Allahabad High Court
Jang Pal vs State Of U.P. And 3 Others on 16 May, 2022
Bench: Surya Prakash Kesarwani, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Court No. - 3 Case :- SPECIAL APPEAL No. - 240 of 2021 Appellant :- Jang Pal Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Ashok Kumar Srivastava,Ashok Kumar Mishra,Dharmendra Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Jayant Banerji,J.
1. The brief facts leading to filing of this intra-court special appeal arising out of the judgment dated 17.02.2021 passed in Writ-A No.895 of 2021, are as follows:-
(i) Writ petition, being Writ-A No.895 of 20211, was filed by the appellant-petitioner seeking a writ of mandamus for directing the respondents to pay the pension, gratuity and other allowances in favour of the petitioner from the date of appointment, i.e., 01.08.1990. It was contended in the writ petition that the appellant-petitioner was appointed on the post of Ward Boy (Class IV) by the respondent no.3, Chief Medical Officer, Labour Medical Services, Sasni Gate, District Aligarh on 01.08.1990. His services were terminated by the respondents and he challenged his termination by means of Writ Petition No.8350 of 19912 (Ashok Kumar & Ors. vs. State of U.P. & Ors.) in which an interim order was passed on 21.03.1991 permitting the petitioner to continue in service. By a judgment and order dated 12.03.2004, the aforesaid writ petition of 1991 was disposed of with certain directions. By an order dated 10.05.2010, the respondent no.2, pursuant to the aforesaid judgment dated 12.03.2004 passed by this Court, regularised the services of the petitioner on the post of Class IV (Ward Boy) with immediate effect.
(ii) The petitioner retired on 31.01.2020 and thereafter he applied for pension, gratuity and other retiral benefits before the respondent no.3. However, by a letter dated 03.11.2020 (Annexure-4 to the writ petition), the respondent no.4-Joint Director, Pension ESI, Office, Agra Region, Agra raised several objections.
By a separate letter dated 13.11.2020, the Medical Superintendent, E.S.I. Hospital sought guidance from the respondent no.2 with regard to one of the objections so raised.
(iii) Therefore, the writ petition of 2021 was filed by the petitioner-appellant with the following prayer:-
"Issue a writ, order or direction nature of mandamus commanding and directing the respondents to pay the pension and gratuity and other allowances in favour of the petitioner from the date of appointment dated 01.08.1990.
Issue any other writ order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case;"
(iv) It appears that in the aforesaid writ petition, written instructions were produced by the learned Standing Counsel before the Court and, thereafter, by means of the judgment dated 17.02.2021, the writ petition was dismissed with the following observation:-
"It, thus, appears that after the decision3 of this Court, the petitioner herein was adjusted on the vacant post and his service was regularized by an order dated 10.05.2010 after assessment of his service record, eligibility and qualification for the post of Ward boy. It is, thus, evident that the petitioner had continued in service after the year 1991 till 2004 on account of the interim order obtained from this Court and later on adjusted against the vacancy on class IV and regularized on that post against the vacancy which arose at a later point of time. In any case, the appointment of the petitioner was not against the post in question by adhering to the rules or procedure for such appointment. The service rendered by the petitioner prior to his regularization therefore, cannot be treated as ad-hoc services for computation towards 'qualifying services' for grant of retiral benefits.
There is no merit in the prayer made in the writ petition. The writ petition is found devoid of merits and hence dismissed."
(v) Against the aforesaid judgment dated 17.02.2021, this intra-court special appeal has been filed.
2. The submissions of the learned counsel for the appellant-petitioner are as under :-
(i) The appellant-petitioner has rendered his services since 01.08.1990 and remained in continuous service on a substantive post till the date of his superannuation i.e. 31.01.2020. Thus, it cannot be said that the appellant-petitioner has not completed 10 years of qualifying service;
(ii) In view of the law laid down by the Supreme Court in the case of Prem Singh vs. State of U.P. & Ors.4 the services rendered by the appellant-petitioner since his appointment till the date of his regularisation, are liable to be counted for computation of qualifying period of service for pension;
(iii) The U.P. Act No.1 of 2021 enacted with retrospective effect from 01.04.1961 also does not come in the way of computation of period of qualifying service of the appellant-petitioner rendered since the year 1990 till the year 2010, inasmuch as the appellant-petitioner was appointed against a permanent post and his appointment was as per the Service Rules. The controversy involved in writ petition of 1991 was not with respect to the appointment as per Service Rules, rather the controversy was with regard to the appointment on posts which were earmarked for surplus employees; and
(iv) The appellant-petitioner was continued in service in terms of clause (d) of the operative portion of the judgment and order dated 12.03.2004 in writ petition of 1991 and his services were ultimately regularised in the year 2010. Thus, the period of service rendered by the appellant-petitioner cannot be refused to be counted for computation of qualifying period of service for pension.
