# Ishwar.Chand Sharma & Ors v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1064
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-18
- **Case number:** Writ-A No. 4344 of 2023
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishwar-chand-sharma-ors-v-state-of-u-p-ors-49260
- **Pages:** 10

## Headnote

Civil Law - Constitution of India,1950 -
Article 14 - Uttar Pradesh Collection Amins
Service Rules, 1974 - Rules 5, 17A - Uttar
Pradesh Qualifying Services for Pension
and Validation Act, 2021 - Old Pension
Scheme - Seasonal Collection Amins -
Regularisation - Pensionary Benefits -.
Petitioners, engaged as Seasonal Collection
Amins between 1984-1992 and regularised
between 2009-2010, retired between 20152021. They performed duties akin to regular
Collection Amins, received regular pay scales
with revisions, and sought inclusion of their preregularisation service for pension eligibility. The
court held that denying the counting of service
as Seasonal Collection Amins was arbitrary and
violated Article 14, as their duties, pay, and
regularisation under Rules 5 and 17A of the
1974
Rules
were
equivalent
to
regular
employees. Reliance on U.P. Act No. 1 of 2021
and the New Pension Scheme (effective
01.04.2005) was rejected, following Prem Singh
and Awadhesh Kumar Srivastava, as petitioners'
initial engagement predated 2005. The court
distinguished Shri Chandra Singh, noting it failed
to consider prior precedents. Impugned orders
set aside, and respondents directed to compute
pensionary benefits, including pre-regularisation
service, within three months.

Writ petitions allowed.
10 All. Ishwar Chand Sharma & Ors. Vs. State of U.P. & Ors.
1065
Case Law Cited:

## Text

1064 INDIAN LAW REPORTS ALLAHABAD SERIES

In the instant case, the Magistrate
found one of the contingencies to exist and
the revisional court agreed with the same. I
do not find any good cause to interfere in
the inferences drawn by the courts below.

32. In this view of the matter, the
order of the City Magistrate cannot be
faulted. It is not at all the function of the
revisional court or this Court, in exercise of
powers
under
Article
227
of
the
Constitution of India to go through the
evidence once again and decide upon the
de-facto possession.

33. As far as the argument of the
petitioner that a supplementary report given
by the police station incharge was not taken
into consideration is concerned, this
submission does not appear to be correct.
The court of the Sub Divisional Magistrate
had perused the supplementary report,
while giving a finding that none of the
parties was found in possession. The parties
have all the opportunity to press their
claims before the civil court.

34. I do not find any infirmity of such
nature in the impugned orders so as to
justify the exercise of powers under Article
227 of the Constitution of India and
therefore, petition is dismissed.

35. Copy of the order be immediately
certified to the court concerned.

----------
(2023) 10 ILRA 1064
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.
Writ-A No. 4344 of 2023
With
Writ-A No. 7774 of 2023
With
Writ-A No. 7588 of 2023
With
Writ-A No. 7582 of 2023
and
Writ-A No. 6601 of 2023

Ishwar.Chand Sharma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Syed Wajid Ali

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950 -
Article 14 - Uttar Pradesh Collection Amins
Service Rules, 1974 - Rules 5, 17A - Uttar
Pradesh Qualifying Services for Pension
and Validation Act, 2021 - Old Pension
Scheme - Seasonal Collection Amins -
Regularisation - Pensionary Benefits -.
Petitioners, engaged as Seasonal Collection
Amins between 1984-1992 and regularised
between 2009-2010, retired between 20152021. They performed duties akin to regular
Collection Amins, received regular pay scales
with revisions, and sought inclusion of their preregularisation service for pension eligibility. The
court held that denying the counting of service
as Seasonal Collection Amins was arbitrary and
violated Article 14, as their duties, pay, and
regularisation under Rules 5 and 17A of the
1974
Rules
were
equivalent
to
regular
employees. Reliance on U.P. Act No. 1 of 2021
and the New Pension Scheme (effective
01.04.2005) was rejected, following Prem Singh
and Awadhesh Kumar Srivastava, as petitioners'
initial engagement predated 2005. The court
distinguished Shri Chandra Singh, noting it failed
to consider prior precedents. Impugned orders
set aside, and respondents directed to compute
pensionary benefits, including pre-regularisation
service, within three months.

