# Lal Chand v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 421
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Writ-A No. 4083 of 2021
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-chand-v-state-of-u-p-ors-47737
- **Pages:** 9

## Headnote

A. Service Law - Pension and other retiral
benefits - The Uttar Pradesh Retirement
Benefit Rules, 1961- Rule 3(8); The Uttar
Pradesh Qualifying Service For Pension
And
Validation
Ordinance,
2020;
Constitution
of
India:
Article
14
-
Complete
service
rendered
by
the
petitioner i.e. period of service shall be
considered
for
grant
of
pensionary
benefits. Service rendered against the
temporary establishment converted into
permanent post shall be considered for
qualifying service to grant pension as well
as
retiral
benefits.
Ad
hoc
service
rendered
by
the
petitioner
shall
be
considered for reckoning his seniority and
other consequential benefits. (Para 15, 16,
17)

B. Words and Phrases - (a)'Qualifying
Service' - Rule 3(8) of Rules, 1961 is very
much clear, which provides that "qualifying
service" means service which qualifies for
pension in accordance with the provisions of
422 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 368 of the Civil Service Regulations and
includes continuous temporary or officiating
service under the Government of Uttar Pradesh
followed without interruption by confirmation in
the same or any other post.

(b) 'Service' - Service does not qualify unless
the officer holds a substantive office on a
permanent establishment. An establishment, the
duties of which are not continuous but are
limited to certain fixed periods in each year, is
not a temporary establishment. Service in such
an establishment, including the period during
which the establishment is not employed
qualifies but the concession of counting as
service
the
period
during
while
the
establishment is not employed does not apply to
an officer who was not on actual duty when the
establishment was discharged, after completion
of its work, or to an officer who was not on
actual duty on the first day on which the
establishment was again re-employed. (Para 12,
13)

In the present case, petitioner had continuously
worked after his appointment on the post of
Cooperative
Supervisor
(District
Ballia
on
21.07.1978) and ultimately, he was temporarily
promoted on the post of Assistant Development
Officer
(Cooperative)
vide
order
dated
17.08.1999. Not only this, after retirement, his
case was also considered in D.P.C. conducted
on
04.01.2017
by
U.P.
Public
Service
Commission and his service was regularized
against the vacancy of the recruitment year
2007-08. While regularizing his service, no
reason has been assigned as to why his service
has not been regularized from the date, when
service of his juniors were regularized, and
ultimately, he was deprived from the pensionary
benefits and other retiral benefits, which is
absolutely bad in law and in teeth of Rules,
1961 as well as law laid down by the Apex Court
and this Court. It is also undisputed that
promotion of petitioner was not considered only
due to unavailability of A.C.R., for which
petitioner was not responsible. (Para 10, 13, 19)

In light of Rule 3(8) of Rules, 1961, qualifying
service is derived from Article 368 of the Civil
Service Regulations coupled with continuous
temporary or officiating service under the Govt.
of UP and ultimately, confirmation on the same
post or any other post without interruption.
Irrespective
of
the
date
of
promotion/regularization, for the purpose of
pension, his all service period has to be
considered, if it is in accordance with Rule 3(8)
of Rules, 1961 and there cannot be any other
interpretation for the same. (Para 19)

While granting him promotion or regularizing his
service, petitioner must have been given at least
same date of promotion as well as regularization
from
which
juniors
to
him
were
promoted/regularized. In the present case, it is
very surprising that without any fault on the
part of petitioner, he was made to suffer and
subjected to litigation on three occasions for
payment of his pensionary benefits as well as
other post retiral benefits. (Para 13)

Therefore, apart from many other grounds, this
alone
ground
is
sufficient
to
gr

## Text

10 All. Lal Chand Vs. State of U.P. & Ors.
421
Schools and the selection process cannot be
held to be illegal on the score that prior
approval had not been obtained.

