Allahabad High Court
State Of U.P.Throu.Prin. Secy.Home ... vs Smt. Rana Ashok And Another on 31 October, 2019
Bench: Pankaj Kumar Jaiswal, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 / Reserved 1. Case :- SPECIAL APPEAL No. - 433 of 2018 Appellant :- State Of U.P.Throu.Prin. Secy.Home Govt.Of U.P.Lko.& Anr. Respondent :- Smt. Rana Ashok And Another Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Dubey With 2. Case :- SPECIAL APPEAL DEFECTIVE No. - 454 of 2018 Appellant :- State Of U.P.Throu.Prin.Secy.Deptt.Of Home Lko.& Another Respondent :- Smt. Nirmala Devi Shukla And Ors. Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Dubey With 3. Case :- SPECIAL APPEAL DEFECTIVE No. - 480 of 2018 Appellant :- State Of U.P.Throu.Prin.Secy.Deptt.Of Sectt.(Sachivalaya) Respondent :- Ragini Devi Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Dubey With 4. Case :- SPECIAL APPEAL DEFECTIVE No. - 481 of 2018 Appellant :- State Of U.P.Throu.Prin.Secy.Sectt.Adminis.Lko.And Another Respondent :- Salik Prasad And Another Counsel for Appellant :- C.S.C. Counsel for Respondent :- Vijay Kumar Bajpai With 5. Case :- SPECIAL APPEAL DEFECTIVE No. - 579 of 2018 Appellant :- State Of U.P.Throu.Prin.Secy.Deptt.Of Secretariat Lucknow Respondent :- Genda Prasad Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Dubey With 6. Case :- SPECIAL APPEAL DEFECTIVE No. - 626 of 2018 Appellant :- State Of U.P.Throu.Prin.Secy.Department Of Secretariat Lko. Respondent :- Pateshwari Prasad Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Dubey With 7. Case :- SPECIAL APPEAL DEFECTIVE No. - 627 of 2018 Appellant :- State Of U.P.Throu.Prin.Secy.Deptt.Secretariat Lucknow Respondent :- Devidutt Joshi Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Deubey With 8. Case :- SPECIAL APPEAL DEFECTIVE No. - 637 of 2018 Appellant :- State Of U.P.Throu.Prin.Secy. Deptt.Of Home Lko.And Ors. Respondent :- Lakhan Kishore Singh And Ors. Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Dubey With 9. Case :- SPECIAL APPEAL DEFECTIVE No. - 657 of 2018 Appellant :- Stat Of U.P.Throu.Prin.Secy./Secy.Gram Vikas Vibhag & Anr. Respondent :- Deo Nath Yadav Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Dubey With 10. Case :- SPECIAL APPEAL DEFECTIVE No. - 49 of 2019 Appellant :- State Of U.P.Throu.Prin.Secy.Deptt.Of Home Lucknow & Anr. Respondent :- Amar Deep Singh Sood Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Dubey,Shikhar Anand With 11. Case :- SPECIAL APPEAL DEFECTIVE No. - 61 of 2019 Appellant :- State Of U.P.Thru.Prin.Secy.Deptt.Of Home Lucknow And Ors. Respondent :- Vijay Bhandari Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sarvesh Kumar Dubey Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Rajnish Kumar,J.
1. Heard, Shri Pankaj Khare, learned Additional Chief Standing Counsel for the appellant and Shri Sarvesh Kumar Dubey, learned counsel for the respondents.
2. This bunch of special appeals have been filed against the judgment and order passed by the Single Judge in Writ Petitions filed by the respondents. The identical legal issue is involved in these special appeals as to whether the services rendered in a Government company i.e. UPTRON can be added for granting retiral benefits and pension or not. Therefore they are clubbed together and decided by a common order.
3. Special Appeal No.579 of 2018 has been filed against the judgment and order dated 24.08.2016 passed in Writ Petition No.6619 (S/S) of 2015 (Genda Prasad Vs. State of U.P and Others). Special Appeal No.433 of 2018 (State of U.P. 7 Another Vs. Smt. Rana Ashok & Another) has been filed against the judgment and order dated 08.01.2018 passed in Writ Petition No.241 (S/S) of 2018, granting benefit of the order dated 08.08.2017 passed in Writ Petition No.17013 (S/S) of 2017 (Ganga Sagar Singh Vs. State of U.P and Others) and order dated 30.07.2018 passed on the review application.
