Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.
The question which falls for consideration in these proceedings instituted by the petitioner under Article 226 of the Constitution of India is as to whether the services rendered by him since the date of his initial appointment on ad hoc basis till regularization of his services are to be treated to be 'qualifying service' and as to whether the said period rendered in service by the petitioner in ad hoc capacity has to be counted for the purpose of reckoning the pension.
The petitioner was appointed on 03.07.1978 on the post of Junior Engineer in the Irrigation Department on adhoc basis. However, immediately after his appointment, he was sent on deputation to Betwa River Board, Jhansi under the Ministry of Agriculture and Irrigation, Government of India, where, by means of order dated 13.07.1978, he was posted at Rajghat Dam Construction Circle II, Rajghat, District Lalitpur. The petitioner, thereafter, was repatriated in the year 1981 and after being repatriated, he resumed his duty in his parent department, namely, Department of Irrigation, Government of U.P. on 31.07.1981. The petitioner since thereafter has been working continuously without any interruption and break in the Irrigation Department, Government of U.P. and the service benefits, as available to regular appointees, were also made available to him from time to time. His services were regularized by means of the order dated 26.02.1998 under the relevant provisions of U.P. Regularization of Ad hoc Appointments (On posts Outside the Purview of the Public Service Commission) Rules 1979 (hereinafter referred to "Regularization Rules, 1979").
The petitioner continued to serve the department until he retired on his attaining the age of superannuation on 31.12.2012. The pension papers appear to have been sent by the departmental authorities to the Additional Director, Treasury & Pension by means of letter dated 11.10.2012. The aforesaid papers for payment of pension, gratuity, commutation of pension etc. were examined by the office of Additional Director, Treasury & Pension wherein certain deficiencies were noticed by the official concerned in the office of Additional Director, Treasury & Pension. Accordingly, a letter from the office of the Additional Director, Treasury & Pension dated 30.11.2012 was written to the Executive Engineer, Irrigation Division, Ganga Sinchai Bhawan, Telibagh, Lucknow pointing out therein that in terms of the Government Order dated 29.05.2001, the challan pertaining to deposit of contribution to the pension for the period the petitioner was on deputation should be made available. In the said letter, it was also pointed out that petitioner's service book does not make mention of the period for which the petitioner remained on deputation and hence, the same may also be recorded.
Apart from the aforesaid alleged deficiencies, the letter dated 31.11.2012 also indicated that the service book of the petitioner records 03.07.1978 as date of his ad hoc appointment and that the service book also records that his services were regularized by means of order dated 26.02.1998 and hence, in terms of the provisions contained in Article 361 of the Civil Service Regulations (CSR), since the ad hoc services rendered by an employee are not to be reckoned for the purpose of calculating the qualifying service for pension and further that as per the provisions contained in Rule 7 of the Regularization Rules 1979, it is the date of regularization which is to be taken into account for the purpose of counting qualifying service for pension, as such it would not be lawful to treat 22.07.1978 as the date from which services of the petitioner should be counted for reckoning the qualifying service. The said letter, accordingly, required the Executive Engineer of the Irrigation Department to remove the deficiencies and make a fresh proposal.
Pursuant to the said letter dated 30.11.2012, the necessary clarifications were sent by the Executive Engineer by means of letter dated 30.01.2013 stating therein that since the challan indicating the deposition of the contribution for pension for the period from 22.07.1978 to 31.07.1981 i.e. the period when petitioner remained on deputation, was not available, as such his services for the purpose of reckoning the qualifying service should be taken into account w.e.f. 31.07.1981. It was also indicated that the services of the petitioner were regularized by means of order dated 26.02.1998 and Rule 7 of the Regularization Rules, 1979 does not apply so far as the calculation of qualifying service for the purpose of pension is concerned; rather the same applies for the purpose of reckoning the seniority of an employee and hence it would not be appropriate to place reliance of Rule 7 of the Regularization Rules, 1979 for denying the benefits of pension to the petitioner w.e.f. 31.07.1981. Accordingly, the Executive Engineer sent back the proposal with the aforesaid facts by means of letter dated 30.01.2013.
The matter appears to have been reconsidered by the Pension Directorate and an order has been passed on 25.02.2013 whereby the pension of the petitioner has been fixed at Rs. 13,388/- plus relief, without commutation and Rs. 8,033/- plus relief, after commutation.
The grievance of the petitioner is that the services rendered by him in ad hoc capacity, prior to regularization of his services by means of order dated 26.02.1998, have not been taken into account unlawfully and as such the impugned action on the part of the respondents in fixing the pension without reckoning the aforesaid period of service of the petitioner w.e.f. 31.07.1981 till regularization of his services i.e. 26.02.1998 cannot be sustained being absolutely arbitrary and not being in conformity with law applicable for counting the services for the purpose of reckoning the qualifying service for pension.
So far as the period w.e.f. 03.07.1978 (the date of initial appointment of the petitioner) or w.e.f. 22.07.1978 (the date of initial joining of the petitioner) till 31.07.1981 (the date on which the petitioner was repatriated from his borrowing department namely, Betwa River Board, Jhansi to his parent department i.e. Irrigation Department, Government of U.P., is concerned, learned counsel for the petitioner states that since there is no proof of deposition of contribution towards pension for this period, as such the said period has rightly not been counted for the purpose of reckoning the qualifying service for pension. However, the services rendered by petitioner in ad hoc capacity after he was repatriated from his borrowing department till regularization of his services ought to have been taken into account and accordingly, pension ought to have been fixed.
