# Anukul Prakash v. State of U.P

- **Citation:** (2023) 5 ILRA 1795
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-18
- **Case number:** Writ-A No. 2001647 of 2015
- **Bench:** Rajan Roy, Abdul Moin, Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anukul-prakash-v-state-of-u-p-50266
- **Pages:** 15

## Headnote

Service Law- Uttar Pradesh Absorption of
Retrenched Employees of Government or
Public
Corporations
in
Government
Service Rules, 1991-To be covered by the
Government Order dated 10.07.1998, the
employee
should
have
come
into
Government service by way of transfer or
direct recruitment or deputation and
thereafter should have been absorbed.
Unless this condition is fulfilled, the
Government
Order
dated
10.07.1998
would not apply in his case- there is
nothing in the said Rules which may
permit counting of past services rendered
by the petitioner in ATL for the purposes
of calculating his qualifying service for
pensionary
benefits
payable
by
the
Government consequent to his retirement
from Government service after absorption
therein-
Government
Order
dated
11.11.1993 also does not permit counting
of services rendered by the petitioner in
ATL for the purposes of determining his
seniority viz-a-viz direct recruits in the
absorbed department. (Para 20, 24 & 25)

Petition dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,809 of 51,553. This is a partial read: ask again with offset=39809 for what follows._

5 All. Anukul Prakash Vs. State of U.P.
1795
(2023) 5 ILRA 1795
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2023

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE ABDUL MOIN, J.
THE HON'BLE MANISH MATHUR, J.

Writ-A No. 2001647 of 2015

Anukul Prakash ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Ramesh
Pandey,
Amrendra
Nath
Tripathi,
Ashutosh Shahi

Counsel for the Respondent:
C.S.C.

Service Law- Uttar Pradesh Absorption of
Retrenched Employees of Government or
Public
Corporations
in
Government
Service Rules, 1991-To be covered by the
Government Order dated 10.07.1998, the
employee
should
have
come
into
Government service by way of transfer or
direct recruitment or deputation and
thereafter should have been absorbed.
Unless this condition is fulfilled, the
Government
Order
dated
10.07.1998
would not apply in his case- there is
nothing in the said Rules which may
permit counting of past services rendered
by the petitioner in ATL for the purposes
of calculating his qualifying service for
pensionary
benefits
payable
by
the
Government consequent to his retirement
from Government service after absorption
therein-
Government
Order
dated
11.11.1993 also does not permit counting
of services rendered by the petitioner in
ATL for the purposes of determining his
seniority viz-a-viz direct recruits in the
absorbed department. (Para 20, 24 & 25)

Petition dismissed. (E-15)

List of Cases cited:

1. Writ A 49126 of 2016 (Pooran Singh Manral &
anr. Vs St.of U.P. & ors.

2. Hridayesh Dayal Srivastava Vs St.of U.P. &
ors.(Writ Petition No. 410 (SB) of 2010)

3. Keshav Ram Pandey Vs St.of U.P. & ors.(Writ
Petition No. 65 (SB) of 2011)

4. St.of U.P. & ors. Vs Shankatha Prasad Misrha
(Special Appeal Defective No. 645 of 2016)

5. St.of U.P. & ors. vs Amar Pal Singh (Special
Appeal Defective No. 646 of 2016)

6. Narendra Narain Mishra Vs St.of U.P. & ors.

7. St.of U.P. & ors.Vs Mirtunjay Pratap Singh
(Special Appeal No. 121 of 2015)

8. St.of U.P. & ors.Vs Ram Shanker Gupta
(Special Appeal Defective No. 553 of 2015)

9. St.of U.P. & ors.Vs Sunil Kumar Verma & ors.;
2010 (10) ADJ 125 (DB)

10. Sunil Kumar Verma & ors.Vs St.of U.P. &
ors., (2016) 1 SCC 397

11. R. Muthukumar & ors.Vs The Chairman and
Managing Director Tangedco & ors.; 2022 SCC
OnLine SC 151.

(Delivered by Hon'ble Rajan Roy, J.)

1. A Single Judge of this Court
noticed conflicting opinions rendered by
different Division Benches on the question
of counting of past services rendered by the
concerned in the erstwhile Auto Tractors
Limited (hereinafter referred as 'ATL') for
the purposes of pensionary benefits payable
by the State Government consequent to
their absorption therein and referred the
matter for consideration by a Larger Bench.
Accordingly, by order of Hon'ble the Chief
Justice this Full Bench was constituted.
1796 INDIAN LAW REPORTS ALLAHABAD SERIES

2. We considered the questions
referred by the learned Single Judge to us
and rephrased/reframed the same as under:

"(i) Whether the Division Bench
judgments in the case of Shankatha Prasad
Mishra
(surpa);
Hridayesh
Dayal
Srivastava (surpa); Mirtuyanjay Prasad
Singh (surpa); Keshav Ram Pandey (supra)
and State of U.P. and others versus Amar
Pal Singh, [Special Appeal (Defective)
No.646 of 2016 decided on 25.10.2016]
have correctly held that the benefit of past
services rendered by retrenched employees
of Auto Tractors Limited, who have been
subsequently
absorbed
in
government
service, such as the petitioner, would count
towards
their
qualifying
service
for
purposes of calculation of retiral dues
payable by the State Government?