In support of his contentions, the learned counsel has relied upon the some judgments/orders of the Supreme Court as well as this Court, which are as follows :-
(i) Dr. G. Sadasivan Nair vs. Cochin University of Science and Technology represented by its Registrar & Ors.5;
(ii) The State of Gujarat & Ors. vs. Talsibhai Dhanjibhai Patel6;
(iii) Board of Revenue & Ors. vs. Prasidh Narain Upadhyay7; and
(iv) Dr. Hari Shanker Asopa vs. State of U.P. & Ors.8
3. Learned Additional Chief Standing Counsel, on the other hand, submitted as under:-
(i) Since the appointment of the appellant-petitioner was not in terms of the Service Rules, therefore, as per provisions of Section 2 of the U.P. Act No.1 of 2021, the period of service rendered by the appellant-petitioner between the year 1990 till his regularisation in the year 2010, is not liable to be counted for the purpose of computation of qualifying period of service for pension;
(ii) After promulgation of the U.P. Act No.1 of 2021, the services of an employee can be counted for computation of qualifying service, if he was appointed on a temporary or permanent post in accordance with the provisions of Service Rules prescribed by the Government for the post. Since the appointment of the appellant-petitioner was made on a post which was earmarked for surplus employees, therefore, his appointment cannot be said to be an appointment in accordance with the Service Rules. Therefore, the period of service rendered by the appellant-petitioner from the date of his appointment till the date of his regularisation is not liable to be counted for the purpose of computation of qualifying service for pension;
(iii) The benefit of the law laid down in the judgment of the Division Bench of this Court dated 09.06.2021 passed in Special Appeal No.97 of 2021 (State of U.P. & 4 Ors. vs. Bhanu Pratap Sharma) (annexed as Annexure RA-1 to the rejoinder affidavit), cannot be extended to the appellant-petitioner since the State of Uttar Pradesh has preferred SLP before the Supreme Court which is pending; and
(iv) The appellant-petitioner is not entitled for payment of pension in view of the law laid down by a coordinate Bench of this Court in the judgment dated 27.01.2022 passed in Special Appeal No.21 of 2022 (State of U.P. & 2 Ors. vs. Raj Bahadur Pastor).
4. The following questions arise for adjudication of the matter :-
(i) Whether the petitioner is entitled to any benefit of the judgment of the Supreme Court in the case of Prem Singh (supra)?; and,
(ii) Whether, in view of the provisions of U.P. Qualifying Service For Pension and Validation Act, 20219, is the petitioner-appellant entitled for pension?
5. At the outset, it would be pertinent to refer to the judgment and order dated 12.03.2004 passed by this Court in writ petition of 1991 filed by the petitioner and others. As noted above, the services of the petitioner were terminated in 1991. The writ petition of 1991 was filed for quashing the orders dated 08.03.1991 and 09.03.1991 by which the services of the petitioner and others were dispensed with. A perusal of that judgment reveals that the submission of the petitioner in the writ petition of 1991 was that posts were created by the Government vide its G.O. dated 20.03.1989 and by order dated 26.07.1990 issued by the Superintendent of ESI Hospital, Aligarh, his appointment was regularised with effect from 01.08.1990. A letter dated 27.02.1991 was issued by the Director of ESI Scheme, Kanpur to the Senior Medical Superintendent, that as there were 13 surplus employees of Class IV in Agra Region, steps should be taken so that all the 13 surplus employees be accommodated in ESI Hospital, Aligarh. It was also stipulated that an employee, who was not regularly appointed, should be relieved from service. The allegation was that on the basis of the letter dated 27.02.1991, the service of the petitioner was terminated. The judgment further noticed that in the counter affidavit it was stated that new posts of Class III and Class IV employees were created by two Government Orders of 20.03.1989 and 29.07.1988 whereby large number of posts of Paramedical Staff and Class III and Class IV posts in ESI Scheme were declared surplus. The posts, which were created by G.O. dated 20.03.1989, were not to be filled up by direct recruitment and the petitioners were appointed against the rules. The Superintendent of ESI Hospital, who had given the appointment letters to the petitioners, was facing an enquiry because of the said appointment. No procedure whatsoever was followed in granting the appointment in unchaste haste by pick and choose method. Persons were appointed to Mechanical and Technical posts without any qualification. The Court, while considering the contention of the learned counsel for the petitioners that the termination order was passed by an authority different from the appointing authority, held as follows:-
............. In any event no prejudice has been caused to the petitioners because in the first place the posts were reserved for surplus staff and the petitioners had absolutely no right or lien over it. Therefore, in my opinion, this contention of the petitioners does not merit acceptance and has to be rejected."
