Allahabad High Court
Deo Vrat Kumar vs State Of U.P.Thru ... on 16 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2648
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- SERVICE SINGLE No. - 2751 of 2012 Petitioner :- Deo Vrat Kumar Respondent :- State Of U.P.Thru Prin.Secy.Planning(Eco.& Stats. Wing)&4ors Counsel for Petitioner :- Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C. Hon'ble Chandra Dhari Singh,J.
By means of the present petition, the petitioner has prayed for quashing the orders Annexure 1 & 2 dated 07.01.2002 & 22.02.2012 passed by respondents no.4 & 5 and also to command the respondents to count the ad-hoc services of the petitioner from the date of his initial appointment i.e. 31.01.1978 for post retiral benefits and also to refund the deducted amount of Rs.56,044/- from the gratuity of the petitioner with 18% interest and to issue a revised P.P.O. Learned counsel for the petitioner has submitted that the controversy involved in the present writ petition had already been adjudicated by a Division Bench of this Court at Allahabad in Writ A No.11630 of 2018 (Dr. Ramakant Tiwari vs. State of U.P. and others) decided on 14.05.2018.
Learned Standing Counsel has not contradicted the submissions of the learned counsel for petitioner and has agreed that the issue is similar to that of the case of Dr. Ramakant Tiwari (Supra).
The order passed by this Court at Allahabad in the case of Dr. Ramakant Tiwari (supra) reads as under :
1. Heard Sri S.A. Siddiqui, Advocate, holding brief of Sri Mohd. Yaseen, Advocate, for petitioner and learned Standing Counsel for respondents.
2. With the consent of learned counsel for parties, we proceed to hear and decide this case finally at this stage since this matter is covered by judgments of this Court.
3. Petitioner has filed this writ petition challenging order dated 11.05.2015 passed by respondent-1 denying to take into account the services rendered by petitioner on ad hoc basis for the purpose of counting qualifying service for computing pension.
4. It is not disputed that retirement of petitioner is governed by fundamental Rule 56 read with relevant provisions of Civil Services Regulation (hereinafter referred to as "C.S.R."). Every employee, whether permanent or temporary or ad-hoc is liable to retire on attaining age of superannuation as provided under fundamental Rule 56.
5. Under U.P. Retirement Benefit Rules, 1961 (hereinafter referred to as "Rules, 1961") "qualifying service" is defined in Rule 3(8). It means 'service' which qualifies for pension in accordance with provisions of Article 368 of C.S.R. Rule 3(8) is quoted as below:-
"Rule 3(8)- " Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations: Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except-
(i) periods of temporary or officiating service in a non-pensionable establishment.
(ii) periods of service in a work-changed establishment, and
(iii) periods of service in a post, paid from contingencies; shall also count as qualifying service.
Note- If service rendered in a non-pensionable establishment, work-charged establishment or in post paid form contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."
6. Regulation 368, C.S.R., provides that service does not qualify, unless officer holds a substantive office in a permanent establishment. Regulations 368 and 369 are quoted herein below:
"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.
369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was on actual duty on the first day on which the establishment was again re-employed."
7. It is not in dispute that petitioner was appointed on substantive post in permanent establishment which is/was pensionable. Nature of his appointment i.e. ad-hoc appointment is not of relevance in as much as period spent by him even on ad-hoc service was in permanent establishment, which ultimately resulted into regularization of petitioner without any break in service.
8. As aforesaid, vide Sub-rule 8 of Rule 3 of Rules 1961, qualifying service includes service which qualifies for pension in accordance with provision of Section 368 of C.S.R. In this view of the matter, services rendered by petitioner on ad-hoc basis followed by Regularization would stand covered under "qualifying service" defined under Rule 3(8) of Rules 1961, for the purpose of pension. In taking this view we are fortified by a Division Bench decision in State of U.P. and Others vs. Dr. Amrendra Narain Srivastava (Writ Petition No. 61974 of 2011) decided on 01.03.2012.
9. For what has been stated above, writ petition succeeds and is allowed. Impugned order dated 11.05.2015 is hereby set aside. Respondents are directed to count services of petitioner rendered on ad-hoc basis also as qualifying service for grant of retiral benefits including pension and pay the same expeditiously.
In view of the above, the writ petition is allowed. Orders contained at Annexures 1 & 2 dated 07.01.2002 & 22.02.2012 passed by respondents no.4 & 5 are hereby quashed. The respondents are directed to count the ad-hoc services of the petitioner from the date of his initial appointment i.e. 31.01.1978 for post retiral benefits. The amount of Rs.56,044/- deducted from the gratuity of the petitioner be refunded along with 9% interest and revised Pension Payment Order be issued accordingly, at the earliest.
Order Date :- 16.10.2019 VNP/-