Kuldeep Kumar vs State Of U.P. And 3 Others
2023 Latest Caselaw 23340 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:172372
 
Court No. - 35
 

 
Case :- WRIT - A No. - 14191 of 2023
 

 
Petitioner :- Kuldeep Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Satyendra Narayan Singh,Vikas Singh
 
Counsel for Respondent :- CSC
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Satyendra Narayan Singh, learned counsel for the petitioner, Sri H.K. Shukla, Standing Counsel, who appears for respondents 1 and 2 and Sri Rakesh Kumar, learned counsel who appears for third and fourth respondent.

2. Though at the time of filing of the writ petition, the copy of the writ petition had not been served upon the third and fourth respondent, an endorsement was made that there is no counsel in the High Court representing the respondents 3 and 4, however, incidentally Sri Rakesh Kumar had appeared before the Court and he has made a statement that he appears for Respondents 3 and 4. He took time to study the matter and thereafter, now, he is ready with the matter to advance his arguments.

3. The case of the writ petitioner is that there is a University by the name and style 'Chandra Shekhar Azad University Agriculture and Technology, Kanpur Nagar (hereinafter referred to as the University). The writ petitioner claims to be appointed as Computer on 10.04.1987 in the Department of Agricultural Economics and Statistics. He further claims that he is working in the Department of Crop Physiology in the pay scale of Rs.470-735, which has been revised from time to time. As per the writ petitioner, a Government Order was issued on 25.04.1977, according to which eight posts of Statistical Assistant was sanctioned to the University, 25% of the said post shall be filled by promotion on the post of Computer. A Government Order is stated to have been issued on 09.10.1982 providing that the 50% post of Statistical Assistant shall be filled up by the qualified senior most employee working on the post of Computer. According to the writ petitioner, the State Government has issued a Government Order dated 31.05.1982 merging the post/ cadre mentioned in the Government Order dated 25.04.1977 and all the posts are re-designated as Invigilator-cum- Computer in the pay-scale of Rs.470-735. According to the writ petitioner, in the year 1996, the pension scheme has been extended to the employees of the University, and the petitioner as per the procedure set out therein had opted for pension. The writ petitioner, after completing 14 years of satisfactory service, further claims to have been granted promotion grade on 24.10.2001 and after 26 years, the next pay-band on 23.01.2014 wherein the name of the petitioner figures at Sl. No.42.

4. The grievance of the writ petitioner is that despite the fact that he was eligible and qualified to be promoted on the post of Statistical Assistant, however, he was not actually accorded promotion, though the petitioner along with the other employees approached the Vice-Chancellor of the University, who in turn passed the order on 30.07.2016 constituting five members Committee, headed by Dean of the Agricultural Faculty as the Chairman for according promotion to the writ petitioner. In paragraph-15 of the writ petition, it is further asserted that the Vice-Chancellor convened its meeting on 24.09.2016 wherein a decision was taken that there are eight posts of Statistical Assistant sanctioned and as per the Government Order in question, four posts are to be filled by promotion. Though the writ petitioner claims to be accorded benefit of promotion, however, he superannuated on 31.03.2023 on attaining the age of 60 years and according to writ petitioner, had the promotion exercise been concluded within the time, the writ petitioner would have qualified for grant of promotional benefits adding to the salary on the basis of the the last pay drawn entitling the writ petitioner for more pension for what he is getting.

5. Now, an order has been passed on 28.04.2023 by the second respondent, Additional Director Pension Directorate of Pension, U.P. at Lucknow, whereby the claim of the petitioner has been negated on the ground that he since his initial appointment till his retirement, had been working on ad hoc basis, thus in absence of any regularization, he cannot be entitled to any benefit with respect to pension, gratuity etc.

6. Questioning the order dated 26.04.2023 passed by the State Administrative Officer of the University, the writ petitioner has filed the present writ petition.

7. Learned counsel for the writ petitioner refers to and relies upon a decision in Writ-A No.10808 of 2023, Ashok Kumar Singh vs. State of U.P. and others decided on 12.07.2023. The order passed therein is being quoted hereinunder:

"1. Heard Sri R.K. Singh Kaosik, learned counsel for the petitioner, Sri Saurabh lerned Standing Counsel who appears for respondents 1 and 2 and Sri Rakesh Kumar, learned counsel who appears for third and fourth respondent.

2. The case of the writ petitioner has worded in the writ petition is that the writ petitioner was appointed as a Computer on 2.7.1987 in the respondent University and he was drawing the pay sclae of Rs.470-735/- in the Department of Agriculture Economics and Statistics in the University.

3. As per the writ petitioner pursuant to the Government Order dated 25.4.1977 out of the eight posts of Statistical Assistant sanctioned in University 25% posts of the said cadre was filled up by the promotion from the post of Computer. It is further the case of the writ petitioner that on 9.10.1982 another Government Order was passed whereby 50% posts of Statistical Assistant was to be filled by the senior most employees of the post of Computer.

