1. Heard learned counsel for the petitioner and learned Standing counsel appearing for the State-respondents.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
(i) To issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 18.08.2015 passed by the opposite party as contained in Annexure No. 1 to this writ petition.
(ii) To issue a writ, order or direction in the nature of Mandamus commanding the opposite party to consider and count adhoc period of service i.e 29.10.1987 to 18.06.202 rendered by the petitioner on the post of Lecturer (Sanskrit) in State Ayurvedic college and associated Hospital Lucknow for the purposes of post retirement benefits and other consequential benefits.
(iii) To pass such other order or direction which this Hon'ble Court deems fit and proper in the circumstances of the case.
(iv) To allow the writ petition with costs in favour of the petitioner.
3. The case set forth by the petitioner petitioner is that the petitioner was initially appointed on post of Lecturer (Sanskrit) in the State Ayurvedic College and Associated Hospital, Lucknow on 29.10.1987. Copy of the appointment order is annexure 2 to the petition. By means of an order dated 18.06.2002, a copy of which is annexure 3 to the writ petition, the services of the petitioner were regularized after working for a period of more than twelve years and thereafter the petitioner retired from service on 30.06.2014. The petitioner has also been paid pension by treating twelve years service as qualifying service i.e the service w.e.f the date of his regularization till the date of his superannuation. The petitioner claims that his period of service on which he was working on ad-hoc basis i.e w.e.f 29.10.1987 till his regularization on 18.06.2002 should also be taken into consideration for the said purpose. In this regard, reliance has been placed on the Division Bench judgment of this Court in the case of Dr. Amrendra Narain Srivastava Vs. State of U.P and Ors passed in Writ A No. 61974 of 2011 decided on 01.03.2012. The respondents by means of the impugned order dated 18.08.2015, a copy of which is annexure 1 to the petition rejected the claim of the petitioner for counting of his previous service from 1987 till his regularization i.e 18.06.2002 on the ground that the judgment in the case of Dr. Amrendra Narain Srivastava (Supra) is not applicable and said judgment was passed in different facts and circumstances.
4. Learned counsel for the petitioner contends that the issue is no longer res integra taking into consideration a subsequent Division Bench judgment of this Court passed in Writ Petition No. 29 (SB) of 2014 Inre; Dr. Yashwant Singh and Anr Vs. State of U.P and Ors decided on 24.09.2014, a copy of which is part of annexure 7 to the petition. It is contended that this Court in the case of Dr. Yashwant Singh (supra) after considering Dr. Amrendra Narain Srivastava's judgment found an order by which the claim of the petitioner in the said case had been rejected i.e ad-hoc service had not been counted as not sustainable in the eyes of law and thereafter proceeded to direct the respondents to take appropriate action by passing appropriate orders in the light of the judgment of this Court in the case of Dr. Amrendra Narain Srivastava (Supra) within a specified time. The petitioner contends that he also similarly circumstanced and is also entitled for the benefit of the case of Dr. Yashwant Singh (supra).
5. On the other hand, learned Standing counsel on the basis of averments contained in the counter affidavit argues that there is no provision under the rules for counting of ad-hoc service of an employee concerned and hence there is no occasion for the respondents to count the period of service rendered by the petitioner in ad-hoc capacity w.e.f the year 1987 till his regularization. Reliance has also been placed on a Division Bench judgment of this Court in the case of State of U.P and Anr Vs. Mohan Prasad (Runner) and 13 Ors passed in Special Appeal Defective No. 634 of 2015 decided on 14.09.2015 to contend that the petitioner is not entitled for counting of the period of service rendered in ad-hoc capacity.
6. Heard learned counsel for the contesting parties and perused the records.
7. At the very outset, it may be indicated that the judgment over which reliance has been placed by the learned Standing counsel that in the case of Mohan Prasad (supra) pertains to service rendered in the work charge establishment, hence the said judgment would not be applicable in the present case where the petitioner is claiming the benefit of the ad-hoc service rendered by him.
8. So far as counting of period of ad-hoc service is concerned, a Division Bench of this Court in the case of Dr.Yashwant Singh (supra) after considering another Division Bench judgment of this Court in the case of Dr. Prem Chandra Pathak and Anr Vs. State of U.P and Ors passed in Writ Petition No. 27579 (SB) of 2014 decided on 16.05.2014 has held has under:-
"Heard learned counsel for the parties.
By means of this writ petition, the petitioners have challenged the order dated 21.04.2014 passed by the respondent no. 1, by which, the petitioners' representation dated 15.02.2014, for counting their ad-hoc services ever-since their initial appointments as Medical Officers, for the purposes of qualifying service and grant of retiral benefits, has been rejected.
It appears that initially the petitioners were appointed as Medical Officers on ad-hoc basis and subsequently they were regularized w.e.f. 16.03.2005. They retired on 31.12.2011 & 26.05.2012 respectively. They filed Writ Petition No. 21508 of 2013, claiming the benefit of ad-hoc services rendered by them for the purpose of calculation of qualifying service for grant of post retirement benefits including pension. The said writ petition was disposed of vide order dated 05.02.2014 with liberty to the petitioners to make a representation to the respondent no. 1.
