Smt. Jaya Malik vs State Of U P And 3 Others
2023 Latest Caselaw 21736 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:164020
 
Reserved on :- 26.04.2023
 
Delivered on :- 11.08.2023
 
Court No. - 65
 

 
Case :- WRIT - A No. - 7237 of 2022
 

 
Petitioner :- Smt. Jaya Malik
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Jitendra Nath Sharma,Pratik Kumar Sharma
 
Counsel for Respondent :- C.S.C.,M.N. Singh
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Pratik Kumar Shrma, the learned counsel for petitioner, the learned Standing Counsel representing respondent nos. 1, 2 & 4 and Mr. B.N. Mishra, the learned counsel for respondent no. 3.

2. The issue involved in the present writ petition is similar and identical to the controversy involved in WRIT-A No. 7298 of 2022 ( Km. Kaushal Singh Vs. State of U.P. and 3 Others), which has been heard today and instructions have also been received by the respondents in the aforementioned writ petition.

3. No instructions have been received by the respondents in spite of the fact that sufficient time has rolled by from the date notice of present writ petition was served/received on behalf of respondents.

4. Present writ petition has been filed challenging the order dated 12.04.2022 passed by Respondent 3, Public Service Commission, Uttar Pradesh, Prayagraj as well as the G.O. dated 01/31.03.2021 issued by Respondent 2. Petitioner has further prayed for a writ of mandamus directinig the respondents to pay pension and other retiral benefits to the petitioner on the total period of service i.e. 16.03.1988 to 30.06.2017 by adding the adhoc services rendered by the petitioner for the purpose of qualifying service as per the provisions of U.P. Act No. 1 of 2021.

5. Record shows that the petitioner was initially appointed on 16.03.1988 on the post of typist in U.P. Public Service Commisison on adhoc basis. Thereafter, the petitioner was appointed on the post of Lower Division Assistant on adhoc basis against a temporary vacant post on 14.06.1989. Ultimately, the services of the petitioner were regularized on the post of Assistant Review Officer in terms of the U.P. Regularization of Adhoc Appointments (on post within the purview of U.P. Public Service Commission) 3rd Amendment Rules, 2001, vide office order dated 09.05.2022 passed by the Secretary, U.P. Public Service Commission, Prayagraj. Thereafter, the petitioner was promoted on the post of Review Officer along with other employees, vide office order dated 31.03.2016 passed by the Secretary, U.P. Public Service Commission, Prayagraj. The said promotion was against the vacancies which fell for consideration in the selection year, 2014-2015. Ultimately, the petitioner upon attaining the age of superannuation retired from the services on 30.06.2018.

6. After the petitioner attained superannuation from her services, the State Government Order dated 01.03.2021, whereby it was provided that in all such matters relating to grant of pension and post retiral benefits in case, counter affidavit has been filed but the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 has not been referred to then immediately supplementary counter affidavit be filed. In case, the matter has been decided then a review petition or a special appeal be filed. The basis behind such a direction was that the qualifying service has to be calculated from the date of the order of regularization. Consequently, the services rendered prior to the date of regularization shall not be counted for the purpose of qualifying service.

7. The grievance of the petitioner is that she has been deprived of pension and other post retiral benefits by seeking the date of regularization of her services i.e. 09.05.2022 as the date of appointment of the petitioner.

8. According to the petitioner, the term qualifying service has now been modified vide U.P. Act No. 1 of 2021 i.e. U.P. Qualifying Service for Pension and Validation Act, 2021 which came into force on 05.03.2021 and the ordinance No. 19 of 2020 stood repealed. In the light of above, the petitioner claims that his post retiral dues are to be calculated as per Rule 3(8) of the U.P. Retirement Benefit Rules, 1961.

9. In view of above, the petitioner earlier approached this Court by means of C.M.W.P. No. 15670 of 2021 (Km. Kaushal Singh Vs. State of U.P. and 3 Others) which was dispossed of finally vide order dated 25.11.2021. For ready reference, the order dated 25.11.2021 is reproduced hereinunder:-

"Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents and Sri Balanath Mishra, learned counsel for respondent no.2 and 3.