Writ petitions allowed.
10 All. Ishwar Chand Sharma & Ors. Vs. State of U.P. & Ors.
1065
Case Law Cited:

1. A.P. Srivastava Vs U.O.I., (1995) 3 UPLBEC
1842 (Supplement) (Para 17)

2. Ram Pratap Vs St. of U.P., 2006 (4) ADJ 709
(Para 17)

3. Babu Singh Vs St. of U.P., 2006 (8) ADJ 371
(Para 17)

4. Kedar Ram-I Vs St. of U.P., 2008 ILR (All)
659 (Para 17)

5. Ram Sajiwan Maurya Vs St. of U.P., Writ
Petition No. 3031 (S/S) of 2004 (Para 17)

6. Kanti Devi Vs St. of U.P., 2009 (10) ADJ 18
(Para 17)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Syed Wajid Ali, learned
counsel for the petitioners and learned
Standing Counsel for the respondents.

2. Since the controversy involved in
the aforesaid writ petitions are identical,
therefore, all writ petitions are being
decided
together
with
this
common
judgement.

3. For convenience, the facts are
being delineated from Writ-A No.4344 of
2023.

4. The petitioners through the present
writ petition have assailed the order dated
28.01.2023 passed by respondent no.2District Magistrate, Bulandshahar rejecting
the representation of the petitioners for
giving them the benefit of the old pension
scheme.

5. The petitioners are five in number
and were engaged as Seasonal Collection
Amin in different tehsils in district
Bulandshahar.
Their
services
were
regularised and all of them have retired.
The details of all the petitioners in respect
of their engagement, regularisation and
retirement are given in the table below:-

Sl.
No
.
Name of
Petitione
rs
Date
of
Engageme
nt
as
Seasonal
Collection
Amin
Date
of
Regularisati
on
Date
of
Retiremen
t
1.
Ishwa
Chand
Sharma
20.01.198
4
20.04.2010
31.12.202
1
2.
Ved Ram
Singh
23.06.198
4
05.06.2009
31.12.201
8
3.
Than
Singh
01.02.199
2
05.06.2009
31.07.201
7
4.
Pooran
Singh-Ist
01.08.199
0
05.06.2009
31.12.201
5
5.
Jayanti
Prasad
Sharma
01.07.198
9
27.07.2010
30.11.201
9.

6. All the petitioners since the date of
their respective engagement had worked as
Seasonal Collection Amin continuously till
the date of their regularisation. The
petitioners were paid regular pay scales
which were given to regular Collection
Amins and their pay scales were also
revised from time to time till their
appointment on the post of regular
Collection Amin.

7. The petitioners after retirement
submitted representation before respondent
no.2 for the grant of the old pension
scheme. When respondent no.2 did not pay
any heed to the representation of the
petitioners, petitioner no.1 preferred WritA No.17394 of 2022 while petitioner no. 2
to 5 preferred Writ-A No.17470 of 2022.
Both the aforesaid writ petitions were
disposed off by this Court by order dated
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
02.12.2022 directing respondent no.2 to
consider and decide the representation of
the petitioners.

8. In compliance with the order
passed by this Court, respondent no.2
considered the representation of each
petitioner and rejected the same by order
dated 28.01.2023.