(emphasis supplied)
6. The Court further observed as follows:-
"Learned counsel for the petitioner has then urged that once their services were regularized, it could not be terminated without following the due procedure prescribed under the Rules. From the averments in the writ petition, it is apparent that the petitioners were never employed in accordance with the group D Recruitment Rules, 1985 further, perusal of their appointment letter shows that their services were purely temporarily and adhoc and could be terminated with a month's notice and by the impugned order their services were terminated by following the procedure prescribed under U.P. Temporary Government. Servants (termination of service) Rules, 1975. Recently, the apex court in the case of Union of India Vs. A.P. Bajpai (A.I.R. 2003 S.C. 923) has held that a temporary employee has no right or lien to the post. Thus, this argument of learned counsel for the petitioner is devoid of any merit.
Learned counsel for the petitioner has then urged that once the petitioners were given regular appointment, they could not be removed without any opportunity. A bare perusal of the appointment letters which are annexed with this petition shows that one of the conditions stipulated therein was that the petitioners could be removed without any notice. There is no averment that the removal was due to some misconduct and, thus, no opportunity was necessary before the impugned orders were passed. The petitioners have failed to show that they had any lien over the post. Therefore, this argument learned counsel for the petitioner is bound to be rejected.
It has then been urged that though juniors have been retained the services of the petitioners have been terminated. He has relied upon allegations made in paragraph 8 of the petition to the state that Smt. Nirmala Devi and Shri Udey Ram who were juniors have been retained. The respondents have explained in paragraph 10 in the counter affidavit that Smt. Nirmala Devi has been appointed on adhoc basis till a regular appointment is made and so far as Shri Udey Ram is concerned he was a terminated employee, but on appeal the same was set aside and he was reinstated into service. Thus, this allegation of the petitioner is without any substance and hence is rejected.
Learned counsel for the petitioner has then urged that when this petition was filed the termination orders were stayed vide order dated 23.3.1991 and on the strength of the stay order the petitioners are continuing in service for about 13 years and as such at this juncture it would not be just and humane to throw them out of job. He has relied upon the following judgments rendered by the Apex Court: -
1. Arun Kumar Raut Vs. State of Bihar A.I.R 1998 Supreme Court 1477.
2. H.C. Puttaswamy Vs. Hon'ble Chief Justice of Karnataka High Court A.I.R. 1991 Supreme Court 295.
3. Miss Shainda Hasan Vs. State of U.P. A.I.R. 1990 Supreme Court 1381.
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In all the above cases it was found that the petitioners were not to be blamed for the irregularity and sharp practice. But, in this case, as would presently be seen, the demenaour and bonafides are wanting.
As is evident from the counter affidavit, by a G.O. dated 29.7.1988, 213 Paramedical Staff, Class III and Class IV employees had been declared surplus in E.S.I. Scheme with a stipulation that they would be absorbed in existing and new Hospitals and Dispensaries. The State Government after taking over the E.S.I. Hospital, Aligarh had issued the G.O. dated 20.3.1989 creating several posts and it was mentioned in paragraph 6 of the G.O. that no new appointment by direct recruitment would be made on the posts so created. These posts were to be filled up by those employees whose posts had been declared surplus by G.O. dated 29.7.1988. The petitioners, though had asserted in the writ petition that they were appointed against posts created by G.O. dated 20.3.1989, did not purposely annex along with the writ petition either the G.O. dated 29.7.1988 or G.O. dated 20.3.1989. The purpose is obvious that if the two Government Orders had been annexed along with the writ petition, the petitioners could not have obtained the interim orders by this court. The petitioners, in the present case, are guilty of suppressing material facts and relevant documents. A perusal of the appointment letters show that the same were issued hastily and even the addresses of the petitioners were not mentioned though the same were to be dispatched to them. Further, it is evident from the array of parties that petitioners no. 9, 22, 23, 24 and 25 were appointed against Technical posts without ensuring that any of them had the requisite technical qualification. They themselves state that they were taken in employment as daily wagers in July, 1990 and the regularization order was passed on 26.7.1990, this fact shows that the petitioners were never appointed as daily wagers but they maneuvered with the help of Dr. J.L. Bhatia, the then Medical Superintendent and were able to obtain the appointment orders. It is on record that an enquiry was initiated against Dr. J.L. Bhatia for committing such irregularity. The petitioners have encroached upon the rights of others by backdoor. Should they be allowed to continue?
