# Dashrath Lal v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 576
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-18
- **Case number:** Writ A No. 39402 of 2017
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dashrath-lal-v-state-of-u-p-ors-45019
- **Pages:** 6

## Headnote

A. Service Law - Civil Services Regulationspetitioner was senior clerk on regular pay
scale -period worked on ad-hoc basis in
permanent establishment- shall also be
counted in computation of pensionable
service.

Writ Petition allowed. (E-9)

List of cases cited: -

## Text

576 INDIAN LAW REPORTS ALLAHABAD SERIES
i.e. 30 March 1999, with all consequential
benefits.

41. The cost of litigation assessed at
Rs.25,000/- payable to the petitioner by
the second respondent.
----------

(2019)12 ILR A576

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 39402 of 2017

Dashrath Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gautam Baghel, Sri D.K. Ojha

Counsel for the Respondents:
C.S.C.

A. Service Law - Civil Services Regulationspetitioner was senior clerk on regular pay
scale -period worked on ad-hoc basis in
permanent establishment- shall also be
counted in computation of pensionable
service.

Writ Petition allowed. (E-9)

List of cases cited: -

1. Shashi Srivastava v. State of U.P. & Another
2019 (7) ADJ 302 (DB)

2. Prem Singh v. State of U.P. 2019 LawSuit
(SC) 1557

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Gautam Baghel, learned
counsel
for
the
petitioner,
learned
Standing Counsel appearing for the State
respondents and perused the record.

2. By means of this petition under
Article 226 of the Constitution, the
petitioner has challenged the order dated
21.02.2017,
whereby,
the
total
pensionable service of the petitioner has
been counted as 14 years 9 months and 10
days and the period running from
26.06.1987 to 21.12.2001 during which
the petitioner worked only on ad-hoc
capacity has been held to be not countable
for the purposes of pension.

3. Briefly stated facts of the case are
that the petitioner was appointed on
25.06.1987 on the post of Senior Clerk on
regular pay scale but on ad-hoc basis and
his appointment was to last till regular
selection was to be made.

4. It transpires that the petitioner
continued to work on ad-hoc basis until
he came to be regularized on 01.06.2016.
The order regularizing the services of the
petitioner
dated
01.06.206
for
convenience, is reproduced hereunder:

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foHkkx]
iz[k.M bykgkckn

i=kad 523@xzk0v0fo0@2016&17

fnukad 01&6&16^^
dk;kZy; vkns'k

'kklukns'k
la[;k
15@18@86&dk&1&2001 y[kuÅ fnukad 20-122001 esa fufgr funsZ'k ds varxZr Jh n'kjFk yky
dfu"B lgk;d 1⁄4rnFkZ :i ls fu;qDr1⁄2 dk
fofu;ferhdj.k v/kh{k.k vfHk;Urk] xzkeh.k vfHk;U=.k
foHkkx]
ifje.My
bykgkckn
ds
i=kad
650@xzk0v0fo0@LFkk0@fofu;ferhdj.k@2012&13
fnukad 16-8-2012 esa fd;k x;k FkkA funs'kd ,oa
eq[; vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx] m0iz0
y[kuÅ
ds
i=kad
2147&2246@xzk0v0fo0@LFkk0&2@vejthr&bykgk
ckn@2014&15 fnukad 17-11-2014 ds vuqikyu esa
4 All. Dashrath Lal Vs. State of U.P. & Ors.
577
v/kh{k.k vfHk;Urk] xzkeh.k vfHk;U=.k foHkkx]
ifje.My
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01-12-2014 }kjk fofu;ferhdj.k dk;Zokgh fd, tkus
dk funsZ'k fn;k x;kA

mDr ds vuqikyu esa Jh n'kjFk yky
dfu"B lgk;d dks mijksDr lanfHkZr 'kklukns'k
fnukad 20-12-2001 ds ifjikyu esa iz[k.M esa rRle;
miyC/k dfu"B lgk;d ds in ds lkis{k fnukad 2012-2001 ls dfu"B lgk;d ds in ij
fofu;ferhdj.k fd;k tkrk gSA
vf/k'kk"kh vfHk;Urk
xzkeh.k vfHk;U=.k foHkkx
iz[k.M bykgkckn

