# Ashok Tewari v. State of U.P. & Anr

- **Citation:** (2023) 12 ILRA 443
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-15
- **Case number:** Writ-A No. 23244 of 2016
- **Bench:** Rajan Roy, Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-tewari-v-state-of-u-p-anr-49599
- **Pages:** 14

## Headnote

C.S.C., Alok Trivedi

Held:
Employees whose services are regularized on or
after 01.04.2005, even if initially appointed prior
to that date on daily-wages or temporary basis,
shall be governed by the New Pension Scheme
(NPS), and not by the Old Pension Scheme
governed under the U.P. Retirement Benefits
Rules, 1961 and Civil Services Regulations. The
concept of 'qualifying service' under the old
scheme has no application under the NPS.
Therefore, past service rendered prior to
regularization,
including
daily
wage
or
temporary service, cannot be counted for
pension under the NPS. The amendment of Rule
2(3) of the 1961 Rules explicitly excludes its
application to those entering service on or after
01.04.2005. The distinction between date of
initial engagement and date of regularization is
vital-regularization
alone
marks
commencement of pensionable service.

Case Law Discussed:

## Text

_Characters 0–39,857 of 47,304. This is a partial read: ask again with offset=39857 for what follows._

12 All. Ashok Tewari Vs. State of U.P. & Anr.
443
discretionary
power
conferred
to
constitutional courts under the Constitution
of India can mould the relief and grant the
same to subserve the interest of justice.
Accordingly, the aforesaid contention of the
learned Additional Advocate General does
not stand to merit in the present case and
deserves to be rejected.

137. Thus, for the reasons given
above, the action of the respondents in
denying the benefit of the Old Pension
Scheme to the petitioners is declared
illegal. Accordingly, all the writ petitions
are allowed and respondents are directed to
place the petitioners and other similarly
situated employees under the Old Pension
Scheme. There shall be no order as to costs.
----------
(2023) 12 ILRA 443
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.12.2023

BEFORE

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

Writ-A No. 23244 of 2016

Ashok Tewari ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Rajendra Prasad Shukla

Counsel for the Respondents:
C.S.C., Alok Trivedi

Held:
Employees whose services are regularized on or
after 01.04.2005, even if initially appointed prior
to that date on daily-wages or temporary basis,
shall be governed by the New Pension Scheme
(NPS), and not by the Old Pension Scheme
governed under the U.P. Retirement Benefits
Rules, 1961 and Civil Services Regulations. The
concept of 'qualifying service' under the old
scheme has no application under the NPS.
Therefore, past service rendered prior to
regularization,
including
daily
wage
or
temporary service, cannot be counted for
pension under the NPS. The amendment of Rule
2(3) of the 1961 Rules explicitly excludes its
application to those entering service on or after
01.04.2005. The distinction between date of
initial engagement and date of regularization is
vital-regularization
alone
marks
commencement of pensionable service.

Case Law Discussed:

1. Kaushal Kishore Chaubey & anr. Vs St. of U.P.
& anr., Writ-A No. 5817 of 2020

2. Brahmanand Singh & anr. Vs St. of U.P. &
anr., 2017 (11) ADJ 49

3. Namo Narain Rai's case (cited)

4. Prem Singh Vs St. of U.P. & anr., Civil Appeal
No. 6798 of 2019

Reference Answered:
Regularization
is
the
decisive
date
for
determining applicability of NPS. Employees
regularized after 01.04.2005, even if engaged
earlier, fall under the NPS regime. The earlier
temporary service is immaterial for pension
under NPS.

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

1. Heard Sri Rajendra Prasad Shukla,
learned counsel for the petitioner, learned
Standing counsel appearing on behalf of
the respondent no. 1. Nobody appears on
behalf of the respondents no. 2 & 3 despite
the name of Sri Alok Trivedi, Advocate
being
indicated
from
the
side
of
respondents.

2. This bench has been formed by the
order of Hon'ble the Chief Justice dated
18.05.2023 upon a reference being made by
the Hon'ble Single Judge vide order dated
444 INDIAN LAW REPORTS ALLAHABAD SERIES
26.05.2022 for consideration of questions
by a larger bench.

3. For the sake of convenience, the
questions as referred for consideration by a
larger bench framed by the Hon'ble Single
Judge are as under:-

"1. Whether in the case of an
employee
whose
services
have
been
regularized on or after 1.4.2005, and in
respect of whom the pensionary rules as
applicable to State Government Servants,
apply, the new pension scheme, which has
come into force with effect from 1.4.2005,
shall apply, or, in view of his initial
appointment prior to 1.4.2005 which may
be on daily-wages or of a purely temporary
nature (not a regular appointment in
accordance with Rules), the old pension
scheme governed by the Rules 1961 and the
provisions of Civil Services Regulations
etc., would be applicable?

