State Of U.P. Thru. Prin. Secy. Home Lko. ... vs Hashim Abbas Rizvi on 25 July, 2024

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Allahabad High Court

State Of U.P. Thru. Prin. Secy. Home Lko. ... vs Hashim Abbas Rizvi on 25 July, 2024

ORDER ON THE APPLICATION FOR CONDONATION OF DELAY (C.M. APPLICATION NO. 14056 OF 2020) (1) Heard learned Additional Chief Standing Counsel for the review applicants and Sri Rajiv Kumar Bajpai, learned counsel for the respondent.

(2) The present review application has been filed with some delay and an application seeking condonation of delay in filing the present review application has been preferred. It has been submitted that delay has been caused in the process of obtaining legal opinion and subsequently, in obtaining permission from the Law Department for filing present review application. The delay caused in filing the review application is due to the aforesaid reason and same is not deliberate or intentional.

(3) We have perused the averments made in the affidavit filed in support of the application for condonation of delay. The cause shown is deemed to be sufficient. Accordingly, the application is allowed and the delay in filing the review application is condoned.

ORDER ON THE REVIEW APPLICATION (4) An application for review has been preferred by the State of U.P seeking review of Judgment and order dated 13.12.2019 whereby Special Appeal No. 571 of 2019 preferred by the State of U.P. assailing the judgement of the learned Single Judge dated 21.02.2018 passed in Writ Petition No.5303 (S/S) of 2018 had been dismissed.

(5) The instant Special Appeal was dismissed at the very threshold on 13.12.2019 after considering that several writ petitions have been decided in favour of the writ petitioners on the basis of the judgement rendered in the case of Bhuvan Chand Joshi and another versus State of U.P. - Writ Petition No. 421 (S/S) of 2018 (decided on 09/01/2018) as also the case of Jay Prakash Gupta rendered by the UP Public Services Tribunal against which Service Bench No. 1691 of 2012, State of U.P. and others v. Jay Prakash Gupta and 2 others was dismissed vide judgment and order dated 03.12.2013 by this Court, and even the Special Leave Petition was dismissed on 05.05.2014 by the Hon'ble Apex Court. Accordingly this Court without entering into the merits of the case, relying upon the judgements rendered by other Benches, dismissed the Special Appeal.

(6) Subsequently an application for review has been filed by the State-appellants stating that in the meanwhile, similar issue has been considered by a Full Bench of this Court in the case of Ankul Prakash versus State of U.P. in Writ A 2001647 of 2015, where in similar circumstances with regard to the employees of Auto Tractors Ltd, who were also retrenched and subsequently absorbed on various posts in the State Government had been denied the pensionary benefits, and this Court while considering their grievance, came to the conclusion that they were not eligible to be granted pension. It was held that the employees of the Government of U.P. are governed by the provisions of Civil Services Regulations and U.P Retirement Benefit Rules 1961, where entitlement for pension is subject to fulfillment of certain essential conditions and criteria laid therein, and the condition with regard to the rendering of service prior to entitlement of the claim for pension is not fulfilled.

(7) The issue in the present review application also pertains to counting of the period of services rendered in Uptron India Ltd. for the purposes of the grant of post-retiral dues including pension, leave encashment and gratuity. The respondent is an erstwhile employee of Uptron India Ltd. from where he was retrenched and subsequently absorbed on the post under the State Government.

(8) The aforesaid issue was litigated by similarly placed employees before various forums, including the U.P Public Services Tribunal as well as this Court. The Tribunal decided the issue in favour of the employees in the case of Jay Prakash Gupta, which order was also upheld by the Division Bench of this Court in Service Bench No. 1691 of 2012 (State of U.P and others vs Jay Prakash Gupta). The special appeal preferred by the State of U.P. against the aforesaid judgement was also dismissed on 05.05.2014, and it is in light of the aforesaid facts that in the instant matter, when the special appeal was filed by the State of U.P., this Court decided the same in terms of the order passed in similar matters including Jay Prakash Gupta (supra).

