Heard.
At the outset, learned counsel for the petitioner has drawn attention of this Court towards the judgment and order dated 22.2.2019 passed by this Court in Service Single No.25751 of 2018, Smt. Nirupma Singh Vs. State of U.P. and others, whereby this Court has decided the writ petition in the light of judgment passed by this Court in re; Ishrat Jahan Vs. State of U.P. and three others, Writ-A No.5737 of 2018. The order dated 22.2.2019 passed in the case of Smt. Nirupma Singh (supra) is being reproduced herein below:-
"Heard Sri Shiwa Kant Tiwari, learned counsel for the petitioner and Dr. Udai Veer Singh, learned Addl. Chief Standing Counsel for the State-respondents.
Learned counsel for the petitioner has submitted that the identical issue has been decided by this Court vide judgment and order dated 7.3.2018 in Writ-A No.5737 of 2018, Ishrat Jahan Vs. State of U.P. and three others. The judgment and order dated 7.3.2018 is reproduced herein below:-
"1. Heard Shri Pankaj Rai, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents.
2. Smt. Ishrat Jahan, wife of Sri Mohammad Ali is before this Court with request to issue direction commanding the respondents to pay arrears of salary to her from 3.7.1992 to 7.5.2013 and to grant/extend the pensionary benefits to her as admissible under the law as the petitioner has already been retired on 1.7.2017 and worked upto 31.3.2018 under sessions benefit.
3. Record in question reflects that an advertisement was published in daily newspaper 'Dainik Jagaran' on 9.7.1991 for appointment on the post of Assistant Teacher in L.T. Grade in Maharshi Dayanand Balika Vidyalaya Intermediate College, Mirzapur, which is a recognized institution under the provisions of U.P. Intermediate Education Act, 1921 and receiving grant in aid from the State Government. The provisions of U.P. Act No.24 of 1971 is also applicable to the institution in question. The petitioner applied for and was selected on the post in question by a duly constituted Selection Committee. Accordingly, an appointment letter was issued in favour of the petitioner on 16.6.1992 by the Committee of Management of the institution in question. In pursuance of the aforesaid appointment letter, the petitioner joined the services in the institution on 3.7.1992. Thereafter, the Committee of Management sent the relevant papers for getting approval of the petitioner's appointment on 18.7.1992 followed by letter dated 27.8.1993. When nothing was done, the petitioner approached this Court by preferring Writ Petition No.3647 of 1995 and the said writ petition was disposed of by this Court on 10.2.1995 by issuing a direction to the District Inspector of Schools to dispose of the petitioner's representation within three months. In compliance of the aforesaid order, the representation of the petitioner was rejected by the District Inspector of Schools on 11.6.1995. In reference to some aspects, again the petitioner filed a representation before the District Inspector of Schools and the same was accepted on 4.7.1995.
4. When no payment was made to the petitioner, inspite of order dated 4.7.1995 passed by the District Inspector of Schools for payment of her salary, the petitioner again filed Writ Petition No.23670 of 1998, which was disposed of on 23.7.1998 asking the District Inspector of Schools to redress her grievance. In pursuance of the aforesaid order, the petitioner's representation dated 11.8.1998 was allowed by the District Inspector of Schools on 28.5.1999, directing the payment of salary of the petitioner. Thereafter, the petitioner was pursuing her claim for payment of salary in pursuance of the orders dated 4.7.1995 and 28.5.1999. By the order dated 28.5.1999, the District Inspector of Schools denied the claim of the petitioner on the ground that the said appointment was made without prior permission from the District Inspector of Schools. Again the petitioner filed Writ Petition No.38769 of 2000 in which an interim mandamus was issued on 20.1.2004 for payment of salary to the petitioner, if she is working in the institution in question. In compliance of the order dated 20.1.2004, the District Inspector of Schools passed an order on 8.5.2013 stating that the petitioner is working since long and has been appointed against substantive post and as such, she is entitled for her salary on the post in question. The petitioner is working with effect from 3.7.1992 and she is getting regular monthly salary from the State exchequer since 8.5.2013. In this backdrop, the petitioner again moved an application on 23.9.2016 before the District Inspector of Schools for payment of her arrears of salary from 3.7.1992 to 7.5.2013 and thereafter, various reminders were also sent. The petitioner has retired on attaining the age of superannuation on 1.7.2017 and she worked under the sessions benefit upto 31.3.2018.
