Allahabad High Court
Brahamanand Singh & 14 Ors. vs State Of U.P. Through Prin. Secy. ... on 19 September, 2017
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- SERVICE SINGLE No. - 4079 of 2015 Petitioner :- Brahamanand Singh & 14 Ors. Respondent :- State Of U.P. Through Prin. Secy. Revenue Lko. & Ors. Counsel for Petitioner :- Sushil Kumar,A.P. Singh,Akshat Srivastava Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
1. This petition was initially filed with a prayer to command the respondents to grant pensionery benefits to the petitioners from the date of their initial appointment, in light of the order dated 7.11.2006 passed by this Court in Writ Petition No.9235 of 1989 as well as the order dated 18.11.2005 passed in Writ Petition No.20131 of 1989 and also include temporary services of petitioners for the purposes of grant of retiral benefits. By way of amendment, petitioners have challenged office order dated 9.9.2015, passed upon the representations made by petitioners pursuant to the following orders passed in this petition on 22.7.2015:-
"Heard learned counsel for parties and perused the record.
Learned Standing counsel prays for and is granted six weeks' time to file counter affidavit. Two weeks' time thereafter is granted to learned counsel for the petitioners to file rejoinder affidavit.
After hearing learned counsel for parties, in the interest of justice, as an interim measure, it is provided that petitioners are permitted to move individual representation to opposite party no.2/ Commissioner/ Secretary, Board of Revenue U.P. Lucknow within two weeks from today in respect to their grievances which they have raised in the present writ petition annexing all relevant documents and materials in support of their case and after receiving the same, opposite party no.2 shall consider and dispose of by way of speaking and reasoned order in accordance with law within a further period of four weeks thereafter.
List after eight weeks."
Petitioners by the same amendment have also challenged their regularization order dated 5.4.2007, in so far as it regularizes the services of petitioners w.e.f. 5.4.2007. A prayer is further made to direct the respondents to treat the petitioners as regularized from the date of their initial appointment.
2. Petitioners were initially engaged as Seasonal Collection Amin at District Deoria, on different dates in the years 1975, 1976 and 1977. They claimed to have been appointed against post of Collection Amin lasting throughout the year on different dates from 2nd December, 1986 to 27th April, 1989. The Board of Revenue appears to have issued certain directions on 1.7.1987 and 16.11.1987 asking all District Magistrates to cancel the services of temporary and ad hoc Amins, pursuant to which services of petitioners were also terminated on 16.10.1989. An interim order came to be passed in writ petition no.9235 of 1989 filed by petitioners on 27.10.1989, and the writ petition was ultimately disposed of, vide following orders passed on 7.11.2006:-
"Heard learned counsel for the parties and perused the record.
It emerges from record that the petitioners were engaged as Seasonal Collection Amin in District Deoria during 1976. Details of their initial appointments have been indicated in para 5 of the writ petition. On 01.07.1987 and 16.11.1987 the Board of Revenue directed all the District Magistrate in the State to cancel the service of temporary workers and adhoc employees. In furtherance of the said order, the petitioners' services were terminated on 16.10.1989. This order was challenged by filing the present writ petition and interim order was granted on 27.10.1989 by a Division Bench of this Court allowing the petitioners to continue in the services.
Accordingly, the petitioners have been continuing in the services for the last about 30 years. The grievance of the petitioners is that they have not been regularized in the services. This Court had passed a judgment on 04.04.1997 but the same was assailed by the State Government by filing special appeal before a Division Bench of this Court. The Division Bench has been pleased to remand the matter for hearing it on merits.
The petitioners have demonstrated that they were initially appointed as Seasonal Collection Amin on various dates in the year 1975, 1976 and 1977. This fact has not been entertained by filing a counter affidavit. However, the petitioners are still continuing in the services. Subsequent to filing of the writ petition two sets of regularization of Rules have been implemented in the revenue department one is U.P. Amin rule. The petitioners' cases are covered by both the sets of the rules specially the adhoc rule 2001, as amended up to date.
In view of above, it can be provided that the petitioners' cases deserve to be considered for regularization in the light of the aforementioned service rules.
Accordingly, the writ petition is allowed. The opposite parties are directed to consider the case of the petitioners for regularization under the relevant regularization rules. Appropriate orders shall be passed within four months from the date of production of a certified copy of this judgment and order. The petitioner's have already put in more than 30 years services and there is nothing against the conduct and performance of the petitioners. In view of this fact and subsequent developments the impugned order of termination issued on 16.10.1989 is quashed."
