Anukul Prakash vs State Of U.P. Through Prin. Secy. ...
2023 Latest Caselaw 15611 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
(Lucknow)
 
***********
 
Neutral Citation No. - 2023:AHC-LKO:34836-FB
 
A.F.R.
 
Judgment Reserved on 22.03.2023
 
Judgment Delivered on 18.05.2023
 
Reserved
 

 
Case :- WRIT - A No. - 2001647 of 2015 
 
Petitioner :- Anukul Prakash 
 
Respondent :- State Of U.P. Through Prin. Secy. Pichchada Varg Kalyan Lko. 
 
Counsel for Petitioner :- Ramesh Pandey,Amrendra Nath Tripathi,Ashutosh Shahi 
 
Counsel for Respondent :- C.S.C. 
 
***********
 
Hon'ble Rajan Roy,J.

Hon'ble Abdul Moin,J.

Hon'ble Manish Mathur,J.

(Per: Rajan Roy, J.)

A Single Judge of this Court noticed conflicting opinions rendered by different Division Benches on the question of counting of past services rendered by the concerned in the erstwhile Auto Tractors Limited (hereinafter referred as 'ATL') for the purposes of pensionary benefits payable by the State Government consequent to their absorption therein and referred the matter for consideration by a Larger Bench. Accordingly, by order of Hon'ble the Chief Justice this Full Bench was constituted.

We considered the questions referred by the learned Single Judge to us and rephrased/reframed the same as under:

"(i) Whether the Division Bench judgments in the case of Shankatha Prasad Mishra (surpa); Hridayesh Dayal Srivastava (surpa); Mirtuyanjay Prasad Singh (surpa); Keshav Ram Pandey (supra) and State of U.P. and others versus Amar Pal Singh, [Special Appeal (Defective) No.646 of 2016 decided on 25.10.2016] have correctly held that the benefit of past services rendered by retrenched employees of Auto Tractors Limited, who have been subsequently absorbed in government service, such as the petitioner, would count towards their qualifying service for purposes of calculation of retiral dues payable by the State Government?

(ii) Whether a retrenched employee of Auto Tractors Limited such as the petitioner, who got absorbed in State Government Service subsequently as per the relevant rules known as the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules 1991 are entitled to count their previous services rendered by them under the erstwhile employer i.e. the Auto Tractors Limited, for calculation of qualifying service for purposes of retirement benefits under the U.P. Retirement Benefit Rules 1961 and other ancillary rules and Government Orders in this regard as also Government Orders dated 11.11.1993 and 10.07.1998 as modified vide Government Order dated 28.12.2001? "

In addition to the above, we framed the following question:

"(iii) Whether Division Bench judgment of this Court in the case of State of U.P. versus Ram Shanker Gupta passed in Special Appeal (Defective) No. 553 of 2015 decided on 27.11.2015 is in conflict with the earlier decisions by Coordinate Benches rendered in the case of Shankatha Prasad Mishra (surpa); Hridayesh Dayal Srivastava (surpa); Mirtuyanjay Prasad Singh (surpa); Keshav Ram Pandey (supra) and State of U.P. and others versus Amar Pal Singh, [Special Appeal (Defective) No.646 of 2016 decided on 25.10.2016] or not? If so, which of the two sets of Division Bench judgment lays down the law correctly with regard to question No.2 as rephrased by us herein above."

We have heard Mr. Amrendra Nath Tripathi along with Mr. Ashutosh Shahi, learned counsel for the petitioner, Mr. I.M. Pandey and Mr. Arun Kumar Pandey, learned Advocates Members of the Bar, as also, Mr. Kuldeep Pati Tripathi, learned Additional Advocate General assisted by Mr. Alok Kumar Pandey, Mr. Vivek Shukla and Mr. Prafull Yadav, learned counsel for the State, at length.

Briefly stated the facts relevant to the questions before us are that the petitioner was appointed in erstwhile ATL on the post of Executive (Personnel & Administration) on 17.10.1984 and worked in the said Company till 20.11.1990 i.e. till its closure. The petitioner was appointed in a Government Cell of ATL as Executive (Personnel & Administration) on 21.11.1990 and continued to work in the said Cell till 06.03.1998. He was paid salary regularly from the State Exchequer. This Cell, it appears, was created for the retrenched employees such as the petitioner till their matters are considered for absorption which was proposed at the relevant time. Ultimately, the State Government in exercise of its powers under the proviso to Article 309 of the Constitution of India made Rules known as Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991 (hereinafter referred as '1991 Rules'. The said 1991 Rules applied to posts under rule making power of the Governor of Uttar Pradesh under the proviso to Article 309 of the Constitution.

It is not out of place to mention that at the relevant time as many as 11 Public Corporations were closed or wound up and their employees retrenched.

As would be evident from the nomenclature of the 1991 Rules they were applicable to all such retrenched employees whether they be of the Government or Public Corporations who had been absorbed in Government service. After notification of the 1991 Rules, the State Government issued a Government Order dated 11.11.1993 on the subject of eligibility and permissibility of retrenched employees of ATL for the purposes of Government service. Ultimately, the petitioner herein was absorbed in the Government service on 07.03.1998 under the aforesaid 1991 Rules and Government Order dated 11.11.1993. He was absorbed in the Directorate of Pichhra Varg Kalyan, U.P. Under the 1991 Rules and the Government Order referred hereinabove. The last pay drawn by him in ATL was protected on the date of his entry in the Government service. Ultimately, the petitioner retired from Government service on 31.10.2014 while working on the post of Officer-on-Special Duty in the aforesaid Directorate i.e. a Class II Post. After his retirement, he filed a writ petition bearing No.182 (SB) of 2015 (Anukul Prakash Vs. State of U.P.) claiming benefit of past services rendered by him in ATL for pensionary benefits by the Government. In pursuance to an order dated 18.05.2015 passed in the said petition for consideration of his representation, the same was considered and rejected by the Director on 19.08.2015. This order was put to challenge before this Court by means of the instant petition i.e. Writ Petition No. 1647 (SB) of 2015 (now Writ A No. 1001647 of 2015) which was filed on 15.10.2015 and it is during course of hearing in this petition that the learned Single Judge noticed conflict of opinion amongst different Division Benches and referred the matter to the Larger Bench. It is against the aforesaid background that the reference came up before us and has been heard.

