Court No. - 34
Case :- WRIT - A No. - 12659 of 2021 Petitioner :- Dr. Keshar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kirti Kumar Singh,Pyare Lal Yadav Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned Standing Counsel.
The petitioner was appointed as a Homeopathy Medical Officer on ad hoc basis on 15 November 1985. While working on that post, he was ultimately regularised in service in 1994. On 31 May 2013, he retired from service. However, the pensionary benefits and the period of qualifying service has been computed by the respondents taking into consideration the period of service rendered between 26 October 1994 to 31 May 2013 only. The grievance of the petitioner is that the past service rendered by him prior to the order of regularisation has not been taken into consideration. By the impugned order of 21 January 2021, the respondents have taken into consideration the provisions made in the Validation Act, 2021 to hold that the period of service rendered in an ad hoc capacity is not liable to be taken into consideration while computing pensionary benefits.
Dealing with the provisions of the 2021 Act, the U.P. Retirement Benefit Rules, 1961 and the decision of the Court in Prem Singh Vs. State of U.P. and others [2019 (10) SCC 516], this Court in Dr. Sushma Chandel Vs. State of U.P. and 2 others [Writ-A No.9396 of 2021] held as follows:-
"The right to claim pensionary benefits is now and by virtue of the provisions introduced retroactively by the Validating Act made dependent upon it being found that the employee was appointed in accordance with the applicable service rules and held a permanent or temporary post. Since the legislative enactment bids us to proceed on the basis that the aforesaid definition of qualifying service existed and held the field since 1 April 1961, all claims would have to be necessarily evaluated and examined accordingly. This conclusion would necessarily be subject to any challenge that may be laid to the provisions of the Validating Act.
While the Validating Act fundamentally alters the concept of qualifying service, the right to claim addition of service rendered in a temporary or ad hoc basis is one which is still available to be asserted in light of the proviso to Rule 3(8) of the 1961 Rules. While Regulation 370 of the CSR may have been annulled by virtue of the declaration in Prem Singh, the proviso to the aforesaid rule enshrines measures which are akin to those which were contemplated in Regulation 370 when it existed. Regard must also be had to the fact that while the provisions of the aforesaid rule directly fell for consideration in Prem Singh, it was the Note to that rule alone which was read down. The proviso remained untouched and continues to exist in the statute whole, unmutilated and effective. In fact and was noticed hereinabove, the Supreme Court in Prem Singh appears to have consciously left the proviso standing since once it had struck down Regulation 370, that was the only statutory provision which reinforced the central beam of Prem Singh of service discharged for decades together was liable to be taken notice of for the purposes of pension once it be found that the attachment of an officer or employee in a work charged establishment was a mere ruse and camouflage to deny benefits.
From the above recordal of the statutory scheme which now remains in place, it is manifest that the right of an employee to seek addition of continuous, temporary or officiating service followed by confirmation or regularisation would remain preserved notwithstanding the deletion of Regulation 370. Additionally, and as was explained by the Division Benches in Mahendra Singh, Bhanu Pratap Sharma and Narayan Singh Sharma, the right as inhering in a government servant to seek inclusion of services rendered on a temporary or officiating basis provided the appointment was ultimately regularized has not been impacted by the Validating Act. The three decisions afore noted unambiguously hold that the period prior to regularisation cannot be ignored as long as it is established that it was service rendered against a particular post be it temporary or permanent. This aspect was highlighted with the Court holding that the only fetter which now remains in place for the purposes of computing qualifying service is of the service rendered being shown to have been discharged against a permanent or temporary post and the appointment having been made in accordance with the service rules. It was in the aforesaid background that it was held that there was no imperative to assail the validity of the U.P. Act No. 01 of 2021 in such situations.
It may further be noted that the Validating Act makes the right to claim pension dependent upon it being found that service was rendered against a "permanent or temporary post" coupled with it being established that the appointment was made in accordance with the service rules. Notwithstanding the above, the question of whether the engagement of the officer or employee shown against a work charged establishment was merely an "exploitative measure" [an expression which the Court borrows from Prem Singh itself] and designed to deny benefits of long service would still be open to canvassed. As was noted by the Supreme Court in Prem Singh such conduct of the State would clearly fall foul of the constitutional guarantees enshrined in Part III of our Constitution.
The question of service discharged in a temporary or ad hoc capacity followed by regularisation and whether such periods are liable to be included would also have to be necessarily examined in the backdrop of whether the engagement had been made against a permanent or temporary post that was available as also whether the procedure as prescribed under the relevant service rules had been adhered to."
In view of the aforesaid, it is submitted that the impugned order would not sustain and the matter would be liable to be remitted to the competent authority for considering the claim of the petitioner afresh bearing in mind the decision rendered by the Court in Dr. Sushma Chandel.
Accordingly and with consent, the writ petition is allowed. The impugned order dated 21 January 2021 is quashed. The matter shall stand remitted to the second respondent who shall deal with the claim of the petitioner afresh bearing in mind the principles enunciated in Dr. Sushma Chandel. A final decision in that respect shall be communicated with expedition and preferably within a period of three months from today.
Order Date :- 23.9.2021 Vivek Kr.