Allahabad High Court
Sant Lal Rakesh vs State Of U.P. And 4 Others on 2 January, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 20486 of 2019 Petitioner :- Sant Lal Rakesh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- D.K.Ojha,Gautam Baghel Counsel for Respondent :- C.S.C. Hon'ble J.J. Munir,J.
The petitioner was appointed on the post of a Junior Clerk on ad hoc basis by an order of the Executive Engineer, Ballia dated 12.02.1987. It is pointed out that according to the service book of the petitioner, he was appointed on ad hoc basis on 20.02.1987. This Court, therefore, presumes that the appointment of the petitioner, on the post of a Junior Clerk made on ad hoc basis, was with effect from 20.02.1987. The services of the petitioner have been regularized by an order of the Executive Engineer dated 12.12.2014 with effect from 20.12.2001. This position is not disputed by the respondents.
The submission of learned counsel for the petitioner is that the petitioner has also been granted the benefit of Assured Career Progression with effect from 14.01.2015, taking into account his ad hoc service from 1987. The petitioner has retired from service on 31.01.2015. The petitioner is being paid pension and other post retiral benefits excluding his ad hoc service. The post retiral benefits have been worked out on a total period of 14 years 10 months and 8 days, whereas reckoning his ad hoc service, the total length of service is 28 years. The petitioner has placed reliance upon a decision of a Division Bench of this Court in Civil Misc. Writ Petition No. 47448 of 2014 Shashi Srivastava vs. State of U.P. and another, wherein it has been held that services rendered on ad hoc basis followed by regularization would be reckoned towards qualifying service for the purpose of retiral benefits. Learned counsel for the petitioner has, in particular, referred to para nos. 8, 9 and 11, which read thus:
"8. It is not in dispute that petitioner was appointed on substantive post in permanent establishment which is/was pensionable. Nature of his appointment i.e. ad-hoc appointment is not of much relevance in as much as period spent by him as ad-hoc was in permanent pensionable establishment, which ultimately resulted into regularization of petitioner without any break in service.
9. Moreover, vide Sub-rule 8 of Rule 3 of Rules 1961, qualifying service includes temporary service followed by confirmation and continued without interruption. In this view of the matter, services rendered by petitioner on ad-hoc basis followed by Regularization would stand covered under "qualifying service" defined under Rule 3(8) of Rules 1961, for the purpose of pension.
11. Even otherwise, we find that Fundamental Rule 56, as operative in Uttar Pradesh made by Provincial Legislation, clearly provides that any person, who retires under Fundamental Rule 56, would be entitled for 'retiring pension'. Fundamental Rule 56, since, it is a Provincial enactment, would prevail over C.S.R., which are pre-constitutional provision. This aspect was considered by a Division Bench of this Court in Prasidh Narain Upadhyay, 2006(1)ESC 611, and Court held:
"12. The term "qualifying service" is defined in Section 1 Chapter 16 of Article 361 of the Civil Service Regulations which provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions:
(A)The service must be under Government.
(B)The employment must be substantive and permanent.
(C)The service must be paid by Government.
13. In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B, i.e. lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P. Act No. 24 of 1975 which allows retirement of a temporary employee also and provides in Clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was Service Regulations, which are pre-constitutional would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus, is inoperative.
14. A similar controversy came up for consideration earlier before this court in the case of Dr. Hari Shanker Ashopa Vs State of U.P. and others, 1989 ACJ 337. After referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations, this Court observed as under:
"Clause (e) of Rule 56 unequivocally recognizes, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation, or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Clause (a) of Clause (b), or who is required to retire, or who is allowed to retire under Clause (C) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied."
Mrs. Archana Tyagi, learned Addl. C.S.C., on instruction received, does not dispute the aforesaid fact that under the law the petitioner is entitled to the reckoning of his services for the purpose of determining his post retiral benefits that he has rendered on ad hoc basis.
It appears that on account of some objection by the Treasury Officer, Prayagraj, the petitioner?s revised post retiral benefits have not been paid, counting his services rendered on ad hoc basis. There is absolutely no justification to discount the petitioner's services rendered as an ad hoc employee in a case where he has subsequently been regularized on the same post. The petitioner is indeed entitled to all post retiral benefits, taking into account his ad hoc services.
In the result, the writ petition is allowed. The respondents are ordered to recalculate the petitioner's pension and other retiral benefits taking into account his ad hoc service since 20.02.1987 to 20.12.2001 (as per period of service recorded in the service book). The Treasury Officer is ordered, in particular, not to lay any obstruction in recalculation and disbursement of revised emoluments in accordance with orders of this Court.
There shall be no order as to costs.
Order Date :- 2.1.2020 Deepak