1991 Rules referred hereinabove are as under:

"THE UTTAR PRADESH ABSORPTION OF RETRENCHED EMPLOYRES OF GOVERNMENT OR PUBLIO CORPORATIONS IN GOVERNMENT SERVICE RULES, 1991

1. (1) Those rules may be called the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991.

(2) They shall come into force atonce.

(3) They shall apply to the posts under the rule making power of the Governor of Uttar Pradesh under the proviso to Article 309 of the Constitution.

2. Unless there is anything repugnant In the subject or context, tho expression-

(a) "appointing authority" in relation to any post for which an employee was retrenched means the authority empowered to make appointment to such post;

(b) "Public corporation" means a body corporate established or constituted by or under any Uttar Pradesh Act except a University or local authority constituted the purpose of Local Self Government and includes a Government Company within the meaning of section 617 of the Companies Act, 1956 In which the State Government has prepondering Interest:

(c) "retrenched employee" means a person who was appointed on a post under the Government or a public corporation on or before October 1, 1986 in accordance with the procedure laid down for recruitment to the post and was continuously working in any post under the Government of such corporation upto the date of his retrenchment due to reduction in, or winding up of, any establishment of the Government or the public corporation, as the case may be and in respect of whom a certificate of being a retrenched employee has been issued by his appointing authority.

(d) "service rules" means the rules made under the proviso to Article 309 of the Constitution, and where there are no such rules, the executive instructions issued by the Government, regulating the recruitment and conditions of service of persons appointed to tho relevant service.

3. (1) Notwithstanding anything to the contrary contained in any other service rules for the time being in force, the State Government may by notified order require the absorption of the retrenched employees in any post or service under the Government and may prescribe the procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employee.

(2) The provisions contained in relevant service rules shall be deemed to have been modified to the extent of their inconsistency with the provisions made in the notified order referred to in sub-rule (1)"

The terms 'Public Corporations' and 'Retrenched Employees' are defined in the said Rules. As per sub-Rule (1) of Rule 3 of 1991 Rules, notwithstanding anything to the contrary contained in any other service rules for the time being in force, the State Government may by notified order require absorption of retrenched employees in any post or service under the Government and may prescribe the procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such retrenched employees. As per sub-Rule (2) of Rule 3 of 1991 Rules, the provisions contained in relevant service rules shall be deemed to have been modified to the extent of their inconsistency with the provisions made in the notified order referred to in sub-rule (1).

The term 'Notified' is defined in Section 4 (29A) of the U.P. General Clauses Act, 1904 as under:

"(29-A) "notification" or "public notification" shall mean a notification published in the Gazette of the State and the word "notified" shall be construed accordingly."

Neither of the parties have placed before us any notified order referable to Rule 3 of 1991 Rules. They have, however, brought on record a Government Order dated 11.11.1993 which, according to them, is referable to 1991 Rules and it is this Government Order which governs the conditions of service of the retrenched employees of ATL who were absorbed in the Government. Even though the said order is not a notified order, nevertheless, it appears that it is this Government Order which has held the field so far as conditions of absorption of retrenched employees of ATL are concerned, therefore, we proceed on the said premise.

The Government Order dated 11.11.1993 reads as under:

"la[;k% [email protected]@[email protected]&dk0&[email protected]

izs"kd ]

dkfydk izlkn ]

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mRRkj izns'k 'kkluA

lsok esa]

1- leLr izeq[k [email protected]] m0iz0 'kkluA

2- leLr foHkkxk/;{k ,oa izeq[k dk;kZy;k/;{k] m0iz0A

3- leLr e.Myk;[email protected]/kdkjh] m0iz0A

dkfeZd vuqHkkx&2

fo"k;% vkVks VSªDVlZ fyfeVsM ¼,0Vh0,y0½ ds NVuh'kqnk deZpkfj;[email protected]/kdkfj;ksa dks ljdkjh lsok gsrq vgZrk ,oa vuqeU;rkA

egksn;]

mijksDr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd ekuoh; n`f"Vdks.k viukrs gq;s 'kklu us vkVks VªSDVlZ fyfeVsM ¼,0Vh0,y0½ ds NVuh 'kqnk deZpkfj;[email protected] vf/kdkfj;ksa dks fuEukafdr 'krkZsa ds v/khu ljdkjh lsok gsrq vgZrk ,oa vuqeU;rk iznku djus dk fu.kZ; fy;k gS%&

1- ljdkjh lsok gsrq dsoy os gh deZpkjh ik= gksaxs] tks fnukad 1 vDVwcj 1986 ;k mlds iwoZ ,0Vh0,y0 dh lsok esa fu;qDr gq;s gksa rFkk ,0Vh0,y0 ds cUn gksus dh frfFk rd fujUrj dk;Zjr gksA

2- yksd lsok vk;ksx dh ifjf/k ds ckgj] v/khuLFk lsok p;u vk;ksx dh ifjf/k ds Hkhrj ;k ckgj ds inksa ij **mi;qDrrk** ds

vk/kkj ij fu;qfDr gsrq vgZrk ekuh tk;sxhA ,slh [email protected] gsrq ftuds fy;s [email protected];u ds fufeRRk fdlh lsok fu;[email protected];Zdkjh vkns'k esa dksbZ izfdz;k fo|eku gks] NVuh'kqnk dkfeZdksa ds fo"k; esa mDr izfdz;k ls f'kfFkyrk cjrrs gq;s **mi;qDrrk** vkadus ds fy, vyx ls mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds NVuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu fu;ekoyh] 1991 iz[;kfir dh x;h gSA

