# Awadh Bihari Shukla v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 830
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-07
- **Case number:** Writ-A No. 4436 of 2009
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadh-bihari-shukla-v-state-of-u-p-ors-43203
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Pension
benefits-petitioner working as collection
peon-working
continuously
w.e.f.
01.06.1970
retired
31.07.02-claim
of
pension denied-on ground of seasonal
working and not in temporary capacityfrom original service record a work
'temporary' struck down and substituted
by seasonal (Samayik)-held-keeping in
view of Parsidh Narayan and Dhooma Ram
case, as well working in particular pay
scale with other benefits- as regular
employee-as per G.O. 01.07.89 entitled for
pension-necessary direction issued.
Held: Para-23
After careful consideration of the matter,
I am of the view that for the reasons
stated herein-above, the impugned order
of the Sub-Divisional Magistrate dated
12.12.2008 is unsustainable and it needs
to be set aside. Accordingly, it is set
aside.
Case Law discussed:
2006 (1) ESC 611; 1989 ACJ 337; W.P. No.
26668 of 2002; W.P. No. 56632 of 2005;
Special Appeal No. 743 of 2005; W.P. No.
4211 of 2008; Special Appeal No. 508 of 2008;
Writ-A No. 42138 of 2007

## Text

830
 INDIAN LAW REPORTS ALLAHABAD SERIES
also right in dismissing the revision
preferred by the petitioner as there was no
question of remanding or sending the
matter back to the authority who had
made the reference to the larger Bench,
once the larger Bench of the Board of
Revenue had come to conclusion that the
second revision was not maintainable.
15. In view of above, the writ
petition
fails
and
is
accordingly
dismissed.
16. However, it is made clear that
the petitioner would be at liberty to avail
any legal remedy available to her in law.
In case any such recourse is adopted, the
matter may be considered and decided
without
being
influenced
by
any
observations made by this Court.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Writ-A No. 4436 of 2009
Awadh Bihari Shukla
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri J.P.N. Singh
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Pension
benefits-petitioner working as collection
peon-working
continuously
w.e.f.
01.06.1970
retired
31.07.02-claim
of
pension denied-on ground of seasonal
working and not in temporary capacityfrom original service record a work
'temporary' struck down and substituted
by seasonal (Samayik)-held-keeping in
view of Parsidh Narayan and Dhooma Ram
case, as well working in particular pay
scale with other benefits- as regular
employee-as per G.O. 01.07.89 entitled for
pension-necessary direction issued.
Held: Para-23
After careful consideration of the matter,
I am of the view that for the reasons
stated herein-above, the impugned order
of the Sub-Divisional Magistrate dated
12.12.2008 is unsustainable and it needs
to be set aside. Accordingly, it is set
aside.
Case Law discussed:
2006 (1) ESC 611; 1989 ACJ 337; W.P. No.
26668 of 2002; W.P. No. 56632 of 2005;
Special Appeal No. 743 of 2005; W.P. No.
4211 of 2008; Special Appeal No. 508 of 2008;
Writ-A No. 42138 of 2007
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
1. The petitioner is a retired
Collection Peon. He is presently 73 years
old. He has preferred this writ petition
seeking writ of certiorari for quashing of
the impugned order dated 12.12.2008
passed by fourth respondent i.e. UpZiladhikari, Tehsil Sikanderpur, District
Ballia, whereby the claim of the petitioner
for the post retiral benefit including
pension has been rejected on the ground
that he was a Seasonal Collection Peon
and not a Collection Peon (Temporary).
2.
The petitioner claims that he was
initially appointed on 01.06.1970 as a
Collection Peon in District Ballia. He worked
till the year 1981 with some artificial breaks.
He was again appointed on 20.03.1982 as a
Collection Peon (Temporary) on substantive
post and worked till the date of his retirement
i.e.
31
July
2002
uninterruptedly.
