Hon'ble Rohit Ranjan Agarwal,J.
Civil Misc. Exemption Application No.1 of 2021 The application seeking exemption from filing certified copy of the order of the High Court is allowed.
Civil Misc. Delay Condonation Application No. Nil of 2021 As per office report dated 10.02.2021, there is no delay in filing appeal thus no order on the application for condonation of delay is required.
Order on Memo of Appeal
1. Heard Sri A.C.Mishra, learned Additional Chief Standing Counsel for the appellant and Sri I.R.Singh, learned counsel for respondent no.1.
2. The appeal has been preferred against the order dated 25.06.2020. The writ petition was preferred by the non-appellant to seek pensionary benefit after retirement as it was not made admissible despite service of 22 years.
3. The facts on record shows that petitioner was appointed on ad hoc basis on 25.01.1996. It was bearing approval of District Inspector of Schools, Hathras by order dated 03.7.1997, which shows appointment of the petitioner/non-appellant to be as per the rules.
4. It is not in dispute that petitioner/non-appellant retired after rendering 22 years of service. The claim of pension was yet denied despite the fact that petitioner was even regularized in service subsequently. The denial of pensionary benefit by order dated 09.12.2019 was challenged before the learned Single Judge. Denial was per se on the ground that petitioner was substantially appointed as Assistant Teacher on 22.3.2016 and he has not completed 10 years' service thereupon. The order dated 09.12.2019 was passed in ignorance of the fact that the order dated 22.3.2016 was to regularize the service of the petitioner without nullifying his ad hoc appointment made as per rules. If the ad hoc appointment of petitioner would not have been made as per rules, there was no reason for District Inspector of Schools to grant approval by order dated 03.7.1997 and that too the approval from the date of appointment dated 25.01.1996.
5. The present appeal has been filed in reference to Uttar Pradesh Qualifying Service For Pension And Validation Ordinance 2020 (in short "Ordinance of 2020"). It is stated that period of service on ad hoc or temporary basis should not have been counted by learned Single Judge as it has been nullified by the Ordinance of 2020. Thus, even the judgment by the Apex Court in the case of Prem Singh vs. State of U.P. (2019) 10 SCC 516 could not have been applied by the learned Single Judge.
6. We find that identical issue came up for consideration before this Court in the case of State of U.P. through its Secretary and others vs. Mahendra Singh, Special Appeal Defective No.1003 of 2020. Therein the case was considered in the light of the Ordinance of 2020 and finding that appointment of the petitioner therein on temporary basis was as per rules, period of service was ordered to be counted towards qualifying service for pensionary benefits.
7. In the case in hand, the petitioner/ non-appellant was appointed on ad hoc basis but was against the sanctioned post. Thus, approval as per rules was given to his appointment by the District Inspector of Schools. The regularization of service may be subsequently by an order issued in the year 2016 but then as per the Ordinance of 2020, the period of service rendered after appointment on temporary basis as per rules could not have been ignored. For that purpose Ordinance of 2020 is quoted hereunder:
NO. 1877(2)/LXXIX-V-1-2020-2(ka)20-2020 Dated Lucknow, October 21,2020.
In pursuance of the provisions of clause (3) of Article 348 of the Constitution of India, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Pension Hetu Aharkari Sewa Tatha Vidhimanyakaran Adhyadesh, 2020 (Uttar Pradesh Adhyadesh Sankhya 19 of 2020) promulgated by the Governor. The Vitta ( Sammanya) Anubhag-3 is administratively concerned with the said Ordinance.
THE UTTAR PRADESH QUALIFYING SERVICE FOR PENSION AND VALIDATION ORDINANCE, 2020 (U.P. Ordinance no. 19 of 2020) (Promulgated by the Governor in the Seventy-first Year of the Republic of India).
AN ORDINANCE to provide for qualifying service for pension and to validate certain actions taken in this behalf and for matters connected therewith or incidental thereto.
WHEREAS, the State legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action;
NOW,THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor is pleased to promulgate the following Ordinance:-
1.(1) This Ordinance may be called the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020.
(2) It shall extend to the whole of the State of Uttar Pradesh.
(3) it shall be deemed to have come into force on April 1,1961.
2. Notwithstanding anything contained in any rule, regulation or Government order for the purposes of entitlement of pension to an officer , "Qualifying Service" means the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post.
3. Notwithstanding any judgment, decree or order of any Court, anything done or purporting to have been done and may action taken or purporting to have been taken under or in relation to sub-rule (8) of rule 3 of the Uttar Pradesh Retirement Benefit Rules, 1961 before the commencement of this Ordinance, shall be deemed to be and always to have been done or taken under the provisions of this Ordinance and to be and always to have been valid as if the provisions of this Ordinance were in force at all material times with effect from April 1,1961.
4. Save as otherwise provided, the provisions of this Ordinance shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Ordinance.
ANANDIBEN PATEL Governor, Uttar Pradesh By order U.P. Singh-II, Pramukh Sachiv
8. A perusal of Section 2 of the Ordinance of 2020 reveals that service rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of service rules would be counted towards qualifying service.
9. In view of the above, even the Ordinance of 2020 would not affect the claim of the petitioner/non-appellant having been appointed against the sanctioned post, may be initially on ad hoc but as per rules and subsequently his service was regularized. It is not the case of the respondents that initial appointment of the petitioner was against the rules. It is moreso when the writ petition was filed with clear statement of fact that petitioner/non- appellant was appointed against the sanctioned post and in accordance with rules. Therefore, even approval to his appointment was given by the District Inspector of Schools.
10. In the light of the discussion made above, we do not find any reason to cause interference in the judgment impugned herein. However, we have given additional reason to allow pensionary benefits to the petitioner/non-appellant by counting his length of service.
11. Accordingly, compliance of the order of learned Single Judge be made, if it has not been complied as yet, within time framed,.
12. The appeal is disposed of with the aforesaid.
Order Date :- 19.2.2021 KA