4. Special Appeal No.454 of 2018 has been filed against the judgment and order dated 11.01.2018 passed in Writ Petition No.798 (S/S) 2018 granting the benefit granted by order dated 05.11.2016 in Writ Petition No.26436 (S/S) of 2016 (Prem Narayaya Pandey Vs. State of U.P and Others) and the order dated 30.07.2018 passed on the review application. Special Appeal No.480 of 2018 has been filed against the judgment and order dated 05.10.2017 passed in Writ Petition No.23653 of 2017, granting the benefit of the order dated 08.08.2017 passed in the case of Ganga Sagar Singh (Supra) and order dated 09.08.2018 passed on the review application. Special Appeal No.481 of 2018 has been filed against the judgment and order dated 27.03.2018 passed in Writ Petition No. 8632 (S/S) of 2018, granting the benefit of order dated 09.01.2018 passed in Writ Petition N. 421 (S/S) of 2018 (Bhuvan Chandra Joshi & Another Vs. State of U.P and Other). Special Appeal No.626 of 2018 has been filed against the judgment and order dated 19.03.2018 passed in Writ Petition No.7812 of 2018, granting the benefit of order dated 09.01.2018 passed in the case of Bhuvan Chandra Joshi (supra) and order dated 14.08.2018 passed on the review application. Special Appeal No.627 of 2018 has been filed against the judgment and order dated 19.02.2018 passed in Writ Petition No.5033 (S/S) of 2018, granting the benefit of order passed in the case of Ganga Sagar Singh (supra) and the order dated 14.08.2018 passed on the review application.
5. Special Appeal No.637 of 2018 has been filed against the judgment and order dated 07.10.2017 passed in Writ Petition No.24613 (S/S) of 2016 granting the benefit of the order passed in the case of Ganga Sagar Singh (supra) and the order dated 20.11.2018 passed on review application. Special appeal No.657 of 2018 has been filed against the judgment and order dated 19.12.2017 passed in Writ Petition No.30871 (S/S) of 2017, granting the benefit of the order passed in the case of Ganga Sagar Singh (supra) and the order dated 20.11.2018 passed on the review application. Special Appeal No.61 of 2019 has been filed against the judgment and order dated 15.02.2018 passed in Writ Petition No.6045 (S/S) of 2017 granting the benefit of the order passed in the case of Ganga Sagar Singh (Supra). Special Appeal No.49 of 2019 has been filed against the judgment and order dated 04.12.2017 passed in Writ Petition No.29193 (S/S) of 2017, granting the benefit of the order passed in the case of Ganga Sagar Singh (supra) and the order dated 19.11.2018 passed on the review application.
6. The delay in Special Appeal No.433 of 2018 (State of U.P. 7 Another Vs. Smt. Rana Ashok & Another) and Special Appeal (D) No.454 of 2018 (State of U.P & Another Vs. Smt. Nirmala Devi Shukla & Others) has been condoned in view of the no objection given by the learned counsel for the respondent. Therefore looking to the facts and circumstances of the case and no objection given in the connected appeals, the delay is condoned in Special Appeal Defective Nos.579 of 2018, 480 of 2018, 481 of 2018, 626 of 2018, 627 of 2018, 637 of 2018, 657 of 2018, 61 of 2019 and 49 of 2019.
7. All the writ petitions have been disposed of relying on a judgment and order dated 24.08.2016 passed in Writ Petition No.6619 (S/S) of 2015 (Genda Prasad Vs. State of U.P. & Others) by which a direction has been issued to grant pension and other retiral benefits to the petitioners with gratuity and leave encashment in terms of the three Government Orders dated 28.05.2013, 28.07.2014 and 25.06.2015 which have been issued in respect of similarly placed person. Therefore, the judgment passed in the said writ petition is to be examined in these special Appeals, which has been challenged in Special Appeal No.579 of 2018. Therefore, facts of the said special appeals are mentioned for adjudication of these bunch of Special Appeals.
8. The State Government had issued a Government Order dated 11.11.1998 providing therein that the UPTRON India Limited, a subsidiary of the Electronics Corporation Limited, a U.P. Government undertaking is running in losses. Therefore a meeting was held under the Chairmanship of Chief Secretary on 11.12.1998 and a decision was taken for adjusting the employees of UPTRON India Limited on contract basis in various departments of the State Government. Thereafter, in furtherance of the Government Order dated 11.11.1998 by which it was provided that the surplus staff of the corporations / board and others autonomous bodies of the State Government may be absorbed on contract basis on fixed salary in various departments of the Government, a Government Order was issued prescribing the terms and conditions for engagement of the employees of the UPTRON India Limited. Accordingly, the respondent and other employees were engaged in different departments.
