# Board of Revenue & Ors v. Ram Ji Shukla

- **Citation:** (2023) 6 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Civil Misc. Review Application No. 121 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/board-of-revenue-ors-v-ram-ji-shukla-50443
- **Pages:** 13

## Headnote

A. Civil Law - U. P. Qualifying Service for
Pension and Validation Act, 2021-Sections
2 & 3-Retiral benefits-Reckoning of past
service-Rules of 1974 do not contain any
provision for making appointment to a
post of Collection Amin on a seasonal
basis and, therefore, any service rendered
by an employee prior to his appointment
under the Rules of 1974, would not be in
furtherance of an appointment made in
accordance with service rules and it will
not be reckoned as " qualifying service"
under Section 2 of Act 1 of 2021. (Para 31
to 53)
The review petition is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,907 of 42,448. This is a partial read: ask again with offset=39907 for what follows._

174 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 6 ILRA 174
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Civil Misc. Review Application No. 121 of 2022
Along with
Civil Misc. Review Application No. 307 of 2022
Civil Misc. Review Application No. 117 of 2022
Civil Misc. Review Application No. 84 of 2023

Board of Revenue & Ors. ...Applicants
Versus
Ram Ji Shukla ...Opposite Party

Counsel for the Applicants:
C.S.C.

Counsel for the Opposite Party:
Devi Prasad Maurya

A. Civil Law - U. P. Qualifying Service for
Pension and Validation Act, 2021-Sections
2 & 3-Retiral benefits-Reckoning of past
service-Rules of 1974 do not contain any
provision for making appointment to a
post of Collection Amin on a seasonal
basis and, therefore, any service rendered
by an employee prior to his appointment
under the Rules of 1974, would not be in
furtherance of an appointment made in
accordance with service rules and it will
not be reckoned as " qualifying service"
under Section 2 of Act 1 of 2021. (Para 31
to 53)
The review petition is allowed. (E-6)

List of Cases cited:

1. Ghanshyam Mishra Vs St. of U.P. & ors.
(2013) SCC Online All 3809

2. S.K. Naushad Rahman Vs U.O.I. & ors.
(2022) AIR SC 1494
3. G.J. Farnandes Vs St. of Maysoor (1967) AIR
SC 1753

4. Vijay Narayan Thatte Vs St. of Mah. (2009) 9
SCC 92

5. Prem Singh Vs St. of U.P. (2019) 10 SCC 516

6. St. of U.P. & ors. Vs Mahendra Singh, SPLD
No. 1003 of 2020

7. Bhavnagar Univ. Vs Palitana Sugar Mill (P)
Ltd. (2003) 2 SCC 111

8. BSNL Vs Mishri Lal (2011) 14 SCC 739

9. Chandra Singh Vs St. of U.P. & ors. (2022) 3
ALJ 781

10. Board of Revenue Vs Prasidh Narain
Upadhyay (2006) 2 All LJ 66

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Dr. L. P. Mishra, Sri S. S.
Rajawat, Sri Yogendra Kumar Mishra, Sri
Dileep Gautam, Sri Devi Prasad Maurya,
Sri
Kuldeep
Pati
Tripathi,
learned
Additional Advocate General assisted by
Sri Rohit Nandan Shukla, learned Standing
Counsel, Sri Shailendra Kumar Singh,
learned Chief Standing Counsel assisted by
Sri Vivek Shukla, the learned Additional
Chief Standing Counsel and Sri. Amitabh
Rai, the learned Additional Chief Standing
Counsel for the respective parties.

2. Review Application No. 121 of
2022 has been filed for review of the
judgment and order dated 21.06.2021
passed by a coordinate Bench of this Court
whereby the Special Appeal Defective No.
259 of 2020 filed by the appellant against
the judgment and order dated 26.02.2019
passed by the learned Single Judge
allowing Writ Petition No. 8737 (S/S) of
2011 filed by the opposite party-petitioner
and holding that the opposite party-
6 All. Board of Revenue & Ors. Vs. Ram Ji Shukla
175
petitioner is entitled for retiral benefits,
including pension, taking into account his
services rendered as a Seasonal Collection
Amin on temporary basis, has been set
aside.

3. The opposite party-petitioner in
Writ Petition No. 8737 (S/S) of 2011 was
initially appointed as Seasonal Collection
Peon on 01.08.1979 and thereafter he was
appointed as regular Collection Peon under
the quota meant for direct recruitment from
amongst Seasonal Collection Peon under
the provisions of the relevant Service
Rules. The case set up by the opposite
party-petitioner is that his appointment as
Seasonal Collection Peon was a temporary
appointment and, as such, in terms of the
provisions contained in U. P. Retirement
Benefit Rules, 1961, the services rendered
by him as a Seasonal Collection Peon are to
be counted for the purposes of reckoning
the "qualifying service" for payment of
pension.

