Allahabad High Court
State Of ... vs Rajendra Singh on 20 August, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:48620-DB
Reserved
Chief Justice's Court
Case :- SPECIAL APPEAL No. - 416 of 2023
Appellant :- State of U.P. through Prin. Secy. Dept. of Agriculture Lko. and ors.
Respondent :- Rajendra Singh
Counsel for Appellant :- Nagendra Kumar Dwivedi, A.C.S.C.
Counsel for Respondent :- Rama Shanker Dwivedi, Km. Neelam Singh
Hon'ble Arun Bhansali,Chief Justice
Hon'ble Jaspreet Singh,J.
(Per: Arun Bhansali, CJ)
1. This appeal is directed against order dated 10.07.2019, passed by learned Single Judge in Writ Petition 7922 (S/S) of 2017, whereby the learned Single Judge, on coming to the conclusion that the issue raised in the writ petition was squarely covered by judgement in Kanta Prasad Kannaujiya Vs. State of U.P. and others, Writ A No. 58438 of 2015, decided on 12.12.2017, has allowed the writ petition in terms of the Judgement in the case of Kanta Prasad Kannaujiya (supra).
2. The writ petition was filed with the submissions that the respondent initially joined at Agra Mandal Vikas Nigam as accountant on 21.03.1978 and remained in service upto 24.01.2007; on 24.01.2007, he was absorbed in Agriculture Department as a retrenched employee of Agra Mandal Vikas Nigam; the services of the respondent in the Nigam as accountant were certified on 24.09.2008 and was allowed the benefit of pay protection whatever he was drawing in his previous service, prior to retrenchment on 12.03.2011; the respondent made a representation before the appellants seeking counting of his previous service rendered in the Nigam w.e.f. 23.01.1978 to 24.01.2007 for grant of service benefits.
3. When the said representation was not responded, the respondent preferred a writ petition being Writ A No. 50075 of 2012 at Allahabad, which was allowed on 03.10.2012 requiring the Principal Secretary to consider and decide the representation of the respondent. The representation was rejected on 29.01.2013 inter alia on the ground that the Government Order dated 11.11.1993 did not provide for any provision for counting of previous service rendered at the Nigam by the employee concerned. Against the order dated 29.01.2013, Writ Petition No. 4821 (S/S) of 2013 was filed, which was allowed on 13.08.2015 quashing the order dated 29.01.2013, again requiring the appellants to consider and decide the representation by way of speaking and reasoned order. The claim came to be rejected on 30.09.2015 again referring to the Government Order dated 11.11.1993. The respondent filed contempt petition, to which response was filed along with copy of order dated 30.09.2015. The contempt petition was dismissed on 04.12.2015. The respondent filed Writ Petition No. 2628 (S/S) of 2016 against order dated 30.09.2015. The said writ petition was again disposed of on 17.03.2016 requiring the appellants to consider the matter afresh strictly in accordance with order dated 13.08.2015, which claim was again rejected on 21.07.2016, feeling aggrieved, the writ petition was filed.
4. The learned Single Judge, as noticed herein before, noticed the facts regarding the absorption of the respondent consequent to his retrenchment from the Nigam and the history of filing various petitions claiming benefit of his previous service at the Nigam and repeated rejections by the appellants. Whereafter, the plea pertaining to the fact that the issue was covered by the judgement in the case of Kanta Prasad Kannaujiya (supra), the fact that SLP against the said judgement was dismissed by the Hon'ble Supreme Court, the pleas raised by the appellants regarding the previous service not being counted for the purpose of pensionary benefit and that the dismissal of SLP does not mean affirmation of the order of Division Bench by the Supreme Court were noticed. However, the learned Single Judge indicated that as similar issue was involved in the case of Kanta Prasad Kannaujiya (supra), allowed the petition, as noticed herein before.
5. Learned counsel for the appellants made submissions that the direction given by learned Single Judge based on order in the case of Kanta Prasad Kannaujiya (supra), cannot be sustained. It was submitted that the absorption of the respondent was based on Government Order dated 11.11.1993, which only provided that from the date of absorption, all the Rules like G.P.F., Leave and Pension etc., as applicable to State Government employees, would automatically apply to the absorbed employees, which did not mean and cannot have the effect of counting the past services at the Nigam for the purpose of pensionary benefits. It is further submitted that as the period of service rendered post absorption, does not qualify for pension, the plea raised had no substance.