i=kad ,oa fnukad mijksDrkuqlkj&

izfrfyfi& fuEufyf[kr dks lwpukFkZ ,oa
vko';d dk;Zokgh gsrq izsf"krA

1& lacaf/kr deZpkjh] xzkeh.k vfHk;U=.k
foHkkx] iz[k.M bykgkcknA

2& v/kh{k.k vfHk;Urk] xzkeh.k vfHk;U=.k
foHkkx] ifje.My bykgkcknA

3& eq[; ofj"B lgk;d] xzkeh.k
vfHk;U=.k foHkkx] iz[k.M bykgkcknA

4& O;fDrxr i=koyh gsrqA

vf/k'kk"kh vfHk;Urk

xzkeh.k vfHk;U=.k foHkkx

iz[k.M bykgkckn

5. From the bare reading of the
aforesaid order regularizing the services
of the petitioner, it is clearly revealed that
the petitioner has been regularized against
the post on which he had continued since
1986 on ad-hoc basis. The petitioner
thereafter,
attained
the
age
of
superannuation on 30.09.2016.

6. The question then arose relating
the period of service that the petitioner
has
rendered
for
the
purposes
of
computation of pensionable service and
by the impugned order dated 21.02.2017,
the period during which the petitioner
continued on ad-hoc basis, has been left
out and the period from 2001 until the age
of superannuation by the petitioner
worked on a regular basis after his
regularization in service, has only been
computed.

7. The argument advanced by
learned counsel for the petitioner is that
the issue regarding qualifying period of
service for pension purpose whether
would include temporary, ad-hoc or work
charge period of service, is no more res
integra and for this purpose, he has placed
reliance of a judgment of this Court in the
case of Shashi Srivastava v. State of
U.P. & Another 2019 (7) ADJ 302 (DB).

8.

Considering
the
relevant
provisions of Rule 3(8) of Civil Services
Regulations, as contained in Regulation
368, the Division Bench has held that the
period during which a person has
continued on ad-hoc basis in a permanent
establishment, shall also count towards
the pensionable service. The relevant
paragraphs of the judgment in the case of
Shashi Srivastava (supra) are reproduced
hereunder:

"6. Under U.P. Retirement
Benefit Rules, 1961 (hereinafter referred
to as "Rules, 1961") "qualifying service"
is defined in Rule 3(8). It means 'service'
which qualifies for pension in accordance
with provisions of Article 368 of C.S.R.
Rule 3(8) is quoted as below:-

"Rule
3(8)-
"
Qualifying
service" means service which qualifies for
pension in accordance with the provisions
of Article 368 of the Civil Services
Regulations:

Provided
that
continuous
temporary or officiating service under the
Government of Uttar Pradesh followed
without interruption by confirmation in
the same or any other post except-
578 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) periods of temporary or
officiating service in a non-pensionable
establishment.

(ii) periods of service in a workchanged establishment, and

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

Note- If service rendered in a
non-pensionable
establishment,
workcharged establishment or in post paid
form contingencies falls between two
periods of temporary service in a
pensionable establishment or between a
period
of
temporary
service
and
permanent service in a pensionable
establishment, it will not constitute an
interruption of service." (emphasis added)

 7.
Article
368,
C.S.R.,
provides that service does not qualify,
unless officer holds a substantive office in
a permanent establishment. Articles 368
and 369 are quoted herein below:

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

369.
An
establishment,
the
duties of which are not continuous but are
limited to certain fixed periods in each
year, is not a temporary establishment.
Service
in
such
an
establishment,
including the period during which the
establishment is not employed qualifies
but the concession of counting as service
the period during while the establishment
is not employed does not apply to an
officer who was not on actual duty when
the establishment was discharged, after
completion of its work, or to an officer
who was on actual duty on the first day on
which the establishment was again reemployed."

8. It is not in dispute that
petitioner was appointed on substantive
post in permanent establishment which
is/was
pensionable.
Nature
of
his
appointment i.e. ad-hoc appointment is
not of much relevance in as much as
period spent by him as ad-hoc was in
permanent
pensionable
establishment,
which
ultimately
resulted
into
regularization of petitioner without any
break in service.

9. Moreover, vide Sub-rule 8 of
Rule 3 of Rules 1961, qualifying service
includes temporary service followed by
confirmation
and
continued
without
interruption. In this view of the matter,
services rendered by petitioner on ad-hoc
basis followed by Regularization would
stand covered under "qualifying service"
defined under Rule 3(8) of Rules 1961, for
the purpose of pension.

