# Mohd. Ismail & Ors v. State of U.P. & Anr. 410 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 9 ILRA 409
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-28
- **Case number:** Writ-A No. 13210 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ismail-ors-v-state-of-u-p-anr-410-indian-law-reports-allahabad-series-50805
- **Pages:** 6

## Headnote

A. Service Law - UP Collection Amin
Service Rules, 1974 - Rules 4 & 5 -
Collection
Amin
-
Pension
-
Initial
appointment was made as Seasonal Amin,
but
subsequently
regularized
against
available
vacancy
-
Pension,
being
granted under Old Pension Scheme -
Period
of
service
spent
prior
to
regularization was not counted - Validity
challenged - Held, once the petitioner has
availed the benefit of relevant provisions
of the Rules that contemplate regular
appointment/regularization against the
available substantive vacancy only, such
persons
cannot
be
treated
to
be
regularized from the date they entered
into service on temporary basis, therefore,
for want of vacancy - A person can have
berth in cadre upon the condition that
berth is available. (Para 6)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

9 All. Mohd. Ismail & Ors. Vs. State of U.P. & Anr.
409

34. So far as the issue as to whether
compassionate appointment can be offered
after elapse of 11 years from the date of death
of the government servant, is concerned, I
find that in normal circumstances when the
application
for
the
compassionate
appointment is filed with considerable delay
then the law in that regard is very clear that
the compassionate appointment is offered to
meet out instant financial crisis faced by the
family of deceased government servant,
therefore,
where
the
application
for
compassionate
appointment
has
been
submitted with considerable delay, the
compassionate
appointment
cannot
be
offered but case of the petitioner stands on
entirely different footing as petitioner applied
for compassionate appointment immediately
after the death of his father and even he was
issued appointment order but later on, it was
found that the said appointment of the
petitioner was dehors the rules, therefore, it
was incumbent on the District Basic
Education Officer to offer compassionate
appointment to the petitioner on ClassIII/Class-IV post.

35. The District Basic Education
Officer, Baghpat even has not complied with
the direction issued by this Court vide
judgement and order dated 25.07.2012 passed
in Civil Misc. Writ Petition No. 33828 of
2012, therefore, this plea is not available to
him
that
case
of
the
petitioner
for
compassionate
appointment
on
ClassIII/Class-IV post cannot be considered after
elapse of 11 years.

36. I am also of the considered view
that in-fact after passing of the judgement and
order dated 25.07.2012 passed in Civil Misc.
Writ Petition No. 33828 of 2012, there is no
requirement for the petitioner to file fresh
application for compassionate appointment as
petitioner after the death of his father has
already filed application for compassionate
appointment, therefore, the District Basic
Education Officer was under mandate of the
Court to consider claim of the petitioner
against existing Class-III/Class IV vacancy
but instead of complying the said order, the
Secretary, U.P. Basic Education Board,
Prayagraj
deliberately
kept
the matter
pending and, therefore, the order dated
20.02.2023 thereby rejecting the claim of the
petitioner for compassionate appointment on
the ground that 11 years have elapsed, is not
sustainable in the eyes of law and, thus is
liable to be quashed by this Court.

37. In view of the aforesaid reasons,
this Writ Petition is allowed and order dated
20.02.2023 passed by the Secretary, U.P.
Basic Education Board, Prayagraj is quashed.

38. Matter is remanded to the
Secretary, U.P. Basic Education Board,
Prayagraj to consider the case of the
petitioner for compassionate appointment
on Class-III/Class-IV post in accordance
with the observations made in this order
and the directions issued by this Court
vide
judgement
and
order
dated
25.07.2012 rendered in Civil Misc. Writ
Petition No. 33828 of 2012 within two
months from the date of service of
certified copy of this order.
----------
(2023) 9 ILRA 409
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 13210 of 2023

Mohd. Ismail & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents
410 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Syed Wajid Ali

