# Kanak Srivastava v. The Vice Chancellor, Banaras Hindu University, Varanasi & Ors

- **Citation:** (2025) 7 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-08
- **Case number:** Writ A No. 19325 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanak-srivastava-v-the-vice-chancellor-banaras-hindu-university-varanasi-ors-53573
- **Pages:** 23

## Headnote

Mr. Ajit Kumar Singh, Senior Advocate
along with Mr. Madan Mohan

Issue for Consideration
The present case pertains to the computation of
"qualifying service" for pensionary benefits
under the Banaras Hindu University (BHU)
Statute and Ordinances, particularly Statute
7 All. Kanak Srivastava Vs. The Vice Chancellor, Banaras Hindu University, Varanasi & Ors.
467
1264 governing retirement benefits. The late
employee's services in the CBD Project (a
project funded by a private association and not
part of the University's regular establishment)
were
excluded
for
pension
fixation-The
exclusion was discriminatory, as a similarly
situated or junior employee was paid a higher
pension based on a higher pay scale, thus
violating Article 14 of the Constitution.

Headnotes
Service
Law-Central
Civil
Services
(Pension) Rules, 1972-Rule 13- Pension
Computation-Qualifying
ServiceUniversity Employees-Project/Temporary
Service Prior to Regularization- Fresh
recruitment,
Not
continuation-The
petitioner
challenged
exclusion
of
deceased/husband CBD project service
from pension fixation-Service rendered in
a privately funded project that is outside
the regular establishment, where the
employee is later appointed through fresh
recruitment,
cannot
be
counted
for
quantification (upward revision) of the
pension-The Case of M.C. Joshi was held
to be distinct, as he was appointed to the
regular establishment and not a project,
thus eliminating any basis for a claim of
hostile discrimination-Petition dismissed.

Held
The
petitioner
asserted
that
the
service
rendered in the CBD Project, prior to her
husband's regular appointment as a Medical
Social Worker on 28.08.1986, ought to be
included as "qualifying service" in accordance
with Rule 13 of the CCS Rules,1972-A further
claim of hostile discrimination was raised
alleging denial of the higher pay scale and
pension (2000-3500) granted to a similarly
situated
colleague,
M.C.
Joshi-The
BHU
submitted that the CBD project was externally
funded by a private association and was not
part of the University's regular establishment ,
thus petitioner's husband ineligible to be
counted under CCS Rules,1972-Parity with M.C.
Joshi was denied as he was appointed earlier
i.e. 06.04.1979 in the regular establishment on
a temporary basis and retired later 31.03.2010
in a higher pay scale-The employee's entry into
the
University's
regular
cadre
on
28.08.1986,following an advertisement and
selection , constituted a fresh recruitment, not a
transition or absorption from the project serviceThe plea of hostile discrimination was factually
ill-founded -Thus they were not "similarly
circumstanced" for the purpose of quantifying
pension-The court found no fit case for the
exercise of its extra-ordinary jurisdiction under
Article 226 of the Constitution of India-The
petition is dismissed.(Para 17 to 37) (E-6)

Case law Cited
Dr. Umesh Kumar Vs St. of H.P. & Anr(2023)
SCC Online HP 350, Praduman Kumar Jain Vs
UOI & Anr (1994) Supp 2 SCC 548, Mahesh
Chandra Verma (1) Vs St. of Jhar. & Ors.(2018)
7 SCC 270, Vijay Narayan Singh Vs UOI & Ors
(2022): AHC: 105657, Krishna Deo Mishra & Ors
Vs UOI &Ors (2022): AHC:127726, Om Prakash
Chaturvedi Vs St. of U.P. & Ors (2023): AHC:
84304, Prem Singh Vs St. of U.P. & Ors (2019)
10 SCC 516, Punj. St. Electricity Board & Anr Vs
Narata Singh & Anr.(2010) 4 SCC 317, Uday
Pratap Thakur & Ors Vs St. of Bih. & Ors (2023)
SCC OnLine SC 527, Lakshmi Ram & Anr Vs UOI
& Ors (2022): AHC: 138740, Brij Mohan Lal (1)
Vs UOI (2002) 5 SCC 1, Brij Mohan Lal (2) Vs
UOI (2012) 6 SCC 502, Mahesh Chandra Verma
(2) Vs St. of Jhar.(2012) 11 SCC 656
List of Acts
Central Civil Services (Pension) Rules, 1972
List of Keywords
CCS Rules, 1972; BHU; IMS ; CBD Project;
hostile discrimination; qualifying service; Medical
Social Worker; IMD; Retirement benefits; Old
Pension Scheme; Quantum of pension; Higher
pay scale; Non-Teaching Staff Grievance; Vice
Chancellor.
Case Arising From
Service Law -WRIT -A No. - 19325 o

## Text

_Characters 0–39,887 of 80,619. This is a partial read: ask again with offset=39887 for what follows._

466 INDIAN LAW REPORTS ALLAHABAD SERIES
The said action of the respondent employers
subverts the intent of Rights of Persons with
Disabilities Act, 2016 and is contrary to the
provisions of the enactment.