2 All] Awadh Bihari Shukla Vs. State of U.P. & Ors.
831
3. It is stated that the State
Government on 01.07.1989 issued a
Government Order providing therein that
temporary
employees,
who
have
completed 10 years of regular service, are
entitled to get all retiral benefits.
4.
The association of the Collection
Peons preferred Writ Petition No.11009 of
1998 for a direction upon the concerned
authorities to regularize the services of the
members of the association. The said writ
petition was disposed of on 19 March 1998 by
directing the respondents to consider the claim
of the members of the association for
regularization. In the meantime, the petitioner
retired, reaching the age of superannuation on
31 July 2002. When the petitioner's
representation for the post retiral benefit and
pension was not considered by the competent
authority, he preferred Writ Petition No.38974
of 2008 (Awadh Bihari Shukla v. State of
U.P. & others). The said writ petition was
disposed of on 5 August 2008 with a direction
to the concerned authority to consider the
grievance of the petitioner.
5. In compliance of the said order,
the petitioner's claim has been rejected by
the
impugned
order
amongst
other
grounds that the petitioner was not a
Collection Peon (Temporary) but he was a
Seasonal Collection Peon, therefore, he is
not entitled for the pension and other post
retiral benefits.
6. It is averred by the petitioner that
the impugned order has been passed by
Up-Ziladhikari, who has no authority in
the matter of the Seasonal Collection
Peon as the appropriate authority is the
District Magistrate.
7. The petitioner has averred in the writ
petition that in the similar circumstances, one
Prasidh Narain Upadhyay had filed Writ
Petition No.53567 of 1997, which was
allowed by this Court and a direction was
issued to the authority concerned to make
payment of the post retiral benefits to Prasidh
Narain Upadhyay and the said order has been
complied with. It is also averred in the writ
petition that the respondents have treated the
petitioner differently and he has been
discriminated, inasmuch as in respect of two
similarly placed persons, namely, Ram
Nagina Pandey and Dhooma Singh Yadav,
who were also Seasonal Collection Peons,
they had also filed Writ Petition No.18230 of
2000, both persons retired in the year 2005.
This Court vide order dated 28 April 2006
had issued direction to the District Magistrate
to consider the grievance of the petitioners
therein. The District Magistrate has granted
the pension and other benefits. A copy of the
order of the District Magistrate is on record
as annexure-8 to the writ petition.
8. This Court had directed the
Standing Counsel to produce the original
record of the petitioner. In compliance
thereof the original record has been
produced.
9. A perusal of the service record of
the petitioner, it is evident that in his
service record, he has been shown as
Temporary but such entry has been struck
off by different ink without any initial and
in place of Temporary the word Seasonal
Collection Peon, i.e. Samyik Sangrah
Chaprasi has been mentioned in one of
the column. The word "Temporary" has
been struck off and Samyik Sangrah
Chaprasi has been transcribed.
10. Learned Standing Counsel was
confronted with the aforesaid fabrication
which has been made without any initial
of competent authority. He has produced
832
 INDIAN LAW REPORTS ALLAHABAD SERIES
the instructions which have been received
from
Up-Ziladhikari
wherein
it
is
mentioned that it was simply a human
error. The instructions are taken on
record.
11. Learned counsel for the
petitioner has submitted that the petitioner
was
a
Seasonal
Collection
Peon
(Temporary) and in Prasidh Narain
Upadhyay's case also, the similar attempt
had been made that in the service record,
it was mentioned that he was a Seasonal
Collection Peon.
12. A Division Bench of this Court
in the case of Board of Revenue & others
v. Prasidh Narain Upadhyay, 2006 (1)
ESC 611, has taken the view that if a
temporary employee has worked for a
long
period
whether he
has
been
confirmed or not is immaterial, is entitled
for pensionary benefits and the term
"qualifying service", which is defined
under Regulation 361 of Section 1 of
Chapter XVI of the Civil Service
Regulations, has been interpreted by the
Court and it has been held that the
temporary employee also is entitled for
the retiral benefit which is available to
every government servant. The Division
Bench has relied on the earlier decision of
this Court in the case of Dr. Hari Shankar
Ashopa v. State of U.P. & others, 1989
ACJ 337.
