# Dr. Sushil Chandra Tiwari v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 557
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-27
- **Case number:** Service Single No. 14287 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-sushil-chandra-tiwari-v-state-of-u-p-ors-47447
- **Pages:** 13

## Headnote

A. Service Law - Civil Service Regulations
- Reg. 370 - Pension, Right to get it -
Requirement
of
ten
years
qualifying
service - Non completion - Adhoc Service,
its relevancy in counting the service -
Pension
released
in
compliance
of
Judgment and order dated 22.07.2014
passed in petitioner's writ petition and
contempt proceeding - No objection of
non-completion of ten years qualifying
service was raised - Stopping pension
after lapse of six years - No opportunity of
hearing - No explanation sought - Validity
- Held, petitioner has rendered qualifying
pensionery service with effect from the
date
of
his
initial
joining
in
the
department in question, so the same shall
be treated as service qualifying for
pension and pensioner benefits - High
Court quashed impugned order. (Para 36
and 42)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,998 of 43,829. This is a partial read: ask again with offset=39998 for what follows._

9 All Dr. Sushil Chandra Tiwari Vs. State of U.P. & Ors.
557
documents. Petitioner in the circumstances
would have no right to continue on the post
and receive salary. The very foundation on
which the appointment rests is non-est --
void abinitio. Nothing further has to be
done by the authorities but to discontinue
the
appointment.
In
permitting
the
petitioner to continue in service and pay
salary
would
perpetuate
fraud
and
misrepresentation that would be negation of
rule of law. Petitioner, his father (clerk) and
the then Basic Education Officer were
throughout aware that petitioner had
obtained the appointment by fraud.

15. In view thereof, the writ petition
is dismissed with cost of Rs. 1 lakh to be
deposited by the petitioner with the fifth
respondent within one month from date,
failing which, the same shall be recovered
as arrears of land revenue by the District
Collector, Sant Kabir Nagar. The State
respondents
shall
initiate
disciplinary
proceedings
against
the
then
Basic
Education Officer forthwith.
----------
(2021)09ILR A557
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 14287 of 2021

Dr. Sushil Chandra Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amol Kumar, Alok Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Civil Service Regulations
- Reg. 370 - Pension, Right to get it -
Requirement
of
ten
years
qualifying
service - Non completion - Adhoc Service,
its relevancy in counting the service -
Pension
released
in
compliance
of
Judgment and order dated 22.07.2014
passed in petitioner's writ petition and
contempt proceeding - No objection of
non-completion of ten years qualifying
service was raised - Stopping pension
after lapse of six years - No opportunity of
hearing - No explanation sought - Validity
- Held, petitioner has rendered qualifying
pensionery service with effect from the
date
of
his
initial
joining
in
the
department in question, so the same shall
be treated as service qualifying for
pension and pensioner benefits - High
Court quashed impugned order. (Para 36
and 42)
Writ petition allowed. (E-1)
Cases relied on :-
1. Deokinandan Prasad Vs St. of Bihar; 1971 (2)
SCC 305
2. Civil Appeal No. 6798 of 2019; Prem Singh Vs
St. of U.P. & ors.
3. Secretary, St. of Karn. & ors. Vs Uma Devi;
2006 (4) SCC 1
4. Writ Petition No. 1573 (S/B) of 2012; Dr.
Sushil Chandra Tiwari & ors. Vs St. of U.P. &
ors.
5. Civil Appeal No. 2898 of 2021; Rashi Mani
Mishra & ors. Vs St. of U.P. & ors.
6. Secretary, Minor Irrigation Department Vs
Narendra Kumar Tripathi; (2015) 11 SCC 80
7. Santosh Kumar & ors. Vs G.R. Chawla & ors.
(2003) 10 SCC 513
8. St. of Urrarakhand Vs Archana Shukla; (2011)
15 SCC 194
9. Direct Recruit Class-II Engineering Officers'
Association; (1990) 2 SCC 715
10. Dr. Chandra Prakash & ors.Vs St. of U.P.;
(2002) 10 SCC 710
558 INDIAN LAW REPORTS ALLAHABAD SERIES
11. D.T.C. Vs Balwan Singh; AIR 2017 SC 396
12. Frome United Breweries Company Ltd. &
anr. Vs Keepers of the Peace and Justice for
Country Borough to Bath; 1926 AC 586
13. St. of Orissa Vs Dr. (Miss) Binapani Dei &
ors. AIR 1967 SC 1269
14. Writ A No. 52358 of 2017; Dr. Atul Darbari
Vs St. of U.P. & anr.
15. Writ Petition No. 1744 (S/B) of 2015; Dr.
Khalid Ali Khan & anr. Vs St. of U.P. & ors.
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Amol Kumar, learned
counsel
for
the
petitioner
and
Sri
Raghvendra
Kumar
Singh,
learned
Advocate General of U.P. assisted by Sri
Manjive Shukla, learned Additional Chief
Standing Counsel for the State-respondents.

