Allahabad High Court
State Of U.P.Thru.Prin.Secy.Women & ... vs Bal Krishna Pandey & Anr. on 5 November, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 3 Case :- SERVICE BENCH No. - 24427 of 2018 Petitioner :- State Of U.P.Thru.Prin.Secy.Women & Child Dev.Deptt. & Ors. Respondent :- Bal Krishna Pandey & Anr. Counsel for Petitioner :- C.S.C. Counsel for Respondent :- C.S.C.,S.K.Verma Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per Hon'ble Saurabh Lavania,J. ) The present writ petition has been filed by the petitioners-State challenging the judgment and order dated 15.02.2018 passed in Claim Petition no.1456 of 2016 (Bal Krishna Pandey Vs. State of U.P.) by the U.P. State Services Tribunal (in short "Tribunal"). The Claim Petition by claimant-opposite party no.1, was filed for quashing the order dated 18.01.2016, whereby the ad-hoc services rendered by the claimant-opposite party no.1 w.e.f. 16.01.1984 to 28.09.1998 were denied to be counted for the purposes of pensionary benefits, and for direction to the opposite parties to count the ad-hoc services of the claimant-opposite party no.1 for pensionary benefits and also revised the pension and pay differences from due date to till actual payment made to him alongwith 24% interest.
By the impugned dated 15.02.2018 the Tribunal allowed the claim petition. The operative portion of order reads as under:-
"The claim petition is Allowed. The impugned order dated 8.01.2016 passed by the opposite party no.2 is hereby quashed. The petitioner's services renders by him as an adhoc employee shall also be counted for the purposes of Pensionary benefits. The respondents are directed to pass appropriate order for revision of pension accordingly within the period of three months from the date of production of certified copy of this judgment/order and also pay the arrears accrued on the basis of revised pension. There shall be no order as to costs."
Brief facts of the case are that the claimant-opposite party no.1 was initially appointed on the post of Child Development Programme Officer on 12.01.1984. The appointment was made on the recommendation made by departmental selection committee constituted for the purpose. He joined his duties on 16.01.1984 on such post and he was allowed to perform his duties. The services of the claimant-opposite party no.1 were regularized vide order dated 29.09.1998. He was also given benefits of selection grade as well as promotional pay scale vide order dated 11.04.2002 in pursuance of Government Order dated 02.12.2000, treating him to continue in service from the date of initial appointment. Claimant-opposite party no.1, was superannuated on 30.11.2013.
Vide letter/order dated 17.11.2014, claimant-opposite party no.1 was informed by the District Programme Officer, Kannauj that the ad-hoc services rendered by him have not been treated as qualifying service for the purpose of pensionary benefits.
Thereafter, the petitioner preferred a claim petition no. 1911 of 2015 challenging the letter/order dated 17.11.2014, which was finally disposed of vide order dated 16.11.2015 with a direction to the present petitioners-State to decide the pending representation of the claimant-opposite party no.1 for counting his ad-hoc services for pensionary benefits in the light of order dated 21.08.2015 passed in the claim petition no.46943 of 2015. The operative portion of the order reads as under:-
ÞmDr O;oLFkk ds voyksdu ls Li"V gs fd ;kph }kjk fnukad 07-08-2015 dks fn;s x;s izR;kosnu ds fuLrkj.k dh izrh{kk fd;s cxSj gh izLrqr funsZ'k ;kfpdk nkf[ky dj nh xbZ gS] tks iks"k.kh; ugha gSA cgl ds nkSjku ;kph }kjk vuqjks/k fd;k x;k fd mlds }kjk izLrqr izR;kosnu fnukad 07-08-2015 ¼vuqyXud&9½ ds fuLrkj.k gsrq foi{kh la0&3 dks funsZf'kr dj fn;k tk;s] ftl ij fo}ku izLrqrdrkZ vf/kdkjh dks dksbZ vkifRr ugha gSA vr% ;kph ds vuqjks/k dks Lohdkj djrs gq, foi{kh la0&2 dks funsZf'kr fd;k tkrk gS fd os funsZ'k ;kfpdk la0&46943@2015 MkW0 deys'k 'kkgh ,oa vU; cuke m0iz0 jkT; o vU; esa ikfjr fu.kZ; fnukad 20-08-2015 esa m)`r fof/k&O;oLFkk ds vkyksd esa ;kph ds izR;kosnu fnukad 07-08-2015 dks ijh{kj.k dj mlds }kjk fnukad 16-01-1984 ls 28-09-1998 rd cky fodkl ifj;kstuk vf/kdkjh ds in ij dh x;h rnFkZ lsokvksa dks isa'ku ds mnn~s'; ls vgZdkjh lsok ds :i esa vkxf.kr djus ds fcUnq ij bl vkns'k dh izkfIr ds 03 ekg ds vanj fu.kZ; ysus dh dk;Zokgh djsaA mDr funsZ'kksa ds v/khu izLrqr funsZ'k ;kfpdk vaxhdj.k ds Lrj ij fuLrkfjr dh tkrh gSA i=koyh nkf[ky&nQ~rj gksAß In compliance of order of Tribunal dated 16.11.2015 the petitioners-State considered the representation of claimant-opposite party no.1 and vide order dated 18.01.2016 rejected the same.