9. The respondent was initially appointed in the U.P. Electronics Corporation and was subsequently placed in UPTRON India Limited. In pursuance of the aforesaid decision of the Government the respondent was appointed on contract basis in Ambedkar Gram Vikas Vibhag (Samagra Gram Vikas Vibhag) vide order dated 23.02.2000. He was appointed as junior clerk.
10. The State Government, exercising the power under Article 309 of the Constitution of India, framed 'The Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011' (here-in-after referred as the Rules 2011) for absorption of surplus employees of the UPTRON India Limited in the Government services and notified the same on 20.12.2011. The relevant Rule 3 is extracted below:-
"3. (1) Notwithstanding anything to the contrary contained in any other service rules for the time being in force, the Government may, by notified order, require the absorption of surplus employees of UPTRON India Limited in any post or service under the Government except a post or service which is within the purview of the Uttar Pradesh Public Service Commission and may prescribe the procedure for such absorption including relaxation in various terms and conditions of recruitment in respect of such surplus employees.
(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)."
11. As per aforesaid Rule 3(1), the Government may by notified order require the absorption of the surplus employees of the UPTRON India Limited in any post or service under the Government except a post or service which is within the purview of U.P. Public Service Commission and may prescribe the procedure of service for such absorption including relaxation in various terms and conditions of recruitment in respect of such surplus employees.
12. Rule 3(2) provides that the provision 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 in sub-rule (1). On the same date i,e. 20.12.2011, the State Government issued a Government Order, whereby a decision was taken that all those employees of the UPTRON India Limited working in various departments of the State Government on contract basis and on body shopping basis shall be absorbed in those departments itself and it was further provided that these Government Orders and Rules 2011 shall also apply to the society and other instrumentalities of the State. It was also provided that the concerned departments would adopt the rules for absorbing the said employees treating them to be working in that department. Therefore in view of the Rules 2011 the Government had taken a decision to absorb such surplus employees of the UPTRON India Limited in the departments where they were working treating them working.
13. In view of above, the respondent should have been absorbed in the department where he was working but he was not absorbed. The respondent retired at the age of 58 years on 12.10.2012. The respondent preferred a Writ Petition No.318 (S/S) of 2013 (Genda Prasad Vs. State of U.P. and Others) which was finally disposed of by means of the order dated 30.10.2014 with the direction to the opposite parties to extend the benefit of the judgment and order dated 29.05.2014 passed in Writ Petition No.3316 (S/S) of 2013 which was affirmed by the judgment passed by a Division Bench of this Court in Special Appeal Defective No.430 of 2013. By the judgment and order dated 29.05.2014 the Writ Petition No.3316 (S/S) of 2013 and other connected writ petitions were disposed of with a direction to the State-respondent to treat the petitioners to have been absorbed employees of the Basic Education Department on a suitable post in terms of the notified order dated 20.12.2011 and they were allowed to continue till the age of sixty years with the salary. In compliance of the order dated 30.10.2014 the petitioner was treated to have been absorbed on the post of Junior Clerk with the Samagra Gram Vikas Cell and allowed salary and other allowances etc. till the age of sixty years by means of the orders dated 28.04.2015 and 06.05.2015.
14. The similar UPTRON employees, who were absorbed in the Department of Home and working in the U.P. Police Computer Cell, were granted all the post retiral benefits after calculating the services which was rendered in UPTRON India Limited also. The Government had issued a Government Order dated 25.06.2015 providing therein that the Assistant Programmers working on the post of Ex-cadre post created by the Government Order dated 09.11.2005 were allowed to count their earlier services rendered in UPTRON India Limited for the purposes of pensionary and retiral benefits. Therefore the petitioner preferred a representation on 27.07.2015 for granting him pensionary benefits after calculating his earlier services rendered in UPTRON India Limited but no decision was taken despite reminder. Therefore, the petitioner preferred another Writ Petition No.6619 (S/S) of 2015 which was disposed of by means of the judgment and order dated 24.08.2016 with directions to the 3rd respondent i.e Director Samagra Gram Vikas Vibhag, Lucknow for grant of pension and other retiral benefits to the petitioner including gratuity and leave encashment in terms of the three Government Orders dated 28.05.2013, 28.07.2014 and 25.06.2015 which have been issued in respect of similarly placed persons. The judgment of this court has been complied by means of the order dated 20 / 21.12.2016 with the rider that it shall not be treated a precedent for any other case. However, the judgment passed by the single judge has been challenged in the present Special Appeal.
