Court No. - 6
Case :- WRIT - A No. - 4611 of 2016 Petitioner :- Tribhuwan Narayan Lal Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Manoj Kumar Singh,Pavan Kumar Srivastava Counsel for Respondent :- C.S.C.,O.P.Singh,Sushil Kumar Rao
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State.
This petition challenges an order dated 15 December 2015 in terms of which the claim of the petitioner for pensionary benefits has come to be negatived on the ground that he did not have to his credit 10 years qualifying services as required under the Civil Services Regulations as applicable in the State of U.P.
Undisputedly, the petitioner was promoted on the post of Assistant Development Officer (Cooperative) on ad hoc basis in terms of an order dated 22 May 1995. He continued as such till his services were regularized in terms of an order dated 25 September 2009. This order provided that his services would stand regularized with effect from 1 August 2007.
According to the learned counsel for the petitioner, the entitlement to pension flows directly from the provisions of Regulation 370 of the CSR. It is contended that since the ad hoc promotion was on a post which was borne on a pensionable establishment, his subsequent regularization would entitle him to the grant of pensionary benefits with the period of ad hoc service being reckoned as forming part of qualifiying service. Learned counsel has additionally placed reliance on a decision rendered by a learned Judge of this Court in Writ-A No.9594 of 2017 (Chandrej Vs. State of U.P. and 2 others) wherein deciding an identical controversy, the learned Judge has held that the Assistant Development Officer there was entitled to pensionary benefits with the period spent on ad hoc service being counted.
Learned Standing Counsel has submitted that if the period of qualifying service be computed from 1 August 2007, it would be clear that the petitioner had not completed 10 years. According to him, this was sufficient to deny him the grant of pensionary benefits. Additionally, learned Standing Counsel has referred to the recital in the order of ad hoc promotion which had provided that if the ad hoc promotee retire within a period of 10 years, he would not be entitled to the grant of pensionary benefits as payable to government employees. Learned Standing Counsel submits that in light of the clear stipulation in the said order, the petitioner was clearly not entitled to the grant of pensionary benefits.
The provisions of Regulation 370 fell for consideration before this Court in Ram Narayan Pandey vs. State of U.P. and 3 others [Writ- A No.10566 of 2017]. Dealing with the ambit of the said provision and the entitlement to pension this Court held thus:-
"As is evident from a reading of Regulations 368 and 370, service, which is liable to be excluded, is that which is spent by an employee when holding a non- substantive office and in an establishment, which is other than permanent. Although the petitioner was initially engaged on a temporary basis, it is not the stand of the State that this temporary appointment was not against a substantive office. The Court further take into consideration the fact that the substantive office was held in an establishment which was pensionable and that it is not the contention of the learned Standing Counsel that the office to which a collection peon stands attached is an establishment which is temporary or other than permanent. The submission of the learned Standing Counsel, resting upon the provisions of Regulation 370 proceed without noticing that the period of temporary service or officiating service is liable to be excluded only in case it is spent in a non pensionable establishment.
Regulation 370 reads thus:
"370. 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."
As is evident from a bare reading of the said provision the only classes of service that are excluded are temporary or officiating service: -
(a) in a non-pensionable establishment,
(b) in a work charged establishment and
(c) on a post paid from contingencies.
From the narration of facts it is clear that the petitioner's service albeit on a temporary basis as a Collection Peon cannot be said or recognised to have been spent in either a non-pensionable establishment or a work charged establishment. It is also not the case of the respondents that the petitioner as Collection Peon was paid from contingencies. As was held by the Division Bench in Dr. Amrendra Nath Srivastava, it is only in a case where the temporary service is spent in the categories specifically enumerated in Regulation 370 that the same would be liable to be excluded."
From the above exposition of the law on the ambit of Regulation 370, it is more than evident that the petitioner would stand disentitled from pension only, in case, it was found that the period of temporary or ad hoc service was either spent on a non-pensionable establishment or in a work charged establishment or where his salary was paid out of contingencies.
In the admitted facts of the present case, none of these three factors which would disqualify an employee from the grant of pensionary benefits stand attracted to the case of the petitioner. It is not the case of the State-respondents that the promotion of the petitioner, even on an ad hoc basis, was on a non-pensionable establishment. Once the services of the petitioner stood regularized in terms of the order dated 25 September 2009 with retrospective effect from 1 August 2007, the respondents were obliged and liable to reckon the ad hoc service, which was spent by the petitioner on the post in question for the purposes of computing qualifying service.
The submission of learned Standing Counsel resting on the recital appearing in the order dated 22 May 1995, in the considered view of this Court, also cannot come to the aid of the respondents. As is evident from a plain reading of the clause which is relied upon, the same stood attracted to those cases where a person, though promoted on ad hoc basis, came to retire before the expiry of 10 years from the date of ad hoc promotion. In the facts of the present case, although, the petitioner was initially promoted on ad hoc basis, his services came to be regularized on the said post prior to his attaining the age of superannuation on 13 September 2014. On an overall view of the aforesaid facts, this Court finds itself unable to sustain the order dated 15 September 2015.
Accordingly, this writ petition stands allowed. The impugned order dated 15 September 2015 is hereby quashed. The respondents shall now in consequence compute the pensionary and retiral benefits of the petitioner treating him to have been in service on the post in question in a substantive capacity and including the ad hoc service rendered prior thereto.
Order Date :- 28.11.2018/cks