3- ljdkjh lsok esa HkrhZ gsrq fu/kkZfjr U;wure 'kSf{kd vgZrk] vuqHko rFkk vk;q fo"k;d 'krZsa iwjk djus okys ,0Vh0,y0 ds [email protected]/kdkjh gh mDr lsok;kstu gsrq ik= gksaxsA ;fn ,sls deZpkjh ,0Vh0,y0 esa ,sls in ij fu;qDr gq;s Fks ftudk drZO; rFkk mRrj nkf;Ro ml in ds lEcfU/kr gS ftl in ds fy;s ;s vc vH;FkhZ gS vkSj viuh fu;qfDr ds le; mijksDr in ds fy;s fu/kkZfjr 'kSf{kd ;ksX;rk j[krs Fks] rks ;g le>k tk;sxk fd os orZeku in ds fy;s fu/kkZfjr 'kSf{kd vgZrk iw.kZ djrs gSaA

4- ,0Vh0,y0 ds vf/[email protected] ds fy;s ljdkjh lsok esa in fo'ks"k ij ykxw vf/kdre vk;q lhek dk izfrcU/k ykxw ugha gksxkA

5- lsok esa fy;s tkus ds fnukad ls jkT; deZpkfj;ksa ij ykxw leLRk fu;e tSls Hkfo"; fuokZg fuf/k] vodk'k] isa'ku vkfn mu ij Lor% ykxs gksaxsA

6- ,0Vh0,y0 dh lsok esa dkfeZdksa dks vkgfjr vfUre osru dks laj{k.k iznku fd;k tk;sxk ftlds fo"k; esa foRr foHkkx dh lgefr ls iz'kklfud foHkkx }kjk i`Fkd ls vkns'k tkjh fd;s tk;saxsA

7- mDr lsok;kstu lh/kh HkrhZ ds miyC/k inksa ds fo:) gh fd;k tk;sxk rFkk lEcfU/kr in ij lh/kh HkrhZ ls fu;qDr dkfeZdksa dh T;s"Brk fu/kkZfjr jgus fo"k;d ykxw uhfr ds vuqlkj mDr lsok;kstu dh frfFk ls T;s"Brk iznku dh tk;sxhA

8- ,0Vh0,y0 esa rSukr lewg **x** rFkk **?k** ds ftu deZpkfj;ksa dh lsok;sa lekIRk dh tk;sxh mu lHkh ds uke lEcfU/kr lsok;kstu dk;kZy;ksa esa ,d vyx iwy esa ,0Vh0,y0 esa mudh ofj"Brk dze esa] O;ofLFkr fd;s tk;saxs vkSj lsok;kstdksa ls ekax izkIr gksus ij rn~uqlkj uke izsf"kr fd;s tk;saxsA

9- ;g fu;qfDr;ka djrs le; vkj{k.k lEcU/kh fu;eksa dk vuqikyu fd;k tk;sxkA

10- ferO;f;rk ds n`f"Vdks.k ls 5 izfr'kr in fjDr j[ks tkus

lEcU/kh izkfo/kku bu ij ykxw u gksaxsA

11- mijksDr fn'kk funsZ'kksa ds vfrfjDr ;g Hkh dguk izklafxd u gksxk fd ,0Vh0,y0 ds deZpkfj;ksa ds lanHkZ esa le;≤ ij tks ekuuh; U;k;ky;ksa ds vkns'k gq;s gSa mudk leknj djrs gq;s vxzlj dk;Zokgh dh tk;sA

Hkonh;

g0 viBuh;

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lfpoA"

The Government Order refers to eligibility and permissibility of absorption of retrenched employees of ATL. Para 1 of the Government Order mentions that only such employees would be eligible for absorption who had been appointed in the service of ATL on or prior to 01.10.1986. This date corresponds to the date mentioned in the definition of retrenched employees contained in 1991 Rules. As per para 2 of the Government Order entitlement of such retrenched employees for appointment in Government service would be determined on the basis of their fitness/utility and the service rules of the concerned department where they are to be appointed would be treated as relaxed for the purposes of such appointment. It refers to 1991 Rules regarding their entitlement for such appointment. Now, the 1991 Rules speak of absorption, therefore, the Government Order dated 11.11.1993 is also to be understood as prescribing the procedure for such absorption which is referable to 1991 Rules. The term 'absorption' is mentioned in Para 3 of the aforesaid Government Order dated 11.11.1993 also. Such absorption was proposed to be made against the post of direct recruitment, obviously so. Para 5 of the said Government Order mentions that from the date of being taken into Government service all the Rules applicable to the Government employees such as GPF, Leave, Pension, etc. would automatically be applicable to such retrenched employees. As per Para 6 of the Government Order, the last pay drawn by such employees in ATL would stand protected and a separate Government Order would be issued in this regard. As per para 7 of the said Government Order, the said retrenched employees on absorption against the post of direct recruitment would be given seniority viz-a-viz the direct recruits from the date of their absorption, meaning thereby, the benefit of past services rendered by them in ATL would not be counted for the purposes of determining their seniority in the Government department. Rules of reservation were also to be applicable while absorbing. There is no dispute between the parties that it is this Government Order which has governed their conditions of absorption.

The claim of the petitioner for counting the past services rendered by him in ATL for calculating the qualifying service for purposes of pension on his retirement while working in the Government is a Government Order dated 10.07.1998 and certain judgments of this Court wherein the said benefit has been given.

