# Kamaluddin v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 699
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-21
- **Case number:** Writ A No. 17042 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamaluddin-v-state-of-u-p-ors-47500
- **Pages:** 4

## Headnote

A. Service Law - Pension - The record
reflects that petitioner has been engaged as
daily wager Clerk on 14.06.1989. It also
transpires from the record that since the date of
engagement of petitioner as daily wager, he
was continuously working till his services was
regularised
by
order
dated
22.09.2008,
therefore, in view of the judgment of Apex
Court in the case of Prem Singh (infra) as well
as judgment of this Court in the case of Kaushal
Kishore Chaubey (infra), the services rendered
as daily wager is liable to be counted for the
purpose of grant of pensionary benefit after
retirement, and if that be so, obviously the date
of appointment of petitioner would be treated to
be 14.06.1989. Hence, the services of the
700 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner will be governed under the Old
Pension Scheme. (Para 7)

This Court in Special Appeal Defective No. 116
of 2016 has held that date of appointment is
relevant for determining applicability of
Old or New Pension Scheme as the date of
appointment of petitioner is 14.06.1989 which is
prior to 01.04.2005, therefore, case of the
petitioner is covered under Old Pension Scheme.
(Para 8)

The reason assigned by the authority concerned
in rejecting pensionary benefit to petitioner
based upon the GO dated 17.07.2019 according
to which an employee appointed subsequent to
01.04.2005 shall be governed by New Pension
Scheme is misconceived and not sustainable in
law as the appointment of the petitioner is
14.06.1989 which is prior to 01.04.2005. (Para
9)

Writ petition allowed. (E-4)

Precedent followed:

## Text

1 All. Kamaluddin Vs. State of U.P. & Ors.
699
and cannot be given the relief wrongly
given to them, i.e., benefit of withdrawal of
resignation. The High Court was wholly
wrong in reaching the conclusion that there
was invidious discrimination. If we cannot
allow a wrong to perpetrate, an employee,
after committing mis-appropriation of
money, is dismissed from service and
subsequently that order is withdrawn and
he is reinstated into the service. Can a
similarly
circumstanced
person
claim
equality
under
Section
14
for
reinstatement? The answer is obviously
"No". In a converse case, in the first
instance, one may be wrong but the wrong
order cannot be the foundation for
claiming equality for enforcement of the
same order. As stated earlier, his right
must be founded upon enforceable right to
entitle him to the equality treatment for
enforcement thereof. A wrong decision by
the Government does not give a right to
enforce the wrong order and claim parity or
equality. Two wrongs can never make a
right."

24. After the death of Sri Satyendra
Pratap,
the
petitioner
submitted
an
application for considering his case for
compassionate appointment, rejected by
order
dated
21.04.2018
passed
by
respondent No.2 & 21.08.2019 passed by
respondent No. 3 on the ground that his
mother is already working in a State
Government establishment.

25. In the facts and circumstances of
the case and taking into consideration of all
the aspects of the matter, it is not disputed
that the mother of the petitioner is already
in
employment
and
is
working
as
Government Servant.

26. In this view of the matter, this
Court is of the opinion that no relief could
be granted. The writ petition lacks merits
and the same is liable to be dismissed and
is hereby dismissed.

27. No Order as to costs.
----------
(2022)01ILR A699
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 17042 of 2021

Kamaluddin ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Syed Mohammad Abbas Abdy, Sri Arshi
Abdy, Sri Neeraj Kant

Counsel for the Respondents:
C.S.C., Sri Arun Kumar, Sri Vijay Bahadur
Maurya

A. Service Law - Pension - The record
reflects that petitioner has been engaged as
daily wager Clerk on 14.06.1989. It also
transpires from the record that since the date of
engagement of petitioner as daily wager, he
was continuously working till his services was
regularised
by
order
dated
22.09.2008,
therefore, in view of the judgment of Apex
Court in the case of Prem Singh (infra) as well
as judgment of this Court in the case of Kaushal
Kishore Chaubey (infra), the services rendered
as daily wager is liable to be counted for the
purpose of grant of pensionary benefit after
retirement, and if that be so, obviously the date
of appointment of petitioner would be treated to
be 14.06.1989. Hence, the services of the
700 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner will be governed under the Old
Pension Scheme. (Para 7)