11. The Court also finds substance in
the contention of the counsel for the
petitioners that the procedure prescribed by
the Government Order dated 25.11.2021
which had admittedly been issued after the
commencement of the selection process
was not liable to be followed in view of the
law laid down by the Apex Court in 1990
(3) SCC 157 and 2019 0 Supreme (SC)
1302 referred to hereinbefore.

12. The Court further finds that the
order has been passed behind the back of
the petitioners and appears to be ante dated
inasmuch as by an order of even date i.e.
23.3.2022 bearing official index No. 13370
the petitioners were required to furnish
certain information and the petitioners also
submitted their reply on 2.4.2022 but the
impugned order dated 23.3.2022 was
passed without considering the reply called
for.

13. It is not borne out from the
recitals of the impugned order that any
other infirmity was found in the selection
process adopted by the petitioners for
filling up the vacancy in question.

14. Consequently, in view of the
above, the order passed by the District
Inspector of Schools dated 23.3.2022
cannot be sustained and is accordingly
quashed. The matter is remitted back with a
direction to the District Inspector of
Schools, Prayagraj to pass a reasoned and
speaking order strictly in accordance with
the provisions contained in Regulation 101
Chapter III, Intermediate Education Act,
1921 and the observations made herein
above, expeditiously preferably within a
period of 45 days from the date of service
of this order.

15. The writ petition stands allowed,
accordingly.
----------
(2022) 10 ILRA 421
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 4083 of 2021

Lal Chand ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arun K. Singh Deshwal

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension and other retiral
benefits - The Uttar Pradesh Retirement
Benefit Rules, 1961- Rule 3(8); The Uttar
Pradesh Qualifying Service For Pension
And
Validation
Ordinance,
2020;
Constitution
of
India:
Article
14
-
Complete
service
rendered
by
the
petitioner i.e. period of service shall be
considered
for
grant
of
pensionary
benefits. Service rendered against the
temporary establishment converted into
permanent post shall be considered for
qualifying service to grant pension as well
as
retiral
benefits.
Ad
hoc
service
rendered
by
the
petitioner
shall
be
considered for reckoning his seniority and
other consequential benefits. (Para 15, 16,
17)

B. Words and Phrases - (a)'Qualifying
Service' - Rule 3(8) of Rules, 1961 is very
much clear, which provides that "qualifying
service" means service which qualifies for
pension in accordance with the provisions of
422 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 368 of the Civil Service Regulations and
includes continuous temporary or officiating
service under the Government of Uttar Pradesh
followed without interruption by confirmation in
the same or any other post.

(b) 'Service' - Service does not qualify unless
the officer holds a substantive office on a
permanent establishment. An establishment, the
duties of which are not continuous but are
limited to certain fixed periods in each year, is
not a temporary establishment. Service in such
an establishment, including the period during
which the establishment is not employed
qualifies but the concession of counting as
service
the
period
during
while
the
establishment is not employed does not apply to
an officer who was not on actual duty when the
establishment was discharged, after completion
of its work, or to an officer who was not on
actual duty on the first day on which the
establishment was again re-employed. (Para 12,
13)

In the present case, petitioner had continuously
worked after his appointment on the post of
Cooperative
Supervisor
(District
Ballia
on
21.07.1978) and ultimately, he was temporarily
promoted on the post of Assistant Development
Officer
(Cooperative)
vide
order
dated
17.08.1999. Not only this, after retirement, his
case was also considered in D.P.C. conducted
on
04.01.2017
by
U.P.
Public
Service
Commission and his service was regularized
against the vacancy of the recruitment year
2007-08. While regularizing his service, no
reason has been assigned as to why his service
has not been regularized from the date, when
service of his juniors were regularized, and
ultimately, he was deprived from the pensionary
benefits and other retiral benefits, which is
absolutely bad in law and in teeth of Rules,
1961 as well as law laid down by the Apex Court
and this Court. It is also undisputed that
promotion of petitioner was not considered only
due to unavailability of A.C.R., for which
petitioner was not responsible. (Para 10, 13, 19)

