Allahabad High Court
Mohd. Naseem Uddin And Another vs State Of U.P. Thru. Secy. Vocational ... on 17 April, 2025
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:21756 Court No. - 18 Case :- WRIT - A No. - 4156 of 2025 Petitioner :- Mohd. Naseem Uddin And Another Respondent :- State Of U.P. Thru. Secy. Vocational Edu. Skill Development U.P. Lko. And 2 Others Counsel for Petitioner :- Shivam Sharma Counsel for Respondent :- C.S.C. Hon'ble Karunesh Singh Pawar,J.
1. Heard learned counsel for the petitioners and learned Standing Counsel for respondents 1 to 3.
2. Learned counsel for the petitioners submits that the petitioners retired from class I post, State Government on 29.02.2020 and 31.01.2020 respectively. Initially, they were appointed as class-2 gazetted Officer in State Training Service (Labour Department) vide appointment orders dated 22.07.1988 and 05.10.1988 respectively. After being duly selected, they were appointed against substantive and permanent vacancy in a pensionable establishment. The services of petitioner No.1 were regularized vide order dated 30.12.2014 w.e.f. 14.02.2002, however, petitioner No.2 was regularized vide order dated 03.05.2006 from that date itself.
3. It is submitted that the petitioners after retirement are getting pension, however the Pension Directorate has arbitrarily calculated pension and gratuity of the petitioner from the date of their regularization and their continuous service from the date of initial appointment has been ignored.
4. He submits that similar controversy has invited attention of the Court in Special Appeal (defective) No. 217 of 2024; State of U.P. and three others vs. Dr. Mahendra Singh and two others, whereby the special appeal filed by the State against the order passed by learned single judge allowing writ petition of Dr. Mahendra Singh and others issuing direction to compute the services rendered as ad-hoc for the purposes of qualifying service for payment of full pension, has been upheld. He submits that this judgment passed in Special Appeal has attained finality, as it has not been challenged by the State till date. The judgment and order passed by the Division Bench in the case of Dr. Mahendra Singh (supra) is extracted below:
"Order on Delay Condonation Application
1. Heard Sri Amit Manohar, learned counsel for the appellants and Sri Raghvendra Prasad Mishra, learned counsel for the respondents.
2. Reasons for delay in filing the special appeal have been satisfactorily explained. Delay Condonation Application is consequently allowed. Office is directed to treat the appeal as having been filed within time. Regular Number would be allotted to the appeal.
Order on Special Appeal
1. Respondent was appointed as a doctor on adhoc basis by the State Government on 18.06.1988 in the Ayush Department. His services came to be regularized on 16.03.2005. The regularization order has attained finality. The respondent-petitioner has also superannuated on 28.02.2019.
2. A claim was raised before the authorities for inclusion of his services rendered as adhoc doctor relying upon Rule 3(8) of the U.P. Retirement Benefit Rules, 1961, which is reproduced hereinafter:
"Rule 3(8)- " Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations: Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except-
(i) periods of temporary or officiating service in a non-pensionable establishment.
(ii) periods of service in a work-changed establishment, and
(iii) periods of service in a post, paid from contingencies; shall also count as qualifying service.
Note- If service rendered in a non-pensionable establishment, work-charged establishment or in post paid form contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."
3. The claim was not considered and a writ petition accordingly came to be filed stating that respondent-petitioner is entitled to full pension and its denial by the authorities vide order dated 26.06.2019 was arbitrary. It is this writ petition which has been allowed by the learned Single Judge relying upon the provisions contained in Rule 3(8) of the Rules of 1961 as well as series of orders passed by this Court in similar matters.
4. Learned counsel for the State submits that the respondent petitioner was not appointed strictly in accordance with the rules of recruitment and, therefore, the previous adhoc services rendered by him ought not to be added towards qualifying service in view of U.P. Act No.1 of 2021.
5. It is admitted that U.P. Act No.1 of 2021 has come into existence on 05.03.2021. An ordinance prior to it was issued on similar lines on 21.10.2020 providing that adhoc appointment offered contrary to recruitment rules was not liable to be counted towards qualifying service.
6. So far as the U.P. Act No.1 of 2021 as well as ordinance issued prior thereto on 21.10.2020 are concerned, though these provisions would apply retrospectively from the date of introduction of the U.P. Retirement Benefit Rules, 1961, but the amended provisions cannot be pressed into service in respect of such retired employees in whose favour entitlement had already stood crystallised prior to the incorporation of amending provisions vide ordinance or U.P. Act No.1 of 2021. The issue in that regard has been settled by a Constitution Bench in Chairman Railway Board versus C.R. Rangadhamaiah, AIR (SC) 1997 0 3828. The Constitution Bench judgment has been relied upon by the Supreme Court in Punjab State Cooperative Agricultural Development Bank Ltd versus Registrar, Cooperative Societies, AIR (SC) 2022 0 1349. In Para 44, the Supreme Court has referred to the Constitution Bench judgment in Chairman Railway Board (supra) and expounded the law in para 47 to 50 of the judgment which are reproduced hereinafter:
"47. The exposition of the legal principles culled out is that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.
