Court No. - 34
Case :- WRIT - A No. - 12775 of 2021 Petitioner :- Kanwar Pal Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Rahul Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard Sri Rahul Srivastava, learned counsel for the petitioner and Sri Chandan Kumar, learned Standing Counsel for the State respondents.
Sri Kumar, learned Standing Counsel, fairly concedes that the impugned order would not sustain in light of the decision rendered by this Court in Dr. Sushma Chandel Vs. State of U.P. and 2 others [ Writ-A No.9396 of 2021] .
Undisputedly, the petitioner came to be appointed in 1983 against a short term vacancy which arose in the institution. That order of appointment was approved by the District Inspector of Schools on 29 December 1983. His services were ultimately regularised on 24 December 1994. The petitioner was thereafter promoted to the post of Lecturer and retired from service on 31 March 2019. In terms of the order impugned, the respondents have taken the view that the period of service rendered in an ad hoc capacity is not liable to be included while computing qualifying service. Additionally, they place reliance upon the Validating Act, 2021 to deny the claim of the petitioner of pensionary benefits.
Dealing with the aforesaid questions as well as the provisions made in the U.P. Retirement Benefit Rules, 1961 , the decision of the Supreme Court in Prem Singh Vs. State of U.P. And Others [( 2019) 10 SCC 516 and the Validation Act, 2021 , the Court in Dr. Sushma Chandel held thus:
"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 principles as enunciated, learned Standing Counsel fairly submitted that the matter would warrant reconsideration by the respondents.
Accordingly, the writ petition is allowed . The impugned order of 05 August 2021 shall stand quashed and set aside. The matter shall stand remitted to the Deputy Director of Education (Secondary), Saharanpur Region, Saharanpur, the second respondent here, who shall re-examine the claim of the petitioner bearing in mind the principles enunciated in Dr. Sushma Chandel . This exercise of re-consideration shall be concluded with expedition and preferably within a period of two months from today.
Order Date :- 24.9.2021 Arun K. Singh