Allahabad High Court
State Of U.P.Throu.Prin.Secy.Medical ... vs Dr. Nasiruddin Khan on 6 August, 2019
Bench: Pankaj Kumar Jaiswal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 330 of 2019 Appellant :- State Of U.P.Throu.Prin.Secy.Medical Edu.Ayush Lko.& Ors. Respondent :- Dr. Nasiruddin Khan Counsel for Appellant :- C.S.C. Counsel for Respondent :- Ashok Kumar Mishra Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Jaspreet Singh,J.
1. Heard Sri J.P. Maura, learned Standing Counsel for the appellants and Sri Ashok Kumar Mishra, learned counsel for the respondent.
2. Cause shown is sufficient. Delay of 130 days in filing the present appeal is condoned. The delay condonation application no. 90181 of 2019 is allowed.
3. The respondent, after retirement from the services, had filed a claim that he was granted appointment on 14.05.1992 on ad hoc basis and his service has been ignored while calculating the qualifying service for the payment of post retiral dues and pension.
4. Learned Writ Court while relying on the judgment in the case of Dr. Amrendra Narain Srivastava Vs. State of U.P. and others, decided vide judgment and order dated 01.03.2012 in Writ-A No.61974 of 2011 and Shanta Rai Sharma Vs. State of U.P. and ors. decided vide judgment and order dated 25.10.2017 in Writ Petition No.25433 (SS) of 2017 directed the appellants to pay the respondent the terminal benefits by counting his services from the date of his initial appointment with the State Government and the appellants shall work out the pension and other dues payable to him accordingly and make the payment within the next two months.
5. Learned counsel for the appellants has submitted that the case of Dr. Amrendra Narain Srivastava Vs. State of U.P. and others (Supra) can be distinguished on the fact of the present case and learned Writ Court, without considering the said, passed the order directing the State Government to pay the terminal dues.
6. The judgment and order passed in case of Dr. Amrendra Narain Srivastava Vs. State of U.P. and others (Supra) has been filed as annexure-5 to the present appeal. In the said matter petitioner was appointed on ad hoc basis, thereafter, his services were regularized on 16.03.2005. The Division Bench of this Court, after appreciating the provisions of Rule 3(8) of Uttar Pradesh Retirement Benefits Rules, 1961 came to the conclusion that the petitioner has rendered qualifying pensionary service with effect from the date of his joining in the State Government and which shall be treated as service qualifying for pension and allowed the writ petition quashing the order dated 20.09.2011.
7. The relevant part of the order dated 01.02.2012 passed in Writ-A No. 61974 of 2011, which has been quoted by the learned Writ Court, is quoted below:
"For the aforesaid reasons, we find that the petitioner has rendered qualifying pensionary service with effect from the date of his joining in the State Government on his option, and which shall be treated as service qualifying for pension and for which under the Government Orders, by which the hospitals were provincialised, the contribution of his pension has been deposited by the Zila Parishad.
The objection, that the contribution of pension, has not been deposited in the relevant account head, is too technical to be accepted. The amount has been credited to the account of the State Government in the Treasury. It is for the Treasury Officer to appropriate the amount in the correct account head. An error in depositing the amount in the wrong account head cannot be treated to have taken away the right of petitioner to pension based upon his continuance in the State Government beginning from 1991.
The writ petition is allowed. The impugned order dated 20.9.2011 is quashed. The petitioner shall be entitled to pension with effect from 01.2.1991, the date on which he joined in the State Government. The State Government will calculate his pension and issue the pension payment order within two months. The entire arrears of pension shall be paid over to him within a period of three months."
8. On due consideration we are of the view that the case of the respondent is identical and similar to the case of Dr. Amrendra Narain Srivastava Vs. State of U.P. and others (Supra) and Shanta Rai Sharma Vs. State of U.P. and ors. (Supra).
9. No case is made out to defer the view taken by the learned Writ Court.
10. The present appeal filed by the appellant has no merit and is, accordingly, dismissed.
Order Date :- 6.8.2019 Ashish (Jaspreet Singh, J.) (Pankaj Kumar Jaiswal, J.)