Allahabad High Court
Lakshman Veer vs State Of U.P.And Others on 29 March, 2019
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On: 09.01.2019 Delivered On: 29.03.2019 Case :- WRIT - A No. - 42848 of 2012 Petitioner :- Lakshman Veer Respondent :- State Of U.P.& Others Counsel for Petitioner :- Anil Bhushan,Adarsh Bhushan,Kuldeep Singh Yadav Counsel for Respondent :- C.S.C. Hon'ble Neeraj Tiwari,J.
Heard Sri Anil Bhushan, learned Senior Counsel assisted by Sri Amit Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1 to 4 and Sri Rajesh Kumar, learned counsel for respondent No. 5.
Submission of learned Senior Counsel for the petitioner is that there is one institution namely Sri Swami Sarwanand Uchchatar Madhyamik Vidhyalaya, Nagla Chandra Hans, Firozabad (hereinafter referred to as the 'Vidyalaya') recognised under the provisions of Intermediate Education Act. Vidyalaya is receiving grant-in-aid upto High School and the Payment of Salaries of (Teachers and other Employees) Act, 1971 is also applicable. It is submitted that one Vishnu Dutt Sharma, who was L.T. Grade teacher, retired on 30.06.1991, as a result of which, substantive vacancy of L.T. Grade came into existence. Vacancy of L.T. Grade teacher was notified and after selection having been made, appointment letter was issued to the petitioner on 02.09.1991 and he was permitted to join on 11.09.1991. Thereafter, the committee of management has forwarded the papers of the petitioner for grant of financial approval on 15.09.1991, but financial approval was not granted. Petitioner had no option but to file Writ Petition No. 5966 of 1992, in which interim order dated 20.02.1992 was passed in his favour and ultimately petition was finally decided vide judgment and order dated 1.5.1992 by which court has directed to pass order regarding payment of salary . In compliance of order of Court dated 01.05.1992, District Inspector of Schools (hereinafter referred to as the 'D.I.O.S.'). has granted financial approval vide detailed order dated 30.02.1992 and thereafter petitioner started getting salary from month to month basis.
Learned Senior Counsel further submitted that petitioner was working w.e.f. 11.02.1992, therefore, he was entitled for consideration of regularisation under section 33 of U.P. Secondary Services Selection Board 1982, therefore, he has filed Writ Petition No. 31923 of 2005, which was decided by this Court vide order dated 25.04.2005 directing the D.I.O.S. to transmit the entire papers to the Committee constituted under Act No. 5 of 1982 for the purpose of regularisation. After that, petitioner submitted a representation supplying documents regarding his appointment to D.I.O.S. to forward the same to Regional Committee constituted under Section 33-B of U.P. Act No 5 of 1982. It is further submitted that in the light of provisions of section 33-B of U.P. Act No. 5 of 1982, service of petitioner has to be regularised. It is further submitted that certain more documents required by the D.I.O.S. was also sent to him vide letter dated 15.02.2017 by the Principal. No formal order has been passed by the Committee pursuant to the order of High Court dated 25.04.2005 and in between, petitioner attained the age of superannuation on 28.02.2011, but getting session benefit, he retired from service on 30.06.2011.
It is further submitted that petitioner worked in the institution for more than 20 years and financial approval was granted on 30.09.1992, therefore, he is entitled for pension. It is further submitted that more than one year had been passed but he has not been given pension though all other retiral benefits like GPF, Insurance etc. has been paid to him. Therefore, petitioner has filed present petition with a prayer directing the respondents to finalise his pension and pay the same. It is next submitted that during the pendency of writ petition, impugned order dated 03.01.2015 was passed by the Regional Committee constituted under the provisions of U.P. Act No. 5 of 1982 and the claim of petitioner for regularisation was rejected on the following grounds:-
i) No teacher under schedule caste quota has been working in the instition.
ii) Vacancy was not advertised in the newspaper.
iii) Requisition has not been sent to the U.P. Secondary Education Service Selection Board.