In light of Rule 3(8) of Rules, 1961, qualifying
service is derived from Article 368 of the Civil
Service Regulations coupled with continuous
temporary or officiating service under the Govt.
of UP and ultimately, confirmation on the same
post or any other post without interruption.
Irrespective
of
the
date
of
promotion/regularization, for the purpose of
pension, his all service period has to be
considered, if it is in accordance with Rule 3(8)
of Rules, 1961 and there cannot be any other
interpretation for the same. (Para 19)

While granting him promotion or regularizing his
service, petitioner must have been given at least
same date of promotion as well as regularization
from
which
juniors
to
him
were
promoted/regularized. In the present case, it is
very surprising that without any fault on the
part of petitioner, he was made to suffer and
subjected to litigation on three occasions for
payment of his pensionary benefits as well as
other post retiral benefits. (Para 13)

Therefore, apart from many other grounds, this
alone
ground
is
sufficient
to
grant
full
pensionary benefits to the petitioner considering
his
continuous
service
started
from
his
appointment on the post of Cooperative
Supervisor to his superannuation on the post of
Assistant Development Officer (Cooperative). It
is required on the part of respondent-authorities
to grant notional promotion as well as
regularization from the date his juniors were
awarded promotion and regularization. (Para
19)

Writ petition allowed. (E-4)

Precedent followed:

1. Bhuneshwar Rai Vs St. of U.P. & ors., 2014
(9) ADJ 4 (DB) (Para 6)

2. St. of U.P. Vs Riyaz Ali, 2015 (8) ADJ 148
(DB) (LB) (Para 6)

3. Love Prasad Dwivedi & ors. Vs State of U.P. &
ors., 2015 (5) ADJ 170 (Para 6)

4. Man Singh Vs State of U.P. & ors., 2018 (7)
ADJ 679 (Para 6)

5. Writ-A No. 50207 of 2014, Order dated
04.11.2020 (Para 10)

Present
petition
assails
order
dated
07.01.2021, passed by Joint Commissioner
10 All. Lal Chand Vs. State of U.P. & Ors.
423
and
Joint
Registrar,
Co-operative
Azamgarh Region, Azamgarh.

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for petitioner
and learned standing counsel for Staterespondents.

2. Present petition has been filed
seeking following reliefs:-

"v) Issue appropriate writ, order or
direction in the nature of certiorari quashing
the order dated 07.01.2021 passed by
respondent No. 4.
vi) Issue appropriate writ, order or direction
in the nature of mandamus directing the
respondents to treat the service of petitioner
from the date of his promotion (17.08.1999)
on the post of Assistant Development Office
(Co-operative) as qualifying service for
pension and release the pension and other
retiral benefits of the petitioner."

3. Pleadings are exchanged between the
parties. With the consent of counsels for
parties, writ petition is being decided at the
admission stage.

4. Learned counsel for petitioner
submitted that petitioner was appointed on
the post of Cooperative Supervisor in District
Ballia on 21.07.1978 under Schedule Caste
Category. In the seniority list of Cooperative
Supervisors, petitioner was at Serial No. 699
while some juniors to petitioner, who were at
Serial Nos. 702, 704, 709 & 710 in the same
seniority list, were promoted from the post of
Cooperative Supervisor to the post of
Assistant
Development
Officer
(Cooperative). Petitioner was not promoted in
lack of Annual Confidential Report (in short,
''A.C.R.') compelling him to file Writ Petition
No. 42401 of 1998 before this Court which
was disposed of vide order dated 08.01.1999
directing respondent-authorities to consider
the grievance of petitioner. Thereafter,
petitioner has filed representation, which was
considered by respondent-authorities and
petitioner was temporarily promoted on the
post of Assistant Development Officer
(Cooperative) vide order dated 17.08.1999
subject to confirmation of promotion by the
Departmental Promotion Committee. It is
next submitted that case of petitioner never
placed before the Departmental Promotion
Committee
(hereinafter
referred
to
as
''D.P.C.') and petitioner has retired from
service on 31.07.2014. On the date of his
retirement, order dated 31.07.2014 was
passed mentioning therein that service
rendered by the petitioner on ad hoc basis
cannot be considered for grant of pensionary
and other retiral benefits. In the very same
order, it is accepted that Officers, who are
junior to petitioner have been given the said
benefits. Petitioner has challenged the order
dated 31.07.2014 by filing Writ-A No. 50207
of 2014, which was disposed of by this Court
vide order dated 04.11.2020 with direction to
reconsider the case of petitioner in light of
fact that juniors to the petitioner have been
provided all benefits, which are claimed by
the petitioner. During the pendency of Writ-A
No. 50207 of 2014, after retirement of
petitioner,
D.P.C.
was
conducted
on
04.01.2017
by
U.P.
Public
Service
Commission and promotion of petitioner was
confirmed
and
his
service
was
also
regularized against the vacancy of the
recruitment year 2007-08. A direction was
also sought vide letter dated 27.02.2019 from
respondent No. 2-Registrar Cooperative
Societies about the payment of post retiral
benefits to the petitioner on the basis of
regularization. .

