Allahabad High Court
Waheed Ahmad Siddiqui vs State Of U.P. And 8 Others on 6 December, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 39 Case :- WRIT - A No. - 19158 of 2019 Petitioner :- Waheed Ahmad Siddiqui Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Ram Chandra Srivastava,Manoj Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner claims to have been appointed as Cooperative Supervisor in 1978 by Provincial Cooperative Union. He was granted adhoc promotion for a period of 89 days on 15.2.1989 on the post of Cooperative Inspector Grade-II. Such adhoc promotion was extended from time to time and ultimately the petitioner has retired on 30th September, 2012. Pension was sanctioned to petitioner and he continued to receive it for a period of four years one month. It is thereafter that his pension has been discontinued on the ground that petitioner was not eligible for receiving pension under the appropriate rules. The order in that regard was challenged before this Court in Writ Petition No. 59107 of 2016, which has been allowed on 8.8.2019, after quashing the previous order dated 22nd November, 2016 and the authority concerned was directed to re-examine the matter. It is pursuant to this order that the District Magistrate has passed the order impugned dated 22nd October, 2019. This order records that services of the petitioner have never been regularized and he has not acquired any right to receive pension only because he continued in an officiating arrangement to work as Cooperative Inspector and that such relief is not admissible to him. This order is, therefore, assailed in the present writ petition.
2. A supplementary affidavit has been filed wherein Subordinate Co-operative Service Rules, 1979 been annexed as Annexure 1. The rule which regulates the appointment on the post of Inspector Grade-I and Grade-II is Rule 5 & 6. Rule 5 contemplates appointment of Inspector Grade-II to be made by direct recruitment through Public Service Commission to the extent of 66 per cent whereas remaining vacancy is required to be filled by promotion through Commission from amongst permanent Inspector Grade III, Cooperative Supervisors and Village Level Workers, who have passed Intermediate Examination. Rules 5 & 6 would be relevant for the present purposes and are reproduced hereinafter:-
"5. Source of recruitment. - Subject to the provisions of Rule 6, recruitment to the various categories of posts in the service shall be made from the following sources.
Inspector, Group I
(a) by direct recruitment through the Commission;
(b) by promotion through the Commission from amongst Inspectors, Group II, who have put in at least five years service as such.
Inspector, Group II
(a) by direct recruitment through the Commission;
(b) by promotion through the Commission from amonst permanent Inspector Group III and such permanent Co-operative Supervisors and Village Level Workders who have passed Intermediate Examination of the Board of High School and Intermediate Education or an examination declared by the Governor as equivalent thereto or who are covered by G.O. No. 3984/XXXV-A-129.NES-58, dated June 14/15, 1961 :
Provided that the Gram Sewaks who have passed High Schools examination and have put in at least five years continuous service and have been considered suitable for promotion on such post by the District and Zonal Selection Committees, constituted in accordance with the instructions contained in G.O. No. 10768/XXXVIII-A-961-64, dated December 14, 1964 shall also be eligible for promotion.
6. Proportion of recruitment from each source. - (1) Recruitment to the post of Inspector, Group I shall ordinarily be so arranged that, out of the total strength of the cadre at any time, 50 percent posts are held by direct recruits and 50 per cent by promotees.
(2) Recruitment to the posts of Inspectors, Group II shall ordinarily be so arranged that out of the total number of posts in the cadre at any time. 66 per cent posts are held by direct recruits and 34 per cent posts are held by promotees :
Provided that the promotion quota as between Village Level Workers on the one hand and Inspectors, Group III and Co-operative Supervisors taken together, on the other will be in accordance with their relative strength of Village Level Workers on the one hand and Inspectors, Group III and Co-operative Supervisors, taken together, on 1st April of the year:
Provided further that promotion quota as between Inspectors, Group III and Co-operative Supervisors shall be in proportion to their relative strength on 1st April of the year."
3. The petitioner has placed reliance upon the Uttar Pradesh Regularization of Ad-hoc Promotions (On Posts Within The Purview of Public Service Commission) Rules, 1988, which have been notified under the proviso to Article 309 of the Constitution of India on 3rd November, 1988. Amended rule 4 provides for regularisation of adhoc promotions and is reproduced hereinafter:-
"4. Regularisation of ad hoc promotion.-(1) Any person who-
(i) was appointed by promotion on ad hoc basis before June 30, 1998 and is continuing in service either on the post on which he was so promoted or on an equivalent or higher post on the date of the commencement of the first Amendment Rules, 2001 (20-12-2001);
(ii) was eligible for regular promotion on the date of ad hoc promotion; and
(iii) has completed or, as the case may be, after he has completed three years service on the post or posts referred to in Clause (1); shall be considered for regular appointment by promotion in permanent or temporary vacancy as may be available on the basis of record and suitability before any regular appointment by promotion is made in such vacancy in accordance with the relevant service rules or orders.