Petitioner has challenged the said order dated 03.01.2015 by way of filing amendment application, which was allowed vide order dated 17.08.2015.
It is next submitted that the grounds taken in the impugned order is not sustainable in the eye of law.
So far as first ground is concerned, learned Senior Counsel for the petitioner submitted that in the light of judgment of this Court in the matter of Smt. Sushila Gupta Vs. Administrative Nagar Nigam and other reported in 1997 (3) UPLBEC-1837, reservation is not at all applicable in the matter of adhoc appointment.
With regard to the second ground, it is further submitted that appointment made against the short term vacancy prior to Radha Raizada's Case does not require advertisement in the newspaper and placed reliance upon the judgment of this Court in the case of Ashika Prasad Shukla Vs. D.I.O.S., 1998 (3) UPLBEC 1722.
So far as third ground is concerned, learned Senior Counsel for the petitioner submitted that requisition has been sent by the Committee of Management to the U.P. Secondary Education Service Selection Board, which is evident from the letter of the Management dated 12.02.2007, which is annexed as Annexure-6 to the writ petition.
In support of his contention, he has relied upon the provisions of Uttar Pradesh Contributory Provident Fund Insurance Pension Rules, 1964 and submitted that Rules-17 of the aforesaid rules provides eligibility for pension and if employee retired, he is entitled for pension and also placed reliance upon Rule-19A of Rules, 1964 which provides that if employee hold substantive post, he is entitled for pension. He also placed reliance upon Article 361 of Civil Service Regulation which provides three contingencies for grant of pension:-
i) Service must be under the Government
ii) Employee must be on substantive or permanent post
iii) Salary must be paid by the Government.
It is next submitted that the petitioner is fulfilling first and third contingency and so far as the second part is concerned, he has submitted that the employee is appointed on substantive post and he has not been made permanent due to inaction on the part of respondent No. 5 even after order of this Court dated 25.04.2005 and after retirement, he cannot be denied pension on a ground which arose due to inaction of respondents and not sustainable in the eye of law.
He has further placed reliance upon the Uttar Pradesh Fundamental Rule 56(c) and (e) (Amendment and Validation) Act, 1975. Rule 56(c) does not create differenciation between permanent and temporary employee and as per Rule 56(e), retiring person shall be payable pension and other retiral benefits, if any, subject to provisions of rule to every government servant.
He has also submitted that the identical issue has come up before this Court for consideration in Writ-A No. 5737 of 2018 (Ishrat Jahan Vs. State of U.P. and 3 others), Writ-A No. 14970 of 2018 (Narsingh Rai Vs. Deputy Director of Education, Varanasi, and 3 others) and Writ-A No. 8876 of 2013 (Prem Singh Verma Vs. State of U.P. Thru Secy & Ors.), in these cases, the court have passed orders in favour of the petitioners and directed to pay the pension.
Lastly, learned counsel for the petitioner has submitted that in the light of rules as well as law laid down by the Apex Court, order passed by the Regional Committee dated 03.01.2015 is bad in the eye of law, therefore, liable to be set aside and petitioner is entitled for pension.
Learned Standing Counsel appearing for the State has vehemently opposed the contention raised by learned counsel for the petitioner and submitted that petitioner failed to produce copy of newspaper or date of advertisement on which basis he has been appointed. It is also relevant to mention here that at the time of appointment of petitioner total 18 posts of Assistant teachers were sanctioned, against which 13 teachers of General category and 4 teachers of O.B.C. were working. No teacher of Schedule Caste category was working, however, the petitioner was appointed as teacher of O.B.C category, which is not justified in the eye of law. It is also argued that for payment of pension, regularisation of service is required and in the present case, service of the petitioner has not been regularised for the reason that his appointment was illegally made without following the proceedure. He further submitted that petitioner has not filed any documentary evidence to prove that he has submitted required documents before the D.I.O.S. Sri Rajesh Kumar, learned counsel appearing for respondent No. 5 has filed counter affidavit and supported the case of the petitioner. He has adopted the arguments raised by counsel for the petitioner.