The petitioner by means of present writ petition has prayed for a direction upon the respondents to release her retiral dues. The petitioner is retired from the post of Review Officer on 30.06.2018. The petitioner was initially engaged an an ad-hoc employee on the post of typist. Subsequently, service of the petitioner was regularised on the post of Assistant Review Officer on 09.05.2002.

The grievance of the petitioners is that the service rendered by him as an ad-hoc employee has not been added by the respondent in the regular service for the purpose of computing the retiral dues of the petitioner. He submits that it is settled in law that ad-hoc service rendered by the petitioner is to be added with the regular service for extending the pensionary benefits. In this respect, she has made several representations before the respondent-authority but respondent-authority has neither considered her representation nor has paid any heed to her representation.

Learned Standing Counsel for the respondents submits that no useful purpose would be served in keeping the writ petition pending and appropriate direction may be issued to respondent no.3 to consider the grievance of the petitioner.

Considering the facts and circumstances of the case and without going into the merits of the case and with the consent of the parties, the writ petition is disposed off with liberty to the petitioner to file a comprehensive representation before the respondent no.3-Secretary, Public Service Commission, U.P. Prayagraj alongwith the certified copy of this order raising all her grievances within a period of two weeks from today. In case any such representation is filed by the petitioner, the respondent no.3 shall consider and decide the same by reasoned and speaking order within a period of two months thereafter.

Order Date :- 25.11.2021"

10. In compliance of above order dated 25.11.2021, petitioner made a representation dated 03.11.2021 addressed to the Secretary, U.P. Public Service Commission, Allahabad.

11. Above-mentioned representation filed by the petitioner was rejected by the Secretary, U.P. Public Service Commission, Allahabad vide order dated 12.04.2022. Reference was made to the provisions contained in Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 and U.P. Qualifying Service for Pension and Validation Act, 2021 i.e. U.P. Act No. 1 of 2021 with regard to the definition of the term "Qualifying Service" for the purpose of pension of gratuity. On the basis of above, it was concluded that services rendered prior to the date of regularization shall not be counted for the purpose of pension and gratuity. On this finding the representation of the petitioner was rejected.

12. Thus feeling aggrieved by the order dated 12.04.2022 referred to above and also the G.O. dated 1/31.03.2021, petitioner has now approached this Court by means of present writ petition.

13. Mr. Jitendra Nath Sharma, the learned counsel for petitioner submits that since the petitioner has rendered almost 30 years of service therefore, she is clearly entitled to pension and other post retiral benefits taking into consideration the entire service rendered by her. The petitioner cannot be denied of the same by treating the date of regularization of her services as the date of appointment. To buttress his submission, he has relied upon the following judgments:-

(i). WRIT-A No. 63112 of 2017 (Lalji Mishra Vs. State of U.P. and 2 Others). The grievance of the petitioner in aforementioned writ petition was that he should be paid pension and other retiral dues after including the adhoc services rendered by the petitioner therein for the purpose of counting qualifying service. The writ petition was allowed by placing reliance upon the judgment of Apex Court in Prem Singh Vs. State of U.P. and Others) (2019) 10 SCC 516.

(ii). WRIT-A No. 10966 of 2021 (Krishna Murari Vs. State of U.P. and 3 Others). In the aforesaid writ petition, the petitioner had assailed the decision taken by the respondents therein, vide communication dated 01.07.2019 holding therein that the petitioner was not eligible for pension gratuity and other retiral benefits since he has not completed 10 years of minimum qualifying service from the date of the regularization. The Court referred to the U.P. Retirement Benefits Rules, 1961, the provisions of the validating Act and the decision in WRIT-A No. 9396 of 2021 (Dr. Sushma Chandel Vs. State of U.P. and 2 Others). The judgment in Dr. Sushma Chandel is primarily based upon the observations made by the Supreme Court in Prem Singh Vs. State of U.P. and Others) (2019) 10 SCC 516 as well as the judgments rendered by the Division Benches in Special Appeal Defective No. 1003 of 2020 (State of U.P. through its Secretary Foods & Civil Supplies and 2 Others Vs. Mahendra Singh), Special Appeal No. 97 of 2021 (State of U.P. and 4 Others Vs. Bhanu Pratap Sharma) and Special Appeal Defective No. 156 of 2021 (State of U.P. and 4 Others Vs. Narayan Singh Sharma). Reference was also made to the judgment of this Court in WRIT-A No. 16391 of 2019 (Sundar Vs. State of U.P. and 4 Others) decided on 27.08.2021, wherein it was held that "grant of regularization is an act of ratification and the condonation of an irregularity which smears the initial engagement of an employee". In the light of above, the Court disposed of the writ petition directing the respondents to reconsider the claim of the petitioner in the light of the decision rendered in Dr. Sushma Chandel (Supra) and Sundar (Supra).