5. In compliance of order of this
Court dated 04.11.2020, petitioner moved
424 INDIAN LAW REPORTS ALLAHABAD SERIES
representation dated 11.11.2020 along with
certified copy of order for release of
pensionary and other retiral benefits
considering his promotion from the date his
juniors were promoted. Complying order
dated 04.11.2020 passed in Writ-A No.
50207 of 2014, impugned order dated
07.01.2021 has been passed rejecting the
claim of petitioner.

6. Learned counsel for petitioner
assailed the impugned order basically on
two grounds. He firstly submitted that for
the purpose of retiral benefits, service of
petitioner is governed by the provisions of
The Uttar Pradesh Retirement Benefits
Rules, 1961 (hereinafter referred to as
''Rules, 1961'), therefore, qualifying service
includes
continuous
temporary
or
officiating service under the Government of
Uttar Pradesh followed without interruption
by confirmation on the same or any other
post.
Undisputedly,
petitioner
was
continuous in service and ultimately, he
was temporarily promoted on the post of
Assistant
Development
Officer
(Cooperative) vide order dated 17.08.1999,
therefore, for the pensionary benefits,
service rendered by the petitioner in
temporary or officiating capacity must have
been
considered
while
calculating
qualifying service. The second ground so
taken by learned counsel for the petitioner
is that, it is admitted fact that juniors to
petitioner who have been promoted in the
year 1994 have also been granted all
pensionary
and
post
retiral
benefits
calculating the qualifying service in light of
Rule 3(8) of Rules, 1961, therefore, there
cannot be a discrimination in the matter of
petitioner. In support of his contention, he
has placed reliance upon the judgments of
this Court passed in Bhuneshwar Rai v.
State of U.P. and others, 2014(9) ADJ
4(DB), State of U.P. vs. Riyaz Ali; 2015(8)
ADJ 148 (DB)(LB), Love Prasad Dwivedi
and others vs. State of U.P. and others;
2015(5) ADJ 170 and Man Singh vs. State
of U.P. and others; 2018(7) ADJ 679.

7. Per contra, learned standing counsel
opposed the submissions of learned counsel
for petitioner, but could not dispute this fact
that juniors to petitioner have been given
promotion and also all pensionary and retiral
benefits given to them, which are claimed by
the petitioner. He only submitted that earlier
service of petitioner was governed by The
Uttar Pradesh Qualifying Service For Pension
And Validation Ordinance, 2020 (hereinafter
referred to as ''Ordinance, 2020') when he
was working on the post of Cooperative
Supervisor whereas after promotion on the
post of Assistant Development Officer
(Cooperative), his service was governed by
Rules, 1961, therefore, he is not entitled for
the pensionary and other retiral benefits as
claimed by him.