15. Submission of learned Additional Chief Standing Counsel is that the counter affidavit of the appellant has not been considered by the single judge. He further contended that as per Rule 8(3) of the U.P. Retiral Benefits Rules, 1961, qualifying services for the purposes of pension would be as per Article 368 of Civil Service Regulations. The Article 368 of the Civil Service Regulations provides that service does not qualify unless officer holds the substantive office on the permanent establishment and the respondent was not appointed against any substantive post in the Government therefore he is not entitled for pensionary benefits under the said Rules.
16. He further submitted that the Government issued an order in the year 1998 for absorbing the employees of UPTRON in different departments on contract and body shopping on the emoluments as per the norms of UPTRON. In pursuance thereof surplus employees of the UPTRON were appointed in different departments on contact or body shopping basis. The total salary of the employees, as per norms of the UPTRON, was being deposited in UPTRON, who used to disburse up to 2011. After coming into force of the 'The Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules-2011' (here-in-after referre as Rules of 2011). The surplus employees of the UPTRON were to be absorbed in the department where they were working and their services were to be governed by the rules of that department. There are about 800 such employees. Shri Brahmanand Lavania and Shri Sharad Mehrotra, surplus employees of the UPTRON, had filed writ petitions before this Court and in compliance order passed by this Court they were absorbed with the consent of Government on their respective posts.
17. Thereafter a writ petition was filed by Shri Genda Prasad, in which a detailed counter affidavit was filed denying the averments and stating that the petitioner is not entitled for retiral benefits in view of the U.P. Retiral Benefits Rule, 1961 and Rule 368 of Civil Service Regulation alongwith other pleas. But without considering the counter affidavit filed by the appellant the writ petition was disposed of with direction to grant pension and retiral benefits to the petitioner including gratuity and leave encashment in terms of the three Government Orders dated 28.05.2013, 28.07.2014 and 25.06.2015, while the same are not applicable on case of the petitioner respondents.
18. So far as the order passed in Writ Petition No.1691 (S/B) of 2012; State of U.P Vs. Jai Prakash Gupta is concerned, the same is on different set of service rules which is not applicable on the facts and circumstances of the case of the respondents, therefore no parity can be granted with the said judgment.
19. He further submitted in the case of Shri Brahmanand Lavania and Shri Sharad Mehrotra an office memorandum dated 15.03.2017 was issued providing therein that he would be paid the remaining gratuity and leave encashment counting his service on the basis of retirement at the age of 60 years by the Rajya Pariyojna, Nideshak, Uttar Pradesh and if inadvertently his earlier services have been counted, the respondents are not entitled for the said benefit.
20. Relying on a Division Bench judgment of this Court, in the case of Pooran Singh Manral & Another Vs. State of U.P and 3 Others; 2017 (3) ADJ 706, learned counsel for the appellant submitted that the respondents are not entitled for counting of their services rendered in the UPTRON in view of Rules of 1961 per Civil Services Regulation.
21. In regard to the case of Smt. Rana Ashok, learned counsel for the appellant submitted that she was absorbed in the Human Rights Commission and if any decision has been taken by the Human Rights Commission that is not binding on the Government and it was not impleaded therefore no order could have been passed in her favour.
22. Lastly, learned counsel for the appellant submitted that the respondents were entitled for CPF in UPTRON and since they have been absorbed after 2011, after coming into force of the New Pension Scheme, therefore also they are not entitled for the pension and other pensionary benefits and in fact the respondents are claiming three benefits i.e C.P.F., N.P.S. and Pension which is not permissible.
23. On the basis of above, learned counsel for the appellant submitted that the writ petitions have been disposed of without considering the counter affidavit filed by the appellant with the consent of learned Standing Counsel without any instructions from the Government. Therefore the same are not binding on the Government as no consent can be given without instructions of the Government. Therefore, the impugned judgment and order passed by the Hon'ble Single Judge is liable to be set-aside and appeal is liable to be allowed.
