# Dhananjay Mishra & Anr v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 716
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Writ-A No. 12902 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhananjay-mishra-anr-v-state-of-u-p-ors-51960
- **Pages:** 10

## Headnote

A. Service Law - Retirement - Merger of
District Rural Development Agency (DRDA)
with Government Department - Earlier the
petitioners were appointed on the post of
Clerk under the Gandak Project, who were
absorbed in DRDA in pursuance of GO
dated 18.07.2016 - Authority denied
pensionary benefit - Validity challenged -
Petitioner claimed the pensionary benefits
5 All. Dhananjay Mishra & Anr. Vs. State of U.P. & Ors.
717
under GO dated 26.04.1991 as well as the
parity with those employees, who were
directly absorbed in Govt. Department -
Entitlement - Held, GO dated 18.07.2016
does not introduce an arrangement of
compulsion. It gives employees of the
DRDA the election to accept absorption
into government service in the Department
of
Rural
Development,
subject
to
conditions mentioned in the Government
Order. One of the conditions is that the
employees absorbed into the DRDA, who
elect to join the Department of Rural
Development, would be treated upon
absorption as a dying cadre and governed
by the New Pension Scheme, 2005 - The
petitioners acquiesced to their absorption
in the DRDA despite the fact that similarly
situate persons were quickly moved away
and absorbed in Government Departments.
Now, being treated, whether rightly or
mistakenly,
as
directly
appointed
employees of the DRDA, when absorbed in
government service much later in the day
in terms of the Government Order dated
18.07.2016, which again the petitioners, as
already said, accepted with open eyes, they
cannot be allowed to turn around and fall
back
upon
their
original
rights
as
retrenched employees of the Gandak
Project,
entitled
to
absorption
in
a
Government Department directly; not as
directly appointed employees of the DRDA.
(Para 19 and 22)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

716 INDIAN LAW REPORTS ALLAHABAD SERIES
Vidya Sagar's date of birth was in fact
21.01.1950 and not 21.01.1955. Therefore,
the
deceased
did
work
beyond
his
entitlement to serve as he would have
attained the age of superannuation going by
the age of 62 years in the year 2012. Here,
he worked up to the date of the impugned
order dated 16.12.2013. We are also of
opinion that even if he had to retire in the
year 2012, there would be some extended
service for him on account of the rule of
session benefit etc.

17. Be that as it may, the fact is that the
deceased Vidya Sagar rendered service up to
16.12.2013 and received his monthly salary.
His entitlement to salary would only be up
to the date of his superannuation in
accordance with the rule applicable, but to
recover the salary paid from him or his
estate, would indeed be taking begar, under
the circumstances that we have noticed.

18. Added to it is the fact that the
recovery, if any, now directed, would have
to be made from his estate in hands of his
widow. It would be highly inequitable to
direct that and the extension of this equity is
not contrary to the law also.

19. Therefore, this Court holds that no
recovery shall be made from the petitioner,
the deceased Vidya Sagar's widow or his
estate in her hands, including the deceased's
post retiral benefits. Of course, the
deceased's post retiral benefits shall be
finalized
according
to
his
date
of
superannuation worked out on the basis of
his date of birth being 21.01.1950. The
petitioner would be entitled to sanction of a
final family pension worked out on that
basis and so also gratuity and other post
retiral benefits, to which she is entitled as the
deceased's widow for the services rendered
by him. All these benefits and a finally
determined family pension, shall be paid to
the petitioner within a period of six weeks of
the date of receipt of a copy of this order by
respondent Nos.3 and 4. The impugned
order dated 16.12.2013 passed by the Basic
Shiksha Adhikari, Firozabad is quashed to
the extent it directs recovery alone. This writ
petition succeeds and allowed in part in
terms of the orders above made.

