Allahabad High Court
Dr. Om Prakash Gupta And 11 Others vs State Of U.P. And 2 Others on 7 August, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 9826 of 2019 Petitioner :- Dr. Om Prakash Gupta And 11 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Raghwendra Prasad Mishra Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
Following orders were passed in the matter on 4.7.2019:-
"Petitioners' claim for inclusion of services rendered in ad-hoc capacity stands rejected by the order impugned dated 07th May, 2019 which is assailed in this petition.
It is contended on behalf of the petitioners that their initial engagement was in a pensionable establishment and they continued to work till their services got regularized in 1994 pursuant to the order passed by the Apex Court. It is submitted that Rule 3(8) of the U.P. Retirement Benefits Rules 1961 has not been examined nor the judgments on the issue have been dealt with whereby working on ad-hoc/temporary basis has also been directed to be counted towards qualifying services for pension.
Submission is that the State Government has failed to advert to the specific provision in law, as also the judgment of this Court in Dr. Amrendra Narain Srivastava Vs. State of U.P. in Writ Petition No. 61974 of 2011.
Learned Standing Counsel may obtain instructions in the matter.
Put up as fresh on 18th July, 2019."
Learned Standing Counsel has obtained instructions from the Director Homeopathy, dated 6.8.2019, wherein Rule 3(8) is quoted in the first page whereafter the provisions contained under Regulations 368, 369, 370 of the Civil Services Regulations have been reproduced. Certain opinion is also claimed to have been obtained from the Law Officers of the State and thereafter the decision taken is sought to be justified.
Apart from quoting Rule 3(8); in the first page of the instructions; the provision in that regard has not been referred to in any other part of the instructions. Rule 3(8) is a part of the statutory rules framed by the State i.e. U.P. Retirement Benefit Rules, 1961, which regulates the payment of pensionary benefits.
This Court in Dr. Ramakant Tiwari Vs. State of U.P. and others, Writ Petition No. 11630 of 2018, has examined the relevant statutory provisions as also relevant provisions of the Civil Services Regulations to observe as under:-
"4. It is not disputed that retirement of petitioner is governed by fundamental Rule 56 read with relevant provisions of Civil Services Regulation (hereinafter referred to as "C.S.R."). Every employee, whether permanent or temporary or ad-hoc is liable to retire on attaining age of superannuation as provided under fundamental Rule 56.
5. Under U.P. Retirement Benefit Rules, 1961 (hereinafter referred to as "Rules, 1961") "qualifying service" is defined in Rule 3(8). It means 'service' which qualifies for pension in accordance with provisions of Article 368 of C.S.R. Rule 3(8) is quoted as below:-
"Rule 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-changed 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 post paid form 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."
6. Regulation 368, C.S.R., provides that service does not qualify, unless officer holds a substantive office in a permanent establishment. Regulations 368 and 369 are quoted herein below:
"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.
369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was on actual duty on the first day on which the establishment was again re-employed."
7. It is not in dispute that petitioner was appointed on substantive post in permanent establishment which is/was pensionable. Nature of his appointment i.e. ad-hoc appointment is not of relevance in as much as period spent by him even on ad-hoc service was in permanent establishment, which ultimately resulted into regularization of petitioner without any break in service.
8. As aforesaid, vide Sub-rule 8 of Rule 3 of Rules 1961, qualifying service includes service which qualifies for pension in accordance with provision of Section 368 of C.S.R. In this view of the matter, services rendered by petitioner on ad-hoc basis followed by Regularization would stand covered under "qualifying service" defined under Rule 3(8) of Rules 1961, for the purpose of pension. In taking this view we are fortified by a Division Bench decision in State of U.P. and Others vs. Dr. Amrendra Narain Srivastava (Writ Petition No. 61974 of 2011) decided on 01.03.2012.
9. For what has been stated above, writ petition succeeds and is allowed. Impugned order dated 11.05.2015 is hereby set aside. Respondents are directed to count services of petitioner rendered on ad-hoc basis also as qualifying service for grant of retiral benefits including pension and pay the same expeditiously."
To similar effect is an order passed by this Court in the case of Muneshwer Dutt Mishra Vs. State of U.P. and others, Writ Petition No. 18117 of 2018. The consideration by the authorities of the State, vide order impugned, clearly fails to notice the statutory rule applicable in the facts of the present case. The observations of this Court in the case of Dr. Ramakant Tiwari (supra) has also not been taken note of. In such circumstances, the consideration at the level of the State Government is found to be unsustainable on account of it being in derogation of Rule 3(8) of the Rules of 1961 as also the directions of the Division Bench of this Court in the case of Dr. Ramakant Tiwari (supra). The order dated 7th May, 2019, therefore, cannot be sustained and stands quashed.The writ petition is allowed.
The matter stands remitted to the State Government for taking a fresh decision by specifically referring to the provisions of Rule 3(8) as also the directions of the Division Bench of this Court in case of Dr. Ramakant Tiwari (supra). Required consideration would be made within a period of three months from the date of presentation of a certified copy of this order.
Order Date :- 7.8.2019 Ranjeet Sahu