Allahabad High Court
State Of U.P. Thru. Prin. Secy. ... vs Kamata Prasad Yadav & Another on 9 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 358
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 3 Case :- SERVICE BENCH No. - 29272 of 2017 Petitioner :- State Of U.P. Thru. Prin. Secy. Education(Mdhyamik) & Others Respondent :- Kamata Prasad Yadav & Another Counsel for Petitioner :- Standing Counsel Counsel for Respondent :- C.S.C.,Birendra Kumar Yadav,Keshwa Nand Srivastava Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the parties and perused the record.
By means of present writ petition, petitioner has challenged the impugned judgment and order dated 28.08.2015 passed by opposite party no.2/State Public Services Administrative Tribunal Lucknow in Claim Petition no.803 of 2014 (Kamata Prasad Yadav Vs. State of U.P. and others.
Before the Tribunal, claim petition was filed for the following reliefs:-
"(1) To issue order of direction to the opposite parties to allow the pensionary benefits to the petitioner from the date of his initial appointment i.e. 26.11.1977 and modify the pension payment order dated 31.08.2013 and thereafter allowed all consequential service benefits including arrears of pensionary benefits and gratuity alongwith interest @ 18% per annum from date of retirement.
(2) To issue any order or direction which this Hon'ble Court may deem fit and proper be passed in favour of the petitioner.
(3) To allow cost of petition in favour of the petitioner."
For the purpose of reliefs shought before the Tribunal , the respondent -Kamta Prasad Yadav in the claim petition has stated that he was appointed on the post of Assistant Teacher LT grade vide order dated 14.11.1977 against the permanent substantive vacancy on adhoc basis and subsequently services were regularized vide order dated 31.06.1986 and on attaining the age of superannuation he retired on 30.06.2013.
Aforesaid facts are not in dispute as would appear from paras 3 and 4 of the impugned order dated 28.08.2015, the same reads as under:-
"3. Opposite parties have filed their C.A./W.S. denying the claim of the petitioner. The opposite parties have asserted that three requisites are mentioned for any services to be pensionable as mentioned in Article 361 of Civil Services Regulation, hereinafter referred as CSR.
1. The services must be under Government
2. The employment must be substantive and permanent.
3. The services must be paid by the Government
4.According to the opposite parties the petitioner fulfilled the conditions 1 and 3 but since he was appointed as an ad hoc teacher his appointment was not substantive therefore, his services before retirment did not qualify for the pension. The opposite parties have also mentioned that in the case of similarly situated person Sri Ganga Prasad Chaurasia, Assistant Teacher mentioned by the petitioner as mistake was committed but when this came to the notice of the Additional Director ( Pension) he has demanded report and details for correcting the mistake and this count the ad hoc services."
It appears from impugned order dated 28.08.2015, the Tribunal after considering the facts pleaded before it by the parties including order of Principal Secretary,Finance dated 22.10.2012 allowed the claim petition. The operative portion of the order dated 28.08.2015 reads as under:-
"This reference petition is allowed. The opposite parties are directed to pay the pensionary benefit to the petitioner treating the date of his initial appointment as 26.11.1977 with all consequential service benefit including gratuity and continuity in service along with interest at the rate of 10% from the date of his retirement . The revised P.P.O. be issued accordingly by O.P. no.3. The whole order shall be complied with , within four months from the date of receipt of certified copy of this order."
In the case of Sudama Prasad Vs. State of U.P. and Others reported in 2018 (3) ESC 1754 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, 2018 (11) ADJ 92 (DB), 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 368of 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- Theservice 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 perArticle 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 inArticle 368of 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 materiaArticle 370of 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 thatArticle 368of 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 thatArticle 368of 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 readArticle 368along withArticle 370of the Civil Service Regulations, which is pari materia Rule 3(8) of the Rules, 1961.
In so far asArticle 361of 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 andArticle 370of 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."
Another constitution bench of the apex court comprising five- judges inRudra 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"..........".
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 byArticle 368of 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 370of 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 theemployees 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 suchservice 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 thatwork-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 inSecretary,State of Karnataka & Ors. v. Uma Devi2006 (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 aredismissed."
In the instant, it is also not disputed that respondent was appointed on ad-hoc basis on substantive post of Assistant Teacher and thereafter he was regularized vide order dated 30.06. 1986 and he continued in service from the date of his initial appointment till the date of superannuation i.e. 30.06.2013 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 respondent 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 20.08.2015 is not liable to interfered.
In the result, the writ petition lacks merit, accordingly dismissed.
No order as to costs.
.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 9.1.2020 dk/