2. Whether, in view of Rule 2(3)
of the Rules 1961, as amended vide
notification dated 07.04.2005, making the
provisions
of
the
said
Rules
1961
inapplicable to employees entering services
and posts on or after April 1, 2005, thereby
also making Rule 3(8) thereof pertaining to
the qualifying service inapplicable, the
services rendered by such employees prior
to their regularization, whether on dailywages or any other temporary basis and/or
prior to 1.4.2005, are at all relevant and
whether
the
same
would
have
any
relevance in the context of the New Pension
Scheme, as, there is no concept of
'qualifying service' under the new Pension
Scheme?

3.
Whether
the
judgment
rendered in Writ-A No. 5817 of 2020,
Kaushal Kishore Chaubey & ors. V. State
of U.P. & ors., on the aforesaid issues lays
down the law correctly or it is the judgment
rendered in Bramha Nand Singh's case
(supra) and Namo Narain Rai's case
(supra) which lays down the law correctly."

4. Although we are only required to
answer the aforesaid questions which have
been referred to us, but, in order to
facilitate a better understanding of the
background in which the reference order
was passed by the learned Single Judge on
26.05.2022 as also the context in which the
questions before us have arisen for being
answered by us, it is necessary to give the
facts of the case, even if, in brief, which we
proceed to do hereinafter.

5. The instant writ petition has been
filed praying for the following main
reliefs/amended reliefs:-

"(a) To issue a writ, order or
direction in the nature of mandamus thereby
commanding
the
opposite
parties
to
immediately release the retiral dues to the
petitioner on the post of Chaprasi (Peon)
including the pension, gratuity, provident fund,
leave encashment and group insurance
counting the services of the petitioner since year
1986 upto the date of retirement i.e 30.09.2015
in view of the order dated 03.11.2020 passed by
the Director, U.P Hindi Sansthan, Lucknow.

(b) To issue a writ order or
direction in the nature of mandamus
thereby commanding the opposite parties to
provide the simple interest at the rate of 12
% per annum on retiral dues paid to the
petitioner.

(bb) To issue a writ order or
direction in the nature of certiorari thereby
quashing
the
impugned
order
dated
27.01.2016 passed by the opp. party no. 1
contained in annexure no. 11."

6. Bereft of unnecessary details, the
case set forth by the learned counsel for the
12 All. Ashok Tewari Vs. State of U.P. & Anr.
445
petitioner is that the petitioner was engaged
as Daily Wages Worker in the U.P. Hindi
Sansthan which is an autonomous body
funded and controlled by the State
government, however, it has its own Rules
and Regulations approved by its Executive
Body and the State. The services of the
petitioner were terminated sometime in 1993,
whereupon he filed a writ petition bearing
Writ Petition No.9374 (SS) of 1993 and an
interim order was passed on 30.11.1993 in
the said petition staying termination of his
service with the direction that he shall be
allowed to work and be paid salary. During
pendency of the writ petition services of the
petitioner were regularized on a Class IV post
of Peon vide order dated 31.10.2005 in terms
of the Uttar Pradesh Regularization of Daily
Wages Appointments on Group "D" Posts
Rules 2001 (hereinafter referred to as 'the
Rules of 2001). The petitioner accepted the
order regularizing his services and did not
challenge it nor did he raise any claim for
being considered for regularization of his
services with retrospective effect from any
date prior to 31.10.2005. Writ petition No.
9374 (SS) of 1993 came to be dismissed for
want of prosecution on 16.1.2013.

7. In the interregnum, it appears that
the petitioner filed another writ petition
bearing No. 5602 (SS) of 2000 as his
services were again terminated after filing
of the first writ petition and it is only when
bailable warrants were issued to opposite
parties in the second writ petition that he
was re-engaged vide order dated 3.11.2000,
contained
in
Annexure
No.
3
and
thereafter, as stated, his services were
regularized on 31.10.2005.

8. It is not out of place to mention that
this second writ petition bearing 5602 (SS)
of 2000 has been disposed of, but the said
order is not on record.

9. The petitioner attained the age of
superannuation and retired from service of
the U.P. Hindi Sansthan on 30.09.2015. On
retirement he submitted his papers for grant
of pension under the old pension scheme
which, as per the averment made in the
counter affidavit, were forwarded to the
State Government for its approval on
20.10.2015. The State Government vide
impugned order dated 27.1.2016, a copy of
which is annexure 11 to the writ petition
rejected the claim of the petitioner keeping
in mind the gazette notification dated
13.10.2010 wherein it was provided that
personnel who had entered in regular
service of autonomous bodies, funded and
controlled by the State Government, on or
after 1.4.2005, are entitled only for the new
pension scheme and as the services of the
petitioner were regularized after 1.4.2005,
therefore, he was not entitled to the benefit
of the old pension scheme.