Learned counsel for the petitioner has placed reliance on the judgment dated 01.03.2012, passed by a Division Bench of this Court in the case of Dr. Amrendra Narain Srivastava, Vs. State of U.P. and others, Writ-A No. 61974 of 2011, judgement dated 07.02.2013, passed by another Division Bench of this Court in Writ-A No. 38000 of 2012, Dr. Satya Prakash Srivastava Vs. State of U.P. & others and the judgment dated 28.02.2013, of this Court in Writ-A No. 7480 of 2013, Shivadhar Vs. State of U.P. & others.
Counter affidavit has been filed by the Irrigation Department, wherein it has been stated that appropriate proposal for grant of pension and other post retiral dues was sent by the Irrigation Department to the Pension Directorate. However, Pension Directorate in its wisdom has not taken into account the services rendered by the petitioner in ad hoc capacity for the purpose of reckoning the period for qualifying service for pension.
A separate counter affidavit has been filed by the Pension Directorate clearly stating therein that according to Article 361 (2) of the Civil Service Regulation, the services rendered by the petitioner on ad hoc basis are not to be counted towards qualifying service for pensionary benefits. Thus, the only case put forth by the Pension Directorate in respect of its contention that the petitioner is not entitled to be given benefit of counting the services rendered by him in ad hoc capacity for the purpose of reckoning the period of qualifying service for pension, is that Article 361 (2) of the Civil Service Regulations does not permit the ad hoc services to be counted for the said purpose.
The U.P. Retirement Benefits Rules, 1961 (hereinafter referred to as "Retirement Benefits Rules") have been framed under Article 309 of the Constitution of India. Thus, the same are applicable to all government servants. Rule 3 (8) defines qualifying service to mean the service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations. Rule 3(8) of the Retirement Benefits Rules, 1961 are quoted hereinbelow:-
(8) "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service 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-charged 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 a post from 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."
Thus, from a perusal of the aforequoted provisions of the Retirement Benefits Rules, it is clear that the meaning and definition of qualifying service has to be traced in the provisions contained in Article 368 of the Civil Service Regulations. Article 368 of the Civil Service Regulations is negatively worded, according to which, the service does not qualify unless the officer holds a substantive office on a permanent establishment. Article 368 of the Civil Service Regulations is extracted hereinbelow:-
"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment."
In view of aforesaid, in terms of the provisions contained in Rule 3(8) of the Retirement Benefits Rules read with Article 368 of the Civil Service Regulations, unless the officer/employee concerned holds a "substantive office on a permanent establishment", any period of service rendered by such an officer/employee will not qualify for pension.
What is significant is that the officer should have served a substantive office on a permanent establishment. Proviso appended to Rule 3(8) of the Retirement Benefits Rules provides that in case of an employee working on continuous temporary or officiating service, which is followed by confirmation without interruption shall also count provided that such temporary/officiating service should not be in a non-pensionable establishment and that it should also not be in work-charged establishment and also that such a service is not rendered in a post which is paid from contingencies. Thus, a conjoint reading of the provisions of Rule 3(8) of the Retirement Benefits Rules and the provisions contained in Article 368 of the Civil Service Regulations makes it abundantly clear that what is significant is " substantive office on a permanent establishment." The provision of Article 368 does not talk about. Accordingly, an officer/employee, even if serves on ad hoc basis, in a substantive office on a permanent establishment, will be entitled for the benefits of such ad hoc services being counted for reckoning the qualifying service.
The reason given in the counter affidavit filed by the Pension Directorate that petitioner's services rendered by him in ad hoc capacity cannot be taken into account for the purpose of reckoning qualifying period for pension is based on the provision of Article 361 of the Civil Service Regulation which shows that service of an officer does not qualify for pension unless the employment is substantive and permanent. According to the Pension Directorate, since in the instant case, the employment of the petitioner was not substantive (petitioner having been appointed on ad hoc basis), such service as has been claimed by the petitioner, cannot be counted for reckoning the qualifying service, in view of the provisions of Article 361 of the Civil Service Regulations.
Apparently, there appears to be a some contradiction between the provisions of Articles 361 and 368 of the Civil Service Regulations. However, qualifying service has been defined under Rule 3(8) of the Retirement Benefits Rules to mean that service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations and not in accordance with the provisions of Article 361 of said Regulations. Thus, reliance placed by the Pension Directorate on Article 361 of the Civil Service Regulations appears to be fallacious for the reason that the Retirement Benefits Rules clearly defines the qualifying service to mean the service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations.
As observed above, Article 368 of the Civil Service Regulations provides that services will not qualify for pension unless the employee holds a substantive office on a permanent establishment.
The aforesaid view is supported and strengthen by the decision of this Court in the case of Dr. Amerendra Narain Srivastava (Supra).
On a scrutiny of the facts of the instant case, what transpires is that it is not in dispute that ever since initial appointment on ad hoc basis, the petitioner held a substantive office of the post of Junior Engineer in the Irrigation Department in its permanent establishment. Thus, I am of the considered opinion that except for the period, the petitioner remained on deputation in Betwa River Board, under the Ministry of Agriculture & Irrigation, Government of India i.e. w.e.f. 22.07.1978 till 31.07.1981, the services rendered by him in ad hoc capacity before regularization of his service by means of order dated 26.02.1998 ought to have been taken into account for the purpose of counting qualifying service for reckoning the pension.
In view of discussions made and reasons given hereinabove, in the result, the writ petition deserves to be allowed.
Accordingly, the writ petition is allowed. Respondents are directed to re-fix the pension of the petitioner and other retiral dues which may be admissible to him under law taking into account the entire period of service rendered by him after 31.07.1981 till he retired on his attaining the age of superannuation i.e. on 31.12.2012 and make payment of the same to the petitioner. The aforesaid exercise by the respondents shall be completed within a period of three months from the date of production of certified copy of this judgment and order.
There will be no order as to costs.
Order Date :- 21.11.2014 Sanjay