9. A counter affidavit has been filed
on behalf of respondent no.2 stating therein
that petitioners before the date of their
regularisation have been engaged as
Seasonal
Collection
Amin
and
their
engagement was only for 89 days after
which their engagement came to an end and
in case of further need, the Commissioner,
Meerut Division, Meerut engaged them
further for a limited period, therefore, in
view of Uttar Pradesh Qualifying Services
for Pension and Validation Act, 2021 (U.P.
Act No.1 of 2021) and sub-Rule 2 of
Government Order dated 05.03.2021 and
Government Order dated 14.06.2017, the
services rendered by the petitioners as
Seasonal Collection Amin cannot be
reckoned as qualifying service for grant of
Old Pension Scheme.

10. The further case is that a New
Pension Scheme was introduced w.e.f.
01.04.2005 and any appointment made on
or after 01.04.2005 is governed by the New
Pension Scheme and therefore, petitioners
are not entitled to the benefit of the Old
Pension Scheme.

11. Challenging the aforesaid order,
learned counsel for the petitioners has
contended that the action of respondent
no.2 in rejecting the claim of the petitioners
is arbitrary and illegal. It is contended that
U.P. Act No.1 of 2021 is not applicable
since the services of the petitioners have
been regularised in accordance with Rule 5
and Rule 17A of Uttar Pradesh Collection
Amins Service Rules, 1974 (hereinafter
referred to as 'Rules, 1974').

12. It is further contended that
petitioners have rendered more than 26
years as Seasonal Collection Amin and had
discharged
the
same
duty
as
was
discharged by regular Collection Amins
and have been extended all the benefits i.e.
regular pay scales and revision of pay
scales which were given to regular
Collection Amin, therefore, ignoring the
said period for grant of old pension scheme
is arbitrary and discriminatory and violates
Article 14 of Constitution of India. It is
further contended that the rejection of the
claim of petitioners based on various
government
orders
referred
in
the
impugned order and U.P. Retirement
Benefit
(Amendment)
Rules
2005
(hereinafter referred to as 'Rules, 2005') is
incorrect.

13. Per contra, learned Standing
Counsel would contend that engagement of
petitioners as Seasonal Collection Amin
was purely temporary, and therefore, they
are not entitled to the benefit of the old
pension scheme. It is contended that the
engagement of petitioners as Seasonal
Collection Amin is only for 89 days after
which their engagement came to an end and
thereafter, they were engaged as per the
need and thus, services rendered by them
are not liable to be added for grant of old
pension scheme. It is further submitted that
in view of U.P. Act No.1 of 2021 and Rule
2005, petitioners cannot be extended the
benefit of the old pension scheme.

14. I have considered the rival
submissions of the parties and perused the
record.
10 All. Ishwar Chand Sharma & Ors. Vs. State of U.P. & Ors.
1067

15. The facts that emanate from the
record are that petitioners were engaged as
Seasonal Collection Amin between the year
1984 to 1992. The petitioners in paragraph
8 of the writ petition have stated that since
their
date
of
engagement
till
their
regularisation they worked as Seasonal
Collection Amin and were extended regular
pay scales and were extended the benefit of
revised pay scales as were given to regular
Collection
Amins.
The
averments
contained in paragraph 8 of the writ
petition have been replied to by the
respondent in paragraph 5 of the counter
affidavit, but respondents have not denied
the averments of paragraph 8 of the writ
petition.

16. Now the question that arises for
consideration is whether respondents are
justified in not counting the service period
rendered by the petitioners as Seasonal
Collection Amin before their regularisation
for grant of benefit of old pension scheme.

17. In the case of Suresh Chandra
Pandey Vs. State of U.P. and Others
passed in Writ-A No.10116 of 2018, this
Court while considering the identical
question involved in the instant writ
petition has held that the action of the State
in not granting the benefit of pension to the
petitioner is arbitrary. Paragraphs 12, 13,
14 and 18 of the said judgement are
reproduced herein below:-

