Allahabad High Court
Kanak Srivastava vs The Vice Chancellor Banaras Hindu ... on 8 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:107132 RESERVED IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD *** WRIT - A NO. 19325 OF 2019 Kanak Srivastava ....Petitioner Versus The Vice Chancellor, Banaras Hindu University, Varanasi and others ....Respondents Appearance :- For Petitioner : Mr. Siddharth Khare, Advocate For Respondents : Mr. Ajit Kumar Singh, Senior Advocate along with Mr. Madan Mohan, Advocate HON'BLE J.J. MUNIR, J.
1. The petitioner, Kanak Srivastava, is the widow of the late Prakash Chandra Srivastava, a Junior Medical Social Worker in the Department of Preventive and Social Medicine, Institute of Medical Sciences1, Banaras Hindu University2. The late Prakash Chandra Srivastava retired from service, upon attaining the age of superannuation, on 31.08.2005. He was sanctioned a retirement pension, reckoning his services from 28.08.1986 until the date of his retirement i.e. 31.08.2005. The respondents did not take into consideration the services rendered by Prakash Chandra Srivastava from 01.11.1981 to 07.08.1986 in the CBD Project, Department of Preventive and Social Medicine, IMS, BHU that he had rendered prior to joining regular service as a Medical Social Worker in the Department of Preventive and Social Medicine, last mentioned. The petitioner thinks that her husband was unfairly treated during his lifetime in the matter of fixation of his pension, for, according to the petitioner as well as her late husband, a junior to him, M.C. Joshi, who had been appointed as Junior Medical Social Worker along with the petitioner, was paid a higher pay scale and higher pension upon retirement, bringing about hostile discrimination. It is on the foot of this cause of action broadly that the petitioner, after her husband's demise, has instituted this writ petition, initially challenging an order dated 31.07.2019 passed by the Deputy Registrar (Admin-NT), excluding the petitioner's husband's services rendered in the project for the purpose of fixation of his pension and another order dated 05.01.2016 passed by the Registrar of the BHU, annexed as Annexure CA-5 to the counter affidavit dated 02.02.2020, which the petitioner has challenged through an amendment. The petitioner further prays that a mandamus be issued, directing the respondents to pay pension to the petitioner in the pay scale of ₹2000-3500 in the same terms as paid to M.C. Joshi, who retired from the same post and in the same pay scale as Prakash Chandra Srivastava. The petitioner also seeks payment of arrears of retirement pension on account of the difference in pension, to which her husband was entitled and that paid to him since 31.08.2005.
2. Now, a detailed statement of the petitioner's case would show that her husband, Prakash Chandra Srivastava, was appointed initially as a Case Worker in the Rural Health Training Centre, Chiraigaon, Department of Preventive and Social Medicine, IMS, BHU, where he worked from 24.04.1978 to 06.06.1978. Next, he was employed as a Social Scientist with the University Health Centre, BHU from 20.07.1978 to 28.10.1979. Srivastava was then employed in the CBD Project, Department of Preventive and Social Medicine, IMS, BHU, where he worked from 01.11.1981 to 07.08.1986. Subsequently, he was appointed on regular basis as a Medical Social Worker on 28.08.1986 with the Department of Preventive and Social Medicine, IMS, BHU in the pay scale of ₹550-900. Next, he was appointed as a Junior Medical Worker in the Department of Preventive Social Medicine in the pay scale of ₹1640-2900 with effect from 01.07.1993.
3. According to the petitioner, Srivastava was appointed a Junior Medical Social Worker along with one M.C. Joshi on the same post and placed in the same pay scale. Srivastava superannuated on 31.08.2005, and, according to the petitioner, he was paid his pension in the pay scale of ₹1640-2900, whereas, M.C. Joshi, who was appointed on the same post and placed in the same scale, is being paid pension worked out on the basis of the pay scale of ₹2000-3500 provided to a Senior Medical Social Worker. It is in this manner that Srivastava was discriminated against by the respondents, violating the equality clause enshrined under Article 14 of the Constitution. Srivastava, while alive, represented his cause to the BHU, saying that his services rendered prior to 28.08.1986, while serving the CBD Project, Department of Preventive and Social Medicine from 01.11.1979 to 07.08.1986, should be taken into reckoning in order to fix his pension, counting those six years and nine months of service, of which, he had been deprived. In the event, the said services were taken into reckoning, he would be entitled to the same pay scale as Joshi, to wit, ₹2000-3500, leading to an upward revision and re-fixation of pension for him.
4. The petitioner represented to the Registrar of the BHU on 26.10.2013, seeking to reckon eight years of his services rendered in the project in order to remove anomalies and the difference in pension paid to his contemporaries like M.C. Joshi on one hand, and Srivastava on the other. He sought a revision of his pension and claimed parity with the similarly circumstanced. Srivastava sent successive reminders to the Vice Chancellor of BHU, one of them being dated 21.07.2015. This did not move the respondents.
5. Aggrieved by inaction on the respondents' part, Srivastava instituted Writ - A No. 53016 of 2015 before this Court, praying that his services with the BHU as a Case Worker in the Rural Health Centre from 24.04.1978 to 06.06.1978, as a Social Scientist in the University Health Centre from 20.07.1978 to 28.10.1979 and as a Field Supervisor in the CBD Project from 01.11.1979 to 07.08.1986, totalling a period of eight years, be taken into reckoning for the purpose of re-fixation and revising his pension. The learned Single Judge, before whom the writ petition came up, dismissed it on the ground of laches. The petitioner appealed the judgment to the Division Bench, which set aside the judgment of the learned Single Judge and directed respondent No. 2 to the writ petition, some officer of the University, to look into the grievance of the petitioner in relation to his claim for pension equal to similarly circumstanced employees on a plea of discrimination.
6. The order dated 30.10.2015 passed by the Division Bench passed in Special Appeal No. 781 of 2015 was served upon the Registrar of the BHU along with a representation dated 07.11.2015. Despite lapse of time, the University and their functionaries do not seem to have paid heed or decided the petitioner's claim in accordance with the orders of the Division Bench. This led Srivastava into instituting a fresh writ petition, to wit, Writ - A No. 6052 of 2019, seeking to enforce the directions for consideration of the petitioner's case and necessary orders regarding parity in emoluments and revision of pension, as directed by the Division Bench. Writ - A No. 6052 of 2019 was disposed of vide order dated 17.05.2019, with a direction to the respondents to decide the matter relating to promotion of the petitioner to the post of Senior Medical Social Worker within a period of twelve weeks from the date of receipt of a certified copy of the order. This is a matter which would be alluded to a little later in this judgment, for it has great and material bearing on the rights of parties involved in this petition.