6. It was submitted that the judgement in the case of Kanta Prasad Kannaujiya (supra), which judgement pertained to Allahabad Mandal Vikas Nigam Ltd. was solely based on the judgement in Kamlesh Kumar Vs. State of U.P. through Secretary Department of Minor Irrigation Lucknow, Writ Petition No. 6476 of 2013, which judgement pertained to employee of erstwhile Auto Tractors Ltd., Pratapgarh (A.T.L.) who were absorbed in Government service and the fact that another employee of Allahabad Mandal Vikas Nigam Ltd. was granted relief in Writ A No. 46080 of 2012 decided on 17.02.2017, which issue was referred to Larger Bench on account of conflicting opinions by different Division Bench and the Larger Bench in Anukul Prakash Vs. State of U.P. and Ors., Writ A No. 2001647 of 2015 decided on 18.05.2023, came to the conclusion that the absorbed employees were not entitled to counting of the past services rendered for the purpose of qualifying service for calculating the retiral dues payable by the State Government and, therefore, the judgement impugned deserves to be quashed and set aside.
7. It was submitted that Special Leave Petition filed against the order in the case of Anukul Prakash (supra) came to be dismissed by Hon'ble Supreme Court in S.L.P. (Civil) No. 41078 of 2023 on 17.10.2023.
8. Learned counsel for the respondent vehemently opposed the submissions.
9. It was submitted that the writ petition was allowed following the order in the case of Kanta Prasad Kannaujiya (supra), against which Special Leave Petition has been dismissed by Hon'ble Supreme Court. It was pointed out that another employee Pravin Kumar Tiwari also obtained the benefit of judgement in the case of Kanta Prasad Kannaujiya (supra), which was implemented by the appellants.
10. Further, reliance was placed on Finance Department Order dated 11.08.2008 to claim that decision for the purpose of counting the previous service has been taken pursuant to which the retrenched employee of Chal Chitra Nagam were granted the benefit. It was submitted that Larger Bench in the case of Anukul Prakash (supra) does not take into consideration the order passed in the case of Kanta Prasad Kannaujiya (supra) and, therefore, the same is of no consequence. It was submitted that once similarly placed employees have been granted benefit pursuant to the orders passed by this Court, the respondent cannot be denied the benefit in this regard. Reliance was placed on Lt. Col. Suprita Chandel Vs. Union of India and Ors.: 2024 SCC OnLine SC 3664
11. Based on the said submissions, it was submitted that the appeal deserves to be dismissed.
12. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.
13. It is not in dispute that the learned Single Judge followed the order in the case of Kanta Prasad Kannaujiya (supra) and did not deal with the plea raised by the appellants regarding contrary view taken in the case of Faujdar Singh Vs. State of U.P. through Prin. Secry. Deptt. of Sansthagat & Others, Writ Petition 7830 (S/S) of 2016 decided on 26.05.2016.
14. The Division Bench in the case of Kanta Prasad Kannaujiya (supra) while dealing with the case of an employee who was retrenched by the Allahabad Mandal Vikas Nigam Ltd. and was absorbed at Deen Dayal Upadhyay Rajya Gramya Vikas Sansthan, Lucknow relying on the judgement in Kamlesh Kumar (supra) by indicating it as Division Bench judgement, which was factually a judgement by learned Single Judge and the case of Kamlesh Kumar (supra) pertained to a retrenched employee of A.T.L., granted the relief.
15. On account of there being conflicting judgements pertaining to the counting of past services of those retrenched from A.T.L., the issue was referred to the Larger Bench in the following terms:
"(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?
(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."
16. The Full Bench, after referring to the U.P. Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991, (for short, 'the Rules of 1991'), Government Order dated 11.11.1993 which pertained to A.T.L. but is verbatim identical to the applicable Government Order pertaining to Agra Mandal Vikas Nigam Ltd. and other Vikas Mandals (Page 139 of the Special Appeal), the Government Order dated 10.07.1998 which was modified/amended by subsequent Government Order dated 28.12.2001, the fact that the Rules of 1991 were subsequently rescinded by the Retrenched Employees of Government or Public Corporations in Government Services (Rescission of Rules), 2003, inter alia came to the following conclusion:
"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.
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."
17. Further the answers to the questions raised supra were answered as under:
"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. "
18. From the above judgement of Larger Bench of this Court, it is apparent that absorbed employees were not entitled to get their previous services counted for the purpose of pensionary benefits.
19. The learned Single Judge has allowed the writ petition by following the Division Bench judgement in the case of Kanta Prasad Kannaujiya (supra). As noticed earlier, the said Division Bench judgement in the case of Kanta Prasad Kannaujiya (supra) follows the Single Bench judgement in the case of Kamlesh Kumar Vs. State of U.P. through Secy. Deptt. of Minor Irrigation Lko., Writ Petition No. 6476 (S/S) of 2013 decided on 22.04.2015.
20. A perusal of the order passed in the case of Kamlesh Kumar (supra) reveals that the same pertains to a retrenched employee of A.T.L. and learned Single Judge, inter alia, followed the Division Bench judgement of this Court in the case of Hridayesh Dayal Srivastava (surpa) and other Single Bench judgements following the judgement in the case of Hridayesh Dayal Srivastava (surpa).
