# Bali Ram Singh v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 702
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-24
- **Case number:** Writ A No. 58889 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bali-ram-singh-v-state-of-u-p-ors-47501
- **Pages:** 10

## Headnote

A. Service Law - Qualifying service for the
purpose of pension
- Uttar Pradesh
Retirement Benefit Rules, 1961 - Rule
3(8); Uttar Pradesh Qualifying Service of
Pension and Validation Ordinance, 2020
(U.P. Ordinance 19 of 2020).

Uttar
Pradesh
Qualifying
Service
of
Pension and Validation Act, 2021 - Section
2, 3 (U.P. Act No. 1 of 2021) - The clear
purport of the Act is to define qualifying service
in terms of Section 2 thereof retrospectively,
and not in terms of Rule 3(8) of the Rules of
1961
of
Regulation
3
of
Civil
Services
Regulations. (Para 12)

The appointment letter dated 07.05.1978, does
not reflect at all that the petitioner was
appointed in accordance with the provisions of
the
Service
Rules
governing
recruitment,
selection or appointment. The mere fact that
the appointment has been labeled or dubbed as
temporary, does not implicitly mean that it is
one made in accordance with the Service Rules.
Ex-facie, the petitioner's appointment is dehors
the Rules. (Para 14)

Petitioner's service book reflects that he has
continued in service uninterruptedly since
07.05.1987, until regularisation on 13.09.2006,
with his status being reflected earlier as
temporary. There is no hint in the service book
to show that the petitioner's appointment prior
to his regularisation granted after requisite
training, was one made in accordance with the
Service Rules. Rather, the fact that the
petitioner had to undergo training for three
months from 01.05.2006 to 31.07.2006, before
he was granted regularisation by the Appointing
Authority, shows that the service rendered by
him earlier, though uninterrupted and in a
regular pay scale, was one on the basis of an
appointment dehors the rules. (Para 15)

The rights of the petitioner judged
under the shadow of Section 2 and 3 of
the Act cannot be regarded as ones
entitling him to qualifying service. The
reason is that the petitioner's retention
in
service,
though
dubbed
as
temporary, was not made in accordance
with the relevant Service Rules. The
appointment
between
07.05.1987
and
13.01.2006, until he was regularised in
service, was one dehors the Rules. Post
regularisation, the petitioner has admittedly
not completed 10 years of qualifying service
to entitle him to pension, gratuity and other
post-retiral benefits that he seeks. As such,
the petitioner is not entitled to relief. (Para
16)

Writ petition dismissed. (E-4)

Precedent cited:

## Text

702 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)01ILR A702
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 58889 of 2017

Bali Ram Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Daya Shanker Yadav, Sri Mahendra
Kumar

Counsel for the Respondents:
C.S.C.

A. Service Law - Qualifying service for the
purpose of pension
- Uttar Pradesh
Retirement Benefit Rules, 1961 - Rule
3(8); Uttar Pradesh Qualifying Service of
Pension and Validation Ordinance, 2020
(U.P. Ordinance 19 of 2020).

Uttar
Pradesh
Qualifying
Service
of
Pension and Validation Act, 2021 - Section
2, 3 (U.P. Act No. 1 of 2021) - The clear
purport of the Act is to define qualifying service
in terms of Section 2 thereof retrospectively,
and not in terms of Rule 3(8) of the Rules of
1961
of
Regulation
3
of
Civil
Services
Regulations. (Para 12)

The appointment letter dated 07.05.1978, does
not reflect at all that the petitioner was
appointed in accordance with the provisions of
the
Service
Rules
governing
recruitment,
selection or appointment. The mere fact that
the appointment has been labeled or dubbed as
temporary, does not implicitly mean that it is
one made in accordance with the Service Rules.
Ex-facie, the petitioner's appointment is dehors
the Rules. (Para 14)