This Government Order dated 10.07.1998 is the only document relied upon by the petitioner in support of his claim and there is no such specific provision in the 1991 Rules, unless, of course, we find that the Government Order dated 10.07.1998 is referable to Rule 3 or even if it is not a notified order in terms thereof we find it to be applicable to the facts of the case just as the Government Order dated 11.11.1993 is applicable. The judgments relied by the petitioner would, of course, be considered by us thereafter, but, first of all we have to consider applicability of Government Order dated 10.07.1998. Government Order dated 10.07.1998 reads as under:

"la[;k lk&3&[email protected]&98&901&98

isz"kd ]

Jh vkyksd jatu ]

lfpo]

mRRkj izns'k 'kkluA

lsok esa]

leLr foHkkxk/;{[email protected][k dk;kZy;k/;{k] mRrj izns'kA

y[kuÅ% 10 tqykbZ] 1998

fo"k;%& jkT; ljdkjksa ds v/khu Lok;Rr'kklh fudk;ksa esa lafofy;u ekaxus okys dsUnzh; ljdkjh rFkk dsUnzh; Lok;Rr fudk;ksa ds deZpkfj;ksa rFkk dsUnzh; ljdkj ds rFkk dsUnzh; Lok;Rr fudk;ksa esa lafofy;u ekaxus okys jkT; ljdkj ds deZpkfj;ksa dh isa'ku ds iz;kstu ls lsok dk fxuk tkukA

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mi;qZDr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk gS fd bl jkT; ljdkj esa ;g O;oLFkk fo|eku gS fd dsUnz ljdkj dk deZpkjh jkT; ljdkj esa lsok LFkkukUrj.k ds vk/kkj ij vkrk gS ;k mUgha ifjfLFkfr;ksa esa jkT; ljdkj dk deZpkjh Hkkjr ljdkj ds dk;kZy; esa tkrk gS] rks tgk¡ ls og lsokfuo`Rr gksxk ogh ljdkj mlds uSo`fRrd ykHkksa dk Hkqxrku djssxhA dkQh le; ls ;g ekax dh tk jgh gS fd dsUnz ljdkj ds Lok;Rr'kklh fudk; dk deZpkjh jkT; ljdkj ds Lok;Rr'kklh fudk; esa jkT; ljdkj esa izfrfu;qfDr ij vk, ;k lh/ks lsok xzg.k djsa ;k mUgha ifjfLFkfr;ksa esa dsUnz ljdkj ds Lok;Rr'kklh fudk; dk deZpkjh Hkkjr ljdkj ds Lok;Rr'kklh fudk; esa izfrfu;qfDr ij ;k lh/kh HkrhZ ls Tkk;s rks mldh lEiw.kZ lsok vof/k ds vk/kkj ij uSo`fRrd ykHk fn;s tk;saA blds vfrfjDr jkT; ljdkj ds vUrxZr gh jkT; ljdkj dk deZpkjh jkT; ljdkj ds ,sls [email protected] esa [email protected]/kh [email protected];qfDr ds vk/kkj ij tkrk gS ;k mUgha ifjfLFkfr;ksa esa jkT; ljdkj ds [email protected] dk deZpkjh jkT; ljdkj esa vkrk gS rks iz'uxr lqfo/kk mUgsa Hkh miyC/k djk;h tk;sA

2& 'kklu }kjk lE;d fopkjksijkUr fuEufyf[kr 'krksaZ ds v/khu ;g fu.kZ; fy;k x;k gS fd jkT; ljdkj dk deZpkjh Hkkjr ljdkj ds [email protected] esa [email protected];qfDr ds vk/kkj ij tkrk gS vkSj lafoyhu gks tkrk gS ;k mlh ifjLFkfr esa Hkkjr ljdkj dk deZpkjh jkT; ljdkj ds [email protected] esa vkrk gS vkSj lafoyhu gks tkrk gS rks ;fn nksuksa in isa'kuscqy gSa rks mlds }kjk nksuksa inksa ij dh xbZ vgZ lsok ds ;ksx ij uSo`fRrd ykHk vuqeu; gksaxsA blds vfrfjDr jkT; ljdkj ds vUrxZr gh jkT; ljdkj dk deZpkjh jkT; ljdkj ds [email protected] esa [email protected]/kh [email protected];qfDr ds vk/kkj ij tkrk gS ;k jkT; ljdkj esa vkrk gS] tgk¡ jkT; ljdkj ds lacaf/kr [email protected] esa isa'ku dh lqfo/kk miyC/k gks ,oa lacaf/kr deZpkjh dk lafofy;u lsokfuo`Rr gksus okys [email protected]@ljdkj esa gks x;k gks] rks ;fn nksuksa gh in isa'kuscqy gksa] rks mlds }kjk nksuksa inksa ij dh xbZ vgZ lsok ij uSo`fRrd ykHk vuqeU; gksaxs vkSj nksuksa vof/k;ksa dks tksM+dj lsok uSo`fRrd ykHkksa dk Hkqxrku mlh [email protected] }kjk fd;k tk;sxk tgk¡ ls og vfUre :i ls lsokfuo`Rr gks jgk gSA bl izdkj ds ekeyksa esa deZpkjh ij ogh isa'ku fu;e ykxw gksaxs tSlh fd ml [email protected]@fuxe esa ykxs gkssaA

¼1½- tc fdlh isa'ku;qDr laxBu esa dk;Z dj jgs jkT; ljdkj ds fdlh deZpkjh dks fdlh Lok;Rr fudk; esa lafofy;u dh vuqefr nh tkrh gS rks mlds }kjk ljdkj ds v/khu dh x;h lsok dks Lok;Rr fudk; ds v/khu isa'ku ds fy, vkxf.kr djkus dh vuqefr gksxh pkgs mDr deZpkjh ljdkj esa vLFkk;h jgk gks vFkok LFkk;hA fdUrq isa'ku laca/kh lqfo/kk;sa dsoy rHkh feysaxh tcfd vLFkk;h lsok ds ckn mudk LFkk;hdj.k gks x;k gksA ;fn og Lok;RRk'kklh fudk; esa vLFkk;h deZpkjh ds :i esa lsokfuo`Rr gks tkrk gS rks mls lsokUr izlqfo/kk;sa mlh izdkj feysaxh tks lkekU;r% ljdkj ds v/khu vLFkk;h deZpkfj;ksa dks miyC/k gSaA Lok;Rr fudk;ksa ds tks deZpkjh jkT; ljdkj ds v/khu LFkk;h rkSj ij lafoyhu gks tkrs gSa muds ekeyksa esa Hkh ogh fdz;kfof/k ykxw gksxhA

