Hon'ble Jayant Banerji,J.
(Per: Hon'ble Jayant Banerji, J) Heard Sri P.K. Ganguli, learned Standing Counsel appearing for the appellants-respondents and Sri Hare Ram Tripathi, learned counsel appearing for opposite party-petitioner.
Delay Condonation Application No. 2 of 2020 The Stamp Reporter has reported a delay of 223 days in filing the appeal.
Learned counsel for the appellants-respondents (hereinafter referred to as the appellants) has referred to the averments made in the affidavit filed in support of the delay condonation application to contend that the delay was occasioned due to the stated reason which merit the allowing of the application. Learned counsel for the opposite party-petitioner has not opposed the application. Moreover, the cause shown for the delay in filing the appeal has been sufficiently explained.
Therefore, the delay is condoned and the application is allowed.
Office is directed to take steps accordingly.
Order on Appeal.
In this intra-court appeal, challenge has been made to an order dated 10.2.2020, passed in Writ-A No. 8535 of 2014 by the learned Judge of this Court in the matter of Mahendra Singh Vs. State of U.P. and others. In the writ petition, an order dated 13.2.20213 was challenged whereby the claim of the petitioner was rejected by the appellant-respondent no.2 for counting his previous services rendered by him in temporary capacity as qualifying service.
Learned counsel for the appellants has contended that the opposite party-petitioner was appointed as 'Godown Chaukidar' on 4.9.1981 on temporary/adhoc basis which appointment could be terminated without any previous notice. Thereafter, the opposite party-petitioner was regularly appointed on 6.10.1997 after creation of 75 permanent posts of Godown Chaukidar. It is contended that given the provisions of Regulation 361, 362, 368 of the Civil Service Regulation, the services rendered by the opposite party-petitioner prior to his being appointed regularly on 6.10.1997 cannot be called qualifying service. The contention is that payment to the opposite party-petitioner from 1981 to 1997 was made under Regulation 370(3) of Civil Service Regulation from the contingency funds which, therefore, rendered him ineligible for pension. It is urged that U.P. Ordinance No. 19 of 2020 (The Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020) was published in the Extraordinary gazette of Government of U.P. on 21.10.2020 which provides for qualifying service for pension and for validating certain actions taken in that behalf and for matters connected therewith or incidental thereto. In view of the newly promulgated ordinance, particularly the non-obstante clauses appearing in Section 2, 3 and 4 thereof, the opposite party-petitioner is not entitled to claim the period of his temporary/adhoc from 1981 to 1997 as qualifying service and, therefore, the judgement passed by the learned Judge may be set aside.
A perusal of the record reveals that in the writ petition, a counter affidavit was filed on behalf of the appellants in which the letter issued by the Food Commissioner dated 10.4.1991 (enclosed as Annexure CA-1 to the counter affidavit) contained a copy of the circular dated 30.3.1991 issued by the Additional Commissioner (Food and Civil Supplies), Government of U.P.. It appears therefrom that a total 415 temporary posts created pursuant to some government orders were converted to permanent posts with effect 1.3.1990 by means of a government order dated 11.4.1990. It was provided that those watchman who were not regularized under the relevant government orders would not be entitled to retiral benefits. It is stated in paragraph no. 4 of the counter affidavit to the writ petition that by means of government order dated 14.3.1997 some posts of Godown Chaukidar were created in pursuance of which, the Food Commissioner issued an order dated 10.9.1997 for appointing Godown Chaukidar on regular basis from the date of issuance of the government order or from the date of filling of the post whichever is later. It is thereunder that the opposite party-petitioner along with other persons were appointed on regular basis by means of the order dated 6.10.1997 against 75 posts allocated for district Agra. It is stated that in view of the document enclosed as Annexure CA-1 to the counter affidavit, the services of the petitioner that were not rendered in a regular capacity would not be counted for qualifying service.