The writ petition was filed and interim orders were obtained on 21.3.1991. Stay vacation along with a counter affidavit was filed after being served on the petitioners on 13.9.1991. The petitioners took three years to file their rejoinder affidavit on 8.2.1994. When the matter was taken up on 13.9.1997 it was adjourned on account of the petitioners. The case was dismissed for non prosecution on 21.10.1997 and a recall application was filed after 2 years on 26.5.1999. Again when the matter was taken up on 20.5.2002 it was adjourned on account of the petitioners. Should they still be allowed to continue?
As already noted above, the stand in the counter affidavit was clear and unambiguous that the vacancies were created for the surplus staff, this counter affidavit was served on the counsel for the petitioner on 11.9.1991, but no effort worth the name has been made by the petitioners till today to implead any of those surplus staff who are vitally interested in the outcome of this petition. They have not been heard, yet their lien is sought to be appropriated by the petitioners who entered service by the backdoor.
Keeping in mind all these factors and that this court being also a court of equity, has to balance it between the petitioners and those for whom the posts were created but who are not before the court. Whether the surplus Class IV employees can now be adjusted, there is nothing on record to help the court to answer to all these questions.
From the above facts it is evident that the ratio of the apex court in the above cases does not squarely apply to the present case.
Having considered the entire facts and circumstances, it appears just to give the following directions and dispose of this petition:-
a) The respondent no. 2 is hereby directed to find out as to whether any of those surplus Class IV employees for whom the vacancies were created are still out of job, this exercise may be undertaken also by issuing advertisement in widely circulated local newspapers.
b) If they are available, they should be adjusted on these posts according to their seniority.
c) The petitioners would be removed from their posts based on the principle of last come first go, however, if the entry in service is on the same date, the younger in age would leave first.
d) In case no such surplus employees are available, the petitioners may be considered for regular appointment after examining the suitability under the Rules and they would be treated as such regular employees from the date of order of regularization.
With these directions, the writ petition is finally disposed of."
(emphasis supplied)
7. From a perusal of the writ petition of 2021, it appears that after the judgment and order dated 12.03.2004 passed by this Court in the writ petition of 1991, an order was passed by the respondent no.2 on 10.05.2010 regularising the service of the petitioner-appellant on the post of Class IV (Ward Boy) with immediate effect. The order dated 10.05.2010, a copy of which has been enclosed as Annexure-2 to the writ petition of 2021, is as under :-
"निदेशालय कर्मचारी राज्य बीमा चिकित्सालय, श्रम चिकित्सा सेवाएँ, उत्तर प्रदेश, सर्वोदय नगर, कानपुर आदेश संख्या 338 दिनांक 10.05.10 चिकित्सा अधीक्षक, कर्मचारी राज्य बीमा चिकित्सालय अलीगढ़ के आदेश संख्या 2/90 दिनांक 26.07.1990 द्वारा श्री जंगपाल को चतुर्थ श्रेणी (वार्ड ब्याय) पद पर नियुक्त किया गया था। तत्कालीन निदेशक कर्मचारी राज्य बीमा योजना, श्रम चिकित्सा सेवाएं, उत्तर प्रदेश, सर्वोदय नगर कानपुर के (अपठित) श०.प०सं०.नि०शि०/91/2702, दिनांक 26.02.1991 द्वारा शासनादेश संख्या (अपठित)5(257)/86-1988, दिनांक 29.07.1986 एवं समूह घ कर्मचारी सेवा नियमावली-1985 का उल्लंघन करते हुए की गयी उक्त अनियमित नियुक्ति को समाप्त करने का आदेश दिया गया, जिसके क्रम में इनकी सेवाएं समाप्त कर दी गयी। उक्त सेवा समाप्ति आदेश के विरूद्ध श्री जंगपाल ने अन्य कर्मिकों के साथ रिट याचिका संख्या- 8350/1991 श्री अशोक कुमार व अन्य बनाम उ०प्र० सरकार व अन्य मा० उच्च न्यायालय इलाहाबाद मे प्रस्तुत की गयी जिस पर दिनांक 21.03.1991 को स्थगनादेश पारित किया गया जिसके तहत श्री जंगपाल अपने पद पर कार्रत है। मा० उच्च न्यायालय द्वारा प्रश्नगत याचिका पर अन्तिम निर्णय दिनांक 12.03.2004 पारित करते हुए इनकी सेवा समाप्ति आदेश को मूलतः सही ठहराया गया है तथापि मा० न्यायालय द्वारा याचीगण की स्थगनादेश के तहत लम्बी सेवाओं को दृष्टिगत रखते हुए इन्हे गुणदोष के आधार पर विनियमित किये जाने के निर्देश दिए गये है। मा० उच्च न्यायालय के उक्त आदेश के अनुपालन में इनके सेवा संबंधि अभिलेखो एवं पात्रता व शैक्षिक/तकनीकी योग्यता का परीक्षण करने हेतु विभागीय समिति का गठन किया गया। समिति द्वारा श्री जंगपाल को वार्ड ब्याय पद के योग्य पाये जाने पर विनयमित करने की संस्तुति प्रदान की गयी है।