10. At this stage it is not out of place
to mention that the petitioner had filed an
application for amendment of the writ
petition so as to challenge the notification
dated 28.3.2005 by which the new pension
scheme was introduced, but the said
amendment application, insofar as it sought
to challenge the said notification dated
28.3.2005 was rejected on 16.5.2009.

11. The notification dated 13.10.2010
referred in the impugned government order
dated 27.1.2016 has never been challenged
by the petitioner. The said notification is on
record as CA-3 to the counter affidavit filed
by the opposite party nos. 2 and 3. The said
notification contains the features of new
pension
scheme.
Notification
dated
13.10.2010 was sent to the Director, U.P.
Hindi
Sansthan,
Lucknow,
vide
government order dated 4th February,
2015, a copy of which is annexed as part of
446 INDIAN LAW REPORTS ALLAHABAD SERIES
annexure CA-3 to the counter affidavit of
opposite party nos. 2 and 3.

12. As already indicated above, the
petitioner has prayed for quashing of the
order dated 21.01.2016 whereby it has been
indicated that the petitioner would be
covered by the New Pension Scheme in
terms of the Government order dated
31.10.2014 and would be entitled for
receiving benefits in terms of the New
Pension Scheme.

13. It is not in dispute that the new
pension scheme, which has come into
effect w.e.f. 01.04.2005, is applicable in the
U.P. Hindi Sansthan.

14. The provisions of New Pension
Scheme as introduced in the Hindi
Sansthan, so far as they are relevant for
deciding the reference made to the larger
bench, read as follows:-

कार्ाालर् - ज्ञाप

अड़धसूचना
संख्या-सा-3-379/दस-2005301(9)/2003, ड़दनााँक 28 माचट, 2005 द्वारा शासन के
ड़नयंत्रणाधीन स्वायत्तशासी संस्थाओं ड़जनमें ड़दनााँक 01 अप्रैल,
2005 के पूवट तत्समय राज्य कमटचाररयों की पेंशन योजना की
भााँड़त पेंशन योजना लािू थी, और ड़जनका ड़वत्त पोषण राज्य सरकार
की समेड़कत ड़नड़ध से ड़कया जाता है, में ड़दनांक 01 अप्रैल, 2005
को अथवा उसके बाद आने वाले स्वायत्तशासी संस्थाओं के
कमटचाररयों पर नव पररभाड़षत अंशदान पेंशन योजना लािू करने का
ड़नणटय ड़लया िया है।

2-उपयुटक्त संदभट में केन्रीय लेखा-अनुरक्षक एजेन्सी की
समुड़चत व्यवस्था होने और पेंशन ड़नड़ध ड़वड़नयामक तथा ड़वकास
प्राड़धकरण द्वारा पेंशन ड़नड़ध प्रबन्धकों की ड़नयुड़क्त होने तक अन्तररम
व्यवस्था के रूप में उपयुटक्त संस्थाओं के कमटचाररयों के संबंध में
उपरोक्त पररभाड़षत अंशदान पेंशन योजना के कायाटन्वयन के ड़लए
राज्यपाल महोदय ड़नम्नवत् आदेश देते हैं :-

(1)यह व्यवस्था ड़दनााँक 01 अप्रैल, 2005 को अथवा
उसके बाद सेवा में आने वाले कमटचाररयों पर अड़नवायट रूप से लािू
होिी। ऐसा प्रत्येक कमटचारी अपने मूल वेतन, महाँिाई वेतन तथा
महाँिाई भत्ते/ ड़दनााँक 01-01-2006 से लािू पुनरीड़क्षत वेतन
संरचना में वेतन एवं ग्रेड पे तथा दोनों के योि पर महाँिाई भत्ते के
योि का 10 प्रड़तशत माड़सक अंशदान (ड़नकटतम रूपये में
पूणाांड़कत) योजनान्तिटत पेंशन ड़टयर-1 के ड़लए करेिा। इस अंशदान
की कटौती संबंड़धत आहरण एवं ड़वतरण अड़धकारी द्वारा प्रत्येक माह
कमटचारी के वेतन से की जायेिी। इन कमटचाररयों पर सामान्य भड़वष्य
ड़नड़ध योजना लािू न होने के कारण इनके वेतन से सामान्य भड़वष्य
ड़नड़ध में अंशदान के रूप में कोई कटौती नहीं की जायेिी।

15. The Court has also come across
the said scheme as notified by the Finance
Department of the State Government
published in the Uttar Pradesh Gazette on
28.03.2005.