(ii) Whether a retrenched employee of
Auto
Tractors
Limited
such
as
the
petitioner, who got absorbed in State
Government Service subsequently as per
the relevant rules known as the Uttar
Pradesh
Absorption
of
Retrenched
Employees of Government or Public
Corporations in Government Service Rules
1991 are entitled to count their previous
services rendered by them under the
erstwhile employer i.e. the Auto Tractors
Limited, for calculation of qualifying
service for purposes of retirement benefits
under the U.P. Retirement Benefit Rules
1961 and other ancillary rules and
Government Orders in this regard as also
Government Orders dated 11.11.1993 and
10.07.1998 as modified vide Government
Order dated 28.12.2001? "

3. In addition to the above, we framed
the following question:

"(iii)
Whether
Division
Bench
judgment of this Court in the case of State
of U.P. versus Ram Shanker Gupta passed
in Special Appeal (Defective) No. 553 of
2015 decided on 27.11.2015 is in conflict
with the earlier decisions by Coordinate
Benches rendered in the case of Shankatha
Prasad Mishra (surpa); Hridayesh Dayal
Srivastava (surpa); Mirtuyanjay Prasad
Singh (surpa); Keshav Ram Pandey (supra)
and State of U.P. and others versus Amar
Pal Singh, [Special Appeal (Defective)
No.646 of 2016 decided on 25.10.2016] or
not? If so, which of the two sets of Division
Bench judgment lays down the law
correctly with regard to question No.2 as
rephrased by us herein above."

4. We have heard Mr. Amrendra Nath
Tripathi along with Mr. Ashutosh Shahi,
learned counsel for the petitioner, Mr. I.M.
Pandey and Mr. Arun Kumar Pandey,
learned Advocates Members of the Bar, as
also, Mr. Kuldeep Pati Tripathi, learned
Additional Advocate General assisted by
Mr. Alok Kumar Pandey, Mr. Vivek Shukla
and Mr. Prafull Yadav, learned counsel for
the State, at length.

5. Briefly stated the facts relevant to
the questions before us are that the
petitioner was appointed in erstwhile ATL
on the post of Executive (Personnel &
Administration) on 17.10.1984 and worked
in the said Company till 20.11.1990 i.e. till
its closure. The petitioner was appointed in
a Government Cell of ATL as Executive
(Personnel
&
Administration)
on
21.11.1990 and continued to work in the
said Cell till 06.03.1998. He was paid
salary regularly from the State Exchequer.
This Cell, it appears, was created for the
retrenched employees such as the petitioner
till their matters are considered for
absorption which was proposed at the
relevant
time.
Ultimately,
the
State
Government in exercise of its powers under
5 All. Anukul Prakash Vs. State of U.P.
1797
the
proviso
to Article
309
of
the
Constitution of India made Rules known as
Uttar Pradesh Absorption of Retrenched
Employees of Government or Public
Corporations in Government Service Rules,
1991 (hereinafter referred as '1991 Rules'.
The said 1991 Rules applied to posts under
rule making power of the Governor of Uttar
Pradesh under the proviso to Article 309 of
the Constitution.

6. It is not out of place to mention that
at the relevant time as many as 11 Public
Corporations were closed or wound up and
their employees retrenched.

7. As would be evident from the
nomenclature of the 1991 Rules they were
applicable to all such retrenched employees
whether they be of the Government or
Public
Corporations
who
had
been
absorbed in Government service. After
notification of the 1991 Rules, the State
Government issued a Government Order
dated 11.11.1993 on the subject of
eligibility and permissibility of retrenched
employees of ATL for the purposes of
Government
service.
Ultimately,
the
petitioner herein was absorbed in the
Government service on 07.03.1998 under
the aforesaid 1991 Rules and Government
Order dated 11.11.1993. He was absorbed
in the Directorate of Pichhra Varg Kalyan,
U.P. Under the 1991 Rules and the
Government Order referred hereinabove.
The last pay drawn by him in ATL was
protected on the date of his entry in the
Government
service.
Ultimately,
the
petitioner retired from Government service
on 31.10.2014 while working on the post of
Officer-on-Special Duty in the aforesaid
Directorate i.e. a Class II Post. After his
retirement, he filed a writ petition bearing
No.182 (SB) of 2015 (Anukul Prakash Vs.
State of U.P.) claiming benefit of past
services rendered by him in ATL for
pensionary benefits by the Government. In
pursuance to an order dated 18.05.2015
passed in the said petition for consideration
of his representation, the same was
considered and rejected by the Director on
19.08.2015. This order was put to challenge
before this Court by means of the instant
petition i.e. Writ Petition No. 1647 (SB) of
2015 (now Writ A No. 1001647 of 2015)
which was filed on 15.10.2015 and it is
during course of hearing in this petition that
the learned Single Judge noticed conflict of
opinion
amongst
different
Division
Benches and referred the matter to the
Larger Bench. It is against the aforesaid
background that the reference came up
before us and has been heard.

8. 1991 Rules referred hereinabove
are as under:

"THE
UTTAR
PRADESH
ABSORPTION
OF
RETRENCHED
EMPLOYRES OF GOVERNMENT OR
PUBLIO
CORPORATIONS
IN
GOVERNMENT SERVICE RULES, 1991

1. (1) Those rules may be called the
Uttar Pradesh Absorption of Retrenched
Employees of Government or Public
Corporations in Government Service Rules,
1991.

(2) They shall come into force atonce.

(3) They shall apply to the posts under
the rule making power of the Governor of
Uttar Pradesh under the proviso to Article
309 of the Constitution.

2. Unless there is anything repugnant
In the subject or context, tho expression-

(a) "appointing authority" in relation
to any post for which an employee was
retrenched means the authority empowered
to make appointment to such post;
1798 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) "Public corporation" means a
body corporate established or constituted
by or under any Uttar Pradesh Act except a
University or local authority constituted the
purpose of Local Self Government and
includes a Government Company within the
meaning of section 617 of the Companies
Act, 1956 In which the State Government
has prepondering Interest:

(c) "retrenched employee" means a
person who was appointed on a post under
the Government or a public corporation on
or before October 1, 1986 in accordance
with
the
procedure
laid
down
for
recruitment
to
the
post
and
was
continuously working in any post under the
Government of such corporation upto the
date of his retrenchment due to reduction
in, or winding up of, any establishment of
the Government or the public corporation,
as the case may be and in respect of whom
a certificate of being a retrenched employee
has been issued by his appointing authority.

