Court No. - 4
Case :- CONTEMPT APPLICATION (CIVIL) No. - 2686 of 2021 Applicant :- Dr Anand Yati And Another Opposite Party :- Mr Prasant Trivedi,Principal Secretary Counsel for Applicant :- Raghwendra Prasad Mishra,Avneesh Tripathi
Hon'ble Prakash Padia,J.
Heard learned counsel for the applicant.
The applicant is before this Court for a direction to initiate contempt proceeding against the opposite parties for wilful disobedience of the order dated 25.01.2021 passed in Writ Petition No.12698 of 2020 (Dr Anand Yati And Another Vs. State of U.P. & others.). The aforesaid order is quoted as under:-
"Petitioners were initially appointed on adhoc basis as Medical Officer on 18.6.1988. Their services were later regularised 16.3.2005. Petitioner No.1 and 2 have superannuated on 31.5.2020 and 31.3.2020 respectively. They have approached the authorities for including the services rendered by them on adhoc basis from 1999 to 2005, for the purposes of grant of retiral benefits, by relying upon Rule 3(8) of the U.P. Retirement Benefit Rules, 1961. It is stated that the authorities have not considered petitioners' claim, in accordance with law. Lastly it is submitted that the petitioners are entitled to the benefit of Ordinance of the Uttar Pradesh Qualifying Services for Pension and Validation Ordinance, 2020.
Learned Standing Counsel states that the grievance of the petitioner would be examined by the competent authority, in accordance with law.
This Court in Dr. Ramakant Tiwari Vs. State of U.P. and others, Writ Petition No. 11630 of 2018, has examined the relevant statutory provisions as also relevant provisions of the Civil Services Regulations to observe as under:-
"4. It is not disputed that retirement of petitioner is governed by fundamental Rule 56 read with relevant provisions of Civil Services Regulation (hereinafter referred to as "C.S.R."). Every employee, whether permanent or temporary or ad-hoc is liable to retire on attaining age of superannuation as provided under fundamental Rule 56.
5. Under U.P. Retirement Benefit Rules, 1961 (hereinafter referred to as "Rules, 1961") "qualifying service" is defined in Rule 3(8). It means 'service' which qualifies for pension in accordance with provisions of Article 368 of C.S.R. Rule 3(8) is quoted as below:-
"Rule 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-changed 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 post paid form 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."
6. Regulation 368, C.S.R., provides that service does not qualify, unless officer holds a substantive office in a permanent establishment. Regulations 368 and 369 are quoted herein below:
"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.
369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was on actual duty on the first day on which the establishment was again re-employed."
7. It is not in dispute that petitioner was appointed on substantive post in permanent establishment which is/was pensionable. Nature of his appointment i.e. ad-hoc appointment is not of relevance in as much as period spent by him even on ad-hoc service was in permanent establishment, which ultimately resulted into regularization of petitioner without any break in service.
8. As aforesaid, vide Sub-rule 8 of Rule 3 of Rules 1961, qualifying service includes service which qualifies for pension in accordance with provision of Section 368 of C.S.R. In this view of the matter, services rendered by petitioner on ad-hoc basis followed by Regularization would stand covered under "qualifying service" defined under Rule 3(8) of Rules 1961, for the purpose of pension. In taking this view we are fortified by a Division Bench decision in State of U.P. and Others vs. Dr. Amrendra Narain Srivastava (Writ Petition No. 61974 of 2011) decided on 01.03.2012.
9. For what has been stated above, writ petition succeeds and is allowed. Impugned order dated 11.05.2015 is hereby set aside. Respondents are directed to count services of petitioner rendered on ad-hoc basis also as qualifying service for grant of retiral benefits including pension and pay the same expeditiously."
To similar effect is an order passed by this Court in the case of Muneshwer Dutt Mishra Vs. State of U.P. and others, Writ Petition No. 18117 of 2018. The observations of this Court in the case of Dr. Ramakant Tiwari (supra) also requires consideration.
The writ petition accordingly stands disposed off with a direction to the State Government for taking an appropriate decision by referring to the provisions of Rule 3(8), the directions of the Division Bench of this Court in case of Dr. Ramakant Tiwari (supra) and the Ordinance of the Uttar Pradesh Qualifying Services for Pension and Validation Ordinance, 2020. Required consideration would be made within a period of three months from the date of presentation of a certified copy of this order.
Liberty stands reserved to the petitioners to make a fresh comprehensive representation, annexing all materials in support of their claim alongwith certified copy of this order, within a period of three weeks from today."
Learned counsel for the applicant submits that a copy of the aforesaid order was submitted for compliance before the opposite parties but the opposite parties have willfully not complied with the order and, thus, have committed civil contempt liable for punishment under Section 12 of the Contempt of Courts Act, 1971.
Prima facie a case of contempt has been made out. However, considering the facts and circumstances of the case, one more opportunity is afforded to the opposite parties to comply with the aforesaid order of the Court within two months from the date of production of a copy of this order.
The applicant shall supply a duly stamped registered envelope addressed to the opposite parties and another self-addressed stamped envelope to the office within two weeks from today. The office shall send a copy of this order along with the self-addressed stamped envelope of the applicant with a copy of contempt application to the opposite parties within one week, thereafter and keep a record thereof. The opposite party shall comply with the directions of the writ Court and intimate the applicant of the order through the self-addressed envelop within a week, thereafter.
With the aforesaid observations, this application is disposed of at this stage with liberty to the applicant to move a fresh application, if the order is not complied with by the opposite parties within the stipulated time as aforementioned.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 28.7.2021 saqlain