2. By means of this writ petition, the
petitioner has prayed for the following
reliefs:-

"(I) to issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
31.03.2021,
having
reference
No.1054/A.N.C./PENSION/M.I-15731
passed by the Joint Director Pension,
Kanpur Mandal, Kanpur, by means of
which, the pension to the petitioners was
stopped with immediate effect as well as the
order dated 15.02.2021 having reference
No.3625/2021/4217 issued by the Director,
Employees State Insurance Scheme, Labour
and Medical Services, Uttar Pradesh
passed by the opposite part No.3, contained
as Annexure Nos.1, 2 & 3.

(II) to issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to release
the pension to the petitioner, without any
delay or interruption."

3. The brief facts, as per learned
counsel for the petitioner, are that pursuant
to the advertisement in the Newspaper on
30.01.1986 for making appointment on
adhoc vacancy of Medical Officers in the
Employees
State
Insurance
Scheme,
Labour
and
Medical
Services,
Uttar
Pradesh (here-in-after referred to as the
"department in question"), the petitioner
was appointment as Medical Officer on
adhoc basis in the department in question
on 17.03.1989.

4. Initially, the medical services
rendered by the department in question was
looked after by the Department of Medical
& Health Services, U.P., however, vide
Government Order dated 10.06.1985 a
separate wing was created with regard to
medical and paramedical staff. The option
was also given to the doctors of the medical
& health to opt for services of the
department in question as the separate
directorate and separate cadre for the
department was proposed with the separate
service rules, on the same emoluments and
perks which are paid to the doctors of
Medical & Health Department. Such
Government Order has been annexed as
Annexure No.5 to the writ petition.
Admittedly, the aforesaid Government
Order has been issued after getting prior
approval from the Finance Department and
Medical & Health Department of U.P. and
also with the order and approval of the
Governor.

5. Since pursuant to the Government
Order dated 10.06.1985 no service rules
were promulgated governing the service
condition of the petitioner, therefore, the
initial appointment of the petitioner was
made on 17.03.1989 by the Competent
Authority following the due procedure
required for making appointment on adhoc
9 All Dr. Sushil Chandra Tiwari Vs. State of U.P. & Ors.
559
basis. However, the rules were later on
promulgated
in
the
name
of
U.P.
Employees
State
Insurance
Scheme,
Labour Medical Services Rules, 1993
(here-in-after referred to as the "Rules,
1993").

6. The services of the petitioner were
regularized with effect from 24.07.2009 on
the basic pay-scale of Rs.8000-13500
pursuant to the order dated 22.12.2011
(Annexure No.6).

7. Learned counsel for the petitioner has
submitted with vehemence that the department
was created vide Government Order dated
10.06.1985 with due approval by the Finance
Department and the Medical & Health
Department and also by the order and approval
of the Governor creating 345 posts of
employees including one Additional Director.
The separate directorate and separate cadre
was also proposed to be created and separate
service rules to be created. Therefore, it cannot
be said that pursuant to the advertisement
dated 30.01.1986 the appointment of certain
employees was not made as per law. Besides,
the
petitioner
has
continuously
and
permanently discharged his duties of Medical
Officer till 31.05.2015, i.e. the date of his
superannuation.

8. Sri Amol Kumar, learned counsel for
the petitioner has further submitted that adhoc
services of the petitioner are to be counted for
grant of pension as per Regulation 370 of Civil
Service Regulations (here-in-after referred to
as the "C.S.R."), which clearly states that
continuous temporary or officiating service of
the government servant followed by the
confirmation in the same or any other post
shall qualify for pension.

9. Learned counsel for the petitioner
has further submitted that the Regulation
350 of the C.S.R. provides that all
establishments
whether
temporary
or
permanent
shall
be
deemed
to
be
pensionable establishments.

