Court No. - 58
Case :- WRIT - A No. - 27575 of 2018 Petitioner :- Brijendra Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Manisha Chaturvedi Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner is aggrieved by an order dated 5.9.2018, whereby his claim for payment of pension has been declined on the ground that petitioner has not completed 10 years qualifying service after being regularised in the employment on 22.3.2016.
Learned counsel for the petitioner places reliance upon the judgment of this Court in Writ Petition No. 7439 of 2018 (Narsingh Rai Vs. State of U.P. and 3 others) decided on 24.7.2018, and submits that reasoning assigned in the order impugned has not found favour with this Court and claim of pension, in such circumstances, has also been allowed. Submission is that the claim of pension is regulated by the provisions of 'U.P. State Aided Educational Institution Employees Provident Fund, Insurance and Pension Rules, 1964' and that there is no contemplation therein that service only after regularisation would be taken note of, for the purposes of grant of pension.
Learned Standing Counsel states that the respondents be permitted to reconsider the matter in light of the law laid down in Narsingh Rai (supra).
This Court in Narsingh Rai (supra) has observed as under:-
"20. In the case of Hans Raj Pandey v. State of U.P. and others, 2007 (3) UPLBEC 2073 (supra) this Court had occasion to consider the provisions of U.P. State Aided Educational Institution Employees Provident Fund, Insurance and Pension Rules, 1964 also. Rule 43 ,44 and 45 of the said Rule has been considered at length by this Court and also the Regulations 465 and 465 A of the U.P.Civil Service Regulations. The Court 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."
"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.
24. Consequently, the writ petition is allowed."
In view of the aforesaid discussions, as also in light of the law laid down in Narsingh Rai (supra), the order impugned dated 5.9.2018 cannot be sustained and is accordingly quashed. By virtue of Rule 19 (b) of the Rules of 1964, the uninterrupted temporary or officiating service followed by regularisation would have to be included for determining the qualifying service for pension. The authorities are, therefore, directed to reconsider the matter, keeping in view the law laid down in Narsingh Rai (supra), within a period of three months from the date of presentation of certified copy of this order. All consequential action would be taken without further loss of time.
With the aforesaid observations, writ petition stands allowed.
Order Date :- 20.12.2018 n.u.