(9) Accordingly, a number of writ petitions were filed before this Court which were also allowed in terms of the aforesaid order. The State of U.P. on the other hand filed special appeals against the judgement and order of the learned Single Judge, and a bunch came to be heard and decided by the Division Bench of this Court, leading Special appeal being Special Appeal No. 433 of 2018, State of U.P and another v. Smt. Rana Ashok and another decided on 31.10.2019.

(10) The Division Bench in its order dated 31.10.2019 distinguished the case of Jay Prakash Gupta (supra) on the ground that he was appointed after due selection on deputation and thereafter absorbed in accordance with the rules. While adjudicating the issue pertaining to grant of pension to the respondents, the provisions of the U. P. Retirement Benefit Rules, 1961 were considered, in the light of the peculiar facts of the case as well as the judgement in the case of Pooran Singh Manral and another versus State of U.P. and others, Writ-A No. 49126 of 2016 where it was held that Rules of 1961 and Civil Service Regulations (CSR) make it very clear that services rendered in non-Government establishment would not qualify for pension, and accordingly while allowing the special appeal preferred by the State, this Court was of the view that the learned Single Judge had not considered the aspect as to whether the respondents are entitled for retiral benefits and pension after counting the past services rendered in Uptron India Ltd. or not in accordance with law and also observed that in most of the cases the order was passed with the consent of the learned Standing Counsel and accordingly the special appeal was allowed and the matter remitted to the learned Single Judge for decision afresh.

(11) Learned Standing Counsel has also relied upon a judgement of the Full Bench of this Court in the case of Ankul Prakash versus State of U.P. passed in Writ-A No. 2001647 of 2015. In the said case a similar controversy pertaining to the employees of Auto Tractors Ltd. who were also retrenched and subsequently absorbed to various post in the State Government had arisen and the question which had gained attention of the Full Bench was whether the employees would be entitled to count the previous services rendered in Auto Tractors Ltd. towards the qualifying service for the purpose of calculation of post-retiral dues.

(12) 12. The Full Bench in Ankul Prakash (supra) was considering the following question:-

"(ii) Whether a retrenched employee of Auto Tractors Limited such as the petitioner, who got absorbed in State Government Service subsequently as per the relevant rules known as the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules 1991 are entitled to count their previous services rendered by them under the erstwhile employer i.e. the Auto Tractors Limited, for calculation of qualifying service for purposes of retirement benefits under the U.P. Retirement Benefit Rules 1961 and other ancillary rules and Government Orders in this regard as also Government Orders dated 11.11.1993 and 10.07.1998 as modified vide Government Order dated 28.12.2001? "

(13) While answering the refence, the Full Bench has duly considered the Rules and the applicable Government Orders in this regard and has held as under:-

"We have perused the 1991 Rules and there is nothing in the said Rules which may permit counting of past services rendered by the petitioner in ATL for the purposes of calculating his qualifying service for pensionary benefits payable by the Government consequent to his retirement from Government service after absorption therein. We have also perused the Government Order dated 11.11.1993 and we do not find any provision therein permitting the said benefit.

Paragraph 7 of the Government Order dated 11.11.1993 also does not permit counting of services rendered by the petitioner in ATL for the purposes of determining his seniority viz-a-viz direct recruits in the absorbed department.

Paragraph 5 of the Government Order dated 11.11.1993 merely says that all the Rules applicable to the Government servants would apply to such retrenched employees from the date of their entry into Government service.

