Allahabad High Court
Ayodhya Prasad Verma vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 2 March, 2023
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 5 Case :- WRIT - A No. - 1216 of 2023 Petitioner :- Ayodhya Prasad Verma Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Revenue Civil Sectt. Lko. And 3 Others Counsel for Petitioner :- Vimal Kishor Singh Counsel for Respondent :- C.S.C. Hon'ble Vivek Chaudhary,J.
(I.A. No.2 of 2023-Application for taking counter affidavit on record.) Counter affidavit filed is taken on record.
Order on petition:-
Heard learned counsel for the petitioner and learned Standing Counsel for the State.
Present writ petition is filed by the petitioner challenging the order dated 16.04.2022 whereby the respondents have denied the benefit of service rendered by petitioner as seasonal collection amin for the purposes of pension and other post retiral benefits.
The petitioner was appointed on the post of Seasonal Collection Amin on 23.08.1974 Petitioner was regularized in service on 01.08.1996. After attaining the age of superannuation, petitioner retired from services on 31.12.2012.
Learned counsel for the petitioner submits that though, petitioner is getting his pension, however, services rendered by him as Seasonal Collection Amin are not counted by respondent for the purposes of fixing pension and other retiral benefits.
Learned counsel for petitioner further submits that in case of ?Board of Revenue through its Chairman: The District Magistrate and Up-Zila Adhikari Vs. Prasidh Narain Upadhyay?, reported in ?2006 (5) WC 5194 (DB)?, the Division Bench repelled an argument that the respondent was a Seasonal Collection Amin, therefore, he was not entitled to pensionary benefits. The Court after noting the ingredients of 'qualifying service' defined in Section 1 Chapter XVI of Article 361 of the Civil Service Regulations held that the Conditions (B) of Article 361 of Civil Service Regulations is inconsistent with Fundamental Rule 56, and thus, is inoperative. The Court also observed that the continuous working of the respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea. Relevant paragraph nos.12, 13 & 16 of the judgment are being extracted here-in-below:-
"12. The term "qualifying service" is 'defined in Section 1 Chapter XVI of Article 361 of the Civil Service Regulations, which provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions:-
(A) The service must be under Government.
(B) The employment must be substantive and permanent.
(C) The service must be paid by government.
13. In the present case, so far as the condition Nos.A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B, i.e., lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P. Act, No.24 of 1975 which allows retirement of a temporary employees also and provides in Clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Conditions (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is inoperative.
16. Learned counsel for the appellants further submitted that since in the service book, the petitioner-respondent was also shown as Seasonal Collection Peon and, therefore, the mention of word "temporary" as his initial appointment will not make any difference. We do not agree. The contention of the appellants that the petitioner-respondent was a Seasonal Collection Peon and his engagement and post was extended from time to time by the Commissioner is totally unsubstantiated, as nothing has been brought on record to substantiate this plea. Even otherwise the continuous working of the petitioner-respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitioner-respondent following by rendering service for such a long service, cannot be brushed aside lightly."
Similar controversy has already been adjudicated by this Court by means of judgment and order dated 17.2.2023 passed in a bunch of writ petitions, leading one is Writ-A No.8968 of 2022, wherein issue relating to interpretation and application of Section 2 of the Act of 2021 for counting qualifying service for the purpose of pension with regard to seasonal collection amin/peon has been dealt with in detail by this Court. Relevant portion of the said judgment reads:
"21. Law regarding counting of the period of services rendered earlier as Seasonal Collection Peon/Collection Amin for calculation of post-retiral benefits is long settled by a large number of judgments. Suffice would be to refer to the judgment a Division Bench judgment of this Court in the case of Board of Revenue through its Chairman: The District Magistrate and UP-Zila Adhikari vs. Prasidh Narain Upadhyay, 2006 (5) AWC 5194 (DB). The said judgment is followed till date. Furthermore, Fundamental Rule 56 as it stood amended by the U.P. Amendment Act No. 24 of 1975 allows for retirement of a temporary employee and in clause (e) of the Fundamental Rule 56 it is provided that retiral benefits shall be made available to every employee who retires under this Rule. Even after the coming into force of the Act of 2021, since, their appointment is against a post, hence, they are squarely covered even by the original Section 2 of the Act of 2021. Further, in view of interpretation as given above to Section 2 of the Act of 2021 where it is held that the work on temporary or permanent post needs to be read as work taken from a person on a position, be it temporary or permanent, otherwise, it again would be hit by the judgment of the Supreme Court in case of Prem Singh (supra), thus, there can be no dispute that they are entitled for pension by counting in services rendered by them as non-regular employees.
22. In the aforesaid facts and circumstances of the case, all the orders impugned in the writ petitions are passed either on the ground that they are covered by the Ordinance/Act of 2021 or they were not party in case of Prem Singh (supra) or without considering the judgment of Prem Singh (supra) and hence, the same are squarely covered by the finding given above. Therefore, the impugned orders cannot stand and are set aside. However, petitioners shall be entitled to past pensionary benefits for last three years only.
23. All the writ petitions are allowed."
Since grievance of the petitioner in the present petition is similar to one which has already been adjudicated by this Court in the aforesaid case, the benefit of the aforesaid judgment and order dated 17.2.2023 shall also be made available to the present petitioner in the same terms.
Accordingly, the writ petition is allowed and order dated 16.04.2022 is set aside. However, subject to verification of dates given by petitioner by the department, petitioner shall be entitled to past pensionary benefits for last three years only.
Order Date :- 2.3.2023 Arti/-
[Vivek Chaudhary,J.]