# Dr. Ram Sharan Tripathi v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-15
- **Case number:** Writ A No. 15529 of 2018
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ram-sharan-tripathi-v-state-of-u-p-anr-46350
- **Pages:** 6

## Headnote

A. Service Law - U.P. Qualifying Service
for Pension and Validation Act, 2021 -
Pension - Entitlement - Qualifying service
- 17 years services rendered as the Ad hoc
employee - Not counting it as the
qualifying service - Validity challenged -
Held, expression 'qualifying service', as
defined under Act, 2021, would mean
service rendered by an officer appointed
on a temporary or permanent post in
accordance with the provisions of service
rules
-
Under
the
pension
rules
a
temporary government servant appointed
against a substantive post is entitled to
pension - The nomenclature 'adhoc' would
have no bearing to non-suit the petitioner
towards pension. (Para 9)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

462 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfactory discharge of their duties or till
continuance of the relevant Self Financing
Course, whichever is earlier, and shall be
paid the salary payable to such teachers.
The arrears of salary accrued in favour of
the petitioners since 30.6.2020 shall also be
paid within a period of two months from
the date a copy of this order, downloaded
from the official website of the court, is
filed by any of the petitioners before the
Vice-Chancellor of the University.

51. With the aforesaid directions, the
writ petitions are allowed.
----------
(2021)10ILR A462
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. 15529 of 2018

Dr. Ram Sharan Tripathi ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Shashank Shekhar Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Qualifying Service
for Pension and Validation Act, 2021 -
Pension - Entitlement - Qualifying service
- 17 years services rendered as the Ad hoc
employee - Not counting it as the
qualifying service - Validity challenged -
Held, expression 'qualifying service', as
defined under Act, 2021, would mean
service rendered by an officer appointed
on a temporary or permanent post in
accordance with the provisions of service
rules
-
Under
the
pension
rules
a
temporary government servant appointed
against a substantive post is entitled to
pension - The nomenclature 'adhoc' would
have no bearing to non-suit the petitioner
towards pension. (Para 9)
Writ petition allowed. (E-1)
Cases relied on :-
1. Writ Petition (Writ-A) No. 68873 of 2015; Dr.
Akhilesh Kumar Singh Vs St.of U.P. & ors.
decided on 13.12.2017
2. Special Appeal Defective No. 1003 of 2020;
St. of U.P. through its Secretary, Foods and Civil
Supplies Vs Mahendra Singh decided on
04.02.2021

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

1. Heard learned counsels for the
parties.

2. The second respondent, Director,
Ayurvedic and Unani Services, Lucknow,
issued an advertisement on 23.05.1987, for
appointment on the post of Ayurvedic and
Unani Medical Officers in the State of U.P.
The advertisement invited applications for
206 posts of Unani Medical Officers and
1194 posts of Ayurvedic Medical Officers.
53
posts
was
reserved
for
female
candidates. Petitioner, being fully qualified,
was
called
for
interview;
on being
recommended, petitioner came to be
appointed by order dated 18.06.1988 on the
post of Medical Officer (Ayurvedic). The
name of the petitioner finds place at sl.no.
91. Petitioner resumed duty on 12.07.1988
at the State Ayurvedic Dispensary. After
appointment, petitioner was posted at
various State Ayurvedic Dispensaries.
Petitioner after putting in 17 years of
service, came to be regularized on
16.03.2005 in terms of U.P. Regularization
of Ad-hoc Appointments (on the Post
Outside the Purview of Public Service
Commission) Rules, 19791. The name of
10 All. Dr. Ram Sharan Tripathi Vs. State of U.P. & Anr.
463
the petitioner finds place at sl.no. 125.
Petitioner retired on the attaining the age of
superannuation on 31.01.2014 from State
Ayurvedic
Dispensary,
Guda,
District
Lalitpur.
During
the
service
period,
petitioner was sanctioned Assured Carrier
Progression scale (A.C.P.), Government
Provident Fund and Group Insurance
Scheme. Petitioner on retirement claimed
pension, however, the same was not
considered on the plea that petitioner lacks
the requisite qualifying service of ten years.
In other words the ad-hoc services rendered
by petitioner since 1988 was not being
counted
towards
pensionary
benefits.
Aggrieved,
petitioner
approached
this
Court by filing a petition, being Writ
Petition No. 67672 of 2015, which came to
be disposed of vide order dated 08.04.2016,
directing the competent authority to decide
the representation of the petitioner towards
counting of ad-hoc service. Pursuant
thereof,
the
impugned
order
dated
04.01.2018 has been passed by the first
respondent, Secretary/Special Secretary,
Ayush-1,
U.P.,
Lucknow,
whereby,
petitioner has been denied the benefit of adhoc service.