48. In the instant case, the Bank pension scheme was introduced from 1st April 1989 and options were called from the employees and those who had given their option became member of the pension scheme and accordingly pension was continuously paid to them without fail and only in the year 2010, when the Bank failed in discharging its obligations, respondent employees approached the High Court by filing the writ petitions. The Bank later on withdrawn the scheme of pension by deleting clause 15(ii) by an amendment dated 11th March, 2014 which was introduced with effect from 1stApril, 1989 and the employees who availed the benefit of pension under the scheme, indeed their rights stood vested and accrued to them and any amendment to the contrary, which has been made with retrospective operation to take away the right accrued to the retired employee under the existing rule certainly is not only violative of Article 14 but also of Article 21 of the Constitution.
49. It may also be noticed that there is a distinction between the legitimate expectation and a vested/accrued right in favour of the employees. The rule which classifies such employee for promotional, seniority, age of retirement purposes undoubtedly operates on those who entered service before framing of the rules but it operates in futuro. In a sense, it governs the future right of seniority, promotion or age of retirement of those who are already in service.
50. For the sake of illustration, if a person while entering into service, has a legitimate expectation that as per the then existing scheme of rules, he may be considered for promotion after certain years of qualifying service or with the age of retirement which is being prescribed under the scheme of rules but at a later stage, if there is any amendment made either in the scheme of promotion or the age of superannuation, it may alter other conditions of service such scheme of rules operates in futuro. But at the same time, if the employee who had already been promoted or fixed in a particular pay scale, if that is being taken away by the impugned scheme of rules retrospectively, that certainly will take away the vested/accrued right of the incumbent which may not be permissible and may be violative of Article 14 and 16 of the Constitution."
7. Since the right to receive pension had accrued in favour of the respondent on the date of his superannuation, we find that such accrued and vested right cannot be taken away by retrospective application of the Pension Rules, as is sought to be pressed by the State.
8. The rights which have already accrued to a retiring employee, thus, cannot be taken away on account of a retrospective application of the rule introduced later in point of time. In the present case, the employee had retired on 28.02.2019. His right to receive pension would have to be examined with reference to the applicable provision on the date of superannuation. Rule 3(8) of the unamended Rules of 1961 were applicable on 28.02.2019. Merely because the U.P. Retirement Benefit Rules have been amended subsequently in March, 2021 or by ordinance w.e.f. 21.10.2020, it would not mean that the rights which have already accrued in favour of the retiring employee can be retrospectively withdrawn. We, therefore, find ourselves in respectful agreement with the view taken by the learned Single Judge in allowing the writ petition and issuing a direction to compute the services rendered as adhoc doctor for the purpose of determination of qualifying service for payment of full pension. The view that we have taken is otherwise consistent with the Division Bench judgment in Dr. Amrendra Narain Srivastava versus State of U.P. and others, passed in Writ- A No. 61974 of 2011, decided on 01.03.2012.
9. The special appeal filed by the State thus lacks merit and is, accordingly, dismissed."
5. Learned Standing Counsel has opposed the petition by submitting that the aforesaid judgment is distinguished from the case of the petitioner, however, he could not dispute the fact that the judgment in the case of Mahendra Singh (supra) has attained finality. He has placed reliance on the judgment of the Full Bench in Ram Das Yadav and others vs. State of U.P. and others passed in Service Single No.25955 of 2017 and other connected matters, decided on 08.11.2021.
6. Perused the record.
7. In the aforesaid case before Full Bench, the writ petitioners had claimed that their services as work charge employees should be calculated in the regular service for the purpose of pension. Rule 3(8) of Rules 1961, provides the qualifying service which includes the services rendered on ad-hoc basis. The services of the petitioners were continuous and did not fall under the exception provided under rule 3(8) whereas in the case before the full Bench the petitioners were work charge employees. Petitioners also cannot be said affected by the U.P. Act 1 of 2021 as well as the ordinance issued on 31.10.2020. The amended provisions cannot be made effective in respect of the retired employees in whose favour a vested right has accrued prior to the amendment vide U.P. Act No. 1 of 2021 or the Ordinance. The division Bench while dismissing the appeal filed by the State has taken note of the judgement of Hon'ble Supreme Court in para- 6 of the judgment.
8. Thus considering the fact that issue involved in this petition and the prayer made are squarely covered by the judgment of the division Bench in the Special Appeal, the petition is allowed in terms of the aforesaid judgement dated 18.03.2024.
9. The respondents are directed to compute the services of the petitioners rendered on ad-hoc basis for the purposes of determination of their qualifying service for payment of full pension.
Order Date :- 17.4.2025 Reena/-
(Karunesh Singh Pawar,J.)