10. In taking this view we are
fortified by a Division Bench decision in
State of U.P. and Others vs. Dr.
Amrendra Narain Srivastava, 2012 (8)
ADJ 376. Similar issue recently has been
considered by this Court in Dr. Indrapal
Singh Sachan vs. State of U.P. and 4
Others, (Writ -A o. 62179 of 2015)
decided on 07.02.2018, wherein this
Court has followed judgment passed in
Writ Petition No. 65873 of 2014 and
directed that adhoc service would be
counted for payment of retiral benefit
treating the same as "qualifying service".
Judgment passed in Dr. Indra Pal Singh
Sachan (supra) reads as under:-

"Heard
Shri
Ashok
Khare,
learned Senior Counsel, assisted by Shri
Siddharth Khare, learned counsel for the
petitioner and learned Standing Counsel
appearing for the respondents.

Pleadings have been exchanged
between the parties and we have perused
the same.

The petitioner is aggrieved by
the office order dated 9th September,
4 All. Dashrath Lal Vs. State of U.P. & Ors.
579
2015, passed by the Principal Secretary,
AYUSH, State of U.P., whereby the
representation of the petitioner, for
payment of pensionary benefits, has been
rejected.

The petitioner was appointed as
Ayurvedic doctor on contract basis vide
order dated 1.12.1988. The petitioner
continued to function as such. A Writ
Petition No. 4806 of 1990 (U.P. Anskalik
Chikitsak Sangrah Samiti vs. State of U.P.
and another), came to be filed by
association of Ayurvedic doctors. It was
decided vide judgment and order dated
11.9.1992, with a direction to consider
the claim of their regularisation within six
months and for the payment of full salary
of a Medical Officer.

In pursuance of the above
judgment of this Court, an office order
was issued on 28.2.1992, directing for
treating the services of the contract basis
Ayurvedic doctors on ad hoc basis. The
petitioner was also included in the list
attached with the aforesaid office order
and his services also were treated on ad
hoc basis.

Subsequently, by order dated
25th September, 2009, the services of all
ad hoc doctors were regularized and,
accordingly, the services of the petitioners
were also regularized with effect from
16.3.2005. The petitioner, ultimately,
retired on 30.9.2007. On his retirement,
he raised a claim for grant of pensionary
benefits,
which
was
not
accepted.
Therefore, he filed Writ Petition No.
49467 of 2012 (Dr. Indrapal Singh
Sachan vs. State of U.P. and others),
which was disposed of on 22.4.2015,
observing that the issue arising in the
petition stand answered by the decision of
the Court, rendered in Writ Petition No.
61974 of 2011 (Dr. Amrendra Narain
Srivastava vs. State of U.P. and others),
which has been followed in Writ Petition
No. 65873 of 2014 (Dr. Mohd. Mahboob
Husain Abbasi vs. State of U.P. and 4
others).
Accordingly,
the
Principal
Secretary,
Department
of
Medical
Education,
Government
of
U.P.,
Lucknow, was directed to consider the
claim of the petitioner within a timebound period, keeping into mind the
parameters as has been settled in the
aforesaid two decisions.

In pursuance of the above, the
impugned
order
has
been
passed,
rejecting
the
representation
of
the
petitioner with regard to the claim of the
pentionary benefits.

The claim of the petitioner has
been distinguished in it from that of Dr.
Amerendra Narain Srivastava, on the
ground that the petitioner was never
confirmed, therefore, his services cannot
be counted for the purposes of grant of
pension. In the case of Amrendra Narain
Srivastava, the Division Bench has dealt
with the Uttar Pradesh Retirement Benefit
Rules, 1965, and the period of qualifying
service mentioned therein vis a vis
Regulation 368 of the Civil Services
Regulations and came to the conclusion
that the petitioner therein shall be entitled
to pension from the date on which he
joined the services by adding the services
rendered by him in temporary capacity to
his services rendered by him with the
Government Department on substantive
basis. In other words, on being absorbed
in
the
Government
Department
in
substantive capacity or being regularized,
it was provided that the services earlier
rendered by him may be in a temporary
capacity has to be counted for the
purposes of payment of pension.

The aforesaid decision has been
followed in the case of Dr. Mohd.
Mahboob Husain Abbasi.
580 INDIAN LAW REPORTS ALLAHABAD SERIES

In the instant case also, the
services of the petitioner, treated to be on
ad hoc basis vide order dated 28.2.1992,
was ultimately regularized vide order
dated 25.9.229 with effect from 16.3.2005.
Thus, once the petitioner stood duly
regularized/confirmed,
the
services,
rendered
by
him
prior
to
his
regularization on ad hoc basis, would be
included in his length of service for the
purposes of grant of pension. In this way,
for the purposes of pension, the petitioner
has rendered service with effect from
28.2.1992 till 30.9.2007. The said period
is more than the qualifying service period
of 10 years necessary for the grant of
pensionary benefits.