(iii). WRIT-A No. 8287 of 2021 (Smt. Gayatri Devi Sharma Vs. State of U.P. and 3 Others). The petitioner approached the Court for reddressal of his grievance that the services rendered by the petitioner prior to her regularization i.e. for the period 05.01.1989 to 30.04.2012 have not been added in the qualifying service for grant of pension and other post retiral benefits. The Court relied upon the Division Bench judgment of this Court in Special Appeal Defective No. 1003 of 2020 (State of U.P. through its Secretary Foods & Civil Supplies and 2 Others Vs. Mahendra Singh), wherein the Court upon consideration of the scope of Section 2 of U.P. Qualifying Service for Pension and Validation Ordinance, 2020 held that the services rendered even prior to regularization shall be counted for computing the qualifying service. Accordingly, the petition was allowed and the respondents were directed to count the services rendered by the petitioner from 05.01.1989 to 30.04.2012 while computing the qualifying service for grant of pension and other consequential benefits.

(iv). Dr. Shyam Kumar Vs. State of U.P., 2023 (3) ADJ 138 (LB). The controversy involved in the aforesaid writ petition was regarding the interpretation and application Section 2 of the U.P. Act No. 1 of 2021 i.e. U.P. Qualifying Service for Pension and Validation Act, 2021 for counting qualifying service for the purpose of pension with regard to work charge employees, daily wager employees, adhoc appointee against the post as well as Seasonal Collection Amin. The Court referred to the judgment of the Supreme Court in Prem Singh Vs. State of U.P. and Others) (2019) 10 SCC 516, the note appended to Rule 3(8) of the U.P. Retirement Benefit Rules, 1961 and ultimately, allowed the writ petition.

(v). Special Leave to Appeal (Civil) No. 1109 of 2022 (The State of Gujrat and Others Vs. Talsibhai Dhanjibhai Patel). Since the order is a short one therefore, the same is reproduced in its entirety.

(vi). Dr. Sushma Chandel Vs. State of U.P. and Others, 2021 SCC OnLine All 563, along with connected matters. The controversy involved in the aforesaid bunch of writ petitions as noted by the learned Single Judge was :- " The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper". Learned Single Judge referred to the provisions of Rule 3(8) of the U.P. Retirement Benefit Rules, 1961. Court also noted that subsequent to the judgment of the Apex Court in Prem Singh Vs. State of U.P. and Others) (2019) 10 SCC 516, the State Government promulgated the U.P. Qualifying Service for Pension and Validation Ordinance, 2020 (U.P. Ordinance No. 19 of 2020). While dealing with the case of Dr. Sushma Chandel, the Court referred to the Division Bench judgment in WRIT-A No. 26637 of 2012 (Dr. Dhirendra Prakash Tiwari Vs. State of U.P. and Others), which judgment relied upon the earlier judgment in WRIT-A No. 3201 of 1992 (Dr. Yogendra Singh and Others Vs. State of U.P. and Others). It was further observed that the judgment rendered in the case of Dr. Yogendra Singh was assailed before the Supreme Court but the Special Leave Petition was dismissed on 02.04.1998. The Court, thereafter, referred to the Division Bench judgments renders subsequent to the Ordinance and the Validating Act in Special Appeal Defective No. 1003 of 2020 (State of U.P. through its Secretary Foods & Civil Supplies and 2 Others Vs. Mahendra Singh), Special Appeal Defective No. 156 of 2021 (State of U.P. and 4 Others Vs. Narayan Singh Sharma). Ultimately, the Court concluded as follows in paragraph 36 of the report:-