13. Learned counsel for the
petitioner has also relied on the following
judgments:
(i) Writ Petition No.26668 of 2002
(Kedar Ram v. State of U.P. & others)
(ii) Writ Petition No.56632 of 2005
(Karuna Nidhan Rai v. State of U.P. &
others)
(iii) Special Appeal No.743 of 2005
(Board of Revenue & others v. Prasidh
Narain Upadhay)
(iv) Writ Petition No.4211 of 2008
(Girja Prasad v. State of U.P. & others)
(v) Special Appeal No.(508) of 2008
(State of U.P. v. Panmati Devi & another)
(vi) Writ-A No.42138 of 2007 (Surya
Dev Gond v. State of U.P. & others).
14.
Learned Standing Counsel
submits that Rule 5 of the Uttar Pradesh
Collection Peon's Service Rules, 2004 deals
with the mode of recruitment, which
provides that fifty per cent collection peons
shall be appointed by direct recruitment
through the Selection Committee and
remaining fifty per cent posts shall be filled
through the Selection Committee from
amongst such Seasonal Collection Peons
who have worked satisfactorily for at least
four Fasals and whose age on the first day
of July of the year in which selection is
made does exiceed 45 years. It is further
submitted by learned Standing Counsel that
since the petitioner has not been engaged in
terms of the Rule 5, he is not entitled for the
pension.
15. In rejoinder, learned counsel for
the petitioner submits that Rule 5 would
have applicable in the case of the
petitioner as the Uttar Pradesh Peon's
Regularization Rules, 2005 was not
applicable to the petitioner, who stood
retired in the year 2002 and these rules are
prospective in operation.
16. I have considered the rival
submission of the learned counsel for the
parties and perused the record.
17. Indisputably, the petitioner was
working since the year 1997 with some
breaks and retired in 2002.
2 All] Awadh Bihari Shukla Vs. State of U.P. & Ors.
833
18. The service record of the petitioner
produced by learned Standing Counsel
indicates that the petitioner has been given all
the benefits of regular employee such as
regular pay-scale, increments and other
benefits. He was given the pay-scale of
Rs.750-940 by the order of the District
Magistrate from 01.01.1993 and regular
increment was sanctioned to him by the order
of the District Magistrate from 01.01.1993
onwards annually. All these orders of the
District Magistrate has been duly countersigned by the Tehsildar in the service record.
19. From the facts in the case of
Prasidh Narain Upadhyay (supra), which
has been followed in Girja Prasad (supra),
it is evident that in those cases, the
petitioners therein had been working as
Seasonal Collection Peon on temporary
basis on substantive post.
20.
Learned Standing Counsel has
failed to satisfy the Court that in the case of
Dhooma Singh Yadav and Ram Nagina
Pandey, the District Magistrate has not passed
the order for the payment of pension
following the judgment passed in Prasidh
Narain Upadhyay's case. Thus, there is no
justifiable reason for discriminating the
petitioner with the petitioners in the aforesaid
cases as they were also similarly placed
persons.
21. Learned Standing Counsel has also
failed to satisfy the Court that in the case of
Dhooma Singh Yadav, who was also
Seasonal Collection Peon, the District
Magistrate has passed the order whereias in
the case of the petitioner the Sub-Divisional
Magistrate has passed the order.
22. It is stated at the bar that against
the judgment in Prasidh Narain Upadhyay
(supra) a special leave petition was filed,
which was dismissed by the Supreme Court. It
is also stated that against the orders of the
learned Single Judge in the case of Girja
Prasad v. State of U.P. & others (supra) and
Kedar Ram v. State of U.P. & others (supra),
special appeal has been filed but no interim
order has been granted therein.
23. After careful consideration of
the matter, I am of the view that for the
reasons
stated
herein-above,
the
impugned order of the Sub-Divisional
Magistrate
dated
12.12.2008
is
unsustainable and it needs to be set aside.