21. The impugned order had invalidated
the claim of the petitioner for light duties on the
footing that there exists no provision for grant
of light duties to drivers in the Corporation. The
aforesaid assertions in the impugned order are
in the teeth of the provisions of Rights of
Persons with Disabilities Act, 2016. As
discussed earlier an imperative duty is cast upon
the respondents to identify posts to be held by
respective
categories
of
persons
with
disabilities.
The
rights
of
persons
with
disabilities cannot be transgressed on account of
the failure of the respondent authorities to
comply with the said provisions of the
Disabilities Act. The respondent authorities
cannot take advantage of their omissions to
deny rights vested in the petitioner by law.

22. The impugned order dated 04.10.2024
is liable to be set aside and is set aside.

23. The matter is remitted to the
respondent authorities with the following
directions:

I. The respondents are directed to
permit the petitioner to continue on the post
with light duties which he has joined pursuant
to directions issued by this Court. The petitioner
shall be regularly paid his salary as and when it
becomes due.

II. The respondents are directed to
pay the arrears salary of the petitioner from
March, 2022 till his salary was released last.
The petitioner shall be entitled to interest @ 7%
for the period of unpaid arrears of salary. The
amount shall be paid within four months of the
date of receipt of a certified copy this order.

III. The Managing Director, U.P.
State Road Transport Corporation, Lucknow
shall ensure that all officers are duly sensitized
to the rights of persons with disabilities under
the Disabilities Act and the legislative intent of
the Disabilities Act is brought to fruition by
faithful implementation of the Rights of Persons
with Disabilities Act, 2016 in the respondent
Corporation. To this end the following shall be
executed within a period of six months:

A) Appropriate orders shall be issued
and training be conducted by the competent
authority.

B) Regular audits shall be conducted
to oversee status of implementation of the
disabilities in the respondent-Corporation.

IV. In the event of failure to pay the
amount of arrears of salary and interest as
directed above the respondents shall pay further
penalty of Rs. 50,000/-. The Managing
Director, UPSRTC shall fix responsibility for
non payment of the said amount and may direct
recovery of the amount from the concerned
officers.

24. The writ petition is allowed.
----------
(2025) 7 ILRA 466
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2025
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 19325 of 2019

Kanak Srivastava ...Petitioner
Versus
The
Vice
Chancellor,
Banaras
Hindu
University, Varanasi & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Siddharth Khare

Counsel for the Respondents:
Mr. Ajit Kumar Singh, Senior Advocate
along with Mr. Madan Mohan

Issue for Consideration
The present case pertains to the computation of
"qualifying service" for pensionary benefits
under the Banaras Hindu University (BHU)
Statute and Ordinances, particularly Statute
7 All. Kanak Srivastava Vs. The Vice Chancellor, Banaras Hindu University, Varanasi & Ors.
467
1264 governing retirement benefits. The late
employee's services in the CBD Project (a
project funded by a private association and not
part of the University's regular establishment)
were
excluded
for
pension
fixation-The
exclusion was discriminatory, as a similarly
situated or junior employee was paid a higher
pension based on a higher pay scale, thus
violating Article 14 of the Constitution.

Headnotes
Service
Law-Central
Civil
Services
(Pension) Rules, 1972-Rule 13- Pension
Computation-Qualifying
ServiceUniversity Employees-Project/Temporary
Service Prior to Regularization- Fresh
recruitment,
Not
continuation-The
petitioner
challenged
exclusion
of
deceased/husband CBD project service
from pension fixation-Service rendered in
a privately funded project that is outside
the regular establishment, where the
employee is later appointed through fresh
recruitment,
cannot
be
counted
for
quantification (upward revision) of the
pension-The Case of M.C. Joshi was held
to be distinct, as he was appointed to the
regular establishment and not a project,
thus eliminating any basis for a claim of
hostile discrimination-Petition dismissed.

Held
The
petitioner
asserted
that
the
service
rendered in the CBD Project, prior to her
husband's regular appointment as a Medical
Social Worker on 28.08.1986, ought to be
included as "qualifying service" in accordance
with Rule 13 of the CCS Rules,1972-A further
claim of hostile discrimination was raised
alleging denial of the higher pay scale and
pension (2000-3500) granted to a similarly
situated
colleague,
M.C.
Joshi-The
BHU
submitted that the CBD project was externally
funded by a private association and was not
part of the University's regular establishment ,
thus petitioner's husband ineligible to be
counted under CCS Rules,1972-Parity with M.C.
Joshi was denied as he was appointed earlier
i.e. 06.04.1979 in the regular establishment on
a temporary basis and retired later 31.03.2010
in a higher pay scale-The employee's entry into
the
University's
regular
cadre
on
28.08.1986,following an advertisement and
selection , constituted a fresh recruitment, not a
transition or absorption from the project serviceThe plea of hostile discrimination was factually
ill-founded -Thus they were not "similarly
circumstanced" for the purpose of quantifying
pension-The court found no fit case for the
exercise of its extra-ordinary jurisdiction under
Article 226 of the Constitution of India-The
petition is dismissed.(Para 17 to 37) (E-6)