5. In the aforementioned facts and circumstances, Shri Pankaj Rai, learned counsel for the petitioner submits that in pursuance of the appointment letter dated 16.6.1992, the petitioner joined the institution on 3.7.1992 and continued to work till her retirement on 1.7.2017 (worked under sessions benefit upto 31.3.2018) and as such, she is entitled for all the retiral benefits. He further makes submission that the claim set up by the petitioner is liable to be considered in the light of the judgements passed by this Court in Board of Revenue and others vs. Prasidh Narain Upadhyay 2006(1) ESC 611 (All) (DB), Ram Sumer Bajpai vs. State of UP 2012 (3) UPLBEC 2205 and Prem Singh Verma Vs. State of U.P. and others 2013 (7) ADJ 463. Admittedly, the petitioner had rendered more than 25 years' satisfactory in the institution in question and her services cannot be termed as adhoc and she is entitled for pension and other retiral dues. He further submits that more so, there is no dispute that the petitioner was having essential qualifications as per the statutory rules to work as Assistant Teacher in LT grade in the institution in question.
6. Shri Pankaj Rai, learned counsel for the petitioner very fairly makes a statement at the bar that in case the pentionary benefit is extended to the petitioner, then at this stage, the petitioner will not press the relief for release of arrears of salary with effect from 3.7.1992 to 7.5.2013.
7. Per contra, learned Additional Chief Standing Counsel has drawn the attention of the Court to Article 465-A and Article 361 of the Civil Service Regulations, wherein conditions have been laid down for qualifying service. He further submits that Article 361 of the Civil Service Regulations requires three conditions namely (a) the service must be under Government; (b) the employment must be substantive and permanent and (c) the service must be paid by Government. In any event the petitioner does not fulfil the condition no.(b) inasmuch as her appointment is indisputably made on ad hoc basis and it was not a permanent appointment.
8. Heard rival submissions of the learned counsel for the respective parties and perused the record.
9. The appointment of the petitioner was made on ad hoc basis. The institution where the petitioner was appointed as ad hoc teacher is governed by the U.P. Intermediate Education Act, 1921 (in short Act,1921) and Act No. 5 of 1982. In the Act, 1921 the word 'ad hoc' or 'temporary' is not defined. Section 16-E deals with the appointment of teachers in Intermediate Colleges; under Section 16E (11) the temporary appointment were permissible only against a temporary vacancy caused by grant of leave to a incumbent for a period not exceeding six months. Chapter II of the Regulations framed under the Act, 1921 deals with the appointment of Heads of the institution and teachers. Proviso to Regulation-2 sub-clause (1) also permit to make appointment against a temporary vacancy caused by grant of leave for a period not exceeding six months or by death, retirement or by suspension.
10. The State Government amended U.P. Intermediate Education Act, 1921 drastically by U.P. Secondary Education Laws (Amendment) Act, 1975 (U.P. Act No. 26 of 1975). The same difficulties arose due to said amendment and as such, the State Government vide Notification dated 18th August, 1975 issued U.P. Secondary Education (Removal of Difficulties) Order, 1975 in respect of substantive or leave vacancy or any vacancy existing or occurring during the academic session of the head of the institution of teachers. For the first time, the management was empowered to make ad hoc appointment in the manner provided under the said order. The State Government in order to overcome further difficulties which arose, issued Removal of Difficulties Second, Third, Fourth, Fifth, Sixth and Seventh orders between the years 1975 -1977. There is no need to go into details of those orders as it is not relevant for the issue involved in the present case. Suffice would be to say, that for the first time, the concept of ad-hoc appointment was introduced under the U.P. Intermediate Education Act,1921.
11. In the year 1981 the State Government established the U.P. Secondary Education Service Commission and Selection Board vide Ordinance No. 8 of 1981, which was promulgated on 10th July, 1981. The State Government in exercise of power under section 33 of the said ordinance issued Removal of Difficulties Order, 1981 on 31 July, 1981, which was followed by (Removal of Difficulties) (Second) Order, 1982 on 11th September, 1981. Both these orders were issued laying procedure for appointment on ad-hoc basis against the substantive vacancy and short term vacancies.
12. After the enforcement of the U.P. Secondary Education Services Selection Board Act, 1982, the Committee of Management was empowered to make the ad-hoc appointment under Section 18 of the Act. The said section was amended by U.P. Act No. 1 of 1993 and U.P. Act No. 5 of 2001. From the aforesaid statutory provisions it is evident that the ad-hoc appointments were permissible by following statutory provisions which also requires approval of the District Inspector of Schools. The payment of salary of the ad-hoc teachers appointed under the aforementioned statutory provisions are made by the State Fund/Salary Payment Account.
13. Concededly, the petitioner was initially appointed as ad hoc teacher, her appointment was made against the short term vacancy. She worked for more than 25 years and reached her age of superannuation on 1.7.2017 (under sessions benefit upto 31.3.2018).