(d) "service rules" means the rules
made under the proviso to Article 309 of
the Constitution, and where there are no
such rules, the executive instructions issued
by
the
Government,
regulating
the
recruitment and conditions of service of
persons appointed to tho relevant service.

3. (1) Notwithstanding anything to the
contrary contained in any other service
rules for the time being in force, the State
Government may by notified order require
the absorption of the retrenched employees
in
any
post
or
service
under
the
Government
and
may
prescribe
the
procedure for such absorption including
relaxation in various terms and conditions
of recruitment in respect of such retrenched
employee.

(2) The provisions contained in
relevant service rules shall be deemed to
have been modified to the extent of their
inconsistency with the provisions made in
the notified order referred to in sub-rule
(1)"

9. The terms 'Public Corporations' and
'Retrenched Employees' are defined in the
said Rules. As per sub-Rule (1) of Rule 3 of
1991 Rules, notwithstanding anything to
the contrary contained in any other service
rules for the time being in force, the State
Government may by notified order require
absorption of retrenched employees in any
post or service under the Government and
may prescribe the procedure for such
absorption including relaxation in various
terms and conditions of recruitment in
respect of such retrenched employees. As
per sub-Rule (2) of Rule 3 of 1991 Rules,
the provisions contained in relevant service
rules shall be deemed to have been
modified
to
the
extent
of
their
inconsistency with the provisions made in
the notified order referred to in sub-rule
(1).

10. The term 'Notified' is defined in
Section 4 (29A) of the U.P. General
Clauses Act, 1904 as under:

"(29-A) "notification" or "public
notification" shall mean a notification
published in the Gazette of the State and
the word "notified" shall be construed
accordingly."

11. Neither of the parties have placed
before us any notified order referable to
Rule 3 of 1991 Rules. They have, however,
brought on record a Government Order
dated 11.11.1993 which, according to them,
is referable to 1991 Rules and it is this
Government Order which governs the
conditions of service of the retrenched
employees of ATL who were absorbed in
the Government. Even though the said
order is not a notified order, nevertheless, it
5 All. Anukul Prakash Vs. State of U.P.
1799
appears that it is this Government Order
which has held the field so far as conditions
of absorption of retrenched employees of
ATL are concerned, therefore, we proceed
on the said premise.

12. The Government Order dated
11.11.1993 reads as under:

"la[;k% 3@3@3@91&dk0&2@93

izs"kd ]

dkfydk izlkn ]

lfpo]

mRRkj izns'k 'kkluA

lsok esa]

1- leLr izeq[k lfpo@lfpo] m0iz0 'kkluA

2- leLr foHkkxk/;{k ,oa izeq[k dk;kZy;k/;{k]
m0iz0A

3- leLr e.Myk;qDr@ftykf/kdkjh] m0iz0A

dkfeZd vuqHkkx&2

fo"k;% vkVks VSaDVlZ fyfeVsM 1⁄4,0Vh0,y01⁄2 ds
NVuh'kqnk deZpkfj;ksa@vf/kdkfj;ksa dks ljdkjh lsok
gsrq vgZrk ,oa vuqeU;rkA

egksn;]

mijksDr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk
gS fd ekuoh; n`f"Vdks.k viukrs gq;s 'kklu us vkVks
VaSDVlZ fyfeVsM 1⁄4,0Vh0,y01⁄2 ds NVuh 'kqnk
deZpkfj;ksa@ vf/kdkfj;ksa dks fuEukafdr 'krkZsa ds v/khu
ljdkjh lsok gsrq vgZrk ,oa vuqeU;rk iznku djus dk
fu.kZ; fy;k gS%&

1- ljdkjh lsok gsrq dsoy os gh deZpkjh ik=
gksaxs] tks fnukad 1 vDVwcj 1986 ;k mlds iwoZ
,0Vh0,y0 dh lsok esa fu;qDr gq;s gksa rFkk ,0Vh0,y0
ds cUn gksus dh frfFk rd fujUrj dk;Zjr gksA

2- yksd lsok vk;ksx dh ifjf/k ds ckgj]
v/khuLFk lsok p;u vk;ksx dh ifjf/k ds Hkhrj ;k
ckgj ds inksa ij **mi;qDrrk** ds vk/kkj ij fu;qfDr
gsrq vgZrk ekuh tk;sxhA ,slh lsokvksa@inksa gsrq ftuds
fy;s
HkrhZ@p;u
ds
fufeRRk
fdlh
lsok
fu;ekoyh@dk;Zdkjh vkns'k esa dksbZ izfdz;k fo|eku
gks] NVuh'kqnk dkfeZdksa ds fo"k; esa mDr izfdz;k ls
f'kfFkyrk cjrrs gq;s **mi;qDrrk** vkadus ds fy,
vyx ls mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds
NVuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu
fu;ekoyh] 1991 iz[;kfir dh x;h gSA

3- ljdkjh lsok esa HkrhZ gsrq fu/kkZfjr U;wure
'kSf{kd vgZrk] vuqHko rFkk vk;q fo"k;d 'krZsa iwjk djus
okys ,0Vh0,y0 ds deZpkjh@vf/kdkjh gh mDr
lsok;kstu gsrq ik= gksaxsA ;fn ,sls deZpkjh ,0Vh0,y0
esa ,sls in ij fu;qDr gq;s Fks ftudk drZO; rFkk
mRrj nkf;Ro ml in ds lEcfU/kr gS ftl in ds
fy;s ;s vc vH;FkhZ gS vkSj viuh fu;qfDr ds le;
mijksDr in ds fy;s fu/kkZfjr 'kSf{kd ;ksX;rk j[krs Fks]
rks ;g le>k tk;sxk fd os orZeku in ds fy;s
fu/kkZfjr 'kSf{kd vgZrk iw.kZ djrs gSaA