समिति की संस्तुति के आधार पर श्री जंगपाल को चतुर्थ श्रेणी (वार्ड ब्याय) पद पर तात्कालिक प्रभाव से विनयमित किया जाता है। उक्त आदेश आरक्षित श्रेणी के जाति प्रमाण पत्र के सत्यापन के अधीन रहेगा।
(अशोक कुमार) निदेशक
8. A perusal of the order dated 10.05.2010 reveals that it narrates that by the judgment and order dated 12.03.2004 passed in the writ petition of 1991, the order of termination of service of the petitioner-appellant was found to be basically correct; that a departmental Committee was constituted to examine the service record and eligibility and educational/technical suitability, and that Committee had found the petitioner-appellant suitable for the post of Ward Boy and had recommended his regularisation.
It is pertinent to note that neither in the aforesaid order dated 10.05.2010 nor in any document filed by the parties, is there any material to show the date of removal of the petitioner in terms of the judgment dated 12.03.2004 passed in the writ petition of 1991.
9. In the judgment of Prem Singh (supra), the three Judge Bench of the Supreme Court was considering the question whether Rule 3(8) of the Uttar Pradesh Retirement Benefit Rules, 196110 and Regulation 370 of the Civil Services Regulations of Uttar Pradesh should be struck down having regard to the fact that the Supreme Court, in the case of Dakshin Haryana Bijli Vitran Nigam vs. Bachan Singh11, upheld the decision of a Full Bench of the Punjab and Haryana High Court in the case of Kesar Chand vs. State of Punjab12 regarding a pari materia provision enacted in the State of Punjab which excluded computation of the period of work-charged services from qualifying service for pension. While considering the definition of 'qualifying service' appearing in Rule 3(8) of the 1961 Rules, the Supreme Court noted the 'Note' appended to sub-rule (8) of Rule 3 of the 1961 Rules and held as follows:-
"32. In view of the Note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.
33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.
34. As it would be unjust, illegal and impermissible to make aforesaid classification to make Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
34. In view of the Note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.
36. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.
37. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."
10. The reading down of the provisions of Rule 3(8) of the 1961 Rules in the judgment of Prem Singh (supra) was with regard to the service rendered even prior to the regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment, which service was to be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
11. In the present case, however, it is not the case of the petitioner-appellant that prior to his regularisation, he worked in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment. As a matter of fact, the so-called appointment letter, which is dated 26.07.1990 and was enclosed as Annexure-1 to the writ petition of 2021, evinces that his service was wholly temporary in nature. Accordingly, no benefit of the judgment of the Supreme Court in the case of Prem Singh (supra) inures to the petitioner-appellant.
12. What is to be seen is whether the petitioner-appellant would be entitled to any benefit of the service rendered by him prior to his regularisation on 10.05.2010. Rule 3(8) of the 1961 Rules is as under:-
"3(8). "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service 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-charged 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 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."