10. Therefore, learned counsel for the
petitioner has submitted that despite the
fact that the petitioner has continuously
discharged his services with effect from
17.03.1989
till
his
retirement
on
31.05.2015, therefore, after completing
more than 26 years of continuous service,
pentionary benefits cannot be denied by
means of impugned order dated 31.03.2021
which has been issued after about six years
from the retirement of the petitioner
holding
that
the
petitioner
has
not
discharged qualify service of ten years for
making pension and pensionery benefits
withholding of his pension and pensionery
benefits, is patently illegal, arbitrary,
discriminatory and unwarranted. Besides,
the impugned order dated 31.03.2021 has
been wrongly issued under Regulation 351A of C.S.R. inasmuch as there is a bar of
four years from the event or reason having
taken place.

11. Learned counsel for the petitioner
has given instances of as many as 22
employees who are identically placed with
the present petitioner, vide para-19 of the
writ petition who have been paid pension
and all retiral benefits as has been paid to
the petitioner.

12. Learned counsel for the petitioner
has submitted that as per the trite law the
pension is treated as "Property" as per
Article 300-A of the Constitution of India,
therefore, the same cannot be stopped or
curtailed or withheld without following due
procedure of law. The impugned order
dated 31.03.2021 has not only been passed
in an illegal and unwarranted manner but
560 INDIAN LAW REPORTS ALLAHABAD SERIES
also without affording an opportunity of
hearing to that effect.

13. Learned counsel for the petitioner
has further submitted that the law is trite on
the point that if any order involves the civil
consequences which affects the person
monitorily, such order cannot be passed
without affording of any opportunity of
hearing.

14. Learned counsel for the petitioner
has
referred
the
dictum
of
the
Constitutional Bench of Hon'ble Apex
Court in re: Deokinandan Prasad vs. State
of Bihar reported in 1971 (2) SCC 305,
whereby the Hon'ble Apex Court has held
that the pension is a right and the payment
thereto does not depend upon the discretion
of the government. The Hon'ble Apex
Court in re: Dr. Hira Lal vs. State of
Bihar, Civil Appeal No.1677-1678 has held
that the executive instructions of the State
cannot stop the pension of an employee
unless and until any order is passing by the
government exercising power under Article
309 of the Constitution of India.

15. Sri Amol Kumar, learned counsel
for the petitioner, has further submitted that
not only for the reason that more than four
years have passed, to be more precise more
than six years, since the retirement of the
petitioner provisions under Regulation 351A of C.S.R. may not be invoked but for
another legal reason that neither any
departmental
enquiry
nor
judicial
proceeding were pending against the
petitioner at the time of his retirement,
therefore, such exercise under Regulation
351-A of C.S.R. may not be invoked.

16. Sri Amol Kumar, learned counsel
for the petitioner, has placed reliance upon
the dictum of Hon'ble Apex Court rendered
in re: Prem Singh vs. State of U.P. &
others rendered in Civil Appeal No.6798 of
2019 referring paras-32, 33, 34 & 35 to
strengthen
his
submission
that
after
rendering about 26 years of service, the
services rendered by the petitioner on
adhoc basis may not be ignored for the
purposes of making payment of pension
and retiral dues. Further, if on technical
ground such services of an employee are
ignored that may cause serious prejudice to
the employee concerned. The Hon'ble Apex
Court in the case of Secretary, State of
Karnataka & Ors v. Uma Devi, 2006 (4)
SCC 1 had directed that if some employees
have rendered their ten years continuous
service be regularized and they be paid all
pensionery benefits counting their entire
length of services. For convenience, paras32, 33, 34 & 35 of Prem Singh (Supra) are
being reproduced here-in-below:-