"12. In A.P. Srivastava v. Union
of India and Ors.5, the Supreme Court has
clearly taken a view that in case of a
temporary employee who has rendered 20
years of service is entitled to pension. In
the expression 'substantive capacity' the
emphasis
imparted
by
the
adjective
'substantive' is that a thing is substantive if
it is essential part of the constituent or
relating to what is essential. Therefore,
when a post is vacant, however, designated
in officilase, the capacity in which the
person holds the post has to be ascertained
by the State. The substantive capacity
refers to capacity in which person holds the
post and not necessarily to the nature and
character of the post. Thus, a person is said
to hold a post in a substantive capacity
when he holds it for an indefinite period
especially
for
a
long
duration
in
contradistinction to a person who holds it
for a definite or a temporary period or
holds
it
on
probation
subject
to
confirmation. ((Refer Ram Pratap V. State
of U.P.6, Babu Singh V. State of U.P.7,
Kedar Ram-I v. State of U.P.8, Ram
Sajiwan Maurya v. State of U.P. and
others9, Kanti Devi v. State of U.P.10,
Kishan Singh v. State of U.P.11, Awadh
Bihari Shukla v. State of U.P.12).

13. The Division Bench of this
Court in State of U.P. and others v.
Mahendra Chaubey13, allowed the claim
of pension of a seasonal collection amin
whose temporary service was followed by
substantive
appointment
despite
the
petitioner therein having not rendered 10
years
substantive
service
after
regularization.

14. The principle that emerges
from the spectrum of decisions is that a
temporary employee appointed on the
regular establishment of the Government is
entitled to pension under Fundamental
Rule 56.

18. In the facts and circumstances
of the instant case, the petitioner admittedly
came to be appointed Seasonal Collection
Amin in regular pay scale admissible to the
post. The revised pay was paid from time to
time. Income tax was deducted from the
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
salary
of
the
petitioner.
In
the
circumstances, the law declared in Prem
Singh (supra) entitles the petitioner to
pension and retiral dues."

18. Against the judgement of this
Court in the case of Suresh Chandra
Pandey (supra), the State preferred Special
Appeal Defective No.564 of 2020 which
was dismissed by this Court by judgement
dated 29.09.2020. Relevant extract of the
said judgement is reproduced herein
below:-

"A perusal of the facts averred in
the counter affidavit, we find that it is an
admitted fact that on being appointed a
Seasonal Collection Amin, regular pay
scale admissible to the post was given to
the respondent-petitioner and that was also
revised from time to time. The appellantsrespondents also deducted the income tax
from the salary of the respondentpetitioner. The grant of regular pay scale
itself is sufficient to arrive at a conclusion
that the appointment of the RespondentPetitioner was on a regular basis and as
such he is entitled for post retiral benefits."

19. The State preferred Special Leave
to Appeal (C) No.12588 of 2021 against
the judgement of the Special Appeal Court
dated 29.09.2020 which was also dismissed
by the Apex Court by order dated
23.8.2021. The order of the Apex Court
dated 23.08.2021 reads as under:-

"Heard learned counsel for the
petitioners.

We do not find any ground to
interfere with the impugned order, as much
as the petitioner was initially appointed in
the year 1978 as a Seasonal Collection
Amiin, and was extended regular pay
scales from 1988 onwards and his pay was
also revised from time to time till he
attained the age of superannuation.

In that view of the matter, the
Special Leave Petition is dismissed."

20. This Court in Special Appeal
No.475 of 2020 (State of U.P. and Others
Vs. Prabhat Kamal) preferred by the State
of U.P. refused to quash the order passed
by the learned Single Judge, who allowed
the writ petition of the petitioner, by
judgement dated 12.07.2021 for granting
the benefit of the old pension scheme. The
relevant
extract
of
the
order
dated
12.07.2021 is reproduced herein below:-

"It
is
not
in
dispute
that
petitioner/non-appellant was engaged as
Seasonal
Collection
Peon
on
20th
February, 1976. He continued to work with
the respondents till his regularisation on
31st July, 2010. Petitioner/non-appellant
then retired from service on 31st March,
2012. Since he was regularised in service
prior to retirement, he became entitled for
the retiral benefits in view of the judgment
of this Court in the case of Board of
Revenue and others Vs. Prasidh Narain
Upadhyay, 2006 (62) ALR 839 decided the
same controversy. It was held that once an
employee is regularised in service his
entire past services would be counted for
the determination of necessary benefits. It
is irrespective of initial appointment on
temporary basis.

