Allahabad High Court
Love Pd. Dwivedi And Others vs State Of U.P. And Others on 10 April, 2020
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 27.01.2020
Delivered On:- 10.04.2020
Case :- WRIT - A No. - 33208 of 1990
Order on Civil Miscellaneous (Review) Application No. 1 of 2018
Petitioner :- Love Pd. Dwivedi And Others
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Rajeev Sharma,Amit Saxena
Counsel for Respondent :- S.C.,J.P.Nigam
Hon'ble Siddharth, J.
1. Heard Sri Amit Saxena, learned Senior Advocate, assisted by Sri Mushir Khan, learned counsels for the petitioners and Sri Chandan Kumar, learned Standing Counsel appearing for the respondents.
2. This review application has been filed by the petitioner nos. 1, 2 and 4 only against the judgment and order dated 11.01.2018 passed by this court dismissing the above noted writ petition, which was argued only on behalf of the aforesaid petitioners.
3. The learned Senior Counsel for the petitioners-review applicants has submitted that this court, while deciding the writ petition has not considered that the Deputy Registrar, Cooperative Society, U.P., Allahabad Region, Allahabad, respondent no. 2, was not authorized to appoint the petitioners temporarily but has not noticed the fact that petitioners were paid the salary by Assistant Development Officer (Cooperative) by the same department and therefore their appointment on their posts stood impliedly approved and there was no such pleading in the counter affidavit therefore the petitioners could not rebut the same.
4. He has further submitted that the petitioners were entitled to benefit of U.P. Regularization of Ad Hoc Promotion (On The Post Outside The Purview of Public Service Commission) Rules, 1988 (hereinafter referred to as "Rules of 1988") but this court has not extended the benefit of the same to the petitioners. Rule 2 of the Rules of 1988 have overriding effect over anything contrary contained in any rule or order. Therefore, if the benefit of Rules of 1988 had been extended to the petitioners the writ petition would have been allowed.
5. The finding that the temporary promotion of the petitioners came to an end after one year by operation of law as per Rule 19 (2) of the Subordinate Cooperative Service Rules of 1979 (hereinafter referred to as "Rules of 1979") is clearly in derogation of Rule 1 (3) of the Rules of 1988 inasmuch as it has been provided that the Rules of 1988 would apply to all posts under the rule making power of Governor except the posts outside the purview of Public Service Commission and therefore, by operation of this Rule, the benefit of the Rules of 1988 were clearly admissible to the petitioners.
6. This court has not considered the effect of Rule 4 of the Rules of 1988 which does not make any distinction between person continuing on the strength of interim order of this Hon'ble court or otherwise; the only requirement is that a person should have been continuing in service on the date of commencement of the said Rules.
7. The findings recorded regarding non applicability of the judgment of this Hon'ble court in Service Single No. 1258 of 2015, Munshi Lal vs. State of U.P and Others is also not tenable because of the reason that there was no dispute with regard to the ad hoc promotions of the petitioners on the post of Assistant Development Officer, which is further evidenced by the fact that the petitioner nos. 1 and 2 had been granted regular promotion by virtue of order dated 16.11.2012 whereas in paragraph no. 4 of the counter affidavit it was admitted that the petitioners had been directed to officiate on the post of Assistant Development Officer (Cooperative).
8. This court has recorded a further findings that as per Rule 3 (b) of the Rules of 1979, Additional Registrar (Administration) was the officer authorised to make appointment, even on an officiating vacancy of Assistant Development Officer (Cooperative). However a perusal of paragraph no. 18 of the supplementary counter affidavit reveals that by way of Government Order dated 10.04.1980 the Divisional Deputy Director was granted the right to make officiating/temporary appointments to the post of Assistant Development Officer (Cooperative) for 90 days and therefore, the appointments of the petitioners was clearly made by the empowered authority.
9. Finally, this court has held that the petitioners have not impleaded the Additional Commissioner and Additional Registrar (Administration), Cooperative, U.P., Lucknow, even though part quashing of his order has been sought which was only an error in the nature of irregularity which could have been rectified.
10. Sri Chandan Kumar, learned Standing Counsel appearing on behalf of State has submitted that in the State of U.P., after the enforcement of new pension scheme the petitioners are not entitled to any pensionary benefit. Despite grant of time on 10.12.2019 to file counter affidavit to the review application, it has not been filed by the learned Standing Counsel.
11. This writ petition was filed in the year 1990 challenging the order of reversion dated 25.11.1990 passed by the District Assistant Registrar Cooperative Societies, U.P., Allahabad, whereby the petitioners, who were temporarily promoted by the Deputy Registrar, Cooperative Societies, U.P., Allahabad vide order dated 02.12.1988 for 90 days on the post of Assistant Development Officer (Cooperative), were reverted to the post of Cooperative Supervisor.