"32. The question arises whether
the imposition of rider that suchservice to
be counted has to be rendered in-between
two spells of temporary or temporary and
permanent service is legal and proper. We
find that once regularization had been
made on vacant posts, though the employee
had not served prior to that on temporary
basis,
considering
the
nature
of
appointment, though it was not a regular
appointment it was made on monthly salary
and thereafter in the pay scale of workcharged establishment the efficiency bar
was permitted to be crossed. It would be
highly
discriminatory
and
irrational
because of the rider contained in Note to
Rule 3(8) of 1961 Rules, not to count such
service particularly, when it can be
counted, in case such service is sandwiched
between two temporary or in-between
temporary and permanent services. There
is no rhyme or reason not to count the
service of work-charged period in case it
9 All Dr. Sushil Chandra Tiwari Vs. State of U.P. & Ors.
561
has been rendered before regularisation. In
our
opinion,
an
impermissible
classification has been made under Rule
3(8).
It
would
be
highly
unjust,
impermissible and irrational to deprive
such employees benefit of the qualifying
service. Service of work-charged period
remains the same for all the employees,
once it is to be counted for one class, it has
to
be
counted
for
all
to
prevent
discrimination. The classification cannot be
done on the irrational basis and when
respondents
are
themselves
counting
period spent in such service, it would be
highly discriminatory not to count the
service on the basis of flimsy classification.
The rider put on thatwork-charged service
should
have
preceded
by
temporary
capacity is discriminatory and irrational
and creates an impermissible classification.

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

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

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

17. Per contra, Sri Raghvendra Kumar
Singh, learned Advocate General of U.P.
has submitted that the petitioner is not
entitled for pension as initially he was
appointed on adhoc Medical Officer on
17.03.1989 and later on his services were
regularized
on
22.12.2011,
w.e.f.
24.07.2009 and finally he was retired from
service on 31.05.2015. Since the petitioner
has not rendered ten years of service with
effect from his regularization, therefore, he
could have not been paid pension and
retiral benefits for not completing ten years
qualified service.
562 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Sri Raghvendra Kumar Singh,
learned Advocate General has further
submitted that since the petitioner was
Incharge Medical Officer when he retired
from Kanpur, therefore, taking advantage
of his position he himself forwarded his
pension papers to the Chief Medical
Officer, E.S.I Labour Medical Services,
Kanpur without indicating the fact that
initially he was adhoc appointee and
subsequently regularized on 22.12.2011
w.e.f. 24.07.2009.

19. Sri Raghvendra Kumar Singh,
learned Advocate General has submitted
that as per the Government Order dated
22.06.1987 a government employee for
being entitled for grant of pension must
have put at least ten years or more regular
satisfactory service, but the petitioner has
not completed such qualified service.

20. Sri Singh has drawn attention of
this Court towards Annexure No.SCA-6,
which is the judgment and order dated
22.07.2014 passed in the case of the
petitioner by the Division Bench of this
Court in Writ Petition No.1573 (S/B) of
2012; Dr. Sushil Chandra Tiwari and
others vs. State of U.P. & others, whereby
the Division Bench has interpreted the
meaning
and
purport
of
the
term
"substantive
appointment"
and
while
applying
the
nature
of
substantive
appointment in the case of the petitioner, it
has been held in para-15 that the initial
appointment of the petitioner may not be
treated as substantive appointment.

21. Sri Singh has further submitted that
the petitioner has not assailed the judgment
and order dated 22.07.2014 before the
Hon'ble Apex Court, therefore, that judgment
has attained finality and in that way the
petitioner
cannot
say
that
his
initial
appointment was a substantive appointment.
If
the
same
was
not
a
substantive
appointment, he cannot claim the benefit of
those services rendered on adhoc basis
whereas, the pensionery benefits accrued
with effect from the date the employee has
rendered ten years regular services.

22. However, on being confronted the
learned Advocate General as to whether the
State has assailed the judgment and order
dated 22.07.2014 inasmuch as in the
operative paragraph i.e. para-17 , the Division
Bench has categorically observed that the
petitioner cannot be discriminated with the
similarly placed employees getting protection
of Article 14 of the Constitution of India,
directing the opposite parties for giving all
service benefits including continuity of
service to the petitioner so given to the
similarly
placed
employees,
learned
Advocate General has fairly submitted that
the State has also not assailed that order.
Therefore, to me, that order of Division
Bench has attained finality for both the
parties.. For convenience, operative portion
of para-17 is being reproduced here-inbelow:-

"17. In our considered opinion if
this is the position on facts, then the
petitioners cannot be discriminated as that
would violate Article 14 of the Constitution
of
India.
Consequently,
the
State
Government is required to delve into this
factual aspect and in the event it is
established that the petitioners belong to
the same category of employees prior to the
enforcement of the Rules, and if other
employees have been extended the service
benefits in a similar fashion, then there is
apparently no reason to discriminate the
petitioners for extension of such benefits.