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Collection Amin
Service Rules, 1974 - Rules 4 & 5 -
Collection
Amin
-
Pension
-
Initial
appointment was made as Seasonal Amin,
but
subsequently
regularized
against
available
vacancy
-
Pension,
being
granted under Old Pension Scheme -
Period
of
service
spent
prior
to
regularization was not counted - Validity
challenged - Held, once the petitioner has
availed the benefit of relevant provisions
of the Rules that contemplate regular
appointment/regularization against the
available substantive vacancy only, such
persons
cannot
be
treated
to
be
regularized from the date they entered
into service on temporary basis, therefore,
for want of vacancy - A person can have
berth in cadre upon the condition that
berth is available. (Para 6)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Uday Pratap Thakur & anr. Vs St. of Bihar;
AIR 2023 SC 2971

2. Prem Singh Vs St. of U.P.; (2019) 10 SCC 516

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Syed Wazid Ali, learned
counsel for the petitioner and Sri R.S.
Umrao, learned Standing Counsel for the
State respondents.

2. The petitioners who were initially
appointed as Seasonal Collection Amin in
the revenue department on temporary basis,
their services came to be regularized under
U.P. Collection Amin Service Rules, 1974
between the years 1992 to 1995 and they
all attained the age of superannuation
between 2013 to 2022. Upon attaining the
age of superannuation they have been
conferred upon the benefit of pension as
admissible under the old pension scheme
and petitioners are individually getting the
pension. Now they have approached this
Court for direction to the authority to count
period spent in service by petitioners prior
to their regularization, towards qualifying
period of pension.

3. Per contra, learned Standing Counsel
submits that U.P. Collection Amin Service
Rules,
1974
rules
provide
regular
appointment against substantive vacancies
and for this purpose there is a quota fixed for
those who are working on temporary basis in
the department as Seasonal Collection Amin.
He submits that rule do not contemplate
regularization being offered from the date
when the vacancies were not in existence. A
confirm/ regular appointment offered to the
Seasonal Collection Amin against available
substantive vacancies . He submits that
relevant provisions of rule have never been
challenged rather petitioners have availed the
benefit of the same. He has also placed the
reliance upon the judgment of the Supreme
Court in the case of Uday Pratap Thakur &
Another v. State of Bihar: AIR 2023 SC
2971 in which principle laid down in the
judgment of Prem Singh v. State of U.P.:
(2019) 10 SCC 516 has been further
explained and clarified whereby observations
are made to the effect that Prem Singh's
judgment (supra) which offers benefit to
those employees who have rendered their
services on dailywage basis/ temporary basis/
work charge basis only for the purposes of
giving them benefit of pension under the old
pension scheme. The reason being that they
were being offered appointment on regular
basis for the service rendered by them on ad
hoc basis / temporary basis/ work charge
basis.
9 All. Mohd. Ismail & Ors. Vs. State of U.P. & Anr.
411

4. Having heard learned counsel for the
respective parties and having perused the
records and having gone through the relevant
service rules, I find that rules do contemplate
confirmed appointment of the Seasonal
Collection Amins only on the basis of
availability of vacancy applying 35 per cent
quota under the rules. It is not disputed by the
petitioners that they were offered confirmed /
permanent appointment in the regular cadre
of the Collection Amin upon availability of
vacancy as per rules as they fell within 35 per
cent quota as has been fixed under the service
rules. They have never questioned regular
appointment from the date they were offered
the same upon availability of substantive
vacancies. Now, thereafter they continued in
service and they also availed benefit under
the old pension scheme taking, therefore,
period from the date of initial ad hoc/
temporary towards qualifying service period
for pension. So, now they have approached
this Court with this request that their period
already rendered as Seasonal Collection
Amin should be taken into consideration for
the purpose of computing qualifying period
for pension.

5. In a nutshell the argument is if the
period in question, is taken into account
towards qualifying period for pension ,
their pension will get increased.

6. In my considered view, this
argument of the petitioner is misplaced for
the simple reason that no Collection Amin
can avail the benefit of regular appointment
from the date of initial appointment as the
regular appointment is done under the rules
against available vacancies and rules have
never been challenged. Once the petitioner
has
availed
the
benefit
of
relevant
provisions of the Rules that contemplate
regular appointment/regularization against
the available substantive vacancy only,
such persons cannot be treated to be
regularized from the date they entered into
service on temporary basis, therefore, for
want of vacancy. A person can have berth
in cadre upon the condition that berth is
available.