Aggrieved by the order dated 18.01.2016 passed by petitioner no.2, the claimant-opposite party no.1 filed the claim petition No.1456 of 2016, wherein the order dated 15.02.2018 impugned herein, was passed by the Tribunal.
In the claim petition, in addition to aforesaid facts, the claimant-opposite party no.1 also pleaded that Smt. Asha Puri, Ram Lakhan Arya and Rajendra Singh etc. similarly situated persons who were appointed with the petitioner on the basis of same terms and conditions and there ad-hoc services have been counted for the purposes of pensionary benefits but the petitioner has been discriminated which is in violation of Article 14 of the Constitution of India. It has also been stated that his appointment was made after following prescribed procedure on the substantive post and his services ought to have been regularized in 1989 at the time of commencement of regularization rules i.e. amended on 07.08.1989 but his services were regularized belatedly on 29.09.1998. Denial of pensionary benefits of ad-hoc services rendered by him is arbitrary, discriminatory and illegal. The petitioner has also the referred the case of Dr. Shrikant Chaturvedi and another decided by Hon'ble High Court on 10.12.2015 in which the services rendered by the Doctors on ad-hoc basis were counted for the purpose of pensinary benefits.
The petitioners-State, before Tribunal filed written statement, in which it has been stated that the order passed on 18.01.2016 is according to rules and there is no illegality in passing the same. It has also been averred in the written statement that the ad-hoc services can not be counted for the purpose of pensionary benefits as qualifying services in view of Regulation 361 of C.S.R. It has also been stated that the claimant-opposite party no.1 was appointed on ad-hoc basis, therefore, his ad-hoc services for the purpose of pensionary benefits can not be counted.
The Tribunal, on the basis of material and pleading on record allowed the claim petition vide impugned order dated 15.02.2018.
For the purpose of granting the reliefs, as prayed for, the Tribunal also considered the settled law/judgments on the issue related to counting of ad-hoc services for pensionary benefits. The Tribunal on the basis of pleadings and material on record, recorded following finding/observation:-
"(a) A perusal of the record goes to show that the petitioner was appointed against substantive vacancy in a permanent establishment vide order dated 12.01.1984 on the post of Child Development Programme Officer and the selection of the petitioner was recommended by departmental selection committee constituted for that purpose and he was regularized on the same post on 29.09.1998. His services remained continued till his retirement without any break. There is no case of opposite party that the petitioner's appointment was not made without following the procedure prescribed for appointment. Therefore, the period spent by him even if as an ad-hoc employee was in substantive office in a permanent establishment. Therefore, the ad-hoc service would be treated as substantive appointment for determining the qualifying service."
It appears from the impugned order dated 15.02.2018 that after taking into account the above quoted finding/observation and the judgments on issue, the Tribunal allowed the claim petition vide order dated 15.02.2018. The relevant portion of the impugned order dated 15.02.2018, where the Tribunal considered the settled proposition of law/judgments are quoted below for ready referenced:-
"(b) In the Writ Petition No.63440 of 2015-Dr.Prem Chandra Pathak(Retired) and another Vs. State of U.P. and two others decided on 27.02.2017 after discussing the various laws on this subject it has been held that the period rendered as ad-hoc service would be counted for the purpose of qualifying service for pensionary and other post retiral benefits. In this case the issue decided by the Hon'ble High Court was the same which is before us. Against the judgment date4d 27.02.2017 passed by the Division Bench of Hon'ble High Court in this case, a S.L.P. was filed by State of U.P. which was dismissed on 05.01.2018.