Case law Cited
Dr. Umesh Kumar Vs St. of H.P. & Anr(2023)
SCC Online HP 350, Praduman Kumar Jain Vs
UOI & Anr (1994) Supp 2 SCC 548, Mahesh
Chandra Verma (1) Vs St. of Jhar. & Ors.(2018)
7 SCC 270, Vijay Narayan Singh Vs UOI & Ors
(2022): AHC: 105657, Krishna Deo Mishra & Ors
Vs UOI &Ors (2022): AHC:127726, Om Prakash
Chaturvedi Vs St. of U.P. & Ors (2023): AHC:
84304, Prem Singh Vs St. of U.P. & Ors (2019)
10 SCC 516, Punj. St. Electricity Board & Anr Vs
Narata Singh & Anr.(2010) 4 SCC 317, Uday
Pratap Thakur & Ors Vs St. of Bih. & Ors (2023)
SCC OnLine SC 527, Lakshmi Ram & Anr Vs UOI
& Ors (2022): AHC: 138740, Brij Mohan Lal (1)
Vs UOI (2002) 5 SCC 1, Brij Mohan Lal (2) Vs
UOI (2012) 6 SCC 502, Mahesh Chandra Verma
(2) Vs St. of Jhar.(2012) 11 SCC 656
List of Acts
Central Civil Services (Pension) Rules, 1972
List of Keywords
CCS Rules, 1972; BHU; IMS ; CBD Project;
hostile discrimination; qualifying service; Medical
Social Worker; IMD; Retirement benefits; Old
Pension Scheme; Quantum of pension; Higher
pay scale; Non-Teaching Staff Grievance; Vice
Chancellor.
Case Arising From
Service Law -WRIT -A No. - 19325 of 2019
From the Judgment and order dated 08.07.2025
of the High Court of Judicature at Allahabad.
Kanak Srivastava Vs. The Vice Chancellor
Banaras Hindu University, Varanasi & Ors
468 INDIAN LAW REPORTS ALLAHABAD SERIES
Appearances for Parties
Advs. for Petitioner
Mr. Siddharth Khare, Advocate
Advs. for Respondent
Mr. Ajit Kumar Singh, Senior Advocate along
with Mr. Madan Mohan, Advocate.

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner, Kanak Srivastava, is
the widow of the late Prakash Chandra
Srivastava, a Junior Medical Social Worker
in the Department of Preventive and Social
Medicine, Institute of Medical Sciences1,
Banaras Hindu University2. The late
Prakash Chandra Srivastava retired from
service,
upon
attaining
the
age
of
superannuation, on 31.08.2005. He was
sanctioned a retirement pension, reckoning
his services from 28.08.1986 until the date
of his retirement i.e. 31.08.2005. The
respondents did not take into consideration
the services rendered by Prakash Chandra
Srivastava from 01.11.1981 to 07.08.1986
in the CBD Project, Department of
Preventive and Social Medicine, IMS,
BHU that he had rendered prior to joining
regular service as a Medical Social Worker
in the Department of Preventive and Social
Medicine, last mentioned. The petitioner
thinks that her husband was unfairly treated
during his lifetime in the matter of fixation
of his pension, for, according to the
petitioner as well as her late husband, a
junior to him, M.C. Joshi, who had been
appointed as Junior Medical Social Worker
along with the petitioner, was paid a higher
pay scale and higher pension upon
retirement,
bringing
about
hostile
discrimination. It is on the foot of this cause of
action broadly that the petitioner, after her
husband's demise, has instituted this writ
petition, initially challenging an order dated
31.07.2019 passed by the Deputy Registrar
(Admin-NT),
excluding
the
petitioner's
husband's services rendered in the project for
the purpose of fixation of his pension and
another order dated 05.01.2016 passed by the
Registrar of the BHU, annexed as Annexure
CA-5 to the counter affidavit dated 02.02.2020,
which the petitioner has challenged through an
amendment. The petitioner further prays that a
mandamus be issued, directing the respondents
to pay pension to the petitioner in the pay scale
of ₹2000-3500 in the same terms as paid to
M.C. Joshi, who retired from the same post and
in the same pay scale as Prakash Chandra
Srivastava. The petitioner also seeks payment
of arrears of retirement pension on account of
the difference in pension, to which her husband
was entitled and that paid to him since
31.08.2005.

2. Now, a detailed statement of the
petitioner's case would show that her husband,
Prakash Chandra Srivastava, was appointed
initially as a Case Worker in the Rural Health
Training Centre, Chiraigaon, Department of
Preventive and Social Medicine, IMS, BHU,
where he worked from 24.04.1978 to
06.06.1978. Next, he was employed as a Social
Scientist with the University Health Centre,
BHU
from
20.07.1978
to
28.10.1979.
Srivastava was then employed in the CBD
Project, Department of Preventive and Social
Medicine, IMS, BHU, where he worked from
01.11.1981 to 07.08.1986. Subsequently, he
was appointed on regular basis as a Medical
Social Worker on 28.08.1986 with the
Department of Preventive and Social Medicine,
IMS, BHU in the pay scale of ₹550-900. Next,
he was appointed as a Junior Medical
Worker in the Department of Preventive
Social Medicine in the pay scale of ₹16402900 with effect from 01.07.1993.