4. Review Application No. 117 of
2022 has been filed for review of the
judgment and order dated 22.04.2022
passed by this Bench whereby the special
appeal filed by the appellant against the
judgment and order dated 17.09.2021
dismissing Writ Petition No. 20874 (S/S) of
2021, was dismissed and the order passed
by the Hon'ble Single Judge holding that
services rendered by the petitioner as a
Seasonal Collection Amin cannot be taken
into consideration as qualifying service for
the purpose of payment of pension, has
been affirmed.

5. The case set up by the opposite
party-petitioner in Writ Petition No. 20874
(S/S) of 2021 was that his appointmanent
as Seasonal Collection Peon was a
temporary appointment and, as such, in
terms of the provisions contained in U.P.
Retirement
Benefit
Rules,
1961,
the
services rendered by him as Seasonal
Collection Peon are to be counted for the
purposes of reckoning the "qualifying
service".

6. Special Appeal Defective No. 84 of
2023 has been filed by the State against the
judgment and order dated 13.09.2022
passed by an Hon'ble Single Judge
allowing Writ A No. 4305 of 2021 and
directing the respondents to compute
pensionary
benefits
payable
to
the
petitioner after taking into account the
service rendered by the petitioner as a
Seasonal Collection Amin.

7. The Special Appeal Defective No.
307 of 2022 has been filed by the State
against the judgment and order dated
23.09.2022, passed by Hon'ble Single
Judge, whereby the petition was allowed in
terms
of
the
aforesaid
order
dated
13.09.2022, passed in Writ-A No.4305 of
2021.

8. As to whether the services rendered
as a Seasonal Collection Peon are to be
taken into account for the purposes of
reckoning
the
qualifying
service
for
pension or not, is the issue involved in all
these connected matters.

9. Presently, the service conditions of
the Collection Amins are regulated by The
Uttar Pradesh Collection Amins' Rules,
1974 (which will hereinafter be referred to
as 'the Rules of 1974), which came into
being with effect from 24.08.1974.

10. On 24.05.2022, this Court had
passed an order directing the State to
furnish information on the following
points: -
176 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) As to whether there are any
service
rules/
executive
instructions/
Government Order for appointment of
seasonal employees such as Seasonal
Collection Amins and Seasonal Collection
Peons.

(ii) as to whether the post of
seasonal
employees
i.e.
Seasonal
Collection Peons and Seasonal Collection
Amins were ever created or they were
engaged
without
availability
of
any
substantive posts.

(iii) once seasonal employees
were engaged by the revenue authorities in
the tehsils/sub divisions, from they were /
are paid their salary/emolument. The
learned State Counsel shall produce all
relevant documents which may throw some
light as to the nature of engagement of
Seasonal Employees such as, Seasonal
Collection Amins and Seasonal Collection
Peons.

11. In response to first query, the
learned State counsel has submitted that
Seasonal Collection Amins are appointed
under Para 19 of the U. P. Collection
Manual.

12. Para-19 of the U. P. Collection
Manual provides that the Sub-Divisional
Magistrate shall keep a close watch on the
need for appointment of seasonal Amins for
assistance of the appointed Amins, on
annual basis. It further provides that the
Sub-Divisional Magistrate will submit a
report to the Collector for sanction of
additional seasonal employees by showing
cause therefor and presenting region -wise
data of the demands to be recovered under
various categories, for making a request to
the Divisional Commissioner.

13. In response to the second query,
the State has informed that various
Government Orders and orders passed by
the
Board
of
Revenue
deal
with
appointment of Seasonal Collection Amin /
peon, but no statutory service Rule has
been framed in this regard. A Government
Order
dated
13.09.1999
specifically
declares that the seasonal employees
working under Consolidated Collection
Scheme are not full time government
employees and on 15.07.2000, the Board of
Revenue had issued a Circular to all the
Collectors in the State, reiterating the
recitals made in the aforesaid Government
Order dated 13.09.1999.

14. In response to the third query, the
State has informed that Seasonal Collection
Amins / Peons are paid salary from the
same head, from which the salary of the
regular Collection Amins / regular Peons is
paid.

15. It has been submitted on behalf of
the State that the seasonal employees are
not appointed in accordance with any
statutory service Rules framed by the
Government and their service conditions
are not governed by any such Rules.