Taking into consideration the
judgment of this Court in Prasidh Narayan
(supra) and relied upon by the learned
Single Judge, we find no reason to cause
interference in the appeal. More so, the
same issue was decided by this Court in the
appeal bearing Special Appeal Defective
10 All. Ishwar Chand Sharma & Ors. Vs. State of U.P. & Ors.
1069
No. 156 of 2021 (State of U.P. and 4 others
Vs. Narayan Singh Sharma) dated 19th
February, 2021.

In light of the aforesaid, this
appeal fails and is dismissed."

21. The State of U.P. preferred
Special Leave to Appeal (C) Nos.98839884 of 2022 which was also dismissed by
the Apex Court by order dated 11.07.2022
granting time to the State of U.P. to comply
with the order of this Court within three
months. The order of the Apex Court dated
11.07.2022 reads as under:-

"In the facts and circumstances
of the case, we are not inclined to entertain
the present petitions.

The special leave petitions are,
accordingly,
dismissed.
Pending
application(s), if any, shall stand disposed
of.

Learned
counsel
for
the
petitioners seeks eight weeks' time to
comply with the order passed by the High
Court and granted as prayed for.

It is made clear that no further
extension will be granted."

22. It may also be relevant to
reproduce paragraphs 21 to 24 of the
judgement of this Court in the case of
Kaushal Kishore Chaubey and Others Vs.
State of U.P. and Others 2021 (10) ADJ
628:-

"21. Undisputedly, the fact in the
instant case is that the petitioners have
been engaged as Seasonal Collection Amin
between the year 1976 to 1990 and their
services have been regularized between the
years 2011 to 2016 and they have been
extended all the benefits like the revision of
pay with the approval of the competent
authority as paid to the regular Collection
Amin. The duties which have been
discharged by the petitioners while working
as Seasonal Collection Amin was similar to
the duties discharged by regular Collection
Amin, and on continuance and satisfactory
services rendered by them as Seasonal
Collection
Amin
,
they
have
been
regularized in service as per Rules. Thus,
from the facts narrated above, it is evident
that though the nomenclature and nature of
appointment
to
the
petitioners
were
Seasonal Collection Amin , but as a matter
of fact, they meet all the requirements to be
treated as temporary employees as held by
the Apex Court in the case of A.P.
Srivastava Vs. Union of India and others,
(1995) 3 UPLBEC 1842 (Supplement), [
See also Ram Pratap Vs. State of U.P.,
2006 (4) ADJ 709, Babu Singh Vs. State of
U.P., 2006 (8) ADJ 371, Kedar Ra-I Vs.
State of U.P., 2008 ILR (All) 659, Ram
Sajiwan Maurya Vs. State of U.P. and
others, Writ Petition No.3031 (S/S) of 2004
(decided on 12 August 2009), Kanti
Devi Vs. State of U.P., 2009 (10) AJD
18, Kishan Singh Vs. State of U.P.,
2009 (9) ADJ 516 & Awadh Bihari
Shukla Vs. State of U.P., 2015 (6) ADJ
186].

22.
From
the
judgments
referred to above, it is clear that the
Courts have consistently held that the
services rendered by an employee either
as work charged employee or Seasonal
Collection Amin are to be counted for
granting the pensionary benefit to them,
and the nomenclature of their appointment,
be a daily wager, temporary or whatever, is
not material to consider their claim for
grant of pensionary and retiral benefits.
1070 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Further, it is also pertinent to
mention that the petitioners have worked
for decades as Seasonal Collection Amin
discharging the same duty which has been
discharged by the regular Collection Amin
and have been extended the same benefits
which have been extended to the regular
Collection Amin, therefore, in such factual
scenario denying the petitioners the benefit
of pension and other benefits which have
been extended to Regular Collection Amin
would not only be arbitrary but against the
concept of the right to equality as
enshrined in Article 14 of the Constitution
of India.