Lok;Rr fudk;@ljdkj esa tSlk Hkh ekeyk tks lafofy;u dh rkjh[k rd dh lsok ds fy, vuqikfrd njksa ij isa'[email protected] [email protected] miknku rFkk e`R;q vkSj lsokfuo`fRr izlqfo/kkvksa dk Hkqxrku djds [email protected];Rr fudk; vius isa'ku nkf;Ro dks iwjk djsxhA vuqikfrd njksa ij isa'ku dh jkf'k le;≤ ij ;Fkk la'kksf/kr 'kklukns'kksa dks /;ku esa j[kdj fuf'pr dh tk;sxhA

2- va'knk;h Hkfo"; fuf/k izlqfo/kkvksa dk gdnkj deZpkjh ;g fodYi nsxk fd ;g ;k rks Lok;Rr'kklh fudk; ls feyus okyh va'knk;h Hkfo"; fuf/k izlqfo/kk;sa izkIr djsxk vFkok mls jkT; ljdkj ds jktdks"k esa tek djsxk vkSj jkT; ljdkj esa ias'ku ds fy, vgZ lsok ds :i esa fxus tkus dk fodYi nsxkA blh izdkj ls ljdkjh lsod Lok;Rr fudk; dh lsok esa ;ksxnku djus ij 'kklu ds v/khu lkekU; Hkfo"; fuf/k [kkrs esa tek /kujkf'k lacaf/kr Lok;Rr fudk; dks Hkqxrku dj nh tk;sxhA ,slk fodYi lafofy;u dh rkjh[k ls ,d o"kZ ds Hkhrj fn;k tk ldsxkA ;fn fu/kkZfjr vof/k ds Hkhrj fodYi ugha fn;k tkrk gS rks ;g eku fy;k tk;sxk fd deZpkjh us va'knk;h Hkfo"; fuf/[email protected]; Hkfo"; fuf/k izlqfo/kk;sa izkIr djus ds fy, fodYi ns fn;k gSA ,d ckj fn;k x;k fodYi vfUre gksxkA

3- tc fdlh Lok;RRk'kklh fudk; ds fdlh deZpkjh dks dsUnzh; [email protected]; ljdkj ds v/khu LFkk;h rkSj ij lafoyhu dj fn;k tkrk gS rks mlds lkeus nks fodYi jgsaxs vFkkZr~ ;k rks ;g Lok;Rr'kklh fudk; }kjk ns; va'knk;h Hkfo"; fuf/k izlqfo/kk;sa izkIr dj ysa vkSj ljdkj esa u;s fljs ls ukSdjh 'kq: djs ;k va'knk;h Hkfo"; fuf/k esa fu;ksDrk ds va'knku vkSj ml ns; C;kt lfgr] lEiw.kZ jkf'k jkT; ljdkj ds [kkrs esa tek dj nsa vkSj ljdkj ds v/khu isa'ku iz;kstuksa gsrq vgZ lsok ds :i esa tqM+okus dk fodYi ns nsA ;g fodYi lafofy;u dh rkjh[k ls ,d o"kZ ds Hkhrj fn;k tk;sxkA ;fn fu/kkZfjr vof/k ds Hkhrj dksbZ fodYi ugha fn;k tkrk gS rks ;g le> fy;k tk;sxk deZpkjh us va'knk;h Hkfo"; fuf/[email protected] lkekU; Hkfo"; fuf/k izlqfo/kk;sa izkIRk djus dk fodYi fn;k gSA ,d ckn fn;k x;k fodYi vfUre gksxkA

3- jkT; ljdkj ds v/khu Hkkjr ljdkj }kjk fuxZr vkns'k fnukad 7&2&1986 ls izHkkoh ekus tk;saxsA

Hkonh;]

vkyksd jatu]

lfpo] foRRkA "

The aforesaid Government Order dated 10.07.1998 was modified/amended vide subsequent Government Order dated 28.12.2001 and it was clarified that Government Order dated 10.07.1998 was applicable to autonomous bodies and term 'undertakings/corporations' was incorrectly mentioned in the Government Order dated 10.07.1998. Accordingly, Government Order dated 10.07.1998 was clarified/modified, meaning thereby, reference to 'undertakings/corporations' therein had to be understood as reference to autonomous bodies. Further, the term 'autonomous bodies' was to mean such bodies which were financially funded entirely or 50% of their expenses was met by the Government and services under such bodies was pensionable. Petitioner claims that ATL was wholly owned by State Government, but, has not proved that his services in ATL were pensionable.

On a bare perusal of the subject of the above quoted Government Order, it would be evident that it was supposed to address the demand of Central Government employees and the employees of autonomous bodies under the control of Central Government as also demand of State Government employees seeking absorption in Central Government or autonomous bodies under the control of Central Government for counting their services, however, when we peruse the body of the Government Order, we find, it also deals with such claims of employees of autonomous bodies who may have been absorbed in the State Government.