In Writ Petition No.49802 of 2013-Dr. Syed Mustafa Hussain Vs. State of U.P. and two others, the issue before the Hon'ble High Court was also that as to whether services rendered by the petitioner can be counted for retrial dues or not. This case was decided by Hon'ble High Court on 01.05.2017. In this case the Division bench of Hon'ble High Court, Allahabad referring the law laid down by the Hon'ble High Court in Dr. Amrendra Narain Kumar Srivastava's case and Service bench No.371 of 2015(Dr. Arvind Kumar Sharma and another Vs. State of U.P. and others), Service bench No.1424 of 2015(Dr.Dharm Das Gupta Vs. State of U.P. and Others) and Writ-A No.44549 of 2015(Dr. Mayank Shekhar Upadhyaya Vs. State of U.P. and others) and the law laid down in the case of Service Bench No.1896 of 2015(State of U.P. and another Vs. Dr. Sri Kant Chaturvedi and others) has held that the benefits of adhoc services is to be given for extending pensionary benefits. It is pertinent to mention here that in Service Bench no.1896 of 2015 State of U.P. and another Vs Dr. Sri Kant Chaturvedi and others, the Division Bench of Hon'ble High Court has relied upon the case of Dr. Hari Shankar Asopa vs State of U.P. and another report in (1989) 1 UPLBEC 501 and against aforesaid order dated 10-12-2015 the State Government has filed Special Leave to Appeal(C) No.18622 of 2016(State of U.P. and another Vs Dr. Srikant Chaturvedi and another) which was dismissed by the Apex Court by his order dated 24-10-2016."
Aggrieved by the order dated 15.02.2018 passed by the Tribunal, the petitioners-State have filed present writ petition.
Challenge to the order dated 15.02.2018 has been made on following grounds. The same is reads as under:-
"The order passed by the learned Tribunal is against the law laid down by the Hon'ble Apex Court in the case of State of Rajasthan and others Versus Jagdish Chandra Dwivedi and others reported in 2009 Vol.-12 SCC Page 49.
The order passed by the learned Tribunal is against the provision prescribed Article 361, 368 and 370 of the Civil Services Regulations.
The services rendered in the ad-hoc capacity is not the service rendered in the Cadre, hence are not liable be counted with the regular service rendered in the substantive capacity."
Assailing the order dated 15.02.2018 the learned counsel for the petitioners-State has argued that the law laid down by this Hon'ble Court, discussed in the impugned order, would not be applicable in the case of the claimant-opposite party no.1. Referring to Regulation(s) 361, 368 and 370 of Civil Services Regulations, the learned counsel for the petitioners-State emphasized that the services rendered by the claimant-opposite party no.1 as ad-hoc employee can not be counted for the pensionary benefits. In support of his contention he has placed reliance on the judgment reported in (2009) 12 SCC 49 (State of Rajasthan Vs. Jagdish Narain Chaturvedi).
In rebuttal, the learned counsel for the claimant-opposite party no.1 has argued that in the facts of the case to the effect that on the recommendation of departmental selection committee the claimant-opposite party no.1 was appointed on the post of Child Development Programme Officer and without any break he continued in service and subsequently his services were regularized and in view of settled law the services rendered by the claimant-opposite party no.1 as an adhoc employee is liable to be counted for pensionary benefits. In support of his contention he has relied upon the law laid down by this Court in the judgment dated 27.02.2017 passed in the Writ Petition No.63440 of 2015 (Dr. Prem Chandra Pathak (Retired) and another Vs State of U.P. and two others) and the S.L.P. filed by the State against the said judgment and order, was dismissed in limine on 05-01-2018. The law laid down by this Court in Writ Petition No.49802 of 2013 (Dr. Syed Mustafa Hussain Vs State of U.P. and two others) decided on 01-05-2017 against which the S.L.P. filed by the State, was dismissed in limine on 01-12-2017. He has also relied upon the law laid down by this Court in Writ Petition No.61974 of 2011 (Dr. Amrendra Narain Srivastava Vs State of U.P. and others) decided on 01.03.2012 and judgment of dated 22.11.2017 passed by this Court in the Case of Dr. Syed Gulam S. Rizvi Vs State of U.P. & others, Writ Petition No.28253 (SB) of 2017.
We have heard the learned counsel for the petitioner, learned P.O. and perused the records carefully.
The core question before this Court is that as to whether the period of services rendered by the claimant-opposite party no.1 as an ad-hoc employee can be counted for pensionary benefits or not.
It is not disputed that the claimant-opposite party no.1 was appointed on the recommendation of selection committee on the post of Child Development Programme Officer and he joined the service on 16-01-1984 as an adhoc employee and he had been regularized on 29-01-1998 and he was given benefits of selection grade and promotional pay scale in the year 2002 treating him to be in service from the date of initial appointment. It has also not been denied that claimant-opposite party no.1 was appointed against substantive vacant post. In para 3 of the claim petition a specific statement is there that the claimant-opposite party no.1 was appointed against substantive vacant post and this statement has not been denied in para 43 of the written statement filed before the Tribunal. But the period of service rendered as an adhoc employee has not been counted for pensionary benefits on the ground that the period of adhoc service can not be counted as qualifying service for pension.