13. While reading down the provisions of Rule 3(8) of the 1961 Rules, the proviso thereof, which reads, "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", was never doubted by the Supreme Court. It was only the exception to the proviso that was read down. Therefore, even if the definition of 'qualifying service' as appearing in Rule 3(8) of the 1961 Rules is considered under the proviso thereof, the petitioner-appellant is mandated to demonstrate that prior to regularisation, his temporary service was continuous and was followed without interruption by confirmation in the same post or any other post.
14. At this stage, the letter dated 03.11.2020 (Annexure-4 to the writ petition of 2021) raising objections with regard to the pension to the petitioner-appellant is noticed, which is as follows:-
"1. भाग-1 के कालम-7 मे अंतिम पद वार्ड बॉय अंकित है जबकि ऑनलाइन प्रकरण मे Personal Detail के कालम मे Last Designation मे 4TH CLASS अंकित किया गया है जोकि त्रुटिपूर्ण है।
2. पेंशन प्रपत्र मे परिवार के विवरण मे श्रीमती देवकी देवी (पत्नी) की जन्मतिथि मे 58 वर्ष अंकित है जबकि ऑनलाइन प्रकरण मे Family Detail के कालम मे जन्मतिथि 01-05-1956 अंकित है अंतर का कारण स्पष्ट करने का कष्ट करें।
3- श्री जंगपाल की सेवापुस्तिका मे चस्पा निदेशक, निदेशालय कर्मचारी राज्य बीमा योजना, श्रम चिकित्सा सेवायें, उ०प्र० कानपुर के पत्रांक 338दि. 10-05-2010 के अनुसार श्री जंगपाल द्वारा मा० उच्च न्यायालय, इलाहाबाद मे योजित याचिका सं०-8350/1991 मे पारित निर्णय दि. 12-03-04 के द्वारा श्री जंगपाल की सेवा समाप्ति विषयक तत्कालीन निदेशक के आदेश दि.26-02-1991 को मूलतः सही ठहराया गया है, मा० उच्च न्यायालय के उक्त निर्णय के अनुपालन मे श्री जंगपाल को तत्काल प्रभाव अर्थात आदेश निर्गमन तिथि 10-05-2010 से वार्ड बॉय के पद पर विनियमित किया गया है, परंतु पेंशन प्रपत्र भाग-5 में पेंशन हेतु अर्हकारी सेवा का आगणन प्रथम नियुक्ति तिथि 01-08-1990 से किया गया है जोकि त्रुटिपूर्ण है।
उक्त के संबंध मे संगत/पुष्ट साक्ष्यों सहित स्थिति स्पष्ट किया जाना अपेक्षित है कि जब श्री जंगपाल की सेवायें, जोकि दि. 26-02-1991 से मा. उच्च न्यायालय के स्थगनादेश पर जारी थी, को दि. 12-03-2004 को आदेश द्वारा समाप्त मान लिया गया तो फिर किस आधार पर उक्त कर्मचारी को दि. 12-03-2004 से 10-05-2010 तक जारी रखने के उपरांत विनियमित किया गया।
4- पुष्ट साक्ष्यों/सक्षम प्राधिकारी के आदेश के अभाव मे श्री जंगपाल की सेवायें विनियमितिकरण की तिथि 10-05-2010 से ही पेंशनादि देयों हेतु मान्य होंगी तथा प्रस्तुत प्रकरण राष्ट्रीय पेंशन प्रणाली के अंतर्गत नवीन पेंशन योजना से आच्छादित होगा।"
(emphasis supplied)
15. The aforesaid letter dated 03.11.2020 raised pertinent issues with regard to the nature of the service of the petitioner-appellant for the purpose of payment of pension etc. By this letter, the authority noted that when the service of the petitioner-appellant was held to be terminated by the order dated 12.03.2004, then what was the basis of his service being regularised after continuing the said employee from 12.03.2004 to 10.05.2010. The letter also specified that in the absence of confirmed evidence/order of the competent authority, the service of the petitioner-appellant for the purpose of payment of pension etc., shall be considered from the date of regularisation, that is, only from 10.05.2010, and the instant matter shall be covered by the New Pension Scheme under the National Pension System.
