Court No. - 6
Case :- WRIT - A No. - 16885 of 2017 Petitioner :- Dr. Shyam Lal Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Anupam Kumar,Jitendra Kumar Yadav,Kalp Nath Rai Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Learned counsel for parties are ad idem that the issues raised in this petition stand concluded against the State respondents in light of the judgment rendered in Writ-A No. 6452 of 2018. The said petition was allowed in the following terms:-
"Heard leaned counsel for the petitioner and the learned Standing Counsel.
The petitioner, an ad hoc Medical Officer (Ayurvedic) is aggrieved by the position taken in the impugned order that the period of service spent by him in ad hoc capacity is not liable to be included for the purposes of computation of qualifying service. It is not disputed before this Court that although the petitioner was engaged in an ad hoc capacity in 1992, he was ultimately regularised on 16 March 2005. Dealing with an identical situation, a Division Bench of this Court by its judgment rendered in Dr. Ravindra Kumar and others Vs. State of U.P. And others [Writ-A No. 22833 of 2018 decided on 23 January 2019] has proceeded to dispose of various writ petitions in the following terms:-
“Heard Sri Vikas Budhwar, learned counsel for the petitioners and Sri Ajit Kumar Singh, learned Additional Advocate General for the respondents.
The petitioners had approached the Supreme Court directly under Article 32 of the Constitution of India. However, the petitions were transferred to this Court for decision as petitions under Article 226 of the Constitution of India.
The petitioners were initially appointed as Medical Officers (Ayurvedic) on contract basis. Subsequently their services were directed to be treated on ad-hoc by separate orders passed sometimes in the year 1992 onwards viz. 28.2.1992. The State Government vide order dated 16.3.2005 directed for regularisation of their services on the post of Medical Officers(Ayurvedic).
The argument of learned counsel for the petitioners is that once their services on the post of Medical Officers (Ayurvedic) have been regularised under the orders of the State Government, the services rendered by them on ad-hoc basis till the date of their regularisation ought to be added in their regular services for the purposes of grant of terminal benefits.
The above controversy came up for consideration before Division Bench of this Court in Writ-A No.61974 of 2011, Dr. Amrendra Narain Srivastava vs. State of U.P. and others. The Court allowed the aforesaid writ petition vide judgment and order dated 1.3.2012 holding that the petitioners therein, which were similarly situated as the petitioners herein, are entitled to pension with effect from the date when they joined the services with the State Government and the State Government will calculate their pension and make payment accordingly, within the specified period.
The aforesaid decision in Dr. Amrendra Narain Srivastava (supra) was followed by another Division Bench of this Court in Writ-A No.44549 of 2015, Dr. Mayank Shekhar Upadhyay vs. State of U.P. and others, decided on 4.1.2017 and similar directions as aforesaid, were issued therein. This order of the Division Bench of this Court was challenged before the Supreme Court by means of Special Leave Petition No.33111 of 2017, State of U.P. and others vs. Dr. Mayank Shekhar Upadhyay and the same was dismissed on 9.3.2018.
In view of the above, the aforesaid decisions in the matter of Dr. Amrendra Narain Srivastava and Dr. Mayank Shekhar Upadhyay(supra) are final and conclusive.
Thus, following the above decisions, we dispose of this petition holding that the petitioners are entitled to terminal benefits by counting their services from the date of their initial appointment with the State Government and that the respondents shall work out the pension and other dues payable to them accordingly and make the payment within the next two months.”
The principal decision of the Court dealing with the issue raised in this writ petition was considered by another Division Bench in Dr. Amarendra Narain Srivastava Vs. State of U.P. And others [Writ-A No. 61974 of 2011, decided on 1 March 2012]. The said decision which has been followed by subsequent judgments rendered by this Court has attained finality consequent to the dismissal of the Special Leave Petition preferred by the State. It is in that backdrop that the Division Bench in the order quoted above, proceeded to frame ultimate directions for the computation of terminal benefits by counting service rendered by the writ petitioners there from the date of their initial appointment.
The above noted position was and could not be disputed by learned Standing Counsel. Although the learned Sanding Counsel feebly attempted to submit that the judgment of the Division Bench in Ram Ashrey Yadav Vs. State of U.P. And others [Special Appeal NO. 2114 Of 2011] holds to the contrary, this Court finds itself unable to accept this submission for the following reasons.
Firstly it is relevant to note that Ram Ashrey Yadav was dealing with the case of Daily Wagers and not Ad Hoc Medical Officers. It is in that context and backdrop that the following observations came to be made.
“On the dictum of Apex Court, the ad-hoc service rendered cannot be kept at par with regular service and benefit of the same cannot be extended for computing ten years regular service. On the same analogy once term "temporary employee" is of general category wherein incumbents engaged as per exigencies of service are of various sub-categories such as seasonal, causal, daily rated, ad-hoc services then the same cannot be kept at par with regular service, and once petitioner's services had never been made regular then certainly in such a situation and in this background as petitioner continued to be daily wager employee and based upon directive issued by this Court has been asked to be treated as ad-hoc employee, and based on the same claim for regularisation has been considered, as such, no relief or reprieve could be given to him until he has to his credit "10 years of regular service", which is per- requisite term and condition for grant of pension.”
Secondly the Court notes that the decision in Dr. Amarendra Narain Srivastava which had been decided in 2012 has also not been brought to the attention of the Division Bench which proceeded to render judgment thereafter on 13 April 2017.
Accordingly and for all the aforesaid reasons, this writ petition shall stand allowed. The impugned order dated 21 November 2017, passed by respondent No. 1 is hereby quashed. The respondents shall proceed to grant all consequential benefits to the petitioner in light of the observations made hereinabove."
Accordingly and with the consent of parties, the petitioner shall be entitled for similar relief. This petition also stands allowed on similar terms.
Order Date :- 29.5.2019 LA/-