3.
According
to
the
petitioner,
Srivastava was appointed a Junior Medical
Social Worker along with one M.C. Joshi
on the same post and placed in the same
7 All. Kanak Srivastava Vs. The Vice Chancellor, Banaras Hindu University, Varanasi & Ors.
469
pay scale. Srivastava superannuated on
31.08.2005,
and,
according
to
the
petitioner, he was paid his pension in the
pay scale of ₹1640-2900, whereas, M.C.
Joshi, who was appointed on the same post
and placed in the same scale, is being paid
pension worked out on the basis of the pay
scale of ₹2000-3500 provided to a Senior
Medical Social Worker. It is in this manner
that Srivastava was discriminated against
by the respondents, violating the equality
clause enshrined under Article 14 of the
Constitution.
Srivastava,
while
alive,
represented his cause to the BHU, saying
that
his
services
rendered
prior
to
28.08.1986, while serving the CBD Project,
Department of Preventive and Social
Medicine from 01.11.1979 to 07.08.1986,
should be taken into reckoning in order to
fix his pension, counting those six years
and nine months of service, of which, he
had been deprived. In the event, the said
services were taken into reckoning, he
would be entitled to the same pay scale as
Joshi, to wit, ₹2000-3500, leading to an
upward revision and re-fixation of pension
for him.

4. The petitioner represented to the
Registrar of the BHU on 26.10.2013,
seeking to reckon eight years of his
services rendered in the project in order to
remove anomalies and the difference in
pension paid to his contemporaries like
M.C. Joshi on one hand, and Srivastava on
the other. He sought a revision of his
pension and claimed parity with the
similarly circumstanced. Srivastava sent
successive
reminders
to
the
Vice
Chancellor of BHU, one of them being
dated 21.07.2015. This did not move the
respondents.

5. Aggrieved by inaction on the
respondents' part, Srivastava instituted
Writ - A No. 53016 of 2015 before this
Court, praying that his services with the
BHU as a Case Worker in the Rural Health
Centre from 24.04.1978 to 06.06.1978, as a
Social Scientist in the University Health
Centre from 20.07.1978 to 28.10.1979 and
as a Field Supervisor in the CBD Project
from 01.11.1979 to 07.08.1986, totalling a
period of eight years, be taken into
reckoning for the purpose of re-fixation and
revising his pension. The learned Single
Judge, before whom the writ petition came
up, dismissed it on the ground of laches.
The petitioner appealed the judgment to the
Division Bench, which set aside the
judgment of the learned Single Judge and
directed respondent No. 2 to the writ
petition, some officer of the University, to
look into the grievance of the petitioner in
relation to his claim for pension equal to
similarly circumstanced employees on a
plea of discrimination.

6. The order dated 30.10.2015 passed
by the Division Bench passed in Special
Appeal No. 781 of 2015 was served upon
the Registrar of the BHU along with a
representation dated 07.11.2015. Despite
lapse of time, the University and their
functionaries do not seem to have paid heed
or decided the petitioner's claim in
accordance with the orders of the Division
Bench. This led Srivastava into instituting a
fresh writ petition, to wit, Writ - A No.
6052 of 2019, seeking to enforce the
directions
for
consideration
of
the
petitioner's case and necessary orders
regarding
parity
in
emoluments
and
revision of pension, as directed by the
Division Bench. Writ - A No. 6052 of 2019
was
disposed
of
vide
order
dated
17.05.2019, with a direction to the
respondents to decide the matter relating to
promotion of the petitioner to the post of
Senior Medical Social Worker within a
470 INDIAN LAW REPORTS ALLAHABAD SERIES
period of twelve weeks from the date of
receipt of a certified copy of the order. This
is a matter which would be alluded to a
little later in this judgment, for it has great
and material bearing on the rights of parties
involved in this petition.

7. Srivastava's claim for promotion to
the position of a Senior Medical Social
Worker and consequent provision of the
still higher pay scale of ₹2200-4000 was
rejected by the respondents vide order
dated 31.07.2019 issued by the Deputy
Registrar (Admin-NT), BHU. While this
order was made on 31.07.2019, a few days
preceding it, on 22.07.2019, Srivastava
passed away. Cudgels were thereafter taken
on his behalf by the petitioner, his widow,
upon whom, his estate devolved. The
petitioner, therefore, instituted the present
writ petition, seeking to quash the order
dated 31.07.2019 on ground of hostile
discrimination between her husband and
similarly circumstanced employees like
Joshi, besides other grounds.

8. A notice of motion was issued vide
order dated 05.12.2019 and a counter
affidavit was filed on behalf of respondents
on 06.10.2021, being an affidavit dated
02.02.2020. In the said affidavit, a copy of
the order dated 05.01.2016 was annexed as
Annexure CA-5, rejecting the petitioner's
claim for inclusion of service rendered in
the CBD Project for the purpose of
computation of his pension described as
"qualifying service for the purpose of
pensionary benefits". The petitioner filed a
rejoinder dated 17.11.2022 on 17.02.2023.
The order dated 05.01.2016 was challenged
by amendment, which was granted. In
course of time, multiple affidavits -
supplementaries, supplementary counters
and
supplementary
rejoinders
were
exchanged. When the writ petition came up
on
21.05.2024,
the
parties
having
exchanged affidavits, it was admitted to
hearing, which proceeded forthwith. It was
adjourned to 15.07.2024. It was heard on
17.10.2024 and finally, on 09.01.2025,
when judgment was reserved.

