Allahabad High Court
Sabir Ali And Anr. vs State Of U.P. And Ors. on 12 April, 2002
Equivalent citations: 2002(2)AWC1566, (2002)3UPLBEC2440
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard counsel for the petitioner and the learned standing counsel. Counter and rejoinder-affidavits have been exchanged. With the consent of the parties the writ petition is being finally decided.
2. The facts of the case as emerge from the pleadings of the parties are :
"Petitioner No. 1 Sabir Ali was appointed as 'Bandi Rakshak'/ Warder on 6th March, 1972, on temporary basis by the Superintendent Jail. Bareilly. Petitioner No. 2 Prakash Chandra Lyall was also appointed as 'Bandi Rakshak' /Warder on 1st December, 1974, on temporary basis by the Superintendent Jail, Bareilly. Both the petitioners continued to discharge duties on their respective posts from the date of their initial appointments and were given pay scale of 'Bandi Rakshak'/Warder, selection grade and super selection grade. Deductions towards G.P.F. and Insurance was also made with effect from 1982. After attaining age of 58 years petitioner No. 1 was superannuated on 31.7.2000 and the petitioner No. 2 was superannuated on 30.6.2000. Letters of retirement were issued to petitioner Nos. 1 and 2 dated 31.7.2000 and 30.6.2000 respectively. In both the aforesaid retirement letters, petitioners have been referred as temporary employees. Petitioner No. 1 rendered 28 years of service, whereas the petitioner No. 2 rendered 26 years of service. Petitioners claim that they are entitled for all retirement benefits including the gratuity, pension, leave encashment, etc."
3. Petitioners' papers along with service books were sent to the Joint Director, (Treasury and Pension) but the same were returned with the endorsement that the petitioners retired on the post of 'Bandi Rakshak'/Warder as ad hoc temporary employees hence pension is not admissible to them. The aforesaid letter dated 28.8.2000 with regard to the petitioner No. 1 and 25.8.2000 with regard to petitioner No. 2 of the Joint Director (Treasury and Pension) have been annexed as Annexures-3 and 4 to the writ petition. Petitioners claim that they were entitled to be regularised in accordance with rules, namely, U. P, Regularisation of Ad hoc Appointments (On Posts Outside the Purview of Public Service Commission) Rules, 1979 and it was due to inaction and negligence of the respondents that their services could not be regularised. The petitioners have also placed reliance on the Government order dated 1.7.1989 to the effect that the temporary Government servants who have completed ten years of regular service are entitled for pension. Respondent wrote to the Director General, Karagar Prashasan Evam Sudhar Sevayen, Uttar Pradesh, Lucknow stating that papers for regularisation of the petitioners have already been forwarded by letter dated 4.7.1999 and the petitioners have already attained the age of superannuation but orders have not yet been received. It was stated that clear orders be sent so that proceedings for payment of pension be taken. The petitioners have also submitted letter dated 4.9.2000 to the Director General for their regularisation. This Court by order dated 28.3.2001 in the present writ petition has directed that the State Government shall take appropriate decision in respect of the petitioners' claim for regularisation in accordance with law within a period of one month from the date of production of a certified copy of the order. In pursuance of the aforesaid direction, the State Government passed an order dated 24.5.2000, refusing to regularise the petitioners' services under the U. P. Regularisation of Ad hoc Appointments (On Posts Outside the Purview of Public Service Commission) Rules, 1979 . It has been stated that since the petitioners do not fulfil the educational qualification/ physical eligibility, hence they cannot be considered for regular appointment under the U. P. Regularisation of Ad hoc Appointments (On Posts Outside the Purview of Public Service Commission) Rules, 1979. The order further notes that the Director has submitted a proposal by granting relaxation in physical eligibility. The aforesaid order has been brought on record by means of supplementary-affidavit and has also been prayed to be quashed.
