Court No. - 38
Case :- WRIT - A No. - 14824 of 2019 Petitioner :- Dr. Rajiv Nandan Rai Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Om Prakash Yadav Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
The petitioner was appointed as adhock Medical Officer by the State Government on 18th June, 1988. His services were later regularise on 16.03.2005. Petitioner has since superannuated on 30.08.2017. A claim was raised by the petitioner for inclusion of the services rendered by him on adhock basis and this Court in Writ Petition no. 20535 of 2018 directed the State Government to take an appropriate decision in the matter. Representation of petitioner consequently has been rejected on 29.07.2019, which order is impugned in the present writ petition. The order impugned records that in view of provisions contained under Clause 361, 368 and 370 of Civil Services Regulations as also the Officer Order dated 01.07.1989, petitioner's adhock services are not liable to be counted towards qualifying service for the purposes of payment of pension and other benefits.
Learned counsel for the petitioner states that provisions contained under Rule 3(8) of the U.P. Retiral Benefits Rules, 1961 has not been taken note of while passing the order impugned. It is also stated that claim of an identical persons i.e. Dr. Pradeep Kumar Gupta has been accepted by the State Government after the authorities were directed to re-examined the matter in light of the provisions contained under Rule 3(8) of the Rules, 1961.
The issue, as has been raised in this petition, has been examined at the instance of similarly placed persons in Writ Petition No. 9826 of 2019, and following order was passed on 07.08.2019.
"Following orders were passed in the matter on 4.7.2019:-
"Petitioners' claim for inclusion of services rendered in ad-hoc capacity stands rejected by the order impugned dated 07th May, 2019 which is assailed in this petition.
It is contended on behalf of the petitioners that their initial engagement was in a pensionable establishment and they continued to work till their services got regularized in 1994 pursuant to the order passed by the Apex Court. It is submitted that Rule 3(8) of the U.P. Retirement Benefits Rules 1961 has not been examined nor the judgments on the issue have been dealt with whereby working on ad-hoc/temporary basis has also been directed to be counted towards qualifying services for pension.
Submission is that the State Government has failed to advert to the specific provision in law, as also the judgment of this Court in Dr. Amrendra Narain Srivastava Vs. State of U.P. in Writ Petition No. 61974 of 2011.
Learned Standing Counsel may obtain instructions in the matter. Put up as fresh on 18th July, 2019."
Learned Standing Counsel has obtained instructions from the Director Homeopathy, dated 6.8.2019, wherein Rule 3(8) is quoted in the first page whereafter the provisions contained under Regulations 368, 369, 370 of the Civil Services Regulations have been reproduced. Certain opinion is also claimed to have been obtained from the Law Officers of the State and thereafter the decision taken is sought to be justified.
Apart from quoting Rule 3(8); in the first page of the instructions; the provision in that regard has not been referred to in any other part of the instructions. Rule 3(8) is a part of the statutory rules framed by the State i.e. U.P. Retirement Benefit Rules, 1961, which regulates the payment of pensionary benefits.
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 consideration by the authorities of the State, vide order impugned, clearly fails to notice the statutory rule applicable in the facts of the present case. The observations of this Court in the case of Dr. Ramakant Tiwari (supra) has also not been taken note of. In such circumstances, the consideration at the level of the State Government is found to be unsustainable on account of it being in derogation of Rule 3(8) of the Rules of 1961 as also the directions of the Division Bench of this Court in the case of Dr. Ramakant Tiwari (supra). The order dated 7th May, 2019, therefore, cannot be sustained and stands quashed.The writ petition is allowed.
The matter stands remitted to the State Government for taking a fresh decision by specifically referring to the provisions of Rule 3(8) as also the directions of the Division Bench of this Court in case of Dr. Ramakant Tiwari (supra). Required consideration would be made within a period of three months from the date of presentation of a certified copy of this order."
The order impugned has been examined by the Court and although the order is running into 16 pages, but there is no discussion with regard to the provisions contained in Rule 3(8) of the U.P. Retiral Benefits Rule, 1961. In para 7 of the order the rule has been taken note of but merely on the basis of some advise received, the consideration has been denied. The judgment which has been relied upon in the order impugned does not relate to Rule 3(8) of the Rules, 1961. The Court, therefore, finds that the order dated 29.07.2019 fails to correctly apply the impact of Rule 3(8) of the Rules, 1961 and, therefore, it can not be sustained. The ad-hoc services of petitioner was in a pensionable establishment and was followed with confirmation on the same post. Merely because different expression is resorted to in Rule 3(8) i.e. temporary or officiating, it would not mean that ad-hoc services stands excluded from its applicability. Necessary ingredients to attract Rule 3(8) are found to exist prima facie and the respondents have not given any cogent reason to exclude its applicability in the facts of the present case. Since claim of similarly placed persons has otherwise been accepted by the State Government later in point of time, the claim of the petitioner deserves to be examined afresh by the State Government.
Consequential order of the State Government dated 28.07.2019 can not be sustained and stands quashed.
Directions is issued to the State Government to reconsider the matter in light of the law laid down by this court in case of Dr. Om Prakash Gupta in Writ Petition No. 9829 of 2019 as also the Division Bench Judgment in Dr. Ramakant Tiwari Vs. State of U.P. and others in Writ Petition No. 1630 of 2018, required consideration would be made within a period of three months.
Order Date :- 26.9.2019 Abhishek Singh