Court No. - 38
Case :- WRIT - A No. - 2646 of 2019 Petitioner :- Vinod Kumar Mishra Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Radhey Krishna Pandey,Neelesh Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
In somewhat identical facts and circumstances, claim of another similarly placed person Muneshwar Dutt Mishra has been allowed by this Court in Writ Petition No. 18117 of 2018, vide following orders passed on 06.09.2018:-
"Following orders were passed in the matter on 27.8.2018:-
"Petitioner is aggrieved by an order dated 17.07.2018, which restricts consideration of his claim for retiral benefits to the period after petitioner's regularization only. Submission is that by virtue of rule 3(8) of the U.P. Retirement Benefits Rules, 1961, the services rendered on ad hoc, followed with regularization, is liable to be counted for the purposes of releasing retiral benefits. Reliance is placed upon a judgment of Division Bench of this Court in Writ Petition No. 11630 of 2018 (Dr. Ramakant Tiwari Vs. State of U.P. and Others), in which following observations have been made in paragraphs 8 & 9:-
"8. As aforesaid, vide Sub-rule 8 of Rule 3 of Rules 1961, qualifying service includes service which qualifies for pension in accordance with provision of Section 368 of C.S.R. In this view of the matter, services rendered by petitioner on ad-hoc basis followed by Regularization would stand covered under "qualifying service" defined under Rule 3(8) of Rules 1961, for the purpose of pension. In taking this view we are fortified by a Division Bench decision in State of U.P. and Others vs. Dr. Amrendra Narain Srivastava (Writ Petition No. 61974 of 2011) decided on 01.03.2012.
9. For what has been stated above, writ petition succeeds and is allowed. Impugned order dated 11.05.2015 is hereby set aside. Respondents are directed to count services of petitioner rendered on ad-hoc basis also as qualifying service for grant of retiral benefits including pension and pay the same expeditiously. "
Various orders have also been relied upon in that regard.
Learned standing counsel may obtain instructions in the matter. Put up this matter, in the additional cause list, on 06.09.2018."
Pursuant to the aforesaid order, learned Standing Counsel has obtained instructions, which are taken on record. As per instructions received from Additional Director (Treasury and Pension), the period between 6.10.1983 till the date of petitioner's regularization on 30.3.1999 is not liable to be included for the purposes of grant of pensionary benefits under rule 3(8) of the U.P. Retirement Benefits Rules, 1961, inasmuch as it includes temporary services and officiating working, but does not include adhoc working. Only for such reasons the benefit of this period has been denied to the petitioner.
Perusal of the record would go to show that petitioner was appointed as Assistant Revenue Accountant at Bara Tahsil, Allahabad under an order of the District Magistrate, Allahabad, dated 6.10.1983. The order further records that petitioner was placed in the waiting list, and therefore, he is being appointed. Pursuant to such appointment offered on 6.10.1983, petitioner continued to work and his services were regularized on 30.3.1999. An order has also been passed by the District Magistrate, Allahabad on 8.6.2017, in which the period from 1983 to 1999 was also included in the qualifying services of petitioner and his total length of services was calculated as 33 years 6 months 27 days. A recommendation was made to the Additional Director (Treasury and Pension) for processing petitioner's retiral benefits, accordingly. This letter clearly records that petitioner's working from 1983 onwards has been taken note of for preparing his pension papers. The Additional Director, however, has sent a communication on 23.2.2018 stating that period of 17 years 10 months 28 days alone be counted after petitioner's services have been regularized for the purposes of grant of pensionary benefits to the petitioner. No reasons have been disclosed by the Additional Director as to why the period spent on duty in a pensionable establishment from 1983 to 1999 would not be included for computing the qualifying services by applying rule 3(8) of the Rules of 1961.
Learned counsel for the petitioner has placed reliance upon a Division Bench judgment of this Court in Dr. Ramakant Tiwari vs. State of U.P. and others being Writ Petition No.11630 of 2018, decided on 14.5.2018, in which this Court has clearly observed that nature of appointment i.e. adhoc appointment is not a relevant consideration for the purposes of denying benefit under rule 3(8) of the Rules of 1961. Para 5 to 9 of the judgment in Dr. Ramakant Tiwari (supra) are reproduced hereinafter:-
"5. Under U.P. Retirement Benefit Rules, 1961 (hereinafter referred to as "Rules, 1961") "qualifying service" is defined in Rule 3(8). It means 'service' which qualifies for pension in accordance with provisions of Article 368 of C.S.R. Rule 3(8) is quoted as below:-
"Rule 3(8)- " Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services 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-changed 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 post paid form 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."
6. Regulation 368, C.S.R., provides that service does not qualify, unless officer holds a substantive office in a permanent establishment. Regulations 368 and 369 are quoted herein below:
"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.
369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was on actual duty on the first day on which the establishment was again re-employed."
7. It is not in dispute that petitioner was appointed on substantive post in permanent establishment which is/was pensionable. Nature of his appointment i.e. ad-hoc appointment is not of relevance in as much as period spent by him even on ad-hoc service was in permanent establishment, which ultimately resulted into regularization of petitioner without any break in service.
8. As aforesaid, vide Sub-rule 8 of Rule 3 of Rules 1961, qualifying service includes service which qualifies for pension in accordance with provision of Section 368 of C.S.R. In this view of the matter, services rendered by petitioner on ad-hoc basis followed by Regularization would stand covered under "qualifying service" defined under Rule 3(8) of Rules 1961, for the purpose of pension. In taking this view we are fortified by a Division Bench decision in State of U.P. and Others vs. Dr. Amrendra Narain Srivastava (Writ Petition No. 61974 of 2011) decided on 01.03.2012.
9. For what has been stated above, writ petition succeeds and is allowed. Impugned order dated 11.05.2015 is hereby set aside. Respondents are directed to count services of petitioner rendered on ad-hoc basis also as qualifying service for grant of retiral benefits including pension and pay the same expeditiously."
It is not in dispute, in the facts of the present case that petitioner's engagement was in a pensionable establishment and that a mere use of nomenclature as 'adhoc' instead of 'temporary' and 'officiating' would not be material consideration to exclude the period from 1983 to 1999 for the purposes of grant of retiral benefits under rule 3(8) of the Rules of 1961. The action of respondents in not calculating the period between 1983 to 1999 is, therefore, found to be contrary to the rules and is wholly arbitrary. There is no justifiable reason for denying benefits under rule 3(8) of the Rules to the petitioner for the aforesaid period.
Writ petition, therefore, succeeds and is allowed. The orders dated 23.2.2018 and 17.7.2018 stands quashed. A direction is issued to respondents to process and release petitioner's claim for grant of pensionary benefits by including petitioner's working from 1983 to 1999, as discussed above. The required consideration would be made within a period of three months from the date of presentation of certified copy of this order. In case the retiral benefits, as calculated above, are not released within a further period of three months thereafter, petitioner would be entitled to interest @ 8% per annum. The authorities of the State would be at liberty to recover the amount of interest from the salary of the officer, who is found responsible for not carrying out the directions within the period specified."
Learned Standing Counsel has not been able to demonstrate any distinguishing facts in the present case.
The facts of the present case are almost identical. In light of what has been observed by this Court in the case of Muneshwar Dutt Mishra, this writ petition is also disposed of in terms of order passed in Writ Petition No. 18117 of 2018.
Order Date :- 31.7.2019 M. ARIF