12. This court vide interim order dated 17.12.1990 stayed the reversion of petitioners from the post of Assistant Development Officer (Cooperative) in pursuance of the order dated 25.11.1990 to the post of Cooperative Supervisor. Thereafter the writ petition remained pending and in the meantime the petitioner nos. 1 and 2 were given regular promotions on the posts of Assistant Development Officer (Cooperative) by the order dated 16.11.2012. The petitioner no. 4 was not promoted and he continued to work on the basis of the interim order of this court. The appointment and promotion granted to the petitioners on the post of Assistant Development Officer (Cooperative) was against the provisions of Subordinate Cooperative Service Rules, 1979 as considered in the judgment and order dated 11.01.2018 passed by this court.
13. This court while deciding the petition found that the appointment of the petitioners was not in accordance with the rules of 1979 but this court finds that as per Annexure CA3 to the counter affidavit dated 25.09.2012 filed on behalf of the respondent nos. 2 and 3, the Divisional Deputy Director, Cooperative Societies, U.P was delegated power to make ad hoc appointment to the post of Assistant Development Officer (Cooperative) for 90 days by the Government Order dated 10.04.1980 and the same was only with drawn by the order dated 07.04.1999 (Annexure CA-4) and therefore when the petitioners were appointed on 02.12.1988 the Government order dated 10.04.1980 was inforce and hence their appointments were in accordance with rules of 1979. This fact escaped the attention of the court while deciding the writ petition and constitutes an error apparent on the face of record making out a ground for review of the judgment and order dated 11.01.2018 passed by this court.
14. Once the appointment of the petitioners is found to be in accordance with law the judgment of this court in Service Single No. 1258 of 2015 will squarely apply to the present case.
15. It is not in dispute that from the date of adhoc promotion of the petitioner nos. 1 and 2 on the post of Assistant Development Officer (Cooperative) till the date of their regularization on the said post on 16.11.2012 the services rendered by the petitioner nos. 1 and 2 were uninterrupted. They claim post-retirement dues by way of amendment in writ petition.
16. In the case of Yashwant Hari Katakkar Vs. Union of India and others, (1996) 7 SCC 113, the Apex Court considered the claim of quasi-permanent government servant holding in paragraph no.3:-
" Dr.Anand Prakash, learned Senior Advocate appearing for the Union of India, has contented that on 7.3.1980 when the appellant was prematurely retired he had put in 18 ½ years of quasi-permanent service. According to him, to earn pension it was necessary to have a minimum of 10 years of permanent service. It is contented that since the total service of the appellant was in quasi permanent capacity he was not entitled to the pensionary benefit. There is nothing on the record to show as to why the appellant was not made permanent even when he had served the Government for 18 ½ years. It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the Government. The appellant having served the Government for almost two decades it would be unfair to treat him as temporary /quasi-permanent . Keeping in view the facts and circumstances of this case we hold that the appellant shall be deemed to have become permanent after he served the Government for such a long period. The services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits. We allow the appeal, set aside the judgment of the Tribunal and direct the respondents to treat the appellant as having been retired from service on 7.3.1980 after serving the Government for 18 ½ years (more than 10 years of permanent service) and as such his case for grant of pension be finalized within six months from the receipt of this order. The appellant shall be entitled to all the arrears of pension from the date of retirement. No costs."
17. In the case of Kedar Ram Vs. State of U.P. and others, C.M.W.P. No.26668 of 2002, regarding Fundamental Rules 56 (e) it has been held:-
"56(e). A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is retired or allowed to retire under this rule.
Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of person and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less."
As per Government Order dated 1st July, 1989 (Annexure ''7' to the writ petition), the State Government has clarified that a government employee, who has put in 10 years of regular service, would qualify to receive pension. Qualifying service has been defined under Regulation 361 of Section 1 of Chapter XVI of the Civil Service Regulation, which provides that the service of an officer does not qualify for person 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 Admittedly, the 1st and 3rd conditions are met. The petitioner was in the service of the Government and was also paid the salary by the Government. The question is whether the employment of the petitioner was substantive and permanent? This question has been answered by a Division Bench of this Court in Board of Revenue and others Vs. Prasidh Narain Upadhyaya, (2006) 1 ESC 611, wherein the Court held that in view of the provisions of Rule 56 (c) of the U.P. Fundamental Rules even a temporary employee is entitled to receive pension. The Court held that a person, who had worked for 37 years, would be entitled for pension, and the same can not be brushed aside on the ground that his service remained temporary.
Similar view was also held in the case of Dr. HariShankar Asopa Vs. Sate of U.P. and Ors. 1989 ACJ 337 in Writ Petition No.49080 of 2000 (Bhikhari Yadav Vs. State of U.P. and Ors.), decided on 06.08.2007, wherein the claim of the employee for pension, who had retired as a temporary seasonal collection peon, was allowed and it was held that the said temporary employee was entitled for pension and other retirement benefits. The said judgment is squarely applicable to the present facts and circumstances of the case.
In view of the aforesaid, the petitioner has made out a case for issuance of a writ of mandamus. Consequently, the writ petition is allowed and a mandamus is issued to the respndents to grant pension and other retirement benefits to the petitioner. The said calculation shall be made and the amount disbursed by the authorities within three months from the date of furnishing a certified copy of this order.
