# Ghaziabad Development Authority v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 42
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-12
- **Case number:** Special Appeal No. 117 of 2022
- **Bench:** Pritinker Diwaker, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ghaziabad-development-authority-v-state-of-u-p-anr-48784
- **Pages:** 3

## Headnote

Law
-
UP
Development
Authorities
Centralized
Services
Retirement Benefits Rules, 2011 - R. 2(1)
- Pension and other retirement benefit -
Entitlement - Earlier the petitioner was
appointed
on
the
post
of
the
Law
Assistant,
which
was
subsequently
merged and re-designated as Law Officer
- Denial of the Pensionary benefit on the
ground of non-fulfillment of 20 years
qualifying service - Legality challenged -
Division Bench found no error in Judgment
of
Single
Judge
holding
that
writ
petitioner had rendered the qualifying
service of more than 20 years and as such
the decision to deny the writ petitioner
the retiral benefits could not be sustained.
(Para 7 and 9)
Special Appeal dismissed. (E-1)
List of Cases cited:-

## Text

42 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution and the complaint cannot
be dismissed on the aforesaid ground.

14. In view of the above discussion,
this Court is of the opinion that the Court
concerned did not commit any error in
rejecting the application of the applicant
and allowing the legal heirs of the
complainant to prosecute the complaint
under Section 138 N.I. Act.

15. This Court does not find any error
in the order dated 08.11.2012, accordingly,
the application under Section 482 Cr.P.C. is
dismissed. Interim order, granted earlier
stands discharged.

16. However, the concerned Court is
directed to conclude the trial within six
months from the date of production of a
certified copy of this order.

17. Office is directed to communicate
about this order to the Court concerned
forthwith.
----------
(2022) 8 ILRA 42
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Special Appeal No. 117 of 2022

Ghaziabad Development Authority
 ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Satendra Tripathi

Counsel for the Respondents:
C.S.C., Sanjay Kumar Mishra, Sri Vibhu Rai,
Sri Anoop Trivedi (Senior Adv.)

A.
Service
Law
-
UP
Development
Authorities
Centralized
Services
Retirement Benefits Rules, 2011 - R. 2(1)
- Pension and other retirement benefit -
Entitlement - Earlier the petitioner was
appointed
on
the
post
of
the
Law
Assistant,
which
was
subsequently
merged and re-designated as Law Officer
- Denial of the Pensionary benefit on the
ground of non-fulfillment of 20 years
qualifying service - Legality challenged -
Division Bench found no error in Judgment
of
Single
Judge
holding
that
writ
petitioner had rendered the qualifying
service of more than 20 years and as such
the decision to deny the writ petitioner
the retiral benefits could not be sustained.
(Para 7 and 9)
Special Appeal dismissed. (E-1)
List of Cases cited:-
1. Special Leave to Appeal (C) No. 1109 of
2022; St. of Guj. & ors. Vs Talsibhai Dhanjibhai
Patel decided on 18.2.2022; 2022 Live Law (SC)
187
(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. Sri Satendra Tripathi, learned
counsel for the appellant, learned Standing
Counsel for the State-respondents and Sri
Anoop Trivedi, learned Senior Advocate
assisted by Sri Vibhu Rai, learned counsel
for respondent No.2.

2. The present intra Court Appeal has
been
filed
questioning
the
legality,
propriety and correctness of the judgement
and order of the learned Single Judge dated
22.9.2021 passed in Writ-A No. 63 of 2020
(Rajendra Kumar Tyagi vs. State of U.P.
and another) whereby and whereunder the
8 All. Ghaziabad Development Authority Vs. State of U.P. & Anr.
43
writ petition has been allowed holding that
the writ petitioner/respondent satisfies the
eligibility criteria prescribed under the
Retirement Benefits Rules of 2011 and has
rendered the qualified service of more than
20 years and stands entitled to retirement
benefits and directions has been issued that
the writ petitioner/respondent shall be
entitled to payment of pension alongwith
interest @ 6% per annum from the date of
his retirement till actual payment.