"[36] Ultimately all the issues which are noticed and enunciated above would merit consideration before the respondents evaluate the claims of the individual petitioners here. The Court is of the firm opinion that a claim for pensionary benefits cannot be negatived solely on the basis of a mere reiteration of the Validating Act having been introduced. The respondents would have to necessarily evaluate such claims bearing in mind the following questions which would arise:-

A. Whether the service rendered in temporary, ad hoc, or officiating capacity was one which was discharged against a permanent or temporary post;

B. Whether the appointment was made in accordance with the provisions made in the prevalent service rules;

C. Whether such service can be excluded notwithstanding the provisions made in the proviso to Rule 3(8) of the 1961 Rules;

D. Whether the service rendered in a work-charged establishment followed by regularisation can be legally excluded while computing qualifying service:

E. Whether such service was performed in connection with work which was regular and perennial and the engagement in a work charged establishment was a mere ruse to deny benefits of long service."

14. Ultimately, with the aforesaid directions the writ petiions is disposed off.

15. On the above conspectus, the learned counsel for petitioner submits that since identical issue has already been decided by this Court in favour of petitioners, therefore, no useful purpose shall be served in keeping this writ petition pending or remitting the matter before the respondents for decision afresh in the light of the subsequent developments that have taken place. He, therefore, contends that since the claim of the petitioner "counting the services rendered by the petitioner prior to the date of regularization for computing qualifying service" is no longer re-integra inasmuch as, the same stands settled by this Court by means of the judgments referred to above, the writ petition is liable to be allowed.

16. Per contra, the learned Standing Counsel representing respondent nos. 1, 2 & 4 and Mr. B.N. Mishra, the learned counsel for respondent no. 3 have opposed the present writ petition. Attention of the Court was invited to the order dated 12.08.2021 passed by the Supreme Court in Uttar Pradesh Ground Water Department Non Gazetted Employee Association (Regd.) & Another Vs. The Chief Secretary and Others). For ready reference, the same is reproduced hereinunder:-

"Mr. Kamlendra Mishra, learned counsel appearing for the State of Uttar Pradesh takes notice on behalf of respondents in Writ Petition (Civil) Nos. 333 and 332 of 2021.

Counter affidavit be filed within six weeks.

Rejoinder affidavit, if any, be filed within two weeks thereafter.

List on a non-miscellaneous day after eight weeks."

17. They further submit that an identical issue came up for consideration before this Court in WRIT-A No. 5550 of 2022 (Ram Bali Yadav Vs. State of U.P. and 2 Others) wherein the Court passed the following order:-

"List this petition after decision of the Supreme Court in Writ Petition (Civil) No.1458 of 2020 (U.P. Ground Water Department Non Gazetted Employees Association (Registered) and another vs. Chief Secretary State Government of U.P. and others), wherein Ordinance 2020 (now U.P. Act No.1 of 2021) is under challenge.

Meanwhile, respondents may consider grievance of petitioner which are not hit by U.P. Act No.1 of 2021.

Order Date :- 13.4.2022"

18. On the above premise, they submit that since the issue involved in the present writ petition is pending consideration before the Supreme Court therefore, the dictates of prudence require that this Court should refrain from adjudicating the issue involved in the present writ petition as the same is directly engaging the attention of the Supreme Court.

19. Having heard the learned counsel for petitioner, the learned Standing Counsel representing Respondents 1, 2 and 4 and Mr. B.N. Mishra, the learned counsel for Respondent 3, the Court finds that the claim of the petitioner "for counting the services rendered by him prior to the date of the order regularizing his services for computing qualifying service" is no longer shrouded in obscurity. The issue as noted above has been considered in the light of Regulation 370 of the Civil Service Regulations, the U.P. Regularization of Adhoc Appointments (on post within the purview of the U.P. Public Service Commission) 3rd Amendment Rules, 2001, the U.P. Retirement Benefit Rules, 1961, the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 and U.P. Qualifying Service for Pension and Validation Act, 2021 in respect of other similar situate employees has already been considered by different learned Single Judges of this Court as well as different Division Benches of this Court. Nothing has been brought on record by the learned Standing Counsel or the learned counsel representing the U.P. Public Service Commission to show that the orders passed by this Court as referred to above have been stayed. As such, the petitioner cannot be singled out for denying benefit of the orders referred to above.