7. Srivastava's claim for promotion to the position of a Senior Medical Social Worker and consequent provision of the still higher pay scale of ₹2200-4000 was rejected by the respondents vide order dated 31.07.2019 issued by the Deputy Registrar (Admin-NT), BHU. While this order was made on 31.07.2019, a few days preceding it, on 22.07.2019, Srivastava passed away. Cudgels were thereafter taken on his behalf by the petitioner, his widow, upon whom, his estate devolved. The petitioner, therefore, instituted the present writ petition, seeking to quash the order dated 31.07.2019 on ground of hostile discrimination between her husband and similarly circumstanced employees like Joshi, besides other grounds.
8. A notice of motion was issued vide order dated 05.12.2019 and a counter affidavit was filed on behalf of respondents on 06.10.2021, being an affidavit dated 02.02.2020. In the said affidavit, a copy of the order dated 05.01.2016 was annexed as Annexure CA-5, rejecting the petitioner's claim for inclusion of service rendered in the CBD Project for the purpose of computation of his pension described as "qualifying service for the purpose of pensionary benefits". The petitioner filed a rejoinder dated 17.11.2022 on 17.02.2023. The order dated 05.01.2016 was challenged by amendment, which was granted. In course of time, multiple affidavits - supplementaries, supplementary counters and supplementary rejoinders were exchanged. When the writ petition came up on 21.05.2024, the parties having exchanged affidavits, it was admitted to hearing, which proceeded forthwith. It was adjourned to 15.07.2024. It was heard on 17.10.2024 and finally, on 09.01.2025, when judgment was reserved.
9. Heard Mr. Siddharth Khare, learned Counsel for the petitioner and Mr. Ajit Kumar, learned Senior Advocate assisted by Mr. Madan Mohan, learned Counsel appearing on behalf of the respondent-Banaras Hindu University and their various officials.
10. It is submitted by the learned Counsel for the petitioner that the services rendered by Srivastava (husband of the petitioner) between 24.04.1978 and 27.08.1986 in the CBD Project are liable to be reckoned for the purpose of pension and other retiral benefits in accordance with Rule 13 of the Central Civil Services (Pension) Rules, 19723. In support of his submission, learned Counsel for the petitioner has placed reliance upon Dr. Umesh Kumar v. State of Himachal Pradesh and another4 and Praduman Kumar Jain v. Union of India and another5. It is next submitted that the respondents have come up with an objection that the services of Srivastava between 24.04.1978 and 27.08.1986 for the purpose of reckoning his entitlement to pension cannot be counted on the ground that during the aforesaid period of time, he was serving in a project of the Department of Preventive and Social Medicine; not as a regular employee of the University. It is argued that the services of Srivastava rendered in the Project are eligible to be counted as resolutions were passed by the respondents to compute the services rendered in the CBD Project by O.P. Singh, Kedar Nath Gupta, Krishna Tiwari, R.K. Ram, Kamla Shankar Mishra, Vijay Narain Singh, Hanuman Ji, besides others who have similarly served, for the purpose of determining their entitlement to pension. The Court's attention in this regard is drawn to the minutes of a meeting of the respondents held on 26.05.2017 and 09.09.2017. It must be remarked that copies of these minutes that were placed before the Court are not part of the record.
11. The learned Counsel for the petitioner, in order to buttress his contention that the project services of Srivastava are eligible to reckon towards his entitlement to pension, has invited the Court's attention to Mahesh Chandra Verma (1) v. State of Jharkhand and others6. It is emphasized that Mahesh Chandra Verma (1) (supra) lays down that services rendered by employees in the Fast Track Courts are required to be counted for the purpose of qualifying service, noticing that Fast Track Courts were constituted for a limited period and services rendered by the Fast Track Court Judges were to be taken into reckoning as services rendered in a project. There is a reference then made to orders of this Court in Vijay Narayan Singh v. Union of India and others7, Krishna Deo Mishra and others v. Union of India and others8 and Om Prakash Chaturvedi v. State of U.P. and others9. Reliance is also placed by the learned Counsel for the petitioner upon the celebrated decision of the Supreme Court in Prem Singh v. State of U.P. and others10 and lastly upon the authority in Punjab State Electricity Board and another v. Narata Singh and another11. It is emphasized that in Om Prakash Chaturvedi (supra) this Court and in Narata Singh (supra), the Supreme Court held that services rendered in a project would be reckoned for determination of pension.
12. The learned Senior Advocate, appearing for the respondents, on the other hand, submits that Srivastava was appointed with the University for the first time on 28.08.1986 as a cadre employee, after he applied pursuant to an advertisement, leading to his selection and appointment. His services rendered with the CBD Project had nothing to do with the service of the University. The CBD Project is funded by a private association, to wit, the Family Planning Association, Bombay. The appointment in that project was not in accordance with any service rules in the regular establishment. It is emphasized that Rule 13 of the CCS Rules would not be attracted, because Srivastava was not working in a temporary capacity before his regular appointment. Learned Senior Advocate for the respondents has placed strong reliance upon the authority of the Supreme Court in Uday Pratap Thakur and others v. State of Bihar and others12. Reliance is also placed upon the judgment of this Court in Lakshmi Ram and another v. Union of India and others13.
13. The learned Senior Advocate for the respondents has pointed out that the plea of parity and/or discrimination raised, vis-à-vis M.C. Joshi, is factually ill-founded, because Joshi was appointed on a temporary basis in the regular pay scale of ₹425-700 on the post of a social worker in the Centre of Radiotherapy & Radiation Medicine, IMS vide letter No. EST/12359 dated 31.03.1979 w.e.f 06.04.1979 against a post sanctioned by the University Grants Commission under the 5th Five Year Plan. He was not an employee of the CBD Project, who later on joined the University service, but commenced service in the establishment of the University, may be on a temporary basis. It is emphasized that Srivastava joined the regular establishment on 28.08.1986, whereas Joshi joined it on 06.04.1979. There is, thus, no case of parity between Srivastava and Joshi, or any kind of hostile discrimination practised by the respondents.
14. It is argued that the last pay drawn by Srivastava, the petitioner's husband, was in the pay scale of ₹6500-10500, the scale corresponding to ₹2000-3500 (pre-revised). Srivastava's pension was, therefore, fixed on the last pay drawn in the aforesaid pay scale when he retired from service on 31.08.2005. It is urged that Srivastava is not entitled to claim parity with Joshi or plead discrimination on a comparison with him, as Srivastava was appointed on 28.08.1986 and retired on 31.08.2005, whereas Joshi was appointed on 06.04.1979 and retired on 31.03.2010, much after Srivastava. Joshi did not retire in the same pay scale as Srivastava.