Learned Senior Counsel in his rejoinder argument submitted that submission made by learned counsel for the State-respondent is not sustainable in the light of argument made by him as every issue raised by learned standing counsel is very well dealt with in his argument. He further submitted that earlier considering those documents, financial approval was also granted. It is further submitted that in approval order dated 30.09.1992, each and every fact has been considered with regard to the payment of petitioner and thereafter final approval was granted.
I have perused the rival submissions made by learned counsel for the parties and also perused the records, rules in question as well as law relied upon by learned counsel for the parties.
From the facts of case, issue before this Court is to decide that whether the order of rejection of regularisation dated 03.01.2015 is sustainable in the eye of law or not and further petitioner is entitled for pension after attaining the age of superannuation or not though he was appointed on adhoc basis and superannuated in the same capacity without his regularisation.
Order dated 03.01.2015 by which regularisation was denied was based on three grounds; first ground was that no teacher under scheduled caste quota was wroking in the institution at the time of appointment of petitioner. In this reference, learned counsel for the petitioner submitted that for adhoc appointment no reservation is required and placed reliance upon the judgment of Smt. Sushila Gupta (Supra). Relevant paragraph No. 14 of the judgment is quoted below:-
"14. Now ad hoc appointment is made either under Section 18 of the 1982 Act as amended from time to time or under the Removal of Difficulties Order as the case may be. Removal of Difficulties Order supplement Section 18 in the matter of ad hoc appointment. The Removal of Difficulties Order is promulgated under Section 33 to remove the difficulties created by reason of Section 16 as relaxed by Section 18 . If there is any inconsistency between Section 18 and the Removal of Difficulties Order in that even Section 18 will prevail being an act of the legislature while the Removal of Difficulties Order is enacted through the delegated legislation only to supplement Section 18. Removal of Difficulties Order does not provide for any reservation in the matter of ad hoc appointment either from the Schedule Caste or Schedule Tribe or Backward Classes. Section 18 as it originally stood also did not provide for reservation in case of ad hoc appointment The present appointment having been made in 1994, the 1995 amendment of Section 18 may not affect the said appointment. But the fact remains that in 1994, U.P. Act No. 24 of 1992 had been in force and the said provision would be governing the recruitment in the present case. Section 18, as substituted by U.P. Act No. 24 of 1992, is effective from 14-7-1992 which imposed elaborate provision for reservation in the matter of ad hoc appointment of teacher. In order to appreciate the situation, it is necessary to refer to the relevant extracts of Section 18 as was operative on the date of disputed appointment is quoted hereunder:-
"18. Ad-hoc teachers,- (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and the post of such teacher has actually remained vacant for more than two months, the management may appoint by direct recruitment or promotion a teacher, on purely ad hoc basis, in the manner hereinafter provided in this section.
(2) A teacher, other than a Principal a Headmaster, who is to be appointed by direct recruitment, may be appointed on the recommendation of the Selection Committee referred to in Sub-section (9).
(3) A teacher, other then a Principal or Headmaster, who is to be appointed by promotion, may in the manner prescribed be appointed by promoting the senior most teacher possessions prescribed qualifications.
(a) in the trained graduate's grade as a lecture, in the case of a vacancy in lecturer's grade.
(b) in the Certificate of Teaching grade, as a teacher in the trained graduate's grade in the case of vacancy in trained graduate's grade.
(4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer's grade.
(5) A vacancy in the post of a Headmaster may be filled by promoting the senior most teacher in the trained graduate's grade.
(6) For the purposes of making appointments under Sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of. vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories of persons in accordance with the rules or orders issued by the State Government in this behalf. If in determining the vacancies it is found that persons belonging to such categories are not holding such number of posts as should have been held by them in accordance with such rules or orders, then the vacancies shall be so determined that first and every alternate vacancy shall be reserved for the persons of such categories until the required percentage of posts is held by them."
