Allahabad High Court
Dr. Atvaru Ram vs State Of U.P. And 3 Others on 20 October, 2022
Bench: Vikram D. Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
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Court No. - 32
Case :- WRIT - A No. - 27872 of 2018
Petitioner :- Dr. Atvaru Ram
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Prakash Chandra Srivastava,Avneesh Tripathi,Raghwendra Prasad Mishra,Vishnu Prakash
Counsel for Respondent :- C.S.C.
Hon'ble Vikram D. Chauhan,J.
It is submitted by learned counsel for the petitioner that the petitioner was earlier appointed on adhoc basis on the post of Homeopathic Medical Officer in the year 1985 and subsequently his services have been regularised in the year 1994. It is submitted that the petitioner has retired on 31.7.2017. However, the pension is not being paid while counting the services of the petitioner on adhoc basis. It is submitted by learned counsel for the petitioner that in view of the judgment of the Apex Court in Prem Singh Vs. State of Uttar Pradesh and others (Civil Appeal No.6798 of 2019) decided on 2nd September, 2019 and further the subsequent Validation Act, the petitioner is entitled for counting the service as adhoc employee for the purpose of grant of pensionary benefits. Learned counsel for the petitioner has relied upon paragraph no. 33 of the judgment and the same is quoted hereinbelow:
"33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment."
Learned counsel for the petitioner has relied upon the provisions of the Uttar Pradesh Qualifying Service For Pension and Validation Act, 2021 and the same is quoted hereinbelow :-
"1. ...
2. Notwithstandging anything contained in any rule, regulation or Government Order for the purposes 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.
3. Notwithstanding any Judgement, decree or order of any Court, anything done or purporting to have been done and any action taken or purporting to have been taken under or in relation to sub-rule (8) of rule 3 of the Uttar Pradesh Retirement Benefit Rules, 1961 before the commencement of this Act, shall be deemed to be and always to have been done or taken under the provisions of this Act and to be and always to have been valid as if the provisions of this Act were in force at all material times with effect from April 1, 1961.
4. Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act."
The Act has been promulgated with the following objects and reasons :
"Pension and gratuity admissible to a retired Government servant are determined in relating to the length of qualifying service of the Government servant. Although the term "Qualifying Service" is described in the Uttar Pradesh Civil Service Regulation and the Uttar Pradesh Retirement Benefit Rules, 1961, however the definition of the said term is open to subjective interpretation which leads to administrative difficulties.
It has, therefore, been decided to make a law defining the term "Qualifying Service" and to validate such definition with effect from April 1, 1961 which is the date of commencement of the Uttar Pradesh Retirement Benefit Rules, 1961.
Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 (U.P. Ordinance no.19 of 2020) was promulgated by the Governor on October 21, 2020.
The Bill is introduced to replace the aforesaid Ordinance."
In this respect, the petitioner has already filed a representation dated 26.7.2018.
Learned Standing Counsel for the respondent-State submits that the claim of the petitioner for pensionary benefits while counting service on adhoc basis shall be considered in accordance with law.
Considering the facts and circumstances of the case and the submissions of learned counsel for the parties, it is hereby provided that the petitioner may file a fresh representation before the respondent no. 1 within fifteen days from today. In case any such representation with regard to pensionary benefits is filed before respondent no. 1 the same shall be considered and decided in accordance with law within a period of two months from the date of production of certified copy of the order.
With the aforesaid observation/direction, writ petition is disposed of.
Order Date :- 20.10.2022
VMA