20. There shall be no order as to costs.

21. Let a copy of this order be
communicated to the Additional Director of
Education (Basic), Agra Region, Agra and
the Basic Shiksha Adhikari, Firozabad by
the Registrar (Compliance).
----------
(2024) 5 ILRA 716
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

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

Writ-A No. 12902 of 2023

Dhananjay Mishra & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Awadh Behari Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Retirement - Merger of
District Rural Development Agency (DRDA)
with Government Department - Earlier the
petitioners were appointed on the post of
Clerk under the Gandak Project, who were
absorbed in DRDA in pursuance of GO
dated 18.07.2016 - Authority denied
pensionary benefit - Validity challenged -
Petitioner claimed the pensionary benefits
5 All. Dhananjay Mishra & Anr. Vs. State of U.P. & Ors.
717
under GO dated 26.04.1991 as well as the
parity with those employees, who were
directly absorbed in Govt. Department -
Entitlement - Held, GO dated 18.07.2016
does not introduce an arrangement of
compulsion. It gives employees of the
DRDA the election to accept absorption
into government service in the Department
of
Rural
Development,
subject
to
conditions mentioned in the Government
Order. One of the conditions is that the
employees absorbed into the DRDA, who
elect to join the Department of Rural
Development, would be treated upon
absorption as a dying cadre and governed
by the New Pension Scheme, 2005 - The
petitioners acquiesced to their absorption
in the DRDA despite the fact that similarly
situate persons were quickly moved away
and absorbed in Government Departments.
Now, being treated, whether rightly or
mistakenly,
as
directly
appointed
employees of the DRDA, when absorbed in
government service much later in the day
in terms of the Government Order dated
18.07.2016, which again the petitioners, as
already said, accepted with open eyes, they
cannot be allowed to turn around and fall
back
upon
their
original
rights
as
retrenched employees of the Gandak
Project,
entitled
to
absorption
in
a
Government Department directly; not as
directly appointed employees of the DRDA.
(Para 19 and 22)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Pepsu Road Transport Corporation, Patiala &
anr. Vs S.K. Sharma & ors., (2016) 9 SCC 206

2. Zila Gram Vikas Abhikaran Seva Nivrat
Karamchari Kalyan Samiti & anr. Vs St. of U.P. &
ors.; 2023:AHC-LKO:35044

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

1. This writ petition is directed against
an order dated 28.02.2020 passed by the
Commissioner, Rural Development, Uttar
Pradesh, Lucknow, rejecting the petitioners'
claim
for
the
provision
of pension
contribution
and
leave
encashment
contribution in order to enable the said
petitioners to claim retirement pension and
leave encashment.

2. Heard Mr. K.D. Singh, learned
Counsel for the petitioners and Ms. Monika
Arya, learned Additional Chief Standing
Counsel appearing on behalf of the State.

3. The first petitioner, Dhananjay
Mishra and the second petitioner, Ramesh
Chandra Rai, are the two petitioners, who
have instituted this writ petition. The facts of
their cases are different and this Court
would, therefore, venture to set them out
separately, at least so far as these are
different.

Facts relating the first petitioner
Dhananjay Mishra's case

4. Dhananjay Mishra, petitioner No.1,
was initially appointed a Junior Clerk on
12.02.1980 with a Soil Conservation Project in
District Gorakhpur, called the Gandak Project.
He was transferred and posted to District
Deoria under the same project. By an order
dated 31.10.1988 passed by the Deputy
Director, Gandak Project, Padrauna, District
Deoria, the first petitioner was confirmed as a
Senior Clerk w.e.f. 01.12.1982. It is the first
petitioner's case that while confirming him in
service, there was a mention in the letter of
confirmation to the effect that from the date of
confirmation, the employee will be entitled to
pension in accordance with Civil Service
Regulations, and service rendered prior to
confirmation, would be included for the
purpose of reckoning the qualifying service.