16. The judgment of this Court dated 12.03.2004 passed in the writ petition of 1991 has been extracted above and important portions thereof have been highlighted. What emerges from the judgment is that :-
(a) the post, on which the petitioner-appellant was appointed, was reserved for surplus staff and the petitioner-appellant had absolutely no right or lien over it;
(b) the services of the petitioner-appellant were purely temporary and ad hoc and could be terminated with a month's notice and by the order impugned in the writ petition, his services were terminated by following the procedure prescribed under the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975;
(c) no opportunity was necessary before the order impugned in the writ petition was passed and the petitioner-appellant had failed to show that he had any lien over the post;
(d) the bona fide of the petitioner-appellant was found wanting;
(e) the petitioner-appellant was guilty of suppressing material facts and relevant documents. The petitioner-appellant was appointed as daily wager but he manoeuvred with the help of the then Medical Superintendent and was able to obtain the appointment order;
(f) the petitioner-appellant had encroached upon the rights of others by backdoor; and
(g) after getting the interim order from this Court in the writ petition of 1991, adjudication of the case was deliberately delayed by the petitioner-appellant.
17. As per the directions given in the aforesaid judgment dated 12.03.2004 in the writ petition of 1991, the petitioner-appellant was to be removed from his post based on principle of "Last Come, First Go" and the post was to be available to any surplus Class IV employee for whom the vacancy was created and who was still out of job. Only when no surplus employee was available, the petitioner-appellant could be considered for regular appointment after examining the suitability under the Rules and he would be treated as such regular employee from the date of order of regularisation. A perusal of the afore-quoted order dated 10.05.2010, regularising the service of the petitioner-appellant and the query/clarification sought by the authority concerned by means of its letter dated 03.11.2020 as well as the directions of this Court in the aforesaid judgment dated 12.03.2004, leave no room for doubt that the service of the petitioner-appellant on a temporary basis, prior to his regularisation by means of order dated 10.05.2010, was not in accordance with the provisions of the Service Rules prescribed by the Government for the post. Further directions of this Court in the judgment dated 12.03.2004 for removal of the petitioner from his post clearly mandated a break or interruption in the service of the petitioner on his post. There is no material brought on record by the petitioner-appellant or by the respondents to demonstrate that an exercise was taken for removal of the petitioner from his post as mandated in the aforesaid judgment dated 12.03.2004. As a matter of fact, a perusal of the letter dated 03.11.2020 reveals that in a wholly illegal and fraudulent manner and to give undue benefit to the petitioner-appellant, his service was continued from 12.03.2004 to 10.05.2010. There is no material on record to demonstrate whether any of the steps contained in the directions of this Court in the judgment dated 12.03.2004 were taken.
18. In view of the peculiar circumstances, it cannot but be held that in view of the judgment of this court date 12.03.2004 in the writ petition of 1991, the service of the petitioner-appellant was not continuous and was interrupted. Therefore, even assuming for the sole purpose of this analysis that the 1961 Rules continue to be in existence, the petitioner-appellant would not be entitled to extract any benefit of the term 'qualifying service' as read down by the Supreme Court in Prem Singh's case. Accordingly, the observation in the letter dated 03.11.2020 (Annexure 4 to the writ petition of 2021) that the services of the petitioner-appellant, for the purpose of payment of pension etc., shall be considered from the date of regularization on 10.05.2010 only, cannot be faulted.
19. The Uttar Pradesh Legislature enacted the U.P. Act of 2021, Sections 2, 3 and 4 of which are as under :-
"2. Notwithstanding anything contained in any rule, regulation or Government order for the purposes of entitlement of pension to an officer, "Qualifying Service" means the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post.
3. Notwithstanding any Judgment, decree or order of any Court, anything done or purporting to have been done and any action taken or purporting to have been taken under or in relation to sub-rule (8) of rule 3 of the Uttar Pradesh Retirement Benefit Rules, 1961 before the commencement of this Act, shall be deemed to be and always to have been done or taken under the provisions of this Act and to be and always to have been valid as if the provisions of this Act were in force at all material times with effect from April 1,1961.
4. Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act."
20. In the present case, as is evident from a perusal of the impugned judgment of the learned Judge dated 17.02.2021, the written instructions that were filed in the writ petition of 2021 reflected the strong stand taken by the State Government challenging the validity of the appointment of the petitioner-appellant. Even in this appeal, the counter affidavit that has been filed, assails the legality of the appointment of the petitioner-appellant. Given the provisions of U.P. Act of 2021, the petitioner-appellant has failed to demonstrate that he is entitled to the benefit of the definition of 'qualifying service' appearing in Section 2 of U.P. Act of 2021. Therefore, the petitioner-appellant has failed to substantiate his entitlement for payment of pension.