Now, in this context, we find that the pensionary entitlements of Government servants are regulated by rules known as U.P. Retirement Benefits Rules, 1961 (hereinafter referred as '1961 Rules') and Civil Service Regulations (hereinafter referred as 'CSR') so far as they are not inconsistent with the aforesaid 1961 Rules. These Rules are applicable to all Offices under the rule making power of the Governor other than those who retired before the date of coming into force of the said Rules. Sub-Rule (2) of Rule 2 says that pension provisions contained in CSR shall continue to apply to the Officers governed by these Rules, except so far as they are inconsistent with any of the provisions of these Rules. Rules 3 (8) of 1961 Rules defines the term 'qualifying service', which is to be calculated for the purposes of determination of pensionary benefits and it reads as under:

"3 (8) Qualifying service means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services 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 or 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.

Note. If service rendered in a non-pensionable establishment work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."

Regulation 368 of the CSR reads as under:

"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment."

The proviso to Rule 3(8) clearly mentions inter alia that service under the Government shall count as qualifying service. We may in this context refer to Regulation 361 which 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 be paid by Government.

These three conditions are fully explained in the following section."

In the above quoted three conditions are required to be satisfied. Thus, as per the aforesaid provision of the CSR also, service of an Officer would qualify for pension only if the service is under the Government and it is paid by the Government, apart from the fact that employment must be substantive and permanent. The services rendered by the petitioner in ATL was not a service under the Government nor was it paid by the Government and there is nothing on record to establish otherwise. The ATL was a Government company having separate entity as a Government company incorporated under the Companies Act, 1956. Thus, as per pensionary Rules applicable in the Government as the service had to be under the Government and also paid by the Government, to qualify for pensionary benefits, which was not so in the case of petitioner, therefore, in view of these Rules also, it cannot be counted for the aforesaid purpose.

The amendment in the 'qualifying service' defined in Rule 3(8) of the Rules 1961 by the U.P. Qualifying Service for Pension and Validation Act, 2021 does not change the legal position so far as the questions before us are concerned. Thus, Rules of the Government applicable in this regard also do not support the claim of the petitioner for counting of services rendered in the ATL for purposes of grant of pensionary benefits by the Government.

We, thus, do not find any provision in the Rules or any Government Order referable to the 1991 Rules which could entitle a retrenched employee of ATL for counting of his services rendered in the said concern for grant of pensionary benefits by the Government.

We may at this very stage refer to a Division Bench judgment of this Court dated 06.10.2016 rendered in Writ A 49126 of 2016 (Pooran Singh Manral and another vs. State of U.P. and others) wherein a similar view has been taken and which we find as laying down the law correctly on the subject, although it was in the context of a claim by an employee of another Corporation absorbed in another department, but, in the said case also a Government Order on the same lines as the Government Order dated 11.11.1993 and the same Rules 1991 were considered.

The 1991 Rules were subsequently rescinded by the Retrenched Employees of Government or Public Corporations in Government Service (Rescission of Rules), 2003. By the said Rules, the 1991 Rules were rescinded w.e.f. 08.04.2003. Only two things were protected; one is the benefit of absorption already granted and secondly; the last pay protection in this very context. All Government Orders referable to Rule 3 were also annulled w.e.f 08.04.2003 subject, of course, to the benefit already granted. In addition to it, those retrenched employees whose services had not been absorbed till promulgation of the said Rules i.e. till 08.04.2003, they were given relaxation in age for the purposes of recruitment on Group 'C' and 'D' posts outside the purview of U.P. Public Service Commission. Subsequently, a legislative enactment known as Retrenched Employees of Government or Public Corporations in Government Service (Rescission of Rules) Act, 2009 was promulgated by which the 1991 Rules were rescinded w.e.f. 09.05.1991 i.e. from the very date they were promulgated. This enactment, thus, gave retrospective effect to the rescission of Rules 1991 from 09.05.1991. While rescinding the said Rules with retrospective effect from 09.05.1991 again two things were protected, one the benefit of absorption already granted prior to 08.04.2003 and secondly; the last pay drawn by such retrenched employee who had been absorbed. In addition, it was provided that those retrenched employees who had not been absorbed till 08.04.2003, they would be given relaxation in upper age limit for direct recruitment to such Group 'C' and 'D' posts which are outside the purview of U.P. Public Service Commission to the extent he has rendered his continuous service in substantive capacity in the concern Government department or Public Corporations/Companies. Thus, these Rules of 2003 and 2009 also do not provide for counting of past services rendered by the retrenched employees of ATL, after their absorption in a Government service for pensionary benefits."

