11.2020 along with certified copy of order for release of pensionary and other retiral benefits considering his promotion from the date his juniors were promoted. Complying order dated 04.11.2020 passed in Writ-A No. 50207 of 2014, impugned order dated 07.01.2021 has been passed rejecting the claim of petitioner.

Learned counsel for petitioner assailed the impugned order basically on two grounds. He firstly submitted that for the purpose of retiral benefits, service of petitioner is governed by the provisions of The Uttar Pradesh Retirement Benefits Rules, 1961 (hereinafter referred to as ''Rules, 1961'), therefore, qualifying service includes continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation on the same or any other post. Undisputedly, petitioner was continuous in service and ultimately, he was temporarily promoted on the post of Assistant Development Officer (Cooperative) vide order dated 17.08.1999, therefore, for the pensionary benefits, service rendered by the petitioner in temporary or officiating capacity must have been considered while calculating qualifying service. The second ground so taken by learned counsel for the petitioner is that, it is admitted fact that juniors to petitioner who have been promoted in the year 1994 have also been granted all pensionary and post retiral benefits calculating the qualifying service in light of Rule 3(8) of Rules, 1961, therefore, there cannot be a discrimination in the matter of petitioner. In support of his contention, he has placed reliance upon the judgments of this Court passed in Bhuneshwar Rai v. State of U.P. and others, 2014(9) ADJ 4(DB), State of U.P. vs. Riyaz Ali; 2015(8) ADJ 148 (DB)(LB), Love Prasad Dwivedi and others vs. State of U.P. and others; 2015(5) ADJ 170 and Man Singh vs. State of U.P. and others; 2018(7) ADJ 679.

Per contra, learned standing counsel opposed the submissions of learned counsel for petitioner, but could not dispute this fact that juniors to petitioner have been given promotion and also all pensionary and retiral benefits given to them, which are claimed by the petitioner. He only submitted that earlier service of petitioner was governed by The Uttar Pradesh Qualifying Service For Pension And Validation Ordinance, 2020 (hereinafter referred to as ''Ordinance, 2020') when he was working on the post of Cooperative Supervisor whereas after promotion on the post of Assistant Development Officer (Cooperative), his service was governed by Rules, 1961, therefore, he is not entitled for the pensionary and other retiral benefits as claimed by him.

Being confronted by the Court, learned standing counsel could not dispute that service of juniors to petitioner, who were granted promotion earlier, were also governed by the provisions of Ordinance, 2020 as well as Rules, 1961, but they have been given all the benefits. He also admitted that while promotion was granted to the juniors to petitioner, A.C.R. of petitioner was incomplete, for which petitioner is not responsible.

I have considered rival submissions advanced by learned counsels for parties and perused the records as well as judgments relied upon.

Facts of the case are undisputed. In seniority list, petitioner was higher in rank to the other employees, who have been promoted prior to petitioner. It is also undisputed that promotion of petitioner was not considered only due to unavailability of A.C.R., for which petitioner was not responsible. In fact, while remanding the matter, this Court vide order dated 04.11.2020 passed in Writ-A No. 50207 of 2014 has considered this fact. Relevant paragraph of judgment and order dated 04.11.2020 is quoted below:-

"10. From perusal of the record, it is clear that though the petitioner was given promotion on the post of Co-operative Inspector Category-II/Assistant Development Officer on 17.08.1999. on ad-hoc basis but the benefits in this regard were not granted to the petitioner. At the relevant time as has been provided to the persons junior to the petitioner, Department Promotion Committee was convened on 04.01.2017 and the claim for promotion of the petitioner has been duly recommended. Since the petitioner has already been superannuated, directions were sought for from respondent No.3 to the respondent No.4 vide letter dated 27.02.2019. It is surprising that in spite of the fact that considerable time has already been lapsed but till date no decision whatsoever has been taken by the respondent No.4 in the matter. "

Apart that, Rules 3(8) of Rules, 1961 is very much clear, which provides that qualifying service includes continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post. Rule 3(8) of Rules, 1961 is quoted below:-

"3(8). "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations:

Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation on the same or any other post except-

(i) periods of temporary or officiating service in a non-pensionable establishment;

(ii) periods of service in a work-charged establishment, and

(iii) periods of service in a post, paid from contingencies, shall also count as qualifying service."

Regulation 368 and 369 of the Civil Services Regulations are also quoted below:-

"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.

369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was not on actual duty on the first day on which the establishment was again re-employed."