4- ,0Vh0,y0 ds vf/kdkjh@deZpkjh ds fy;s
ljdkjh lsok esa in fo'ks"k ij ykxw vf/kdre vk;q
lhek dk izfrcU/k ykxw ugha gksxkA

5- lsok esa fy;s tkus ds fnukad ls jkT;
deZpkfj;ksa ij ykxw leLRk fu;e tSls Hkfo"; fuokZg
fuf/k] vodk'k] isa'ku vkfn mu ij Lor% ykxs gksaxsA

6- ,0Vh0,y0 dh lsok esa dkfeZdksa dks vkgfjr
vfUre osru dks laj{k.k iznku fd;k tk;sxk ftlds
fo"k; esa foRr foHkkx dh lgefr ls iz'kklfud foHkkx
}kjk i`Fkd ls vkns'k tkjh fd;s tk;saxsA

7- mDr lsok;kstu lh/kh HkrhZ ds miyC/k inksa
ds fo:) gh fd;k tk;sxk rFkk lEcfU/kr in ij
lh/kh HkrhZ ls fu;qDr dkfeZdksa dh T;s"Brk fu/kkZfjr
jgus fo"k;d ykxw uhfr ds vuqlkj mDr lsok;kstu
dh frfFk ls T;s"Brk iznku dh tk;sxhA

8- ,0Vh0,y0 esa rSukr lewg **x** rFkk **?k** ds
ftu deZpkfj;ksa dh lsok;sa lekIRk dh tk;sxh mu lHkh
ds uke lEcfU/kr lsok;kstu dk;kZy;ksa esa ,d vyx
iwy esa ,0Vh0,y0 esa mudh ofj"Brk dze esa] O;ofLFkr
fd;s tk;saxs vkSj lsok;kstdksa ls ekax izkIr gksus ij
rn~uqlkj uke izsf"kr fd;s tk;saxsA

9- ;g fu;qfDr;ka djrs le; vkj{k.k lEcU/kh
fu;eksa dk vuqikyu fd;k tk;sxkA

10- ferO;f;rk ds n`f"Vdks.k ls 5 izfr'kr in
fjDr j[ks tkus

lEcU/kh izkfo/kku bu ij ykxw u gksaxsA

11- mijksDr fn'kk funsZ'kksa ds vfrfjDr ;g Hkh
dguk izklafxd u gksxk fd ,0Vh0,y0 ds deZpkfj;ksa
ds lanHkZ esa le;-le; ij tks ekuuh; U;k;ky;ksa ds
vkns'k gq;s gSa mudk leknj djrs gq;s vxzlj dk;Zokgh
dh tk;sA

Hkonh;

g0 viBuh;

1⁄4dkfydk izlkn1⁄2

lfpoA"

13. The Government Order refers to
eligibility and permissibility of absorption
of retrenched employees of ATL. Para 1 of
the Government Order mentions that only
such employees would be eligible for
1800 INDIAN LAW REPORTS ALLAHABAD SERIES
absorption who had been appointed in the
service of ATL on or prior to 01.10.1986.
This
date
corresponds
to
the
date
mentioned in the definition of retrenched
employees contained in 1991 Rules. As per
para
2
of
the
Government
Order
entitlement of such retrenched employees
for appointment in Government service
would be determined on the basis of their
fitness/utility and the service rules of the
concerned department where they are to be
appointed would be treated as relaxed for
the purposes of such appointment. It refers
to 1991 Rules regarding their entitlement
for such appointment. Now, the 1991 Rules
speak
of
absorption,
therefore,
the
Government Order dated 11.11.1993 is also
to be understood as prescribing the
procedure for such absorption which is
referable
to
1991
Rules.
The
term
'absorption' is mentioned in Para 3 of the
aforesaid
Government
Order
dated
11.11.1993 also. Such absorption was
proposed to be made against the post of
direct recruitment, obviously so. Para 5 of
the said Government Order mentions that
from the date of being taken into
Government
service
all
the
Rules
applicable to the Government employees
such as GPF, Leave, Pension, etc. would
automatically
be
applicable
to
such
retrenched employees. As per Para 6 of the
Government Order, the last pay drawn by
such employees in ATL would stand
protected and a separate Government Order
would be issued in this regard. As per para
7 of the said Government Order, the said
retrenched employees on absorption against
the post of direct recruitment would be
given seniority viz-a-viz the direct recruits
from the date of their absorption, meaning
thereby, the benefit of past services
rendered by them in ATL would not be
counted for the purposes of determining
their
seniority
in
the
Government
department. Rules of reservation were also
to be applicable while absorbing. There is
no dispute between the parties that it is this
Government Order which has governed
their conditions of absorption.

14. The claim of the petitioner for
counting the past services rendered by him
in ATL for calculating the qualifying
service for purposes of pension on his
retirement
while
working
in
the
Government is a Government Order dated
10.07.1998 and certain judgments of this
Court wherein the said benefit has been
given.