4. In paragraph 8 of the writ petition it has been further submitted that the State Government also issued Government Order dated 31.5.1982 wherein consequent to the merger a new post was re-designated as Investigator cum Computer and the pay scale of all the posts Rs.470-735.

5. It is further the case of the writ petitioner that on 24.10.2001 he was made admissible to the promotion grade and after 26 years he was assigned in the next pay band.

6. Learned counsel for the writ petitioner further asserts that despite the fact that he was entitled to be promoted on the post of Statistical Assistant but his claim has not been extended and ultimately after great persuasion the Departmental Promotion Committee was convened on 24.9.2016 when the claim of the writ petitioner was considered however no promotion order could be passed and ultimately after satisfactory completing the service, he superannuated on 31.3.2022. It is further the case of the writ petitioner that he was not being paid the pension despite the fact that he was made admissible to the G.P.F. and gratuity. However it is further asserted that salary for the last one month was also not paid.

7. Learned counsel for the writ petitioner in the circumstances had no option but to represent the matter, however as per the own showing of the writ petitioner on 13.1.2023, the Director Pension Directorate of Pension U.P. at Lucknow second respondent proceeded to issue a letter whereby certain clarification from the University as according to the pension Directorate since the writ petitioner was working on ad hoc capacity and he was not regularised or confirmed on the post in question thus he is not entitled to be conferred with the benefit of pension. The same was replied by the University itself on 6.2.2023 along with the certain documents including the letter dated 2nd February, 2023 at page 42 which referring to Chapter 21 Rule 3(C) according to which every employer of the University on his first appointment against the permanent post shall be on probation and the probation period was defined to be two years, unless the appointing authority has fixed less than two years and in such cases it may be extended from time to time but it no case shall exceed the period of two years. The provisions contained under Regulation Chapter 21 Rule 3(C) is being quoted hereinunder:-

"Probation (i) Every employee of the University, on his first appointment against a permanent post, shall be on probation.

(ii) The period of probation shall ordinarily be two years unless the appointing authority has fixed it at less than two years. In such cases, it may be extended from time to time, but in no case, shall exceed the period of two years.

(iii) At the end of the probation period, the employee may be confirmed provided his work and conduct are found to be satisfactory. If he is not confirmed, his services may be terminated.

Provided that no such order of termination shall be passed except after notice to the employee concerned giving him an opportunity of explanation in respect of the grounds on which his services are proposed to be terminated.

Provided also that if a notice is given before the expiry of the period of probation of during the extended period of probation, as the case may be, the period of probation shall stand extended until the final order of Board of Management/Vice Chancellor, as the case may be are communication to the employee concerned."

8. On the strength of the said provision learned counsel for the writ petitioner has argued that once the writ petitioner was continuing the service since the date of the initial appointment i.e.2.7.1987 till his date of superannuation i.e. 31.3.2022 and there was nothing adverse against him and the services were satisfactory and uninterrupted without with there being any obstruction and break then the writ petitioner is to be termed to be confirmed employee in this regard.

9. However, according to the writ petitioner on 28.4.2023 the second respondent has proceeded to reject the claim of the writ petitioner on the pretext that since the services of the writ petitioner was not confirmed and it was not regular and he continued on ad hoc basis thus he cannot be granted benefit of pension and gratuity.

10. Prayer in the present petition is for quashing of the order dated 28.4.2023 passed by the second respondent, Director Pension Directorate of Pension U.P. at Lucknow to accord him pension and gratuity.

11. Sri Surabh, learned Standing Counsel as well as Sri Rakesh Kumar who appears for the respondent no. 3 and 4 on the other hand submits that they are armed with the instructions in the matter and they are in a position to canvas their argument.

12. According to the Sri Rakesh Kumar as per the provisions contained under Chapter 21 Rule 3(C) the services of the writ petitioner is deemed to be confirmed and regular as there was no interruption in service and he continued without any break that too to the satisfaction of the University concerned thus the writ petitioner is entitled to pension and mere non-issuance of a formal order for confirmation is a ministerial act and the same cannot be ground to denude the writ petitioner of the benefits.

13. Sri Surabh learned Standing Counsel on the other hand submits that in the wake of the Government Order dated 31st March 2021 which is at page 57 of the paper book until and unless the writ petitioner is regularised/confirmed he cannot be confirmed with the benefit.

14. To such submission the learned counsel for the petitioner as well as Sri Rakesh Kumar for the respondents no. 3 and 4 University submits that once there is a statutory provision in the shape of Regulation 21 Rule 3(C) already in existence then Government Orders cannot supersede annual or amend the same, as statutory provisions would play a role in this regard and once the University being the appointing authority has taken a stand with services of the writ petitioner is regular and confirmed then the State Government has no option but to accord pension to the writ petitioner.