5. The Gandak Project in the State was
abolished and employees thereof, who were
718 INDIAN LAW REPORTS ALLAHABAD SERIES
surplus, were required to be absorbed in
Government Departments, putting certain
conditions to it. These conditions inter alia
were that the benefit of absorption would be
available to employees appointed prior to
01.10.1986,
and
further,
about
the
applicability of rules relating to government
servants with regard to general provident
fund, leave encashment, pension etc., with
effect from the date of appointment of an
employee
absorbed,
in
a
particular
Government Department. This arrangement
was
made
vide
Government
dated
26.04.1991. The Government Order dated
26.04.1991
made
provision
for
the
absorption of surplus employees of the
abolished Gandak Project, in various
Departments of the Government. However,
according to the first petitioner, for reasons
best known to the respondents, he was
absorbed
not
in
any
Government
Department, but in the District Rural
Development Agency (for short, 'DRDA')
by
the
Chief
Development
Officer/
Executive Director, DRDA, Mau vide order
dated 05.05.1990. About the DRDA, it is
said by Mishra that they were a registered
society, registered under the Societies
Registration
Act,
1860.
It
was
an
Establishment of the Government. The
Chief Development Officer of the District
was its Executive Director at the District
Headquarters. This Establishment was set
up to implement the Rural Development
Programme of the Government. The DRDA
was a society, as already said, but
completely under the control of the State
Government. There were no rules framed
governing service conditions of employees
of the DRDA. Therefore, a circular dated
17.03.1994 was issued by the Government,
mentioning
therein
that
the
service
conditions of employees, not provided in the
circular, would be governed by such rules,
regulations and orders, as apply ordinarily to
serving government servants.

6. It is the first petitioner's case that
though a surplus employee of the Gandak
Project, he was not absorbed in a
Government Department, but in the DRDA.
Deduction
towards
GPF
and
Group
Insurance was not being made from his
salary and that of other employees as well.
Therefore, the first petitioner and similarly
circumstanced employees, raised their
grievance before the Joint Development
Commissioner, Gorakhpur, who forwarded
their claim with regard to deposit of
contribution/ deduction from their salary
towards G.P.F. and Group Insurance vide
his
memo
dated
11.01.1991
to
the
Additional District Magistrate (Projects),
Siddharth Nagar. The first petitioner
admittedly
retired
from
service
on
28.02.2017 upon attaining the age of
superannuation. His notice of retirement
dated 25.01.2017 shows that he retired as an
employee of the DRDA. He was never
absorbed in service of any Department of the
Government.

7. The first petitioner earlier moved
this Court vide Writ-A No.20234 of 2019,
seeking grant of pension and leave
encashment, referring to orders in this behalf
passed by the respondents. In the counter
affidavit filed to the aforesaid writ petition,
the Commissioner, Rural Development,
Lucknow filed a copy of the order dated
28.02.2020, by which the first petitioner's
claim for pension and leave encashment was
rejected by the Commissioner, Rural
Development. He then moved an application
in the aforesaid writ petition for withdrawal
with liberty to file a fresh petition. The first
petitioner, after withdrawing the said writ
petition vide order dated 31.07.2023 with
5 All. Dhananjay Mishra & Anr. Vs. State of U.P. & Ors.
719
liberty, instituted the present writ petition
along with the second petitioner.

Facts
relating
to
the
second
petitioner, Ramesh Chandra Rai

8. The second petitioner, Ramesh
Chandra Rai, was initially appointed as a
Junior Clerk under the Gandak Project in the
office of the Assistant Soil Conservation
Officer, Gorakhpur in the pay scale of
Rs.200-5-250.
Upon
completion
of
satisfactory service, Rai was confirmed/
regularized on the said post by the Assistant
Soil Conservation Officer, Gandak Project,
Gorakhpur on 30.09.1982. With ten years'
satisfactory service complete, Rai was
extended the benefit of selection grade by the
Soil Conservation Officer, Gandak Project,
Sishwa Bazar, Maharajganj on 20.03.1990.
When the Gandak Project was abolished and
the employees declared surplus, a list was
drawn up for absorption in other Departments
of the Government in terms of the
Government Order dated 06.02.1990. The
Joint Development Commissioner, Gorakhpur
issued subsequent orders in compliance with
the order dated 06.02.1990 on 02.04.1990,
asking the District Magistrate of the district
concerned to absorb surplus employees of
Gandak Project on equivalent posts in the
Districts of Mau, Maharajganj and Siddharth
Nagar. Some of the surplus employees of the
Gandak Project were absorbed in the office of
the
District
Development
Officer,
Maharajganj, the DRDA, Maharajganj, the
District Development Officer, Mau, the
DRDA, Mau and the District Development
Officer, Siddharth Nagar, where as per orders
issued by the Government, the absorption had
to be made in a Government Department.