Before coming to the conclusion on the issue of counting of period of adhoc service of claimant-opposite party no.1 for the purpose of pensionary benefits and other retiral dues, it would be appropriate to deal with judgment relied upon by the learned State Counsel passed by the Hon'ble Apex Court in the case of State of Rajasthan Vs. Jagdish Narain Chaturvedi, (2009) 12 SCC 49.
In view of facts of the present case, the judgment on which the reliance has been placed by the learned State Counsel, would not apply in the present case, as the subject matter of the same relates to the promotion, whereas the present case relates to counting of adhoc service for the purpose of pensionary benefits and other retiral dues.
In the cases relied upon by the learned Counsel for the claimant-opposite party no.1, this Court considered the issue of counting of adhoc service for the purpose of pensionary benefits and after considering the provisions of Civil Services of Regulation held that the period of adhoc service is liable to be counted for the purpose of pensionary benefits and other retiral dues.
We would like to refer following two judgments of the Division Bench of this Court.
In the case of Sudama Prasad Vs. State of U.P. and Others (supra) the Division Bench of this Court considered the Regulation 361 and 368 of the Civil Services Regulations and the fact of the case, in brief, to the effect that the petitioner, therein, was appointed on adhoc basis in substantive capacity in a permanent established and after considering the same, the Division Bench of this Court interfered in the order whereby the claim of the petitioner, therein, for the counting of period of adhoc service for the purpose of pensionary benefits was rejected. The relevant paras are quoted herein below for ready reference.
"In view of the facts and circumstances of the case as has been discussed herein above and the stand taken by the respondent in not extending the benefit of full pension as claimed by the petitioner by not including the period of service on ad hoc basis by the impugned order dated 15.10.2014, we find it appropriate to quote Regulations 361 and 368 of the CSR: Regulation 361: The service of an officer does not qualify for pension unless it conforms to the following three conditions: First: The service must be under Government. Second: The employment must be substantive and permanent. Third: The service must be paid by Government. Regulation 368: Service does not qualify unless the officer holds a substantive office on a permanent establishment. From the perusal of Regulation 361 of the CSR it transpires that the service of an officer does not qualify for pension unless the service is under the Government, the employment is substantive and permanent and the service benefit is paid by Government. Whereas from the perusal of Regulation 368 of the CSR it transpires that the service of the officer does not qualify for pension unless the officer holds a substantive office in a permanent establishment.
From the facts narrated herein above and the conditions imposed under Regulations 361 and 368 of the CSR for full pension we find that it is not in dispute that the service of the petitioner is under the Government and it is paid by Government. Further the initial appointment of the petitioner was made against the substantive post in the permanent establishment. Learned standing counsel although contended that the initial appointment of the petitioner was not against substantive post in permanent capacity as the petitioner continued on ad hoc basis with effect from 9.1.1984 till 10.12.1993 , therefore, he will not be covered under the second condition of Regulation 361 of the CSR. We are of the view that the argument advanced by the learned standing counsel is fallacious having no weight as the nature of vacancy and capacity has to be seen on the date of retirement and not on the date of initial appointment.
Another question which requires our consideration is as to whether the petitioner was appointed against the substantive post in the permanent establishment or not. For testing that we have to go through the pleadings of the petitioner as made in the writ petition. For this purpose we would like to quote paragraph no. 22 of the writ petition, which reads as under:
"22. That in spite of the ad hoc appointment of the petitioner was in the substantive capacity in a permanent establishment and which ultimately resulted into regularization on 10.12.1993 without any break in service, the fixation of pension of the petitioner has been done after calculating the services of the petitioner from the date of his regularization of his service i.e. 10.12.1993. The said act of the respondent is absolutely arbitrary, illegal and unjustified."