Petitioner's service book reflects that he has
continued in service uninterruptedly since
07.05.1987, until regularisation on 13.09.2006,
with his status being reflected earlier as
temporary. There is no hint in the service book
to show that the petitioner's appointment prior
to his regularisation granted after requisite
training, was one made in accordance with the
Service Rules. Rather, the fact that the
petitioner had to undergo training for three
months from 01.05.2006 to 31.07.2006, before
he was granted regularisation by the Appointing
Authority, shows that the service rendered by
him earlier, though uninterrupted and in a
regular pay scale, was one on the basis of an
appointment dehors the rules. (Para 15)

The rights of the petitioner judged
under the shadow of Section 2 and 3 of
the Act cannot be regarded as ones
entitling him to qualifying service. The
reason is that the petitioner's retention
in
service,
though
dubbed
as
temporary, was not made in accordance
with the relevant Service Rules. The
appointment
between
07.05.1987
and
13.01.2006, until he was regularised in
service, was one dehors the Rules. Post
regularisation, the petitioner has admittedly
not completed 10 years of qualifying service
to entitle him to pension, gratuity and other
post-retiral benefits that he seeks. As such,
the petitioner is not entitled to relief. (Para
16)

Writ petition dismissed. (E-4)

Precedent cited:

1. Habib Khan Vs St. of Uttarakhand & ors.,
(2019) 10 SCC 542 (Para 8)

Precedent distinguished:

1. St. of U.P. through Secretary, Secondary
education & ors. Vs Kamlesh Babu Gaur& anr.,
Special Appeal Defective No. 157 of 2021,
decided on 19.02.2021 (Para 13)

2. St. of U.P. Vs Bhanu Pratap Sharma, decided
on 09.06.2021 (Para 16)

3. Prem Singh Vs St. of U.P. & ors., (2019) 10
SCC 516 (Para 9)
1 All. Bali Ram Singh Vs. State of U.P. & Ors.
703
Present petition challenges order dated
24.09.2017, passed by Additional/Joint
Director, Treasury and Pension, Varanasi,
Uttar Pradesh.

(Delivered by Hon'ble J.J. Munir, J.)

This petition is directed against an
order passed by the Additional/Joint
Director, Treasury and Pension, Varanasi,
Uttar Pradesh dated 24.09.2017, requiring
the Sub-Divisional Magistrate, Raja Talab,
Varanasi to submit a revised proposal for
consideration of the petitioner's case for the
grant of pension and other post-retiral
benefits, after excluding the period of
service rendered by him, prior to his
regularisation, as a Lekhpal.

2. A counter affidavit on behalf of
respondent nos. 3 and 5 jointly, and a
separate counter affidavit on behalf of
respondent no. 4 have been filed. In reply
to both these counter affidavits, the
petitioner has filed two separate rejoinders.

3. This petition was admitted on
08.12.2020, and the hearing had proceeded
on that date. Later on, it was brought to the
Court's notice that the rights of the
petitioner to pension, reckoning the period
of his continuous service rendered as a
Lekhpal prior to regularisation, would now
be governed by the provisions of the Uttar
Pradesh Qualifying Service of Pension and
Validation
Ordinance,
2020
(U.P.
Ordinance 19 of 2020). The service book of
the petitioner was summoned and retained
on record.

4. Heard Mr. Daya Shanker Yadav,
Advocate, along with Mr. Mahendra
Kumar, learned Counsel for the petitioner,
Mr. L.K. Tiwari, the learned Additional
Chief Standing Counsel along with Mr.
Sharad Chand Upadhyaya, the learned
State Law Officer on behalf of the Staterespondents.

5. The moot question involved in this
petition is :

Whether the petitioner, a retired
Lekhpal, has put in qualifying service,
entitling him to receipt of pension, gratuity
and other post-retiral benefits?