9. It is pointed out that some of the
surplus employees of the abolished project,
like Gomtilal Srivastava, Ram Adhar and
Ram Awadh Verma, who were absorbed in
the DRDA, Maharajganj, were again
absorbed in a Government Department, to
wit, the District Development Office,
Maharajganj, whereas the second petitioner,
who was absorbed in the DRDA, Mau and
posted as a Junior Accounts Clerk on a
vacant
post
in
the
National
Rural
Employment Programme, sanctioned by the
Government, is still continuing with the
DRDA, Mau, instead of being absorbed in a
Government Department, for which he is
entitled under the law after merger of the
DRDA with the Department of the Rural
Development,
Government
of
Uttar
Pradesh.

10. It is the second petitioner's case
that under the Government Order dated
26.04.1991, employees of the Gandak
Project, after absorption, would be entitled
to benefits of GPF, leave encashment,
pension etc., as admissible to government
servants from the date of absorption. The
Commissioner,
Rural
Development,
Lucknow, however, issued an order dated
01.02.2002 with regard to the payment of
leave encashment to employees of the
DRDA, though it was said that they were not
entitled to pension and gratuity, like other
government servants.

11. The second petitioner after joining
the DRDA, Mau on 01.06.1990 was posted
as the Junior Accounts Clerk in the National
Rural Employment Programme of the
Government, where he held the post of an
Accounts Clerk. It is asserted that there he
was a government servant as clarified on
08.11.1993, by whom the second petitioner
himself has not clarified. Subsequently, he
was sent back to the DRDA, Mau. After
merger of the DRDA with the Department
of Rural Development, on a representation
made by the second petitioner, as also the
720 INDIAN LAW REPORTS ALLAHABAD SERIES
first petitioner, to treat them as government
servant with effect from the date of
absorption
from
05.05.1990,
it
was
forwarded by the Project Director to the
Commissioner,
Rural
Development,
Lucknow on 24.09.2016. Acting on the said
recommendation, the Commissioner, Rural
Development called for a detailed report
with regard to the services of both the
petitioners on 11.11.2016. Accordingly, the
Chief Development Officer submitted a
detailed report to the Commissioner, Rural
Development on 18.11.2016, giving the
details about the relevant Government
Orders with regard to continuity of service
as a government servant. After the report
submitted to the Commissioner, Rural
Development, a clarification was sought
about the deduction of GPF and Group
Insurance from the Joint Development
Commissioner,
Gorakhpur.
The
Joint
Development Commissioner, Gorakhpur
submitted a detailed report dated 31.05.2017
along with relevant Government Orders on
the second petitioner's claim with regard to
consideration of his services as that of a
government servant from the date of joining.
After
necessary
instructions,
the
Commissioner,
Rural
Development
forwarded the claim of the second petitioner
to the Government on 10.08.2017 to the
effect that in view of the relevant
Government Orders, surplus employees of
the Gandak Project were required to be
absorbed in a Government Department with
all
benefits
available
to
government
servants. The Government, in response to
the
recommendations
made
by
the
Commissioner, Rural Development, issued
a direction to the Commissioner, Rural
Development to the effect that the claim
relates to a Class-III employee, for which
the Commissioner, Rural Development is
competent to decide. He ought to decide the
second petitioner's claim and in case of
necessity, advice from the Government may
be sought. The said communication from the
Government is one dated 26.09.2017,
addressed to the Commissioner, Rural
Development, to determine the second
petitioner's claim with regard to continuity
and benefit of government service from the
date of absorption i.e. 05.05.1990.

12. The second petitioner's case is that
after merger, the Commissioner, Rural
Development, again sent a letter to the Joint
Secretary,
Rural
Development,
giving
details about absorption of employees and
relevant Government Orders along with
letters for absorption issued with regard to
other employees, who were absorbed by a
common order, along with petitioner No.2 in
the DRDA, Maharajganj. He sought
directions from the Government in the
matter.

