Court No. - 7
Case :- WRIT - A No. - 26623 of 2014 Petitioner :- Ram Gopal Pandey Respondent :- State Of U.P. Thru Secy. And 3 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri I.S. Tomar, learned standing counsel for the State-respondents. This writ petition has been filed for the following relief:
(i) a writ, order or direction in the nature of certiorari quashing the communication dated 03.12.13 issued by the Additional Director/Treasuries & Pension, Varanasi Division, Varanasi and the communication of the Chief Medical Officer, Chandauli dated 29.01.14 in so far as it pertain to sanction of pension.
(ii) a writ, order or direction of a suitable nature commanding the respondents to forthwith fix the pension of the petitioner taking into account his entire length of service from 04.01.88 till 31.05.13 within a period to be specified by this Hon'ble court and to make disbursement of monthly pension, regularly, every month including the arrears of his pension along with interest at such penal rate as may be specified by this Hon'ble court.
Learned counsel for the petitioner submits that the impugned order dated 3.12.2013 is wholly arbitrary and illegal inasmuch as the petitioner was appointed as Investigator cum Computer on ad hoc basis under the Health & Family Welfare Department of the State Government, by order of the Additional Director, Medical Health & Family Welfare, Varanasi Division, Varanasi, dated 24.12.1987 and he joined on 8.1.1988 and was regularised belatedly by order of the Chief Medical Officer, Chandauli, dated 15.7.2008. Therefore, service rendered by him as an ad hoc employee is liable to be added for the purpose of computation of qualifying period of service under Regulations 368 and 369 of the Civil Service Regulations. In support of his submission he relied upon a Division Bench judgment of this Court in the case of Dr. Amrendra Narain Srivastava Vs. State of U.P. and others 2012 8 ADJ 376 (DB). He further submits that the letter of the Director General of Family Welfare U.P. dated 27.10.2017 addressed to the Chief Standing counsel, High Court Allahabad and filed as Annexure SCA-2 to the supplementary counter affidavit, dated 31.10.2017 as well as the letter of Joint Secretary, dated 27.10.2017, addressed to the Director General Family Welfare, U.P., Lucknow, observing that his services rendered as an ad hoc employee is not liable to be added for qualifying period of service, are wholly illegal and these letters have been issued without consideration to the facts of the case of the petitioner and the law settled. He referred to the relevant provisions of Civil Service Regulations and the law settled by the Division Bench of this Court in the case of Dr. Amrendra Narain Srivastava(supra) and in Writ Service Bench No.644 of 2014 (Dr. Jai Prakash Singh & 2 Ors. Vs. State of U.P. through Prin. Secy. Medical Health & Family Welfare) and the judgment dated 24.9.2014 in Writ Service Bench No.29 of 2014 (Dr. Yashwant Singh & another Vs. State of U.P. through Secy. Medical Edu. Lko.& Ors.).
Learned standing counsel supports the impugned order.
I have carefully considered the submissions of learned counsel for the parties and perused the record.
In paragraphs 3,4,5,6,7,8 and 9 the petitioner has clearly stated that he was appointed on ad hoc basis as “Investigator cum Computer” under the Health and Family Welfare Department of the State Government by order of the Additional Director, Medical Health and Family Welfare, Varanasi – Division, Varanasi, dated 24.12.1987, against the substantive vacancy. By order of the Chief Medical Officer, Varanasi, dated 8.1.2008, he was granted posting at Primary Health Center, Chandauli. The petitioner remained in continuous service from 4.1.1988 till he retired from service on 30.6.2013. His services were regularised by the Chief Medical Officer, Chandauli, vide order dated 15.7.2008, in view of the circular letter of the Director General dated 7.12.2007, and provisions of the U.P. regularisation of ad hoc appointments (on posts within the purview of public service commission) Rules 1979 and its 3rd amendment by notification dated 20.12.2001. Contents of these paragraphs have been replied by the respondent in paragraph 2 of the counter affidavit dated 9.9.2014 stating as under:
“That the contents of para 1 to 9 of the writ petition need no comments.”
Perusal of copy of order filed as Annexure Nos. 1 and 2 respectively referred in paragraph nos. 3 and 5 of the writ petition, which has not been disputed by the respondents; clearly reveals that the petitioner was appointed against the substantive vacancy as an ad hoc employee and he continuously worked since 4.1.1988 till he retired from service on 30.6.2013. It is also not disputed that the department in which the petitioner was appointed, is a permanent establishment.
Perusal of copy of the service book filed as Annexure 1 to the supplementary rejoinder affidavit dated 6.11.2017 shows that regular increments and other benefits were granted to the petitioner from time to time. He was also sanctioned the Selection Grade Scale on completion of satisfactory service, by order of the Chief Medical Officer, Varanasi, dated 15.5.1996. He was also given revised pay scale. G.P.F. was also being regularly deducted from his salary since the year 2003. In paragraph 3 of the supplementary rejoinder affidavit dated 6.11.2007 the petitioner has stated that the petitioner brings on record an order dated 12.1.2010 alongwith the list of similar employees whose services were regularised in the year 2003 or 2005 but their regularisation was given effect from the back date since the year 1991.