3. It is noted in the impugned order
that the appointment of the petitioner was
made on stop gap basis as Medical Officer
and not as regular officer of the State
Government; petitioner was appointed on
temporary basis, hence, not entitled to
pension under the Rules governing pension.
Petitioner came to be regularized in 2005
and retired in 2014 without completing
qualifying service of ten years. It is further
submitted that in view of U.P. Qualifying
Service for Pension and Validation Act,
2021 (U.P. Act No. 1 of 2021)2 the
services rendered by petitioner as ad-hoc
employee would not count as "qualifying
service" defined thereunder.

4. Learned counsel for the petitioner
submits
that
petitioner
came
to
be
appointed against substantive vacancy of
Medical
Officer
in
the
Unani
and
Ayurvedic
Hospitals
of
the
State
Government, the appointment was against
the pay scale admissible to a Medical
Officer. The appointment was made after
due approval by the Hon'ble Governor. As
per appointment letter, petitioner was
entitled to all benefits of pay scale, D.A.,
A.C.P. etc. It is not being disputed by
learned counsel appearing for the State that
appointment of the petitioner was against a
substantive vacancy on the post of Medical
Officer. The advertisement was duly issued
by second respondent on approval of the
State Government. Thereafter, services of
the petitioner came to be regularized under
Rule, 1979. It is further submitted that the
services of Medical Officers, Community
Health Centre were regularized under Rule,
1979 from retrospective date, i.e., from the
date of their appointment on ad-hoc basis.
The averment has not been denied in the
counter affidavit.

5. It is further urged that services of
the petitioner rendered on ad-hoc basis is
covered by expression 'qualifying service'
as defined under Act, 2021. Reliance has
been placed on several judgments of this
Court, whereby, petitions filed by similarly
situated Medical Officers came to be
allowed and their ad-hoc service was
directed to be counted towards pensionary
benefit. Reliance has been placed on the
decision rendered by the Division Bench in
Dr. Akhilesh Kumar Singh Vs. State of
U.P. and others3. The order is extracted:

"The petitioner has invoked the
extra-ordinary jurisdiction of this Court for
quashing of the order dated 14.8.2017
passed by the Principal Secretary, Medical
464 INDIAN LAW REPORTS ALLAHABAD SERIES
Education U.P., respondent no. 1 which
has been filed as annexure 1 to the writ
petition and for a direction to add his
adhoc services for the purposes of payment
of pension. A further prayer has been made
that 12% interest per annum may be
allowed for the delayed payment of pension
and gratuity.

The
petitioner
was
initially
appointment as part time Medical Officer
on honorarium in the year 1988. He
continued as such for some time and then
under
the
Government
Order
dated
1.10.1991,
pursuant
to
the
recommendations
of
the
Committee
constituted, he was appointed on adhoc
basis along with 591 other Medical
Officers on 28.2.1992.

The
adhoc
services
of
the
petitioner were regularized w.e.f. 16.3.2005
and he ultimately retired on 31.7.2014.

On retirement he has not been
granted pension. The Additional Director,
Treasury and Pension is of the opinion that
he has not completed a minimum of 10
years of qualifying service on regular basis
which is mandatory for payment of pension.

The petitioner in such a situation
filed writ petition 1592 (S/B) 2014 before
the Lucknow Bench which was disposed of
vide order dated 13.11.2014 with the
direction to the Principal Secretary to
consider the grievance of the petitioner for
adding adhoc services rendered by him for
the purposes of counting his qualifying
services for the payment of pension.