7. I have also considered the
judgment of Supreme Court in the case of
Prem Singh (supra), in which it has been
categorically held that those persons who
have rendered their service on ad hoc /
work charge basis cannot be denied the
benefit of pension. This judgment discusses
the provisions as was then existing under
the Civil Service Regulations for denying
benefit of old pension scheme to those who
have earlier rendered service as work
charge employee though such employees
subsequently got placement under regular
cadre. The principle and ratio for awarding
pensionary benefits has been discussed in
the case of Uday Pratap Thakur (supra) in
which vide paragraph 6 it has been
categorically held that ratio of the judgment
is to be considered for giving benefit of old
pension scheme by taking into account
such period of ad hoc / workcharge service
which will make good the short fall
towards qualifying period for making
pension admissible. If the argument as is
advanced that earlier period rendered as
work charge temporary basis is to be
reckoned with for the purpose of qualifying
service in its entirety is accepted, the effect
would be that regular appointment stands
offered to such person/ employee from the
date of his initial temporary/ ad hoc/ work
charge appointment in service. This is
neither the object of the rules, nor spirit of
the judgment in Prem Singh's case.

8. For appreciating the above Rules 4
and 5 of U.P. Collection Amin Service
Rules, 1974 are reproduced hereunder:
412 INDIAN LAW REPORTS ALLAHABAD SERIES

"Strength of the service- (1) The
strength of the service shall be such as may
be determined by the Governor from time
to time.

(2) The permanent strength of the
service shall, until orders varying the same
have been passed undeer sub-rule (1), be
as given below:

Collection Amins (Ordinary grade)
5341.

Collection Amins (Selection grade)
593:

provided that-

(a) that Collector may leave unfilled
or the Governor may hold in abeyance any
vacant post without thereby entitling any
person to compensation; and

(b)
the
Governor
create
such
additional permanent or temporary posts
as may be considered necessary.

Part III- RECRUITMENT

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

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

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

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

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

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

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

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

Explanation- Satisfactory work shall
mean at least seventy per cent realisation
as per prescribed standard during the last
four
Fasals
including
good
conduct
throughout."

9. Upon bare reading of the aforesaid
rules, I find that the rules do talk of regular
appointment upon vacant posts. Posts are
created in the cadre as peer rule 4 and it
refers to only a duly sanctioned post. Rules
do not contemplate ad hoc or temporary
appointment on substantive vacancies duly
created under Rule 4. Thus it is clear that
substantive appointments are given/made
only against substantive vacancies either by
promotion or by selection. Fifteen per cent
posts are to be filled up by way of
promotion from Seasonal Collection Peons
and thirty five percent from amongst
Seasonal Collection Amins working on
temporary/casual/ ad hoc basis subjection
to conditions given under the proviso to
Section 5. So the very selection and
appointment is referably to the existing
substantive vacancy in the recruitment
year. The very selection and appointment
means, such appointment is done in real
time by initiation of proceeding but one
must meat the requirements as on 1st July
of the year of selection. Thus, there is no
concept of regularization back date. As a
matter of fact there is no regularization as
such. It is rather a selection against
available
vacancies
in
the
year
of
recruitment by adopting a procedure
prescribed for merit list to be prepared on
the basis of work performance and period
9 All. Mohd. Ismail & Ors. Vs. State of U.P. & Anr.
413
of working. Seniority list of Seasonal
Collection Amin may not be adopted as a
merit list to give substantive appointment
to Seasonal Collection Amins/Peons as
merit list would involve those persons only
who fulfil the criteria laid down/prescribed
for.
Thus
there
is
no
automatic
regularization.

10. In Prem Singh's case (supra) the
rules as were the existing since did not
include work charge period of service for
qualifying service for pension the same was
set aside. The ratio has been that one
should not be denied pension for period
falling short even though such an employee
has been in service, may be temporarily or
on work charge basis, for a longer period.
In the case of Uday Pratap Thakur (supra)
vide paragraph 6, it has been held thus:

"6. It is required to be noted that the
respective Appellants were working as
work charged under the work charged
establishment in the State. Their services
have been regularized under the Rules,
2013 and the follow up notification of the
Finance Department vide Circular No.
10710 dated 17.10.2013. Rule 5(v) of the
Circular reads as under:

5(v} Old pension Rules shall be
applied on these employees. The benefit
pension & gratuity shall be counted by
giving one year advantage against the five
years services as work-charged employee.
Even then if the minimum requirement of
10 years of service for pension is not met
under the old rules, then minimum service
shall be added to give advantage thereof.

6.1. Rule 5(v) of the Rules, 2013 as
such can be said to be beneficial to such
work charged employees, whose services
have been regularized subsequently. As per
Rule 5(v), even if the minimum requirement
of 10 years of service (qualifying service)
for pension is not met, in that case also, the
service rendered as a work charged to be
added for qualifying service for pension.
Therefore, the efforts have been made by
the State Government to see that after
rendering services for number of years as
work charged, and thereafter, their services
have been regularized, they may not be
denied the pension on the ground that they
have not completed the qualifying service
for pension. It also further provides that the
benefits like pension & gratuity shall be
counted by giving one year advantage
against the five years services as workcharged employee. Therefore, Rule 5(v) as
observed hereinabove, is beneficial also in
favour of such work charged employees,
whose services have been regularized
subsequently, and they may not be deprived
of the pension on the ground that they have
not completed the qualifying service for
pension. The denying of pension after
rendering service as work charged for
number of years on the ground that they
have not completed the qualifying service
can be said to be unfair and illegal and can
be said to be exploitation. Therefore, to
make
such
work
charged
employees
eligible for pension, Rule 5(v) provides that
if any work charged employee, whose
services have been regularized under the
Rules, 2013, is short of qualifying service,
to the extent of such shortage of qualifying
service, the services rendered as work
charged to be counted for the purpose of
qualifying service for pension. Under the
circumstances, the Larger Bench of the
High Court has rightly observed and held
that for the purpose of pension, only such
period from the work charged tenure would
be added for making the service of an
employee, who has been regularized to
qualify him for pension.

6.2 Insofar as the submission on
behalf of the Appellants that their entire
414 INDIAN LAW REPORTS ALLAHABAD SERIES
services rendered as work charged should
be considered and/or counted for the
purpose of pension / quantum of pension is
concerned, the same cannot be accepted. If
the same is accepted, in that case, it would
tantamount to regularizing their services
from the initial appointment as work
charged. As per the catena of decisions of
this Court, there is always a difference and
distinction between a regular employee
appointed on a substantive post and a work
charged employee working under work
charged establishment. The work charged
employees
are
not
appointed
on
a
substantive post. They are not appointed
after due process of selection and as per
the recruitment rules. Therefore, the
services rendered as work charged cannot
be counted for the purpose of pension /
quantum of pension. However, at the same
time, after rendering of service as work
charged for number of years and thereafter
when their services have been regularized,
they cannot be denied the pension on the
ground that they have not completed the
qualifying service for pension. That is why,
the service rendered as work charged is to
be counted and/or considered for the
purpose of qualifying service for pension,
which is provided Under Rule 5(v) of the
Rules, 2013.

6.3. Now, insofar as the reliance
placed upon the decision of this Court in
the case of Prem Singh (supra) by the
learned Counsel appearing on behalf of
the Appellants is concerned, the reliance
placed upon the said decision is absolutely
misplaced. In the said case, this Court was
considering the validity of Rule 3(8) of the
U.P. Retirement Benefit Rules, 1961,
under which the entire service rendered as
work charged was not to be counted for
qualifying service for pension. To that,
this Court has observed and held that after
rendering service as work charged for
number of years in the Government
establishment / department, denying them
the pension on the ground that they have
not completed the qualifying service for
pension would be unjust, arbitrary and
illegal. Therefore, this Court has observed
and held that their services rendered as
work charged shall be considered /
counted for qualifying service. This Court
has not observed and held that the entire
service rendered as work charged shall be
considered / counted for the quantum of
pension / pension. The decision of this
Court in the case of Prem Singh (supra),
therefore, would be restricted to the
counting of service rendered as work
charged
for
qualifying
service
for
pension."

 (emphasis added)

11. In view of above, I do not find
force in the argument advanced by
learned counsel for the petitioner. The
petition lacks merit and is accordingly
dismissed.
----------
(2023) 9 ILRA 414
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 18972 of 2022

Priyadarshini Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Durga Prasad Singh, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri M.N. Singh