13. It is the second petitioner's further
case that ignoring recommendations made to
the Commissioner, Rural Development by
the Chief Development Officer, DRDA,
Mau, as also the report of the Joint
Development Commissioner, Gorakhpur
dated 31.05.2017, the Secretary, Rural
Development illegally declined the second
petitioner's claim by an order dated
16.06.2020.
The
second
petitioner
challenged the order dated 16.06.2020 by
means of Writ-A No.733 of 2021 before this
Court. Pending the aforesaid writ petition,
the second petitioner too retired on
31.01.2022. He says that the pensionary
benefits claimed by the petitioners have
been declined by the order impugned dated
28.02.2020 on irrelevant considerations,
ignoring
the
orders
issued
by
the
Government with regard to absorption in a
Government Department for employees of
the
petitioners'
class
and
the
recommendations made in this regard.
5 All. Dhananjay Mishra & Anr. Vs. State of U.P. & Ors.
721

Facts common to the petitioners

14. The State Government took a
decision to merge the DRDA with the
Department of Rural Development, and,
accordingly, issued a Government Order
dated 18.07.2016. After merger, the new
pension scheme was made applicable to
employees of the Department, including
those, who were absorbed in service of the
DRDA, ignoring their past services. It is the
petitioners' case that the order of merger
provides that the new pension scheme would
be
applicable
to
employees
directly
appointed to the DRDA. Therefore, the
Government Order dated 18.07.2016 would
not cover the petitioners' case in terms of the
conditions mentioned there. The petitioners
say that the Government Order dated
26.04.1991 has not been superseded or
modified, and, therefore, in terms of the
Government Order dated 26.04.1991 read
with the Government Order for merger
dated 18.07.2016, the benefit of GPF, leave
encashment, pension etc., available to a
government servant would have to be
extended to every surplus employee of the
Gandak
Project.
According
to
the
petitioners, the order to merge the DRDA
into the Department of Rural Development
would entitle them to the benefit admissible
to a government servant, once merged in the
Department. The petitioners have to be
treated to be employees of the Government
in view of the law laid down by the Supreme
Court
in
Pepsu
Road
Transport
Corporation, Patiala and another v. S.K.
Sharma and others, (2016) 9 SCC 206.

15. It is the petitioners' case that,
according to the Government Order dated
06.02.1990, surplus employees of the
Gandak Project were required to be
absorbed in Government Departments by
the order dated 02.04.1990, including the
petitioners,
Ram
Awadh
Verma
and
Gomtilal Srivastava, besides Udai Prakash
Srivastava and others, all of whom were also
entitled to be absorbed in a Government
Department. Ram Awadh Verma and
Gomtilal Srivastava who were absorbed in
the DRDA, were subsequently posted in the
District Development Office, Maharajganj,
a Government Department, and are being
paid all benefits due to a government
servant. At the same time, the petitioners'
claim is not being considered, though they
hold parity with these men, without any
distinguishing features. It is also the
petitioners' case that the fact being brought
to the notice of the Commissioner, Rural
Development, he sought information in
regard to the other similarly circumstanced
persons from the Chief Development
Officer, Maharajganj on 02.11.2017. His
inquiry was about the status of Ram Awadh
Verma and Gomtilal Srivastava, who were
subsequently posted in a Government
Department.
The
Chief
Development
Officer, Maharajganj submitted a report on
09.11.2017 providing a copy of the order
dated 22.01.1994, by which the two men last
mentioned were absorbed in government
service, that is to say, the Department of
Rural Development. Therefore, it is the
petitioners' case that in the face of this
report, being available to the Commissioner,
Rural
Development
with
regard
to
absorption of similarly situate employees as
the petitioners in the DRDA and their resettlement by a fresh order and absorption in
a Government Department, he chose to
ignore the same and rejected the petitioner's
case by the impugned order.