9. Heard Mr. Siddharth Khare, learned
Counsel for the petitioner and Mr. Ajit
Kumar, learned Senior Advocate assisted
by Mr. Madan Mohan, learned Counsel
appearing on behalf of the respondentBanaras Hindu University and their various
officials.

10. It is submitted by the learned
Counsel for the petitioner that the services
rendered by Srivastava (husband of the
petitioner)
between
24.04.1978
and
27.08.1986 in the CBD Project are liable to
be reckoned for the purpose of pension and
other retiral benefits in accordance with
Rule 13 of the Central Civil Services
(Pension) Rules, 19723. In support of his
submission,
learned
Counsel
for
the
petitioner has placed reliance upon Dr.
Umesh Kumar v. State of Himachal
Pradesh and another4 and Praduman
Kumar Jain v. Union of India and
another5. It is next submitted that the
respondents have come up with an
objection that the services of Srivastava
between 24.04.1978 and 27.08.1986 for the
purpose of reckoning his entitlement to
pension cannot be counted on the ground
that during the aforesaid period of time, he
was serving in a project of the Department
of Preventive and Social Medicine; not as a
regular employee of the University. It is
argued that the services of Srivastava
rendered in the Project are eligible to be
counted as resolutions were passed by the
respondents to compute the services
rendered in the CBD Project by O.P. Singh,
Kedar Nath Gupta, Krishna Tiwari, R.K.
7 All. Kanak Srivastava Vs. The Vice Chancellor, Banaras Hindu University, Varanasi & Ors.
471
Ram, Kamla Shankar Mishra, Vijay Narain
Singh, Hanuman Ji, besides others who
have similarly served, for the purpose of
determining their entitlement to pension.
The Court's attention in this regard is drawn
to the minutes of a meeting of the
respondents held on 26.05.2017 and
09.09.2017. It must be remarked that copies
of these minutes that were placed before
the Court are not part of the record.

11. The learned Counsel for the
petitioner,
in
order
to
buttress
his
contention that the project services of
Srivastava are eligible to reckon towards
his entitlement to pension, has invited the
Court's attention to Mahesh Chandra
Verma (1) v. State of Jharkhand and
others6. It is emphasized that Mahesh
Chandra Verma (1) (supra) lays down that
services rendered by employees in the Fast Track
Courts are required to be counted for the purpose
of qualifying service, noticing that Fast Track
Courts were constituted for a limited period and
services rendered by the Fast Track Court Judges
were to be taken into reckoning as services
rendered in a project. There is a reference then
made to orders of this Court in Vijay Narayan
Singh v. Union of India and others7, Krishna
Deo Mishra and others v. Union of India and
others8 and Om Prakash Chaturvedi v. State of
U.P. and others9. Reliance is also placed by the
learned Counsel for the petitioner upon the
celebrated decision of the Supreme Court in Prem
Singh v. State of U.P. and others10 and lastly
upon the authority in Punjab State Electricity
Board and another v. Narata Singh and
another11. It is emphasized that in Om Prakash
Chaturvedi (supra) this Court and in Narata
Singh (supra), the Supreme Court held that
services rendered in a project would be reckoned
for determination of pension.

12. The learned Senior Advocate, appearing
for the respondents, on the other hand, submits
that Srivastava was appointed with the University
for the first time on 28.08.1986 as a cadre
employee, after he applied pursuant to an
advertisement, leading to his selection and
appointment. His services rendered with the CBD
Project had nothing to do with the service of the
University. The CBD Project is funded by a
private association, to wit, the Family Planning
Association, Bombay. The appointment in that
project was not in accordance with any service
rules in the regular establishment. It is emphasized
that Rule 13 of the CCS Rules would not be
attracted, because Srivastava was not working in a
temporary
capacity
before
his
regular
appointment. Learned Senior Advocate for the
respondents has placed strong reliance upon the
authority of the Supreme Court in Uday Pratap
Thakur and others v. State of Bihar and
others12. Reliance is also placed upon the
judgment of this Court in Lakshmi Ram and
another v. Union of India and others13.

13. The learned Senior Advocate for the
respondents has pointed out that the plea of parity
and/or discrimination raised, vis-à-vis M.C. Joshi,
is factually ill-founded, because Joshi was
appointed on a temporary basis in the regular pay
scale of ₹425-700 on the post of a social worker in
the Centre of Radiotherapy & Radiation
Medicine, IMS vide letter No. EST/12359 dated
31.03.1979 w.e.f 06.04.1979 against a post
sanctioned by the University Grants Commission
under the 5th Five Year Plan. He was not an
employee of the CBD Project, who later on joined
the University service, but commenced service in
the establishment of the University, may be on a
temporary basis. It is emphasized that Srivastava
joined the regular establishment on 28.08.1986,
whereas Joshi joined it on 06.04.1979. There is,
thus, no case of parity between Srivastava and
Joshi, or any kind of hostile discrimination
practised by the respondents.

