Allahabad High Court
Sunil Kumar vs State Of U.P. And Another on 5 August, 2022
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 10919 of 2022
Petitioner :- Sunil Kumar
Respondent :- State of U.P. and Another
Counsel for Petitioner :- Shivam Yadav,Aditya Yadav
Counsel for Respondent :- C.S.C.,Arun Kumar,Ravi Prakash Pandey
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Arun Kumar, learned counsel for the respondent no. 2.
Case was heard on 29.7.2022 and Court has passed the following order:-
"Heard learned counsel for the petitioner, learned standing counsel for respondent no. 1 and Sri Arun Kumar, learned counsel for respondent no. 2.
Learned counsel for the petitioner submitted that case of the petitioner is squarely covered with the judgment of this Court in the matter of Rajendra Kumar Tyagi Vs. State of U.P. and another (Writ A No. 63 of 2020) dated 22.09.2021 as well as affirmed by Division Bench of this Court in the matter of Ghaziabad Development Authority, Ghaziabd Vs. State of U.P. and another (Special Appeal No. 117 of 2022) dated 12.07.2022.
Sri Arun Kumar, learned counsel for respondent no. 2 is directed to go through the judgment and seek instruction as to whether case of the petitioner is covered with the aforesaid judgments or not.
Put up this case as fresh on 5.8.2022 showing the name of Sri Arun Kumar as counsel for the respondent."
Pursuant to the order of this Court dated 29.7.2022, Sri Arun Kumar, learned counsel for the respondent no. 2 fairly submitted that except the mode of appointment, case of petitioner is covered with the aforesaid judgment.
Present petition has been filed for quashing the order dated 28.6.2022 passed by the respondent no.2 i.e., Vice-Chairman, Ghaziabad Development Authority and further for payment of provisional pension, gratuity and other post retirement dues including arrears of regular pension alongwith interest.
Learned counsel for the petitioner submitted that earlier respondent no.2 has issued advertisement for the post of two legal Assistants alongwith other posts in daily newspapers, namely, Hindustan Times and Times of India on 18.2.1988. In pursuance of the said advertisement, petitioner has applied for the post of Legal Assistant and ultimately, he was appointed on the said post on 25.7.1989 for a period of six months. As per the same advertisement, one Mr. Rajendra Kumar Tyagi was also appointed as Legal Assistant for six months. Subsequently, vide order dated 7.5.1988, petitioner was appointed on the post of Legal Assistant on temporary basis. He next submitted that as per Government Order dated 10.3.2017, post of Law Assistant and Law Officer was merged and was re-designated as Law Officer and accordingly, petitioner was absorbed on the post of Law Officer vide order dated 15.3.2017. On the very same day i.e. 15.3.2017, Rajenedra Kumar Tyagi was also absorbed on the post of Law Officer. He further submitted that after completion of service, petitioner was superannuated on 30.9.2019, but till date post retiral benefits has not been paid to him. Thereafter, he has approached this Court by filing Writ-A No. 13220 of 2021, which was disposed of vide order dated 2.11.2021 with direction to the respondents to consider the case of petitioner and pass reasoned order. In compliance of order of High Court dated 2.11.2021, petitioner has moved fresh representation on 15.11.2021 before the respondent no.2 and also sent reminder on 18.1.2022, but without considering the same, respondent no.2 has passed impugned order dated 28.6.2022 rejecting the claim of petitioner only on the ground that petitioner was not working on the post sanctioned by the State Government rather working temporarily from 4.1.1990 to 30.9.20 pursuant to the order of Board of GDA. He next submitted that on the same set of facts and circumstances, Rajendra Kumar Tyagi has filed Writ-A No. 63 of 2020, which was allowed by detail and reasoned order dated 22.9.2021. Against that, respondent no.2 has preferred Special Appeal No. 117 of 2022, which was dismissed vide order dated 12.7.2022 with the detail observation as well as relying upon the judgment of Apex Court in the case of State of Gujarat and others vs. Talsibhai Dhanjibhai Patel passed in Special Leave to Appeal (C) No. 1109 of 2022. He lastly submitted that there is no difference in nature of services of petitioner as well as Rajendera Kumar Tyagi, therefore, petitioner is also entitled for the same relief. Accordingly, impugned order may be quashed and direction may be issued to respondent no. 2 to release the post retiral benefits forthwith as in the case of Rajendra Kumar Tyagi.
Mr. Arun Kumar, learned counsel for the respondent no. 2 could not dispute the submission of learned counsel for the petitioner, but submitted that earlier advertisement was issued upon which Rajendra Kumar and Mumtaj Ali were appointed and later on, Mumtaj Ali left the job and ultimately, petitioner was directly appointed.
Learned counsel for the petitioner in his rejoinder argument submitted that he has applied for the said post pursuant to the advertisement dated 18.2.1988 upon which he was given appointment and his services was also regularized. There might be a case that after relinquishing the job by the Mumtaj Ali, being next in the merit, petitioner may have been issued appointment letter.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the record. The facts so argued is not disputed. It is undisputed that petitioner was given appointment by the respondent no.2 vide order 25.7.1989. Services of petitioner as well as Rajendra Kumar Tyagi were absorbed on the post of Law Officer vide order dated 15.3.2017. Therefore, I found no difference in the appointment of petitioner as well as Rajendra Kuma Tyagi. I have perused the judgement of Apex Court in the matter of State of Gujarat and others vs. TalsibhaiDhanjibhai Patel passed in Special Leave to Appeal (C) No. 1109 of 2022 and in light of said judgment, after completion of service of more than 30 years, respondents cannot deny for payment of any retiral benefits to the petitioner. Relevant paragraph of the said judgment is being quoted hereinbelow:-
"It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continues service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand.
Therefore, under such facts of the case as well as law laid down by the Apex Court, the impugned order 28.6.2022 passed by the respondent no.2 is hereby quashed and writ petition succeeds allowed in terms of order 22.9.2021. No order as to costs.
Order Date :- 5.8.2022
Junaid