21. Once, the Full Bench in the case of Anukul Prakash (supra) has categorically come to the conclusion that the employees of A.T.L. are not entitled to the said relief and the judgement in the case of Hridayesh Dayal Srivastava (surpa) has been specifically overruled, consequently, the Division Bench judgement in the case of Kanta Prasad Kannaujiya (supra), which follows the judgement in the case of Kamlesh Kumar (supra), being contrary to the law laid down by the Larger Bench, the order impugned passed in the present appeal, following the order in the case of Kanta Prasad Kannaujiya (supra), cannot be sustained.
22. Learned counsel for the respondent attempted to rely on a Government Order dated 11.08.2008 for the purpose of sustaining the plea, the said Government Order reads as under:
"समयमान वेतनमान की व्यवस्था के सम्बन्ध में निर्गत स्पष्टीकरण विषयक शासनादेश संख्या-वे०आ०-2-257/10-2004-45 (एम)/99 टी०सी० दिनांक 20 अगस्त, 2004 के संलग्नक के बिन्दु संख्या-5 में एक पद का आशय स्पष्ट करते हुए एक ही पदनाम अथवा समान वेतनमान वाले पद पर दो विभागों में की गयी सेवा को गणना में न लेने तथा एक ही विभाग के ऐसे पद जो एक संवर्ग के है और आपस में स्थानान्तरणीय हैं तथा वरिष्ठता सूची एक है को छोड़कर एक ही विभाग के समान वेतनमान में भिन्न-भिन्न पदों पर की गयी सेवा को गणना में न लिये जाने की व्यवस्था की गयी है। ऐसे मामलों में जहाँ किसी संवर्ग में समान वेतनमान के पद से पदोन्नति होती है अथवा समान वेतनमान के दो पदों को संविलीन किया जाता है, वहाँ सम्बन्धित पदधारक का वेतन निर्धारण पूर्व पद पर आहरित मूल वेतन के समान स्तर पर ही होता है तथा समयमान वेतनमान में पूर्व पद की सेवाएं न जोड़े जाने से उन्हे हानि होती है।
उपर्युक्त स्थिति पर समय्क विचारोपरान्त यह निर्णय लिया गया है कि समान वेतनमान के पद पर पदोन्नति/संविलीयन के फलस्वरूप सम्बन्धित पद धारक को नये धारित पद पर समयमान वेतनमान की अनुमन्यता हेतु सेवा अवधि की गणना में पूर्व पद की सेवाओं को जोड़ा जायेगा।
शासनादेश सं०-वे०आ०-2-257/10-2004-45 (एम)/99 टी०सी० दिनांक 20 अगस्त, 2004 के स्पष्टीकरण विषयक संलग्नक के बिन्दु सं०-5 को उक्त सीमा तक संशोधित समझा जाएगा। "
(emphasis supplied)
23. A perusal of above would reveal that the said Government Order pertained only to the pay scale on absorption and had nothing to do with the counting of the past services for the purpose of pension as the operative portion clearly indicates 'वेतनमान की अनुमन्यता हेतु सेवा अवधि की गणना में पूर्व पद की सेवाओं को जोड़ा जायेगा।'.
24. The said stipulation is already specifically contained in the Government Order dated 11.11.1993 providing for the absorption of employee of the Nigam in the State Government. The relevant part inter alia reads as under:
"6. मण्डलीय विकास निगमों की सेवा में कार्मिकों को आहरित अन्तिम वेतन को संरक्षण प्रदान किया जायेगा, जिसके विषय में वित्त विभाग की सहमति से प्रशासनिक विभाग द्वारा पृथक से आदेश जारी किये जायेगें।"
25. In view thereof, the plea raised, being contrary to the provisions of the Government Order, has no substance.
26. So far as the plea on the strength of judgement in the case of Lt. Col. Suprita Chandel (supra) is concerned, that as other similarly placed employees under the directions of the Court have been granted the benefit, the respondent cannot be deprived of the same, the said judgement has no application to the facts of the present case, wherein the relief was granted on the plea of parity, whereas in the present case the respondents-Authorities, from day one, have been rejecting the representations made by the respondent taking specific plea in this regard and as now the law has been laid down by the Larger Bench in the case of Anukul Prakash (supra), and in asking this Court to follow the Division Bench judgements, which stand overruled, the respondent is not justified in goading this Court to contravene the law as laid down.
27. In view of above discussion, the appeal deserves to be allowed, the same is, therefore, allowed. The order dated 10.07.2019 passed by learned Single Judge is quashed and set aside.
28. No order as to costs.
Order Date :- 20.08.2025
Sandeep
(Jaspreet Singh, J.) (Arun Bhansali, CJ)