15. Sri Rakesh Kumar learned counsel for the respondnets on instructions submits that if the issue is with regard to passing of the formal order in the shape of confirmation then the third respondent, Vice Chancellor C.S. Azad University of Agriculture and Technology, Kanpur shall accord consideration and pass suitable order as their stand is that the services of the writ petitioner are confirmed/regularised in the wake of the provisions contained under Regulation 21 Rule 3(C).

16. To such a submission learned counsel for the petitioner has no objection and he gracefully accepts the same.

17. According to learned Standing Counsel and learned counsel for the respondent no.3 and 4 University they do not propose to file any response to the writ petition.

18. Considering the submissions of the rival parties as well as stand taken by them the writ petition is being disposed of without seeking any response from the respondents directing the third respondent to accord consideration to the claim of the writ petitioner for according confirmation on the post in which he has worked within a period of two months from the date of the production of the certified copy of the order. The order passed by the third respondent shall be in accordance with law in the light of statute governing the field. It is further clarified that consequent to the passing of the order of as suggested by the learned counsel for the respondents no. 3 and 4, the said order be transmitted to the second respondent for the purposes of payment of pension and gratuity and the said exercise is to be taken within further period of two months from the date of the receipt of the same.

19. In view of the order passed with the consent of the parties the order dated 28.4.2023 passed by the second respondent is kept in abeyance till the passing of the fresh order.

With the aforesaid observation, the writ petition stands disposed off.

In case salary has not been paid for the last one month prior to the retirement of the writ petitioner then an endeavor would be made by the third and fourth respondent to pay salary after verification of the working of writ petitioner within a period of 15 days."

8. Learned counsel for the petitioner further submits that he is also entitled to the benefits in that regard.

9. Sri Satyendra Narayan Singh, learned counsel for the writ petitioner submits that in view of the Chapter 21, Rule 3(c) of the Regulations of the University, the writ petitioner's services ought to have been treated to be confirmed and entitled to the benefits but now, the benefits cannot be denied to him. According to him, the said issue has already undergone scrutiny by this Court in the case of Ashok Kumar Singh (supra) and the said judgment squarely applies to the case of the writ petitioner and a direction be issued that the claim of the writ petitioner be considered in true perspective.

10. Sri H.K. Shukla, learned Standing Counsel, who appears for Respondents 1 and 2 and Sri Rakesh Kumar, learned counsel for the respondent-University on the other hand submit that though as per the provisions contained under Chapter 21 Rule 3(c), the writ petitioner claims to be deemed to be confirmed and regular while coming up with stand that there has been no interruption in service and he continued without any break that to the satisfaction of the University concerned, thus a conscious decision is to be taken for payment of pension on mere non-issuance of the formal order of confirmation, he submits that it may be the ground of the petitioner that confirmation is a ministerial act and an uncertain glory for which the employee has no control over the same.

11. Additionally it has been argued on behalf of the respondents that the issue as to whether the writ petitioner is entitled to the benefits in the light of the fact that according to the writ petitioner, the judgment in the case of Ashok Kumar Singh (supra) stands applicable is to be decided at the first instance by the second respondent, Addl. Director Pension Directorate of Pension, U.P. at Lucknow, who shall address to the issues so sought to be raised by the writ petitioner in true perspective.

12. The learned Standing Counsel as well as Sri Rakesh Kumar, who appears for the University have made a statement at Bar that they do not propose to file any response to the writ petition.

13. Considering the submissions of the rival parties as well as stand taken by them the writ petition is being disposed of without seeking any response from the respondents granting liberty to the writ petitioner to approach the third respondent, Vice-Chancellor, Chandra Shekhar Azad University Agriculture and Technology, Kanpur Nagar along with a comprehensive representation accompanied with self-attested copy of the writ petition and on the receipt of the same, the third respondent shall accord consideration to the claim of the writ petitioner for according confirmation on the post in which he has worked within a period of two months from the date of the production of the certified copy of the order. The order passed by the second respondent shall be in accordance with law in the light of statute governing the field. It is further clarified that consequent to the passing of the order of as suggested by the learned counsel for the respondents, the said order be transmitted to the second respondent, Additional Director Pension Directorate of Pension, U.P. at Lucknow, for the purposes of payment of pension and gratuity and the said exercise is to be taken within further period of two months from the date of the receipt of the same.

14. In view of the order passed with the consent of the parties the order dated 26.4.2023 passed by the second respondent is kept in abeyance till the passing of the fresh order.

15. With the aforesaid observation, the writ petition stands disposed off.

Order Date :- 25.8.2023

N.S.Rathour