This Court in Special Appeal Defective No. 116
of 2016 has held that date of appointment is
relevant for determining applicability of
Old or New Pension Scheme as the date of
appointment of petitioner is 14.06.1989 which is
prior to 01.04.2005, therefore, case of the
petitioner is covered under Old Pension Scheme.
(Para 8)

The reason assigned by the authority concerned
in rejecting pensionary benefit to petitioner
based upon the GO dated 17.07.2019 according
to which an employee appointed subsequent to
01.04.2005 shall be governed by New Pension
Scheme is misconceived and not sustainable in
law as the appointment of the petitioner is
14.06.1989 which is prior to 01.04.2005. (Para
9)

Writ petition allowed. (E-4)

Precedent followed:

1. Prem Singh Vs St.of U.P. & ors., (2019) 10
SCC 516 (Para 4)

2. Kaushal Kishore Chaubey & ors. Vs St. of U.P.
& ors., Writ-A No. 5817 of 2020 (Para 4)

Present petition challenges order dated
22.02.2021, passed by Executive Engineer
P.W.D. Etah.

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

1. Heard learned counsel for the
petitioner, learned Standing Counsel for
respondent no.1 and Sri Arun Kumar,
learned counsel for respondent no.2.

2. The petitioner by means of the
present writ petition has assailed the order
dated 22.02.2021 by which claim of
petitioner for grant of pensionary benefits
and other retiral dues has been rejected.

3. The case of the petitioner is that he
has been appointed as daily wager Clerk by
Deputy Administrator by order dated
14.06.1989. As the petitioner had been in
service since before 11.10.1989, therefore,
his services has been regularised by order
dated 22.09.2008. The petitioner has retired
on 31.08.2018.

4. Learned counsel for the petitioner
submits that petitioner has continued in
service since 1989, therefore, his services
rendered as daily wager from 14.06.1989
till the date of regularisation is liable to be
counted with regular service for the
purpose of grant of retiral dues. The
aforesaid contention has been advanced by
the learned counsel for the petitioner on the
basis of judgement of Apex Court in the
case of Prem Singh Vs. State of Uttar
Pradesh and Others 2019 (10) SCC 516
and judgement of this Court in the case of
Kaushal Kishore Chaubey and Others Vs.
State of U.P. and Others in Writ-A
No.5817 of 2020. Accordingly, it is
submitted that impugned order is not
sustainable in law.

5.

Learned
counsel
for
the
respondents submits that petitioner has
worked as daily wager and his services has
been regularised w.e.f. 22.09.2008, and
therefore, he shall be governed under the
New Pension Scheme, which has been
made applicable to all State Government
employees w.e.f. 01.04.2005. Accordingly,
it is contended that there is no illegality in
the impugned order, and no case for
interference by this Court is made out
under Article 226 of Constitution of India.

6. I have considered the rival submissions
of the parties and perused the record.
1 All. Kamaluddin Vs. State of U.P. & Ors.
701

7. The record reflects that petitioner
has been engaged as daily wager Clerk on
14.06.1989. It also transpires from the
record that since the date of engagement
of petitioner as daily wager, he was
continuously working till his services was
regularised by order dated 22.09.2008,
therefore, in view of the judgement of
Apex Court in the case of Prem Singh
(supra) as well as judgement of this
Court in the case of Kaushal Kishore
Chaubey (supra), the services rendered
as daily wager is liable to be counted for
the purpose of grant of pensionary benefit
after retirement, and if that be so,
obviously the date of appointment of
petitioner
would
be
treated
to
be
14.06.1989. Hence, the services of the
petitioner will be governed under the Old
Pension Scheme as has been held by this
Court in Writ-A No.55607 of 2008 which
has been upheld by this Court in Special
Appeal Defective No.116 of 2021.

8. This Court in Special Appeal
Defective No.116 of 2016 has held that
date of appointment is relevant for
determining applicability of Old or New
Pension
Scheme
as
the
date
of
appointment of petitioner is 14.06.1989
which is prior to 01.04.2005, therefore,
case of the petitioner is covered under
Old Pension Scheme. Paragraph 8 of the
said
judgement
is
extracted
herein
below:-

"8.The issue aforesaid has been
factually discussed by the learned Single
Judge by referring to the judgment of this
Court in the case of Satyesh Kumar
Mishra and others vs. State of U.P. and
others 2016(6) ADJ 808 (LB) and so as
the judgment of Delhi High Court in the
case of Inspector Rejendra Singh vs.
Union of India 2017 SCC Online Del.
7879. We do not find any error in the
judgment. It is not only the date of
appointment is relevant but candidate
lower in merit out of same selection are
governed by the old pension scheme
because appointments and joining were
given from time to time before even
01.4.2005 thus appellant cannot be
deprived from the same benefits. The
judgments
on
the
issue
has
been
discussed by the learned Single Judge."