16. In Ghanshyam Mishra versus
State of U. P. and others, 2013 SCC
OnLine All 3809, the issue involved was as
to whether the service rendered by the
petitioner in the capacity of Seasonal
Collection Amin on temporary basis can be
taken into consideration for the purposes of
computing qualifying service. A Single
Judge Bench of this Court held that: -

"On the dictum of Apex Court,
the ad-hoc service rendered cannot be kept
at par with regular service and benefit of
the same cannot be extended for computing
ten years regular service. On the same
analogy once term "temporary employee"
6 All. Board of Revenue & Ors. Vs. Ram Ji Shukla
177
is of general category wherein incumbents
engaged as per exigencies of service are of
various sub-categories such as seasonal,
causal, daily rated, ad-hoc services then
the same cannot be kept at par with
regular service, and once petitioner's
services had never been made regular then
certainly in such a situation and in this
background as petitioner continued to be
seasonal
temporary
employee
and
continued on the strength of interim order
as such no relief or reprieve could be given
to him as he has not to his credit "10 years
of regular service", which is per-requisite
term and condition for grant of pension to
a temporary employee also.

17. Subsequently, on 21.10.2020 the
State Legislature promulgated The Uttar
Pradesh Qualifying Service for Pension and
Validation
Ordinance,
2020
(U.
P.
Ordinance No. 19 of 2020), which was
replaced by The Uttar Pradesh Qualifying
Service for Pension and Validation Act,
2021", (U. P. Act No.1 of 2021) with effect
from 04.03.2021, which was enacted to
provide for qualifying service for pension
and to validate certain actions taken in this
behalf and for matters connected therewith
or incidental thereto.

18. The Statement of Object and
Reasons of the aforesaid Act states that
"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."

19. Sections 2 and 3 of U. P. Act No. 1
of 2021 are being quoted herein below: -

"2.
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. 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 force at
all material time with effect from April 1,
1961.

20. Sri Kuldeep Pati Tripathi, the
learned Additional Advocate General, Sri.
Amitabh Rai, the learned Additional Chief
Standing Counsel and Sri. Rohit Nandan
Shukla, the learned Standing Counsel, have
submitted that the Rules of 1974 do not
contain
any
provision
for
making
appointment to a post of Collection Amin
on a seasonal basis and, therefore, any
service rendered by an employee prior to
his appointment under the Rules of 1974,
178 INDIAN LAW REPORTS ALLAHABAD SERIES
would not be in furtherance of an
appointment made in accordance with the
service rules and it will not be reckoned as
"qualifying service" under Section 2 of the
Act 1 of 2021.

21. The learned State Counsel have
also submitted that where there is a conflict
between the provisions contained in any
Act, Rules and executive instructions, the
Act will prevail over the Rules and the
executive instructions. In support of the
above
submissions,
learned
Standing
Counsel relied upon a decision of Hon'ble
Supreme Court in the case of S. K.
Naushad Rahman Versus Union of India
and others,AIR 2022 SC 1494 and thus
have argued that U. P. Act No. 1 of 2021
will
prevail
in
case
there
is
any
inconsistency between the provision of the
Act and those of any rules or any executive
instructions.

22. Relying upon a decision of
Hon'ble Supreme Court in the case of G. J.
Farnandes Versus State of Maysoor, AIR
1967 SC 1753, the learned State Counsel
have
also
submitted
that
executive
instructions do not have any statutory force
and no writ petition can lie for enforcement
of any right based on the executive
instructions.

23. Per contra, Dr. Lalta Prasad
Mishra, the learned counsel appearing on
behalf of the petitioner-respondents in
Review Petition No. 121 of 2022 has
submitted that Rule 3 (i) of the Rules of
1974
defines
'Seasonal
Amins'
and
therefore the aforesaid post is contemplated
in the Rules of 1974.

24. Clauses (h), (i) and (j) of Rule 3 of
U. P. Collection Amins' Service Rules,
1974 (hereinafter referred to as 'the Rules
of 1974') defines the terms 'members of
service', 'seasonal amins' and 'service' as
follows: -

"(h) "Member of the service"
means a person substantively appointed
under these rules or the rules or orders in
force prior to the commencement of these
rules to a post in the cadre of the service.

(i) "Seasonal Amin" means an
Amin appointed for Rabi or Kharif or for
both the reasons;

(j) "Service" means the Uttar
Pradesh Collection Amins' Service."

25. Rule 4 of the aforesaid Rules
defines the term 'strength of service' as
follows: -

"4. Strength of Service. -

(1) the strength of service shall
be such as may be determined by the
Governor from time to time.