14. It is argued that the last pay drawn
by Srivastava, the petitioner's husband, was
472 INDIAN LAW REPORTS ALLAHABAD SERIES
in the pay scale of ₹6500-10500, the scale
corresponding to ₹2000-3500 (pre-revised).
Srivastava's pension was, therefore, fixed
on the last pay drawn in the aforesaid pay
scale when he retired from service on
31.08.2005. It is urged that Srivastava is
not entitled to claim parity with Joshi or
plead discrimination on a comparison with
him, as Srivastava was appointed on
28.08.1986 and retired on 31.08.2005,
whereas Joshi was appointed on 06.04.1979
and retired on 31.03.2010, much after
Srivastava. Joshi did not retire in the same
pay scale as Srivastava.

15. It is submitted further that
Srivastava's pension was correctly fixed on
the basis of his last pay drawn in the pay
scale of ₹6500-10500, corresponding to the
pre-revised pay scale of ₹2000-3500. He
was, therefore, granted pension, if one were
to see matters in the right perspective,
according to the learned Senior Advocate,
which he has claimed in the writ petition.
The
orders
dated
05.01.2016
and
31.09.2019 passed by the respondents,
impugned in the writ petition, carry sound
reasoning,
which
do
not
call
for
interference. It is, particularly, pointed out
by the learned Senior Advocate appearing
for the respondents that reliance placed by
the petitioner on the case of Vijay
Narayan Singh (supra), an employee of
the CBD Project, whose services in the
project were emphasized to have been
resolved by the respondents to be computed
with
his
regular
service
in
the
establishment of the University for the
purpose of determination of pension, is
misconceived. He points out that what the
petitioner
has
emphasized
is
a
recommendation
made
by
the
NonTeaching Staff Grievance Committee on
06/07.04.2017, that was considered and
rejected by the Vice Chancellor, the
competent Authority of the University, vide
order
dated
30.09.2022,
annexed
as
Annexure No. IInd SCA-4 to the second
supplementary counter affidavit filed on
behalf of the respondents.

16.
We
have
bestowed
careful
consideration to the rival submissions
advanced on behalf of parties by learned
Counsel, perused the record and the law
that would govern their rights, which was
extensively cited at the Bar.

17. There is no cavil about the fact that
Srivastava was appointed to the regular
establishment of the University as a
Medical Social Worker on 28.08.1986 with
the Department of Preventive and Social
Medicine, IMS, BHU. To begin with, the
case of Srivastava was to take into
reckoning service rendered by him as a
Case Worker in the Rural Health Training
Centre,
Chiraigaon,
Department
of
Preventive and Social Medicine, IMS,
BHU from 24.04.1978 to 06.06.1978 and
then as a Social Scientist with the
University Health Centre, BHU from
20.07.1978 to 28.10.1979, besides the
period of service, where the petitioner was
employed in the CBD Project, Department
of Preventive and Social Medicine, IMS,
BHU from 01.11.1981 to 07.08.1986. All
this engagement for the petitioner was prior
to his appointment as a Medical Social
Worker on 28.08.1986 in the regular
establishment
of
the
BHU
in
their
Department of Preventive and Social
Medicine,
IMS.
During
hearing,
the
submissions, that have been advanced, have
limited Srivastava's claim to the period of
time that he spent in the service of the CBD
Project, Department of Preventive and
Social
Medicine,
IMS,
BHU
from
01.11.1979 to 07.08.1986. This is a time
period of about six years and nine months.
7 All. Kanak Srivastava Vs. The Vice Chancellor, Banaras Hindu University, Varanasi & Ors.
473
Based on Srivastava's claim, the question
that would arise is, if the period of service
rendered by him with the CBD Project can
be taken into consideration for computing
the total length of service with the BHU
and fixing his pension on that basis. In
support of the proposition that service
rendered in a project with the same
employer, that is followed by absorption in
the regular establishment, is to be taken
into
reckoning
for
the
purpose
of
determination of pension, the foremost
authority that the learned Counsel for the
petitioner has relied upon is Dr. Umesh
Kumar (supra). The facts in Dr. Umesh
Kumar can best be recapitulated in the
words of their Lordships as these appear in
the report of the decision. These read:

"2. Brief facts necessary for
adjudication of the petition are that
petitioner was appointed as Medical
Officer in the department of Health,
Government of H.P., on contract basis
w.e.f. 31.01.1997. His contract employment
continued for about ten years, whereafter
services of the petitioner were regularized
w.e.f. 05.03.2007. Though, the initial
appointment of the petitioner was on
contract basis, but he was being paid
regular pay scale with all allowances
admissible to Medical Officers appointed on
regular basis. Petitioner was also paid
increments at par with regularly appointed
Medical Officers. Noticeably, the initial
appointment of the petitioner on contract basis
was made after undergoing selection process in
which he was interviewed by a duly constituted
selection committee. As many as thirty-four
Medical Officers were appointed on contract
basis alongwith petitioner.

3. In 2010, petitioner alongwith
similarly situated Medical Officers were
directed by respondents to switch over to
Contributory Pension Scheme, which was
introduced, vide notification dated 17.08.2006.
Petitioner alongwith others approached this
Court by way of CWP No. 4799 of 2010,
raising challenge to the aforesaid direction of
the respondents. By way of an interim order,
respondents were restrained from compelling
the petitioner to join Contributory Pension
Scheme. Finally, CWP No. 4799 of 2010 was
decided by a Division Bench of this Court, vide
judgment dated 30.11.2010, in following
terms:-

"9. Having regard to the factual
matrix and legal position as referred to above,
whereby
the
appointments
though
on
adhoc/contractual/tenure basis having been
made
prior
to
15.5.2003
and
which
appointments having been given effect by way
of regularization with effect from the date of
adhoc/tenure/contractual basis, the contentions
as referred to above, assume significance and
force. Therefore, these writ petitions are
disposed of directing the first respondent to
consider the case of the petitioners afresh and
take
appropriate
action
in
the
matter
expeditiously. Till the orders are passed as
above, interim order passed in this case will
continue."