Accordingly, the petitioners made a representation dated 15.02.2014 before the respondent no. 1, copy of which, has been annexed as Annexure 19 to the writ petition. A perusal of the said representation reveals that the petitioners in paragraph 17 thereof had categorically placed reliance upon a judgement of this Court dated 01.03.2012 passed in Writ Petition No. 61974 of 2011, Dr. Amrendra Narain Srivastava vs. State of U.P. & others, wherein after considering the relevant provisions of the Uttar Pradesh Retirement Benefits Rules, 1961 (for short 'the Rules') and the Civil Services Regulations (for short 'the Regulations'), similarly situated doctors were allowed the benefit of ad-hoc services for the purpose of calculation of qualifying service for grant of retiral benefits. The petitioners had also annexed with their representation the orders pertaining to certain persons who had been granted the benefit of such services.
The aforesaid representation was rejected by the impugned order dated 21.04.2014, on the basis of opinion of the Finance as well as Law Departments of the Government of U.P.. In the impugned order, the respondent no. 1 has quoted the opinion of Finance as well as Law Departments, wherein reliance has been placed on the decisions of Supreme Court passed in the cases of State of Rajasthan & others vs. Jagdish Narain Chaturvedi [2009 (12) SCC 49], State of Haryana vs. Haryana Veterinary and AHTS Asssociation and another (2000) 8 SCC 4) & State of Madhya Pradesh vs. Laxmi Shanker Misra [(1979) 2 SCC 270]. Based on aforesaid, it has been decided by the respondent no. 1 that such temporary and officiating services cannot be counted in the qualifying service for grant of retiral benefits.
On a careful perusal of the order impugned, we find that the respondent no. 1 has not considered the aforesaid judgement of this Court dated 01.03.2012 passed in the case of Dr. Amrendra Narain Srivastava (supra) nor has it considered the compliance order dated 22.10.12 passed by it in pursuance of the order dated 23.08.2012 passed by this Court in Writ Petition No. 1222 of 2012 and other such orders referred to by the petitioners in their representation dated 15.02.2014, copies of which were attached therewith.
Thus, the short question that arises for consideration by this Court is as to whether the judgements relied upon by the respondent no. 1 in the order impugned, are applicable to the issues involved in this case or not.
On perusal of such judgements, we find that none of them relate to the provisions of the Rules and the Regulations, which are relevant for determining the qualifying service of the Government Servants in the State of U.P. for the purpose of pension and other retiral benefits. The said judgements relate to matters of seniority and promotion etc. Therefore, the observations contained therein are wholly inapplicable to the facts and questions involved in the instant case.
Further, as noted by the Division Bench of this Court in the case of Dr. Amrendra Narain Srivastava (supra), the Rules 3 (8) of the Rules read with Regulations 369 & 370 of the Regulations, make it clear that the term 'qualifying service' includes the service, which qualifies for pension in accordance with the provisions of Regulation 368 of the Regulations. The petitioners do not fall in any of the exceptions mentioned therein. The period of temporary/ad-hoc services rendered by them prior to their regularization was not in a non-pensionable establishment nor a work charged establishment nor was it a service paid from contingency. The petitioners held substantive office in a permanent establishment, as such, the requirements of Regulation 368 are also satisfied. In this regard the provisions of Regulation 369 are also relevant. The provisions of Regulation 370 are pari materia with the provisions of Rule 3(8) and none of the exceptions mentioned therein are attracted in the case of petitioners. The petitioners were appointed after due and proper selection on ad-hoc basis and thereafter their services were regularized w.e.f.16.03.2005.
At this stage, we would also like to quote the relevant portion of the aforesaid compliance order dated 22.10.2012 passed by the Principal Secretary Finance, State of U.P. himself, in pursuance of the order dated 23.08.2012 passed by this Court in Writ Petition No. 1222 of 2012, herein below:
ß11& mijksDr leLr rF;ksa dks n`f"Vxr j[krs gq, ek0 mPp U;k;y; ds vkns'k fnukad 23&08&2012 ds vuqikyu esa ;kphx.k ds izr;kosnu fnukad 02&08&2012 rFkk izR;kosnu fnukad 29&08&2012 dk fuLrkj.k v/kksfyf[kr funsZ'kksa ds lkFk fd;k tkrk gS%& ß;fn ;kphx.k dh fu;qfDr iz'kkldh; foHkkx }kjk fof/kor l`ftr inksa ds lkis{k l{ke izkf/kdkjh }kjk fu;fer osrueku esa dh x;h fu;qfDr dh frfFk dks ;kphx.k in gsrq fu/kkZfjr vgZrk;sa /kkfjr djrs Fks ,oa muds }kjk jkT; ljdkj dks vuojr lsok;sa iznku dh x;h] rFkk ljdkj }kjk mudk fou;ferhdj.k fofgr izfdz;kuqlkj fd;k x;k gks rks rnFkZ lsokvksa dk isa'ku gsrq vgZdkjh lsok ik;s tkus ds laca/k esa ek0 mPpre U;k;ky; rFkk ek0 mPp U;k;ky; ds fu.kZ;ksa esa izfrikfnr fl)kUr ds vkyksd esa ;kphx.k dh rnFkZ lsokvksa] ftUgsa 'kklu }kjk fofu;fer fd;k x;k gS] dks mudh fu;qfDr dh frfFk ls] isa'ku ,oa vU; lsokuSo`fRrd ykHkksa ds fy, vgZdkjh lsok ekurs gq,] leLr lsokfuo`fRrd ykHkksa dk Hkqxrku djk;s tkus dh dk;Zokgh fpfdRlk f'k{kk foHkkx] mRrj izns'k 'kklu ,oa funs'kd] vk;qosZn funs'kky;] mRrj izns'k }kjk mDr 'krksZa ,oa rF;ksa dh iqf"V djrs gq, dh tk;s k mDr dk;Zokgh iz'kkldh; foHkkx ¼fpfdRlk f'k{kk foHkkx] mRrj izns'k 'kklu½ rFkk foHkkxk/;{k ¼funs'kd] vk;qosZn½ izkFkfedrk ds vk/kkj ij ;Fkk'kh?kz djsa k g0v0 ¼vkuUn feJ½ izeq[k lfpo] foRr Thus, the reasons given in the order impugned as well as the opinion of the Finance Department contained therein, is clearly in contradiction to the decision of the Principal Secretary Finance quoted above and as such, the respondents have misdirected themselves in considering the case of the petitioners.