15. It is submitted further that Srivastava's pension was correctly fixed on the basis of his last pay drawn in the pay scale of ₹6500-10500, corresponding to the pre-revised pay scale of ₹2000-3500. He was, therefore, granted pension, if one were to see matters in the right perspective, according to the learned Senior Advocate, which he has claimed in the writ petition. The orders dated 05.01.2016 and 31.09.2019 passed by the respondents, impugned in the writ petition, carry sound reasoning, which do not call for interference. It is, particularly, pointed out by the learned Senior Advocate appearing for the respondents that reliance placed by the petitioner on the case of Vijay Narayan Singh (supra), an employee of the CBD Project, whose services in the project were emphasized to have been resolved by the respondents to be computed with his regular service in the establishment of the University for the purpose of determination of pension, is misconceived. He points out that what the petitioner has emphasized is a recommendation made by the Non-Teaching Staff Grievance Committee on 06/07.04.2017, that was considered and rejected by the Vice Chancellor, the competent Authority of the University, vide order dated 30.09.2022, annexed as Annexure No. IInd SCA-4 to the second supplementary counter affidavit filed on behalf of the respondents.
16. We have bestowed careful consideration to the rival submissions advanced on behalf of parties by learned Counsel, perused the record and the law that would govern their rights, which was extensively cited at the Bar.
17. There is no cavil about the fact that Srivastava was appointed to the regular establishment of the University as a Medical Social Worker on 28.08.1986 with the Department of Preventive and Social Medicine, IMS, BHU. To begin with, the case of Srivastava was to take into reckoning service rendered by him as a Case Worker in the Rural Health Training Centre, Chiraigaon, Department of Preventive and Social Medicine, IMS, BHU from 24.04.1978 to 06.06.1978 and then as a Social Scientist with the University Health Centre, BHU from 20.07.1978 to 28.10.1979, besides the period of service, where the petitioner was employed in the CBD Project, Department of Preventive and Social Medicine, IMS, BHU from 01.11.1981 to 07.08.1986. All this engagement for the petitioner was prior to his appointment as a Medical Social Worker on 28.08.1986 in the regular establishment of the BHU in their Department of Preventive and Social Medicine, IMS. During hearing, the submissions, that have been advanced, have limited Srivastava's claim to the period of time that he spent in the service of the CBD Project, Department of Preventive and Social Medicine, IMS, BHU from 01.11.1979 to 07.08.1986. This is a time period of about six years and nine months. Based on Srivastava's claim, the question that would arise is, if the period of service rendered by him with the CBD Project can be taken into consideration for computing the total length of service with the BHU and fixing his pension on that basis. In support of the proposition that service rendered in a project with the same employer, that is followed by absorption in the regular establishment, is to be taken into reckoning for the purpose of determination of pension, the foremost authority that the learned Counsel for the petitioner has relied upon is Dr. Umesh Kumar (supra). The facts in Dr. Umesh Kumar can best be recapitulated in the words of their Lordships as these appear in the report of the decision. These read:
"2. Brief facts necessary for adjudication of the petition are that petitioner was appointed as Medical Officer in the department of Health, Government of H.P., on contract basis w.e.f. 31.01.1997. His contract employment continued for about ten years, whereafter services of the petitioner were regularized w.e.f. 05.03.2007. Though, the initial appointment of the petitioner was on contract basis, but he was being paid regular pay scale with all allowances admissible to Medical Officers appointed on regular basis. Petitioner was also paid increments at par with regularly appointed Medical Officers. Noticeably, the initial appointment of the petitioner on contract basis was made after undergoing selection process in which he was interviewed by a duly constituted selection committee. As many as thirty-four Medical Officers were appointed on contract basis alongwith petitioner.
3. In 2010, petitioner alongwith similarly situated Medical Officers were directed by respondents to switch over to Contributory Pension Scheme, which was introduced, vide notification dated 17.08.2006. Petitioner alongwith others approached this Court by way of CWP No. 4799 of 2010, raising challenge to the aforesaid direction of the respondents. By way of an interim order, respondents were restrained from compelling the petitioner to join Contributory Pension Scheme. Finally, CWP No. 4799 of 2010 was decided by a Division Bench of this Court, vide judgment dated 30.11.2010, in following terms:--
"9. Having regard to the factual matrix and legal position as referred to above, whereby the appointments though on adhoc/contractual/tenure basis having been made prior to 15.5.2003 and which appointments having been given effect by way of regularization with effect from the date of adhoc/tenure/contractual basis, the contentions as referred to above, assume significance and force. Therefore, these writ petitions are disposed of directing the first respondent to consider the case of the petitioners afresh and take appropriate action in the matter expeditiously. Till the orders are passed as above, interim order passed in this case will continue."
4. Petitioner superannuated on 31.12.2020 and till such date no decision could be taken by respondents in pursuance to directions issued by this Court, vide judgment dated 30.11.2010. On 18.10.2021, a communication was sent from the office of respondent No. 1 to respondent No. 2 informing that the case of the petitioner had been rejected. Thus, petitioner is before this Court assailing communication dated 18.10.2021, Annexure P-5."
18. In rejecting the respondents' stand, denying the petitioner's claim for adding towards his qualifying service, service rendered on contractual basis, under the CCS Rules, 1972, their Lordships of the Division Bench of the Himachal Pradesh High Court held:
"9. The facts are not in dispute. It is not in dispute that petitioner was duly qualified and was appointed on contract basis after he had undergone the selection process in which thirty-four other Medical Officers were selected. All of them had appeared before duly constituted selection committee and were finally appointed on recommendations of such committee. The continuance of petitioner on contract basis for about ten years is also a fact which has not been disputed. The grant of pay scale, allowances and increments etc. to the petitioner at par with Medical Officers appointed on regular basis, have also not been denied.
10. Rule-13 of CCS (Pension) Rules, 1972, reads as under:--
"13. Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post : Provided further that -
(a) in the case of a Government servant in a Group 'D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and
(b) in the case of a Government servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity.
(c) the provisions of clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19."
11. Thus, qualifying service of a government servant commences from the date he takes charge of the post to which he has first appointed either substantively or in an officiating or temporary capacity. It is further provided that an officiating or temporary service should be followed without interruption by substantive appointment in the same or another service or post. In the given facts of the case, the initial appointment of the petitioner, though, in temporary capacity continued for about ten years and was followed without interruption by substantive appointment on the same post. In such view of the matter, the contract service of the petitioner is liable to be counted towards qualifying service for the purposes of applicability of CCS (Pension) Rules, 1972. Admittedly, it is not a case where the initial appointment of the petitioner was for a short period or for limited purpose.
12. In CWP No. 5400 of 2014, titled as Veena Devi v. Himachal Pradesh State Electricity Board Ltd., decided on 21.11.2014, a Division Bench of this Court had held that the contract service followed by regular appointment was required to be counted for the purpose of pension. Similarly in CWP No. 8953 of 2013, titled as Joga Singh v. State of H.P., decided on 15.06.2015, the same proposition was reiterated by a Division Bench of this Court. In CWP No. 2384 of 2018, titled as State of Himachal Pradesh v. Sh. Matwar Singh, decided on 18.12.2018, another Division Bench of this Court held even the work charge status followed by regular appointment to be counted as a component of qualifying service for the purposes of pension and other retiral benefits."