In the case of Dr. Yashwant Singh & another (supra) the Division Bench of this Court followed the law laid down by two Division Bench in the case of Dr. Amrendra Narain Srivastava (supra) and Dr. Prem Chandra Pathak And Another Vs. State of U.P. and another (WRIT - A No. - 27579 of 2014, decided on 16.5.2014) and held as 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& mijk sDr leLr rF;k sa dk s n`f"Vxr j[krs gq, ek0 mPp U;k;y; ds vkn s'k fnuk ad 23&08&2012 d s vuqikyu e sa ;kphx.k d s izr;ko snu fnuk ad 02&08&2012 rFkk izR;ko snu fnuk ad 29&08&2012 dk fuLrkj.k v/kk sf yf[kr fun sZ 'k k sa d s lkFk fd;k tkrk gS %& ß;fn ;kphx.k dh fu;qfDr iz'kkldh; foHkkx }kjk fof/kor l`ftr ink sa d s lkis{ k l{ke izkf/kdkjh }kjk fu;fer o srueku e sa dh x;h fu;qfDr dh frfFk dk s ;kphx.k in g srq fu/kkZfjr vgZrk; sa /kkfjr djrs Fk s ,o a muds }kjk jkT; ljdkj dk s vuojr l so k; sa iznku dh x;h] rFkk ljdkj }kjk mudk fou;ferhdj.k fofgr izfdz;kuqlkj fd;k x;k gk s rk s rnFkZ l so kvk sa dk i sa'k u g srq vgZdkjh l so k ik; s tkus d s l ac a/ k e sa ek0 mPpre U;k;ky; rFkk ek0 mPp U;k;ky; ds fu.kZ;k sa e sa izfrikfnr fl)kUr d s vkyk sd e sa ;kphx.k dh rnFkZ l so kvk sa] ftUg sa 'kklu }kjk fofu;fer fd;k x;k gS] dk s mudh fu;qfDr dh frfFk l s] i sa'k u ,o a vU; l so kuSo`fRrd ykHkk sa d s fy, vgZdkjh l so k ekurs gq,] leLr l so kfuo`fRrd ykHkk sa dk Hkqxrku djk; s tku s dh dk;Zokgh fpfdRlk f'k{kk foHkkx] mRrj izn s'k 'kklu ,o a fun s'kd] vk;qo sZ n fun s'kky;] mRrj izn s'k }kjk mDr 'krk sZ a ,o a rF;k sa dh iqf"V djrs gq, dh tk; s k mDr dk;Zokgh iz'kkldh; foHkkx ¼fpfdRlk f'k{kk foHkkx] mRrj izn s'k 'kklu½ rFkk foHkkxk/;{k ¼fun s'kd] vk;qo sZ n½ izkFkfedrk d s vk/kkj ij ;Fkk'kh?kz djsa kÞ g0v0 ¼vku Un feJ½ izeq[k lfpo] foRr k 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.
The judgment in the case of Dr. Yashwant Singh & another (supra) has been followed by another Division Bench in the case of Dr. Jai Prakash Singh & 2 others (supra).
Since it is undisputed that the petitioner was appointed against a substantive vacancy in a permanent establishment and he continuously worked since the date of his appointment till the date of his retirement and as such services rendered by him as an ad hoc/temporary employee would qualify for the purposes of computation of qualifying service for pension in view of the judgments referred above and the relevant provisions which are reproduced below:
“Regulation 350 of Civil Service Regulations All establishment whether temporary or permanent, shall be deemed to be pensionable establishments:
Provided that it is open to the State Government to rule that the service in any establishment does not qualify from pension.
Regulation 361 of Civil Service Regulations The service of an officer does not qualify for pension unless it conforms to the following three conditions:- First - The service must be under Government Second - The employment must be substantive and permanent. Third - The service must be paid by Government.
Regulation 368 of Civil Service Regulations The service does not qualify unless the officer holds a substantive office on a permanent establishment.
Regulation 370 of Civil Service Regulations Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except -
(i) periods of temporary or officiating service in non-pensionable establishment;
(ii) periods of service in work-charged establishment; and
(iii) periods of service in a post paid form contingencies."
Perusal of the aforequoted provisions as well as the law settled by four Division Bench in the case of Dr. Amrendra Narain Srivastava (supra), Dr. Prem Chandra Pathak and another (supra), Dr. Yashwant Singh & another (supra), Dr. Jai Prakash Singh & 2 Ors (supra) and the undisputed fact that the petitioner was appointed in a permanent establishment against the substantive vacancy and he worked continuously from the date of his appointment i.e. 24.12.1987 till the date of his retirement i.e. 31.5.2013 after his regularisation by order dated 15.7.2008, leaves no manner of doubt that periods of service rendered by the petitioner as ad hoc/temporary employee is liable to be added for the purposes of computation of qualifying periods of service for pension.
In view of the aforesaid, the impugned order dated 29.1.2014 and 29.1.2014 to the extent it denies benefit of pension, are quashed. The writ petition is allowed in terms of Division Bench Judgement in the case of Dr. Amrendra Narain Srivastava (supra), Dr. Prem Chandra Pathak and another (supra) and Dr. Yashwant Singh & another (supra). The petitioner shall be entitled to the same benefits as provided by the aforesaid Division Bench judgments. The respondents are directed to proceed on the same footing and to pass an appropriate order within three months from the date of presentation of certified copy of this order.
Order Date :- 28.11.2017/vkg