16. For the sake of convenience, the
said notification is reproduced below:-

"THE UTTAR PRADESH
GAZETTE

Extraordinary

Published By Authority

Lucknow, Monday, 28thMarch,2005

NOTIFICATION BY
GOVERNMENT

_____x ______

FINANCE DEPARTMENT

The
State
Government,
in
consideration of its long term fiscal interest
and following broadly the pattern adopted
by the Central Government, has approved
the following proposal of introducing a
new defined contribution pension system in
place of the existing defined benefit pension
scheme, for new entrants to the service of
the State Government and of all State
controlled autonomous institutions and
State
-
aided
private
educational
institutions where the existing pension
scheme is patterned on the scheme for
Government employees and is funded by
12 All. Ashok Tewari Vs. State of U.P. & Anr.
447
the
consolidated
fund
of
the
State
Government:-

(i) From 1stof April, 2005, the new
defined contribution pension system would
mandatorily apply to all new recruits to the
service of the State Government and of all
State controlled autonomous / State aided
private educational institutions referred to
above. However, employees covered by the
existing pension scheme whose service
would be of less than ten years on 1stApril,
2005 may also voluntarily opt for the new
pension system in place of the existing
pension scheme.

(ii)
Under
the
new
defined
contribution pension system, the employee
would make a monthly contribution equal
to 10 percent of the salary and dearness
allowance.
A
matching
employer's
contribution would be made by the State
Government
or
by
the
concerned
autonomous
institution
/
private
educational institution. However, the State
Government would provide grant to the
concerned autonomous institution private
educational
institution
for
making
employer's
contribution
until
the
institutions is at a position to make the
contribution itself. The contribution and
investment returns would be deposited in
an account to be known as pension tier I
account. No withdrawals would be allowed
from this account during the service period.
The existing provisions of defined benefit
pension and GPF would not be available to
the new recruits covered by the new defined
contribution pension system.

(iii) Since new recruits would not be
able to subscribe to GPF, they may also
have a voluntary tier II account, in addition
to the pension tier I account. However,
employer would not make contribution to
tier II account. The assets in Tier II
account would be invested / managed
through exactly the same procedure as for
pension tier I account. However, the
employee would be free to withdraw part of
all the ' second tier ' of his money any time.

(iv) Employee can normally exit tier I
of the pension system at the time of
retirement. At exit the employee would be
mandatorily required to invest 40 percent
of pension wealth to purchase an annuity
from a recognized insurance company so
as to provide for pension for the lifetime of
the employee and his dependent parents
and his spouse at the time of retirement.
The remaining pension wealth would,
however, be received by the employee as a
lump sum which he would be free to utilize
in any manner. In case of employee exiting
the pension tier I before retirement, the
mandatory annuitisation would be 80
percent of the pension wealth.

(v) There would be several pension
fund managers who would offer mainly
three categories of investment options. The
pension fund managers and the record
keeper would jointly give out easily
understood
information
about
past
performance so that the employee is able to
make informed choices of the investment
options.

2.
The
effective
date
for
operationalization of the new pension
system shall be 1stof April, 2005."

17. A perusal of the New Pension
Scheme
would
indicate
that
from
01.04.2005, the New Pension Scheme has
been introduced to mandatorily apply to all
new recruits to the service of the State
Government and of all State controlled
autonomous institutions. Under the New
Pension Scheme, the employee would
make a monthly contribution equal to the
ten percent of the salary and dearness
allowance
and
matching
employer
contribution would be made by the State
Government
or
by
the
concerned
448 INDIAN LAW REPORTS ALLAHABAD SERIES
autonomous institution. The contributions
are to be deposited in an account from
which no withdrawals are permitted during
the service period. After retirement, the
employee may withdraw a part of the
amount while the remaining part is to be
used for the purchase of annuity from a
recognized insurance company so as to
provide pension for the life time of the
employee and his dependent parents and
spouse at the time of retirement. There are
certain other details of the scheme which
have no concern with the facts of the
instant case.

18. A further perusal of New Pension
Scheme would indicate that there is no
provision for counting of previous service
and neither the scheme provides for any
'qualifying service'. The scheme is explicit
i.e those who are appointed on or after
01.04.2005 would be covered by the
provisions of New Pension Scheme and
deduction of ten percent from the salary, as
per details given in the scheme, is to be
made which would result in the formation
of corpus payable upon retirement of the
employee concerned.