(2) The permanent strength of the
service shall, until orders by reading the
same have been passed under subrule one,
be as given below:

collection Amin
is
(ordinary
grade) 5341

collection
Ameens
(selection
grade) 593;

Provided that -

(a) the Collector may leave and
failed or the Governor may hold in
appearance anywhere can't post without
thereby
entitling
any
person
to
compensation; and

(b) the Governor may create such
additional permanent or temporary posts
as may be considered necessary."

26. Rule 5 of the aforesaid Rules
contains the following provision for the
source of recruitment
6 All. Board of Revenue & Ors. Vs. Ram Ji Shukla
179

"5. Source of recruitment. -

(1) Recruitment to posts in the
ordinary grade of the service shall be made
on the result of a competitive examination
as provided in part V of these Rules:

Provided
that
subject
to
availability of suitable candidates, up to
fifteen per cent of the vacancies shall be
filled by promotion from amongst such
substantively appointed Collection Peons -

(a) who have passed at least High
School Examination of the board of High
School and Intermediate Education, Uttar
Pradesh, or an Examination recognised by
the government as equivalent thereto; and

(b) who have worked in the
Collection Organization of the Revenue
Department for a period of at least six
fasls:

Provided that..."

27. It is relevant to note that the Rules
of 1974 contain no provision for making
appointment on seasonal basis. Although a
certain percentage of posts of ordinary
cadre of the service are reserved for being
filled in by Seasonal Collection Amins, the
Seasonal Collection Amins themselves are
not included amongst the strength of
service as defined in Rule 4 of the Rules of
1974. Therefore, a mere mention of
Seasonal Amins in the Rules, without any
provisions for appointment of the Seasonal
Amins, will not make the appointment of
Seasonal Collection Amins as per Rules of
1974.

28. Two things are significant to note
regarding
appointment
of
seasonal
collection Amins. First is that the provision
for their appointment is contained in the U.
P. Collection Manual, which is merely a
collection of Executive Instructions which
is neither a Statute nor Rules framed under
any Statute. Second, the seasonal posts are
sanctioned by the Divisional Commissioner
on the request made by the Collector in
furtherance of a report submitted by the
Sub-Divisional Magistrate, whereas the
strength of service of collection Amins
under the U. P. Collection Amins' Service
Rules,
1974,
is
determined
by
the
Governor, as provided in Rule 4 of the
Rules of 1974.

29. Dr. Mishra has next submitted that
the Circular dated 22.02.1991 issued by the
Board of Revenue provides that the
appointment of Seasonal Collection Amin
and Seasonal Collection Peon will be made
on pay-scales sanctioned for the post,
which
indicates
that
the
post
was
sanctioned. This submission is also not
acceptable for the reason that Rule 4 (1) of
the Rules of 1974 specifically provides that
the strength of service shall be such as may
be determined by the Governor from time
to time, which clearly indicates the
authority to sanction the posts of Amins
under the Rules of 1974 vests in the
Governor only, whereas as per Para 19 of
the U. P. Collection Manual, the seasonal
posts of Collection Amins are sanctioned
by the Divisional Commissioner. Therefore,
a mere direction regarding fixation of pay
scales of Seasonable Collection Amins will
not make their posts sanctioned under the
Rules.

30. Dr. Mishra has further submitted
that the pension is not a bounty, it is a
succor and that pension is a property
protected
by
Article
300-A
of
the
Constitution of India and it cannot be taken
away except in accordance with the law
and the law 'does not include the
government order'. He has submitted that
the provisions of law relating to grant of
pension to the employees have to be
construed liberally.
180 INDIAN LAW REPORTS ALLAHABAD SERIES

31. We may observe in this regard
that there can be no dispute against the
proposition that pension cannot be taken
away except in accordance with the law,
but at the same time, the pension cannot
be ordered to be paid except in
accordance with the law, and in any case,
it cannot be ordered to be paid in
violation of the specific provisions of law,
which in the present case is the U. P. Act
No. 1 of 2021.