6. The Additional/Joint Director,
Treasury and Pension, Varanasi, Uttar
Pradesh, by his order impugned dated
24.09.2017, has opined that the petitioner's
service, prior to his regularisation as a
Lekhpal w.e.f. 13.09.2006, cannot be
counted towards his qualifying service for
the
purpose
of
pension
etc.
The
Additional/Joint Director, Treasury and
Pension, has relied on an order of the Board
of Revenue dated 17.10.2016 to discount
the services of the petitioner rendered as an
untrained
Lekhpal
prior
to
his
regularisation. If that Board order alone
were to be the law governing the right of
the petitioner to receive his retirement
pension and other post-retiral benefits, the
matter would have to be considered from a
different perspective altogether, and, may
be, to reach a very different conclusion.
The rights of parties, however, have
suffered a change, in view of the Uttar
Pradesh Qualifying Service of Pension and
Validation Act, 2021 (U.P. Act No. 1 of
2021). The aforesaid Act shall hereinafter
be referred to as "the Act".

7. The brief facts of the petitioner's
case are that he was appointed by the SubDivisional Officer, Tehsil Raja Talab,
704 INDIAN LAW REPORTS ALLAHABAD SERIES
District - Varanasi on the post of a
temporary
Lekhpal
vide
order
dated
30.03.1987. It is the petitioner's case that he
continuously worked on the post of
Lekhpal in several Tehsil of the Varanasi
district, and did so always to the
satisfaction of his superiors. He was sent
for training from 01.05.2006 to 31.07.2006.
His
services
were
regularised
w.e.f.
13.09.2006. He retired from service on
31.03.2016, upon attaining the age of
superannuation.
Post
retirement,
the
petitioner submitted his documents before
the
respondents
for
sanction
and
disbursement of his pension and other postretiral benefits. It is at this stage that the
Additional/Joint Director, Treasury and
Pension,
Varanasi,
passed
the
order
impugned dated 24.09.2017, addressed to
the Sub-Divisional Officer, Raja Talab,
Varanasi, requiring him to revise the
proposal for sanction of the petitioner's
retirement pension, after excluding from
qualifying service the period prior to
13.09.2006, that is to say, the period of
service rendered by the petitioner prior to
regularisation.

8. It is the petitioner's case, relying on
the decision of the Supreme Court in
Habib Khan v. State of Uttarakhand and
others1 that services rendered continuously
in a work-charged establishment, let alone
temporary or officiating service rendered
without interruption and followed by
confirmation, would all reckon towards
qualifying service for the grant of pension.
It is pointed out that according to the
respondents' stand in the counter affidavit
filed by respondent no. 4, the period of the
petitioner's
services
rendered
post
regularisation,
that
is
to
say,
from
13.09.2006 to 31.03.2016, does not qualify
him for the grant of retirement pension and
other benefits. The respondents, it is
pointed out, have pleaded in Paragraph No.
4 of the counter affidavit filed on behalf of
respondent no. 4, that in terms of the Board
of Revenue's orders dated 16.10.2016,
service rendered as an untrained Lekhpal
prior to regularisation does not qualify for
the purpose of pension. The petitioner's
services post regularisation being less than
ten years, do not entitle him to pension,
according to the respondents.

9.

The
petitioner
also
pleads
discrimination, by citing cases of other
Lekhpals like him, who have been
regularised later on, after a long and
continuous untrained temporary service,
but are in receipt of retirement pension,
though they have not put in the minimum
number
of years
post
regularisation.
Attention of the Court is invited, in this
connection, to an order dated 19.03.2018,
annexed as Annexure RA-1, filed in reply
to the return on behalf of respondent nos. 3
to 5, which lists fifteen Lekhpals, whose
services were regularised on 06.12.2006,
and they retired from service between
30.11.2010 and 31.12.2015, and yet were
sanctioned retirement pension, which they
are enjoying. Their names figure in the said
order, which the Court has perused.
Reliance, in particular, has been placed on
the decision of the Supreme Court in Prem
Singh v. State of U.P. and others2, where,
interpreting the provisions of the Uttar
Pradesh Retirement Benefit Rules, 19613
and Regulation 361, 368 and 370 of the
Uttar Pradesh Civil Service Regulation, it
was held that service rendered in a workcharged establishment would reckon as
qualifying
service
for
the
grant
of
retirement pension, where Rule 3(8) of the
Rules of 1961 was read down by their
Lordships of the Supreme Court to hold
that
services
rendered
prior
to
regularisation
in
a
work-charged
1 All. Bali Ram Singh Vs. State of U.P. & Ors.
705
establishment
shall
count
towards
qualifying
service
for
pension
etc.
Regulation 370 of the Civil Services
Regulations and the directions carried in
Paragraph No. 669 of the Financial
Handbook,
were
struck
down
as
discriminatory. In Prem Singh (supra), it
was held :