19. At this stage, we may mention
that apart from regular appointments made
in accordance with the Rules whether by
way of direct recruitment or by way of
regularization, there is a practice of
engaging personnel on temporary basis, be
it on daily wages or on any other similar
temporary nature. For regularizing the
service of such employees there are
Regularization Rules which are applicable
to daily wage or similar employees. There
are
Rules
known
as
Uttar
Pradesh
Regularisation Daily Wages Appointment
on Group 'C' Posts (Outside the purview of
the
Uttar
Pradesh
Public
Service
Commission) Rules, 1998 as amended from
time to time. There are other Rules known
as Uttar Pradesh Regularisation of Daily
Wages Appointments on Group 'D' posts
Rules, 2001. There is another set of Rules
known as Uttar Pradesh Regularization of
Persons Working on Daily Wages or on
Work
Charge
or
on
Contract
in
Government Departments on Group 'C' and
Group 'D' Posts (Outside the Purview of
Uttar Pradesh Public Service Commission)
Rules, 2016. One thing which is common
in all these Rules is that the person who
was initially appointed on daily wages, etc.
basis and whose services are subsequently
regularized under these Rules is treated as
regularized/appointed only from the date of
such regularization and is also given
seniority accordingly. To illustrate, we may
refer to relevant provisions of Rules 2001
which are quoted hereinbelow:

"4. Regularisation of daily wages
appointments on Group 'D' Posts.--

(1) Any person who.--

(a) was directly appointed on
daily wage basis on a Group 'D' post in the
Government service before June 29, 1991
and is continuing in service as such on the
date of commencement of these rules; and

(b)
possessed
requisite
qualification
prescribed
for
regular
appointment for that post at the time of
such appointment on daily wage basis
under the relevant service rules, shall be
considered for regular appointment in
permanent or temporary vacancy, as may
be available in Group 'D' post, on the date
of commencement of these rules on the
basis of his record and suitability before
any regular appointment is made in such
vacancy in accordance with the relevant
service rules or orders.

(2) In making regular appointments
under these rules, reservations for the
12 All. Ashok Tewari Vs. State of U.P. & Anr.
449
candidates belonging to the Scheduled
Castes, Scheduled Tribes, Other Backward
Classes of citizens and other categories
shall be made in accordance with the Uttar
Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994, and
the
Uttar
Pradesh
Public
Services
(Reservation for Physically Handicapped,
Dependents of Freedom Fighters and ExServicemen) Act, 1993 as amended from
time to time and the orders of the
Government in force at the time of
regularisation under these rules.

(3) For the purpose of sub-rule (1) the
appointing authority shall constitute a
Selection Committee in accordance with
the relevant provisions of the service rules.

(4) The appointing authority shall,
having regard to the provisions of sub-rule (1),
prepare an eligibility list of the candidates,
arranged in order of seniority as determined
from the date of order of appointment on daily
wage basis and if two or more persons were
appointed together, from the order in which
their names are arranged in the said
appointment order. The list shall be placed
before the Selection Committee along with
such relevant records pertaining to the
candidates, as may be considered necessary,
to assess their suitability.

(5) The Selection Committee shall
consider the cases of the candidates on the
basis of their records referred to in subrule (4), and if it considers necessary, it
may interview the candidates also.

(6) The Selection Committee shall
prepare a list of selected candidates in
order of seniority, and forward the same to
the appointing authority.

5. Appointments.--

The appointing authority shall, subject
to the provisions of sub-rule (2) of Rule 4,
make appointments from the list prepared
under sub-rule (6) of the said rule in the
order in which their names stand in the list.

6. Appointments be deemed to be
under the relevant service rules etc.--

Appointments made under these rules
shall be deemed to be appointments under
the relevant service rules or orders, if any.

7. Seniority.--

(1) A person appointed under these
rules shall be entitled to seniority only
from the date of order of appointment
after selection for regularisation in
accordance with these rules and shall, in
all cases, be placed below the persons
appointed in accordance with the relevant
service rules, or as the case may be, the
regular prescribed procedure, prior to the
appointment of such persons under these
rules.

(2) If two or more persons are
appointed together, their seniority inter se
shall be determined in the order mentioned
in the order of appointment."