Reply of paragraph 22 of the writ petition has been made in paragraph 14 of the counter affidavit, which reads as under:
"14. That the contents of paragraphs 21,22 and 23 of the writ petition has already been replied in the preceding paragraph of this counter affidavit, hence need no comments. It is further submitted that according to paragraph 368 and 361 of CSR, pension is not payble on ad hoc services of the petitioner." It is stated that the appointment of the petitioner was in substantive capacity in the permanent establishment. The factum of nature of the vacancy and establishment has not been denied in the counter affidavit. What has been stated in the counter affidavit is that the petitioner will not be entitled for the relief claimed in view of the provisions contained under Regulations 361 and 368 of the CSR. We have already interpreted the wordings contained in Regulations 361 and 368 of the CSR, meaning thereby the nature of employment and vacancy has to be seen at the time of retirement and not prior to that. Here in this case when the petitioner was retired, he was holding the permanent post in substantive capacity. In view of the averments made in paragraph 22 of the writ petition the appointment of the petitioner was made against substantive post in the permanent establishment which has not been denied by the respondents, therefore, the stand taken by the respondents in the impugned order cannot be sustained in the eyes of law. The view taken by us finds support from the judgment rendered by this Court in Writ A No. 61974 of 2011 (Dr. Amrendra Narain Srivastava vs. State of U.P. and others). In the result, the writ petition succeeds and is allowed. The impugned order dated 15.10.2014 passed by the Principal Secretary (Planning) U.P. Government, Lucknow, respondent no.1 is hereby quashed. The respondent no.1 is directed to pass a fresh order in view of the observations made herein, above."
In the case of Dr. Madan Gopal Pandey and Others Vs. State of U.P. and others (supra), the Division Bench of this Court considered the Article 361, 368 and 370 of the Civil Services Regulations and Retirement Benefits Rules, 1961 as well as the judgments of the Hon'ble Apex Court and after considering the same, the Division of this Court directed the State to count the period of adhoc service for the purpose of pensionary benefits and other retiral dues. While issuing the directions, the Division Bench of this Court also considered the fact of the case, to the effect that the petitioners, therein, were appointed on adhoc basis on substantive post in a permanent establishment and after rendering continuous and uninterrupted service were regularized and thereafter they were superannuated as any other permanent confirmed employee. The relevant paras are quoted hereinbelow for ready reference.
"The case of the petitioners is that Death-cum-Retirement Benefit Rules, 1961 (in short Rules, 1961) are applicable to the petitioners where under the gratuity in question has been computed and paid to the petitioners. Rule 5 (1) of Rules, 1961 provides: an officer may, on retirement, be paid an additional gratuity, the amount of which shall, subject to a maximum of 16-1/2 times the emoluments, be an amount equal to one-fourth of the emoluments multiplied by the total number of completed six monthly periods of qualifying service. Qualifying service is defined in Rule 3(8) of the Rules, 1961 as follows:-
"Qualifying Services" 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 interruptions by confirmation in the same or any other post shall qualify except--
(i) periods of temporary or officiating service in non- pensionable establishment;
(ii) periods of service in work charged establishment; and
(iii) periods of service in a post paid from contingencies, shall also count as qualifying service."
NOTE- If service rendered for a non-pensionable establishment, work charged establishment or in a post paid from contingencies falls between two periods of temporary service and permanent service in a pensionable establishment or between periods of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."
It is the case of the petitioners, that Rule 3(8) of Rules, 1961 is pari materia Article 370 of the Civil Service Regulations, which is as follows:
"370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except--
(i) periods of temporary or officiating service in non- pensionable establishment;
(ii) periods of service in work charged establishment; and
(iii) periods of service in a post paid from contingencies.
Note- If service rendered for 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 periods of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."
Relying on the aforesaid provisions, the learned counsel for the petitioners has urged that all the petitioners were appointed on a substantive post in a permanent establishment under the Government therefore there temporary/ officiating service rendered uninterruptedly since the date of their initial ad hoc appointment be counted, as they were subsequently confirmed, towards qualifying service. It has been urged that earlier the qualifying service was rightly computed by including the temporary / officiating service rendered by the petitioners as ad hoc appointee. In support of his contention the learned counsel for the petitioners invited attention of the Court to paragraphs 3 and 24 of the writ petition in which it has been specifically stated that the petitioners were appointed on ad hoc basis on a substantive post in a permanent establishment. Attention of the Court was also invited to paragraphs 4 and 5 of the writ petition wherein it has been stated that the petitioners had been continuously working since the date of their initial ad hoc appointment without any break in service till their regularization and even thereafter. It has been submitted that there is no specific denial to the averments made in paragraphs 3, 4, 5 and 24 of the writ petition and therefore it is admitted to the respondents that the petitioners were appointed on a substantive post in a permanent establishment and had rendered uninterrupted service since the date of their initial appointment till their confirmation and, thereafter, till superannuation.
In support of their case, the learned counsel for the petitioners has placed reliance on a Division Bench decision of this Court dated 01.03.2012 rendered in Writ A No. 61974 of 2011 (Dr. Amrendra Narain Srivastava v. State of U.P. and others), where, in similar circumstances, after examining the provisions of Rule 3(8) of the Rules, 1961 as well as Articles 368 and 369 of the Civil Service Regulations, the Court had taken the view that qualifying service would include temporary service rendered by an ad hoc appointee except when it is in connection with: (a) a non-pensionable establishment; or (b) a work-charged establishment; or (c) on a post paid from contingencies.