19. Likewise, in Praduman Kumar Jain (supra), the question was whether the employee, who had rendered 12 years and 8 months of service in the Indian Meteorological Department (IMD) as an Assistant Meteorologist, but fallaciously claimed by the Central Government not to have been confirmed, was entitled to count that period of service for determining his pension with his next employer, the National Thermal Power Corporation (NTPC), a Central Government Undertaking, which he joined, resigning his Central Government service. It was in this context that their Lordships of the Supreme Court held:
"4. The question whether the appellant is entitled to pro rata pension in respect of the service for the period of twelve years and eight months rendered by him under the Central Government depends on the point whether he held the appointment in the service of the IMD in a substantive capacity. It is not disputed that the appellant was appointed as Assistant Meteorologist on 13-10-1977 by way of direct recruitment through the Union Public Service Commission. Direct recruitment, invariably, is made against permanent vacancies. It is not the case of the respondents that the appellant was appointed against a temporary post. The appellant was, therefore, appointed as Assistant Meteorologist against a permanent vacancy. He was on probation for a period of two years. His crossing the efficiency bar in October 1983 and further promotion to the higher post in September 1986 show that he successfully completed his probation period. In any case it is obvious that the work and conduct of the appellant has throughout been satisfactory.
5. The finding of the Tribunal, that the appellant was working in an officiating capacity, is solely based on the wording of the order dated 29-3-1984 allowing the appellant to cross the efficiency bar wherein it was mentioned that the increment was being given to him in the officiating post of Assistant Meteorologist. We fail to understand how a direct recruit in the post of Assistant Meteorologist, who joined service in 1977 and completed his probation in 1979, could be working against an officiating post. As mentioned above, direct recruitment is always made against permanent vacancies. A person appointed against a permanent vacancy, completing his probation period successfully, crossing the efficiency bar and even promoted to the higher rank, cannot be considered to be working in an officiating capacity.
6. It would be useful to refer to para 4 of the Office Memorandum dated 31-1-1986 which is in the following terms:
"Pensionary benefits : (i) Resignation from government service with a view to secure employment in a Central public enterprise with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organisation."
7. It is not disputed that the appellant resigned from government service with a view to secure employment in the Central public enterprise with proper permission of the Central Government. The appellant is, therefore, entitled to the benefit of the above-quoted Office Memorandum. We may also refer to para 4.1 of the Office Memorandum dated 28-3-1988 which is reproduced hereunder:
"4.1 Confirmation
(a) General
(i) Confirmation will be made only once in the service of an official which will be in the entry grade.
(iii) Confirmation is delinked from the availability of permanent vacancy in the grade. In other words, an officer who has successfully completed the probation may be considered for confirmation."
8. The memorandum dated 28-3-1988 came into force with effect from 1-4-1988.
9. The Tribunal came to the conclusion that since the appellant had resigned from the Central Government service before coming into force of the Office Memorandum dated 28-3-1988 the same was not applicable in his case.
10. It is not disputed that the appellant had more than ten years of service under the Central Government. His service would count as qualifying service for pension if the provisions of Rules 13 and 49 of the Rules are satisfied. The relevant provision of Rules 13 and 49 are as follows:
"13. Commencement of qualifying service. -- Subject to the provisions of these rules, qualifying service of a government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post.
49. (2)(b) The amount of pension arrived at on the basis of the above slabs will be related to the maximum qualifying service of 33 years. For government servants who, at the time of retirement, have rendered qualifying service of ten years or more but less than 33 years, the amount of their pension will be such proportion of the maximum admissible pension as the qualifying service rendered by them bears to the maximum qualifying service of 33 years. A few illustrations are given in the Annexure to this Office Memorandum."
12. Although the combined reading of the two Office Memorandums reproduced above support the appellant's contention that he stood confirmed in the post of Assistant Meteorologist before he resigned the Central Government service but it is not necessary for us to go into the effect of the two Memorandums. Examining the facts and circumstances of this case in the light of the law laid down by this Court in Baleshwar Dass case [(1980) 4 SCC 226 : 1980 SCC (L&S) 531 : (1981) 1 SCR 449] , the only conclusion which can be drawn is that the appellant was working as Assistant Meteorologist in a substantive capacity.
13. We, therefore, hold that the appellant had been appointed in a substantive capacity against a permanent post of Assistant Meteorologist and is therefore entitled to pro rata pension and other terminal benefits in respect of the service rendered by him under the Central Government."
20. We may at once dispose of the argument advanced by learned Counsel for the petitioner drawing strength from Praduman Kumar Jain. In Praduman Kumar Jain, as would be seen, the employee was appointed to the service of the Central Government, after being regularly selected by the Union Public Service Commission against a substantive post. He was placed on probation for a period of two years and then confirmed in service, as the facts show. He was promoted also to the next higher post. The correspondence between the petitioner and the Central Government while serving the Indian Meteorological Department about confirmation in service even after a period of 12 years, during which he successfully completed his probation and was promoted, was apparently a misconceived stand by the Central Government. He was, after all, a confirmed employee of the Central Government, when he joined the service of the NTPC, after resigning his position with the Central Government. There was in the field an office memorandum dated 31.01.1986, which provided for the contingency, where a government servant resigned his position to secure employment with a Public Sector Enterprise with proper permission and it said that such resignation will not entail forfeiture of service for the purpose of retirement/terminal benefits.
21. Upon resignation from the Government, there was a fiction given in the office memorandum, which regarded the employees as having retired on the date of their resignation, entitled to receive their retirement/terminal benefits. Also, since the petitioner had rendered more than 10 years service with the Central Government before resigning, his services with the Government would be regarded as qualifying service under Rule 13 of the CCS Rules and worked out in accordance with Rule 49(2)(b). It is, thus, evident that Praduman Kumar Jain was a case different altogether.
22. The CCS Rules, which applied to the Central Government and the NTPC apparently and the office memorandum dated 31.01.1986 by the Central Government, making special provision for employees resigning their position with the Central Government after proper permission in order to join the service of a Central Public Enterprise made all the difference. The office memorandum made a specific provision in such cases for non-forfeiture of the service rendered with the Central Government for the purpose of retirement/terminal benefits in the harness of the next employer, that is to say, the Central Public Enterprise joined by the resigning employee of the Central Government. Added to it is the fact that in Praduman Kumar Jain, the petitioner was a regularly selected employee of the Central Government, selected by the Union Public Service Commission and appointed by the competent Authority in the Central Government, where he rendered about 12 years of service before resigning his position to join the NTPC. It was not a case where services rendered in some project were claimed to be reckonable for the purpose of determining the employee's pension. The determination claimed was in accordance with the office memorandum of the Central Government, and more than that, the CCS Rules.