9. In view of the aforesaid fact, this
Court finds that the reason assigned by
the authority concerned in rejecting
pensionary benefit to petitioner based
upon
the
Government
Order
dated
17.07.2019
according
to
which
an
employee
appointed
subsequent
to
01.04.2005 shall be governed by New
Pension Scheme is misconceived and not
sustainable in law as the appointment of
the petitioner is 14.06.1989 which is prior
to 01.04.2005.

10. Thus, for the reasons given
above, the impugned order so far as it
relates to petitioner is set aside, and a
mandamus is being issued to respondent
no.2-Nagar
Ayukt,
Nagar
Nigam
Prayagraj to grant pensionary and other
retiral benefits to the petitioner within a
period of three months from the date of
production of certified copy of this order.

11. The writ petition is allowed
subject to the observations made above.

12. However, respondents are at
liberty to file recall application if
petitioner is obtained this order by
concealing material fact.
----------
702 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)01ILR A702
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

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

Writ A No. 58889 of 2017

Bali Ram Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Daya Shanker Yadav, Sri Mahendra
Kumar

Counsel for the Respondents:
C.S.C.

A. Service Law - Qualifying service for the
purpose of pension
- Uttar Pradesh
Retirement Benefit Rules, 1961 - Rule
3(8); Uttar Pradesh Qualifying Service of
Pension and Validation Ordinance, 2020
(U.P. Ordinance 19 of 2020).

Uttar
Pradesh
Qualifying
Service
of
Pension and Validation Act, 2021 - Section
2, 3 (U.P. Act No. 1 of 2021) - The clear
purport of the Act is to define qualifying service
in terms of Section 2 thereof retrospectively,
and not in terms of Rule 3(8) of the Rules of
1961
of
Regulation
3
of
Civil
Services
Regulations. (Para 12)

The appointment letter dated 07.05.1978, does
not reflect at all that the petitioner was
appointed in accordance with the provisions of
the
Service
Rules
governing
recruitment,
selection or appointment. The mere fact that
the appointment has been labeled or dubbed as
temporary, does not implicitly mean that it is
one made in accordance with the Service Rules.
Ex-facie, the petitioner's appointment is dehors
the Rules. (Para 14)

Petitioner's service book reflects that he has
continued in service uninterruptedly since
07.05.1987, until regularisation on 13.09.2006,
with his status being reflected earlier as
temporary. There is no hint in the service book
to show that the petitioner's appointment prior
to his regularisation granted after requisite
training, was one made in accordance with the
Service Rules. Rather, the fact that the
petitioner had to undergo training for three
months from 01.05.2006 to 31.07.2006, before
he was granted regularisation by the Appointing
Authority, shows that the service rendered by
him earlier, though uninterrupted and in a
regular pay scale, was one on the basis of an
appointment dehors the rules. (Para 15)

The rights of the petitioner judged
under the shadow of Section 2 and 3 of
the Act cannot be regarded as ones
entitling him to qualifying service. The
reason is that the petitioner's retention
in
service,
though
dubbed
as
temporary, was not made in accordance
with the relevant Service Rules. The
appointment
between
07.05.1987
and
13.01.2006, until he was regularised in
service, was one dehors the Rules. Post
regularisation, the petitioner has admittedly
not completed 10 years of qualifying service
to entitle him to pension, gratuity and other
post-retiral benefits that he seeks. As such,
the petitioner is not entitled to relief. (Para
16)

Writ petition dismissed. (E-4)

Precedent cited:

1. Habib Khan Vs St. of Uttarakhand & ors.,
(2019) 10 SCC 542 (Para 8)

Precedent distinguished:

1. St. of U.P. through Secretary, Secondary
education & ors. Vs Kamlesh Babu Gaur& anr.,
Special Appeal Defective No. 157 of 2021,
decided on 19.02.2021 (Para 13)

2. St. of U.P. Vs Bhanu Pratap Sharma, decided
on 09.06.2021 (Para 16)

3. Prem Singh Vs St. of U.P. & ors., (2019) 10
SCC 516 (Para 9)