In pursuance to the above order,
the
representation
of
the
petitioner
claiming pension after adding his adhoc
services to his regular services came up for
consideration before respondent no. 1 but
the same has been rejected by the
impugned office order dated 14th August
2015. Respondent no. 1 has refused to add
the adhoc services rendered by the
petitioner for the purposes of pensionery
benefit after distinguishing his case from
that of one Dr. Yashwant Singh but without
assigning any reason for such a distinction.

We have heard Sri Shashank
Shekhar Mishra, learned counsel for the
petitioner and Dr. Rajeshwar Tripathi,
Chief
Standing
counsel-II
for
the
respondents.

In
view
of
the
respective
submissions advanced on behalf of the
parties the sole question which crops up for
consideration is whether the adhoc services
rendered by the petitioner as Medical
Officer from 28.2.1992 to 15.3.2005 are
liable to be added in the regular service
rendered by him as Medical Officer from
16.3.2005 to 31.7.2014 for determining the
qualifying services for the payment of
pension.

It is not a issue that under Rule
574-B of the Civil Service Regulations the
minimum qualifying services for grant of
pension is 10 years.

A similar question had come up
for consideration before the Court in Writ
Petition No. 61974 of 2011 (Dr. Amrendra
Narain Srivastava Vs. State of U.P., and
another) decided on 1.3.2012 and it was
held that the period of adhoc services
rendered by the Government servant is to
be counted for the purposes of payment of
pension.

In another Writ Petition No.
27579 of 2014 (Dr. Prem Chandra Pathak
10 All. Dr. Ram Sharan Tripathi Vs. State of U.P. & Anr.
465
and another Vs. State of U.P. an others)
decided on 16.5.2014 it was held that if
against substantive post a government
servant is working on adhoc basis, the
adhoc services rendered by him would be
counted for determining the qualifying
service for grant of pensionery benefits.

Several other writ petitions were
decided following the proposition of law as
laid down in the above two decisions and in
all of them adhoc period of service was
directed to be counted towards qualifying
service for the payment of post retiral dues.

It may be noted that the decision
in the case of Dr. Amrendra Narain
Srviastava was allowed to become final as
it was not challenged any further.

In the case of State of U.P. and
another Vs. Dr. Sri Kant Chaturvedi and
others Service Bench No. 1896 of 2015 the
Division Bench of this Court vide order
dated 10.12.2015 relying upon the case of
Dr. Hari Shankar Asopa Vs. State of U.P.
and another reported in (1989) 1 UPLBEC
501 held that the benefit of adhoc services
is to be given for pensionery benefits.

The relevant paragraph of the
aforesaid judment is reproduced below:-

"The ratio of the judgment in no
uncertain terms provides that the benefits
of adhoc services is to be given to the
petitioners
while
deciding
their
representation if pensionery benefits will be
available to them."

In view of the above decisions,
the law in no uncertain terms provides that
the benefit of adhoc services is to be given
to the government servants for the purposes
of grant of pensionery benefits.

In writ petition 63440 of 2015 Dr.
Prem Chandra Pathak (Retired) and
another Vs. State of U.P., and two others
decided on 27.2.2013 this Court relying
upon the above decisions quashed the
order of respondent no. 1 rejecting the
representation of the petitioner therein with
regard to counting of adhoc service for his
pensionery benefits holding that it is not
justified to refuse to add adhoc services
rendered by the government servant for the
purposes of qualifying service for grant of
pension.

The Chief Standing Counsel-II
after going through the aforesaid decisions
accepts that the controversy arising in this
petition stands covered by the decision by
this Court in the case of Dr. Prem Chandra
Pathak.

In view of the aforesaid facts and
circumstances,
notwithstanding
any
distinction if any, with the case of Dr.
Yashwant Singh, as the petitioner had
worked
on
adhoc
basis
against
a
substantive
post
from
28.2.1992
to
15.3.2005, the said period is liable to be
added in the regular service rendered by
him from 16.3.2005 to 31.7.2014. In this
view of the matter, the petitioner had
rendered
substantive
service
from
28.2.1992 to 31.7.2014 ie. for about 22
years and as such is in no way disqualified
for getting the pension.

Accordingly, the impugned order
dated 14th August 2015 is quashed and the
respondent no. 1 is directed to work out the
pension admissible to the petitioner as
aforesaid by adding his adhoc services and
start paying pension thereof on monthly
basis. w.e.f 1st January 2018 and the
arrears be paid within a period of three
months with interest @ 12% per annum.
466 INDIAN LAW REPORTS ALLAHABAD SERIES

The writ petition is allowed."

