Court No. - 28
Case :- WRIT - A No. - 51475 of 2016
Petitioner :- Chandrej Yadav
Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Manoj Kumar Singh,Pavan Kumar Srivastava
Counsel for Respondent :- C.S.C.,Sushil Kumar Rao
Hon'ble Siddharth,J.
Heard learned counsel for the petitioner, Sri Manoj Kumar Singh and learned Standing Counsel appearing for the respondents.
Under challenge in this petition are the orders dated 04.08.2016 and 22.08.2016 passed by the Registrar / Commissioner, Co-operative Societies, U.P whereby benefit of the services rendered by the petitioner in adhoc capacity on the post of Cooperative Inspector Group- II/Assistant Development Officer (Cooperative) with effect from 22.05.1995 till 01.11.2006 has not been taken into account for the purposes of reckoning his pension.
The petitioner was appointed on the post of Cooperative Supervisor on 12.06.1978. After working on the said post for quite sometime, he was promoted on adhoc basis on 22.05.1995 on the post of Cooperative Inspector Group-II/Assistant Development Officer (Cooperative). Pursuant to the said promotion order on adhoc basis, the petitioner submitted his joining on higher post on 09.06.1995. The petitioner thereafter continued to work on the higher post of Cooperative Inspector Group-II/Assistant Development Officer (Cooperative) and ultimately his services on the post of Cooperative Inspector Group- II/Assistant Development Officer (Cooperative) were regularized by means of an order dated 25.09.2009 with effect from 01.11.2006.
It is not in dispute that from the date of adhoc promotion of the petitioner on the post of Cooperative Inspector Group-II/Assistant Development Officer (Cooperative) till the date of his regularization on the said post, the services rendered by the petitioner were uninterrupted.
In the case of Yashwant Hari Katakkar Vs. Union of India and others, (1996)7 SCC 113, wherein it has been held 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."
In the case of Kedar Ram Vs. State of U.P. and others, C.M.W.P. No.26668 of 2002, wherein 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.
In the case of Ram Pratap Shukla vs. State of U.P. and others, 2006 (3) AWC 2909 wherein 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.
In view of above, the writ petition is allowed. The impugned orders dated 04.08.2016 and 22.08.2016 passed by the Registrar / Commissioner, Co-operative Societies, U.P are hereby quashed.
It is further directed that calculation and reckoning of the pension of the petitioner shall be made afresh giving benefit of the services rendered by him in adhoc capacity on the post of Cooperative Inspector Group-II/Assistant Development Officer (Cooperative) with effect from 22.05.1995 till 01.11.2006. The aforesaid exercise shall be completed by the respondents within two months from the date of production of certified copy of this order.
Order Date :- 30.3.2018 SS