Consequently, we dispose of this
writ
petition
with
the
aforesaid
9 All Dr. Sushil Chandra Tiwari Vs. State of U.P. & Ors.
563
observations and a direction is issued to
the State Government to consider the claim
of
the
petitioners
in
the
light
of
observations made herein above and pass
appropriate orders within three months
from the date of production of a certified
copy before the competent authority."

23. On being further confronted as to
whether any opportunity of hearing has
been provided to the petitioner before
passing
the
impugned
order
dated
31.03.2021, learned Advocate General has
submitted that in view of the facts and
circumstances of the present case, it would
have been a futile exercise to provide an
opportunity of hearing inasmuch as the
petitioner could have not been able to
demonstrate any material protecting his
claim for making payment of pension and
pensionery benefits for not rendering
qualifying service of ten years.

24. Sri Singh has drawn attention of
this Court towards Annexure Nos.SCA-9
to SCA-11 of the short counter affidavit
whereby the orders have been passed
against those doctors who have been paid
pension and pensionery benefits after
their retirement in the same manner as
has been paid to the petitioner. Sri Singh
has also drawn attention of this Court
towards Annexure No.SCA-12 of the
short counter affidavit which is the
ordinance
known
as
Uttar
Pradesh
Qualifying Service for Pension and
Validation Ordinance, 2020, which has
been converted into the Act in the name
of Uttar Pradesh Qualifying Service for
Pension and Validation Act, 2021 (herein-after referred to as the "Validation Act,
2021") drawing attention towards Section
2 of the Validation Act, 2021 which
explains
"Qualifying
Service"
for
pension.

25. Sri Singh has further submitted
that the aforesaid Validation Act, 2021 has
got retrospective affect with effect from
01.04.1961.
As
per
Section
2,
the
qualifying
service
means
a
services
rendered by an officers appointed on
temporary or permanent post in accordance
with the provisions of service rules
prescribed by the government for the post.

26. Since the petitioner has rendered
his services with effect from 17.03.1989 till
24.07.2009, cut off date of Regularisation
ordeer as on adhoc basis, therefore, such
period of service cannot be treated as
temporary
or
permanent.
After
regularization
on
22.12.2011
w.e.f.
24.07.2009 the petitioner has rendered less
than ten years of service, to be more precise
about six years service, therefore, he could
have not been paid pension and pensionery
benefits.

27. Sri Raghvendra Kumar Singh,
learned Advocate General has drawn
attention of this Court towards a recent
judgment of Hon'ble Apex Curt dated
28.07.2021 (reportable) rendered in Rashi
Mani Mishra & others vs. State of U.P. &
others in Civil Appeal No.2898 of 2021
and other connected civil appeals by
submitting that the Hon'ble Apex Court has
categorically held that adhoc appointee
cannot be deemed to be appointed as
substantive appointees, therefore, such
adhoc appointees shall be placed below the
substantive appointees/ direct recruits. In
the aforesaid judgment, the Hon'ble Apex
Court has considered all the relevant
judgments of the issue e.g. (i) Secretary,
Minor
Irrigation
Department
vs.
Narendra Kumar Tripathi reported in
(2015) 11 SCC 80, (ii) Santosh Kumar and
others vs. G.R. Chawla and others
reported in (2003) 10 SCC 513, (iii) State
564 INDIAN LAW REPORTS ALLAHABAD SERIES
of Urrarakhand vs. Archana Shukla
reported in (2011) 15 SCC 194, (iv) Direct
Recruit Class-II Engineering Officers'
Association reported in (1990) 2 SCC 715
and (v) Dr. Chandra Prakash & others vs.
State of U.P. reported in (2002) 10 SCC
710 etc. The relevant paras-9 and 10 of the
judgment of Rashi Mani Mishra (supra)
are being reproduced here-in-below:-