A perusal of the order dated 13.2.2013 that was challenged in the writ petition reveals that it is an admitted fact that by order dated 01.09.1981 passed by the Regional Food Controller, Agra, the opposite party-petitioner was appointed on the post of Godown Chaukidar in a temporary capacity. That part of the impugned order reads as follows:-
bl lEcU/k esa mYys[k djuk gS fd Jh egsUnz flag] xksnke pkSdhnkj dks lEHkkxh; [kkn~; fu;a=d] vkxjk ds vkns'k la[;k&[email protected]&3 ¼fu;qfDr½ fnukad 01 flrEcj] 1981 ds }kjk [email protected] :i ls xksnke pkSdhnkj ds in ij fu;qDr fd;k x;k FkkA mDr vkns'k ds vuqikyu esa Jh egsUnz flag }kjk fnukad 04-09-1981 dks xksnke pkSdhnkj ds ij ;ksxnku fd;k x;kA rnksijkUr lEHkkxh; [kkn~; fu;a=d] vkxjk ds i= la[;k&[email protected]&3 ¼vfofu;ferxks0pkS0½ fnukad 05-04-1995 ds vUrxZr vfofu;fer xksnke pkSdhnkjksa dh izksohtuy T;s"Brk lwph tkjh dh xbZA rRi'pkr 'kklukns'k la[;k&[email protected]&2&96&,e&[email protected] fnukad 14-03-1997 }kjk l`ftr inks ds dze esa vk;qDr] [kkn~; rFkk jln foHkkx mRrj izns'k] y[kuÅ ds ia=kd&[email protected] fo0'kk0&leUo;&[email protected] fnukad 10 flrEcj] 1997 ds }kjk [kkn~; rFkk jln foHkkx dh gkV 'kk[kk ds varxZr izns'k esa 406 xksnke pkSdhnkjksa ds in osreuku 750&12&870&n0jks0&14&940 esa 'kklukns'k tkjh gksus vFkok in Hkjus dh frfFk] tks Hkh ckn esa gks] l``ftr fd;s tkus dh Lohd`fr iznku dh x;h FkhA rn~kuqlkj mijksDr esa ls vkxjk lEHkkx ds fy;s vkoafVr xksnke pkSdhnkjks ds 75 inksa ij vU; ds lkFk Jh egsUnz flag] xksnke pkSdhnkj ¼vfofu;fer½ dks lEHkkxh; [kkn~; fu;a=d] vkxjk ds dk;kZy; vkns'k la[;k&[email protected]&5 fnukad 06&10&[email protected]&10&1997 }kjk xksnke pkSdhnkj ds in ij vkns'k tkjh gksus dh fnukad 06&10&1997 ls fu;fer fu;qDr fd;k x;kA The order impugned further, refers to the judgement in the case of Muheed Khan Vs. State of U.P. and others passed in Writ Petition No. 21559 of 2007, whereby the pension of the petitioner in that petition was denied on the ground that he had not put in qualifying service of ten years as a regular employee and that was held to be wrong and a writ of mandamus was issued commanding the respondents to ensure payment of pension to that petitioner. It is mentioned in the order impugned dated 13.2.2013 that the opposite party-petitioner is entitled to pension and other retirement benefits under the relevant rules and government orders in view of his period of service on the permanent post.
The learned Judge has referred to the judgement of Apex Court in the case of Prem Singh Vs. State of U.P. reported in AIR 2019 SC 4390 and another judgement of the Apex Court as well as of this Court and held that the opposite party-petitioner is entitled to the relief claimed for counting his services rendered as a temporary employee. Accordingly, the order impugned dated 13.2.2013 was quashed and the appellant-respondent no.2 was directed to provide all the benefits accruing to the opposite party-petitioner after counting his earlier services rendered as a temporary employee from the year 1981 till 1997.
The U.P. Ordinance No. 19 of 2020 as published in the Extraordinary gazette of the Government of U.P. reads as follows:
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 It is clear from perusal of Section 2 of the Ordinance that it would have effect notwithstanding anything contained in U.P. Retirement Benefit Rules, 1961 or Regulation 361 and 370 of the Civil Service Regulation. Though it has been informed at the bar that in certain writ petitions, validity of the aforesaid U.P. Ordinance has been challenged, however, even if for purpose of adjudicating the present appeal the Ordinance is accepted as it is, section 2 thereof would inure to the benefit to the opposite party-petitioner and not to the benefit of appellants. The word "Qualifying Service" has been defined in Section 2 of the aforesaid U.P. Ordinance to mean 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.
As discussed aforesaid, the appellants have admitted the appointment of the opposite party-petitioner on temporary post of Godown Chaukidar from 04.09.1981 till the date of his appointment on a regular post in 1997. Therefore, under this very U.P. Ordinance, the petitioner is entitled to his claim for counting the period of his service from the date of his appointment on 04.09.1981 on a temporary post till his regularization on the permanent post in the year 1997.
In view of the aforesaid, the present appeal is devoid of merit and is, accordingly, dismissed.
Order Date: 4.2.2021 sfa/ (Jayant Banerji, J) (Sanjay Yadav, J)