23. In the present case, Srivastava was employee of a project called the CBD in the Department of Preventive and Social Medicine, IMS, BHU. There is little doubt that this project was funded by private sources and not an employment in the establishment of the BHU. Srivastava's selection for this project too was not in accordance with any rules, as it appears. More than that is the fact that Srivastava joined the establishment of the University as a regular employee, after he applied for the post of a Medical Social Worker with the Department of Preventive and Social Medicine, IMS, BHU, pursuant to an advertisement issued by the University, leading to his selection and appointment. There is just no way how services of Srivastava rendered with the CBD Project, that had nothing to do with the University, but funded by a private association, to wit, the Family Planning Association, Bombay, could be taken into reckoning to determine his total length of service for the purpose of computation of his pension. These remarks of ours hold good in the context of Dr. Umesh Kumar's case as well. The reason is that Dr. Umesh Kumar, though appointed as a Medical Officer in the Department of Health, Government of Himachal Pradesh on contract basis, had a contract, that led him to work for 10 years continuously, where his services were regularized in the establishment of the Department of Health. The selection on contract basis, as the report of the decision in Dr. Umesh Kumar would show, came after he had undergone a selection process, in which, 34 other Medical Officers were selected. They had all faced a duly constituted selection committee for the purpose.
24. The Division Bench regarded the contractual service, which followed without interruption into regularization in service in the same Department as temporary service, for the purpose of qualifying service, under the CCS Rules. This is certainly not the case here, as we have already elucidated. Service in a privately funded project, that is given up and followed by employment in the regular establishment of the University, after selection pursuant to an advertisement, is no continuation of the project's service or any kind of regularization, that may entitle the petitioner to count his services, rendered under the project. There is another fallacy in the submissions advanced by the learned Counsel for the petitioner about what precisely is the entitlement to the reckoning of services in a temporary capacity or even in a project in the subsequent permanent service in the regular establishment for the purpose of pension.
25. The next authority, that has been pressed in aid by the learned Counsel for the petitioner is Mahesh Chandra Verma (1). In Mahesh Chandra Verma (1), the question was if services rendered by judicial officers as Fast Track Court Judges is liable to be counted for their pensionary and other benefits, after they joined regular judicial service. In Mahesh Chandra Verma (1), the following remarks of the Supreme Court are most pertinent:
"14. The need to set up Fast Track Courts arose on account of delays in the judicial process, targeting certain priority areas for quicker adjudication. In fact, had there been adequate cadre strength, there would have been no need to set up these Fast Track Courts.
15. The appellants were not appointed to the Fast Track Courts just at the whim and fancy of any person, but were the next in line on the merit list of a judicial recruitment process. They were either part of the select list, who could not find a place given the cadre strength, or those next in line in the select list. Had there been adequate cadre strength, the recruitment process would have resulted in their appointment. We do believe that these Judges have rendered services over a period of nine years and have performed their role as Judges to the satisfaction, otherwise there would have been no occasion for their appointment to the regular cadre strength. Not only that, they also went through a second process for such recruitment.
16. We believe that it is a matter of great regret that these appellants who have performed the functions of a Judge to the satisfaction of the competent authorities should be deprived of their pension and retiral benefits for this period of service. The appellants were not pressing before us any case of seniority over any person who may have been recruited subsequently, nor for any other benefit. In fact, we had made it clear to the appellants that we are only examining the issue of giving the benefits of their service in the capacity of Fast Track Court Judges to be counted towards their length of service for pensionary and retiral benefits. To deny the same would be unjust and unfair to the appellants. In any case, keeping in mind the spirit of the directions made under Article 142 of the Constitution of India in Brij Mohan Lal (2) [Brij Mohan Lal (2) v. Union of India, (2012) 6 SCC 502 : (2012) 2 SCC (L&S) 177] and in Mahesh Chandra Verma [Mahesh Chandra Verma v. State of Jharkhand, (2012) 11 SCC 656 : (2013) 1 SCC (L&S) 1] , the necessary corollary must also follow, of giving benefit of the period of service in Fast Track Courts for their pension and retiral benefits. The methodology of non-creation of adequate regular cadre posts and the consequent establishment of Fast Track Courts manned by the appellants cannot be used as a ruse to deny the dues of the appellants.
17. In a different factual context but on the principle laid down, we take note of the judgment in Nihal Singh v. State of Punjab [Nihal Singh v. State of Punjab, (2013) 14 SCC 65 : (2013) 3 SCC (L&S) 85] of a Bench of this Court to which one of us was a member. The State of Punjab in the 1980s was faced with large scale disturbance and was not in a position to handle the prevailing law and order situation with the available police personnel and, hence, resorted to recruitment under Section 17 of the Police Act, 1861 (hereinafter referred to as "the Act") for appointing Special Police Officers (SPOs). The SPOs were assigned the duty of providing security to banks, for which the financial burden was to be borne by the banks, with the clear understanding that, as per the provisions of the Act, such police officers were to be under the discipline and control of the Senior Superintendent of Police of the District concerned. Such SPOs provided yeoman service in difficult times but when their case was considered for regularisation subsequently, it met with an unfavourable response by an order passed in the year 2002. This Court while recognising that the creation of a cadre or sanctioning of posts was exclusively within the authority of the State, opined that if the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only, such action would be categorised as arbitrary nature of exercise of power. In this context, it was observed by the Bench, thus: (SCC p. 74, para 20) "20. ... Sanctioned posts do not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need."
Thus, the facts found showed that there was the existence of a need for creation of posts and the failure to create such posts or having a stop-gap arrangement, which lasted for years cannot be used to deny in an arbitrary manner, the absorption benefit to the people who had worked for long years. A direction was issued to regularise the services of such SPOs and they were held entitled to the benefits of service similar in nature to the existing cadre of police service of the State.
18. The position in respect of the appellants is really no different on the principle enunciated, as there was need for a regular cadre strength keeping in mind the inflow and pendency of cases. The Fast Track Court Scheme was brought in to deal with the exigency and the appellants were appointed to the Fast Track Courts and continued to work for almost a decade. They were part of the initial select list/merit list for recruitment to the regular cadre strength but were not high enough to be recruited in the existing strength. Even at the stage of absorption in the regular cadre strength, they had to go through a defined process in pursuance of the judgment of this Court and have continued to work thereafter.
19. We are, thus, unhesitatingly and unequivocally of the view that all the appellants and Judicial Officers identically situated are entitled to the benefit of the period of service rendered as Fast Track Court Judges to be counted for their length of service in determination of their pension and retiral benefits."