24. Per contra, learned counsel for the respondent submitted that complete record has not been annexed. The Single Judge has rightly considered and disposed of the writ petition with a direction to grant pension and other retiral benefits to the petitioners i.e. the respondents including gratuity and leave encashment. In compliance thereof the appellant had considered and granted the benefit. He further submitted that the Government had issued the 'The Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rule-2011' by means of the Government Order dated 20.12.2011 providing in Rule 3(1) that the Government may by notified order require the absorption of surplus employees of UPTRON India Limited on any post or service under the Government and may prescribe the procedure for such absorption including relaxation in various terms and conditions of absorption in respect of such surplus employees. On the same date the Government had notified a Government Order dated 20.12.2011, by which it was provided that the employees would be absorbed treating them to be working in the same department and as per prescription made in Rule 3(2) of the Rules 2011. It was also provided that 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 and the relevant service rules shall be deemed to have been modified to the extent of their inconsistency with the provisions made in the notified order. Therefore in case of any inconsistency the said notified order would prevail and the respondents would be deemed to have been absorbed treating them to have been working in the department where they were working. Therefore once the respondent was absorbed on the post on which he was working the contention of the appellant that he was not working against any substantive post is misconceived. As such in view of aforesaid provision the respondent has been absorbed as a continuous employee of their departments. Therefore, the respondents are entitled for pension in view of Rule 3(A) of the Retiral Benefit Rules, 1961.
25. He further submitted that Shri Brahmanand Lavania and Shri Sharad Mehrotra have been granted retiral benefits treating them to have been retired at the age of 60 years. The appellant has admitted in paragraph-17 of the counter affidavit filed in the case of Brahmanand Lavania Another Vs. State of U.P and Others; Writ Petition No.3316 (S/S) of 2013, disclosing therein the entitlements of the said writ-petitioners which indicates the gratuity and leave encashment after counting the services rendered in UPTRON India Limited.
26. He further submitted that in the case of Smt. Rana Ashok, the benefits were granted to the respondent after a meeting of the full commission as on 14.08.2015 and a decision for counting their past services rendered in UPTRON India Limited. He further submitted that the Government had taken a decision in a meeting under the Chairmanship of Principal Secretary Home, Government of U.P on 07.06.2017 that the departmental officers would themselves do monitoring in regard to the sanction of the pension etc. in accordance with the absorbed employees of UPTRON in Uttar Pradesh Police Technical Services and Police Department. Therefore, the Government had taken a decision for counting of earlier services rendered in UPTRON.
27. He also submitted that the Government Order dated 25.06.2015 passed by the Government, granting permission for counting the services of UPTRON India Limited for the purpose of pensionary and retiral benefits to the employees appointed as Assistant Programmers on the Ex-cadre post in the U.P Police Computer Center, was recalled by means of the order dated 19.04.2018 passed by the Secretary, Government of U.P. But the same has been stayed by this Court in Writ Petition No.16926 (S/S) of 2018; Shrawan Kumar Pandey and Others Vs. State of U.P and Others. Similarly, in compliance of the order passed by this Court in view of judgment passed in the case of Genda Prasad Vs. State of U.P. in Writ Petition No.6619(S/S) of 2015, Shri Prem Narayana Pandey has been granted the retiral benefits including the pension.
28. On the basis of above, learned counsel for the respondents submitted that the special appeals have been filed on misconceived and baseless grounds and are liable to be dismissed with cost.
29. We have considered the submissions of learned counsel for the parties and perused the record.
30. The facts are not in dispute to the effect that the respondent in these special appeals were initially appointed in UPTRON India Limited, a subsidiary of the Electronics Corporation Limited, U.P., a Government undertaking. The UPTRON India Limited was running into losses. Therefore the Government had taken a decision, by means of the Government Order dated 11.12.1998, for adjusting the surplus employees of the UPTRON India Limited on contract basis in various departments of the State Government. In pursuance of the decision of the Government dated 11.11.1998, for absorbing the surplus staff of the Corporations / Board and other autonomous body of the State Government on contract basis on fixed salary in various departments of the Government, a notified order was issued on 11.12.1998. The respondent in special appeal no.579 of 2018 has been absorbed in pursuance of the judgment and order dated 30.10.2014 passed in Writ Petition No. 318 (S/S) of 2013.