31. In the aforesaid facts and
circumstances, it was unfair on the part of the
State Government and its officials to take
work from the employees on the workcharged basis. They ought to have resorted to
an appointment on regular basis. The taking
of work on the work-charged basis for long
amounts to adopting the exploitative device.
Later on, though their services have been
regularised. However, the period spent by
them in the work-charged establishment has
not been counted towards the qualifying
service. Thus, they have not only been
deprived of their due emoluments during the
period they served on less salary in workcharged establishment but have also been
deprived of counting of the period for
pensionary benefits as if no services had been
rendered by them. The State has been
benefitted by the services rendered by them
in the heydays of their life on less salary in
work-charged establishment.

32. In view of the Note appended
to Rule 3(8) of the 1961 Rules, there is a
provision to count service spent on workcharged, contingencies or non-pensionable
service, in case, a person has rendered such
service in a given between period of two
temporary appointments in the pensionable
establishment or has rendered such service
in
the
interregnum
two
periods
of
temporary and permanent employment. The
work-charged service can be counted as
qualifying service for pension in the
aforesaid exigencies.

33. The question arises whether
the imposition of rider that such service to
be counted has to be rendered in-between
two spells of temporary or temporary and
permanent service is legal and proper. We
find that once regularisation had been made
on vacant posts, though the employee had
not served prior to that on temporary basis,
considering the nature of appointment,
though it was not a regular appointment it
was made on monthly salary and thereafter
in
the
pay
scale
of
work-charged
establishment the efficiency bar was
permitted to be crossed. It would be highly
discriminatory and irrational because of the
rider contained in the Note to Rule 3(8) of
the 1961 Rules, not to count such service
particularly, when it can be counted, in case
such service is sandwiched between two
temporary or in-between temporary and
permanent services. There is no rhyme or
reason not to count the service of workcharged period in case it has been rendered
before regularisation. In our opinion, an
impermissible classification has been made
under Rule 3(8). It would be highly unjust,
impermissible and irrational to deprive
such employees benefit of the qualifying
service. Service of work-charged period
remains the same for all the employees,
once it is to be counted for one class, it has
to
be
counted
for
all
to
prevent
discrimination. The classification cannot be
done on the irrational basis and when
respondents are themselves counting period
spent in such service, it would be highly
discriminatory not to count the service on
the basis of flimsy classification. The rider
put on that work-charged service should
have preceded by temporary capacity is
706 INDIAN LAW REPORTS ALLAHABAD SERIES
discriminatory and irrational and creates an
impermissible classification.

34. As it would be unjust, illegal
and impermissible to make aforesaid
classification to make Rule 3(8) valid and
non-discriminatory, we have to read down
the provisions of Rule 3(8) and hold that
services
rendered
even
prior
to
regularisation in the capacity of workcharged employees, contingency paid fund
employees
or
non-pensionable
establishment shall also be counted towards
the qualifying service even if such service
is not preceded by temporary or regular
appointment
in
a
pensionable
establishment.

35. In view of the Note appended
to Rule 3(8), which we have read down, the
provision contained in Regulation 370 of
the Civil Services Regulations has to be
struck down as also the instructions
contained in Para 669 of the Financial
Handbook.