20. The Court further finds that the language of the Ordinance i.e. the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 and the U.P. Qualifying Service for Pension and Validation Act, 2021 are almost similar. For ready reference the same are extracted hereinunder:-

"NO. 1877(2)/LXXIX-V-1-2020-2(ka)20-2020

Dated Lucknow, October 21,2020.

In pursuance of the provisions of clause (3) of Article 348 of the Constitution of India, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Pension Hetu Aharkari Sewa Tatha Vidhimanyakaran Adhyadesh, 2020 (Uttar Pradesh Adhyadesh Sankhya 19 of 2020) promulgated by the Governor. The Vitta (Sammanya) Anubhag-3 is administratively concerned with the said Ordinance.

THE UTTAR PRADESH QUALIFYING SERVICE FOR PENSION AND VALIDATION ORDINANCE, 2020

(U.P. Ordinance no. 19 of 2020)

(Promulgated by the Governor in the Seventy-first Year of the Republic of India).

AN

ORDINANCE

to provide for qualifying service for pension and to validate certain actions taken in this behalf and for matters connected therewith or incidental thereto.

WHEREAS, the State legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action;

NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor is pleased to promulgate the following Ordinance:-

1.(1) This Ordinance may be called the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020.

(2) It shall extend to the whole of the State of Uttar Pradesh.

(3) it shall be deemed to have come into force on April 1,1961.

2. Notwithstanding 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 judgment, decree or order of any Court, anything done or purporting to have been done and may 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 Ordinance, shall be deemed to be and always to have been done or taken under the provisions of this Ordinance and to be and always to have been valid as if the provisions of this Ordinance were in force at all material times with effect from April 1,1961.

4. Save as otherwise provided, the provisions of this Ordinance 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 Ordinance.

ANANDIBEN PATEL

Governor,

Uttar Pradesh

By order

U.P. Singh-II,

Pramukh Sachiv"

U.P. Qualifying Service for Pension and Validation Act, 2021

"THE UTTAR PRADESH QUALIFYING SERVICE FOR PENSION AND VALIDATION ACT, 2021

(U.P. Act no. 1 of 2021)

[As passed by the Uttar Pradesh Legislature]

AN

ACT

to provide for qualifying service for pension and to validate certain actions taken in this behalf and for matters connected therewith or incidental thereto.

IT IS HEREBY enacted in the Seventy-second Year of the Republic of India as follows:-

1. (1) This Act may be called the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021.

(2) It shall extend to the whole of the State of Uttar Pradesh.

(3) It shall be deemed to have corfie into force on April 1, 1961.

2. Notwithstanding 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 äny 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.

5. (1) The Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the provisions of the principal Act as amended by the Ordinance referred to in sub-section (1) shall be deemed to have been done or taken under the corresponding provisions of the principal Act as amended by this Act as if the provisions of this Act were in force at all material times.

Pension and gratuity admissible to a retired Government servant are determined in relation 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.

This Bill is introduced to replace the aforesaid Ordinance.

By order,

ATUL SRIVASTAVA,

Pramukh Sachiv."

21. In view of the discussion made above, the present writ petition succeeds in part and is accordingly partly allowed. The impugned order dated 12.04.2022 passed by Respondent 3, Public Service Commission, Uttar Pradesh, Prayagraj (Annexure-8 to the writ petition) is hereby quashed. The respondents are directed to calculate the qualifying service of the petitioner by taking into consideration the services rendered by her prior to the date of the order regularizing her services. The challenge to the G.O. dated 01/31.03.2021 issued by Respondent 2, Additional Chief/Special Secretary (Finance), U.P. Government Lucknow (Annexure-13 to the writ petition) is illusionary inasmuch as the same contains only a procedural direction which in no way offends any fundamental right of the petitioner.

22. The necessary consequences in view of above shall be completed by the respondents within a period of 3 months from the date of presentation of a certified copy of this order.

Order Date :- 11.08.2023

Vinay