14. The Civil Service Regulation as applicable in Uttar Pradesh are intended to define the prerequisite conditions for grant of pension in the Government Service/Civil Department. The Article 361 of Chapter XVI of the Civil Service Regulations provides conditions of qualifications for pension. Article 361 reads as under :-
"The service of an officer does not qualify for pension unless it conforms to the following three conditions-
a) the service must be under Government,
b) the employment must be substantive and permanent and
c) the service must be paid by Government."
15. Article 424 of Chapter XVIII of the Civil Service Regulations provides the following kinds of pension admissible to a Government servant (a) compensation pension (b) invalid pensions (c) superannuation pensions (d) retiring pensions.
16. The Civil Service Regulation as applicable in Uttar Pradesh is a preconstitutional Rules. The U.P.Fundamental Rules which has been made under section 241 (2) ( b) of the Government of India Act, 1935 came into force with effect from 1st April, 1942. Chapter 9 deals with the compulsory retirement. Fundamental Rule 56 (e) provides for retiring of a Government servant. Clause (e) of Fundamental Rule 56 reads as under:
"(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 required 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 pension 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."
17. The short question which need determination in this case is whether the petitioner who was appointed on adhoc basis and also superannuated in the same capacity without her regularisation can be held to work on a regular basis. The terms under "ad hoc" "stopgap" and "fortuitous" came to be considered by the Supreme Court in the case of Rudra Kumar Sain v. Union of India, (2000) 8 SCC 25. The Court found that a person, who has a requisite qualification and who is appointed with the approval of the appropriate authority and if he is allowed to continue on the post for a considerable long time then such appointment cannot be held to be stopgap/ fortuitous or purely adhoc appointment. The Supreme Court observed as under :-
"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".
18. The Supreme Court in the case of Ramesh K. Sharma v. Rajasthan Civil Services, (2001) 1 SCC 637, considered the word "substantive basis" following the judgment of Baleshwar Dass v. State of U.P. (AIR 1981 SC 41). The Supreme Court held that if an incumbent holds the post for indefinite period then it cannot be said to be adhoc appointment. The Court 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."
19. This Court in the case of Dr. Hari Shanker Asopa v. State of U.P. And another, reported (1989) UPLBEC 501, considered the Article 361 and Clause (e) of Rule 56 of Fundamental Rules as applied in Uttar Pradesh and the Civil Service Regulations. Dr. Hari Shanker Asopa was appointed on temporary basis on the post of lecturer in the department of Surgery at S.N.Medical College, Agra on 4th August, 1964. In the year 1969, he was appointed on a substantive post of Reader in Surgery at same College that appointment too was on temporary basis. The term of the appointment was one year or till the candidate selected by the U.P.Public Service Commission was available, whichever was earlier. After three years, he was promoted to the post of Professor in Surgery in Jhansi Medical College. The said appointment was also temporary and it was for a period of one year or till the candidate regularly selected by the U.P.Public Service Commission was available or till the services of Dr. Asopa were needed, whichever was earlier. Dr. Asopa uninterruptedly continued for 18 years as a Lecturer, Reader and Professor on temporary basis. His request for voluntary retirement was allowed by the State Government in the year 1983 with a condition that no pension would be paid to him, as he was not permanent on any post of the Government Service. Dr. Asopa feeling aggrieved by the said order dated 21.2.1983 preferred a writ petition before this Court.
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.
25. It is made clear that the petitioner is not entitled for the arrears of salary for the period from 3.7.1992 to 7.5.2013."
Learned counsel for the petitioner has submitted that the present controversy is similar and identical, therefore, the present petitioner may be given the benefit of judgment and order dated 7.3.2018 passed in re; Ishrat Jahan (supra).
Learned counsel for the opposite parties has submitted that this writ petition may be disposed of in the light of the aforesaid judgment.
Therefore, this writ petition is disposed of finally directing opposite party no.2 i.e. Deputy Director of Education (Secondary) Faizabad to provide the benefit of judgment and order dated 7.3.2018 in re; Ishrat Jahan (supra) to the present petitioner and pass appropriate orders within a period of three months from the date of production of certified copy of the order of this Court.
The writ petition is disposed of in the aforesaid terms."
Learned counsel for the opposite parties has submitted that this writ petition may be disposed of in the light of aforesaid judgment passed in re; Smt. Nirupma Singh (supra), wherein decision of this Court in re; Ishrat Jahan (supra) has been followed.
Accordingly, this writ petition is decided finally in terms of the judgment and order dated 22.2.2019 passed in re; Smt. Nirupma Singh (supra) and the present petitioner shall be entitled for the benefit of aforesaid judgment within a period of three months from the date of production of certified copy of this order.
The writ petition is disposed of in the aforesaid terms.
Order Date :- 2.2.2021 RBS/-
[Rajesh Singh Chauhan,J.]