4. A counter-affidavit has been filed by the learned standing counsel in which it has been stated that the papers for regularisation of the petitioners' services were forwarded and were pending with the State Government. It is admitted that the petitioners were appointed on temporary basis. Paragraph 7 of the counter-affidavit further admits that the petitioners were given pay scale of 'Bandi Rakshak'/Warder selection grade, super selection grade and other facilities available to the 'Bandi Rakshak'/Warder. Deductions were also made from the salary of the petitioners for the G.P.F., Insurance, leave encashment in May. 1982. It has further been stated in paragraph 13 that the matter of regularisation of the petitioners was also referred to the respondent No. 2 on 11.6.1984 which is still pending. Certain breaks in service of the petitioners were also mentioned. However, neither in the counter-affidavit nor in the order of the State Government dated 24.5.2001 it has been mentioned as to what is the educational qualification or the physical eligibility which is lacking in the petitioners. The petitioners have also filed rejoinder-affidavit reiterating their claim in the writ petition. The counsel for the petitioners contended that the petitioners who have rendered 28 and 26 years of service respectively are entitled for pension. It is further contended that the petitioners were fully entitled for their regularisation of service in accordance with aforesaid 1979 Rules and regularisation cannot be refused after rendering 28 and 26 years of service on the ground that the petitioners lack educational qualification/ physical eligibility. Reliance has been placed by the counsel for the petitioners on the decision of this Court in the case of Gujarat Agricultural University v. Rathod, Labhu, Vecher and Ors., 2001 (1) AWC 2.3 (SC) (NOC)B : (2001) 1 UPLBEC 834 ; Budhi Nath Chaudhary and Ors. v. Abhai Kumar and others. 2001 SCC (L&S) 589 and Roshani Devi and Ors. v. State of Haryana and Ors. 1999 SCC (L&S) 130. The counsel for the petitioners secondly contended that by virtue of Government order dated 1.7.1989 even temporary employees who have rendered ten years service are entitled for pension ; hence the petitioners are entitled for pension by virtue of the aforesaid Government order. It has further been contended that the petitioners having been granted selection grade and super selection grade, their services for all purposes were treated to be satisfactory and regular service. Reliance is also placed on the Apex Court's judgments in the case of A. P. Srivastava v. Union of India and Ors. (1995) 3 UPLBEC 1842 and Ram Sewak Singh v. Accountant General, Lekha 2nd PR-1. Allahabad and Ors. (1991) 2 UPLBEC 1027.
5. Learned standing counsel refuting the submissions of the learned counsel for the petitioners contended that the petitioners having not fulfilling the qualification required for the post have rightly been refused for regularisation. It has further been contended that the petitioners are not entitled for the benefit of the Government order dated 11.7.1989 since they have not completed ten years regular service. It is contended that the services of the petitioners cannot be treated as regular service, since it was only temporary and ad hoc.
6. I have heard counsel for the parties and perused the record. There is no dispute between the parties with regard to appointment of the petitioners as temporary employees and their superannuation on 31.7.2000 and 30.6.2000. The question which is to be considered is, as to whether in the facts of the present case, the decision of the State Government refusing regularisation of the services of the petitioners is valid or not. The date of appointment of the petitioners which is not disputed is 6.3.1972 and 1.12.1974 respectively. Petitioners have continued to work till their superannuation. In accordance with the U. P. Regularisation of Ad hoc Appointments (On Posts Outside the Purview of Public Service Commission) Rules, 1979, any person who was directly appointed on ad hoc basis before January 1. 1977 and is continuing in service, as such, on date of commencement of these Rules, possessed requisite qualifications prescribed for regular appointment at the time of such ad hoc appointment shall be considered for regular appointment. The aforesaid Rules were enforced with effect from 14.5.1979. Admittedly the petitioners were appointed since before January 1, 1977 and had also completed three years before commencement of the Rules. Thus. immediately, after enforcement of the aforesaid Rules, the petitioners became entitled for consideration of their regular appointment. In the counter-affidavit, it has been stated that the papers for consideration of regularisation of the petitioners were referred on 11.6.1984. The said matter was ultimately decided on 24.5.2001 that too after issuing Interim mandamus by this Court in the present writ petition. There is unreasonable delay on the part of the State Government even considering the claim of the petitioners for regularisation. As observed above, neither in the order dated 24.5.2001 nor in the counter-affidavit there is any whisper as to what qualification the petitioners lack. The order dated 24.5.2001 however, clearly mentions that the Director, Karagar has sent proposal to the State Government for regularisation of the petitioners by giving special relaxation in physical eligibility. It has been stated by the counsel for the petitioners that the petitioners have come to know that the qualification which is found to be lacking is to the effect that the petitioners are short in height by one centimeter. The respondents having not chosen to mention the qualification which is lacking with the petitioners and no material having come forward, it can be accepted that the aforesaid qualification was lacking. The order dated 24.5.2001 has also noted that the Director has granted special relaxation in the physical eligibility to the petitioners. The issue is as to whether the petitioners could have been refused for regularisation in the facts of the present case when there was recommendation for relaxing the said deficiency by the Director General himself and further when the petitioners after servicing the department for 28 and 26 years have already attained the age of superannuation, it is unreasonable on the part of the State Government to tell the employee after he attained the age of superannuation that he lacked qualification for appointment. In Bhagwati Prasad v. Delhi State Mineral Development Corporation. (1990) 1 SCC 361, the Apex Court held in paragraph 6 :
"6. The main controversy centers round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always enable the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications."
Recently the Apex Court in Gujarat Agricultural University v. Rathod, Labhu, Vecher and Ors. 2001 (1) AWC 2.3 (SC) (NOC)B : (2001) 2 SCC 574, has considered the said issue again relying on Bhagwati Prasad's case (supra) and it was held by the Apex Court in paragraphs 28 and 30 :
"28. We feel that daily rate workers who have been working on the aforesaid posts for such a long number of years without complaint on these posts is a ground by Itself for the relaxation of the aforesaid eligibility condition. It would not be appropriate to disqualify them on this ground for their absorption hence Clause (a) needs modification to this effect.
