Allahabad High Court
State Of U.P. Thru. Addl. Chief Secy. ... vs Mohd. Sharif Khan And Another on 28 January, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 31 of 2023 Appellant :- State Of U.P. Thru. Addl. Chief Secy. Secondary Edu. Govt. U.P. Lko. And Others Respondent :- Mohd. Sharif Khan And Another Counsel for Appellant :- C.S.C. Counsel for Respondent :- Vinod Kumar Pandey,Sanjay Kumar Yadav Hon'ble Ramesh Sinha,J.
Hon'ble Subhash Vidyarthi,J.
Order on C.M. Application No.1 of 2023:
1. Heard Mr. Devendra Mohan Shukla, learned Standing Counsel appearing on behalf of the State and Mr. Vinod Kumar Pandey, learned counsel for the respondents.
2. This is an application for condonation of delay in filing special appeal.
3. The application is supported with an affidavit, in which the reasons for delay have been explained sufficiently.
4. Accordingly, application is allowed. Delay, if any, in moving special appeal is hereby condoned.
Order on memo of special appeal:
5. The instant special appeal is directed against the judgment and order dated 20.12.2021, passed by Hon'ble Single Judge allowing Writ Petition No.17952 (S/S) of 2021, which was filed by the respondent no.1, challenging the order dated 01.04.2021, whereby his claim for grant of pensionery benefits had been rejected on the ground that he had not completed ten years of qualifying service from the date of regularization of his services on 22.03.2016.
6. The petitioner had initially been appointed on 30.10.1985 as a Lecturer in English in the institution Forbs Intermediate College, Faizabad by the Manager of the College on temporary basis, as an ad-hoc teacher. The ad-hoc appointment was approved by the District Inspector of Schools by means of an order date 31.03.1986. The respondent's services were regularized by means of an order dated 16.05.2017 and he retired on 31.03.2020. The respondent's claim for payment of pension was denied on the ground that he had not completed ten years qualifying service for grant of pensionery benefits.
7. The Hon'ble Single Judge allowed the writ petition, relying upon a judgment of this Court in the case of State of U.P. Vs. Mangali Prasad Verma and otehrs; Special Appeal (Defective) No.678 of 2013, decided on 13.09.2017 and State of U.P. Vs. Sri Krishna Prasad Yadav and others; Special Appeal No.228 of 2016.
8. In the case of Mangali Prasad (supra) the Division Bench of this court has held that :
"Rule 3 of 1964 Rules clearly provides that these Rules shall apply to permanent employees serving in the State aided educational institution of the category specified thereunder, be it run by a local body or a private management, if it is recognized by the competent authority for the purposes of extending of grant-in-aid. It is not in issue that the provisions of Rules of 1964 are attracted in the facts of the present case, inasmuch as the Institution is a recognized Institution, wherein salary is being extended to teaching and non-teaching staff by the State by virtue of the provisions contained in the Act of 1971. On the date of his retirement, petitioner was a permanent employee serving in aided educational institution, which is recognized by a competent authority for the purposes of aid. Rule 19(b) of the Act would clearly come to the rescue of the petitioner, inasmuch as it clearly provides that continuous temporary or officiating service followed without interruption by confirmation in the same or another post, shall also count as qualifying service."
9. The Hon'ble Single Judge also relied on a decision in the case of Sunita Sharma Vs. State of U.P. and others; Writ-A No.25431 of 2018 decided on 20.12.2018 wherein this Court has held that:
"So far as the Government Order relied upon by learned Standing Counsel is concerned, it is settled that in hierarchy of laws a statutory Rule would stand at a higher pedestal than a Government instruction. Once the statutory Rules of 1964 remains in force and is attracted in the facts of the present case, the provisions of the Rules cannot be by passed merely by relying upon a Government instruction. The defence set up by the respondents, therefore to non suit the petitioner cannot be sustained. It appears that though U.P. Retirement Benefits Rules, 1961 and other like provisions were amended w.e.f. 1.4.2005, but no such amendment has been incorporated in the Rules of 1964. As a consequence, the benefits admissible under the Rules of 1964 would continue to be applicable upon teachers, who are covered thereunder."
10. However, the Hon'ble Single Judge has not referred to the provisions of Section 2 of Uttar Pradesh Qualifying Service For Pension And Validation Act, 2021 which provides that:
"Notwithstanding anything contained in any rule, regulation or Government order for the purpose of entitlement of pension to an officer, "Qualifying Service" means the service rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post."
11. In view of above, the "Qualifying Service" means the service rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post. As per the provisions contained in Section 2 of the Act, the services rendered on ad-hoc basis cannot be calculated while computing the qualifying service of the respondent, therefore, we do not find that the petitioner had completed ten years' qualifying service so as to make him entitled for grant of pensionary benefits.
12. In view of the aforesaid discussions, we are unable to agree with the view taken by the Hon'ble Single Judge.
13. Accordingly, the instant special appeal is allowed. The order dated 20.12.2021, passed by Hon'ble Single Judge in Writ Petition No.17952 (S/S) of 2021 is hereby set aside.
14. No order as to the costs.
.
(Subhash Vidyarthi, J.) (Ramesh Sinha, J.) Order Date :- 28.1.2023 Ram.