24.
In
view
of
the
above
discussion and given the law elucidated by
the Apex Court as well as by this Court in
various pronouncements referred above,
the services rendered by the petitioners as
Seasonal Collection Amin cannot be
ignored for extending the benefits of
pension and other retiral benefits to them
on the pretext that their appointment is to
be treated from the date of regularization
and not from the date of their engagement
as work charged employee."

23. The judgements, referred to
above, lays down that action of the
respondent in ignoring the period of
services rendered by the employees as
Seasonal Collection Amin for pension
is arbitrary.

24. At this stage, it would be
relevant to have a glance at Rule 5 of
Rules, 1974 which deals with the source
of recruitment and Rule 17A which
talks about the preparation of select list.
Rules 5 and 17A reads as under:-

"5. Source of recruitment.-(1)
Recruitment to posts in the ordinary
grade of the service shall be made on
the result of a competitive examination
as provided in Part V of these rules:

Provided
that
subject
to
availability of suitable candidates, up
to fifteen per cent of the vacancies shall
be filled by promotion from amongst
such substantively appointed collection
peons:-

(a) who have passed at least
High School Examination of the Board
of
High
School
and
Intermediate
Education,
Uttar
Pradesh
or
an
Examination
recognised
by
the
Government as equivalent thereto; and

(b) Who have worked in the
Collection Organisation of the Revenue
Department for a period of at least six
Fasals:

Provided further that thirtyfive per cent vacancies shall be filled by
selection from amongst such Seasonal
Collection Amins-

(a)
who
have
worked
satisfactorily for at least four Fasals:

(b) Whose age on the first day
of July of the year in which selection is
made does not exceed 45 years:

Provided also that if suitable
candidates are not available, remaining
vacancies shall be filled by general
candidates through direct recruitment.

Explanation.-Satisfactory work
shall mean at least seventy per cent
realisation as per prescribed standard
during the last four Fasals including good
conduct throughout.
10 All. Ishwar Chand Sharma & Ors. Vs. State of U.P. & Ors.
1071

17A. Procedure for selection of
Seasonal Collection Amins.- The Collector
shall prepare a list of seasonal Collection
Amins who are eligible for selection under
the first proviso of sub-rule (1) of Rule 5
and select from amongst them, the required
number of candidates on the basis of
seniority or the length of their service on
the post of Seasonal Collection Amin in the
district subject to satisfactory work."

25. It is also contended by the learned
counsel for the petitioners that the source of
recruitment is provided under Rule 5 of
Rules, 1974 and under the second proviso
to Rule 5(1), 35% vacancy of Collection
Amin is to be filled from Seasonal
Collection Amin whose performance has
been satisfactory in at least four Fasals.
He submits that Satisfactory Service has
been defined in the Explanation which
states that Satisfactory Service means
that the conduct of Seasonal Collection
Amin is good and his recovery in the
four Fasals should not be less than 70%.

26. It is further submitted that
Rule 17A of the Rules 1974 provides
for the selection procedure of Seasonal
Collection Amins and as per the said
rule, the Collector shall prepare a list of
Seasonal Collection Amins under the
first proviso to Rule 5(1) of the
Collection
Amin
based
on
their
satisfactory service and recovery. It is
also contended that once Rules provides
that
35%
vacancy
of
Seasonal
Collection Amin is to be filled from
Seasonal Collection Amin and their past
performance is a relevant consideration
in placing their name in the list of
Seasonal Collection
Amin for the
purpose of regularisation, the past service
rendered by such an employee cannot be
ignored.