By the perusal of judgment, this fact is very much clear that as per law laid down in the matter of Smt. Sushila Gupta (Supra), no reservation is required in the matter of adhoc appointment and undisputedly, petitioner was given adhoc appointment on substantive vacancy of LT-Grade teacher due to retirement of one Vishnu Dutt Sharma on 30.06.1991, therefore, there is no requirement to see the applicability of reservation policy. Therefore, first ground taken by the Regional Committee in the order dated 03.01.2015 is not sustainable.
Second ground taken in the impugned order dated 03.01.2015 was that the vacancy was not advertised in the newspaper. In this reference, learned Senior Counsel appearing for the petitioner submitted that appointment was made against a short term vacancy prior to the decision in the matter of Radha Raizada's case, therefore, at that time, there was no requirement of advertisement in any newspaper. In support of his contention he has placed reliance upon the judgment of this Court in the case of Ashika Prasad Shukla Vs. D.I.O.S., 1998 (3) UPLBEC 1722. Relevant paragraph No. 11 of the judgment is quoted below:-
"11. Sri Yatindra Singh placed reliance on Sanjeev Kumar v. District Inspector of Schools, Ghaziabad, 1997 All LJ 33, in which one of us (S. R. Singh, J.) repelled the argument that Radha Raizada should not be made retrospective so as to Impinge upon prior appointments in the following words :
"What has been held by Full Bench in Radha Raizada's case about the procedure to be following by direct recruitment in case of ad hoc appointment under Section 18 would be deemed to be enshrined therein from the very inception of Section 18 of the Act No. V of 1982, The doctrine of prospective application as pronounced by the Supreme Court in Managing Director's case, AIR 1994 SC 1074 (supra), is not intended for application to the construction of what has been laid down by the Full Bench in Radha Raizada's case, (supra) particularly because any previous decision of this Court has not been adverted to my knowledge, articulating a contrary view nor Sri Sinha has brought any such decision to my notice in the course of arguments."
The aforesaid proposition has been followed in respect of substantive vacancy in the case of Smt. Ram Dulari Devi reported in 1999(3) UPLBEC 2069. Relevant paragraph No. 22 of the judgment is quoted below:-
"22. The question whether the ratio decided in the case of Ashika Prasad Shukla (supra) could be attracted in the case of substantive vacancy or not is a question which does not seem to be material, though Mr. Tripathi had contended that Ashika Prasad Shukla (supra) was concerned with short-term vacancy. The ratio decided therein with regard to the prospectivity cannot be attracted in the case of substantive vacancy does not seem to be sound. Whether the decision deals with substantive or short-term vacancy is immaterial, because, it is fact, has dealt with Section 18 and the Removal of Difficulties Order to the extent that it has been so dealt in the case of Radha Raizada (supra) in Ashika Prasad Shukla (supra), no distinction appears to have been made in respect of short-term or substantive vacancy. On the face of it, it has laid down a principle of cutting off. Those cases where the approval has been granted to the appointment or where the appointment is deemed to have been approved has since been protected by the prospectivity of the ratio laid down in the case of Radha Raizada (supra) while exempting all other case. In as much as in the said case the protection is not available where the appointment has neither been approved nor appears as deemed to be approved."
By the perusal of both the judgments, this fact is very much clear that at the time of appointment of petitioner, there was no requirement of advertisement in the newspaper for short term vacancy, therefore, second ground taken by the D.I.O.S. in the impugned order dated 03.01.2015 is also not sustainable in the eye of law.
Now coming to the third ground which says that requisition has not been sent to U.P. Secondary Education Service Selection Board, it was submitted by learned Senior Counsel for the petitioner that requisition was sent by the Committee of Management to the U.P. Secondary Education Service Selection Board, which is clear by the letter of managment dated 12.02.2007. By the perusal of letter dated 12.02.2007, it is apparent that requisition was sent and information was also given to D.I.O.S., Firozabad, therefore, in such circumstances, third ground is also not sustainable in the light of facts.