In the said Government Order dated 10.07.1998 there is a caveat for counting of past services rendered in the erstwhile department/autonomous bodies i.e. services in both the establishment should be pensionable only then past services under the autonomous body would be countable for pensionary benefits. In the case at hand though in para 7 of the writ petition a bald assertion has been made that services in ATL were pensionable, but, no documentary proof has been filed in support thereof. In fact, by means of supplementary affidavit dated 22.02.2026, petitioner realizing his incorrect averment in third line of paragraph 7 of the writ petition and 3rd line of Ground (D) of the writ petition has stated as under:

"It is further stated that in the 3rd line of paragraph 7 of the writ petition and 3rd line of ground (D) of the writ petition it has wrongly been stated that the post on which petitioner was working in the erstwhile Auto Tractors Limited was pensionable. The said mistake was not intentional but due to some inadvertence. It is clarified that petitioner's post in the erstwhile Auto Tractors Limited was not pensionable."

The order impugned in the writ petition by petitioner's representation claiming counting of past services rendered in ATL for pensionary benefits also says that services in ATL were not pensionable, therefore, Government Order dated 10.07.1998 was not applicable. Same averment has been made in para 3(a) of counter affidavit of State which has been baldly denied by petitioner in his rejoinder affidavit without any proof in support thereof. Thus, the services of petitioner in ATL were not pensionable.

Most important, we find that the Government Order applies to only such employees of autonomous bodies who had come into the service of Government by way of transfer/direct recruitment/deputation and thereafter had been absorbed prior to their retirement. Thus, in order to be covered by the said Government Order dated 10.07.1998, the employee should have come into Government service by way of transfer or direct recruitment or deputation and thereafter should have been absorbed. Unless this condition is fulfilled, the Government Order dated 10.07.1998 would not apply in his case.

In the case at hand, the petitioner did not join the service of the Government either by transfer of service or direct recruitment nor did he come on deputation to it. He was a retrenched employee of erstwhile ATL and on this basis he was absorbed.

ATL was closed on 20.11.1990 and as absorption of retrenched employee was to be considered, but, there was no provision at that time, therefore, a Cell was created in the Government wherein such employees were allowed to join. Thus, even this engagement from 21.11.1990 to 06.03.1998 was in a Cell separately created for retrenched employees of ATL and it was not as if the petitioner had been appointed in Government service by way of transfer of service or direct recruitment or deputation. While working in the said Cell, before his regularization in Pichhra Varg Kalyan, petitioner was not a member of service in any Department of the Government. It was only an interim arrangement, therefore, the said period was not a substantive service rendered under the Government. The arrangement was made only to facilitate the ultimate absorption of petitioner and other retrenched employees like him.

The subsequent absorption of the petitioner in the Directorate of Pichhra Varg Kalyan on 07.03.1998 was in terms of 1991 Rules and the Government Order dated 11.11.1993 referred hereinabove. Both, the 1991 Rules and Government Order 11.11.1993 were in respect of absorption of retrenched employees. They were not in respect of absorption of employees who have joined Government service either on the basis of transfer of service or direct recruitment or deputation. The services of petitioner in ATL were not pensionable whereas Government Order dated 10.07.1998 in cases where services/post in both the establishments were pensionable. The fact that petitioner was absorbed against a post of direct recruitment is not relevant for the purpose of applicability of Government Order dated 10.07.1998. Thus, the petitioner and other retrenched employees of ATL who were absorbed formed a different class viz-a-viz those governed by the Government Orders dated 10.07.1998 and 28.12.2001. The Government Order dated 11.11.1993 itself mentions that absorption was being done on humanitarian consideration. The petitioner was absorbed as a retrenched employee. Thus, on the face of it, the Government Order dated 10.07.1998 does not apply in his case.

We have perused the 1991 Rules and there is nothing in the said Rules which may permit counting of past services rendered by the petitioner in ATL for the purposes of calculating his qualifying service for pensionary benefits payable by the Government consequent to his retirement from Government service after absorption therein. We have also perused the Government Order dated 11.11.1993 and we do not find any provision therein permitting the said benefit.

Paragraph 7 of the Government Order dated 11.11.1993 also does not permit counting of services rendered by the petitioner in ATL for the purposes of determining his seniority viz-a-viz direct recruits in the absorbed department.

Paragraph 5 of the Government Order dated 11.11.1993 merely says that all the Rules applicable to the Government servants would apply to such retrenched employees from the date of their entry into Government service.

Now, in this context, we find that the pensionary entitlements of Government servants are regulated by rules known as U.P. Retirement Benefits Rules, 1961 (hereinafter referred as '1961 Rules') and Civil Service Regulations (hereinafter referred as 'CSR') so far as they are not inconsistent with the aforesaid 1961 Rules. These Rules are applicable to all Offices under the rule making power of the Governor other than those who retired before the date of coming into force of the said Rules. Sub-Rule (2) of Rule 2 says that pension provisions contained in CSR shall continue to apply to the Officers governed by these Rules, except so far as they are inconsistent with any of the provisions of these Rules. Rules 3 (8) of 1961 Rules defines the term 'qualifying service', which is to be calculated for the purposes of determination of pensionary benefits and it reads as under:

"3 (8) Qualifying service means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations:

Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except

(i) periods of temporary or officiating service in a non-pensionable establishment;

(ii) periods of service in a work-charged establishment; and

(iii) periods of service in a post paid from contingencies shall also count as qualifying service.

Note. If service rendered in a non-pensionable establishment work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."

Regulation 368 of the CSR reads as under:

"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment."

The proviso to Rule 3(8) clearly mentions inter alia that service under the Government shall count as qualifying service. We may in this context refer to Regulation 361 which reads as under:

"361. The service of an officer does not qualify for pension unless it conforms to the following three conditions-

First-The service must be under Government.

Second-The employment must be substantive and permanent.

Third-The service must be paid by Government.

These three conditions are fully explained in the following section."

All the above quoted three conditions are required to be satisfied. Thus, as per the aforesaid provision of the CSR also, service of an Officer would qualify for pension only if the service is under the Government and it is paid by the Government, apart from the fact that employment must be substantive and permanent. The services rendered by the petitioner in ATL was not a service under the Government nor was it paid by the Government and there is nothing on record to establish otherwise. The ATL was a Government company having separate entity as a Government company incorporated under the Companies Act, 1956. Thus, as per pensionary Rules applicable in the Government as the service had to be under the Government and also paid by the Government, to qualify for pensionary benefits, which was not so in the case of petitioner, therefore, in view of these Rules also, it cannot be counted for the aforesaid purpose.