(14) Learned counsel for the respondent does not oppose the aforesaid legal proposition.

(15) We have considered the arguments raised by the parties and perused the record. The issue canvassed before us is regarding the entitlement of the respondent who was previously working in Uptron India Ltd. and was subsequently retrenched and absorbed under the State Government, could be granted pensionary benefits, counting his past services in Uptron India Ltd.

(16) As we have noticed above, this issue was also considered by the Full Bench of this Court in the case of Anukul Prakash (supra) and held that the entitlement for pension would arise only if the conditions of U.P. Retiral Benefit Rules, 1961 read with Regulation 368 of the Civil Service Regulations are fulfilled. The pensionary entitlement of the Government Servants is regulated by the U.P. Retirement Benefit Rules, 1961 and the Civil Service Regulations. The judgement of Anukul Prakash (supra), which was rendered in relation to Auto Tractors Ltd. clearly applies in the case of the respondent who was employed with Uptron India Ltd. The services of the respndent rendered with Uptron India Ltd. cannot be counted as a service rendered under the State Government nor paid by the Government and consequently the respondent does not qualify for pension under Rule 3(8) of the Rules of 1961.

(17) The benefit of the Government Order dated 25.06.2015 also cannot be granted to the respondent, wherein by the said Government Order permission was granted for counting the services rendered in Uptron India Ltd. for the purposes of pensionary and post-retiral benefits to the employees appointed as Assistant Programmers on the ex-cadre post in the UP Police Computer Centre, as it was recalled by means of an order dated 14/09/2018.

(18) Considering the fact that this Court had not decided the case on merits but relied only upon the judgements passed by the coordinate Benches and subsequently the issue has been concluded by the Full Bench in the case of Anukul Prakash (supra), where all aspects pertaining to entitlement of persons who have been absorbed in the Government departments, have been considered, and it has been held that such persons would not qualify for pension, and consequently their previous services cannot be counted as qualifying service for entitlement of pension, the review application preferred by the State of U.P. is liable to be adjudicated on merits.

(19) While taking into consideration the question as to whether there is any error apparent on the face of the record of the order under review dated 13/12/2019, it is necessary to delve into the aforesaid order. The Bench while deciding the Special Appeal (Defective) No. 571 of 2019 had noticed the judgement rendered in Special Appeal No. 433 of 2018 dated 31/10/2019, and further observed that there is no case made out to take a different view than what has been taken by other Benches in similar matters, but failed to notice that the Special Appeal filed by the State of UP in the case of Smt. Rana Ashok (supra) had been allowed as the Division Bench had therein held in paragraph No. 45 of the said judgement that the learned Single Judge has not considered the question as to whether the respondent is entitled for post-retiral benefits and pension after counting his past services rendered in Uptron India Ltd., and in some cases the order was passed with the consent of the learned Standing Counsel, while it was stated that the Government had not given any such instructions.

(20) Accordingly, this Court had wrongly applied the judgement in the case of Smt Rana Ashok (supra) while affirming its findings, and in fact the present special appeal deserved to be allowed rather than dismissed in a situation where the Division Bench was affirming the view taken earlier in the case of Smt. Rana Ashok (supra). Hence there apparent error on the face of the record necessitating review of the order dated 13.12.2019 is manifest.

(21) In light of the aforesaid discussion the review application is allowed and the impugned judgment and order dated 31.10.2019 is set aside.

(22) Consequently, the Special Appeal is allowed and the impugned judgment and order of the learned Single Judge dated 21.02.2018 is set aside.

(Alok Mathur, J.) (Attau Rahman Masoodi, J.) Order Date :- 25.7.2024 A. Verma

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