26. As would be evident, the Fast Track Courts were set up as a special establishment, albeit temporary, for the purpose of dealing with long pending cases, in particular, sessions trials. The 11th Finance Commission had allocated a sum of ₹502.90 crores for funding this special project. The Judges, who were appointed to these Courts, had staked their claim for the post of Additional District Judges in the Jharkhand Superior Judicial Service and took part in the recruitment process. They did not figure in the select list. It would be apposite to notice here that the scheme was challenged in various High Courts, but those matters were transferred to the Supreme Court and decided in Brij Mohan Lal (1) v. Union of India14. As it appears, appointments to these Fast Track Courts were directed to be made by the Supreme Court from three difference sources. We are not concerned here with the first two, but the third. The third was from the Bar. Since the Fast Track Courts were a transitory scheme, members of the Bar appointed were made provision for by the Supreme Court in terms of the fourth direction in Brij Mohan Lal, in terms of which, their Lordships themselves have quoted in Mahesh Chandra Verma (1) in paragraph No.3 of the report in the following terms:
"3. ......... The fourth direction in this behalf is as under: (SCC p. 8, para 10) "10. ... 4. The third preference shall be given to members of the Bar for direct appointment in these courts. They should be preferably in the age group of 35-45 years, so that they could aspire to continue against the regular posts if the Fast Track Courts cease to function. The question of their continuance in service shall be reviewed periodically by the High Court based on their performance. They may be absorbed in regular vacancies, if subsequent recruitment takes place and their performance in the Fast Track Courts is found satisfactory. For the initial selection, the High Court shall adopt such methods of selection as are normally followed for selection of members of the Bar as direct recruits to the Superior/Higher Judicial Services.""
27. It appears that in Mahesh Chandra Verma (1), the State of Jharkhand took into note the fact that some 84 Fast Track Courts had been established, who were all to be manned by Additional District Judges. In order to fill up these posts expeditiously, the process of selection for the Superior Judicial Service having been recently undertaken by the Jharkhand High Court, it was considered apposite to accommodate candidates from the select list of the Jharkhand Superior Judicial Service Examination held pursuant to the advertisement dated 23.05.2001, who could not be accommodated in the regular cadre of Superior Judicial Service. Their Lordships have noticed in Mahesh Chandra Verma (1) that 17 candidates out of 27 in the select list were appointed to the regular on 15.12.2001, while the remaining 10 to the Fast Track Courts on 02.02.2002. It also appears from the report in Mahesh Chandra Verma (1) that 10 candidates appointed in this manner could not fill up the requisite vacancies and, therefore, 15 more candidates strictly in order of merit, next following, were appointed. The 15 others, who were picked up from the merit list, were appointed on 23.09.2002.
28. The Old Pension Scheme was abolished for those joining government service on or after 01.12.2004, replacing it with the New Contributory Pension Scheme. In the meantime, the High Court decided to recruit Additional District Judges in the year 2008 through a limited competitive examination to be held on 31.08.2008. The limited competitive examination appears to have been the provision of an avenue for Judicial Officers of the subordinate service to enter the Superior Judicial Service, instead of waiting for their turn for promotion. There were challenges laid to these selections to the Higher Judicial Service by incumbents appointed to the Fast Track Courts, which the other side, upon the FTC candidates succeeding before the High Court, carried in appeal to the Supreme Court. It is not much material to go further into the facts there. What is relevant is that with the funding of the Fast Track Courts scheme by the Central Government coming to an end and the State Government too, reporting lack of funds, directions were issued in Brij Mohan Lal (2) v. Union of India15, prescribing a regular selection process to be followed for Judges recruited from the Bar to the Fast Track Courts under the FTC Scheme to be appointed to the regular cadre of the Higher Judicial Service in their respective States. After further directions in Mahesh Chandra Verma (2) v. State of Jharkhand16 to implement the earlier directions for appointment of FTC Judges to the regular cadre, following the process laid down, the FTC Judges took the examination for regularization and absorption.
29. The appellants before the Court in Mahesh Chandra Verma (2) (supra) were successful and appointed to the Jharkhand Superior Judicial Service. They were, however, treated as fresh recruits. Upon absorption in the regular cadre, the former FTC Judges wanted pay protection and other benefits of continuance in service. They did not want to be treated as fresh recruits. The request was rejected by the State Government. This led to writ petitions being instituted in the High Court, where, after some interim reliefs, the writ petitions were dismissed. In substance, the State treated their absorption in the regular cadre from the FTC as a fresh appointment and their earlier appointments as ones under a special scheme, leading to denial of benefit of that service and treating them as fresh recruits for all purposes, including pension and retiral benefits. This was the course of the matter, that is to say, the reckoning of services in the FTC Establishment as part of the service after absorption in the regular establishment. Their Lordships of the Supreme Court in Mahesh Chandra Verma (1) held:
"12. In the course of arguments, the learned counsel appearing for the State Government sought to emphasise that by its very nature, the Fast Track Courts were constituted for a limited period of time and, thus, the persons so appointed were conscious of the fact that they would have a limited tenure. Since the funding from the Central Government stopped, the State Governments did continue these courts for some years, but that again would not give any right to the appellants to claim the benefit of the service rendered as Fast Track Court Judges for the purposes of computation of pensionary and retiral benefits. He also sought to emphasise that this Court has taken recourse to Article 142 of the Constitution of India to issue directions and the High Court had rightly observed that what was not done by the Supreme Court under Article 142 of the Constitution of India could not be done by the High Court.
13. We put a specific query to the learned counsel as to whether this Court had, in the two judgments in question, prohibited any such grant? The learned counsel after some initial hesitation could not dispute the position that there was no such prohibition. We also put to the learned counsel whether the existing cadre strength was sufficient to subserve the justice delivery process i.e. could it be said that there were enough courts in existence to try the relevant cases? The only answer, which came forth was that the State had been carved out recently and had taken immediate steps to fill the vacancies. However, to our mind, the important aspect is that the State was no exception to the general position prevalent of inadequate judicial posts to deal with the existing inflow of cases. It is only through subsequent directions that a periodic increase in judicial strength has been envisaged. In Brij Mohan Lal (2) [Brij Mohan Lal (2) v. Union of India, (2012) 6 SCC 502 : (2012) 2 SCC (L&S) 177] , it was observed as under: (SCC p. 579, para 207.11) "207.11. Keeping in view the need of the hour and the constitutional mandate to provide fair and expeditious trial to all litigants and the citizens of the country, we direct the respective States and the Central Government to create 10% of the total regular cadre of the State as additional posts within three months from today and take up the process for filling such additional vacancies as per the Higher Judicial Service and Judicial Services Rules of that State, immediately thereafter."
14. The need to set up Fast Track Courts arose on account of delays in the judicial process, targeting certain priority areas for quicker adjudication. In fact, had there been adequate cadre strength, there would have been no need to set up these Fast Track Courts.