Accordingly, it is set aside.
24. The matter is remitted to the
District Magistrate to pass a fresh order in
the light of the observations made hereinabove and in the case of Board of
Revenue & others v. Prasidh Narain
Upadhyay (supra), the District Magistrate
shall also bear in mind that he has passed
the orders in similar matter in the cases of
Dhooma Singh Yadav & Ram Nagina
Pandey which is annexure-8 to the writ
petition. The aforesaid exercise shall be
completed by the District Magistrate
expeditiously within two months from the
date of the communication of the order.
He shall pay regard to the fact that the
petitioner is 73 years old person.
25.
From a perusal of the service
record, it is evident that officer concerned who
has made the correction, there is no initial.
The
Sub-Divisional
Magistrate
in
his
instructions has tried to explain it as a human
error,
it
appears
that
Sub-Divisional
Magistrate is not aware about the meaning of
the word. He has not disclosed that who has
made the correction in the service record.
26. I find sufficient force in the
submission of learned counsel for the
834
 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner that it is a serious fabrication in
the public record, accordingly, the District
Magistrate may hold an enquiry about the
said fabrication and direct to file an F.I.R.
against the person who is found guilty in
the
enquiry.
However,
the
District
Magistrate shall pass the order in respect
of the petitioner's pension at the first stage
and will not hold the order on the ground
that the enquiry is pending.
27. The service record and original
record is returned to the learned Standing
Counsel.
28. The writ petition is allowed.
29. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.06.2015
BEFORE
THE HON'BLE DR. DEVENDRA KUMAR
ARORA, J.
Misc. Single No. 5520 of 2008
Laloo Singh
 ...Petitioner
Versus
State of U.P.
...Respondent
Counsel for the Petitioner:
Pawan Kumar Trivedi, Ajay Mishra, Ayodhya
Prasad Singh, Manoj Kumar Singh, Piyush Kr.
Singh
Counsel for the Respondent:
C.S.C., Suresh Tiwari
Constitution of India, Art.-226-Cancellation of
fair price shop-without supplying copy of
enquiry report-on the complaint-without
personal hearing-entails civil consequencesprinciple of Natural Justice- violated-order
suffer from legal infirmity-not sustainablequashed.
Held: Para-16
Thus
from
the series
of
decisions,
referred to hereinabove, it clearly comes
out that the preliminary enquiry report,
inspection report or complaint or any
other document which is utilized by the
authority while cancelling the licence of
a fair price shop licence, same has to be
supplied to the licence holder and
personal hearing is also to be afforded
otherwise the proceedings would be in
blatant disregard of the principles of
natural justice. Here in the present case,
it is not the case of the opposite parties
that copy of the report submitted by the
Nayab Tehsildar was supplied to the
petitioner but he failed to submit his
version. Needless to say, once again,
that every order which entails civil
consequences, must be in consonance
with the principles of natural justice. The
petitioner raised a plea of violation of
principles justice before the appellate
authority too but the same was not dealt
with in a just and proper manner by the
appellate
authority
causing
serious
prejudice to the petitioner. Therefore,
not only the order of cancellation but
also the order of appellate authority
suffers from legal infirmities and cannot
be sustained. It may be clarified that
counsel for petitioner has attacked the
impugned
order
on
various
other
grounds, but as the order is faulty being
in blatant disregard of the principles of
natural justice, I refrain my self from
dealing other grounds.
Case Law discussed:
(1993) 3 SCC 259; (1998) 7 SCC 66; 2001 (19)
LCD 513; 2006 (24) LCD 1521; 2008 (16) LCD
891; [2011 (29) LCD 626].
(Delivered by Hon'ble Dr. Devendra
Kumar Arora, J.)
1. Petitioner, who is a fair price shop
licensee of fair price shop situated in
village
panchayat
Itahuva,
Bloc
Kaiserganj, District Bahraich, aggrieved
by the order of cancellation of fair price