16. The petitioners' case is that apart
from all others like them, who were entitled
to absorption in a Government Department
vide order dated 22.01.1994, but absorbed
with the DRDA, were soon absorbed in a
722 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Department, rectifying the
mistake committed by the respondents. The
petitioners
have,
therefore,
been
discriminated against. It is also the
petitioners' case that they have been paid
GPF and Group Insurance, which is not
admissible to employees of the DRDA, as
employees of the said Agency are paid CPF
etc. The benefit of GPF and Group
Insurance is admissible to government
servants alone, as the petitioners say. The
petitioners blame it on the respondents about
first absorbing them in the DRDA and then
taking them to have become part of the
Department of Rural Development, upon
merger of the DRDA, not entitled to post
retiral benefits, owing to length of their
service, whereas similarly circumstanced
employees, upon being retrenched from the
Gandak Project, were quickly rectified
about the mistake of posting them with the
DRDA and were instead absorbed in a
Government Department. The petitioners
claim hostile discrimination on this ground.

17. This petition was heard on the basis
of a personal affidavit filed by the Secretary
to the Rural Development, to which a
rejoinder has been filed.

18. Upon hearing learned Counsel for
the parties, where both the petitioners have
retired from service, the first petitioner
much before this petition was filed, what we
find is that the petitioners have been
absorbed in service of the Government in the
Department
of
Rural
Development,
pursuant to the Government Order dated
18.07.2016. The Government Order dated
18.07.2016 reads:

"सांख्या र्ी 383/38-2-2016-2 (17)
जी/206

प्रेषक

दीपक बत्रवेदी

प्रमुख सधचव,

उ०प्र० शासन।

सेवा में,

आयुक्त (ग्राम्य ववकास)

उत्तर प्रदेश लखनऊ।

ग्राम्य ववकास अनुभार्-2 लखनऊ
टदनाांक 18 जुलाई 2016

ववषय-
जजला
ग्राम्य
ववकास
अलभकरण में सीिी भती से ननयुक्त
अधिकाररयों कमगचाररयों को ग्राम्य ववकास
ववभार् में सांववललयन ककये जाने के सांबांि
में।

महोदय,

उपयुगक्त ववषयक के सांबांि में
मुझे यह कहने का ननदेश हुआ है कक शासन
द्वारा सम्यक ववद्यारोपरान्त जजला ग्राम्य
ववकास अलभकरणों में सीिी भती से ननयुक्त
अधिकाररयों/ कमगचाररयों को ग्राम्य ववकास
ववभार् में तात्काललक प्रभाव से इस शतग के
साथ सांववललनयत ककये जाने की श्री राज्यपाल
महोदय सहषग स्वीकृनत प्रदान करते है कक
जजला ग्राम्य ववकास अलभकरण के कालमगकों
को ग्राम्य ववकास ववभार् में सांववललयन ककये
जाने के उपरान्त प्रनतननयुजक्त पर माना
जायेर्ा। इन कालमगकों के सांवर्ग को "र्ाईर्
कैर्र" घोवषत करते हुए नयी पेंशन योजना
वषग 2005 से आच्छाटदत करने एवां सांववललयन
के फलस्वरूप कोई भी लाभ पूवगर्ामी नतधथ
5 All. Dhananjay Mishra & Anr. Vs. State of U.P. & Ors.
723
से न टदये जाने के सांबांि में सम्बजन्ित
कालमगक से ववकल्प प्राप्त कर अग्रेत्तर
कायगवाही की जायेर्ी। यटद ककसी कमी को
यह ववकल्प स्वीकार नहीां है तो उसे पूवग की
भाुँनत सोसाईिी का कमी बने रहने का
ववकल्प रहेर्ा। उक्त शतों के अिीन जजला
ग्राम्य ववकास अलभकरणों के सीिी भती के
ननयुक्त अधिकाररयों/ कमगचाररयों जजनकी
सांख्या लर्भर्-995 है, को ग्राम्य ववकास
ववभार् में सांववललयन ककया जाता है।