15. This Government Order dated
10.07.1998 is the only document relied
upon by the petitioner in support of his
claim and there is no such specific
provision in the 1991 Rules, unless, of
course, we find that the Government Order
dated 10.07.1998 is referable to Rule 3 or
even if it is not a notified order in terms
thereof we find it to be applicable to the
facts of the case just as the Government
Order dated 11.11.1993 is applicable. The
judgments relied by the petitioner would, of
course, be considered by us thereafter, but,
first of all we have to consider applicability
of Government Order dated 10.07.1998.
Government Order dated 10.07.1998 reads
as under:

"la[;k lk&3&728@nl&98&901&98

isz"kd ]

Jh vkyksd jatu ]

lfpo]

mRRkj izns'k 'kkluA

lsok esa]

leLr foHkkxk/;{k@izeq[k dk;kZy;k/;{k] mRrj
izns'kA

y[kuÅ% 10 tqykbZ] 1998

fo"k;%& jkT; ljdkjksa ds v/khu Lok;Rr'kklh
fudk;ksa esa lafofy;u ekaxus okys dsUnzh; ljdkjh rFkk
dsUnzh; Lok;Rr fudk;ksa ds deZpkfj;ksa rFkk dsUnzh;
5 All. Anukul Prakash Vs. State of U.P.
1801
ljdkj ds rFkk dsUnzh; Lok;Rr fudk;ksa esa lafofy;u
ekaxus okys jkT; ljdkj ds deZpkfj;ksa dh isa'ku ds
iz;kstu ls lsok dk fxuk tkukA

egksn;]

mi;qZDr fo"k; ij eq>s ;g dgus dk funsZ'k gqvk
gS fd bl jkT; ljdkj esa ;g O;oLFkk fo|eku gS fd
dsUnz ljdkj dk deZpkjh jkT; ljdkj esa lsok
LFkkukUrj.k ds vk/kkj ij vkrk gS ;k mUgha
ifjfLFkfr;ksa esa jkT; ljdkj dk deZpkjh Hkkjr ljdkj
ds dk;kZy; esa tkrk gS] rks tgk¡ ls og lsokfuo`Rr
gksxk ogh ljdkj mlds uSo`fRrd ykHkksa dk Hkqxrku
djsxhA dkQh le; ls ;g ekax dh tk jgh gS fd
dsUnz ljdkj ds Lok;Rr'kklh fudk; dk deZpkjh
jkT; ljdkj ds Lok;Rr'kklh fudk; esa jkT; ljdkj
esa izfrfu;qfDr ij vk, ;k lh/ks lsok xzg.k djsa ;k
mUgha ifjfLFkfr;ksa esa dsUnz ljdkj ds Lok;Rr'kklh
fudk; dk deZpkjh Hkkjr ljdkj ds Lok;Rr'kklh
fudk; esa izfrfu;qfDr ij ;k lh/kh HkrhZ ls Tkk;s rks
mldh lEiw.kZ lsok vof/k ds vk/kkj ij uSo`fRrd ykHk
fn;s tk;saA blds vfrfjDr jkT; ljdkj ds vUrxZr
gh jkT; ljdkj dk deZpkjh jkT; ljdkj ds ,sls
midze@fuxe esa LFkkukUrj.k@lh/kh HkrhZ@izfrfu;qfDr
ds vk/kkj ij tkrk gS ;k mUgha ifjfLFkfr;ksa esa jkT;
ljdkj ds midze@fuxe dk deZpkjh jkT; ljdkj esa
vkrk gS rks iz'uxr lqfo/kk mUgsa Hkh miyC/k djk;h
tk;sA

2& 'kklu }kjk lE;d fopkjksijkUr fuEufyf[kr
'krksaZ ds v/khu ;g fu.kZ; fy;k x;k gS fd jkT;
ljdkj dk deZpkjh Hkkjr ljdkj ds midze@fuxe esa
LFkkukUrj.k@izfrfu;qfDr ds vk/kkj ij tkrk gS vkSj
lafoyhu gks tkrk gS ;k mlh ifjLFkfr esa Hkkjr
ljdkj dk deZpkjh jkT; ljdkj ds midze@fuxe esa
vkrk gS vkSj lafoyhu gks tkrk gS rks ;fn nksuksa in
isa'kuscqy gSa rks mlds }kjk nksuksa inksa ij dh xbZ vgZ
lsok ds ;ksx ij uSo`fRrd ykHk vuqeu; gksaxsA blds
vfrfjDr jkT; ljdkj ds vUrxZr gh jkT; ljdkj
dk deZpkjh jkT; ljdkj ds midze@fuxe esa
LFkkukUrj.k@lh/kh HkrhZ@izfrfu;qfDr ds vk/kkj ij
tkrk gS ;k jkT; ljdkj esa vkrk gS] tgk¡ jkT;
ljdkj ds lacaf/kr midze@fuxe esa isa'ku dh lqfo/kk
miyC/k gks ,oa lacaf/kr deZpkjh dk lafofy;u
lsokfuo`Rr gksus okys midze@fuxe@ljdkj esa gks
x;k gks] rks ;fn nksuksa gh in isa'kuscqy gksa] rks mlds
}kjk nksuksa inksa ij dh xbZ vgZ lsok ij uSo`fRrd ykHk
vuqeU; gksaxs vkSj nksuksa vof/k;ksa dks tksM+dj lsok
uSo`fRrd ykHkksa dk Hkqxrku mlh laLFkku@ljdkj }kjk
fd;k tk;sxk tgk¡ ls og vfUre :i ls lsokfuo`Rr gks
jgk gSA bl izdkj ds ekeyksa esa deZpkjh ij ogh isa'ku
fu;e ykxw gksaxs tSlh fd ml ljdkj@midze@fuxe
esa ykxs gksaA