(Emphasis supplied by the Court)

32. It is true that the provisions of law
regarding payment of pension to retired
employees are to be interpreted liberally,
but the question of liberal interpretation
would arise only when there is any
ambiguity in the provision of law relating
to grant of pension, in which case, the
provision would be interpreted liberally.
However, here the provision contained in
Section 2 of the U. P. Act No.1 of 2021 are
not ambiguous and, therefore, question of
liberal interpretation of its provisions does
not arise at all in this case. In Vijay
Narayan Thatte v. State of Maharashtra,
(2009) 9 SCC 92, the Hon'ble Supreme
Court reiterated this well established
principle of interpretation of statutes in the
following words: -

"22. In our opinion, when the
language of the statute is plain and clear
then the literal rule of interpretation has
to be applied and there is ordinarily no
scope for consideration of equity, public
interest or seeking the intention of the
legislature. It is only when the language of
the statute is not clear or ambiguous or
there is some conflict, etc. or the plain
language leads to some absurdity that one
can depart from the literal rule of
interpretation. A perusal of the proviso to
Section 6 shows that the language of the
proviso is clear. Hence the literal rule of
interpretation must be applied to it. When
there is a conflict between the law and
equity it is the law which must prevail. As
stated in the Latin maxim dura lex sed lex
which means "the law is hard but it is the
law"."
(Emphasis supplied)

33. Dr. Mishra has next submitted that
the
Seasonal
Collection
Amins
are
appointed against temporary or permanent
posts and when there are no Rules
governing
the
appointments,
the
appointments have to be made as per
Government Orders. We find ourselves
unable to accept this submission also as the
Seasonal Collection Amins are engaged on
seasonal basis as per exigencies of work
after sanction made by the Divisional
Commissioner, on a request made by the
Collector in furtherance of a report to be
submitted by the Sub-Divisional Magistrate
and they are not appointed against any
temporary or permanent posts created by
the Government. It is not that there are no
Rules governing the appointments of
Collection Amins, but those Rules provide
that the posts of Collection Amins shall be
sanctioned by the Governor and the said
Rules do not contain any provision for
appointment of Seasonal Collection Amins
and, therefore, the appointment of Seasonal
Collection Amins made under executive
instructions on posts sanctioned by the
Divisional Commissioner for a particular
season only cannot be treated as an
appointment made in accordance with the
Rules.

34. The learned counsel for the
respondents next submitted that the mere
factum of appointment gives rise to a
presumption that the appointment was
6 All. Board of Revenue & Ors. Vs. Ram Ji Shukla
181
made against a sanctioned post, otherwise
payment cannot be drawn from the
consolidated fund. In this regard we are of
the considered opinion that when there are
specific provisions of law authorizing the
Governor
to
sanction
the
posts
of
Collection Amins, any appointment made
on posts not sanctioned by the Governor
can, by no stretch of imagination, be
presumed to have been made on a
sanctioned post and, therefore, we are
unable to accept this submission also.

35. Dr. Mishra has relied upon the
judgments in the cases of Prem Singh
versus State of U. P., (2019) 10 SCC 516,
wherein the Hon'ble Supreme Court read
down Rule 3 (8) of the U. P. Retirement
Benefits Rules, 1961 and held that services
rendered in the work-charged establishment
shall be treated as qualifying service under
the aforesaid Rule for grant of pension.

36. In Prem Singh (Supra) the
employee concerned was appointed as a
welder in the year 1965 in a work-charged
establishment. He was transferred from one
place to another and thereafter ultimately
the Selection Committee recommended for
regularization of his services. His services
were regularized on 13-03-2002 and he was
posted as a pump operator in the regular
establishment. He superannuated on 31-012007. Then he filed a writ petition in the
High Court on 31-07-2008 with the prayer
to count the period spent in the workcharged establishment as qualifying service
under the Rules of 1965. In the present
case, the Appellant was being engaged as
seasonal collection Amin, on a seasonal
basis and not on regular basis. The U. P.
Act No. 1 of 2021 had not been enacted till
decision of Prem Singh's case and,
therefore, Prem Singh is not an authority
for interpreting the provisions of the
aforesaid Act No.1 of 2021. Therefore, the
law laid down in Prem Singh has no
application in this case.

37. Sri. Y. K. Mishra appearing for the
petitioner-respondent in Review Petition
No. 117 of 2022 has submitted that State of
Uttar Pradesh and others vs. Mahendra
Singh, Special Appeal (Defective) No.
1003 of 2020 was decided on 04.02.2021,
after promulgation of the Ordinance 19 of
2020 and in that case, a co-ordinate Bench
of this Court had held that: -

"It is clear from perusal of
Section 2 of the Ordinance that it would
have
effect
notwithstanding
anything
contained in U.P. Retirement Benefit Rules,
1961 or Regulation 361 and 370 of the
Civil Service Regulation. Though it has
been informed at the bar that in certain
writ petitions, validity of the aforesaid U.P.
Ordinance has been challenged, however,
even if for purpose of adjudicating the
present appeal the Ordinance is accepted
as it is, section 2 thereof would inure to the
benefit to the opposite party-petitioner and
not to the benefit of appellants. The word
"Qualifying Service" has been defined in
Section 2 of the aforesaid U.P. Ordinance
to mean 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.