15. The appellants were not appointed to the Fast Track Courts just at the whim and fancy of any person, but were the next in line on the merit list of a judicial recruitment process. They were either part of the select list, who could not find a place given the cadre strength, or those next in line in the select list. Had there been adequate cadre strength, the recruitment process would have resulted in their appointment. We do believe that these Judges have rendered services over a period of nine years and have performed their role as Judges to the satisfaction, otherwise there would have been no occasion for their appointment to the regular cadre strength. Not only that, they also went through a second process for such recruitment.
16. We believe that it is a matter of great regret that these appellants who have performed the functions of a Judge to the satisfaction of the competent authorities should be deprived of their pension and retiral benefits for this period of service. The appellants were not pressing before us any case of seniority over any person who may have been recruited subsequently, nor for any other benefit. In fact, we had made it clear to the appellants that we are only examining the issue of giving the benefits of their service in the capacity of Fast Track Court Judges to be counted towards their length of service for pensionary and retiral benefits. To deny the same would be unjust and unfair to the appellants. In any case, keeping in mind the spirit of the directions made under Article 142 of the Constitution of India in Brij Mohan Lal (2) [Brij Mohan Lal (2) v. Union of India, (2012) 6 SCC 502 : (2012) 2 SCC (L&S) 177] and in Mahesh Chandra Verma [Mahesh Chandra Verma v. State of Jharkhand, (2012) 11 SCC 656:(2013) 1 SCC (L&S) 1], the necessary corollary must also follow, of giving benefit of the period of service in Fast Track Courts for their pension and retiral benefits. The methodology of non-creation of adequate regular cadre posts and the consequent establishment of Fast Track Courts manned by the appellants cannot be used as a ruse to deny the dues of the appellants.
17. In a different factual context but on the principle laid down, we take note of the judgment in Nihal Singh v. State of Punjab [Nihal Singh v. State of Punjab, (2013) 14 SCC 65 : (2013) 3 SCC (L&S) 85] of a Bench of this Court to which one of us was a member. The State of Punjab in the 1980s was faced with large scale disturbance and was not in a position to handle the prevailing law and order situation with the available police personnel and, hence, resorted to recruitment under Section 17 of the Police Act, 1861 (hereinafter referred to as "the Act") for appointing Special Police Officers (SPOs). The SPOs were assigned the duty of providing security to banks, for which the financial burden was to be borne by the banks, with the clear understanding that, as per the provisions of the Act, such police officers were to be under the discipline and control of the Senior Superintendent of Police of the District concerned. Such SPOs provided yeoman service in difficult times but when their case was considered for regularisation subsequently, it met with an unfavourable response by an order passed in the year 2002. This Court while recognising that the creation of a cadre or sanctioning of posts was exclusively within the authority of the State, opined that if the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only, such action would be categorised as arbitrary nature of exercise of power. In this context, it was observed by the Bench, thus: (SCC p. 74, para 20) "20. ... Sanctioned posts do not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need."
Thus, the facts found showed that there was the existence of a need for creation of posts and the failure to create such posts or having a stop-gap arrangement, which lasted for years cannot be used to deny in an arbitrary manner, the absorption benefit to the people who had worked for long years. A direction was issued to regularise the services of such SPOs and they were held entitled to the benefits of service similar in nature to the existing cadre of police service of the State.
18. The position in respect of the appellants is really no different on the principle enunciated, as there was need for a regular cadre strength keeping in mind the inflow and pendency of cases. The Fast Track Court Scheme was brought in to deal with the exigency and the appellants were appointed to the Fast Track Courts and continued to work for almost a decade. They were part of the initial select list/merit list for recruitment to the regular cadre strength but were not high enough to be recruited in the existing strength. Even at the stage of absorption in the regular cadre strength, they had to go through a defined process in pursuance of the judgment of this Court and have continued to work thereafter.
19. We are, thus, unhesitatingly and unequivocally of the view that all the appellants and Judicial Officers identically situated are entitled to the benefit of the period of service rendered as Fast Track Court Judges to be counted for their length of service in determination of their pension and retiral benefits."
30. Much in contrast to the case in Mahesh Chandra Verma (1), Srivastava was not recruited to the CBD Project, Department of Preventive and Social Medicine, IMS, BHU, after following any kind of procedure for selection and appointment. He was not appointed to the Project after due selection according to some recruitment rules. The services rendered in the Project were co-terminus with the Project. It was not that, that based on the Project Services, there were any rules for absorption of the CBD Project employees into the regular cadre of the University after following some prescribed procedure for selection or absorption. Rather, the petitioner was appointed in the service of the University on 28.08.1986, after he applied pursuant to an advertisement. Therefore, there is no principle similar to that in Mahesh Chandra Verma (1) attracted to Srivastava's case. His case is one of fresh recruitment to the University's regular cadre. There is no transition involved, governed by rules, from the service of the Project into the University cadre. The appointment with the University is distinct, different and new. In our considered opinion, what is of the greatest relevance is the fact that in principle, there are authorities, including Prem Singh (supra), which, though founded on the interpretation of particular service rules, nevertheless, lay down that the period of service rendered in a project, that leads directly to absorption in the regular cadre, would be reckoned for the purpose of qualifying service. The concession that has been granted by this principle in favour of employees, who have served for a long period of time in the establishment's Project(s) and then absorbed in the regular cadre, is to extend them the benefit of qualifying service.
31. There is a fundamental distinction between 'qualifying service' and that involving in the reckoning of 'total period of service rendered outside the regular establishment' before absorption, for the purpose of computation of pension. While qualifying service entitles the employee to become eligible for pension invariably under the Old Pension Scheme, reckoning of services in the Project for computation of pension is not a principle of eligibility. It is a principle entitling the employee to quantification of his pension and other retiral benefits, taking into account service that was not regular, whether temporary or permanent. Project Services have never been countenanced for the purpose of determining the total length of service in order to determine the quantum of pension payable. Rather, the principle as to qualifying service, subject to rules and facts about the manner and the process through which the employee has moved from the Project into the regular establishment, favour reckoning services outside the regular establishment to count towards eligibility for pension alone, which we have explained hereinbefore. In this regard, reference may be made to Uday Pratap Thakur (supra), where the Court, explaining the principle in Prem Singh, held:
"22. Insofar as the submission on behalf of the appellants that their entire services rendered as work charged should be considered and/or counted for the purpose of pension/quantum of pension is concerned, the same cannot be accepted. If the same is accepted, in that case, it would tantamount to regularizing their services from the initial appointment as work charged. As per the catena of decisions of this Court, there is always a difference and distinction between a regular employee appointed on a substantive post and a work charged employee working under work charged establishment. The work charged employees are not appointed on a substantive post. They are not appointed after due process of selection and as per the recruitment rules. Therefore, the services rendered as work charged cannot be counted for the purpose of pension/quantum of pension. However, at the same time, after rendering of service as work charged for number of years and thereafter when their services have been regularized, they cannot be denied the pension on the ground that they have not completed the qualifying service for pension. That is why, the service rendered as work charged is to be counted and/or considered for the purpose of qualifying service for pension, which is provided under Rule 5(v) of the Rules, 2013.