The second issue whether petitioner is entitled for post retiral benefits including pension or not, learned Senior Counsel in support of his contention, placed reliance upon Rules 17 and 19-A of U.P. Contributory Provident Fund Insurance Pension Rules, 1964, Article 361 of Civil Service Regulation and Rules 56(C) and 56(E) of U.P. Fundamental Rules 56 (Amendment and Validation) Act, 1975.
I have perused the rules relied upon by learned Senior Counsel appearing for the petitioner and the same is being quoted below:-
Rules 17 and 19-A of U.P. Contributory Provident Fund Insurance Pension Rules, 1964:-
"17.An employee shall be eligible for pension on -
(i) retirement on attaining the age of superannuation or on the expiry of extension granted beyond the superannuation age;
(ii) voluntary retirement after completing 25 years of qualifying service;
(iii) retirement before the age of superannuation under a medical certificate of permanent incapacity for further service; and
(iv) discharge due to abolition of post or closure of an institution due to withdrawal or recognition or other valid causes.
Notes. - (1) The age of compulsory retirement of an employee shall be such as prescribed in the relevant rules applicable to him.
The date of superannuation shall be reckoned from the date of birth of an employee as entered in his Service Book or other records. In case the year of birth only is known, but not the month, the first July of the year shall be taken as the date of birth. Similarly when both the year and the month of birth are known, but not the date, the 16th of the month shall be taken as the date of birth.
(2) An employee may retire from service voluntarily any time after completing 25 years of qualifying service, provided that he shall give in this behalf a notice in writing to the management at least 3 months before the date on which he wishes to retire.
19. (a) Service will not count for pension unless the employee holds a substantive post on a permanent establishment."
Rules 17 provides eligibility for the pension and Rule 17(1) says that employee shall be eligible for pension after retirement on attaining the age of superannuation or on the expiry of extension granted beyond supperannuation and in present case, undisputedly petitioner retired after attaining the age of supperannuation. So far as Rule 19-A is concerned, it says that for pension, employee should hold substantive post on a permanent establishment. Here the facts are also not disputed that petitioner was appointed on substantive post of a permanent establishment receiving grant-in-aid from the State Government. Therefore, as provided in Rule-17 and 19-A of Rules, 1964, petitioner is entitled for pension after attaining the age of supperannuation.
Learned counsel for the petitioner has placed reliance upon Article 361 of Civil Service Regulation and the same is also being quoted here in below:-
"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.
1. Substantive service in a permanent post qualifying for pension unless the service in a particular post in specifically declared as non-qualifying under Article 350 C.S.R. when a temporary post is made permanent or a permanent post is sanctioned, it is not necessary to state that the post in question would also be pensionable under Article 361 C.S.R. 361-A. The State Government may, however, in the case of service paid from General Revenues, even though either or both of conditions (1) and (2) are not fulfilled:--
(1) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension;
(2) in individual cases and subject to such conditions as it may think fit to impose in each case, allow service rendered by an officer to count for pension.
Subject to such conditions as it may think fit to impose, the State Government may delegate its powers under this Article to the Heads of Departments.
By the perusal of Article 361 of Civil Service Regulation, it is very much clear that the petitioner is fulfilling the first and third contingencies and so far as the second contingency is concerned, argument of counsel for the petitioner is having force as his matter of regularisation was not decided due to inaction on the part of respondent No. 5 within time after order of this Court dated 25.04.2005 and that has been decided vide order dated 03.01.2015 after retirement of petitioner, which is not sustainable as discussed hereinabove.
Learned counsel for the petitioner has also placed reliance upon Rules 56(C) and (E) of Act, 1975 and the same is being quoted below:-
56(c). Notwithstanding anything contained in Clause (a) or Clause (b), the appointing authority may, at any time, by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by notification to the appointing authority voluntarily retire at any time after attaining the age of fifty years or after he has completed qualifying service for twenty years.
56(e). A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with an subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule.
Explanation- (1) The decision of the appointing authority under Clause (c) to retire the Government servant as specified therein shall be nothing herein contained shall be construed to require any recital, in the order, of such decision having been taken in the public interest.
(2) Every such decision shall, unless the contrary is proved, the presumed to have been in the public interest.