This fact is also not disputed that petitioner had continuously worked after his appointment on the post of Cooperative Supervisor and ultimately, he was temporarily promoted on the post of Assistant Development Officer (Cooperative) vide order dated 17.08.1999. Not only this, after retirement, his case was also considered in D.P.C. conducted on 04.01.2017 by U.P. Public Service Commission and his service was regularized against the vacancy of the recruitment year 2007-08. While regularizing his service, no reason has been assigned as to why his service has not been regularized from the date, service of his juniors were regularized. For unavailability of A.C.R., petitioner cannot be responsible and it is upon respondent-authorities to provide A.C.R. and consider the same in the D.P.C. In case of unavailability of A.C.R., petitioner cannot be made to suffer. While granting him promotion or regularizing his service, petitioner must have been given at least same date of promotion as well as regularization from which juniors to him were promoted/regularized. In the present case, it is very surprising that without any fault on the part of petitioner, he was made to suffer and subjected to litigation on three occasions for payment of his pensionary benefits as well as other post retiral benefits.

Contention of learned standing counsel that service of petitioner prior to promotion governed by Ordinance, 2020 is also having no force for the reasons that service condition of juniors to petitioner were also governed by Ordinance, 2020 before their promotion on the post of Assistant Development Officer (Cooperative). Later on they have also been put to retirement under the provisions of Rules, 1961 giving full pensionary and retiral benefits. Therefore, the ground so taken by learned standing counsel is very vague and in violation of Article 14 of Constitution of India.

Similar issue was also before this Court in the matter of Bhuneswar Rai (Supra) in which this Court after considering the judgment of Apex Court has held that complete service rendered by the petitioner i.e. period of service shall be considered for grant of pensionary benefits. Relevant paragraph is quoted below:-

"In support of his aforesaid contention, learned counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of Punjab State Electricity Board and another v. Narata Singh, 2010-Laws (SC)-2-40, which has been relied upon by the learned Single Judge of this Court in the case of Mohd. Mustafa v. State of U.P., (2010) (1) ADJ (All)(LB). Holding that where the petitioner has put in 23 years of service including 113 months and 11 days i.e. 9 years 5 months & 11 days of regular service then denial of pension for not having completed 10 years of regular service, was not proper. In that case, the Court directed the respondents to grant pensionary benefit to the petitioner considering him to have completed 10 years of regular service and pay him regularly every month from the date of retirement. The State of U.P. preferred an appeal against the aforesaid judgment in re: Mohd. Mustafa v. State of U.P. (Special Appeal Defective No. 254 of 2013), State of U.P. and others v. Prem Chandra and others, wherein the Court relying upon the judgment of the Apex Court in Punjab Electricity Board (supra) vide its judgment dated 13.05.2013 held that the provisions of regulation 370 of the U.P. Civil Service Regulation have to be read down in line with the judgment of the Apex Court. Aggrieved, the State of U.P. preferred SLP (Civil) No. CC 22271 of 2013, State of U.P. and others v. Prem Chandra and others, before the Apex Court, which was dismissed vide judgment and order dated 07.01.2014."

Similar issue came up before this Court in the matter of Love Prasad Dwivedi (Supra), in which this Court relying upon the judgment of Bhuneshwar Rai (Supra) as well as considering the provisions of Rule, 3(8) of Rules, 1961 as well as Regulations 368 & 369, has held that service rendered against the temporary establishment converted into permanent post shall be considered for qualifying service to grant pension as well as retiral benefits. Relevant paragraph Nos. 13 & 14 of the said judgment is quoted below:-

"13. Proviso to Rule 3(8) itself prescribes that continuous temporary service without interruption followed by confirmation shall count as qualifying service. Thus, it is wholly immaterial that the service of the petitioner was regularised on 1.2.2001, as he was continuously working since the date of initial appointment. Though earlier his working was against a temporary establishment, as there was no sanctioned post but after temporary post was sanctioned and later on converted into permanent post, the service so rendered, fully qualifies for being counted for purpose of payment of pension and retiral benefits.

14. For the aforesaid reasons, the Court finds that the petitioners had rendered qualifying pensionary service with effect from the date of his promotion in the year 1988 and which shall be treated as service qualifying for pension."

Again, similar issue was came up before Division Bench of this Court in the matter of State of U.P. (Supra) and Division Bench after relying upon the judgment of Apex Court, has held that ad hoc service rendered by the petitioner shall be considered for reckoning his seniority and other consequential benefits. Relevant paragraph Nos. 5, 8, 9 & 10 are quoted below:-

"5. The law in respect of counting such services for the purposes of seniority has been summarized by Hon'ble Apex Court in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others, (199) 2 SCC 715. Hon'ble Apex Court in this case has summed up that once an incumbent is appointed to a post according to rule, his seniority is to be counter from the date of his appointment and not from the date of his confirmation. The Apex Court further stated in the said judgment that corollary of the above rule is that where the initial appointment is only adhoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. Hon'ble Apex Court in the said judgment has further observed as under:

''B. If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.'