9. Now so far as the reliance
placed upon the decision of this Court in
the case of Direct Recruit Class II Engg.
Officers' Assn. (supra), relied upon by the
learned Senior Advocate appearing on
behalf of the ad hoc appointees is
concerned, it is required to be noted that
even in the said decision also, it is observed
and held that where initial appointment
was made only ad hoc as a stop gap
arrangement and not according to the
rules, the officiation in such post cannot be
taken into account for considering the
seniority. In the case before this Court, the
appointments were made to a post
according to rule but as ad hoc and
subsequently they were confirmed and to
that this Court observed and held that
where appointments made in accordance
with the rules, seniority is to be counted
from the date of such appointment and not
from the date of confirmation. In the
present case, it is not the case of
confirmation of the service of ad hoc
appointees in the year 1989. In the year
1989, their services are regularised after
following due procedure as required under
the 1979 Rules and after their names were
recommended by the Selection Committee
constituted under the 1979, Rules. As
observed here-in-above, the appointments
in the year 1989 after their names were
recommended by the Selection Committee
constituted as per the 1979 Rules can be
said to be the "substantive appointments".
Therefore, even on facts also, the decision
in the case of Direct Recruit Class II Engg.
Officers'
Assn.(supra)
shall
not
be
applicable to the facts of the case on hand.
At the cost of repetition, it is observed that
the decision of this Court in the case of
Direct Recruit Class II Engg. Officers'
Assn. (supra) was considered by this Court
in the case of Santosh Kumar (supra) when
this Court interpreted the very 1979 Rules.

10. Similarly, the decision of this
Court in the case of Rudra Kumar Sain
(supra), relied upon by the learned counsel
appearing on behalf of the ad hoc
appointees also shall not be applicable to
the facts of the case on hand. In the case
before this Court, the promotees appointed
on ad hoc were continued for fairly long
periods and their appointments were made
after due consultation with, or approval of
Service Commission, and therefore their
appointments were held not to be ad hoc or
fortuitous or stopgap. It is to be noted that
in the present case when the ad hoc
appointees were appointed in the year
1985, there was no consultation with the
UPSC and as
such
there
was
no
recommendation by the UPSC. Their
services came to be regularised as per the
1979 Rules and after they were selected by
the Selection Committee constituted under
the 1979 Rules, which specifically provides
that for the purpose of regularisation of ad
hoc appointments, the appointing authority
shall constitute a Selection Committee and
consultation with the Commission shall not
be necessary. It is also to be noted that
when the ad hoc appointees were appointed
in the year 1985, they were appointed on
the basis of the recommendations of the
Selection Committee constituted for ad hoc
appointments and when subsequently their
services were regularised and they were
appointed in the year 1989, they were
appointed by the order of Governor. This is
9 All Dr. Sushil Chandra Tiwari Vs. State of U.P. & Ors.
565
one additional ground to hold that their
substantive appointments can be said to be
only
from
the
date
of
their
regularisation/appointment made in the
year
1989
after
their
names
were
recommended by the Selection Committee
constituted under the 1979 Rules and their
services were regularised as per the 1979
Rules after following the procedure as
required under the 1979 Rules, i.e., in the
year 1989. Therefore, their seniority is to
be counted only from 23.02.1989, the date
of their regularisation and the services
rendered by the ad hoc appointees prior
thereto, i.e., from the date of their initial
appointments in the year 1985 is not to be
counted for the purpose of seniority, vis-àvis, the direct recruits appointed prior to
1989."

28. Therefore, Sri Singh has submitted
that the Hon'ble Apex Court in re: Rashi Mani
Mishra (supra) has clarified the position that
the length of service of adhoc appointees shall
be counted with effect from the date of their
regularization for the purposes of pension, so
the adhoc service rendered by the present
petitioner may not be counted for the purpose
of making pension and the pensionery
benefits. Accordingly, the writ petition is
devoid of merits and is liable to be dismissed.

29. I have heard learned counsel for
the respective parties and perused the
material available on record.

30. At the outset, I shall deal the
arguments of learned counsel for the
petitioner regarding violation of principles
of natural justice while passing the
impugned
order
dated
31.03.2021
(Annexure No.1).

31. Admittedly, no opportunity of
hearing has been provided to the petitioner
before passing the impugned order dated
31.03.2021 whereby the pension and
pensionery benefits of the petitioner have
been withheld for the reason that the
petitioner has not rendered ten years
qualified service. The Hon'ble Apex Court
in re: D.T.C. vs. Balwan Singh reported in
AIR 2017 SC 396 in para-5 has observed as
under:-