27. This Court finds substance in the
aforesaid argument of learned counsel for
the petitioners inasmuch as for being
eligible to be considered for appointment
under 35% quota from Seasonal Collection
Amin as provided in the second proviso to
Rule 5(1) of Rules 1974, the performance
of Seasonal Collection Amin has to be
satisfactory in at least four Fasals. The
satisfactory service has been explained in
Explanation to Rule 5(1) which states that
satisfactory service means good conduct
and
recovery
of
70%
by
Seasonal
Collection Amin in at least four fasals.

28. Once the rule provides one of the
sources of recruitment to Collection Amin
through Seasonal Collection Amin and
procedure is contemplated which is to be
followed in preparing the list of eligible
Seasonal
Collection
Amins
to
be
considered for appointment under 35%
quota under the proviso to Rule 5, in such
circumstances, it cannot be said that
engagement of the Seasonal Collection
Amin is de-hors the rules, more so when
Rule 3(i) defines 'Seasonal Amin' which
means that an Amin who has been
appointed for Rabi and Kharif or both
crops. For this reason, this Court is of the
view that denial of counting of past service
as Seasonal Collection Amin for the
purpose of pension is arbitrary.

29. The respondent no.2 has placed
reliance upon U.P. Act No.1 of 2021 and
the judgement of this Court in Special
Appeal No.398 of 2021 (Shri Chandra
Singh Vs. State of U.P. & Others) to deny
the benefit of Old Pension Scheme to the
petitioners.

30. So far as the reliance placed by
the learned Standing Counsel upon U.P.
Act No.1 of 2021 is concerned, this Court
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
in the case of Awadhesh Kumar Srivastava
Vs. State of U.P. and Others passed in
Writ-A No.746 of 2023 has held that
the benefit of the judgement of the
Apex Court in the case of Prem Singh
Vs. State of U.P. and Others (2019)
10 SCC 516 cannot be negated by the
State by placing reliance upon U.P.
Act No.1 of 2021.

31. So far as the judgement of
this Court in the case of Shri Chandra
Singh
(supra)
relied
upon
by
respondent
no.2
in
passing
the
impugned order is concerned, the said
judgement has not considered the law
as to when the judgement can be overruled by the legislature by enacting a
validation law. The said judgement
has also not considered the judgement
of this Court in the case of Suresh
Chandra Pandey (supra), wherein the
identically placed employees have
been extended the benefit of the Old
Pension Scheme, and special leave
petitions filed by the respondent-State
were dismissed. The Apex Court did
not find any merit in the Special
Leave
to
Appeal
against
the
judgement of the learned Single Judge
and Special Appeal Court since the
respondent was initially appointed as
Seasonal Collection Amin and was
extended
pay
scale
from
1988
onwards, and also revised pay scale.
Further, the said judgement has also
not noticed the judgement of this
court in Special Appeal No.475 of
2020 which was dismissed by this
Court wherein challenge was laid by
the State of U.P. against a judgement
granting
benefit
of
Old
Pension
Scheme to the Seasonal Collection
Peon. In such view of the fact, the
ratio of the judgement of this Court in
the case of Shri Chandra Singh
(supra) does not apply in the instant
case and has wrongly been relied upon
by respondent no.2 in rejecting the
claim of the petitioners.

32. So far as the contention of
learned Standing Counsel that after
the introduction of the New Pension
Scheme
w.e.f.
01.04.2005
by
Notification dated 28.03.2005, any
employee
recruited
on
or
after
01.04.2005 shall be governed by the
New Pension Scheme and in the
instant case, as the petitioners have
been regularized after implementation
of New Pension Scheme, they shall be
governed by New Pension Scheme and
are not entitled to the benefit of Old
Pension Scheme. A similar contention
was also advanced in the case of
Awadhesh Kumar Srivastava (supra)
wherein this Court did not find merit
in the said submission, therefore,
following the judgement of this Court
in
the
case
Awadhesh
Kumar
Srivastava
(supra),
the
said
contention
being
misconceived
is
rejected.

