Dr. Prabodh Kumar Dwivedi vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 21348 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 

 
Case :- WRIT - A No. - 8460 of 2022
 

 
Petitioner :- Dr. Prabodh Kumar Dwivedi
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Ayush Anubhag-1 Janpath -2 Lko. And 4 Others
 
Counsel for Petitioner :- Ashok Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajnish Kumar,J.

Heard Shri Ashok Kumar Mishra, learned counsel for the petitioner and Shri Ashwani Kumar, learned Standing Counsel for the respondents.

Submission of learned counsel for the petitioner is that the petitioner was appointed on the post of Medical Officer after following the due procedure of law on 09.07.1999. In pursuance thereof he joined on 24.07.1999. The petitioner was selected and appointed in accordance with Rules against the clear vacancy. The petitioner was regularized on 16.03.2005 on the post of Medical Officer and has been superannuated on 31.01.2020 from Rajkiya Ayurvedic Chikitsalaya, Sikanderpur Vaishy, District-Kasganj. However retiral dues have not been paid after counting the ad-hoc services rendered by the petitioner.

There is consensus among the learned counsel for the parties that the case is covered under the order dated 01.12.2021 passed in writ petition No.27983 (SS)of 2021;Dr.Akhlaque Ahmad Versus State of U.P. and others, which is extracted here-in-below:-

1. Heard Shri Rakesh Chandra Tewari, learned counsel for the petitioner and Shri Brijendra Singh, learned Additional Chief Standing Counsel.

2. This petition has been filed for a direction for a writ of mandamus commanding / directing to the opposite parties to count the ad-hoc services rendered by the petitioner on the post of Medical Officer Unani for granting him the post retiral dues with all consequential benefits.

3. Learned counsel for the petitioner submitted that the petitioner had joined the services on ad-hoc basis on 16.01.2001. He was regularized by means of the order dated 30.11.2015 w.e.f. 16.03.2005 but the service benefits have not been given to the petitioner w.e.f. the date of joining i.e. 16.01.2001. He submitted that in Writ-A No.61974 of 2011; Dr. Amrendra Nath Srivastava Vs. the State of U.P. and Others, which has been disposed of by means of the judgment and order dated 27.02.2017, in the similar circumstances the Court had recorded the following finding and allowed the writ petition with a direction to the respondents to count ad-hoc services rendered by the petitioner in the department with a further direction to the State Government to calculate his pension and issue the pension payment order within two months in as much as to ensure payment of arrears of pension. The relevant portion is extracted below:

"The petitioner was appointed in temporary capacity in Zila Parishad on 21.3.1983. The non-government medical hospitals of Zila Parishad were provincialised on 8.11.1990. The petitioner's option for absorption in the State Ayurvedic and Unani Medical Services was accepted, and that he was taken as a Medical Officer, Ayurvedic and Unani on adhoc basis. There is no denial, that he held a substantive office in a permanent establishment. His services ultimately came to be regularized on 16.3.2005 without any break. At no point of time the petitioner, after his absorption, was not in substantive office, which was not in permanent establishment. His services, therefore, have to be counted with effect from the date of his absorption and the joining in the State Government.

The qualifying service, as defined in sub-rule (8) of Rule 3, includes the service, which qualifies for pension in accordance with the provisions of Section 368 of Civil Services Regulation. The petitioner does not fall in any of the exceptions inasmuch as the period of his temporary service was not in a non-pensionable establishment after he was regularized in the State Government.

For the aforesaid reasons, we find that the petitioner has rendered qualifying pensionary service with effect from the date of his joining in the State Government on his option, and which shall be treated as service qualifying for pension and for which under the Government Orders, by which the hospitals were provincialised, the contribution of his pension has been deposited by the Zila Parishad.

The objection, that the contribution of pension, has not been deposited in the relevant account head, is too technical to be accepted. The amount has been credited to the account of the State Government in the Treasury. It is for the Treasury Officer to appropriate the amount in the correct account head. An error in depositing the amount in the wrong account head cannot be treated to have taken away the right of petitioner to pension based upon his continuance in the State Government beginning from 1991.

The writ petition is allowed. The impugned order dated 20.9.2011 is quashed. The petitioner shall be entitled to pension with effect from 01.2.1991, the date on which he joined in the State Government. The State Government will calculate his pension and issue the pension payment order within two months. The entire arrears of pension shall be paid over to him within a period of three months."

4. He further submitted that in an identical case, the Division Bench of this Court, in which I was also a member has disposed of the writ petition by means of the order dated 22.11.2017 passed in bunch of writ petitions, the leading of which was Writ Petition No.28253 (S/B) of 2017; Dr. Syed Gulam S. Rizvi Vs. State of U.P. and Others and a direction was issued to consider and take a decision after considering the aforesaid judgment and other identical cases. The submission is that all the petitioners of aforesaid writ petition have been granted the benefit but despite a representation made by the petitioner, the benefit has not been extended to the petitioner and the ad-hoc service has not been counted.

5. Learned Additional Chief Standing Counsel does not dispute the aforesaid. However, he submitted that recently. The Uttar Pradesh Qualifying Service for Pension and Validation Act, 2001 has been notified defining the "qualifying service" according to which an officer appointed on temporary or permanent post in accordance with the provision of service rules prescribed by the Government for the post is only covered. Therefore the petitioner is not entitled for the aforesaid benefit.

6. In reply thereto learned counsel for the petitioner invited the attention of this Court towards a coordinate bench judgment of this Court in the case of Dr. Ram Sharan Tripathi Vs. State of U.P. and Others, 2021(9) ADJ 465 and submitted that in regard to the same service in which the petitioner was working, this issue has also been considered and it has been held that 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.

7. The services of Dr. Ram Sharan Tripathi who had filed the said writ petition was also regularized w.e.f. 16.03.2005, the date from which the petitioners have been regularized whereas he was appointed on 18.06.1988 and resumed the duty on 12.07.1988. The relevant paras-6 to 9 are extracted below:-

"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."

8. In view of above, the claim set up by the petitioner before this Court seems to be similar in the nature and the petitioner is entitled for the benefits claimed by him. Accordingly, the writ petition is finally disposed of with liberty to the petitioner to file a comprehensive representation alongwith the relevant documents before the opposite party no.1. In case any such representation is moved alongwith certified copy of this order within three weeks from today, the same shall be considered and disposed of in accordance with law within a period of six weeks thereafter.

9. The consequences shall follow accordingly as per law."

In view of above and consensus among the learned counsel for the parties the writ petition is disposed of in terms of order dated 01.12.2021 above. The petitioner shall also be entitled for the same benefit on the same terms.

.

.........................................(Rajnish Kumar,J.)

Order Date :- 16.12.2022

Banswar