(2) In making regular appointment under these rules, reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories, shall be made in accordance with the order of the Government in force at the time of consideration under sub-rule (1).
(3) For the purpose of sub-rule (1), the appointing authority shall constitute a Selection Committee:
Provided that where constitution of Selection Committee is provided for in any rules or orders, relating to the relevant post or service, the Constitution of the Committee for the purpose of these rules shall, as far as possible, be as provided in such rules or orders but nothing herein contained shall be construed to means inclusion of the representative of the Commission in such Committee.
(4) The Appointing Authority shall, having regard to the provision of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority on the post from which promotion was made, and place it before the Selection Committee along with the character rolls, including the confidential entries given after ad hoc promotion, and such other records as may be considered necessary to assess their suitability.
(5) The Selection Committee shall consider the cases of candidates on the basis of their records, referred to in sub-rule (4).
(6) The Selection Committee shall prepare a select list of candidates, arranged in the same order of seniority as is referred to in sub-rule (4) and forward it to the appointing authority.
(7) Where in respect of any person, who is eligible for being considered for regularisation under these rules, a formal departmental enquiry is pending or there is an order of the Court on account of which or for any other reason it is not possible to make regular appointment by promotion of such a person, Selection Committee shall place its recommendation in a sealed cover and shall mention this fact against the name of the concerned person in the list prepared under sub-rule (6)."
4. Attention of the Court has been invited to orders passed by the Registrar, whereby similarly placed Co-operative Supervisors of PCU have been granted promotion to the post of Cooperative Inspector Grade - II by relying upon the regularization rules in question.
5. Learned counsel for the petitioner submits that claim of the petitioner for being regularized on the post of Co-operative Inspector Grade - II was required to be considered in accordance with the Rules of 1988, which exercise has not been undertaken. It is stated that petitioner otherwise fulfills requisite qualification and has completed more than ten years adhoc working on the promotional post by the time regularization rules have been amended on 20th December, 2001. It is stated that in case petitioner's claim was considered with reference to the aforesaid rules, his services were liable to have been regularized and the contrary view would be impermissible. It is also stated that petitioner has throughout been treated as Co-operative Inspector Grade II and various orders have been issued acknowledging such facts. Submission is that the claim of other persons have been considered for regularization, but petitioner's claim has been ignored.
6. Sri Satyam Singh, learned Standing Counsel on the other hand has invited attention of the Court to a communication sent by the Commissioner, dated 18th October, 2019, address to the District Magistrate, Fatehpur, which records that in the gradation list the petitioner was placed much below and persons uptil serial no. 266 out of 842 workers alone could be regularized, earlier. This letter also records that petitioner is not entitled to pension and other service benefits.
7. Heard learned counsel for the parties and perused the materials on record.
8. Although the letter dated 18th October, 2019, address to District Magistrate, Fatehpur, refers to certain exercise allegedly undertaken for promotion, but the details in respect of petitioner is clearly lacking. It has not been specified as to at which number the petitioner stood in the gradation list and whether any person below the petitioner has been regularized or not. This communication otherwise is from one officer to another and cannot be treated to be an order determining petitioner's right with reference to the applicable rules. Records otherwise reveal that petitioner had been allowed to continue as Cooperative Inspector Grade II by the department and his engagement was extended, though by granting artificial breaks.
9. Upon a writ petition filed by the petitioner alongwith other persons, this Court on 10th January, 1991, had clarified that such artificial breaks will not effect the service prospects of the petitioner. The order of this Court dated 10th January, 1991 is on record as Annexure 5. It is otherwise not in issue that petitioner has continuously been allowed to work as Cooperative Inspector, ever since 1989 with minor artificial breaks, which are liable to be ignored under the orders of this Court. The claim of the petitioner for being regularized in accordance with the applicable provisions apparently has not been bestowed consideration by the competent authority. The District Magistrate, therefore, would not be justified in declining grant of pension and other benefits to petitioner merely by observing that petitioner is not entitled to it, in terms of of Article 361 of Civil Service Regulations, because he has worked in an officiating arrangement. The order of the District Magistrate, Fatehpur, dated 22nd October, 2019, therefore, cannot be sustained and is quashed. The respondent no. 3 is directed to accord consideration to petitioner's claim for being regularized on the post of Cooperative Inspector Grade II, with reference to applicable rules as have been noticed above, within a period of three months from the date of presentation of certified copy of this order.
10. Based upon consideration of petitioner's claim, a fresh decision with regard to petitioner's entitlement to receive pension and other benefits would be taken keeping in view the provisions of U.P. Retirement Benefit Rules, 1961 by respondent no. 2. Such further consideration would be mde within a period of six weeks thereafter. While taking the decision petitioner's claim for release of arrears of pension shall also be attended to.
11. With the aforesaid observations and directions, this writ petition stands disposed of.
Order Date :- 6.12.2019 Ranjeet Sahu