18. In the case of Ram Pratap Shukla vs. State of U.P. and others, 2006 (3) AWC 2909, this Court has decided the meaning of ''10 years of regular service' for the purposes of pension has follows:-
"16. The standing counsel has submitted and laid much emphasis on the word " Dus Varsh Ki Niyamit Seva" as used in Government order dated 1.7.1989. The submission of the learned standing counsel is that the petitioner was a work charge employee and has not completed 10 years of regular service, as such, he is not entitled for pensionary benefits. The words "regular service' has not been defined in the Government order. From the repelling of the aforesaid Government order, it is clear that words "ten years regular service" has ben referred to the service rendered and not to the status of employee, an employee substantively appointed and permanent automatically entitled for pension. If he has rendered a considerable period of service. The Government order dated 1.7.1989 does not contemplate the ten years substantive service. The emphasis is that the service should be regular and the Apex Court in the Judgement in AIR 1980 SC 1464 (supra) has observed as follows:
To begin with the word regular is derived from the word ''regular' which means '' rule' and its first the legitimate signification, according to Webster, is conformable to a rule or agreeable to an established rule, law, or principle to a prescribed mode . In words and Phrases (Vol. 36A. P 241) the word regular has been defined as steady or uniform in course practice or occurrence etc., and implies conformity to a rule standard or pattern. It is further stated in the said Book that ''regular' means steady or uniform in course, practice or occurrence not subject to unexplained or irrational variation. The word ''regular' means in a regular manner, methodically, in due under. Similarly, Webster's New World Dictionary defines ''regular' as ''consistent or habitual in action not changing uniform. Conforming to a standard or to a generally accepted rule or mode of conduct.
19. Regarding petitioner no. 4 no order of regularization was passed in his favour when it is clear from Annexure 3 to the writ petition that he was also given ad-hoc promotion like the petitioner nos. 1 and 2 on the post of Assistant Development Officer (Cooperative) and was granted extension of 89 days on the promotional post by the order dated 07.09.1990 by the District Assistant Registrar, Cooperative Societies, U.P., Allahabad and by the same impugned order dated 25.11.1990 he was directed to be reverted to his earlier post along with petitioner nos. 1 and 2.
20. While the petitioner nos. 1 and 2 have been regularized petitioner no. 4 has been discriminated. The Apex Court in the case of Jivan Lal Vs. Pravin Krishna, Principal Secretary and others, reported in (2016) 15 Supreme Court Cases 747, has held:-
"1. The appellants have prayed for regularization of their services with effect from the date they completed 10 years of service. Main reliance is placed on the orders passed by the respondents in the case of similarly situated persons.
2. The learned counsel for the respondents has vehemently contended that all the regularization orders passed in the case of those pointed out by the appellants are illegal since the State, in principle, had decided to discontinue the appointment to the post of Sweepers by order dated 10.12.1997. However, the fact remains that after the said order also, many similarly situated persons have been granted regularization with effect from the date of completion of 10 years of service.
3. In that view of the matter, we do not find any justification in discriminating the appellants herein. The policy had been violated in many cases. There cannot be any pick and choose policy; it would certainly lead to corruption. Hence, the appeals are allowed with a direction to the respondents to grant similar treatment to the appellants herein as well and grant regularization to them with effect from the date of completion of 10 years of service."
21. In view of the above consideration it is clear that the petitioner nos. 1 and 2 were made regular on their promotional post of Assistant Development Officer (Cooperative) by the order dated 16.11.2012. Therefore once the department itself regularized the petitioner nos. 1 and 2 there was no justification for denying the post retiral benefits admissible to them under the rules. The petitioner no. 4 has also rendered services like the petitioner nos. 1 and 2 and even though the order of regularization was not passed in his favour but he cannot be denied the post retiral benefit only because of pick and choose policy adopted by the respondents as depricated by the Apex Court in the case of Jivan Lal (Supra). Hence the impugned order dated 25.11.1990 passed by respondent no. 3 is hereby quashed. Petitioner nos. 1 and 2 are held entitled to their post retirement benefits and reckoning of their pension shall be made on the basis of services rendered by them in ad hoc capacity on the post of Assistant Development Officer (Cooperative) too, apart from service rendered after the regularization of their service on 16.11.2012. Petitioner no. 4 will also get the benefit of notional regularization on promotional post like the petitioner nos. 1 and 2 w.e.f., the date of their promotion i.e., 16.11.2012 including his period of ad hoc promotion on the post of Assistant Development Officer (Cooperative). The aforesaid exercise shall be conducted by the competent authority within the period of three months from the date of production of certified copy of this court. The post retired dues shall be paid to the petitioners as per the rule prevailing at the time of their retirement from service.
16. The judgment and order dated 11.01.2018 stands reviewed and writ petition stands allowed.
17. The review application is accordingly allowed.
Order date: 10.04.2020 Rohit