8. Being confronted by the Court,
learned standing counsel could not dispute
that service of juniors to petitioner, who were
granted
promotion
earlier,
were
also
governed by the provisions of Ordinance,
2020 as well as Rules, 1961, but they have
been given all the benefits. He also admitted
that while promotion was granted to the
juniors to petitioner, A.C.R. of petitioner was
incomplete, for which petitioner is not
responsible.

9. I have considered rival submissions
advanced by learned counsels for parties and
perused the records as well as judgments
relied upon.

10. Facts of the case are undisputed. In
seniority list, petitioner was higher in rank to
the other employees, who have been
promoted prior to petitioner. It is also
10 All. Lal Chand Vs. State of U.P. & Ors.
425
undisputed that promotion of petitioner was
not considered only due to unavailability of
A.C.R., for which petitioner was not
responsible. In fact, while remanding the
matter,
this
Court
vide
order
dated
04.11.2020 passed in Writ-A No. 50207 of
2014 has considered this fact. Relevant
paragraph of judgment and order dated
04.11.2020 is quoted below:-

"10. From perusal of the record, it is
clear that though the petitioner was given
promotion on the post of Co-operative
Inspector Category-II/Assistant Development
Officer on 17.08.1999. on ad-hoc basis but
the benefits in this regard were not granted to
the petitioner. At the relevant time as has been
provided to the persons junior to the
petitioner, Department Promotion Committee
was convened on 04.01.2017 and the claim
for promotion of the petitioner has been duly
recommended. Since the petitioner has
already been superannuated, directions were
sought for from respondent No.3 to the
respondent No.4 vide letter dated 27.02.2019.
It is surprising that in spite of the fact that
considerable time has already been lapsed but
till date no decision whatsoever has been
taken by the respondent No.4 in the matter. "

11. Apart that, Rules 3(8) of Rules,
1961 is very much clear, which provides that
qualifying
service
includes
continuous
temporary or officiating service under the
Government of Uttar Pradesh followed
without interruption by confirmation in the
same or any other post. Rule 3(8) of Rules,
1961 is quoted below:-

"3(8).
"Qualifying
service"
means
service which qualifies for pension in
accordance with the provisions of Article 368
of the Civil Service Regulations:

Provided that continuous temporary or
officiating service under the Government of
Uttar Pradesh followed without interruption
by confirmation on the same or any other
post except-

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

(ii) periods of service in a workcharged establishment, and

(iii) periods of service in a post, paid
from contingencies, shall also count as
qualifying service."

12. Regulation 368 and 369 of the
Civil Services Regulations are also quoted
below:-

"368. Service does not qualify unless
the officer holds a substantive office on a
permanent establishment.

369. An establishment, the duties of
which are not continuous but are limited to
certain fixed periods in each year, is not a
temporary establishment. Service in such
an establishment, including the period
during which the establishment is not
employed qualifies but the concession of
counting as service the period during while
the establishment is not employed does not
apply to an officer who was not on actual
duty
when
the
establishment
was
discharged, after completion of its work, or
to an officer who was not on actual duty on
the first day on which the establishment
was again re-employed."

13. This fact is also not disputed that
petitioner had continuously worked after
his appointment on the post of Cooperative
Supervisor
and
ultimately,
he
was
temporarily promoted on the post of
Assistant
Development
Officer
(Cooperative) vide order dated 17.08.1999.
Not only this, after retirement, his case was
also considered in D.P.C. conducted on
04.01.2017
by
U.P.
Public
Service
Commission
and
his
service
was
426 INDIAN LAW REPORTS ALLAHABAD SERIES
regularized against the vacancy of the
recruitment
year
2007-08.
While
regularizing his service, no reason has been
assigned as to why his service has not been
regularized from the date, service of his
juniors were regularized. For unavailability
of A.C.R., petitioner cannot be responsible
and it is upon respondent-authorities to
provide A.C.R. and consider the same in
the D.P.C. In case of unavailability of
A.C.R., petitioner cannot be made to suffer.
While
granting
him
promotion
or
regularizing his service, petitioner must
have been given at least same date of
promotion as well as regularization from
which
juniors
to
him
were
promoted/regularized. In the present case, it
is very surprising that without any fault on
the part of petitioner, he was made to suffer
and subjected to litigation on three
occasions for payment of his pensionary
benefits as well as other post retiral
benefits.