1⁄411⁄2- tc fdlh isa'ku;qDr laxBu esa dk;Z dj jgs
jkT; ljdkj ds fdlh deZpkjh dks fdlh Lok;Rr
fudk; esa lafofy;u dh vuqefr nh tkrh gS rks mlds
}kjk ljdkj ds v/khu dh x;h lsok dks Lok;Rr
fudk; ds v/khu isa'ku ds fy, vkxf.kr djkus dh
vuqefr gksxh pkgs mDr deZpkjh ljdkj esa vLFkk;h
jgk gks vFkok LFkk;hA fdUrq isa'ku laca/kh lqfo/kk;sa
dsoy rHkh feysaxh tcfd vLFkk;h lsok ds ckn mudk
LFkk;hdj.k gks x;k gksA ;fn og Lok;RRk'kklh fudk;
esa vLFkk;h deZpkjh ds :i esa lsokfuo`Rr gks tkrk gS
rks mls lsokUr izlqfo/kk;sa mlh izdkj feysaxh tks
lkekU;r% ljdkj ds v/khu vLFkk;h deZpkfj;ksa dks
miyC/k gSaA Lok;Rr fudk;ksa ds tks deZpkjh jkT;
ljdkj ds v/khu LFkk;h rkSj ij lafoyhu gks tkrs gSa
muds ekeyksa esa Hkh ogh fdz;kfof/k ykxw gksxhA

Lok;Rr fudk;@ljdkj esa tSlk Hkh ekeyk tks
lafofy;u dh rkjh[k rd dh lsok ds fy, vuqikfrd
njksa ij isa'ku@lsok miknku@lsokUr miknku rFkk
e`R;q vkSj lsokfuo`fRr izlqfo/kkvksa dk Hkqxrku djds
ljdkj@Lok;Rr fudk; vius isa'ku nkf;Ro dks iwjk
djsxhA vuqikfrd njksa ij isa'ku dh jkf'k le;-le;
ij ;Fkk la'kksf/kr 'kklukns'kksa dks /;ku esa j[kdj
fuf'pr dh tk;sxhA

2- va'knk;h Hkfo"; fuf/k izlqfo/kkvksa dk gdnkj
deZpkjh ;g fodYi nsxk fd ;g ;k rks Lok;Rr'kklh
fudk; ls feyus okyh va'knk;h Hkfo"; fuf/k izlqfo/kk;sa
izkIr djsxk vFkok mls jkT; ljdkj ds jktdks"k esa
tek djsxk vkSj jkT; ljdkj esa ias'ku ds fy, vgZ
lsok ds :i esa fxus tkus dk fodYi nsxkA blh izdkj
ls ljdkjh lsod Lok;Rr fudk; dh lsok esa ;ksxnku
djus ij 'kklu ds v/khu lkekU; Hkfo"; fuf/k [kkrs esa
tek /kujkf'k lacaf/kr Lok;Rr fudk; dks Hkqxrku dj
nh tk;sxhA ,slk fodYi lafofy;u dh rkjh[k ls ,d
o"kZ ds Hkhrj fn;k tk ldsxkA ;fn fu/kkZfjr vof/k ds
Hkhrj fodYi ugha fn;k tkrk gS rks ;g eku fy;k
tk;sxk fd deZpkjh us va'knk;h Hkfo"; fuf/k@lkeku;
Hkfo"; fuf/k izlqfo/kk;sa izkIr djus ds fy, fodYi ns
fn;k gSA ,d ckj fn;k x;k fodYi vfUre gksxkA

3- tc fdlh Lok;RRk'kklh fudk; ds fdlh
deZpkjh dks dsUnzh; ljdkj@jkT; ljdkj ds v/khu
LFkk;h rkSj ij lafoyhu dj fn;k tkrk gS rks mlds
lkeus nks fodYi jgsaxs vFkkZr~ ;k rks ;g Lok;Rr'kklh
fudk; }kjk ns; va'knk;h Hkfo"; fuf/k izlqfo/kk;sa izkIr
dj ysa vkSj ljdkj esa u;s fljs ls ukSdjh 'kq: djs ;k
va'knk;h Hkfo"; fuf/k esa fu;ksDrk ds va'knku vkSj ml
ns; C;kt lfgr] lEiw.kZ jkf'k jkT; ljdkj ds [kkrs esa
tek dj nsa vkSj ljdkj ds v/khu isa'ku iz;kstuksa gsrq
1802 INDIAN LAW REPORTS ALLAHABAD SERIES
vgZ lsok ds :i esa tqM+okus dk fodYi ns nsA ;g
fodYi lafofy;u dh rkjh[k ls ,d o"kZ ds Hkhrj
fn;k tk;sxkA ;fn fu/kkZfjr vof/k ds Hkhrj dksbZ
fodYi ugha fn;k tkrk gS rks ;g le> fy;k tk;sxk
deZpkjh us va'knk;h Hkfo"; fuf/k@ lkekU; Hkfo";
fuf/k izlqfo/kk;sa izkIRk djus dk fodYi fn;k gSA ,d
ckn fn;k x;k fodYi vfUre gksxkA

3- jkT; ljdkj ds v/khu Hkkjr ljdkj }kjk
fuxZr vkns'k fnukad 7&2&1986 ls izHkkoh ekus
tk;saxsA

Hkonh;]

vkyksd jatu]

lfpo] foRRkA "

16. The aforesaid Government Order
dated 10.07.1998 was modified/amended
vide subsequent Government Order dated
28.12.2001 and it was clarified that
Government Order dated 10.07.1998 was
applicable to autonomous bodies and term
'undertakings/corporations' was incorrectly
mentioned in the Government Order dated
10.07.1998.
Accordingly,
Government
Order
dated
10.07.1998
was
clarified/modified,
meaning
thereby,
reference
to
'undertakings/corporations'
therein had to be understood as reference to
autonomous bodies. Further, the term
'autonomous bodies' was to mean such
bodies which were financially funded
entirely or 50% of their expenses was met
by the Government and services under such
bodies was pensionable. Petitioner claims
that ATL was wholly owned by State
Government, but, has not proved that his
services in ATL were pensionable.