As
discussed
aforesaid,
the
appellants have admitted the appointment
of
the
opposite
party-petitioner
on
temporary post of Godown Chaukidar from
04.09.1981 till the date of his appointment
on a regular post in 1997. Therefore, under
this very U.P. Ordinance, the petitioner is
entitled to his claim for counting the period
of his service from the date of his
appointment on 04.09.1981 on a temporary
182 INDIAN LAW REPORTS ALLAHABAD SERIES
post
till
his
regularization
on
the
permanent post in the year 1997."

38.
The
Division
Bench
while
deciding Mahendra Singh (Supra) has
though noticed Section 2 of the Ordinance,
which is in pari materia with Section 2 of
the U. P. Act No. 1 of 2021, however, there
is no discussion or mention or finding as to
whether the employee was appointed "in
accordance with the provisions of the
service rules". In the aforesaid view of the
matter, the judgment in Mahendra Singh
(Supra)
is
not
a
binding
precedent
regarding the impact of U. P. Act No. 1 of
2021 (before that, the Ordinance) in matters
where the initial appointment of an
employee was made on ad-hoc basis / as
daily wager / work charge employee /
seasonal employee or any other non regular
category of employment. Our view finds
support by the judgment of the Hon'ble
Supreme Court in the case of Bhavnagar
University v. Palitana Sugar Mill (P)
Ltd., (2003) 2 SCC 111, wherein it was
reiterated that "A decision, as is well
known, is an authority for which it is
decided and not what can logically be
deduced therefrom."

39. Sri. Y. K. Mishra next submitted
that numerous Writ Petitions have been
allowed by counting the service rendered
by the employee as Seasonal Collection
Amin while computing the qualifying
service for payment of pension and,
therefore, this Court should take the same
view on the ground of parity as also to
balance the equities.

40. The aforesaid submission of Sri. Y.
K. Mishra does not appeal to us for numerous
reasons. First, the submission is vague, as he
has not placed before this Court any of the so
called numerous decisions referred by him.
Secondly, the mere fact of numerous Writ
Petitions having been allowed would not
affect the provisions of law, unless the law
has been interpreted and settled by any
judgment which has a binding precedential
value. Thirdly, equity can only supplement
the law and it cannot supplant the law. In any
case, the equity cannot override the express
provisions of law.

41. In BSNL v. Mishri Lal, (2011) 14
SCC 739, the writ petition was filed praying
for quashing of the Recruitment Rules, 2005
as well as the letters by which the writ
petitioners were told to appear in the limited
internal
competitive
examination
for
promotion. The writ petition was allowed and
the order was challenged before the Hon'ble
Supreme Court. The Hon'ble Supreme Court
allowed the Appeal and held that the decision
to fill up the posts in question by limited
internal competitive examination was a
policy decision and the High Court could not
have found fault with it. It is well settled that
the Court cannot ordinarily interfere with
policy decisions. The Hon'ble Supreme Court
further held that "There is no question of
equity in this case because it is well settled
that law prevails over equity if there is a
conflict. Equity can only supplement the law
and not supplant it. As the Latin maxim states
"dura lex sed lex" which means "the law is
hard, but it is the law".

42. Other learned Counsel appearing
in the case have also advanced their
submissions, but the same are overlapping
the submissions recorded and dealt with in
the earlier part of this judgment and,
therefore, the same are not being repeated.

43. In terms of the provisions
contained in Section 2 of U. P. Act No.1 of
2021 qualifying service requires- (i) the
employee concerned should have been
6 All. Board of Revenue & Ors. Vs. Ram Ji Shukla
183
appointed either on a temporary or
permanent post and, (ii) his appointment
should have been made in terms of the
provisions contained in Service Rules.

44. The Seasonal Collection Amins are
engaged as per exigencies of work and they
are not appointed against any temporary or
permanent post. Further, they are not
appointed in terms of the provisions
contained in any service Rules. At the cost
of repetition it may be observed that para
19 of the U. P. Collection Manual provides
that the Sub Divisional Magistrate shall
minutely supervise the requirements of the
appointments of Seasonal Collection Amin
on annual basis for assisting the Amins and
will submit a report to the Collector, who
will made a request to the Divisional
Commissioner
for
sanctioning
the
appointment
of
Additional
Seasonal
Employees. However, the U. P. Collection
Manual is a merely a collection of
administrative instructions and it is not a
statute or statutory rules.