31. Subsequently, the similar UPTRON employees absorbed in the department of Home and working in the U.P Police Computer Center were granted all the post retiral benefits after calculating the services which were rendered in UPTRON India Limited and the Government Order dated 25.06.2015 was issued providing therein that the Assistant Programmers working on the post of ex-cadre post treated by the Government order dated 09.11.2005 were allowed to count their services rendered in UPTRON India Limited for the purposes of pensionary and retiral benefits. Therefore, respondent preferred a representation for granting him pensionary benefits after calculating the regular services rendered in UPTRON India Limited but no decision was taken. Therefore the Writ Petition No. 6619 (S/S) of 2015 was filed. The writ petition has been disposed of with a direction to grant pension and retiral benefits in terms of the three Government Order dated 28.05.2013, 28.07.2014 and 25.06.2015 and considering the judgment and order of this Court dated 03.12.2013 passed in State of U.P and Others Vs. Jai Prakash Gupta and Others; (S/B) 1691 of 2012.
32. The Government Order dated 28.05.2013 has been issued in compliance of the order dated 05.03.2013 passed in Writ Petition No.4556 (S/S) of 2012; Brahmanand Lavania Vs. State of U.P and Others and Writ Petition No.5600 (S/S) of 2012; Sharad Malhotra Vs. State of U.P and Others, treating them to have worked till the age of 60 years and granting them the retiral benefits after completing 60 years of service. The respondent has brought on record a counter affidavit filed in Writ Petition No.3316 (S/S) of 2013 filed by Shri Brahmanand Lavania and Shri Sharad Malhotra in which it has been disclosed in paragraph-17 that their gratuity has been calculated after counting their services including UPTRON India Limited. In this regard, learned counsel for the appellant had submitted that it was inadvertently mentioned. However the said Government Order does not disclose that the pensionary benefits have been granted to the said employees after counting their service rendered in UPTRON India Limited.
33. The Government Order dated 28.07.2014 has been issued in compliance of the order dated 29.03.2012 passed by the State Public Services Tribunal in Claim Petition No.222 of 2012; Jai Prakash Gupta Vs. State of U.P. and Others providing therein that the services rendered by Jai Prakash Gupta in UPTRON India Limited would be counted in accordance with law for providing the pensionary and retiral benefits. The judgment passed by learned tribunal in Claim Petition No.222 of 2012 was challenged before this Court in Writ Petition No.1691 (S/B) of 2012; State of U.P and Others Vs. Jai Prakash Gupta and Others and considering the pleadings of the parties and the relevant rules this Court held that it is not a case where, prayer has been made for counting the past services rendered in UPTRON India Limited rather it is a case of benefit of Government Order which has been extended to similarly situated persons. Shri Jai Prakash Gupta, a confirmed employee of UPTRON India Limited ( a Government company ) had appeared in written test conducted on 08.03.1998 by the U.P. Police Computer Center, Lucknow for appointment of computer trained persons on deputation. He had appeared for the post of Head Constable and equivalent post and had successfully qualified. He was appointed in accordance with the Government Order.
34. Subsequently, the Uttar Pradesh Police Computer Staff (Non-Gazetted) Service Rules, 2002 were notified on 31.12.2002 providing in Rule 3 H and K about the members of the service and substantive appointment which included in accordance with the procedure prescribed for the time being by executive instructions issued by the Government. Rule 19 of the said rules deals with the appointment by absorption. Thereafter on the basis of his option the respondents in the said writ petition were absorbed in view of the Government letter dated 25.11.2005 written by the Deputy Director U.P. Police Computer Center alongwith others and he was relieved by UPTRON India Limited to join in the department. The respondents were discriminated though they were performing the same duty and same work therefore they filed the claim petition which was allowed. In compliance thereof the aforesaid Government Order was issued. Subsequently, the Government had issued a Government Order dated 25.06.2015 and allowed to count the earlier services rendered in UPTRON India Limited for the purpose of pensionary and retiral benefits in view of the Government Order dated 09.11.2005. Therefore, it is apparent that the respondents in the said writ-petition were appointed after due selection on deputation and thereafter absorbed in accordance with the rules. Therefore the respondents herein does not seem to be similarly situated.
35. In view of above, the said Government Orders and judgment passed by this Court may not be applicable in the case of respondents because the employees in the said case were appointed in the U.P Police Computer Center on the ex-cadre post on deputation after due selection under the Government Order dated 09.11.2005 and they have been absorbed in accordance with the Government Order and Rule of the said department. The respondent has also brought on record a Government order dated 09.04.2018 by means of which the Government Order dated 25.06.2015 has been withdrawn which has been stayed by this Court in Writ Petition No.16926 (S/S) of 2018; Shrawan Kumar Pandey and Others Vs. State of U.P and Others.