17 On a bare perusal of the subject of
the above quoted Government Order, it
would be evident that it was supposed to
address the demand of Central Government
employees
and
the
employees
of
autonomous bodies under the control of
Central Government as also demand of
State
Government
employees
seeking
absorption in Central Government or
autonomous bodies under the control of
Central Government for counting their
services, however, when we peruse the
body of the Government Order, we find, it
also deals with such claims of employees of
autonomous bodies who may have been
absorbed in the State Government.

18. In the said Government Order
dated 10.07.1998 there is a caveat for
counting of past services rendered in the
erstwhile department/autonomous bodies
i.e. services in both the establishment
should be pensionable only then past
services under the autonomous body would
be countable for pensionary benefits. In the
case at hand though in para 7 of the writ
petition a bald assertion has been made that
services in ATL were pensionable, but, no
documentary proof has been filed in
support thereof. In fact, by means of
supplementary affidavit dated 22.02.2026,
petitioner realizing his incorrect averment
in third line of paragraph 7 of the writ
petition and 3rd line of Ground (D) of the
writ petition has stated as under:

"It is further stated that in the 3rd line
of paragraph 7 of the writ petition and 3rd
line of ground (D) of the writ petition it has
wrongly been stated that the post on which
petitioner was working in the erstwhile
Auto Tractors Limited was pensionable.
The said mistake was not intentional but
due to some inadvertence. It is clarified
that petitioner's post in the erstwhile Auto
Tractors Limited was not pensionable."

19. The order impugned in the writ
petition
by
petitioner's
representation
claiming counting of past services rendered
in ATL for pensionary benefits also says
that services in ATL were not pensionable,
therefore,
Government
Order
dated
10.07.1998 was not applicable. Same
5 All. Anukul Prakash Vs. State of U.P.
1803
averment has been made in para 3(a) of
counter affidavit of State which has been
baldly denied by petitioner in his rejoinder
affidavit without any proof in support
thereof. Thus, the services of petitioner in
ATL were not pensionable.

20. Most important, we find that the
Government Order applies to only such
employees of autonomous bodies who had
come into the service of Government by
way
of
transfer/direct
recruitment/deputation and thereafter had
been absorbed prior to their retirement.
Thus, in order to be covered by the said
Government Order dated 10.07.1998, the
employee
should
have
come
into
Government service by way of transfer or
direct
recruitment
or
deputation
and
thereafter should have been absorbed.
Unless this condition is fulfilled, the
Government Order dated 10.07.1998 would
not apply in his case.

21. In the case at hand, the petitioner
did not join the service of the Government
either by transfer of service or direct
recruitment nor did he come on deputation
to it. He was a retrenched employee of
erstwhile ATL and on this basis he was
absorbed.

22. ATL was closed on 20.11.1990
and as absorption of retrenched employee
was to be considered, but, there was no
provision at that time, therefore, a Cell was
created in the Government wherein such
employees were allowed to join. Thus, even
this engagement from 21.11.1990 to
06.03.1998 was in a Cell separately created
for retrenched employees of ATL and it was
not as if the petitioner had been appointed
in Government service by way of transfer
of
service
or
direct
recruitment
or
deputation. While working in the said Cell,
before his regularization in Pichhra Varg
Kalyan, petitioner was not a member of
service
in
any
Department
of
the
Government. It was only an interim
arrangement, therefore, the said period was
not a substantive service rendered under the
Government. The arrangement was made
only to facilitate the ultimate absorption of
petitioner and other retrenched employees
like him.

23. The subsequent absorption of the
petitioner in the Directorate of Pichhra Varg
Kalyan on 07.03.1998 was in terms of 1991
Rules and the Government Order dated
11.11.1993 referred hereinabove. Both, the
1991
Rules
and
Government
Order
11.11.1993 were in respect of absorption of
retrenched employees. They were not in
respect of absorption of employees who
have joined Government service either on
the basis of transfer of service or direct
recruitment or deputation. The services of
petitioner in ATL were not pensionable
whereas Government Order dated 10.07.1998
in cases where services/post in both the
establishments were pensionable. The fact
that petitioner was absorbed against a post of
direct recruitment is not relevant for the
purpose of applicability of Government
Order dated 10.07.1998. Thus, the petitioner
and other retrenched employees of ATL who
were absorbed formed a different class viz-aviz those governed by the Government
Orders dated 10.07.1998 and 28.12.2001. The
Government Order dated 11.11.1993 itself
mentions that absorption was being done on
humanitarian consideration. The petitioner
was absorbed as a retrenched employee.
Thus, on the face of it, the Government Order
dated 10.07.1998 does not apply in his case.

24. We have perused the 1991 Rules
and there is nothing in the said Rules which
may permit counting of past services
1804 INDIAN LAW REPORTS ALLAHABAD SERIES
rendered by the petitioner in ATL for the
purposes of calculating his qualifying
service for pensionary benefits payable by
the
Government
consequent
to
his
retirement from Government service after
absorption therein. We have also perused
the Government Order dated 11.11.1993
and we do not find any provision therein
permitting the said benefit.

25. Paragraph 7 of the Government
Order dated 11.11.1993 also does not
permit counting of services rendered by the
petitioner in ATL for the purposes of
determining his seniority viz-a-viz direct
recruits in the absorbed department.

26. Paragraph 5 of the Government
Order dated 11.11.1993 merely says that all
the Rules applicable to the Government
servants would apply to such retrenched
employees from the date of their entry into
Government service.