14. Contention of learned standing
counsel that service of petitioner prior to
promotion governed by Ordinance, 2020 is
also having no force for the reasons that
service condition of juniors to petitioner
were also governed by Ordinance, 2020
before their promotion on the post of
Assistant
Development
Officer
(Cooperative). Later on they have also been
put to retirement under the provisions of
Rules, 1961 giving full pensionary and
retiral benefits. Therefore, the ground so
taken by learned standing counsel is very
vague and in violation of Article 14 of
Constitution of India.

15. Similar issue was also before this
Court in the matter of Bhuneswar Rai
(Supra)
in
which
this
Court
after
considering the judgment of Apex Court
has held that complete service rendered by
the petitioner i.e. period of service shall be
considered for grant of pensionary benefits.
Relevant paragraph is quoted below:-

"In support of his aforesaid contention,
learned counsel for the appellant has relied
upon the judgment rendered by the Apex
Court in the case of Punjab State Electricity
Board and another v. Narata Singh, 2010Laws (SC)-2-40, which has been relied
upon by the learned Single Judge of this
Court in the case of Mohd. Mustafa v. State
of U.P., (2010) (1) ADJ (All)(LB). Holding
that where the petitioner has put in 23 years
of service including 113 months and 11
days i.e. 9 years 5 months & 11 days of
regular service then denial of pension for
not having completed 10 years of regular
service, was not proper. In that case, the
Court directed the respondents to grant
pensionary
benefit
to
the
petitioner
considering him to have completed 10
years of regular service and pay him
regularly every month from the date of
retirement. The State of U.P. preferred an
appeal against the aforesaid judgment in re:
Mohd. Mustafa v. State of U.P. (Special
Appeal Defective No. 254 of 2013), State
of U.P. and others v. Prem Chandra and
others, wherein the Court relying upon the
judgment of the Apex Court in Punjab
Electricity Board (supra) vide its judgment
dated 13.05.2013 held that the provisions
of regulation 370 of the U.P. Civil Service
Regulation have to be read down in line
with the judgment of the Apex Court.
Aggrieved, the State of U.P. preferred SLP
(Civil) No. CC 22271 of 2013, State of U.P.
and others v. Prem Chandra and others,
before the Apex Court, which was
dismissed vide judgment and order dated
07.01.2014."

16. Similar issue came up before this
Court in the matter of Love Prasad
10 All. Lal Chand Vs. State of U.P. & Ors.
427
Dwivedi (Supra), in which this Court
relying upon the judgment of Bhuneshwar
Rai (Supra) as well as considering the
provisions of Rule, 3(8) of Rules, 1961 as
well as Regulations 368 & 369, has held
that service rendered against the temporary
establishment converted into permanent
post shall be considered for qualifying
service to grant pension as well as retiral
benefits. Relevant paragraph Nos. 13 & 14
of the said judgment is quoted below:-

"13. Proviso to Rule 3(8) itself
prescribes
that
continuous
temporary
service without interruption followed by
confirmation shall count as qualifying
service. Thus, it is wholly immaterial that
the service of the petitioner was regularised
on 1.2.2001, as he was continuously
working
since
the
date
of
initial
appointment. Though earlier his working
was against a temporary establishment, as
there was no sanctioned post but after
temporary post was sanctioned and later on
converted into permanent post, the service
so rendered, fully qualifies for being
counted for purpose of payment of pension
and retiral benefits.

14. For the aforesaid reasons, the
Court finds that the petitioners had
rendered qualifying pensionary service
with effect from the date of his promotion
in the year 1988 and which shall be treated
as service qualifying for pension."