"5. Prima facie, we are of the
view that no adverse effect can be
permitted upon the right of the employee to
receive pension unless he was given notice
by appropriate entry in the service book or
through other notice that his absence will
be treated as unauthorised absence and
will not be counted towards qualifying
service for pension. In absence of such
notice, after the respondent-employee has
taken voluntary retirement under VRS and
that too on the ground that he has
completed ten years of service, it may be
unjust and very harsh to inflict him with
such adverse consequences. No doubt in
sub-rule (2) of Rule 28 of the Pension Rules
which
relates
to
condonation
of
interruption of service, an opportunity of
representation is required to be given to the
employee before making entry in service
book regarding forfeiture of past service
only, but there appears to be some
substance in the submission that Rules of
Natural Justice may be attracted even in
other similar situation where the entry is
regarding unauthorised absence, if it is to
have the effect of break in service adversely
affecting the length of qualifying service for
pension."[Emphasis Supplied]

32. Further, admittedly, the petitioner
was being paid pension and pensionery
benefits since his retirement i.e. 31.05.2015
i.e. after lapse of about six years the
impugned order has been passed without
566 INDIAN LAW REPORTS ALLAHABAD SERIES
seeking any explanation from the petitioner
despite the fact that such impugned order
involves civil consequences, therefore, it
would be causing serious prejudice to the
petitioner and on the basis of principles of
fairness good conscience the principles of
natural justice should be followed. This law
is trite from the very beginning as observed
by the House of Lords in re: Frome United
Breweries Company Ltd. and another vs.
Keepers of the Peace and Justice for
Country Borough to Bath reported in 1926
AC 586."

"... It is true that the order is
administrative in character, but even an
administrative order which involves civil
consequences, as already stated, must be
made consistently with the rules of natural
justice after informing the first respondent
of the case of the State, the evidence in
support thereof and after giving an
opportunity to the first respondent of being
heard and meeting or explaining the
evidence. No such steps were admittedly
taken, the High Court was, in our
judgment, right in setting aside the order of
the State."[Emphasis Supplied]

The Hon'ble Apex Court in re: State of
Orissa vs. Dr. (Miss) Binapani Dei and
others reported in AIR 1967 SC 1269 has
followed the aforesaid dictum of House of
Lords in re; Frome United Breweries
Company Ltd. (Supra).

33. I have noted that the impugned
order dated 31.03.2021 has been passed
taking recourse of Regulation 351-A of
C.S.R., therefore, had the petitioner been
issued a show cause notice before passing
the order dated 31.03.2021 the petitioner
would have apprised the authorities that no
such impugned order could be passed
taking recourse of Regulation 351-A of
C.S.R. on account of bar of four years
under
such
provisions
of
law.
The
petitioner could have also apprised the
Competent Authority by submitting his
explanation that for the purposes of
seniority
or
promotion
his
services
rendered as an adhoc basis could have not
been counted but for making payment of
pension and pensionery benefits such order
could have not been passed. Since no such
opportunity has been extended to the
petitioner, therefore, the impugned order
dated 31.03.2021 is violative of principles
of natural justice and may not sustain in the
eyes of law on this point alone.

34. The Government Order dated
10.06.1985 (Annexure No.5) whereby a
conscious decision has been taken by the
Competent Authority that separate cadre of
the doctors of the department in question
shall be created. A separate Directorate
shall
be
established.
Service
rules
governing the conditions of service shall be
formulated. The doctors and paramedical
staff appointed in the department in
question shall be paid the same salary and
allowances which is being paid to the
doctors and paramedical staff of Medical &
Health Services. Such Government Order
has been passed after getting prior approval
from the Finance and Medical Department
and by the order and approval of the
Governor of the State. Later on such
service rules were formulated in the year
1993.

35. Not only the above, the Annexure
No.RA-2 of the rejoinder affidavit is the
Government Order dated 08.02.1989 which
provides the vacant posts of Medical
Officer are pending consideration in the
State Government and option was asked
from the Medical Officers to give three
options with regard to their posting, if they
9 All Dr. Sushil Chandra Tiwari Vs. State of U.P. & Ors.
567
were found suitable for adhoc appointment,
then the appointment letter would be issued
to them. However, in case, there is no
vacant post in accordance with option, the
Medical Officer would be posted nearest to
home district where the vacancies are
available.
Therefore,
the
aforesaid
Government Order clearly provides that
such appointment would be made on a clear
vacancy through proper channel. Thereafter
the petitioner was appointed on the post of
Medical Officer in the department in
question on 13.07.1989 and admittedly he
discharged
his
continuous
and
uninterrupted services till his retirement on
31.05.2015.