36. The appellant had filed a counter affidavit in the writ petition taking various pleas including that under the U.P. Retirement Benefit Rules, 1961 (here-in-after referred as Rules of 1961) and Civil Services Regulations there is no provision for including services rendered in the UPTRON India Limited for grant of retired benefits and pension.
37. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Uttar Pradesh made the Rules known as "U.P. Retirement Benefit Rules 1961 (herein referred as ''Rules of 1961')". The said Rules 1961 regulate the post retirement matters pertaining to all officers and employees under the rule making power of the Governor.
38. Rule 2(2) of the Rules of 1961 mentions that the pension provisions contained in Civil Services Regulations shall continue to apply to the officers governed by these Rules, except insofar as they are inconsistent with any of the provisions of these Rules.
39. The term "qualifying service" has been defined in Rule 3(8). It would mean ''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 (1) 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.' A 'Note' to the said provision says '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.'
40. The term "retirement" has been defined in Rule 3(9) to mean 'discharge of an officer from government service on superannuation, retiring, invalid or compensation pension or gratuity'.
41. It is apparent from the aforesaid provisions that it is the service under the government of U.P. which is to be considered for calculating the 'qualifying service'. Rule 3(8) refers to continuous temporary or officiating service under the Government of Uttar Pradesh ....." It is all the more evident when the relevant provisions of the Civil Services Regulations which are not inconsistent with Rules 1961 are also considered.
42. Article 361 of Civil Service Regulation provides that the service of an officer does not qualify for pension unless it confirms to the three conditions namely service must be under the Government, the employment must be substantive appointment and the service must be paid by the Government. Article 368 provides that service does not qualify unless officer holds substantive office on permanent establishment. But the plea of the appellant regarding non-entitlement of counting of the earlier services rendered in UPTRON India Limited has not been considered.
43. Regulation 362 states that 'the service of an officer does not qualify unless he is appointed and his dues and pay are regulated by the Government, or under conditions determined by the Government. Regulation 370 is para-materia with the proviso of Rule 3(8) of the Rules of 1961.
44. This Court in the case of Pooran Singh Manral & Another Vs. State of U.P and 3 Others, Writ-A No.49126 2016 has held that Rules 1961 and CSR makes it very clear that the services rendered in non-Government establishment would not qualify for pension.
45. In view of above, we are of the view that it is to be considered as to whether the respondents are entitled for retiral benefits and the pension after counting the past services rendered in UPTRON India Limited or not in accordance with law before granting any such relief which has not been considered by Hon'ble Single Judge. In some of the cases the order has been passed with the consent of learned Standing Counsel while no such causes could have been given without instruction from the Government and case of the appellants is that no such instruction was given.
46. In view of above and looking to the overall facts and circumstances of the case, the impugned orders challenged in these special appeals and passed in Writ Petition No.6619 (S/S) of 2015, W.P. No.241 (S/S) of 2018, W.P. No.798 (S/S) of 2018, W.P. No.23653 (S/S) of 2017, W.P. No.8632 (S/S) of 2018, W.P. No.7812 (S/S) of 2018, W.P. No.5033 (S/S) of 2018, W.P. No.24613 (S/S) of 2016, W.P. No.30871 (S/S) of 2017, W.P. No.6045 (S/S) of 2017 and W.P. No.29193 (S/S) of 2017 are hereby set-aside and the matter is remitted to the Hon'ble Single Judge for deciding a fresh.
47. With the aforesaid, the Special Appeal (D) No.579 of 2018, Special Appeal No.433 of 2018, Special Appeal (D) No.454 of 2018, Special Appeal (D) No.480 of 2018, Special Appeal (D) No.481 of 2018, Special Appeal (D) No.626 of 2018, Special Appeal (D) No.627 of 2018, Special Appeal (D) No.637 of 2018, Special Appeal (D) No.657 of 2018, Special Appeal (D) No.61 of 2019 and Special Appeal (D) No.49 of 2019 are, accordingly, allowed. Cost easy.
(Rajnish Kumar,J.) (Pankaj Kumar Jaiswal,J.) Order Date :- 31.10.2019 Haseen U.