3. It is on record that pursuant to the orders passed by this Court, services of petitioners came to be regularized w.e.f. 7.11.2006. Some of the petitioners were also regularized on 24.1.2007. It is admitted that regularization of all the petitioners is after 1.4.2005 when the scheme of contributory pension was introduced replacing pension payable under the U.P. Retirement Benefits Rules, 1961 (hereinafter referred to as the 'Rules of 1961'). Petitioner Brahamanand Singh and some others, however, were granted benefit of pension, which has subsequently been withdrawn, giving rise to filing of this writ petition in the year 2015.
4. Learned counsel for the petitioners has placed reliance upon Division Bench judgments of this Court in State of U.P. and others Vs. Ram Sunder Ram, reported in 2016 (34) LCD 2804, and Board of Revenue and others Vs. Prasidh Narain Upadhyay, reported in 2006 (1) ESC 611, in order to contend that by virtue of Fundamental Rule 56 and paras 63, 65 and 65-A of the Civil Service Regulations, even a temporary employee is entitled to payment of pension. Contention is that in case petitioners are treated to have been appointed between 1986 to 1989, they would be covered by the U.P. Retirement Benefits Rules, 1961, and petitioners' working as temporary employees till the date of regularization in 2007 would also be counted for payment of pension under the Rules of 1961.
5. The petition is opposed by the learned Standing Counsel stating that petitioners' date of regularization would be treated to be their date of entry into service and the applicable rules as enforced on that date alone would govern their rights. Contention is that since w.e.f. 1.4.2005, the Rules of 1961 would seize to apply, as such the benefit of pension under the 1961 Rules would not be admissible to the petitioners.
6. There are two distinct aspects, which call for consideration in this matter. The first and foremost question that rises for consideration is as to what would be the date of entry into service for the petitioners; whether it would be between 1986 to 1989, when they got engaged on temporary basis as Collection Amin or the date of their regularization in 2007, so as to determine the pension rule applicable upon them. The second aspect arising is as to whether the services rendered on temporary basis, prior to regularization, are to be counted for the purposes of grant of pension or not?
7. In the present case, petitioners admittedly were engaged as Seasonal Collection Amin between 1975 to 1977 on different dates. Their continuance on seasonal basis, from time to time, was followed with temporary appointment offered on different dates between 1986 to 1989, after which petitioners continued to work throughout the year. Such temporary engagement, however, was discontinued on 16th October, 1989, pursuant to the directions issued by the Board of Revenue on 1.7.1987 and 16.11.1987. The order of termination was challenged by filing writ petition in which an interim order came to be passed on 27.10.1989. The petition was finally allowed vide order dated 7.11.2006, which has already been extracted above. Orders of regularization have been passed in favour of petitioners on 5.4.2007. Pursuant to such orders, petitioners have joined and continued in service, whereafter they attained the age of superannuation. It is by way of an amendment filed in the writ petition that regularization order has been challenged on the ground that petitioners were liable to be regularized from the date, they got engaged on temporary basis. Law is settled that regularization can be granted only as per rules.
8. Admittedly on the date when order of termination was passed against the petitioners in 1989, their claim for regularization was not covered under any existing rule, the then enforced. It is only when the writ petition was allowed on 7.11.2006 and the order dated 16.10.1989 was quashed that the claim of petitioners for regularization was required to be considered. The petitioners, in such circumstances, cannot claim consideration for regularization on any date prior to 7.11.2006, inasmuch as services of petitioners stood terminated, and it was only after the order of this Court that their claim for regularization could be examined. Pursuant to the order passed by this Court, petitioners' claim for regularization has been considered and allowed on 5.4.2007. Though the order of regularization was passed in the year 2007, but the same was never challenged and the petitioners availed its benefit. It is only after their retirement that the order has been challenged by way of amendment. An objection is taken by the respondents to entertainability of such a plea on the ground that it is highly belated and is barred by laches. It is also argued that petitioners had accepted the regularization order and acquired to it, whereafter it is no longer open for the petitioners to challenge it, after they have retired. It is also contended that there is no provision under which petitioners could claim to be entitled for regularization from any date prior to 1.4.2005.
9. Though petitioners contend that they are entitled to be regularized from the date of their temporary appointment in the year 1986 to 1989, but no provision in law has been shown whereunder such a right could be claimed. Law is otherwise settled that regularization can be in accordance with the rules applicable (See:- State of Karnataka Vs. Uma Devi; (2006) 4 SCC 1). Petitioners have not been able to demonstrate that under the Rules of Regularization, they had acquired right to be considered for regularization between 1986 to 1989. Even under the Rules of 2001, petitioners could not have been considered for regularization prior to 7.11.2006. This Court while allowing the petition had not directed consideration of petitioners' claim from any date prior to passing of order itself. Petitioners have otherwise accepted the order of regularization passed in the year 2007, and the same was never challenged while they remained in service. In such circumstances, petitioners' claim for being regularized from the date they were granted status of temporary employee is not covered under the Rules for Regularization, and as such, the prayer made to modify the order of regularization by granting its benefit from any date prior to 5.4.2007 is rejected.