36. There are some of the
employees who have not been regularised
in spite of having rendered the services
for 30-40 or more years whereas they
have been superannuated. As they have
worked
in
the
work-charged
establishment, not against any particular
project, their services ought to have been
regularised
under
the
Government
instructions and even as per the decision
of this Court in State of Karnataka v.
Umadevi (3) [State of Karnataka v.
Umadevi (3), (2006) 4 SCC 1 : 2006 SCC
(L&S) 753] . This Court in the said
decision has laid down that in case
services have been rendered for more
than ten years without the cover of the
Court's order, as one-time measure, the
services
be
regularised
of
such
employees. In the facts of the case, those
employees who have worked for ten years
or more should have been regularised. It
would not be proper to regulate them for
consideration of regularisation as others
have been regularised, we direct that their
services be treated as a regular one.
However, it is made clear that they shall
not be entitled to claiming any dues of
difference in wages had they been
continued in service regularly before
attaining the age of superannuation. They
shall be entitled to receive the pension as
if they have retired from the regular
establishment and the services rendered
by them right from the day they entered
the work-charged establishment shall be
counted as qualifying service for purpose
of pension.

10. By virtue of the Rule in Prem
Singh, the petitioner would certainly be
entitled to reckon his services rendered as
a temporary Lekhpal since the year 1987
for the purpose of grant of pension and
other post-retiral benefits. His case would
stand on a much better footing than those
like the petitioner in Prem Singh, who
spent most of his time in the workcharged
establishment
continuously,
though, until regularisation in service.
The petitioner has worked continuously
as a temporary Lekhpal ever since his
initial
appointment
and
eventlessly
regularised in service on 13.09.2006. This
would certainly have been the correct
assessment of the petitioner's right to
receive pension under the rule in Prem
Singh, but for legislative intervention in
the first instance by Uttar Pradesh
Ordinance 19 of 2020, that has since been
replaced by the Act w.e.f. 05.03.2021.

11. It would be profitable to extract
the provisions of the Act verbatim, together
1 All. Bali Ram Singh Vs. State of U.P. & Ors.
707
with its prefatory note, carrying the
statements of objects and reasons :

The Uttar Pradesh Qualifying Service
for Pension and Validation Act, 2021

[U.P. Act No. 1 of 2021]

[As passed by the Uttar Pradesh
Legislature]

An Act to provide for qualifying service for
pension and to validate certain actions
taken in this behalf and for matters
connected therewith or incidental thereto

It is hereby enacted in the
Seventy-second Year of the Republic of
India as follows-

Prefatory Note-Statement of
Object and Reasons.-Pension and gratuity
admissible to a retired Government servant
are determined in relation to the length of
qualifying service of the Government
servant. Although the term "Qualifying
Service" is described in the Uttar Pradesh
Civil Service Regulation and the Uttar
Pradesh Retirement Benefit Rules, 1961,
however the definition of the said term is
open to subjective interpretation which
leads to administrative difficulties.

It has, therefore, been decided to
make a law defining the term "Qualifying
Service" and to validate such definition
with effect from April 1, 1961 which is the
date of commencement of the Uttar
Pradesh Retirement Benefit Rules, 1961.

Since the State Legislature was
not in session and immediate legislative
action was necessary to implement the
aforesaid decision, the Uttar Pradesh
Qualifying
Service
for
Pension
and
Validation
Ordinance,
2020
(U.P.
Ordinance 19 of 2020) was promulgated by
the Governor on October 21, 2020.

The Bill is introduced to replace
the aforesaid Ordinance.

1.Short
title,
extent
and
commencement.-(1) This Act may be
called the Uttar Pradesh Qualifying Service
for Pension and Validation Act, 2021.

(2) It shall extend to the whole of
the State of Uttar Pradesh.

(3) It shall be deemed to have
come into force on April 1, 1961.

2.Qualifying
Service
for
Pension.-
Notwithstanding
anything
contained in any rule, regulation or
Government order for the purposes of
entitlement of pension to an officer,
"Qualifying Service" means the services
rendered by an officer appointed on a
temporary or permanent post in accordance
with the provisions of the service rules
prescribed by the Government for the post.