27. Now, in this context, we find that
the pensionary entitlements of Government
servants are regulated by rules known as
U.P. Retirement Benefits Rules, 1961
(hereinafter referred as '1961 Rules') and
Civil
Service
Regulations
(hereinafter
referred as 'CSR') so far as they are not
inconsistent with the aforesaid 1961 Rules.
These Rules are applicable to all Offices
under the rule making power of the
Governor other than those who retired
before the date of coming into force of the
said Rules. Sub-Rule (2) of Rule 2 says that
pension provisions contained in CSR shall
continue to apply to the Officers governed
by these Rules, except so far as they are
inconsistent with any of the provisions of
these Rules. Rules 3 (8) of 1961 Rules
defines the term 'qualifying service', which
is to be calculated for the purposes of
determination of pensionary benefits and it
reads as under:

"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 workcharged establishment; and

(iii) periods of service in a post paid
from contingencies shall also count as
qualifying service.

Note. If service rendered in a nonpensionable establishment work-charged
establishment or in a post paid 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."

Regulation 368 of the CSR reads as
under:

"368. Service does not qualify unless
the officer holds a substantive office on a
permanent establishment."

28. The proviso to Rule 3(8) clearly
mentions inter alia that service under the
Government shall count as qualifying
service. We may in this context refer to
Regulation 361 which reads as under:

"361. The service of an officer does
not qualify for pension unless it conforms
to the following three conditions-
5 All. Anukul Prakash Vs. State of U.P.
1805

First-The service must be under
Government.

Second-The
employment
must
be
substantive and permanent.

Third-The service must be paid by
Government.

These three conditions are fully
explained in the following section."

29. All the above quoted three
conditions are required to be satisfied.
Thus, as per the aforesaid provision of the
CSR also, service of an Officer would
qualify for pension only if the service is
under the Government and it is paid by the
Government, apart from the fact that
employment must be substantive and
permanent. The services rendered by the
petitioner in ATL was not a service under
the Government nor was it paid by the
Government and there is nothing on record
to establish otherwise. The ATL was a
Government company having separate
entity
as
a
Government
company
incorporated under the Companies Act,
1956. Thus, as per pensionary Rules
applicable in the Government as the service
had to be under the Government and also
paid by the Government, to qualify for
pensionary benefits, which was not so in
the case of petitioner, therefore, in view of
these Rules also, it cannot be counted for
the aforesaid purpose.

30. The amendment in the 'qualifying
service' defined in Rule 3(8) of the Rules
1961 by the U.P. Qualifying Service for
Pension and Validation Act, 2021 does not
change the legal position so far as the
questions before us are concerned. Thus,
Rules of the Government applicable in this
regard also do not support the claim of the
petitioner for counting of services rendered
in the ATL for purposes of grant of
pensionary benefits by the Government.

31. We, thus, do not find any
provision in the Rules or any Government
Order referable to the 1991 Rules which
could entitle a retrenched employee of ATL
for counting of his services rendered in the
said concern for grant of pensionary
benefits by the Government.

32. We may at this very stage refer to
a Division Bench judgment of this Court
dated 06.10.2016 rendered in Writ A 49126
of 2016 (Pooran Singh Manral and
another vs. State of U.P. and others)
wherein a similar view has been taken and
which we find as laying down the law
correctly on the subject, although it was in
the context of a claim by an employee of
another Corporation absorbed in another
department, but, in the said case also a
Government Order on the same lines as the
Government Order dated 11.11.1993 and
the same Rules 1991 were considered.

33.

The
1991
Rules
were
subsequently rescinded by the Retrenched
Employees of Government or Public
Corporations
in
Government
Service
(Rescission of Rules), 2003. By the said
Rules, the 1991 Rules were rescinded w.e.f.
08.04.2003.
Only
two
things
were
protected; one is the benefit of absorption
already granted and secondly; the last pay
protection in this very context. All
Government Orders referable to Rule 3
were
also
annulled
w.e.f 08.04.2003
subject, of course, to the benefit already
granted. In addition to it, those retrenched
employees whose services had not been
absorbed till promulgation of the said Rules
i.e. till 08.04.2003, they were given
relaxation in age for the purposes of
recruitment on Group 'C' and 'D' posts
outside the purview of U.P. Public Service
Commission. Subsequently, a legislative
enactment
known
as
Retrenched
1806 INDIAN LAW REPORTS ALLAHABAD SERIES
Employees of Government or Public
Corporations
in
Government
Service
(Rescission of Rules) Act, 2009 was
promulgated by which the 1991 Rules were
rescinded w.e.f. 09.05.1991 i.e. from the
very date they were promulgated. This
enactment, thus, gave retrospective effect
to the rescission of Rules 1991 from
09.05.1991. While rescinding the said
Rules
with
retrospective
effect
from
09.05.1991
again
two
things
were
protected, one the benefit of absorption
already granted prior to 08.04.2003 and
secondly; the last pay drawn by such
retrenched
employee
who
had
been
absorbed. In addition, it was provided that
those retrenched employees who had not
been absorbed till 08.04.2003, they would
be given relaxation in upper age limit for
direct recruitment to such Group 'C' and
'D' posts which are outside the purview of
U.P. Public Service Commission to the
extent he has rendered his continuous
service in substantive capacity in the
concern Government department or Public
Corporations/Companies. Thus, these Rules
of 2003 and 2009 also do not provide for
counting of past services rendered by the
retrenched employees of ATL, after their
absorption in a Government service for
pensionary benefits.

34. Now, coming to the decisions on
the
subject
and
conflicting
opinions
expressed by different Division Benches of
this Court.

35. So far as judgment dated
04.04.2012 passed in the case of Hridayesh
Dayal Srivastava vs. State of U.P. and
others (Writ Petition No. 410 (SB) of
2010) is concerned, the question no. 2
which we have framed was not at all
involved therein nor was it argued nor
considered.