In response to the submissions of the learned counsel for the petitioners, the learned Standing Counsel placed reliance on Articles 361 and 368 of the Civil Service Regulations which provides as follows:-
"Article 361- The service of an officer does not qualify for pension unless it conforms to the following three conditions-
a) the service must be under Government,
b) the employment must be substantive and permanent and
c) the service must be paid by Government.
Article 368- Service does not qualify unless the officer holds a substantive office on a permanent establishment."
Placing reliance on the aforesaid provisions it has been urged that service must be substantive and permanent before any benefit of such service could be provided. Learned Standing Counsel further submitted that though continuous temporary or officiating service may be counted as per Article 370of Civil Service Regulations or Rule 3(8) of the Rules, 1961 but ad hoc service cannot be counted. It has been submitted that since admittedly the petitioners were appointed on ad hoc basis, they cannot be treated at par with temporary or officiating government servants. It has thus been submitted that the respondents were justified in counting the qualifying service only from the date of regularisation and not from the date of initial ad hoc appointment.
Before we proceed to address the rival submissions, it would be appropriate to observe that on perusal of the pleadings of the parties, we find that the plea taken by the petitioners in the writ petition that they were appointed ad hoc on a substantive post in a permanent establishment of the Government has not been rebutted. It has also not been rebutted that the petitioners had continued in service uninterruptedly since their initial ad hoc appointment till attaining the age of superannuation and, in between, they were regularised under the Rules, 1979. Further, there is no plea of the respondents that the service rendered by the petitioners right from their initial ad hoc appointment till attainment of the age of superannuation was in any of the three excepted categories of service as referred to in the proviso to Rule 3(8) of the Rules, 1961.
The question that arises for our consideration in this petition is whether continuous service as an ad hoc appointee followed, without interruption, by regularisation, rendered on a substantive post in a permanent establishment can be counted towards qualifying service, as defined by Rule 3(8) of the Rules, 1961, for the purpose of computation of gratuity payable under the Rules, 1961. To answer the aforesaid question, two incidental questions arise for our consideration. The first would be as to what would be the true import of the words "service does not qualify unless the officer holds a substantive office in a permanent establishment" as used in Article 368 of the Civil Service Regulations; and the second would be whether the phrase "temporary or officiating service" as used in Rule 3(8) of the Rules, 1961, which is pari materia Article 370 of the Civil Service Regulations, would include service rendered as an ad hoc appointee.
Addressing the first question first, it would be apposite to notice the stand of the state-respondent. The contention of the learned standing counsel on behalf of state-respondents is that a conjoint reading of Articles 361 and 368 of the Civil Service Regulations along with Rule 3(8) of the Rules, 1961 would suggest that the appointment should be substantive, and not ad hoc, to enable counting of service rendered as such as part of qualifying service. The above submission of the learned standing counsel is unacceptable because it fails to notice that Article 368 of the Civil Service Regulations speaks of holder of a substantive office in a permanent establishment and not about substantive appointment of its holder. In service jurisprudence, an office is ordinarily understood as a position of duty, trust, or authority. Often the term office/ post/ vacancy, in service jurisprudence, is used interchangeably depending on the context in which it is used. Substantive appointment can only be on a substantive post/ vacancy /office after due selection by any of the methods of recruitment prescribed by the rules/ law. However, holder of a substantive office need not be substantively appointed inasmuch as in a given situation there may be an ad hoc or officiating or temporary arrangement/ appointment on a substantive post/ office. Accordingly, we are of the considered view that Article 368 of the Civil Service Regulations can not be understood as to have excluded consideration of service rendered by an ad hoc appointee on a substantive post /office in a permanent establishment. What it does is that it declares that the service rendered by the holder of an office would not qualify unless the service is in connection with a substantive office in a permanent establishment. The aforesaid position stands fortified when we read Article 368 along with Article 370 of the Civil Service Regulations, which is pari materia Rule 3(8) of the Rules, 1961.
In so far as Article 361 of the Civil Service Regulations is concerned it relates to eligibility for pension, of which there is no dispute here. Otherwise also, Rule 3(8) of the Rules, 1961, with which we are concerned, does not refer to it.
Now, the question that falls for our consideration is whether the phrase "temporary or officiating service" as used in Rule 3(8) of the Rules, 1961 would include service rendered as an ad hoc appointee.
Before we address the said question it would be apposite to examine the true import of the phrase "temporary or officiating service" as used in Rule 3(8) of Rules, 1961 and Article 370 of the Civil Service Regulations. In order to understand the true import of the aforesaid phrase it would be useful for us to first examine as to how the term "ad hoc", "temporary" and "officiating" have been understood by courts in the context of service jurisprudence.