45. In Chandra Singh vs. State of
U.P. and Ors. 2022 (3) ALJ 781, this Court
held that: -

"13. A Seasonal Collection Amin
is appointed for a limited time only for a
specified duty, on the completion of which
he is discharged. Duty performed as a
Seasonal Collection Amin intermittently,
will
not
fall
within
the
category
"continuous
temporary
or
officiating
service under the Government of Uttar
Pradesh" within the purview of Rule 352
(a) of the Civil Service Regulations
reproduced above. It will also not fall
within the purview of "services rendered by
an officer appointed on a temporary or
permanent post" occurring in Section 2 of
the U.P. Act No. 1 of 2021. Therefore, the
service rendered by petitioner as seasonal
collection Amin cannot be added while
computing qualifying service as defined
under
Article
361
of
Civil
Service
Regulation or Section 2 of The Uttar
Pradesh Qualifying Service of Pension and
Validation Act, 2021."

46. The Hon'ble Single Judge had
dismissed the Writ Petition holding that the
post of Collection Amin is a seasonal post
and it is not a regular post and therefore the
competent authority had rightly not counted
the services rendered by the petitioner to be
his regular service. While dismissing the
Special Appeal filed against the aforesaid
order passed by Hon'ble Single Judge, the
Division
Bench
has
taken
into
consideration the provisions of U. P. Act
No.1 of 2021 and has held that the services
rendered on seasonal basis as Collection
Amin will not fall within the purview of
'service rendered by an officer appointed
on temporary or permanent basis' and as
has
been
discussed
above,
such
appointment is not in accordance with any
service rules.

47. Review Petition No. 117 of 2022 has
been filed for review of the aforesaid
judgment and in view of the foregoing
discussion, we do not find any error in the
aforesaid judgment, much less an error
apparent on the face of the record, warranting
review of the aforesaid judgment. Therefore,
we are of the considered opinion that the
judgment dated 22.04.2022, passed in Special
Appeal No.398 of 2021 does not suffer from
any error, much less an error which is
apparent on the face of record. The Review
Petition No.117 of 2022 lacks merit and it is
liable to be dismissed.

48. Now we come to Review Petition
No. 121 of 2022, which seeks review of the
184 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment dated 21.06.2021 passed in
Special Appeal Defective No. 259 of 2020.
The
aforesaid
Special
Appeal
was
dismissed on the ground that: -

"The Government Order dated
1.7.1989
provides
that
temporary
Government Servants who have completed
minimum 10 years of service would be
entitled for pension, gratuity and family
pension on the same rate as are payable to
the permanent employee under the relevant
Rules.
However,
while
rejecting
the
representation of the respondent-petitioner,
the competent authority has considered
only the period of service rendered by the
respondent-petitioner
after
becoming
permanent i.e., 7 years 6 months 2 days
and since he had not completed 10 years of
service
after
becoming
permanent,
therefore, the pension has been denied.

It is not in dispute that the
Government Order dated 1.7.1989 is in
force."

49. The Division Bench decided the
Special
Appeal
after
following
the
judgment in the case of Board of Revenue
v. Prasidh Narain Upadhyay, (2006) 2 All
LJ 66, which was also a case decided prior
to enactment of U. P. Act No. 1 of 2021
which
had
followed
the
Ordinance
containing similar provisions. In that case,
the respondent had worked as a Collection
Peon since 10.02.1962 till he retired on
attaining the age of superannuation on
31.07.1999 after working for more than 37
years. The Hon'ble Single Judge found that
in the Service Book, his employment was
mentioned as Collection Peon (Temporary)
but subsequently it was mentioned in the
service book that he was working as
Seasonal Collection Peon. The notice of
retirement dated 05.05.1999 mentioned the
designation of the petitioner as Collection
Peon and not a Seasonal Collection Peon.
In the year 1996 the appellants had made a
recommendation to the Board of Revenue
for regularization of the petitioner's service
but no order could be issued and in the
meantime he retired on 31.07.1999. The
Division Bench decided the Appeal after
taking note of the fact that the pensionary
benefit was denied for the only reason that
a
formal
order
of
confirmation
or
regularization had not been issued by the
appellants. In this background, the Division
Bench held that: -

"12.
The
term
"qualifying
service" is defined in section 1 Chapter 16
of Article 361 of the Civil Service
Regulations, which provides that the
service of an officer does not qualify for
pension unless it conforms to the following
three conditions:-

(A) The service must be under
Government.

(B) The employment must be
substantive and permanent.

(C) The service must be paid by
Government.