3.Validation.-
Notwithstanding
any Judgment, decree or order of any
Court, anything done or purporting to have
been done and any action taken or
purporting to have been taken under or in
relation to sub-rule (8) of Rule 3 of the
Uttar Pradesh Retirement Benefit Rules,
1961 before the commencement of this Act,
shall be deemed to be and always to have
been done or taken under the provisions of
this Act and to be and always to have been
valid as if the provisions of this Act were in
708 INDIAN LAW REPORTS ALLAHABAD SERIES
force at all material times with effect from
April 1, 1961.

4.Overriding effect.- Save as
otherwise provided, the provisions of this
Act shall have effect, notwithstanding
anything inconsistent therewith contained
in any other law for the time being in force
or in any instrument having effect by virtue
of any law for the time being in force other
than this Act.

5.Repeal and saving.- (1) The
Uttar Pradesh Qualifying Service for
Pension and Validation Ordinance, 2020
(U.P. Ordinance 19 of 2020) is hereby
repealed.

(2) Notwithstanding such repeal,
anything done or any action taken under the
provisions of the principal Act, as amended
by the Ordinance referred to in sub-section
(1) shall be deemed to have been done or
taken under the corresponding provisions
of the principal Act as amended by this Act
as if the provisions of this Act were in force
at all material times.

12. It is evident that the Act nullifies
the effect of the decision in Prem Singh,
and there could be an issue about its
constitutional
validity.
The
petitioner,
however, has chosen not to challenge the
vires of the Act, though the changed
position was brought to the notice of the
learned Counsel for the petitioner at the
instance of the State, when U.P. Ordinance
19 of 2020 was promulgated, which has
since been repealed and replaced by the
Act. A look at Section 2 of the Act does not
brook doubt that services rendered by an
officer appointed on a temporary or
permanent basis, in accordance with the
provisions of the Service Rules, would
reckon for qualifying service under the Act.
Section 3 validates all actions in terms of
the Act that were hitherto governed by subrule (8) of Rule 3 of the Rules of 1961
retrospectively
w.e.f.
April
1,
1961,
notwithstanding any judgment, decree or
order of any Court. The clear purport of the
Act is to define qualifying service in terms
of Section 2 thereof retrospectively, and not
in terms of Rule 3(8) of the Rules of 1961
of
Regulation
3
of
Civil
Services
Regulations.

13. The learned Counsel for the
petitioner, within the frame of the writ
petition and its limited scope that does not
question the vires of the Act or any of its
provisions, relies on the decision of a
Division Bench of this Court in State of
U.P.
through
Secretary,
Secondary
Education and others v. Kamlesh Babu
Gaur and another4. He submits that in
that case, it was held by this Court that the
petitioner, who was appointed on ad hoc
basis on 25.01.1996 as an Assistant
Teacher, but denied pensionary benefits on
ground that he was regularised in service
on 22.03.2016 and therefore, had not
completed ten years of qualifying service,
entitling him to pension, was indeed
entitled to reckon for qualifying services
the period of his ad hoc services. It is
pointed out that in State of Uttar Pradesh
v. Kamlesh Babu Gaur (supra) it was
held that the ad hoc appointment being
approved by the District Inspector of
Schools on 03.07.1997, in a case where the
petitioner had been initially retained on ad
hoc basis against a sanctioned post, the
appointment was one made as per the
Service Rules. It is urged that here, the
petitioner was appointed as a temporary
employee against a sanctioned post, which
is a case much better than that before the
Division Bench in State of Uttar Pradesh
v. Kamlesh Babu Gaur. The submission is
1 All. Bali Ram Singh Vs. State of U.P. & Ors.
709
that temporary appointment against a
substantive
post,
that
has
continued
uninterrupted over a long period of time,
has to be reckoned towards qualifying
service, as envisaged under Section 2 of the
Act. In State of Uttar Pradesh v.
Kamlesh Babu Gaur, the facts and the
principle on which the decision turned, can
best be appreciated in the words of their
Lordships, which read to the following
effect :

3. The facts on record shows that
petitioner was appointed on ad hoc basis on
25.01.1996. It was bearing approval of
District Inspector of Schools, Hathras. The
approval for it was given after a writ
petition bearing number 3321 of 1997. The
approval by the District Inspector of
Schools by the order dated 03.7.1997
shows appointment of the petitioner/nonappellant to be as per the rules.