The amendment in the 'qualifying service' defined in Rule 3(8) of the Rules 1961 by the U.P. Qualifying Service for Pension and Validation Act, 2021 does not change the legal position so far as the questions before us are concerned. Thus, Rules of the Government applicable in this regard also do not support the claim of the petitioner for counting of services rendered in the ATL for purposes of grant of pensionary benefits by the Government.

We, thus, do not find any provision in the Rules or any Government Order referable to the 1991 Rules which could entitle a retrenched employee of ATL for counting of his services rendered in the said concern for grant of pensionary benefits by the Government.

We may at this very stage refer to a Division Bench judgment of this Court dated 06.10.2016 rendered in Writ A 49126 of 2016 (Pooran Singh Manral and another vs. State of U.P. and others) wherein a similar view has been taken and which we find as laying down the law correctly on the subject, although it was in the context of a claim by an employee of another Corporation absorbed in another department, but, in the said case also a Government Order on the same lines as the Government Order dated 11.11.1993 and the same Rules 1991 were considered.

The 1991 Rules were subsequently rescinded by the Retrenched Employees of Government or Public Corporations in Government Service (Rescission of Rules), 2003. By the said Rules, the 1991 Rules were rescinded w.e.f. 08.04.2003. Only two things were protected; one is the benefit of absorption already granted and secondly; the last pay protection in this very context. All Government Orders referable to Rule 3 were also annulled w.e.f 08.04.2003 subject, of course, to the benefit already granted. In addition to it, those retrenched employees whose services had not been absorbed till promulgation of the said Rules i.e. till 08.04.2003, they were given relaxation in age for the purposes of recruitment on Group 'C' and 'D' posts outside the purview of U.P. Public Service Commission. Subsequently, a legislative enactment known as Retrenched Employees of Government or Public Corporations in Government Service (Rescission of Rules) Act, 2009 was promulgated by which the 1991 Rules were rescinded w.e.f. 09.05.1991 i.e. from the very date they were promulgated. This enactment, thus, gave retrospective effect to the rescission of Rules 1991 from 09.05.1991. While rescinding the said Rules with retrospective effect from 09.05.1991 again two things were protected, one the benefit of absorption already granted prior to 08.04.2003 and secondly; the last pay drawn by such retrenched employee who had been absorbed. In addition, it was provided that those retrenched employees who had not been absorbed till 08.04.2003, they would be given relaxation in upper age limit for direct recruitment to such Group 'C' and 'D' posts which are outside the purview of U.P. Public Service Commission to the extent he has rendered his continuous service in substantive capacity in the concern Government department or Public Corporations/Companies. Thus, these Rules of 2003 and 2009 also do not provide for counting of past services rendered by the retrenched employees of ATL, after their absorption in a Government service for pensionary benefits.

Now, coming to the decisions on the subject and conflicting opinions expressed by different Division Benches of this Court.

So far as judgment dated 04.04.2012 passed in the case of Hridayesh Dayal Srivastava vs. State of U.P. and others (Writ Petition No. 410 (SB) of 2010) is concerned, the question no. 2 which we have framed was not at all involved therein nor was it argued nor considered. The only question involved therein was counting of past services for the purposes of pay protection and, as, the Government Order dated 11.11.1993 itself protected the last pay drawn, therefore, there could be no qualm about the claim raised in Hridayesh Dayal Srivastava (supra), but, the said judgment cannot be understood as laying down any precedent so far as the question before us is concerned. Even otherwise in view of the enunciation of law by us hereinabove, any opinion expressed therein contrary to it is not good law.

There is one aspect which we need to consider in this context and that is reliance placed by the Division Bench in Hridayesh Dayal Srivastava (supra) upon the stand of the State Government in an SLP filed by the latter against the judgment rendered in the earlier petition filed by Hridayesh Dayal Srivastava. The stand of the State Government before the Supreme Court was only with regard to prior services of retrenched employees being liable to be counted for purposes of fixation of their pay scale in another employment and there was no such averment before the Supreme Court that it was liable to be counted for pensionary benefits, therefore, the Division Bench in Hridayesh Dayal Srivastava (supra) erred by misreading the said stand basing its judgment upon it for the purposes of counting of said services for other benefits also, even if, cryptically. The said judgment, therefore, does not entitle the employees retrenched under the 1991 Rules to benefit of past services for purposes of pensionary benefits.

An SLP bearing No. CC NO. 22538-22539 of 2015 against the judgment in Hridayesh Dayal Srivastava (supra) was preferred by the State Government and the same was dismissed in limine on 22.01.2016 leaving the question of law open, therefore, this dismissal of SLP also does not persuade us to answer the reference in any other manner as the question of law was left open which has now been considered by us.

As regards Division Bench judgment dated 26.04.2013 passed in Keshav Ram Pandey vs. State of U.P. and others (Writ Petition No. 65 (SB) of 2011), it merely relied upon the decision rendered in Hridayesh Dayal Srivastava (supra) and did not itself consider the relevant Rules and the Government Orders, therefore, it does not lay down any principle of law and is of no precedentiary value. Even otherwise being contrary to law enunciated by us it cannot be termed as a good law or a binding precedent. The fact that the SLP against the said judgment in Keshav Ram Pandey (supra) was dismissed in limine also does not change the legal situation.