4. Petitioner superannuated on
31.12.2020 and till such date no decision could
be taken by respondents in pursuance to
directions issued by this Court, vide judgment
dated
30.11.2010.
On
18.10.2021,
a
communication was sent from the office of
respondent No. 1 to respondent No. 2 informing
that the case of the petitioner had been rejected.
Thus, petitioner is before this Court assailing
communication
dated
18.10.2021,
Annexure P-5."

18. In rejecting the respondents' stand,
denying the petitioner's claim for adding
towards his qualifying service, service
474 INDIAN LAW REPORTS ALLAHABAD SERIES
rendered on contractual basis, under the
CCS Rules, 1972, their Lordships of the
Division Bench of the Himachal Pradesh
High Court held:

"9. The facts are not in dispute. It
is not in dispute that petitioner was duly
qualified and was appointed on contract
basis after he had undergone the selection
process in which thirty-four other Medical
Officers were selected. All of them had
appeared before duly constituted selection
committee and were finally appointed on
recommendations of such committee. The
continuance of petitioner on contract basis
for about ten years is also a fact which has
not been disputed. The grant of pay scale,
allowances and increments etc. to the
petitioner at par with Medical Officers
appointed on regular basis, have also not
been denied.

10. Rule-13 of CCS (Pension)
Rules, 1972, reads as under:-

"13.
Commencement
of
qualifying service Subject to the provisions
of these rules, qualifying service of a
Government servant shall commence from
the date he takes charge of the post to
which
he
is
first
appointed
either
substantively or in an officiating or
temporary capacity:

Provided
that
officiating
or
temporary service is followed without
interruption by substantive appointment in
the same or another service or post :
Provided further that -

(a) in the case of a Government
servant in a Group 'D' service or post who
held a lien or a suspended lien on a
permanent pensionable post prior to the
17th April, 1950, service rendered before
attaining the age of sixteen years shall not
count for any purpose, and

(b) in the case of a Government
servant not covered by clause (a), service
rendered before attaining the age of
eighteen years shall not count, except for
compensation gratuity.

(c) the provisions of clause (b)
shall not be applicable in the cases of
counting of military service for civil
pension under Rule 19."

11. Thus, qualifying service of a
government servant commences from the
date he takes charge of the post to which he
has first appointed either substantively or
in an officiating or temporary capacity. It
is further provided that an officiating or
temporary service should be followed
without
interruption
by
substantive
appointment in the same or another service
or post. In the given facts of the case, the
initial appointment of the petitioner,
though, in temporary capacity continued
for about ten years and was followed
without
interruption
by
substantive
appointment on the same post. In such view
of the matter, the contract service of the
petitioner is liable to be counted towards
qualifying service for the purposes of
applicability of CCS (Pension) Rules, 1972.
Admittedly, it is not a case where the initial
appointment of the petitioner was for a
short period or for limited purpose.

12. In CWP No. 5400 of 2014,
titled as Veena Devi v. Himachal Pradesh
State Electricity Board Ltd., decided on
21.11.2014, a Division Bench of this Court
had held that the contract service followed
by regular appointment was required to be
counted for the purpose of pension.
Similarly in CWP No. 8953 of 2013, titled
7 All. Kanak Srivastava Vs. The Vice Chancellor, Banaras Hindu University, Varanasi & Ors.
475
as Joga Singh v. State of H.P., decided on
15.06.2015, the same proposition was
reiterated by a Division Bench of this
Court. In CWP No. 2384 of 2018, titled as
State of Himachal Pradesh v. Sh. Matwar
Singh, decided on 18.12.2018, another
Division Bench of this Court held even the
work charge status followed by regular
appointment to be counted as a component
of qualifying service for the purposes of
pension and other retiral benefits."

19. Likewise, in Praduman Kumar
Jain (supra), the question was whether the
employee, who had rendered 12 years and
8 months of service in the Indian
Meteorological Department (IMD) as an
Assistant Meteorologist, but fallaciously
claimed by the Central Government not to
have been confirmed, was entitled to count
that period of service for determining his
pension with his next employer, the
National
Thermal
Power
Corporation
(NTPC),
a
Central
Government
Undertaking, which he joined, resigning his
Central Government service. It was in this
context that their Lordships of the Supreme
Court held:

"4. The question whether the
appellant is entitled to pro rata pension in
respect of the service for the period of
twelve years and eight months rendered by
him under the Central Government depends
on the point whether he held the
appointment in the service of the IMD in a
substantive capacity. It is not disputed that
the appellant was appointed as Assistant
Meteorologist on 13-10-1977 by way of
direct recruitment through the Union
Public
Service
Commission.
Direct
recruitment, invariably, is made against
permanent vacancies. It is not the case of
the respondents that the appellant was
appointed against a temporary post. The
appellant was, therefore, appointed as
Assistant
Meteorologist
against
a
permanent vacancy. He was on probation
for a period of two years. His crossing the
efficiency bar in October 1983 and further
promotion to the higher post in September
1986 show that he successfully completed
his probation period. In any case it is
obvious that the work and conduct of the
appellant has throughout been satisfactory.