In Parshotam Lal Dhingra v. Union of India, 1958 SCR 828 : AIR 1958 SC 36 : (1958) 1 LLJ 544, a constitution bench comprising five-judges of the apex court had dealt with various types of appointment that could be made on a permanent post as also the nature of a substantive appointment, appointment on probation and officiating appointment. It was held/ observed as follows:
"The appointment of a government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a "lien" on the post. This "lien" is defined in Fundamental Rule Section 3, Chapter II Rule 9(13) as the title of a government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. The Government cannot terminate his service unless it is entitled to do so (1) by virtue of a special term of the contract of employment, e.g., by giving the requisite notice provided by the contract, or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfilment of the conditions for compulsory retirement or, subject to certain safeguards, on the abolition of the post or on being found guilty, after a proper enquiry on notice to him, of misconduct, negligence, inefficiency or any other disqualification. An appointment to a permanent post in government service on probation means, as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as "on probation" without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice. An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a notice of termination as agreed upon or as may be reasonable under the ordinary law. It is, therefore, quite clear that appointment to a permanent post in a government service, either on probation or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period. In such a case the servant so appointed acquires a right to his tenure for that period which cannot be put an end to unless there is a special contract entitling the employer to do so on giving the requisite notice or the person so appointed is, on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself, found guilty of misconduct, negligence, inefficiency or any other disqualification and is by way of punishment dismissed or removed from service or reduced in rank. The substantive appointment to a temporary post, under the rules, used to give the servant so appointed certain benefits regarding pay and leave, but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis, that is to say, terminable by notice except where under the rules promulgated in 1949 to which reference will hereafter be made, his service had ripened into what is called a quasi-permanent service."
(Emphasis Supplied) Another constitution bench of the apex court comprising five- judges in Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25, had the occasion to examine the meaning of the terms "ad hoc", "stop-gap" and "fortuitous" used in service jurisprudence. It was held/ observed as follows:
"16. The three terms "ad hoc", "stopgap" and "fortuitous" are in frequent use in service jurisprudence. In the absence of definition of these terms in the Rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters. The meaning given to the expression "fortuitous" in Stroud's Judicial Dictionary is "accident or fortuitous casualty". This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period. But an appointment made either under Rule 16 or 17 of the Recruitment Rules, after due consultation with the High Court and the appointee possesses the prescribed qualification for such appointment provided in Rule 7 and continues as such for a fairly long period, then the same cannot be held to be "fortuitous". In Black's Law Dictionary, the expression "fortuitous" means "occurring by chance", "a fortuitous event may be highly unfortunate". It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen. The expression "ad hoc" in Black's Law Dictionary, means "something which is formed for a particular purpose". The expression "stopgap" as per Oxford Dictionary, means "a temporary way of dealing with a problem or satisfying a need".
17. In Oxford Dictionary, the word "ad hoc" means for a particular purpose; specially. In the same dictionary, the word "fortuitous" means happening by accident or chance rather than design.
18. In P. Ramanatha Aiyar's Law Lexicon (2nd Edn.) the word "ad hoc" is described as: "For particular purpose. Made, established, acting or concerned with a particular (sic) and or purpose." The meaning of word "fortuitous event" is given as "an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God".
19. The meaning to be assigned to these terms while interpreting provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as "ad hoc" or "stopgap". If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as "fortuitous" in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a "stopgap" arrangement and appointment in the post as "ad hoc" appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the questions of inter se seniority of officers in the cadre.
20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc"..........".
(Emphasis supplied) In P. Ramanatha Aiyar's treatise Advanced Law Lexicon (4th Edition) the phrase "Ad Hoc Appointment" is described as temporary appointment made without selection of the candidate by any of the methods of recruitment provided under the relevant service rules or any orders of the Government where no service rules exist and otherwise than on the recommendations of the Commission if the post is in its purview. The treatise goes on to state that ad hoc appointment is made as a stop-gap arrangement to carry on the governmental work before the regular selection is made. "Officiating appointment" has been described in the aforesaid treatise as an appointment, not made substantively, which is temporary until further arrangements are made for filling the post permanently. "Officiating service" has been described therein as service rendered as a non-permanent holder.
Having taken notice of the constitution bench decisions of the apex court as well as the meaning of the terms "officiating" and "ad hoc" in the context of appointment, we find that there is a common thread in both types of appointment which is that both appointments are temporary made to serve a purpose. The discernible difference between the two is that in a case of officiating appointment, ordinarily, a post exists from before whereas in a case of ad hoc appointment it is not necessary that a post may exist from before because an ad hoc appointment may be made by way of an arrangement to serve a purpose/ exigency that may have arisen.
