Allahabad High Court
Pradeep Kumar vs State Of U.P. Through Secy. ... on 13 February, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- WRIT - A No. - 1200 of 2012
Petitioner :- Pradeep Kumar
Respondent :- State Of U.P. Through Secy. Secondary Edu. Lko. And Ors.
Counsel for Petitioner :- Shikhar Anand,Laxmi Prasad Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Brij Raj Singh,J.
Heard learned counsel for the Petitioner and learned Standing Counsel for the respondents.
Learned counsel for the Petitioner submitted that the Petitioner was appointed on the post of Assistant Teacher on ad-hoc basis on 09.12.1976 and he joined his services on 23.12.1976. The services of the Petitioner was regularised and he was given permanent appointment on 28.04.1988. The Petitioner on attaining the age of super annuation retired from service on 30.06.2010. The grievance of the Petitioner at the moment is that though he has got pensionary benefits and retiral dues but his gratuity with effect from 23.12.1976 to 05.06.1986 have not been paid. He has submitted that the gratuity with effect from 05.06.1986 till the date of his retirement has been paid. Learned counsel submitted that while passing the impugned order (Annexure 8), the authority has said that in view of Article 361 (B) of U.P. Civil Service Regulation, the services of the Petitioner cannot be counted for retiral benefits, which was on ad-hoc basis. He has submitted that the impugned order cannot survive in the eyes of law because the Fundamental Rules 56 will prevail in the matter and as per the Fundamental Rules 56 promulgated by U.P. Act No.24 of 1975, retiring pension shall be payable with other retirement benefits to every Government servant, who retires or is required or allowed to retire under this Rule. Learned counsel for the Petitioner has submitted that in view of the aforesaid Fundamental Rules 56(e) the Petitioner is entitled for part payment of gratuity with effect from 23.12.1976 to 05.06.1986 and the impugned order is also liable to be quashed.
Learned counsel for the Petitioner has placed reliance upon judgment in the case of Uma Shankar Singh vs. State of U.P. through Principal Secretary, Technical Education and others 2020 SCC Online All 186.
On the other hand, learned Standing Counsel for the respondents has submitted that ad hoc services of the petitioner cannot be counted for pensionary benefit and he has been paid the pensionary benefit from 05.06.1986 after regularisation of his services. He has submitted that in view of C.S.R. Rules, the petitioner is not entitled for the said benefit.
Heard learned counsel for the parties.
It is admitted on record that the Petitioner was appointed ad hoc basis on substantive vacancy and thereafter his services were regularised on 28.4.1988. The law is settled that once the services are regularised, the entire services are liable to be counted. The Fundamental Rules 56 itself is very clear that pension will be given to a temporary employee. The entire pension is payable and other retiral benefits is also available to employees whether temporary or permanent who retires or allow to retire under the Rules. The said legal issue has been discussed in various cases Uma Shankar (Supra). The relevant para 8 of the said judgment is quoted below:-
"8. By means of aforesaid judgment, this Court has referred the settled proposition of law in question by citing the judgments of Division Bench of this Court as well as the judgment of Hon'ble Apex Court and has arrived at conclusion that for the purpose of making payment of retiral dues the entire services be it temporary or permanent shall be considered. Considering the rival contentions of the learned counsel for the parties and the settled position of law, as above, the petitioner is liable to get pension and all retirement benefits counting his entire service till his date of retirement. In the present case since the issue of the regularisation remained pending till the retirement of the petitioner as no decision had been taken, therefore, at this stage I do not feel it appropriate to remand the matter before the competent authority for taking the decision thereon when the law is settled on the point that for the purpose of retiral dues the entire service of the employee shall be considered."
In view of the aforesaid factual as well as legal discussion, I am of the view that the impugned order dated 04.05.2011 (Annexure 8) cannot survive therefore, it is, hereby, quashed.
In view of the above, I direct the Respondent no.3 to release the part gratuity of the petitioner which is due with effect from 23.12.1976 to 05.06.1986 within three months from the date of production of certified copy of this order.
Order Date :- 13.2.2023
Pks