3. The writ petition was instituted
with the allegation that the writ petitioner
was appointed on the post of Legal
Assistant consequent to an advertisement
dated 18.2.1988 issued for appointment to
the posts of Cost Accountant, Assistant
Cost Accountant, Legal Assistant and
Stenographer Typist. The writ petitioner
faced selection and appointment letter
dated 7.5.1988 was issued appointing the
writ petitioner on the post of Legal
Assistant on ad hoc basis till further orders.
The writ petitioner joined his services and
worked as Law Assistant. Meanwhile, one
Sri Naresh Dutt Tyagi who was working as
Law
Officer
with
the
appellant
Development Authority superannuated on
30.9.2000 and he was paid his pension. It
was pleaded in the writ petition that the
post of Law Officer was sanctioned by the
Board of the Ghaziabad Development
Authority in terms of the provisions of
Section 5(2) of the U.P. Urban Planning
and Development Act, 1973. Subsequently,
vide Government Order dated 10.3.2017,
the post of Law Assistant and Law Officer
were merged and re-designated as Law
Officer and the writ petitioner was
absorbed on the post of Law Officer in
terms of the order dated 15.3.2017. The
writ
petitioner
attained
the
age
of
superannuation and retired on 31.7.2018
and submitted his claim for payment of
pension but the same was declined solely
on the ground that the post of Law
Assistant
was
not
sanctioned
and
accordingly the writ petitioner was not
entitled for payment of the pension.

4. It was the specific case of the writ
petitioner/respondent before the learned
Single Judge that he stood entitled to
pensionary benefit in terms of Rule 2(1) of
the
U.P.
Development
Authorities
Centralized Services Retirement Benefits
Rules, 2011 and also satisfied the eligibility
criteria provided therein. It was also stated
that the writ petitioner continued to
discharge his duties as a Law Assistant in
pursuance to a substantive appointment
made in accordance with law and continued
to draw his salary from the State funds
throughout the tenure of his appointment.
The denial of pensionary benefits to the
writ petitioner/respondent was thus wholly
unjustified.

5. The judgement and order of the
learned Single Judge is being resisted by
the learned Counsel for the appellant
mainly on the grounds that:

(i) the writ petitioner/respondent
did not hold the post under the centralized
services in terms of U.P. Development
Authorities Regulations, 1985 and as such
was not entitled to the retiral benefits under
the
U.P.
Development
Authorities
Centralized Services Retirement Benefits
Rules, 2011.

(ii) the post of Legal Assistant
held by the writ petitioner/respondent was
neither created by the State Government
nor sanctioned by the State Government
nor the writ petitioner/respondent was
appointed by the State Government.

(iii) the appointment of the writ
petitioner/respondent was not a substantive
44 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment inasmuch as it was neither
sanctioned by State Government nor the
appointment was made by the State
Government as is required under the U.P.
Development
Authorities
Regulations,
1985.

(iv) the services of the writ
petitioner/respondent were never regularized
and could not be equated to that of Sri Naresh
Dutt Tyagi who was appointed on 5.6.1979 and
his post was duly sanctioned by the State
Government.

6. It is thus submitted that the learned
Single Judge erred in law in allowing the writ
petition and in issuing directions for payment of
the retiral dues along with interest and as such
the intra Court Appeal deserves to be allowed.

7. We have heard the learned counsel for
the parties and have perused the record. We find
that the learned Single Judge has noted the fact
that the writ petitioner was appointed on
7.5.1988 pursuant to an advertisement issued by
the appellant itself and faced selection. The writ
petitioner was also absorbed on the post of Law
Officer in terms of order dated 15.3.2017
(Annexure-10 to the writ petition). The writ
petitioner/respondent has been drawing salary
from the State funds throughout the tenure of
his appointment which fact was not disputed by
the appellant. The learned Single Judge also
found that the writ petitioner qualified the
eligibility
criteria
prescribed
under
the
Retirement Benefits Rules, 2011 and had
rendered the qualifying service of more than 20
years and as such the decision to deny the writ
petitioner the retiral benefits could not be
sustained.

8. Recently the Apex court in the case of
the State of Gujarat and others vs. Talsibhai
Dhanjibhai Patel, Special Leave to Appeal (C)
No. 1109 of 2022 decided on 18.2.2022
reported in 2022 Live Law (SC) 187 had the
occasion to consider a similar situation and
observed as under:-

"It is unfortunate that the State
continued to take the services of the respondent
as an ad-hoc for 30 years and thereafter now to
contend that as the services rendered by the
respondent are ad-hoc, he is not entitled to
pension/pensionary benefit. The State cannot be
permitted to take the benefit of its own wrong.
To take the Services continuously for 30 years
and thereafter to contend that an employee who
has rendered 30 years continues service shall
not be eligible for pension is nothing but
unreasonable. As a welfare State, the State as
such ought not to have taken such a stand.

In the present case, the High Court
has not committed any error in directing the
State to pay pensionary benefits to the
respondent who has retired after rendering
more than 30 years service."

9. In view of the above, we do not find
any error in the judgement and order of the
learned Single Judge so as to warrant an
interference.

10. Accordingly, the Intra Court Appeal
stands dismissed.
----------
(2022) 8 ILRA 44
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Special Appeal Defective No. 135 of 2022

Rajeev Pandey & Anr. ...Appellants
Versus
Prem Shankar ...Respondent

Counsel for the Appellants: