# Love Prasad Dwivedi & Ors v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-21
- **Case number:** C.M.W.P. No. 33208 of 1990
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/love-prasad-dwivedi-ors-v-state-of-u-p-ors-43295
- **Pages:** 6

## Headnote

Uttar Pradesh Retirement Benefits Rule
1961-Rule 3(8)-qualifying period of pensionpetitioner promoted on post of ADO on
02.12.88 for 90 days-extended from time to
time
continued
till
regularization
01.02.2000-retired between 31.10.2012 to
31.01.2015-regular
promotion
on
16.11.2012-whether the period of regular
promotion on officiating promotion shall be
counted for qualifying service-held-from the
date
of
officiating
promotion-reasons
discussed.
Held: Para-13-14

## Text

730
 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 14(1) of the Act is mandatory. It is
an essential requirement for the Bank that the
application filed under Section 14 must be
accompanied by an affidavit duly affirmed
by the authorized officer of the secured
creditor
indicating
the
ingredients
contemplated under sub clause (i) to sub
clause (ix) to the first proviso. Non filing of
the affidavit in our opinion would be fatal.
11. Sri Tarun Verma, learned counsel
for the bank has conceded that in the instant
case no affidavit was filed. Consequently, the
application could not have been allowed by
the District Magistrate.
12. Consequently, for the reasons
stated aforesaid, the impugned order of
the Additional District Magistrate dated
4.3.2015 and the consequential order
dated 21.4.2015 passed by the Additional
City Magistrate being illegal, cannot be
sustained and are hereby quashed. The
writ petition is allowed.
13. It would be open to the respondent
bank to proceed afresh by filing a fresh
application under Section 14 in accordance
with the provisions of the Act.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2015
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
C.M.W.P. No. 33208 of 1990
Love Prasad Dwivedi & Ors.
..Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Rajiv Sharma, Sri Amit Saxena, Sri J.L.
Yadav
Counsel for the Respondents:
S.C., J.P.Nigam
Uttar Pradesh Retirement Benefits Rule
1961-Rule 3(8)-qualifying period of pensionpetitioner promoted on post of ADO on
02.12.88 for 90 days-extended from time to
time
continued
till
regularization
01.02.2000-retired between 31.10.2012 to
31.01.2015-regular
promotion
on
16.11.2012-whether the period of regular
promotion on officiating promotion shall be
counted for qualifying service-held-from the
date
of
officiating
promotion-reasons
discussed.
Held: Para-13-14
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.
Case Law discussed:
2012 Law Suit (All) 2208; Spl. Appeal No. 445 of
2011; 2006 (8) ADJ 371, 2011 (4) AWC 3564.
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)
1. Heard Shri Amit Saxena, learned
counsel for the petitioners and Shri
Prashant Rai, learned Standing Counsel
for
the
State
respondents.
2 All] Love Prasad Dwivedi & Ors. Vs. State of U.P. & Ors.
731
2. By means of present writ petition,
the petitioners have prayed for quashing
the impugned order dated 25.11.1990
(Annexure No.4 to the writ petition)
passed by the respondent no.3. By the
amendment
application
allowed
on
29.7.2013, they have further prayed for
direction in the nature of mandamus
commanding the respondents to promote
them
on
the
post
of
Assistant
Development Officer (Co-operative) on
regular basis w.e.f. 20.12.2001 and to
grant all consequential benefits to them,
which will flow from the aforesaid regular
promotion.
3. Shri Amit Saxena, learned
counsel for the petitioners states that Shri
Hariom Srivastava-petitioner no.6 filed an
appeal, which was allowed and his
services had been regularized. The
petitioner no.6 is also receiving the
pension and as such, he does not have any
grievance. Shri Amit Saxena states that at
present, he has instructions only with
regard to petitioner nos. 1, 2 and 4. He
does not have any instructions with regard
to petitioner nos. 3 and 5.
4. Brief facts giving rise to the
present case are that the petitioner nos. 1
to 4 were appointed as Cooperative
Supervisors on 22.7.1978, 18.7.1978,
3.3.1960 and 3.17.1978 respectively and
the petitioner no.5 was appointed as Gram
Vikas Adhikari on 29.11.1956. The
petitioner nos. 1 to 5 were eventually
promoted
as
Assistant
Development
Officer (Cooperative) for 90 days vide an
order dated 2.12.1988 (Annexure No.1 to
the writ petition). Thereafter, they were
given extension from time to time and as
such the petitioners are working as
Assistant
Development
Officer
(Cooperative) since December, 1988.
5.

Learned
counsel
for
the
petitioners submits that the post of
Assistant
Development
Officer
(Cooperative)
falls
under
the
State
Government and they have been paid
salary from the State exchequer. The
petitioners are continuously discharging
their duties with utmost satisfaction to
their superior officers since the year 1988.
Finally the petitioner no.1 retired on
31.7.2013; petitioner no.2 retired on
31.1.2015
and
petitioner
no.4
superannuated on 31.10.2012. By the
order dated 16.11.2012 the respondents
promoted the petitioner nos. 1 and 2 on
regular basis from the date of their taking
over charge.
6.

Learned
counsel
for
the
petitioners that the petitioners were
discharging their duties as Assistant
Development Officer (Panchayat) since
the year 1988, and they have already
completed the minimum required period
for pension. Under U.P. Regularization of
Ad-hoc Promotion (On Post Outside the
Purview of Public Service Commission)
Rules, 1988, as amended on 20.12.2011,
the petitioners became entitled for regular
promotion by virtue of the fact that they
were fully qualified for promotional post
of
Assistant
Development
Officer
(Panchayat) and had already completed
more than three years of service on the
said post, and regular vacancies were in
existence. Rule 4 of the Regularization
Rules of 1988 provides that such ad-hoc
appointees shall be promoted before any
regular appointment is made against such
vacancy under the Rules and therefore,
the petitioners were entitled for regular
promotion since 20.12.2001 itself. He
further submits that once the petitioners
had been promoted on ad-hoc basis and
no person had joined on such posts and
732
 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioners could not have been
reverted back, they became entitled for
regular promotion on the basis of
Regularization
Rules,
1988.
The
petitioners were promoted on ad-hoc basis
and were in fact treated to be regular
promotee throughout for the period of 25
years by deducting the GPF and granting
them all service benefits including pay
scales and increments of regular Assistant
Development Officers.
7.

Learned
counsel
for
the
petitioners has placed his reliance on a
Division Bench judgment of this Court in
Amrendra Narain Srivastava vs. State of
UP and others 2012 LawSuit (All) 2208.
The relevant paragraph nos. 6, 7, 10, 11,
12 and 13 are reproduced hereinafter:-
"6. It is submitted by Shri Ashok
Khare, that under the Uttar Pradesh
Retirement Benefits Rules, 1961, the
qualifying service, defined in Rule 3 (8),
means
service,
which
qualifies
for
pension in accordance with the provisions
of Article 368 of the Civil Services
Regulations. Rule 3 (8) is quoted as
below:-
"Rule 3 (8)- "Qualifying service"
means service which qualifies for pension
in accordance with the provisions of
Article
368
of the Civil
Services
Regulations:
Provided that continuous temporary
or
officiating
service
under
the
Government of Uttar Pradesh followed
without interruption by confirmation in
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.
Note- If service rendered in a nonpensionable establishment, work-charged
establishment or in a post paid form
contingencies falls between two periods
of temporary service in a pensionable
establishment or between a period of
temporary service and permanent service
in a pensionble establishment, it will not
constitute an interruption of service."
7. Regulation 368 of the Civil
Services
Regulations,
provides
that
service does not qualify, unless the officer
holds a substantive office in a permanent
establishment. Regulations 368 and 369
provides as follows:-
"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."
10. The petitioner was appointed in
temporary capacity in Zila Parishad on
21.3.1983. The non-government medical
hospitals
of
Zila
Parishad
were
provincialised
on
8.11.1990.
The
petitioner's option for absorption in the
State Ayurvedic and Unani Medical
Services was accepted, and that he was
taken as a Medical Officer, Ayurvedic
2 All] Love Prasad Dwivedi & Ors. Vs. State of U.P. & Ors.
733
and Unani on adhoc basis. There is no
denial, that he held a substantive office in
a permanent establishment. His services
ultimately came to be regularized on
16.3.2005 without any break. At no point
of time the petitioner, after his absorption,
was not in substantive office, which was
not in permanent establishment. His
services, therefore, have to be counted
with effect from the date of his absorption
and the joining in the State Government.
11. The qualifying service, as
defined in sub-rule (8) of Rule 3, includes
the service, which qualifies for pension in
accordance with the provisions of Section
368 of Civil Services Regulation. The
petitioner does not fall in any of the
exceptions inasmuch as the period of his
temporary service was not in a nonpensionable establishment after he was
regularized in the State Government.
12. For the aforesaid reasons, we
find that the petitioner has rendered
qualifying pensionary service with effect
from the date of his joining in the State
Government on his option, and which
shall be treated as service qualifying for
pension
and
for
which
under
the
Government
Orders,
by
which
the
hospitals
were
provincialised,
the
contribution of his pension has been
deposited by the Zila Parishad.
13.

The
objection,
that
the
contribution of pension, has not been
deposited in the relevant account head, is
too technical to be accepted. The amount
has been credited to the account of the
State Government in the Treasury. It is for
the Treasury Officer to appropriate the
amount in the correct account head. An
error in depositing the amount in the
wrong account head cannot be treated to
have taken away the right of petitioner to
pension based upon his continuance in the
State Government beginning from 1991.
14. The writ petition is allowed. The
impugned order dated 20.9.2011 is
quashed. The petitioner shall be entitled
to pension with effect from 01.2.1991, the
date on which he joined in the State
Government. The State Government will
calculate his pension and issue the
pension
payment
order
within
two
months. The entire arrears of pension
shall be paid over to him within a period
of three months."
8. Learned counsel for the petitioner
has also relied upon the judgment in
Special
Appeal
No.445
of
2011
(Bhuneshwar Rai vs. State of UP & ors)
decided on 18.9.2014. Paragraph-5 of the
judgment is reproduced herein below:-
"5. 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 versus Narata Singh, 2010-Laws
(SC)-2-40, which has been relied upon by
the learned Single Judge of this Court in
the case of Mohd. Mustafa versus State of
U.P., (2010 (1) ADJ-329 (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 versus
State of U.P.(Special Appeal Defective
No. 254 of 2013), State of U.P. and others
734
 INDIAN LAW REPORTS ALLAHABAD SERIES
versus Prem Chandra and others wherein
the Court relying upon the judgment of
the Apex Court in Punjab Electricity
Board (supra) vide its judgment dated
13.5.2013 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 versus Prem Chandra
and others before the Apex Court, which
was dismissed vide judgment and order
dated 7.1.2014."
9.

Learned
counsel
for
the
petitioners submits that as per Rule 3(8)
of the Uttar Pradesh Retirement Benefit
Rules,
1961,
the
petitioners
had
completed 10 years of qualifying service
and are, thus, entitled to pensionary
benefits. He has placed reliance on the
judgment of this Court reported in 2006
(8)ADJ 371, 2011 (4) AWC 3564.
10. On the other hand, learned
Standing Counsel does not dispute the
legal position. He submits that since the
petitioners had not completed 10 years of
service from the date of regularisation,
and therefore, they were rightly not paid
pension and other retiral benefits.
11. Rule 3(8) of the Rules, defines
"qualifying service" as under:-
"Rule 3 (8)- "Qualifying service"
means service which qualifies for pension
in accordance with the provisions of
Article
368
of the Civil
Services
Regulations:
Provided that continuous temporary
or
officiating
service
under
the
Government of Uttar Pradesh followed
without interruption by confirmation in
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.
Note- If service rendered in a nonpensionable establishment, work-charged
establishment or in a post paid from
contingencies falls between two periods
of temporary service in a pensionable
establishment or between a period of
temporary service and permanent service
in a pensionble establishment, it will not
constitute an interruption of service."
12. Regulation 368 and 369 of the
Civil Services Regulations reads as under
:-
"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. Proviso to Rule 3(8) itself
prescribes that continuous temporary
2 All] Dr. Gorakhnath Vs. Judge, Small Causes Court, Gorakhpur & Ors.
735
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.
15. In the aforesaid facts and
circumstances the impugned order dated
25.11.1990 (Annexure No.4 to the writ
petition) and the order dated 16.11.2012
(Anneuxre RA No.2 to the rejoinder
affidavit), cannot be sustained to the
effect that the petitioners are not eligible
for pensionary benefits as they do not
have qualifying service of ten years and
are quashed.
16. The writ petition is allowed. The
respondents are directed to finalise the
petitioners' pension treating them to be
promoted on the post of Assistant
Development Officer (Co-operative) on
regular basis w.e.f. 20.12.2001 under the
Regularization
Rules
of
1988
and
quantify the retiral benefits payable to
them and to pay the same to them within
three months from the date of production
of certified copy of this order before the
respondents.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
C.M.W.P. No. 34386 of 2011
Dr. Gorakhnath
...Petitioner
Versus
Judge, Small Causes Court, Gorakhpur &
Ors.
...Respondents
Counsel for the Petitioner:
Sri K.M. Misra, Sri H.R. Mishra, Sri
Kamlesh Kumar Mishra, Sri Narayan Das
Counsel for the Respondents:
Sri A.K. Pandey, Sri Ashutosh Kumar
Small Causes Court Act 1887-Section 17whether
provisions
of
Section
17
requiring the tenant to deposit entire
decreetal
amounts
mandatory
or
directory ?-held-mandatory-no court can
ignore the said requirement.
Held: Para-12
The
Division
Bench
considered
the
judgment rendered in Kedarnath (supra)
and held that the provisions of Section 17 of
the Act is mandatory and non compliance
thereof would entail dismissal of the
application,
non-compliance
cannot
be
condoned or overlooked by the Court. There
is no provision in the statute that would
provide either for extension of time or to
condone the default in depositing the rent
within the stipulated period, the Court does
not have the power to do so.
Case Law discussed:
AIR 2002 SC 5825:2002 (1) ARC 186; 2005 (1)
ARC 253; 2002 (1) ARC 440; 2006(4) Supp.
ARC 571; 2010 (1) ARC 432; 2012 ACJ 1738
(Delivered by Hon'ble Suneet Kumar, J.)
1. Supplementary affidavit filed
today on behalf of the petitioner, is taken