6.

Learned
counsel
for
the
respondents
has
not
disputed
the
proposition adverted to in the aforenoted
judgment. He, however, submits that in
view of the amendment brought about by
Act, 2021, defining ''qualifying service', the
service rendered by petitioner as an ad-hoc
employee would not fall within the ambit
of the expression "qualifying service"
defined under Section 2 of Ordinance dated
21.10.2020
(subsequently
Act,
2021),
which reads thus:

"2.
Notwithstanding
anything
contained in any rule, regulation or
Government order for the purpose 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."

7. The provision was considered by
the Division Bench of this Court in State of
U.P. through its Secretary, Foods and
Civil Supplies Vs. Mahendra Singh4. The
relevant portion of the order is extracted:

"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
post
till
his
regularization
on
the
permanent post in the year 1997.

In view of the aforesaid, the
present appeal is devoid of merit and is,
accordingly, dismissed."

8. In the facts of the present case, the
admitted position, inter se parties is, (i)
petitioner came to be appointed against
substantive vacancy; (ii) the salary was
borne by Government; (iii) petitioner was
entitled to all benefits as applicable to a
State employee.

9.
T
he
expression
"qualifying
service", as defined under Act, 2021, would
mean service rendered by an officer
appointed on a temporary or permanent
post in accordance with the provisions of
service rules prescribed by the Government
for the post. In the present case, the
Government, having regard to the large
number of vacancies existing in State of
U.P. of Ayurvedic and Unani Medical
Officer, took a conscious decision to curtail
10 All. Lallan Mishra Vs. State of U.P. & Ors.
467
the long procedure of appointment through
the Public Service Commission by directly
issuing advertisement inviting applications
from eligible candidates for the post and on
the recommendation of the selection
committee, candidates were selected. The
appointment
letter
were
issued
after
obtaining approval from Hon'ble Governor.
It cannot be said in the circumstances that
the rules applicable for appointment were
not followed. The rules, as were made
applicable for appointment on ad-hoc basis
was duly complied and followed and
petitioner,
admittedly,
came
to
be
appointed against substantive vacancy,
thereafter,
his
service
came
to
be
regularized under Rule, 1979. In the
circumstances, it cannot be said that
appointment of the petitioner was against
the
service
rules
prescribed
by
Government. Under the pension rules a
temporary government servant appointed
against a substantive post is entitled to
pension. The nomenclature ''ad-hoc' would
have no bearing to non-suit the petitioner
towards
pension.
The
nature
of
appointment is temporary appointment
against a substantive post after following
the procedure laid down to appoint such adhoc/temporary Medical Officer. In the
opinion of the Court, the petitioner's service
would
fall
within
the
expression
"qualifying service" as petitioner came to
be appointed against substantive post by
following procedure prescribed by the State
Government. It is not in dispute that
appointing authority of the petitioner is the
Hon'ble Governor.

10. In the result, the writ petition is
allowed.
Impugned
order
dated
04.01.2018, is hereby set aside and
quashed. It is held that the service rendered
by petitioner on ad-hoc basis would count
towards "qualifying service", consequently,
petitioner is held entitled for pension. The
first respondent is directed to compute
pension and other post retiral dues
admissible to the petitioner by adding the
period of ad-hoc service rendered by him.
Petitioner shall be entitled to pension on
month to month basis with effect from the
date of his superannuation. The arrears of
pension would be computed and released
within the period of three months, along
with simple interest at the rate of 6% per
annum from the date of retirement till
actual payment.

11. No Cost.
----------
(2021)10ILR A467
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 62994 of 2014

Lallan Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.B. Tripathi

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

A. Service Law - Collection Amin -
Dismissal from service - Enquiry - Right
of cross examination - Allegation of
recovery being found deficient and much
below the target - No oral enquiry - No
statement of the author of report -
Validity challenged - Held, the inquiry
cannot be said to have been conducted in
a fair and impartial manner inasmuch as
neither any oral inquiry was conducted
nor even the report relied upon against
the
petitioner
was
proved
by
the