13.In the present case, so far as
the condition Nos. A and C are concerned,
they are satisfied and the dispute is only
with respect to condition No. B, i.e., lack of
permanent character of service. However,
in our view, the aforesaid provisions stand
obliterated
after
the
amendment
of
Fundamental Rule 56 by U. P. Act No. 24 of
1975 which
allows
retirement
of
a
temporary employees also and provides in
clause (e) that a retiring pension is payable
and other retiral benefits, if any, shall be
available to every Government servant who
retires or is required or allowed to retire
under this rule. Since the aforesaid
Amendment Rule 56 was made by an Act of
Legislature,
the
provisions
contained
otherwise under Civil Service Regulations,
6 All. Board of Revenue & Ors. Vs. Ram Ji Shukla
185
which are pre-constitutional, would have to
give way to the provisions of Fundamental
Rule 56. In other words, the provisions of
Fundamental Rule 56 shall prevail over the
Civil Service Regulations, if they are
inconsistent. Conditions (supra) of Article
361 of Civil Service Regulations are clearly
inconsistent with Fundamental Rule 56 and
thus is inoperative."

14.A similar controversy came up
for consideration earlier before this Court
in
the
case
ofDr.
Hari
Shankar
Ashopav.State of U.P. 1989 (59) FLR 110.
After referring to the Fundamental Rule 56
and various provisions contained in Civil
Service Regulations, this Court observed as
under:-

"Clause
(e)
of
Rule
56
unequivocally recognizes, declares and
guarantees retiring pension to every
Government
servant
who
retires
on
attaining the age of superannuation, or
who is prematurely retired or who retires
voluntarily.
To
be
precise,
every
Government servant (whether permanent
or temporary) who retires under clause (a)
or clause (b), or who is required to retire,
or who is allowed to retire under clause (c)
of Rule 56, becomes entitled for a retiring
pension, of course, the first and third
conditions stipulated in article 361 of the
Regulations are satisfied."

15.In this view of the matter, the
contention of the appellants that since the
petitioner-respondent was not a permanent
confirmed employee and hence not entitled
for pension, is clearly misconceived and is
rejected."

50. Although U. P. Act No. 1 of 2021
had come into force with effect from
04.03.2021, it escaped attention of the
Division Bench while it was deciding the
Special Appeal Defective No. 259 of 2020
on 21.06.2021. Therefore, we are of the
considered view that there is an apparent
error in the judgment dated 21.06.2021
passed by the Division Bench dismissing
the Special Appeal Defective No. 259 of
2020 without taking into consideration the
provision of U. P. Act No. 1 of 2021.
Accordingly Review Petition No.121 of
2022 deserves to be allowed.

51. Special Appeal Defective No. 84
of 2023 has been filed by the State against
the judgment and order dated 13.09.2022
passed by Hon'ble Single Judge allowing
Writ A No. 4305 of 2021 and directing the
respondents to compute pensionary benefits
payable to the petitioner after taking into
account the service rendered by the
petitioner as a Seasonal Collection Amin.
In view of the foregoing discussion, this
Special Appeal deserves to be allowed and
the order passed by the Hon'ble Single
Judge is liable to be set aside.

52. The Special Appeal Defective No.
307 of 2022 has been filed by the State
against the judgment and order dated
23.09.2022, passed by Hon'ble Single
Judge, whereby the petition was allowed in
terms
of
the
aforesaid
order
dated
13.09.2022, passed in Writ-A No.4305 of
2021 and, therefore, this Special Appeal
also deserves to be allowed and the order
passed by the Hon'ble Single Judge is
liable to be set aside.

ORDER

53. Review Petition No.121 of 2022
is allowed. The judgment and order dated
21.06.2021 dismissing Special Appeal
Defective No. 259 of 2020 is hereby set
aside. Consequently, the Special Appeal is
allowed and the judgment and order dated
26.02.2019 passed in Writ Petition No.
8737 (S/S) of 2011 is also set aside and the
186 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid Writ Petition is dismissed for the
reason that the service rendered by the
petitioner as seasonal collection was not on
any temporary or permanent post, in
furtherance of an appointment made in
accordance with any Rules framed by the
Government.

54. The Special Appeal (D) No. 307
of 2022 is allowed and the judgment and
order dated 23.09.2022 passed in Writ A
No. 6005 of 2022 is also set aside and the
aforesaid Writ Petition is dismissed.

55. Review Petition No. 117 of 2022
is dismissed.

56. The Special Appeal (D) No. 84 of
2023 is hereby allowed and the judgment
and order dated 13.09.2022 passed in Writ
A No. 4305 of 2021 is also set aside and the
aforesaid Writ Petition is dismissed.

57.