20. This discussion is relevant in the
context of question no. 1 which we are
required to answer as also other questions
referred hereinabove

21. From a perusal of Rules, 2001 it
emerges that the Rules, 2001 which pertain
to regularization, provide for regularization
of persons working on daily wage basis on
Group-D post. The said rules would cover
the case of any person who was directly
appointed on daily wage basis on a GroupD Post in Government service on or before
a particular date and possesses requisite
qualification
prescribed
for
regular
appointment. The appointing authority has
to constitute a selection committee and an
eligibility list of candidates has to be
prepared and the selection committee has to
prepare a list of selected candidates in order
450 INDIAN LAW REPORTS ALLAHABAD SERIES
of seniority. As per Rule 5 of Rules, 2001,
the appointment is to be made from the list
prepared under Sub Rule (6) of Rule 4 of
the Rules, 2001. Further, Rule 6 of the
Rules, 2001 provides that the appointments
made under these rules shall be deemed to
be appointments under the relevant service
rules or orders, if any. Rule 7 of the Rules,
2001 provides for seniority which indicates
that a person appointed under the Rules,
2001 shall be entitled to seniority only from
the date of order of appointment after
selection for regularization in accordance
with the rules.

22. From a perusal of Rules 4, 5, 6 &
7 of the Rules, 2001 it is thus clear that it is
only when a daily wage employee is
regularized in accordance with the Rules,
2001 that he can be considered to have
been appointed under the relevant service
rules meaning thereby that a person can be
said to be appointed in service only after
his regularization.

23. A perusal of the New Pension
Scheme leaves no measure of doubt that the
scheme would be applicable to those
persons who are appointed on or after
01.04.2005.

24. Any person whose services are
regularized after his initial appointment
whether on daily wages or of any other
nature (not regular appointment) can be
terms as regular appointment only from the
date of such regularization. The petitioner
having been regularized vide order dated
31.10.2005 can only be said to have been
appointed in accordance with the relevant
service rules on 31.10.2005.

25. As the primary question before us
is regarding applicability of old pension
scheme or new pension scheme to such
employees whose services have been
regularized on or after 01.04.2005 and in
respect of whom the pensionary Rules as
applicable to State Government servants,
apply, it is necessary to refer to the old
pension scheme and what is meant by the
said term.

26. In this context we may point out
that prior to 01.04.2005 retirement benefits
were admissible to all Officers under the
Rule making power of the Governor of
Uttar Pradesh under the Rules known as
U.P. Retirement Benefits Rules, 1961 (for
short '1961 Rules') except those who retired
before the date of coming into force of the
said Rules, subject of course to the
conditions mentioned in Rule 2(2) of the
1961 Rules. Rule 2(2) of the 1961 Rules
further provides that the pension provisions
contained in Civil Service Regulations shall
continue to apply to Officers governed by
these Rules except in so far as they are
inconsistent with any of the provisions of
these rules. While these Rules were meant
for Officers under the Rule making power
of the Governor, we have been given to
understand that the provisions of these
Rules and Civil Service Regulations
referred therein were applicable to the
employees and Officers of the U.P. Hindi
Sansthan also for extending retiral benefits
to its employees and it is not a case of
either of the parties that it is not so. In fact,
this is what comes out from the reference
order dated 26.05.2022 also.

27. Thus, when we refer to old
pension scheme, it is a reference to the
pension and other retiral benefits payable
under the aforesaid 1961 Rules and the
Civil Service Regulations as applicable in
the State of Uttar Pradesh in so far as
they are not inconsistent with these 1961
Rules.
12 All. Ashok Tewari Vs. State of U.P. & Anr.
451

28. Without referring in detail to
various provisions of the said the 1961
Rules and the CSR we may may refer to
Rule 3(8) of the 1961 Rules which defines
'qualifying service'. It means service which
qualifies for pension in accordance with the
provisions of Article 368 of the Civil
Service
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-charge
establishment,
and
(iii)
periods of service in a post, paid from
contingencies,
shall
also
count
as
qualifying service. The Note appended to
the said Rule says that if service rendered
in a non-pensionable establishment, workcharged 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 and interruption of
service. Thus, there is service prescribed
under the 1961 Rules which qualifies a
person for pension and this has to be in
accordance with Article 368 of Civil
Service Regulations read with aforesaid
Rule 3(8) of 1961 Rules.

29. Article 368 of Civil Service
Regulations states that service does not
qualify
unless
the
officer
holds
a
substantive
office
on
a
permanent
establishment. In this very context Article
370 is relevant according to which an
officer may count continuous temporary or
officiating service under the Government of
Uttar Pradesh followed without interruption
by confirmation in the same or any other
post shall qualify except-(i) periods of
temporary or officiating service in nonpensionable establishment;(ii) periods of
service in work-charged establishment; and
(iii) periods of service in a post paid form
contingencies. The Note appended thereto
provides that 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 periods of
temporary service and permanent service in
a pensionable establishment, it will not
constitute an interruption of service. This
provision is pari materia with Rule 3(8) of
the 1961 Rules, however, in the event of
any conflict, it is the 1961 Rules which will
prevail.

