Manju And 2 Others vs State Of U.P. And Another
2022 Latest Caselaw 3404 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 6591 of 2022
 

 
Petitioner :- Manju And 2 Others
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajiv Joshi,J.

Heard Sri Vinod Kumar Singh, learned counsel for petitioners and learned standing counsel for the respondents.

Petitioners have approached this Court claiming benefit of services rendered by them on ad-hoc basis before the date of regularisation for payment of pension and other retiral dues.

Learned counsel for petitioners submits that petitioners were appointed on a supernumerary/vacant vacancy which was available in the Office of Chief Medical Officer/Regional Ayurvedic Evam Unani Medical Officer in the State of U.P. in furtherance of orders dated 1.1.1987, 16.6.1988 and 18.06.1988. He has been regularised by order dated 16.3.2005 with effect from the date of order. He submits that benefit of services from 1.1.1987, 16.6.1988 and 18.06.1988 till 16.3.2005 should also be considered for the purpose of pension and other retiral dues.

Learned counsel for petitioner submits that the issue with regard to similarly situated persons is decided by judgment dated 15.9.2021 passed in Writ-A No.15529 of 2018 (Dr. Ram Sharan Tripathi. Vs. State of U.P. and another.). He placed reliance upon para 6 to 10 of the said judgment which read as follows:-

"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 Singh (Special Appeal Defective No.1003 of 2020, decided on 04.02.2021). 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."

Learned standing counsel tried to make some distinction but I do not find any distinction between the two orders. The controversy is already settled by the Division Bench by judgment dated 4.2.2021 in Special Appeal Defective No.1003 of 2020 (State of U.P. and others. Vs. Mahendra Singh), followed by a learned Single Judge in the case of Dr. Ram Sharan Tripathi (supra).

Even presuming that the services of the petitioners were temporary/ad-hoc from the years 1987 and 1988 till his regularisation in the year 2005, in view of aforesaid judgment, he was entitled for the benefit of the same also for the purpose of pension. It is held that the services rendered by the petitioners on temporary /ad-hoc basis from 1.1.1987, 16.6.1988 and 18.06.1988 till his regularisation shall also be counted for the purpose of computing his pension and other post retiral dues admissible to the petitioners. The arrears of pension would be computed and released within a period of three months along with simple interest at the rate of 6% per annum from the date of his retirement till the date of actual payment of the same. Consequence to follow.

With the aforesaid, the writ petition is allowed.

Order Date :- 19.5.2022

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