2. यह आदेश ववत्त ववभार् के
अशासकीय पत्र सांख्या-ई-2/622/दस-2016
टदनाांक 11 जुलाई 2016 में प्राप्त उनकी
सहमनत से ननर्गत ककया जा रहा है।
भवदीय
ह०/अ०
दीपक बत्रवेदी
प्रमुख सधचव

सांख्या
383
(1)/38-2-2016
तद्टदनाांक

प्रनतललवप-

1. महालेखाकार प्रथम / द्ववतीय
उ०प्र० इलाहाबाद।

2. सधचव (र्ीआरर्ीए प्रशासन)
ग्रामीण ववकास मांत्रालय भारत सरकार नई
टदल्ली।

3. समस्त मण्र्लायुक्त उत्तर प्रदेश।

4. समस्त जजलाधिकारी उत्तर प्रदेश।

5. समस्त मुख्य ववकास अधिकारी
उ०प्र०।

6. समस्त जजला ववकास अधिकारी
उ०प्र०।

7. समस्त पररयोजना ननदेशक
र्ी०आर०र्ी०ए० उ०प्र०।

8. कालमगक अनुभार्-1/ ववत्त (व्यय
ननयांत्रण) अनु०-2/ ववत्त (वेतन आयोर्) अनु-
2।

9. र्ार्ग बुक।
आज्ञा से
ह0 अ0
प्रभात कुमार श्रीवास्तव
सांयुक्त सधचव।"

19. A perusal of the said Government
Order shows, no doubt, that it applies to
direct recruits to the DRDA, allowed
absorption in government service in the
Department of Rural Development, subject
to the conditions mentioned in the said
Government Order. It does appear to be a
case where the petitioners would not be
governed by the terms of the said order,
because they are not direct recruits to the
DRDA. They are employees, who were
absorbed in the DRDA upon abolition of the
Gandak Project, as retrenched employees.
Strictly speaking, therefore, it is not just that
the Government Order dated 18.07.2016
would not govern the petitioners, but they
would not be eligible under it to be absorbed
in government service. Nevertheless, for
whatever reason they were absorbed under
the said order in the Department of Rural
Development, the Government Order dated
18.07.2016
does
not
introduce
an
arrangement of compulsion. It gives
employees of the DRDA the election to
accept absorption into government service
in the Department of Rural Development,
subject to conditions mentioned in the
724 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Order. One of the conditions is
that the employees absorbed into the DRDA,
who elect to join the Department of Rural
Development, would be treated upon
absorption as a dying cadre and governed by
the New Pension Scheme, 2005. They
would not be entitled to any benefit from
retrospective date before their absorption,
which implies the benefit of terms of service
earlier rendered by them under the DRDA,
including the benefit of GPF, Pension etc.

20. It is clearly stipulated in the
Government Order under reference that if it
is not acceptable to any employee of the
DRDA to join on the terms mentioned in the
Government Order of 18.07.2016, it is open
to him to continue with the society, that is to
say, the DRDA. It is true that in terms of the
Government Order, the petitioners were not
eligible to be absorbed in the Department of
Rural Development, as already said, but
when offered, they elected to accept it. They
joined government service and whatever
was the remainder of their tenure, they
served and retired. The first petitioner
retired very shortly into service in the
Department of the Rural Development and
the second petitioner continued up to the
year 2022. Once the petitioners accepted
absorption subject to terms carried in the
Government Order dated 18.07.2016 with
open eyes and rendered service in the
Department of Rural Development, drawing
salary and then retired, it is now not open to
them to say that the terms of the
Government
Order
dated
18.07.2016,
particularly the condition about being
governed by the New Pension Scheme
would not apply to them.

21. It is true that the petitioners had
rights quite independent of the of the
Government Order dated 18.07.2016 and
they have raised a plea of discrimination in
the
petition,
where
similarly
situate
employees of the Gandak Project were
mistakenly placed with the DRDA and then
quickly absorbed into government service.
If the petitioners had to enforce their right to
be absorbed in government service, upon
dissolution of the Gandak Project, directly
and not being placed with the DRDA, a
Government run Society, they had to raise
that claim early in the year 1990 in terms of
the Government Order dated 02.04.1990, or
for that matter, the order dated 26.04.1991.