(3) The expression 'appointing authority' means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire; and the expression 'qualifying service' shall have the same meaning as the relevant rules relating to retiring person.
(4) Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause(d) of this rule shall have effect from the afternoon of the date of its issue provided that if after the date of its issue, the Government servant concerned bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid notwithstanding the facts of his having earlier retired."
Rule 56(C) does not create any difference between permanent and temporary employee whereas Rule-56(E) clearly says that pension shall be payable to every government servants subject to provisions of relevant rules who retires or is required or allowed to be required under these rules. Therefore, argument raised by learned Senior Counsel appearing for the petitioner is acceptable in the light of Rules 56(C) &(E) and petitioner is entitled for pension.
So far as payment of pension to retiring person is concerned, learned Senior Counsel has placed reliance upon several judgment of Rudra Kumar Sain V. Union of India, (2000) 8 SCC 25, in which Supreme Court has considered the words 'ad hoc', 'stopgap' and 'fortuitous' and it has been answered in Paragraph No. 20 of the said judgment which is quoted below:-
"In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc".
Again in the case of Ramesh K. Sharma v. Rajasthan Civil Services (2001) 1 SCC 637, Apex Court has considered the word 'substantive basis' after relying upon the judgment of Baleshwar Dass v. State of U.P. (AIR 1981 SC 41) and held that if an incumbent holds the post for indefinite period, this cannnot be said to be adhoc appointment. In paragraph No. 4 of the said judgment, the Court has held as under:-
"If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment, not being either stopgap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stopgap basis then such an appointment cannot be held to be on substantive basis. The expression "substantive basis" is used in the service jurisprudence in contradistinction with ad hoc or purely stopgap or fortuitous."
Again issue of payment of pension came before this Court in the matter of Dr. Hari Shanker Asopa v. State of U.P. and another (1989) UPLBEC 501, who was allowed to retire being permanent on any of the post hold by him during the tenure of his continuous service of State Medicine College of Uttar Pradesh and the court has replied the same after considering Article 361 and Clause (A) of Rules 1956 of Fundamental Rules as applied in U.P. Civil Service Regulation and held as under:-
"In the instant case, indisputably Dr. Asopa who allowed to retire under clause (c) of Rule 56 and the first and third conditions envisaged in Article 361 of the Regulations were satisfied. He, therefore, became qualified for a retiring pension notwithstanding the fact that he was not permanent on any of the posts held by him during the tenure of his continuous services of State Medical Colleges of Uttar Pradesh Government. Denial of retiring pension to Dr. Asopa on the ground of his not being permanent on any post of the government service was clearly violative of clause (e) of Rule 56 of the Rules. Condition contained in paragraph 2 of the order, dated 21st February, 1983 (annexure-10 to the writ petition), depriving Dr. Asopa of retiring pension cannot, therefore, be sustained. The contention of the learned Standing Counsel for the State of Uttar Pradesh that Dr. Asopa was not entitled to any pension lacks merit and has got to rejected."
Payment of pension in the similar matter again came before this Court in the matter of Hans Raj Pandey v. State of U.P. and others, 2007 (3) UPLBEC 2073 and the Court after considering the different law occupying the filed with regard to the payment of pension has held as under:-
"In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B i.e., lack of permanent character of service. However, in out view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P.Act No. 24 of 1975 which allows retirement of a temporary employees also and provides in clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government Servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition -B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is in operative."
Again this issue came before this Court for consideration in the case of Prem Singh Verma Vs. State of U.P. Thru Secy & Ors. (Writ-A No. 8876 of 2013) and after considering the different rules occupying the field, this Court has held as follows:-
"30. The principle which can be discerned from the above mentioned judgment is that if adhoc/stopgap/temporary employee having essential qualification and is appointed in terms of the statutory Rules and he continues for a long time and fulfills the qualifying service is entitled for pension and other retiral benefits.