17. Again, similar issue was came up
before Division Bench of this Court in the
matter of State of U.P. (Supra) and
Division Bench after relying upon the
judgment of Apex Court, has held that ad
hoc service rendered by the petitioner shall
be considered for reckoning his seniority
and other consequential benefits. Relevant
paragraph Nos. 5, 8, 9 & 10 are quoted
below:-

"5. The law in respect of counting
such services for the purposes of seniority
has been summarized by Hon'ble Apex
Court in the case of Direct Recruit Class II
Engineering Officers' Association v. State
of Maharashtra and others, (199) 2 SCC
715. Hon'ble Apex Court in this case has
summed up that once an incumbent is
appointed to a post according to rule, his
seniority is to be counter from the date of
his appointment and not from the date of
his confirmation. The Apex Court further
stated in the said judgment that corollary of
the above rule is that where the initial
appointment is only adhoc and not
according to rules and made as a stop-gap
arrangement, the officiation in such post
cannot
be
taken
into
account
for
considering the seniority. Hon'ble Apex
Court in the said judgment has further
observed as under:

''B. If the initial appointment is not
made by following the procedure laid down
by the rules but the appointee continues in
the
post
uninterruptedly
till
the
regularisation of his service in accordance
with the rules, the period of officiating
service will be counted.'

8. The entire controversy, however,
appears to have been set at rest by Hon'ble
Apex Court in the case of Secretary, Minor
Irrigation Department RES v. Narendra
Kumar Tripathi, (2015)2 UPLBEC 1161,
wherein the benefit of the principle
propounded by Hon'ble Apex Court in para
47 - B in the case of Direct Recruit (supra)
has been extended to Narendra Kumar
Tripathi who like the respondent No. 1 was
also initially appointed on ad-hoc basis and
subsequently under the regularization rules,
his services were also regularized.

9. The tentative senior list of the
Assistant Junior Engineers working in the
Rural Engineering Department shows the
name of respondent No. 1 at serial No. 88
428 INDIAN LAW REPORTS ALLAHABAD SERIES
and his date of substantive appointment has
been shown to be 23rd August, 1986. The
name of Sri Narendra Kumar Tripathi in the
said seniority list is shown at serial No. 172
and his date of substantive appointment has
been shown to be 16.12.1989. The date of
substantive appointment of respondent No.
1 as well as Sri Narendra Kumar Tripathi as
mentioned in the seniority list referred to
herein above, are the dates on which their
services
were
regularized
under
the
regularization rules.

10. The controversy raised before
Hon'ble Supreme Court in the case of
Secretary, Minor Irrigation Department
RES (Supra) was akin to the controversy
which is engaging the attention of this
Court in this case. In the case of Narendra
Kumar Tripathi Hon'ble Supreme Court has
allowed all the benefits of ad-hoc services
rendered by Sri Tripathi for the purposes of
reckoning
his
seniority
and
other
consequential benefits."

18. This Court in the matter of Man
Singh
(Supra)
has
again
held
that
petitioner is entitled for notional promotion
as well as all notional benefits. Relevant
paragraph No. 17 is quoted below:-

"17. Therefore, after consideration of
the entire facts and legal issues involved in
this case, the respondent No. 3 is directed
to
grant
notional
promotion
to
the
petitioner with effect from the date when
his immediate junior, Sri Mahesh Chandra
Agnihotri, was regularized on the post of
Junior Clerk and subsequently to the higher
posts of Clerk, Head Clerk, etc. The
petitioner has also stated that his junior
employees, Sri Triveni Prasad Dubey, Sri
Subhash Chandra Pandey and Paras Nath
Gupta were promoted to the post of Office
Superintendent on 31.05.2014, when the
petitioner
retired
from
service
on
31.07.2016, while working on the post of
Head Clerk only. The notional benefits of
the post of Office Superintendent shall also
be calculated and paid to the petitioner. All
the notional benefits shall be calculated and
paid to the petitioner within a period 2
months from the date of presentation of the
certified copy of this order before the
respondent No. 3."