30. As per Article 358 (a) of Civil
Service
Regulations
except
for
compensation gratuity, and officer's service
does not in the case of superior and inferior
services qualify till he has completed
twenty years of age. As per Article 359
certain exceptions are admitted to 20 years
Rule. As per Article 474 of Civil Service
Regulations read with Government Orders
dated 31.12.1979 and 23.12.2016 for
superannuation pension, etc. a minimum
qualifying service is prescribed as 10 years.
Article 361 of Civil Service Regulations
provides that service of an officer does not
qualify for pension unless it conforms to
the following three conditions - First the
service must be under Government, Second
the employment must be substantive and
permanent, and Third the service must be
paid by Government. Three conditions
referred therein have been explained in the
succeeding Articles of Civil Service
Regulations such as Articles 361-A to 392
of Civil Service Regulations which we
need not refer in detail.
452 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In this very context we may refer
to Rule 4 (1) of 1961 Rules according to
which the amount of superannuation,
retiring, invalid and compensation pension
or gratuity shall be appropriate amount set
out in the Annexure. Sub-rule (2) says that
no special additional pension shall be
granted. Now, when we peruse Annexure 1
to 1961 Rules, we find that it provides the
amount of pension payable and the manner
of its calculation based on the period of
qualifying service. Column 2 refers to
completed six monthly periods 'qualifying
service', column 3 refers to scale of
gratuity or pension and based thereon
column 3 refers to maximum pension (in
rupees per annum). Article 474 of Civil
Service Regulations is also on similar lines.
Thus, the quantum of pension is dependent
upon the period of 'qualifying service'. If an
Officer or employee does not fulfill
minimum qualifying service as prescribed
under the Civil Service Regulations read
with 1961 Rules and the orders issued in
this regard, then a person is not entitled for
pension.

32. Suffice is to say that under the old
pension scheme first of all a person in order
to be entitled to pension should satisfy the
minimum 'qualifying service', secondly
quantum of pension payable to him is
dependent upon the period of qualifying
service, the greater the qualifying service
higher the pension.

33. It is on account of the aforesaid
provisions that often in cases where an
employee
was
short
off
minimum
qualifying service he raised a claim for
counting his earlier service rendered on
daily wages, etc. basis. i.e. the service
which would not otherwise qualify for
pension in view of the aforesaid provisions
and these disputes were adjudicated by the
Courts and it is in this context that the
judgment of Hon'ble the Supreme Court
Prem Singh vs. State of Uttar Pradesh and
Ors (Civil Appeal No. 6798 of 2019) was
rendered on 02.11.2019. We may at this
very stage mention that after the said
judgment the 1961 Rules were amended
vide amendment dated 05.03.2021 by
which 'qualifying service' under Rule 3(8)
of 1961 Rules has been redefined. This
amendment is not of any help to the
employees whose rights are involved in this
case. The said amendment is known as The
Uttar Pradesh Qualifying Service for
Pension and Validation Act, 2021.

34. In this very context we may also
mention that apart from the aforesaid
illustration even in cases where an
employee fulfills the minimum qualifying
service claims were raised for counting past
services which were not on regular basis as
doing so would enhance the quantum of
pension for the reasons already given
hereinabove. It is in this context that the
counting of past services whether on daily
wages or any other temporary nature to the
'qualifying service' arose and was relevant.

35. However, as far as the new
pension scheme is concerned, there is no
such concept of 'qualifying service' in the
first place as such there is no question of
adding any past service because there is
nothing to which such services can be
added. As would evident from a discussion
of the new pension scheme in the earlier
part of the judgment, it has come into effect
w.e.f. 01.04.2005 and an employee would
make a monthly contribution equal to 10%
of the salary and Dearness Allowance, a
matching employer's contribution would be
made by the State Government or by the
concerned
Autonomous
Institution
or
private
educational
institution.
Other
12 All. Ashok Tewari Vs. State of U.P. & Anr.
453
modalities were also laid down in this
regard. The two schemes i.e. old pension
scheme and new pension scheme are
entirely different. Even at the cost of
repetition it needs to be emphasized that
there is no concept of qualifying service in
the new pension scheme as such there is no
question of adding any past service to
qualify service.