In view of the aforesaid facts
and circumstances, the distinction, made
by the Principal Secretary in passing the
impugned order, is not tenable and,
accordingly, the same is hereby quashed,
holding that services rendered by the
petitioner with effect from 28.2.1992,
shall be counted in his services rendered
by him after his regularization for the
purposes of grant of pension. The
respondents are, as such, directed to work
out the pension admissible to the
petitioner as aforesaid and to start paying
the same as well as the arrears. The
arrears shall be paid with interest of 8 per
cent within a period of three months.

The writ petition is allowed,
accordingly."

9. Very recently, the Apex Court in
the case of Prem Singh v. State of U.P.
2019 LawSuit (SC) 1557 has observed in
quite unequivocal terms that even the
service period of an employee in capacity
of a work charged employee shall be
added while counting qualifying service
for computation of pension. Vide para 29
and 30, the Apex Court has observed thus:

"29. We are not impressed by
the
aforesaid
submissions.
The
appointment
of
the
work-charged
employee in question had been made on
monthly salary and they were required to
cross the efficiency bar also. How their
services are qualitatively different from
regular
employees?
No
material
indicating qualitative difference has
been pointed out except making bald
statement. The appointment was not
made for a particular project which is
the basic concept of the work charged
employees. Rather, the very concept of
work-chargedemployment
has
been
misused by offering the employment on
exploitative terms for the work which is
regular
and
perennial
in
nature.
Payment used to be made monthly but the
appointment was made in the pay scale of
Rs.200-320. Initially, he was appointed in
the year 1978 on a fixed monthly salary of
Rs.205 per month. They were allowed to
cross efficiency bar also as the benefit of
pay scale was granted to them during the
period they served as work-charged
employees they served for three to four
decades and later on services have been
regularized time to time by different
orders. However, the services of some of
the appellants in few petitions/ appeals
have not been regularized even though
they had served for several decades and
ultimately
reached
the
age
of
superannuation.

30. In the aforesaid facts and
circumstances, it was unfair on the part
of the State Government and its officials
to take work from theemployees on the
work-charged 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
4 All. Hari Om Yadav Vs. State of U.P. & Ors.
581
regularized. 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 work charged 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. (Emphasis
added)

10. Learned Standing Counsel
appearing for the contesting respondents
does not dispute the above legal position.

11. In view of the above facts and
circumstances of the case and the legal
position emerging out from the judgment
(supra), this writ petition deserves to be
allowed.

12. The writ petition succeeds and is
accordingly allowed.

13. The order dated 21.02.2017
(Annexure No. 8 to the writ petition) and
the order dated 24.03.2017 (Annexure No.
10 to the writ petition) are hereby quashed
and the respondents are directed to
include the period of service which the
petitioner has spent on ad-hoc basis from
25.06.1987
till
20.12.2001
towards
pension and the pension shall accordingly
be calculated and the due amount as
consequence thereof shall be paid within a
period of three months from the date of
production of certified copy of this order.
----------
(2019)12 ILR A581

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2019 &
15.11.2019

BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 58005 of 2017
&
Ref: Civil Misc. Correction Appl. No. 7 of 2019

Hari Om Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Srivastava, Sri Ashok
Khare

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

A.
Education
Law
-
Intermediate
Education Act, 1921 - Section 16 FF -
Minority Institution - Appointment on the
post of Assistant Teacher - L.T. grade -
DIOS disapproved the selection - on the
ground-that
post
had
lapsed
under
relevant regulations and advertisement -
not proper - not held anywhere that
petitioner was ineligible otherwise - DIOS
can withhold the approval only on ground
of lack of qualification.

Writ Petition allowed. (E-9)

List of cases cited: -

1. Mukesh Singh Chauhan and others v. State
of U.P. and others, 2006 (4) AWC 3471

2. C/M St. John's Girls' Inter College M.G.
Road, Agra v. Joint Director of Education, Agra
Region, Agra and others (Writ- A No.- 29428
of 2017 decided on 19th August, 2017)

3.
The
Manager,
Corporate
Educational
Agency v. James Mathew and others, (Civil
Appeal Nos.- 826-827 of 2017)

4. Secretary Malankara Syrian Catholic College
v. T. Jose and others, reported in 2007 (1)
SCC 386