36. I have also seen Annexure No.8 of
the writ petition, which is an affidavit of
service being filed by the Principal
Secretary of the Department before the
Contempt Court bearing Criminal Misc.
Case No.1317 (S) of 2015; Dr. Sushil
Chandra Tiwari vs. Arun Kumr Sinha and
others indicating in para-6 that the
petitioner has been paid his all retiral
benefits including the pension. Such
affidavit of compliance has been filed on
07.08.2015 i.e. after the retirement of the
petitioner. Therefore, if there was any
anomaly on the part of the petitioner for not
apprising the department correctly about
his status at the time of his retirement, such
fact could have been brought into the notice
of the Contempt Court or any review
application could have been filed Before
the Division Bench which granted the
similar benefit to the petitioner, but
admittedly, the judgment and order dated
22.07.20214 passed by the Division Bench
of this Court has not been assailed by the
State
Government
nor
any
review
application has been filed nor any action
has been taken for about six years from the
retirement of the petitioner.. Therefore, for
all practical purposes, the judgment and
order dated 22.07.2014 has attained finality
and
the
compliance
of
order dated
22.07.2014
has
been
made
by
the
department
by
filing
affidavit
of
compliance on 07.08.2015, so in these
circumstance the impugned order dated
31.03.2021 would be nullity in the yes of
law.

37. Not only the above, the learned
Advocate General has himself stated that
the judgment and order dated 22.07.2014
has attained finality, therefore, the initial
appointment of the petitioner may not be
treated as substantive appointment but at
the same time the judgment and order dated
22.07.2014 has been accepted by the State
Government by making compliance thereof
providing all the post retiral benefits which
have been paid to the similarly placed
employees,
therefore,
the
aforesaid
compliance decision may not be reversed
by the State Government after about six
years and such action be barred from the
principles of estoppel.

38. I have noticed Annexure No.10 of
the writ petition, which is the judgment and
order dated 11.12.2019 passed by this
Court in Writ-A No.52358 of 2017; Dr.
Atul Darbari vs. State of U.P. & another,
which is an identical case with the present
petitioner and that writ petition has been
allowed considering the decision of this
Court
in
re:
Dr.
Amrendra
Narain
Srivastava vs. State of U.P. & others
passed in Writ-A No.61974 of 2011 and Dr.
Prem Chandra Pathak and another vs.
State of U.P. & others passed in Writ-A
No.27579 of 2014, wherein this Court has
held that the entire period of adhoc services
rendered by the employee shall be taking
into account and counted for the purposes
of grant of pensionery benefits. In the
568 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment of Dr. Atul Darbari (supra), this
Court has followed the dictum of Hon'ble
Apex Court rendered in re: Prem Singh vs.
State of U.P. in Civil Appeal No.6798 of
2019 whereby even the services rendered in
work charged establishment shall be treated
as qualifying service. Therefore, this Court
in re: Dr. Atul Darbari (supra) as directed
the concerning authorities to make payment
of retiral dues to the petitioner of that writ
petition. Some more identical orders have
been annexed with the writ petition
wherein the similar benefits have been
given. Further, there is one judgment and
order dated 17.07.2019 passed by this
Court in Dr. Khalid Ali Khan & another
vs. State of U.P. & others; Writ Petition
No.1744 (S/B) of 2015, which has been
annexed as Annexure No.17 to the writ
petition, is to be referred for the reason that
the judgment and order dated 17.07.2019
passed by this Court in an identical matters
has been upheld by the Apex Court when
the State challenged the judgment and
order dated 17.07.2019 before the Hon'ble
Supreme Court by filing Special Leave
Petition (Civil ) Diary No.5396 of 2020
(Annexure No.18), the Hon'ble Supreme
Court has dismissed the Special Leave
Petition vide order dated 05.06.2020.

39. It is also necessary to mention
here that the latest dictum of Hon'ble Apex
Court rendered in re: Rashi Mani Mishra
(supra), it has been held that for the
purposes of seniority or promotion the
services rendered on adhoc basis shall not
be counted but the said judgment does not
debar the employees who have retired from
service and their adhoc services have been
counted for the purpose of pension and
pensionery benefits.

40. At this stage, I would like to
consider the U.P. Retirement Benefit Rules,
1961 (here-in-after referred to as the "Rules,
1961"). The qualifying service defines in
Rule 3 (8) of the Rules, 1961 means service
which qualifies for pension in accordance
with the provisions of Article 368 of C.S.R.
Rule 3 (8) of the Rules, 1961 is quoted as
under:-

"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-

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