36. Most important, 1961 Rules
quoted hereinabove were amended on
07.04.2005 by the U.P. Retirement Benefits
(Amendment)
Rules,
2005.
This
amendment was deemed to have come into
force with effect from 01.04.2005. Rule 2
of 1961 Rules was amended and sub-rule
(3) to rule 2 was added after the existing
sub-rule (2). The said sub-rule (3) of Rule 2
reads as under:

"2(3) These Rules shall not apply to
employees entering services and posts on
or after April 1, 2005 in connection with
the affairs of the State, based on
pensionable
establishment,
whether
temporary or permanent."

37. On a perusal of the said rule it is
evident that the applicability of the 1961
Rules has been specifically excluded to
employees entering services and posts on
or after April 1, 2005 in connection with
the affairs of the State, based on
pensionable
establishment,
whether
temporary or permanent. Pension under the
old scheme was payable under these Rules.

38. As already stated earlier, it is not in
dispute that prior to 01.04.2005 it is the 1961
Rules read with Civil Service Regulations
which were applicable to the employees of
U.P. Hindi Sansthan, consequently the
amendments to the said Rules would also
apply. The result is that no benefit of the
1961 Rules is available to any employee who
has entered the service of U.P. Hindi
Sansthan or any post under the Government
as referred in Question No. 1 on or after 1st
April, 2005.

39. We have already opined that a
person who is not regularly appointed, but, is
appointed on daily wages or on similar
temporary nature and his services are
regularized subsequently in accordance with
the Rules would be treated as appointed
and having entered the service on the date
of such regularization for the purposes of
Rule 2(3) of the 1961 Rules and for the
purposes of applicability of the new
pension scheme on the date of such
regularization of service. This reasoning
is apparent from a reading of the
Regularization Rules and the new pension
scheme and even otherwise as per
General
Principles
of
Service
Jurisprudence. Thus, Rule 2 (3) of the
1961
Rules
itself
excludes
the
applicability of the 1961 Rules thereby
applicability of old pension scheme is
also excluded as it was based on 1961
Rules. As such, there is no question of
counting any past service rendered on
daily wages, etc. basis, as, such an
exercise is alien to the new pension
scheme.

40. In view of the above discussion, it is
evident that those who entered into service
based either on a regular appointment or by
way of regularization of their services in
accordance with Rules on or after 01.04.2005
in their cases it is the new pension scheme
and not the old pension scheme which would
be applied. The initial appointment of such
employees prior to 01.04.2005 whether on
daily wages or on any purely temporary basis
which is not a regular appointment in
accordance with the Rules is irrelevant and
454 INDIAN LAW REPORTS ALLAHABAD SERIES
does not grant pension to them under the old
pension scheme.

41. We may in this context also refer
to the decision of a Single Judge Bench in
Brahamanand Singh and Ors. Vs. State of
U.P. and Ors.; 2017 (11) ADJ 49, where it
was held as under:

"11. The Division Bench in Ram
Sunder Ram (supra) as well as in Prashid
Narain Upadhyay (supra) dealt with the
issue relating to entitlement to receive
pension under the Rules of 1961. By relying
upon Fundamental Rule 56, as amended
vide U.P. Act No.24 of 1975, a retiring
pension
is
payable
to
a
temporary
employee also by virtue of Clause (e). This
provision, however, has no applicability in
the facts of the present case, inasmuch as
petitioners have not retired from service as
a temporary employee. Petitioners have
retired after their regularization in 2007.
The provisions of Rules of 1961 apparently
would have no applicability in the facts of
the present case. The Rules of 1961 have
been amended vide notification dated
7.4.2005, whereby Sub-rule 3 has been
added to Rule 2 of the Rules of 1961, and
the same is reproduced:-

"(3) These Rules shall not apply
to employees entering services and posts on
or after April 1, 2005 in connection with
the affairs of the State, borne on
pensionable
establishment,
whether
temporary or permanent."

12.
Petitioners
have
been
regularized after 1.4.2005, which would be
their date of entry into service. The Rules of
1961, therefore, would not be attracted in
the facts of the present case. The provisions
of Rule 3(8) also would not be attracted.
The judgments of Division Bench in
Prashid Narain Upadhyay (supra) and
Ram Sunder Ram (supra) for such reasons
would have no applicability. It was only if
Rules of 1961 were attracted that any
question would arise for inclusion of
services rendered on temporary basis, in
view of Rule 3(8) of the Rules of 1961.
However, as the Rules of 1961 itself has no
applicability, as such the question of
counting of services rendered on temporary
basis would not arise.

13.
For
the
reasons
and
discussions
aforesaid,
I
am
of
the
considered opinion that petitioners are
neither entitled to grant of pensionery
benefits from the date of their appointment
on temporary basis nor regularization
order
dated
5.4.2007
requires
any
modification, so as to make it effective from
a date prior to 5.4.2007.