However, what remains to be examined is whether the phrase "continuous temporary or officiating service under the Government followed without interruption by confirmation", as used in Rule 3(8) of Rules, 1961, on a substantive post in a permanent establishment, as envisaged by Article 368 of the Civil Service Regulations, would include continuous service rendered by an ad hoc appointee on a substantive post in a permanent establishment, under the Government, followed without interruption by regularisation.
Before examining the said issue, it would be appropriate to observe that award of gratuity to retired government servant is a social welfare measure hence provisions relating to it come across as a social welfare legislation. It is well settled that liberal construction of a social welfare legislation is to be adopted to achieve the object of the legislation. The object of counting continuous temporary or officiating service of an employee, under the Government, followed without interruption by his confirmation, in computing qualifying service for availing/computing gratuity is to ensure that all such employees, who are rendering temporary or officiating service, are given benefit of their full length of service regardless of its nature. It is important to notice that neither Rule 3(8) of the Rules, 1961 norArticle 370 of the Civil Service Regulations use the phrase "temporary service" or "officiating service" rendered as a "temporary government servant" or "officiating government servant". The use of the word "temporary service" or "officiating service" is therefore suggestive of the legislative intent to include all kinds of temporary or officiating service, except those which are excepted, namely, (i) temporary or officiating service in non- pensionable establishment; (ii) periods of service in work charged establishment; and (iii) periods of service in a post paid from contingencies. In the aforesaid contextual background, could it be said that service rendered by an ad hoc appointee in a permanent establishment is in any way different from temporary service. The answer to it is an obvious no. The service rendered by an ad hoc appointee is by all means a temporary service until his regularisation. Therefore, the period of continuous temporary service rendered by him as an ad hoc appointee on a substantive post in a permanent establishment under the government followed without interruption by regularisation is eligible to be counted towards qualifying service as defined by the Rule 3(8) of the Rules, 1961. We, accordingly, hold that service rendered by an ad hoc government servant on a substantive post in a permanent establishment is nothing but temporary service of the nature contemplated by Rule 3(8) of the Rules, 1961 and would be countable towards qualifying service if it is continuous and is followed without interruption by regularisation/confirmation provided it is not in any one of the three excepted categories i.e. (i) temporary or officiating service in non- pensionable establishment; (ii) periods of service in work charged establishment; and (iii) periods of service in a post paid from contingencies."
In addition to above, the Hon'ble Apex Court, recently, in the judgment and order dated 02.09.2019 passed in the case of Prem Singh Vs. State of U.P. (Civil Appeal No. 6798 of 2019), considered the Rule 3(8) of U.P. Retirement Benefits Rules, 1961 and the Regulations 361, 368 and 370 of U.P. Civil Services Regulations, wherein the issue was related to counting of period of services rendered by the employee(s) in the work charged establishment prior to their regularization. The Hon'ble Apex Court after considering the relevant provisions held that the services rendered in the work charged establishment shall be treated as qualifying service. The Hon'ble Apex Court in the judgment dated 02.09.2019 read down relevant provisions of U.P. Retirement Benefits Rules, 1961 as well as Civil Services Regulations.
The relevant portion of the judgment and order of the Hon'ble Apex Court dated 02.09.2019 reads as under:-
"32. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment.
33.. 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.
34. 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.
35. As it would be unjust, illegal and impermissible to make aforesaid classification to make the 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.
36. 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.
37. 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.
38. 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."
In the instant case, it is also not disputed that the claimant-opposite party no.1 was appointed on adhoc basis on substantive vacant post of Child Development Programme Officer, after recommendation of the Departmental Selection Committee, and he was subsequently regularized and he was also given the benefits of selection grade as well as promotional pay scale vide order dated 11.04.2002 in pursuance of Government Order dated 02.12.2000, treating him to continue in service from the date of initial appointment and Claimant-opposite no.1 was superannuated on 30.11.2013 as any other permanent employee.
Accordingly, keeping in view the facts and circumstances of the case as well as law laid down by this Court in its various pronouncements and by the Hon'ble Apex Court, we are of the definite opinion that the services rendered by the Claimant-opposite no.1 as an adhoc employee, is liable to be counted for the purpose of pensionary and other retiral benefits and the impugned order passed by the Tribunal dated 15.02.2018 is not liable to interfered.
In the result, the writ petition lacks merit, accordingly dismissed. No order as to costs.
Order Date :- 05.11.2019 Vinay/-