33. Thus, for the reasons given
above, all the writ petitions are
allowed and impugned orders in the
present writ petition as well as in the
connected writ petitions are set aside.
The respondent state is directed to
compute pensionary benefits payable
to the petitioners after taking into
account their entire service including
the service rendered by them as
Seasonal
Collection
Amin.
The
amount payable to the petitioners shall
be computed within three months from
the date of production of the certified
copy
of
this
order.
10 All. Meera Devi & Anr. Vs. The Board of Revenue Uttar Pradesh at Lucknow & Ors.
1073
----------
(2023) 10 ILRA 1073
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Writ-B No. 2800 of 2023

Meera Devi & Anr. ...Petitioners
Versus
The Board of Revenue Uttar Pradesh at
Lucknow & Ors. ...Respondents

Counsel for the Petitioners:
Sri A.P. Singh

Counsel for the Respondents:
C.S.C., Sri Anoop Baranwal, Sri Nitya
Prakash Tiwari

Civil Law - U.P. Land Revenue Act, 1901 -
Sections 34 & 219 - Hindu Minority and
Guardianship Act, 1956 - Section 8(2) -
Mutation Proceedings - Jurisdiction of
Revenue Courts - Validity of Sale Deed -
Principles of Natural Justice - Article 226
The petitioners, Meera Devi and another,
challenged the Board of Revenue's order dated
05.06.2023, which allowed a revision by
respondent Siddhant Gupta, setting aside a
mutation
order
dated
02.02.2022
and
remanding the matter to the Tehsildar, Khadda,
for fresh adjudication. The mutation was based
on a sale deed dated 11.06.2009 executed by
respondent Neelam Devi, including on behalf of
her then-minor son, Siddhant Gupta, without
court permission under Section 8(2) of the
Hindu Minority and Guardianship Act, 1956.

Held: (1) The writ petition was partly allowed.
(2) The Board of Revenue's findings on the
validity of the sale deed were expunged as
beyond its jurisdiction in summary mutation
proceedings, which cannot adjudicate title or
legality of registered sale deeds, per Jitendra
Singh Vs St. of Madhya Pradesh. (3) The
mutation order was ex-parte, violating principles
of natural justice due to lack of notice on case
transfer, justifying remand. (4) The writ was
maintainable
under
Article
226
due
to
jurisdictional error by the Board of Revenue, as
per Madhav Pandey Vs Board of Revenue. (5)
The remand to the Tehsildar was affirmed, but
the Tehsildar was directed to decide afresh
within four months under the U.P. Land
Revenue Act, 1901, without being influenced by
the Board's findings on the sale deed's legality.
(6) A prior civil suit challenging the sale deed,
dismissed on 15.09.2021, was not considered by
the Board, reinforcing the jurisdictional error.

Case Law Cited:

1. Jitendra Singh Vs St. of Madhya Pradesh,
2021 0 Supreme (SC) 487;

2. Saroj Vs Sunder Singh & ors., Civil Appeal No.
10582 of 2013 (SC, 25.11.2013);

3. Smt. Kalawati Vs Board of Revenue & ors.,
2022 (4) ADJ 578;

4. Madhav Pandey & ors. Vs Board of Revenue
& ors., 2002 (2) AWC 1311;

5. Hadisul Nisha Vs Additional 5. Commissioner
(Judicial) Faizabad & ors., 2021 (6) ADJ 176;

6. Amrintansh Pandey Vs St. of U.P. & others,
(2023) 0 Supreme (All) 1107;

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard Sri Amit Pratap Singh,
learned Counsel for the petitioners, Sri.
Jitendra Narain Rai, learned Additional
Chief Standing Counsel for the State
respondents and Sri Nitya Prakash, learned
Counsel appearing for the respondents no.2
& 3.

2. By means of the instant writ
petition field under Article 226 of the
Constitution of India, the petitioners have
prayed for a writ in the nature of certiorari