19. So far as present case is concerned, it
is on much better footing than the cases so
relied upon by counsel for petitioner. There
is no dispute upon the appointment of
petitioner on the post of Cooperative
Supervisor in District Ballia on 21.07.1978
coupled with this fact that he was senior to
others who have been granted promotion
on the post of Assistant Development
Officer (Cooperative) and petitioner has not
been promoted only due to unavailability of
A.C.R., for which he is absolutely not
responsible. Further, vide order dated
17.08.1999, petitioner has been granted ad
hoc promotion and his service was also
regularized vide meeting of D.P.C. dated
04.01.2017 against the vacancy of the
recruitment year 2007-08 without assigning
any reason as to why he has not given
promotion/regularization from the date his
juniors were promoted and ultimately, he
was deprived from the pensionary benefits
and other retiral benefits, which is
absolutely bad in law and in teeth of Rules,
1961 as well as law laid down by the Apex
Court and this Court. In fact, in light of
Rule, 3 (8) of Rules, 1961, qualifying
service is derived from Article 368 of the
Civil Service Regulations coupled with
continuous temporary or officiating service
under the Government of Uttar Pradesh and
ultimately, confirmation on the same post
or any other post without interruption.
Irrespective
of
the
date
of
promotion/regularization, for the purpose
10 All. Raj Kumar & Anr. Vs. Union of India & Ors.
429
of pension, his all service period has to be
considered, if it is in accordance with Rule
3(8) of Rules, 1961 and there cannot be any
other interpretation for the same. Therefore,
apart from many other grounds, this alone
ground is sufficient to grant full pensionary
benefits to the petitioner considering his
continuous
service
started
from
his
appointment on the post of Cooperative
Supervisor to his superannuation on the
post of Assistant Development Officer
(Cooperative). There is also no dispute on
this point that once petitioner is not at fault,
he is fully entitled for all pensionary and
other retiral benefits from the date his
juniors were promoted. In present case,
petitioner has not been promoted due to
want of A.C.R., and his service was not
regularised, but later on he has been
promoted/regularized from a later date
from
which
his
juniors
were
promoted/regularized is bad and cannot be
accepted. It is required on the part of
respondent-authorities to grant notional
promotion as well as regularization from
the
date
his
juniors
were
awarded
promotion and regularization.

20. Therefore, under such facts of the
case as well as law laid down by this Court,
impugned order dated 07.01.2021 is bad
and hereby set aside.

21. Accordingly, writ petition is
allowed.

22. No order as to costs.

23. Respondent-authorities are
directed to grant full pensionary and other
retiral benefits to the petitioner considering
his full service i.e. from the date of
appointment to the date of superannuation
as qualifying service for grant of retiral
benefits. Further, petitioner shall also be
entitled for all other financial benefits,
which have been granted to his juniors
treating
him
notionally
promoted/regularized from the date his
juniors were promoted/regularized.
----------
(2022) 10 ILRA 429
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 31858 of 2017

Raj Kumar & Anr. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Tejasvi Misra, Sri R.K. Rai

Counsel for the Respondents:
A.S.G.I., Sri Rajnish Kumar Rai, S.C., Sri Shiv
Kumar Pal

Civil Law- Juvenile Justice (Care and
Protection) Act, 2015- Section 24- From a
perusal of the facts as mentioned by the
Trial court it is evident that the incident in
question leading to the lodging of the FIR
was of 31.10.2003, when the petitioner
no. 1 Rajkumar was only nine years old.
The court had therefore acquitted the
accused of the charges levelled against
them-It is evident from perusal of Section
24 of the Juvenile Justice Act 2015 that in
all cases except cases related to heinous
offences, a child in conflict with the law
would not suffer any disqualification in
the future and for such purposes records
relating to the case had to be destroyed
after passage of a specified period and in
the manner as prescribed under the Rules
-Even if a Juvenile is convicted under the
provisions of 2015 Act such conviction is
not liable to be viewed as disqualification
which may otherwise and ordinarily stand
attached upon a person being convicted-