10. Learned counsel for the petitioners has placed reliance upon various decisions in order to contend that the temporary services rendered by the employee concerned is also liable to be counted for determining the qualifying service. The judgments, which have been relied upon by the counsel for petitioners, relate to determination of qualifying service stipulated in Rule 3(8) of the Rules of 1961. Rule 3(8) of the Rules of 1961 as well as Regulation 370 of the Civil Service Regulations are extracted hereinafter:-
"Rule 3 (8) of the U.P. Retirement Benefits Rules, 1961:-
"3. In these rules unless there is anything repugnant in the subject or context- (1)..................
(2)..................
(3)...................
(4)...................
(5)...................
(6)...................
(7)...................
(8) "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service 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-charged 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 a post paid from 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."
Regulation 370 of the Civil Service Regulations:-
"370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post shall qualify except-
(i) periods of temporary of 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."
Rule 3(8) of 1961 Rules is pari materia with Regulation 370, except that by an amendment, the note, as appearing in Rule 3(8), which also existed in Regulation 370, was omitted w.e.f 20.04.1977.
Certain other provisions, which are relevant for the purpose, are quoted herein below:-
"The term "Officer" used in the U.P. Retirement Benefits Rules, 1961 is defined in Rule 3(6) as under:-
"3(6). "Officer" means a Government Servant (whether belonging to superior to inferior service) who holds a lien on a permanent pensionable post under the Government or would have held a lien on such a post had his lien not been suspended;"
Regulation 361 and 368 of the Civil Service Regulations reads as under:-
"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.
These three conditions are fully explained in the following Section.
368. Service does not qualify unless the officer holds a substantive office on a permanent establishment."
Fundamental Rule 56 prescribes the age of superannuation of Government servants. Fundamental Rule 56(e) provides that a retiring pension shall be payable together with other retirement benefits, if any, available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule.
Pensionary benefits are admissible to government employees in the State of U.P. in terms of the Rules, 1961 and the application of the Civil Service Regulations is also in terms of the said Rules vide Rule 2(2) thereof, subject to conditions mentioned therein.
11. The Division Bench in Ram Sunder Ram (supra) as well as in Prashid Narain Upadhyay (supra) dealt with the issue relating to entitlement to receive pension under the Rules of 1961. By relying upon Fundamental Rule 56, as amended vide U.P. Act No.24 of 1975, a retiring pension is payable to a temporary employee also by virtue of Clause (e). This provision, however, has no applicability in the facts of the present case, inasmuch as petitioners have not retired from service as a temporary employee. Petitioners have retired after their regularization in 2007. The provisions of Rules of 1961 apparently would have no applicability in the facts of the present case. The Rules of 1961 have been amended vide notification dated 7.4.2005, whereby Sub-rule 3 has been added to Rule 2 of the Rules of 1961, and the same is reproduced:-
"(3) These Rules shall not apply to employees entering services and posts on or after April 1, 2005 in connection with the affairs of the State, borne on pensionable establishment, whether temporary or permanent."
12. Petitioners have been regularized after 1.4.2005, which would be their date of entry into service. The Rules of 1961, therefore, would not be attracted in the facts of the present case. The provisions of Rule 3(8) also would not be attracted. The judgments of Division Bench in Prashid Narain Upadhyay (supra) and Ram Sunder Ram (supra) for such reasons would have no applicability. It was only if Rules of 1961 were attracted that any question would arise for inclusion of services rendered on temporary basis, in view of Rule 3(8) of the Rules of 1961. However, as the Rules of 1961 itself has no applicability, as such the question of counting of services rendered on temporary basis would not arise.
13. For the reasons and discussions aforesaid, I am of the considered opinion that petitioners are neither entitled to grant of pensionery benefits from the date of their appointment on temporary basis nor regularization order dated 5.4.2007 requires any modification, so as to make it effective from a date prior to 5.4.2007. The order passed by the authority rejecting petitioners' representation for such reasons also does not suffer from any illegality, so as to require any interference. The petitioners' retiral benefits would be regulated under the new pension scheme introduced on 28th March, 2005, and not under the Rules of 1961.
14. Writ petition, consequently, fails and is dismissed.
Order Date :- 19.9.2017 Anil