5. The finding of the Tribunal,
that the appellant was working in an
officiating capacity, is solely based on the
wording of the order dated 29-3-1984
allowing the appellant to cross the
efficiency bar wherein it was mentioned
that the increment was being given to him
in
the
officiating
post
of
Assistant
Meteorologist. We fail to understand how a
direct recruit in the post of Assistant
Meteorologist, who joined service in 1977
and completed his probation in 1979, could
be working against an officiating post. As
mentioned above, direct recruitment is
always made against permanent vacancies.
A person appointed against a permanent
vacancy, completing his probation period
successfully, crossing the efficiency bar
and even promoted to the higher rank,
cannot be considered to be working in an
officiating capacity.

6. It would be useful to refer to
para 4 of the Office Memorandum dated
31-1-1986 which is in the following terms:

"Pensionary
benefits
:
(i)
Resignation from government service with
a view to secure employment in a Central
public enterprise with proper permission
will not entail forfeiture of the service for
the purpose of retirement/terminal benefits.
In such cases, the government servant
concerned shall be deemed to have retired
476 INDIAN LAW REPORTS ALLAHABAD SERIES
from service from the date of such
resignation and shall be eligible to receive
all
retirement/terminal
benefits
as
admissible
under
the
relevant
rules
applicable
to
him
in
his
parent
organisation."

7. It is not disputed that the
appellant
resigned
from
government
service with a view to secure employment
in the Central public enterprise with proper
permission of the Central Government. The
appellant is, therefore, entitled to the
benefit
of
the
above-quoted
Office
Memorandum. We may also refer to para
4.1 of the Office Memorandum dated 28-31988 which is reproduced hereunder:

"4.1 Confirmation

(a) General

(i) Confirmation will be made
only once in the service of an official which
will be in the entry grade.

(iii) Confirmation is delinked
from the availability of permanent vacancy
in the grade. In other words, an officer who
has successfully completed the probation
may be considered for confirmation."

8. The memorandum dated 28-31988 came into force with effect from 1-41988.

9. The Tribunal came to the
conclusion that since the appellant had
resigned from the Central Government
service before coming into force of the
Office Memorandum dated 28-3-1988 the
same was not applicable in his case.

10. It is not disputed that the
appellant had more than ten years of
service under the Central Government. His
service would count as qualifying service
for pension if the provisions of Rules 13
and 49 of the Rules are satisfied. The
relevant provision of Rules 13 and 49 are
as follows:

"13.
Commencement
of
qualifying service. - Subject to the
provisions of these rules, qualifying service
of a government servant shall commence
from the date he takes charge of the post to
which
he
is
first
appointed
either
substantively or in an officiating or
temporary capacity:

Provided
that
officiating
or
temporary service is followed without
interruption by substantive appointment in
the same or another service or post.

49. (2)(b) The amount of pension
arrived at on the basis of the above slabs
will be related to the maximum qualifying
service of 33 years. For government
servants who, at the time of retirement,
have rendered qualifying service of ten
years or more but less than 33 years, the
amount of their pension will be such
proportion of the maximum admissible
pension as the qualifying service rendered
by them bears to the maximum qualifying
service of 33 years. A few illustrations are
given in the Annexure to this Office
Memorandum."

12.
Although
the
combined
reading of the two Office Memorandums
reproduced above support the appellant's
contention that he stood confirmed in the
post of Assistant Meteorologist before he
resigned the Central Government service
but it is not necessary for us to go into the
effect of the two Memorandums. Examining
the facts and circumstances of this case in
7 All. Kanak Srivastava Vs. The Vice Chancellor, Banaras Hindu University, Varanasi & Ors.
477
the light of the law laid down by this Court
in Baleshwar Dass case [(1980) 4 SCC 226
: 1980 SCC (L&S) 531 : (1981) 1 SCR 449]
, the only conclusion which can be drawn is
that the appellant was working as Assistant
Meteorologist in a substantive capacity.

13. We, therefore, hold that the
appellant had been appointed in a
substantive capacity against a permanent
post of Assistant Meteorologist and is
therefore entitled to pro rata pension and
other terminal benefits in respect of the
service rendered by him under the Central
Government."

20. We may at once dispose of the
argument advanced by learned Counsel for
the petitioner drawing strength from
Praduman Kumar Jain. In Praduman
Kumar Jain, as would be seen, the
employee was appointed to the service of
the Central Government, after being
regularly selected by the Union Public
Service Commission against a substantive
post. He was placed on probation for a
period of two years and then confirmed in
service, as the facts show. He was
promoted also to the next higher post. The
correspondence between the petitioner and
the Central Government while serving the
Indian Meteorological Department about
confirmation in service even after a period
of 12 years, during which he successfully
completed his probation and was promoted,
was apparently a misconceived stand by the
Central Government. He was, after all, a
confirmed
employee
of
the
Central
Government, when he joined the service of
the NTPC, after resigning his position with
the Central Government.