In view of above, the reasons given in the impugned order for rejecting the claim of the petitioners, are not sustainable. Consequently, the order impugned dated 21.04.2014 is quashed with a direction to the respondent no. 1 to reconsider the claim of the petitioners in the light of the aforesaid Division Bench judgement dated 01.03.2012 passed in the case of Dr. Amrendra Narain Srivastava (supra) as also the order of the Principal Secretary Finance, State of U.P. dated 22.10.2012 quoted above and to take appropriate decision in this regard within a period of 3 months from the date of production of the certified copy of this order. The decision so taken, shall be communicated to the petitioners immediately thereafter.
In the event, the petitioners are found entitled to the benefits claimed by them, consequential actions shall be taken forthwith and the amount payable to them shall be paid to them as per law immediately thereafter.
The writ petition is accordingly allowed."
Learned counsel for the petitioners submits that the issue being squarely covered by the aforesaid judgment, the present writ petition also deserves to be decided on the same terms as the facts of the present case are similar and the issue involved is identical as in the aforesaid judgement. The petitioners also rely on the fact of such benefits being extended to other petitioners of Writ Petition No. 1222 of 2012 who have been offered the same vide order of the State Government dated 22.10.2012, extracted herein above.
Sri Vivek Shukla, learned Standing Counsel for the respondents has urged that the counter affidavit filed in the present writ petition clearly narrate the legal provisions under which thepetitioners may not be entitled to such benefits and the contention is that the relief prayed for be denied.
Having heard learned counsel for the parties and having considered the submissions raised as also the argument raised in the counter affidavit, we find no reason to differ from the view taken in the case of Dr. Amrendra Narain Srivastava (supra), where the very same issues have been considered and answered by the Division Bench of this Court and the same has been followed in the case of Dr. Prem Chandra Pathak (supra). In the circumstances, the petitioners are also entitled to the same benefits as provided to the petitioners of the said writ petitions. petitioners may not be entitled to such benefits and the contention is that the relief prayed for be denied.
Having heard learned counsel for the parties and having considered the submissions raised as also the argument raised in the counter affidavit, we find no reason to differ from the view taken in the case of Dr. Amrendra Narain Srivastava (supra), where the very same issues have been considered and answered by the Division Bench of this Court and the same has been followed in the case of Dr. Prem Chandra Pathak (supra). In the circumstances, the petitioners are also entitled to the same benefits as provided to the petitioners of the said writ petitions.
Consequently, this writ petition is allowed on the same terms and the respondents are directed to proceed on the same footing and take appropriate action by passing appropriate orders within three months from the date of production of a certified copy of this order.
There shall be no orders as to costs.
9. From a perusal of the aforesaid judgment in the case of Dr. Yashwant Singh (supra) it clearly comes out that the Division Bench of this Court has considered the provisions of Rule 3 (8) of the Uttar Pradesh Retirement Benefits Rules, 1961 (hereinafter referred to as "Rules, 1961"), Regulations 369 and 370 of the Civil Services Regulations and has thereafter allowed the writ petition in the terms as already reproduced above. Learned Standing counsel has been unable to persuade this Court from taking a different view as has been taken by a Division Bench of this Court in the case of Dr. Yashwant Singh (supra).
10. Accordingly, keeping in view of aforesaid discussion, the writ petition is allowed. The impugned order dated 18.08.2015, a copy of which is annexure 1 to the petition is set aside. The respondents are directed to proceed on the same footing and take appropriate action by passing appropriate orders in terms of the judgment of this Court in the case of Dr. Yashwant Singh (supra) within a period of three months from the date of production of a certified copy of this order.
11. Consequences to follow.
Order Date :- 26.8.2019 Pachhere/-
(Abdul Moin, J)