4. It is not in dispute that
petitioner/non-appellant
retired
after
rendering 22 years of service. The claim of
pension was yet denied despite the fact that
petitioner was even regularized in service
subsequently. The denial of pensionary
benefit by order dated 05.11.2019 was
challenged before the learned Single Judge.
Denial was per se on the ground that
petitioner was substantially appointed as
Assistant Teacher on 22.3.2016 and he has
not completed 10 years' service thereupon.
The order dated 05.11.2019 was passed in
ignorance of the fact that the order dated
22.3.2016 was to regularize the service of
the petitioner without nullifying his ad hoc
appointment made as per rules. If the ad
hoc appointment of petitioner would not
have been made as per rules, there was no
reason for District Inspector of Schools to
grant approval by order dated 03.7.1997
and that too the approval from the date of
appointment dated 25.01.1996.

5. The present appeal has been
filed
in
reference
to
Uttar
Pradesh
Qualifying Service For Pension And
Validation Ordinance 2020 (in short
"Ordinance of 2020"). It is stated that
period of service on ad hoc or temporary
basis should not have been counted by
learned Single Judge as has been nullified
by the Ordinance of 2020. Thus, even the
judgment by the Apex Court in the case of
Prem Singh vs. State of U.P. (2019) 10
SCC 516 could not have been applied by
the learned Single Judge.

6. We find that identical issue
came up for consideration before this Court
in the case of State of U.P. through its
Secretary and others vs. Mahendra Singh,
Special Appeal Defective No.1003 of 2020.
Therein the case was considered in the light
of the Ordinance of 2020 and finding that
appointment of the petitioner therein on
temporary basis was as per rules, period of
servicewas ordered to be counted towards
qualifying service for pensionary benefits.

7. In the case in hand, the
petitioner/ non-appellant was appointed on
ad hoc basis but was against the sanctioned
post. Thus, approval as per rules was given
to his appointment by the District Inspector
of Schools. The regularization of service
may be subsequently by an order issued in
the year 2016 but then as per the Ordinance
of 2020, the period of service rendered
after appointment on temporary basis as per
rules could not have been ignored. ........

.............
710 INDIAN LAW REPORTS ALLAHABAD SERIES

.............

8. A perusal of Section 2 of the
Ordinance of 2020 reveals that service
rendered by an officer appointed on a
temporary or permanent post in accordance
with the provisions of service rules would
be counted towards qualifying service.

9. In view of the above, even the
Ordinance of 2020 would not affect the
claim
of
the
petitioner/non-appellant
having
been
appointed
against
the
sanctioned post, may be initially on ad hoc
but as per rules and subsequently his
service was regularized. It is not the case of
the respondents that initial appointment of
the petitioner was against the rules. It is
moreso when the writ petition was filed
with
clear
statement
of
fact
that
petitioner/non- appellant was appointed
against
the
sanctioned
post
and
in
accordance with rules. Therefore, even
approval to his appointment was given by
the District Inspector of Schools.

14. It is apparent that the ad hoc
appointment of the Assistant Teacher in
State of Uttar Pradesh v. Kamlesh Babu
Gaur was found to be in accordance with
the relevant Service Rules, when initially
made, and against a substantive post. Here,
what this Court finds, from a reading of the
letter of appointment dated 07.05.1978, that
the petitioner was appointed by the SubDivisional Magistrate (द), Varanasi as a
temporary Lekhpal, on the basis of a report
submitted
by
the
Tehsildar,
Sadar,
Varanasi. The appointment letter does not
reflect at all that the petitioner was
appointed
in
accordance
with
the
provisions of the Service Rules governing
recruitment, selection or appointment. The
mere fact that the appointment has been
labelled or dubbed as temporary, does not
implicitly mean that it is one made in
accordance with the Service Rules. Exfacie, the petitioner's appointment is dehors
the Rules.