21. The case of Bhanu Pratap Sharma (supra), which has been stated by the learned Additional Chief Standing Counsel to be of no assistance to the petitioner-appellant, is anyway of no assistance to the petitioner-appellant. In that case, which was an intra-court Special Appeal filed by the State Government challenging the judgment of a learned Judge of this Court allowing the petition filed against the non-grant of pension that was denied on the anvil of Regulation 370 of Civil Services Regulations, this Court held that the post in question permanently existed and it was not the case of the State Government that the respondent, Bhanu Pratap Sharma, was not appointed in accordance with the Service Rules. The intra-court appeal was, accordingly, dismissed. In the present case, the State Government has categorically assailed the validity and legality of the appointment of the petitioner-appellant.
22. In the case of Dr. G. Sadasivan Nair (supra), the Supreme Court was considering the provisions of Rule 25 (a), Part III of the Kerala Service Rules, which provided that experience at the Bar could be reckoned as qualifying service for the purpose of determining superannuation pension subject to certain conditions. The petitioner's representation for superannuation pension was rejected in view of the proviso to Rule 25(a), Part III of the Kerala Service Rules which provides that the benefit under Rule 25(a) would be available only to such employees, who are recruited when practicing at the Bar to those posts requiring a qualification in law in experience at the Bar. The employer's stand was that experience at the Bar was not essential for appointment to teaching posts at the University and, therefore, the question of reckoning previous experience at the Bar would not arise. It was contended by the employer-University that the proviso to Rule 25(a) was inserted by way of an amendment with effect from 12.02.1985 and was not in force at the time of appointment of the appellant in 1984 and, therefore, the rule applicable in the matter of determination of pension would be that which exists at the time of retirement. That since the appellant had superannuated on 30.04.2007, on which date the proviso to Rule 25(a) was in force, therefore, it would apply limiting the benefit of the Rule. The Supreme Court accepted the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, but it was unable to find any legal basis in the action of the respondent-University of selectively allowing the benefit of Rule 25(a) to a similarly situated persons as the appellant and denied the appellant the benefit of the Rule. Such action of the employer-University was held to be arbitrary and illegal being not based on any reasonable classification and in violation of all canons of equity which are enshrined in the Constitution of India.
In our opinion, the petitioner-appellant cannot be benefited by the aforesaid judgment of the Supreme Court which is based on its peculiar facts. In the present case, the petitioner-appellant claims to have superannuated in the year 2019. As held above, neither the 1961 Rules nor the U.P. Act of 2021 afford any assistance to the petitioner-appellant to lend credibility to his claim that the service rendered by him prior to the date of the judgment dated 12.03.2004 passed in the writ petition of 1991 or prior to his so-called 'regularization' by means of the afore-quoted letter dated 10.05.2010 can be termed as 'qualifying service' for purpose of pension, in view of the findings recorded herein.
23. The order of the Supreme Court dated 18.02.2022 passed in the case of Talsibhai Dhanjibhai Patel (supra) is of no assistance to the petitioner-appellant. In the case before the Supreme Court, the respondent was working on ad hoc basis for 30 years. The Supreme Court repelled the contention of the State of Gujarat that he was not entitled to pension/pensionary benefit. The State had never assailed the validity of the ad hoc appointment. Moreover, it appears that there is no enactment pari materia to the U.P. Act of 2021 in the State of Gujarat. Accordingly, the order of the Supreme Court is distinguishable.
24. In the Division Bench judgment in the case of Prasidh Narain Upadhyay (supra), a coordinate Bench of this Court repelled the intra-court appeal filed on behalf of the State Government by holding that the respondent-therein was a seasonal collection peon and is engaged in the service for more than 37 years cannot be ignored. In that case too, the validity of the appointment was never in issue. This judgment is also of no assistance to the petitioner-appellant.
25. In the case of Hari Shanker Asopa (supra), another coordinate Bench of this Court relied upon the provisions of Rule 56 of the Fundamental Rules and commended the respondents to grant and pay to the petitioner therein retiring pension. In this case too, there were no dispute as to the validity of the appointment of the petitioner-therein. This judgment also would not come to the aid of the petitioner-appellant.
26. For the reasons aforesaid, we find no illegality or infirmity in the impugned judgment and order of the learned Judge. This special appeal of the petitioner cannot be sustained and is, accordingly, dismissed.
Date :16.05.2022 SK