23. Now, insofar as the reliance placed upon the decision of this Court in the case of Prem Singh (supra) by the learned counsel appearing on behalf of the appellants is concerned, the reliance placed upon the said decision is absolutely misplaced. In the said case, this Court was considering the validity of Rule 3(8) of the U.P. Retirement Benefit Rules, 1961, under which the entire service rendered as work charged was not to be counted for qualifying service for pension. To that, this Court has observed and held that after rendering service as work charged for number of years in the Government establishment/ department, denying them the pension on the ground that they have not completed the qualifying service for pension would be unjust, arbitrary and illegal. Therefore, this Court has observed and held that their services rendered as work charged shall be considered/counted for qualifying service. This Court has not observed and held that the entire service rendered as work charged shall be considered/counted for the quantum of pension/pension. The decision of this Court in the case of Prem Singh (supra), therefore, would be restricted to the counting of service rendered as work charged for qualifying service for pension.
24. In view of the above and for the reasons stated above, present appeals lack merits and the same deserve to be dismissed and are accordingly dismissed. It is observed and held that the service rendered as work charged after their services have been regularized under the regularization scheme, namely, the Rules, 2013 and the Circular shall be counted for the purpose of qualifying service for pension only as per Rule 5(v) of the Rules, 2013."
(emphasis by Court)
32. So far as Srivastava is concerned, his is not a case where he has been deprived of pension under the Old Pension Scheme on account of shortage of years in the regular establishment. He is in receipt of pension. His service in the regular cadre entitles him to a pension under the Old Pension Scheme, which he received while alive, and, now, the petitioner would be the beneficiary of a family pension based on Srivastava's retirement pension. Srivastava's case is, therefore, not one of 'crisis of shortage of years' in the regular establishment, placing him on the wrong side of completing the qualifying service before retirement. Srivastava completed his qualifying service in the regular establishment. He was sanctioned and paid a retirement pension until alive. The petitioner would be receiving family pension reckoned on that basis. This leaves us to consider the petitioner's plea about the quantum of pension payable to him on the basis of his plea of discrimination vis-a-vis Joshi.
33. As already noticed, Joshi was initially appointed on temporary basis in the regular establishment of the University, in the pay scale of ₹425-700/- w.e.f. 06.04.1979, as a Social Worker in the Centre of the Radiotherapy & Radiation Medicine, IMS vide Letter No. EST/12359 dated 31.03.1979, a copy of which is annexed as Annexure No. SCA1 to the supplementary counter affidavit filed on behalf of the respondents, bearing No.16 of 2024. As against this, Srivastava joined the regular establishment on 28.08.1986, much after Joshi's initial appointment on 06.04.1979. Joshi never worked in a project. It is also evident that Srivastava was granted a pension on his last pay drawn, that was in the pay-sale of ₹6500-10500 (₹2000-3500 pre-revised) as on 31.08.2005, the date when he superannuated. Srivastava was thus appointed on 28.08.1986 and retired on 31.08.2005, whereas Joshi was appointed much earlier to the University service, albeit on a temporary basis initially, and retired on 31.03.2010, much after Srivastava. Joshi, therefore, retired receiving a much higher pay-sale and was, therefore, sanctioned a higher pension, accordingly. There is, therefore, apparently no case of hostile discrimination by the respondents between Srivastava and Joshi in the matter of fixation of their respective pensions.
34. Reference has then been made by Mr. Khare to substantiate a case of hostile discrimination against Srivastava to cases of Om Prakash Singh and Vijay Narayan Singh, both of whose cases are pointed out to have been recommended for reckoning their project services in order to determine their quantum of pension. A copy of the office note and the resolution of the Non-Teaching Staff Grievance Committee dated 06/07.04.2017 in the case of Om Prakash Singh, in the matter of fixation of his pension, is annexed as Annexure No. SA-1 to the supplementary affidavit, bearing No.18 of 2024. After a detailed consideration of the matter, the Non-Teaching Staff Grievance Committee resolved in favour of counting the project services of Om Prakash Singh for the purpose of computation of his pension, as well as that of other similarly circumstanced employees, in the following terms:
"Resolved that the request of Shri O.P. Singh former Sr. Clerk, Office of the Controller of Examinations, BHU for counting of past services rendered by him in CBD project & Centre for Population Education, Research and Extension, Deptt. of PSM, IMS w.e.f. 01.02.1983 for pensionary and other incidental benefits by counting the period 01.04.1997 to May 2004 notionally be acceded to.
Resolved further that on the same line the request, of seven other employees nameely S/Shri Kedar Nath Gupta, Krishna Tiwari, R.K. Ram, Kamala Shanker Mishra, Vijay Bahadur Pandey, Vijay Narayan Singh, Hanumanji and other CBD staffs' be admitted/ considered and the consequential benefit be extended to them as well from date the respective joining."
35. This, however, does not appear to help the petitioner much, for the reason that the recommendations of the Non-Teaching Staff Grievance Committee, were recommendations after all, and not an effective decision by the University, enuring to the named employee's benefit. The recommendations of the Non-Teaching Staff Grievance Committee, when these came up before the Vice Chancellor, the competent Authority to act on behalf of the respondents, rejected the recommendations of the said Committee vide order dated 30.09.2022, a copy whereof is annexed as Annexure No. IInd SCA-4 to the second supplementary counter affidavit filed on behalf of respondent Nos.1 to 5, bearing No.20 of 2024. The aforesaid order relates to Vijay Narayan Singh and a host of other employees. In case of Om Prakash Singh, his representation dated 09.09.2014 was rejected and the decision communicated to him vide memo dated 13.07.2017 by the Office of the Registrar (Administration)-Non-Teaching of the University. A copy of the said order dated 13.07.2017 is annexed as Annexure No. IInd SCA-2 to the second supplementary counter affidavit filed on behalf of respondent Nos.1 to 5, bearing No.20 of 2024. Later on, as already noted, his case appears to have been recommended by the Non-Teaching Staff Grievance Committee, but turned down like other employees, with the order of the Vice Chancellor dated 30.09.2022, discarding all recommendations of the Non-Teaching Staff Grievance Committee for the reckoning of period of service rendered by any of them in the CBD Project or other project for the purpose of quantification of their pension, to which they were entitled upon retirement.
36. In considering all these facts, issues and circumstances, besides the law, which bears on the point, we do not find it to be a fit case for the grant of relief in the exercise of our jurisdiction under Article 226 of the Constitution.
37. In the result, this writ petition fails and stands dismissed.
38. There shall be no order as to costs.
Allahabad July 08, 2025 Anoop/I. Batabyal (J.J. MUNIR) JUDGE Whether the order is speaking : Yes Whether the order is reportable : Yes