22. The petitioners acquiesced to their
absorption in the DRDA despite the fact that
similarly situate persons were quickly
moved away and absorbed in Government
Departments. Now, being treated, whether
rightly or mistakenly, as directly appointed
employees of the DRDA, when absorbed in
government service much later in the day in
terms of the Government Order dated
18.07.2016, which again the petitioners, as
already said, accepted with open eyes, they
cannot be allowed to turn around and fall
back upon their original rights as retrenched
employees of the Gandak Project, entitled to
absorption in a Government Department
directly;
not
as
directly
appointed
employees of the DRDA. By doing that, the
petitioners cannot be permitted to approbate
and reprobate.

23. The Court is in respectful
agreement with the views expressed in Zila
Gram Vikas Abhikaran Seva Nivrat
Karamchari Kalyan Samiti through its
Secretary and another v. State of U.P. and
others, 2023:AHC-LKO:35044.

24. In the circumstances, this Court is
not inclined to interfere with the impugned
order.

25. This petition fails and is dismissed.
5 All. Lal Bahadur Vs. Union of India & Ors.
725

26. There shall be no order as to costs.
----------
(2024) 5 ILRA 725
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

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

Writ-A No. 15103 of 2023

Lal Bahadur ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sr. Advocate

Counsel for the Respondents:
A.S.G.I., Sri Anadi Krishna Narayana,
Anupama Parashar

A. Service Law - Pension - Defined
Contributory Retirement Benefit Scheme -
Petitioner worked as temporary peon from
1989 till the date of termination in 1994 -
After Labour Court's order of reinSt.ment
dated 14.06.2005 in favour of petitioner
and during pendency of writ petition
arising out of reinSt.ment, the tripartite
settlement was implemented and after
when writ petition was not pressed, the
petitioner was absorbed in service on
09.10.2012 under the tripartite settlement
and
confirmed
on
13.04.2013
-
Appointment
letter
dated
09.10.2012
provide the term of post retiral benefit -
Effect - Pension under Old Pension Scheme
claimed
-
Entitlement
-
Held,
the
petitioner accepted his post retiral benefits
in terms these were offered, particularly
funds under the Defined Contributory
Retirement Benefit Scheme is beyond cavil
- High Court declined to interfere holding
that the acceptance of the terms of the
appointment letter by the petitioner placed
him under the regime of the Defined
Contributory Retirement Benefit Scheme.
(Para 19, 25 and 26)
B. Constitutional Law - Fundamental right
- Right of pension - Waiver of right - Not
taking steps for enforcement of right
within reasonable time - Effect - Held,
while fundamental rights, it is true, cannot
be waived, it is not the law that the
principle of laches do not operate to defeat
at least some of them. A plea of
discrimination or arbitrariness has to be
raised and enforced within a reasonable
time.
An
unreasonable
delay
would
certainly bring in laches. (Para 19)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Bageshwari Prasad Srivastava & ors.Vs St. of
U.P. & ors.; 2022:AHC:167978

2. St. of U.P. & ors. Vs Late Bageshwari Prasad
Srivastava & ors.; 2023:AHC:69329-DB

3. Nirupama Malviya Vs St. of U.P. & ors.; 2023
(11) ADJ 524

4. Mahesh Narayan & ors. Vs St. of U.P. & ors.;
2020 (4) ADJ 172

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

1. This writ petition has been instituted
by the petitioner, a retired Peon of the Bank of
Baroda, praying that a mandamus be issued,
ordering the respondents to consider the
petitioner covered by the Old Pension Scheme
and sanction him pension forthwith w.e.f.
01.08.2023. A further direction is sought to the
effect that the respondents pay the petitioner
regular monthly pension as also arrears
worked out with effect from 01.08.2023, along
with interest at such rate as this Court may
determine, until realization. The petitioner
prays that a further direction be issued,
ordering the respondents not to treat the
petitioner covered by the newly defined
Contributory Pension Scheme, which is
applicable
to
the
persons
appointed
subsequent to 01.04.2010.