31. Having regard to the facts and circumstances of the case I am of the view that petitioner is entitled for the post retiral benefits as his appointment was made in terms of the statutory Rules viz. Removal of Difficulties Order, 1981, against a short term vacancy with the approval of the appropriate authority/District Inspector of Schools and he worked uninterruptedly for 17 long years.
32. For the aforesaid reasons the impugned order dated 3.11.2012 passed by the Joint Director needs to be set aside. Accordingly, it is set aside.
33. A direction is issued upon the concerned respondents to pay the post retiral benefits to the petitioner in accordance with law as expeditiously as possible preferably within three months from the date of communciation of this order. It is made clear that if the payment is not made to the petitioner within the said period the petitioner shall be entitled for interest at the rate of 9% per annum on the delayed payment."
In the matter of Ishrat Jahan Vs. State of U.P. and 3 others again (Writ-A No. 5737 of 2018), facts were same whether after attaining the age of supperannuation without obtaining the prior permission from D.I.O.S., post retiral benefits were denied, this court after considering the relevant rules as well as law laid down by the Apex Court, has held as follows:-
"21. The principle, which can be discerned from the above mentioned judgment, is that if adhoc/stopgap/temporary employee having essential qualification and is appointed in terms of the statutory Rules and he continues for a long time and fulfils the qualifying service, is entitled for pension and other retiral benefits.
22. Having regard to the facts and circumstances of the case, I am of the view that petitioner is entitled for the post retiral benefits as her appointment was made in terms of the statutory Rules and the same was also approved by the District Inspector of Schools by an order dated 8.5.2013. Admittedly, on account of an interim order dated 20.1.2004 passed in Writ Petition No.38769 of 2000, the petitioner continued to work in the institution and finally retired on attaining the age of superannuation on 1.7.2017 (worked under the sessions benefit upto 31.3.2018) and she worked uninterruptedly for more than 25 long years.
23. A direction is issued to the respondents to pay the post retiral benefits to the petitioner in accordance with law as expeditiously as possible preferably within three months from the date of communication of this order."
This issue was again came before this Court in the matter of Narsingh Rai Vs. Deputy Director of Education, Varanasi, and 3 others ( Writ-A No. 14970 of 2018), in which petitioner was working as Assistant Teacher in respondent- Institution from 08.07.1994. He was retired from service on 31.03.2018 after serving for more than 23 years but respondent-college denied the payment of pension to him for the reason that he was not completed essential service of 10 years, this court vide order dated 24.07.2018, has quashed the order impugned and allowed the writ petition with cost of Rs. 25,000/-.
Therefore, in the light of discussion made herein above, order dated 03.01.2015 is not sustainable in the light of rules as well as law laid down by this Court and petitioner is also entitled for payment of his pension from the date of his superannuation i.e. 30.06.2011, therefore, order dated 03.01.2015 is hereby quashed.
At this stage, another issue before this court is that whether matter should be remanded back to Regional Committee constituted under the provisions of U.P. Act No. 5 of 1982 for taking a fresh decision or not. Similar issue was came before Division Bench this Court in the matter of Tileshwar Nath Vs. State of U.P. & another (Writ-A No. 8224 of 2012) decided on 11.04.2018, and the Court has held as follows:-
.........................
"There is another issue before the Court whether the matter should be remanded back to the Tribunal or not to consider and decide again in light of observation made herein above. Court is of the view that when charge sheet itself does not establish any charge and matter is pending since long, no fruitful purpose shall be served to remand the matter back to the Tribunal to decide again, when the petitioner has already retired from service on 31.01.2006."
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In the present case too, grounds taken in order dated 03.01.2015 is absolutely baseless and petitioner has also attained the age of superannuation on 30.06.2011, therefore, instead of remanding back the matter to Regional Committee, respondents are directed to pay pension to the petitioner forthwith on month to month basis and also pay arrears of pension along with 6% interest from the date of his retirement i.e. 01.07.2011 within three months from the date of production of certified copy of this order.
With the aforesaid observations, the writ petition is allowed. No order as to costs.
Order Date :- 29.3.2019 Sartaj