30. Thus, in view of their long experience, on the fact of this case, and for the posts concerned the prescribed qualification, if any, should not come in the way of their regularisation. Clause (b) provides for the regularisation of daily wagers in a phased manner to the extent of available sanctioned post."
7. In view of the aforesaid decisions of the Apex Court it is clear that lack of above physical qualification was no impediment in the regularisation. The petitioners despite tacking of physical eligibility were entitled for regularisation specially when they have rendered 28 and 26 years of service respectively. Further, the petitioners were granted selection grade and super selection grade which fact is admitted In paragraph 7 of the counter-affidavit, petitioners' service has to be treated to be satisfactory. The grant of selection grade and super selection grade is also on the condition of service being satisfactory. Further, in the present case the Director General who is the Head of Department has already recommended for relaxing the physical eligibility for the petitioners. The State Government took erroneous view of the matter in refusing the claim of the petitioners for regularisation on the post of 'Bandi Rakshak'/ Warder. The State Government has also not taken into consideration the special features of the case i.e., the petitioners had rendered 28 and 26 years of service and they have already been granted selection grade and super selection grade and further the Head of the Department has already recommended for relaxing the aforesaid physical qualification. In Ram Sewak Singh v. Accountant General, Lekha 2nd Pr-1. Allahabad and Ors. (1991) 2 UPLBEC 1027, this Court while considering the case with regard to entitlement of pension by a temporary employee who has rendered more than thirty years of service held him to be entitled for the retirement benefits. It was held by this Court in the above judgment in paragraph 12 as under :
"12. The Public Works Department of the State of Uttar Pradesh is not a temporary department and Is one of the permanent departments of the State Government. It is not known why and under what circumstances a person who was appointed in 1940 and also granted increments and promotion etc. from time to time was allowed to continue for a period of more than 16 years without any orders for confirmation to the substantive post. It is for the department concerned and the responsible officers of the same department to seek orders from the Government, if was necessary, for regularising the person who has been working In the department for 16 years or more without any order for confirmation. It is unjust that a person may work in the department which is a permanent department of the State without any fault of his as a purely temporary employee, not entitled for any pensionary benefit. If the higher officers of the department and the Government have no care or interest in the matters of such employees it would be a sorry state of affairs. There are certain Government orders issued from time to time. One of such orders annexed with the writ petition is Annexure-7 which provides such benefits to the temporary Government servants for pensionary benefits or other benefits in case of death of such employees. It is quoted in the aforesaid Government order No. Kha-3-1152/10-9 15-89, dated 1.7.1989, that no temporary Government servant is entitled for any pensionary benefit unless the post on which he was working was a permanent/substantive post. If such a temporary employee whose matter about regularisation could not be finalised in spite of the Government orders and such employee retired from service or died in harness such Government employee would be entitled for pensionary benefits provided they have completed a minimum of 10 years' qualifying service. It is not disputed that the petitioner worked in a permanent department of the State and the post of Technical Assistant and the post of Junior Engineer to which he was later promoted is a substantive permanent post in the department."
In view of the aforesaid, the order of the State Government dated 24.5.2001 cannot be sustained and it is held that the petitioners were entitled to be regularised in accordance with the U. P. Regularisation of Ad hoc Appointments (On Posts Outside the Purview of Public Service Commission) Rules, 1979. The petitioners having already completed the age of superannuation, it is directed that the petitioners be treated to be regularised in accordance with the said 1979 Rules and entitled to the pensionary benefits as admissible to the regular recruited employees.
8. The second submission of the counsel for the petitioners that a temporary employee who has rendered more than 10 years' service is entitled to be paid pension as per Government order dated 1.7.1989, is not necessary to be considered, in view of the above observations that the petitioners were wrongly refused regularisation as they were entitled to be regularised in service.
9. In view of the foregoing discussions the petitioners are entitled for the reliefs sought in the writ petition. The order of the State Government dated 24.5.2001, Annexure-3 to the supplementary-affidavit filed by petitioner No. 2 is quashed and it is further directed that the petitioners be held to be entitled for regular appointment in accordance with the U. P. Regularisation of Ad hoc Appointments (On Posts Outside the Purview of Public Service Commission) Rules, 1979 and the petitioners be further extended benefit of pension and other retirement benefits which are admissible to a regular employee. The respondents are directed to pay pension and other benefits within a period of six months from the date of production of a certified copy of this order. In view of the facts of the present case no order for payment of interest on the retirement benefits is passed in favour of the petitioners.
10. The writ petition is allowed as indicated above. Parties shall bear their own costs.