8. The entire controversy, however, appears to have been set at rest by Hon'ble Apex Court in the case of Secretary, Minor Irrigation Department RES v. Narendra Kumar Tripathi, (2015)2 UPLBEC 1161, wherein the benefit of the principle propounded by Hon'ble Apex Court in para 47 - B in the case of Direct Recruit (supra) has been extended to Narendra Kumar Tripathi who like the respondent No. 1 was also initially appointed on ad-hoc basis and subsequently under the regularization rules, his services were also regularized.

9. The tentative senior list of the Assistant Junior Engineers working in the Rural Engineering Department shows the name of respondent No. 1 at serial No. 88 and his date of substantive appointment has been shown to be 23rd August, 1986. The name of Sri Narendra Kumar Tripathi in the said seniority list is shown at serial No. 172 and his date of substantive appointment has been shown to be 16.12.1989. The date of substantive appointment of respondent No. 1 as well as Sri Narendra Kumar Tripathi as mentioned in the seniority list referred to herein above, are the dates on which their services were regularized under the regularization rules.

10. The controversy raised before Hon'ble Supreme Court in the case of Secretary, Minor Irrigation Department RES (Supra) was akin to the controversy which is engaging the attention of this Court in this case. In the case of Narendra Kumar Tripathi Hon'ble Supreme Court has allowed all the benefits of ad-hoc services rendered by Sri Tripathi for the purposes of reckoning his seniority and other consequential benefits."

This Court in the matter of Man Singh (Supra) has again held that petitioner is entitled for notional promotion as well as all notional benefits. Relevant paragraph No. 17 is quoted below:-

"17. Therefore, after consideration of the entire facts and legal issues involved in this case, the respondent No. 3 is directed to grant notional promotion to the petitioner with effect from the date when his immediate junior, Sri Mahesh Chandra Agnihotri, was regularized on the post of Junior Clerk and subsequently to the higher posts of Clerk, Head Clerk, etc. The petitioner has also stated that his junior employees, Sri Triveni Prasad Dubey, Sri Subhash Chandra Pandey and Paras Nath Gupta were promoted to the post of Office Superintendent on 31.05.2014, when the petitioner retired from service on 31.07.2016, while working on the post of Head Clerk only. The notional benefits of the post of Office Superintendent shall also be calculated and paid to the petitioner. All the notional benefits shall be calculated and paid to the petitioner within a period 2 months from the date of presentation of the certified copy of this order before the respondent No. 3."

So far as present case is concerned, it is on much better footing than the cases so relied upon by counsel for petitioner. There is no dispute upon the appointment of petitioner on the post of Cooperative Supervisor in District Ballia on 21.07.1978 coupled with this fact that he was senior to others who have been granted promotion on the post of Assistant Development Officer (Cooperative) and petitioner has not been promoted only due to unavailability of A.C.R., for which he is absolutely not responsible. Further, vide order dated 17.08.1999, petitioner has been granted ad hoc promotion and his service was also regularized vide meeting of D.P.C. dated 04.01.2017 against the vacancy of the recruitment year 2007-08 without assigning any reason as to why he has not given promotion/regularization from the date his juniors were promoted and ultimately, he was deprived from the pensionary benefits and other retiral benefits, which is absolutely bad in law and in teeth of Rules, 1961 as well as law laid down by the Apex Court and this Court. In fact, in light of Rule, 3 (8) of Rules, 1961, qualifying service is derived from Article 368 of the Civil Service Regulations coupled with continuous temporary or officiating service under the Government of Uttar Pradesh and ultimately, confirmation on the same post or any other post without interruption. Irrespective of the date of promotion/regularization, for the purpose of pension, his all service period has to be considered, if it is in accordance with Rule 3(8) of Rules, 1961 and there cannot be any other interpretation for the same. Therefore, apart from many other grounds, this alone ground is sufficient to grant full pensionary benefits to the petitioner considering his continuous service started from his appointment on the post of Cooperative Supervisor to his superannuation on the post of Assistant Development Officer (Cooperative). There is also no dispute on this point that once petitioner is not at fault, he is fully entitled for all pensionary and other retiral benefits from the date his juniors were promoted. In present case, petitioner has not been promoted due to want of A.C.R., and his service was not regularised, but later on he has been promoted/regularized from a later date from which his juniors were promoted/regularized is bad and cannot be accepted. It is required on the part of respondent-authorities to grant notional promotion as well as regularization from the date his juniors were awarded promotion and regularization.

Therefore, under such facts of the case as well as law laid down by this Court, impugned order dated 07.01.2021 is bad and hereby set aside.

Accordingly, writ petition is allowed.

No order as to costs.

Respondent-authorities are directed to grant full pensionary and other retiral benefits to the petitioner considering his full service i.e. from the date of appointment to the date of superannuation as qualifying service for grant of retiral benefits. Further, petitioner shall also be entitled for all other financial benefits, which have been granted to his juniors treating him notionally promoted/regularized from the date his juniors were promoted/regularized.

Order Date :- 29.08.2022

Sartaj