15. This Court has also gone through
the petitioner's service book, which reflects
that the petitioner has continued in service
uninterruptedly since 07.05.1987, until
regularisation on 13.09.2006, with his
status being reflected earlier as temporary.
There is no hint in the service book to show
that the petitioner's appointment prior to his
regularisation
granted
after
requisite
training was one made in accordance with
the Service Rules. It also needs to be
remarked that during the entire period of
service rendered as a temporary Lekhpal,
the petitioner has received recurring
increments, pay revisions and Assured
Career Promotion, but all that does not
show that the petitioner was selected and
appointed in accordance with the Service
Rules. Rather, the fact that the petitioner
had to undergo training for three months
from 01.05.2006 to 31.07.2006, before he
was
granted
regularisation
by
the
Appointing Authority, shows that the
service rendered by him earlier, though
uninterrupted and in a regular pay scale,
was one on the basis of an appointment
dehors the rules. Therefore, the learned
Counsel for the petitioner is not correct in
his submission, that the principle in State
of Uttar Pradesh v. Kamlesh Babu Gaur
(supra)
would
be
attracted
to
the
petitioner's case. Section 2 of the Act that is
pari materia with Section 2 of the
predecessor
ordinance,
would
bear
differently upon the petitioner's rights, and
not the way it did in the case before the
Division Bench under reference. The
reason is that in the case before the
Division
Bench,
the
initial
ad
hoc
appointment of the writ petitioner was
1 All. Naveen Chand Sharma Vs. Ramu Babu
711
found to be in accordance with the relevant
Service rules, whereas, in this case, the
petitioner's appointment, though labelled as
temporary and in its turn, uninterrupted, is
not found to be one made in accordance
with the Service Rules.

16. Learned Counsel for the petitioner
further relied on the decision of the Division
Bench in State of U.P. v. Bhanu Pratap
Sharma5. In the said decision also, it was
held that it is not the State-appellant's case
that the respondent was not appointed in
accordance with the provisions of the
Service Rules. Here, it is a case where the
petitioner has not been able to show that he
was appointed at any time before his
regularisation
in
accordance with the
Service Rules, though he was appointed
against a sanctioned post on a temporary
basis. The appointment, nevertheless, was
dehors the rules. Thus, the decision in State
of Uttar Pradesh v. Kamlesh Babu Gaur
(supra) would also be of no help to the
petitioner. The rights of the petitioner judged
under the shadow of Section 2 and 3 of the
Act cannot be regarded as ones entitling him
to qualifying service. The reason is that the
petitioner's retention in service, though
dubbed as temporary, was not made in
accordance with the relevant Service Rules.
The appointment between 07.05.1987 and
13.01.2006, until he was regularised in
service, was one dehors the Rules. Post
regularisation, the petitioner has admittedly
not completed 10 years of qualifying service
to entitle him to pension, gratuity and other
post-retiral benefits that he seeks. As such,
the petitioner is not entitled to relief.

17. In the result, the writ petition fails
and stands dismissed.

18. There shall be no order as to
costs.
----------
(2022)01ILR A711
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 60998 of 2010

Naveen Chand Sharma ...Petitioner
Versus
Ramu Babu ...Respondent

Counsel for the Petitioner:
Sri Rahul Sahai, Sri Aditya Singh Parihar

Counsel for the Respondents
Sri B.P. Verma, Sri Bhanu Prakash Verma

A. Civil Law - The U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 21(1)(b) - Experience in
a particular business is not a pre-condition
under the statute nor is there any principle
requiring a landlord to prove his experience in
the particular business, which he desires to
establish in the premises that he seeks to be
released. All that he is required to prove is his
need, which should be bona fide. The landlord
has a right to earn his livelihood by
attempting any business permissible by
law, even if he does not have any
experience with it. Thus, this Court finds that
the finding recorded by the Appellate Court on
the question of bona fide need based on the
landlord's lack of experience with the business
of a grocer or a general merchant, ex facie
proceeds on an irrelevant consideration. (Para
20 & 22)
Writ Petition Allowed. (E-10)

List of Cases cited: