Allahabad High Court
Ram Narayan Ram vs State Of U.P. And 4 Ors. on 13 August, 2019
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 Case :- WRIT - A No. - 57515 of 2016 Petitioner :- Ram Narayan Ram Respondent :- State Of U.P. And 4 Ors. Counsel for Petitioner :- Ajeet Kumar Singh,Kameshwar Chaubey,R. B. Tripathi Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar,J.
Heard Sri R.K. Pandey, learned Senior Counsel, assisted by Sri Ajeet Kumar Singh, learned counsel for the petitioner and learned Standing Counsel for the State-respondent.
Petitioner came to be appointed Lekhpal on two year probation as per Rules on 13 January 1978 against a substantive post as is reflected from the list prepared by the Chief Revenue Officer, Ballia. On completion of probation period, in 1986, the Board of Revenue directed the petitioner and similarly situated Lekhpals to undergo training for the post of Lekhpal as per Uttar Pradesh Lekhpals Service Rules, 1958.
It appears that the petitioner alongwith other similarly situated Lekhpals were not sent for training, consequently, petitioner along with others filed a petition being Writ Petition No. 5270 of 1986 (Sheo Shankar Ram and others Versus Board of Revenue U.P. Lucknow and others). Pursuant to an interim order dated 6 August 1986, petitioner was sent for training with full salary. Upon a report submitted by the Registrar Kanoongo, Bairia, District Ballia, the fifth respondent, Sub Divisional Magistrate, Sadar, District Ballia, vide order dated 23 April 1992, confirmed the petitioner as area Lekhpal w.e.f. 12 January 1980/1 November 1986. The Board of Revenue pursuant to Government Order dated 11 March 2006 issued a circular dated 29 March 2006 to all the District Magistrates in the State directing them to send the Lekhpals on special training who have rendered 10 years or more service. Pursuant thereof, petitioner came to be regularized on successfully completing the training vide letter dated 27 June 2006. Petitioner after rendering 37 years of continuous service retired on attaining the age of superannuation on 30 June 2015. The papers pertaining to pension and other post retiral dues were duly forwarded by the competent authority to the Additional Director Treasury and Pension, Azamgarh, Region Azamgarh, however, an objection was raised that since the petitioner came to be regularized on 27 June 2006, therefore, the past service rendered by the petitioner cannot be computed towards pension, petitioner is entitled to pension under the new scheme made applicable w.e.f. 1 April 2005. Pursuant thereof, the impugned order was passed by the second respondent, Commissioner and Secretary, Board of Revenue, Lucknow, thereby, the claim of the petitioner for pension and other post retiral dues from the date of his initial appointment was rejected.
In view of Article 368, read with 370 of the Civil Services Regulation, an employee who is in continuous temporary or officiating service under the Government of Uttar Pradesh, followed, without interruptions, by confirmation on the same or any other post shall qualify for pension.
Article 370 is extracted:
"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 form contingencies,"
Learned Senior Counsel, has placed reliance on the decision of this Court rendered in Ram Narayan Pandey Versus State of U.P. and others1, and the Division Bench decision rendered in State of U.P. and others Versus Mahendra Chaubey2. The Division Bench of this Court in Pooran Singh Manral and another versus State of U.P. and others3, upon considering the provisions held as follows:
"38. It is not disputed by counsel for the parties that for the purpose of "qualifying service" for retiral benefits, Rules, 1961 read with Civil Service Regulations (hereinafter referred to as 'CSR') shall apply. Rule 3 (8) of 1961 defines "qualifying service" as under:-
"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 of 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.
39. Articles 368 and 370 of CSR reads as under:-
"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.
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 form contingencies,
40. Further Article 361 of CSR excludes service as not to qualify for pensionary benefits unless it satisfy certain conditions. It 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 paid by Government.
41. The aforesaid Rules, 1961 and CSR make it very clear that service rendered in a non-government establishment would not qualify for pension. When confronted, learned counsel for petitioners could not place any provision of law under which he may be entitled to count his service rendered in UPSBCL as "qualifying service" for the purpose of pension or other retiral benefits in Government service."
Learned Standing Counsel appearing for the respondent does not dispute that the petitioner came to be appointed in 1978 against a pensionable post, he was subsequently confirmed in 1992 with retrospective effect i.e. 1980 and since then the petitioner continued to perform his duties until his regularization in 2006 upon successfully completing training.
In the circumstances, the temporary appointment which has been subsequently regularized, it would relate back to the date of his initial appointment as is evident from the promotion order read with Article 370 of the Civil Services Regulation. It is, therefore, not open for the respondents to decline petitioner post retiral dues without computing the past service rendered by him.
Learned counsel for the respondents is unable to sustain the legality of the impugned order.
Accordingly, the impugned order dated 17 October 2016 passed by the second respondent, Commissioner and Secretary, Board of Revenue, Lucknow and the consequential order dated 27 October 2016 passed by the fifth respondent, Sub Divisional Magistrate, Tehsil Sadar, District Ballia, is set aside and quashed. The petitioner is entitled to post retiral dues, including, pension and gratuity upon computing the past services with effect from 12 January 1980, which shall be paid expeditiously preferably, within two months from the date of receipt of certified copy of this order, failing which, petitioner shall be entitled to 7% interest on the entire sum from the due date.
The writ petition is allowed.
No cost.
Order Date :- 13.8.2019 K.K. Maurya