As regards Division Bench judgment dated 25.10.2016 passed in State of U.P. and 2 Others vs. Shankatha Prasad Misrha (Special Appeal Defective No. 645 of 2016) the fact that the SLP against the said judgment of Shankatha Prasad Mishra (supra) was dismissed in limine also does not change the legal position as discussed by us hereinabove as it does not amount to affirmation of the judgment rendered in Shankatha Prasad Mishra (supra). In view of the legal enunciation by us hereinabove, the said judgment does not lay down the law correctly and is based on misreading of Government Order dated 11.11.1993. It is, therefore, not a good law. On the same date i.e., 25.10.2016, the same Division Bench decided another case of State of U.P. and others vs Amar Pal Singh (Special Appeal Defective No. 646 of 2016) giving the same reasons, therefore, it is also not good law.

As regards another judgment dated 13.02.2018 rendered by a Division Bench in Narendra Narain Mishra vs. State of U.P. and others, we find that even in the said judgment it has been held that Government Order dated 10.07.1998 is not applicable, however, for other reasons, the petition was allowed, but, in view of the clarification of law on the subject by us the said judgment does not lay down the law correctly on other issues except the non-applicability of Government Order dated 10.07.1998 and to this extent it is not good law.

As regards judgment dated 06.11.2017 passed in State of U.P. and others vs. Mirtunjay Pratap Singh (Special Appeal No. 121 of 2015) by a Division Bench also does not consider relevant aspects of the matter as discussed by us hereinabove, but, merely refers to earlier judgments passed by the Coordinate Benches and accordingly the benefit of past services for pensionary benefits was granted. In view of what has already been discussed hereinabove, apart from the fact that it does not contain any discussion on relevant aspects, it cannot be treated as laying down correct law.

In the case of State of U.P. and others vs. Ram Shanker Gupta (Special Appeal Defective No. 553 of 2015) a Division Bench of this Court vide judgment and order dated 27.11.2015 considered the provisions of the 1991 Rules and clearly opined that the said Rules do not contain any such provision as to calculate the period of service of the retrenched employee rendered in the erstwhile department for the purposes of pensionary benefits, therefore, in the absence of any specific provision in the Rules, it was of the view that no such benefit can be provided by the Court. It accordingly declined the relief sought by the respondent before it to calculate his previous services rendered in Auto Tractors Limited, Pratapgarh from 01.10.1980 to 20.11.1990 for pensionary benefits and it accordingly modified the judgment of learned Single Judge to this extent.

The fact that in the said judgment another judgment of Coordinate Bench rendered in the case of State of U.P. and others vs. Sunil Kumar Verma and others; 2010 (10) ADJ 125 (DB) was referred which was set aside by the Supreme Court vide decision reported in (2016) 1 SCC 397 Sunil Kumar Verma and others vs. State of U.P. and others, as claimed by the petitioner's counsel, does not have much relevance in view of the fact that the issue involved therein was with regard to right of absorption after coming into force of Rules 2003 and 2009 whereas the questions before us are different. No doubt, in the said judgment in Ram Shanker Gupta (supra) the Government Orders dated 11.11.1993 and 10.07.1998 were not considered, but, this non-consideration does not affect the opinion expressed therein as it is in consonance with what we have held hereinabove.

It was also the contention of petitioner's counsel that other retrenched employees of ATL have been given the benefit of past services in other department i.e. departments other than those where the petitioner had been absorbed, therefore, it would be highly unjust and unreasonable to deny the petitioner the said benefit. We are not persuaded by this argument as we have explained the law on the subject. It is well settled that merely because somebody-else has been incorrectly granted the benefit, it cannot be made a ground for claiming similar benefit. There is no question of parity in illegality. We may in this regard refer to the decision of Hon'ble the Supreme Court in the case of R. Muthukumar and others vs. The Chairman and Managing Director Tangedco and others; 2022 SCC OnLine SC 151. It is for the State Government to find out as to how such benefits were extended to others, if at all they were extended.

In view of the above discussion, we answer the questions rephrased/reframed by us as under:

(i) The Division Bench judgments in the cases of Shankatha Prasad Mishra (surpa); Hridayesh Dayal Srivastava (surpa); Mirtuyanjay Prasad Singh (surpa); Keshav Ram Pandey (supra) and State of U.P. and others versus Amar Pal Singh do not lay down the law correctly on the question of counting of past services rendered by retrenched employees of ATL who have been subsequently absorbed in Government service, for the purposes of qualifying service for calculation of retiral dues payable by the State Government. They are not good law.

(ii) Retrenched employees of ATL such as the petitioner who got absorbed in the Government service subsequently as per the Rules known as Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991 are not entitled to count their previous services rendered by them under the erstwhile employer i.e., Auto Tractors Limited for computation of qualifying service for purposes of retirement benefits under the U.P. Retirement Benefits Rules 1961 and other ancillary rules and Government Orders in this regard as also the Government Order dated 11.1.1993 and in fact the Government Order dated 10.07.1998 as modified on 28.12.2001 is not applicable to such employees.

(iii) The Division Bench judgment in the case of Ram Shanker Gupta (supra) is in conflict with the earlier decisions by Coordinate Benches in the cases of Shankatha Prasad Mishra (surpa); Hridayesh Dayal Srivastava (surpa); Mirtuyanjay Prasad Singh (surpa); Keshav Ram Pandey (supra) and State of U.P. and others versus Amar Pal Singh. It is the decision in Ram Shanker Gupta (supra) which lays down the law correctly and for the reasons already discussed, the other decisions do not lay down the law correctly on the subject with regard to question no. (ii).

Reference is answered accordingly.

Ordinarily after answering the questions before us, we remit the matter back to the writ Court, but, it would be a futile exercise in the facts of this case, as nothing survives for further adjudication by the writ Court. The very basis of the claim of petitioner having been found to be non-existent on facts as also in law, we do not see as to why we should send the matter back to the writ Court for passing final orders. In our view, as all the issues have already been decided by us, we dismiss the writ petition.

[Manish Mathur, J.] [Abdul Moin, J.] [Rajan Roy, J.]

Order Date :- 18.05.2023

Santosh/-