# Munindra Chandra Gaur v. State of U.P. & Ors

- **Citation:** Service Single No. 14261 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-25
- **Case number:** Service Single No. 14261 of 2018
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munindra-chandra-gaur-v-state-of-u-p-ors-46305
- **Pages:** 7

## Headnote

A. Service law- Civil Service Regulations:
Regulation 36-Fundamental Rule 56 -Post
retiral
benefits-Retiral
benefits
of
the
petitioner have been paid without counting the
services rendered on ad hoc basis. The Court
held that the petitioner was appointed on
substantive post in permanent establishment
which is pensionable. Nature of his appointment
i.e. ad hoc appointment is not of much
relevance inasmuch as the period spent by him
as ad hoc, ultimately resulted in regularization
of the petitioner without any break in service.
(Para 5)

Writ petition allowed. (E-4)

Precedent followed:

## Text

1200 INDIAN LAW REPORTS ALLAHABAD SERIES
Ganguly.) Sympathy or sentiments alone, it
is well settled, cannot form the basis for
issuing a writ or or in the nature of
mandamus. (See State of M.P. vs. Sanjay
Kumar Pathak.)"

28. The Apex Court in the case of
Raghvendra Rao etc. v. State of Karnataka
and others, JT 2009 (20) SC 520 has
observed as under:-

"It is now a well-settled principle
of law that merely because an employee
had continued under cover of an order of
Court, he would not be entitled to any right
to be absorbed or made permanent in the
service................."

29. For the foregoing reasons, the writ
petition lacks merit. Hence dismissed with
no order as to costs.
----------
(2020)03-05ILR A1200
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2020

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 14261 of 2018

Munindra Chandra Gaur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ashok Kumar Mishra

Counsel for the Respondents:
C.S.C.

A. Service law- Civil Service Regulations:
Regulation 36-Fundamental Rule 56 -Post
retiral
benefits-Retiral
benefits
of
the
petitioner have been paid without counting the
services rendered on ad hoc basis. The Court
held that the petitioner was appointed on
substantive post in permanent establishment
which is pensionable. Nature of his appointment
i.e. ad hoc appointment is not of much
relevance inasmuch as the period spent by him
as ad hoc, ultimately resulted in regularization
of the petitioner without any break in service.
(Para 5)

Writ petition allowed. (E-4)

Precedent followed:

1. Dr. Amrendra Narain Srivastava Vs. St. of
U.P. & ors., in WP No. 61974 of 2011 (Para 3,
5)

2. Shashi Srivastava Vs. St. of U.P. & anr.,
[(2019) 2 UPLBEC 1326] (Para 4, 5, 8)

Present
petition
assails
order
dated
01.08.2016, passed by Principal Secretary,
Public Works Department.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Ashok Kumar Mishra,
learned counsel for the petitioner and Sri
Ran Vijay Singh, learned Addl. Chief
Standing Counsel for the State-respondents.

2. By means of this petition, the
petitioner has assailed the order dated
1.8.2016 passed by the Principal Secretary,
Public Works Department rejecting the
claim of the petitioner whereby he has
prayed that his services rendered as an ad
hoc
employee
w.e.f.
6.11.1973
to
31.12.2005 be counted in his total length of
service for providing him all post retiral
benefits.

3. Learned counsel for the petitioner
has submitted that the petitioner had
requested that he may be given the benefit
of judgment and order dated 1.3.2012
passed in passed in Dr. Amrendra Narain
Srivastava Vs. State of U.P. and others,
3-5 All. Munindra Chandra Gaur Vs. State of U.P. & Ors.
1201
in Writ Petition No.61974 of 2011,
whereby this Court has directed that ad hoc
services so rendered by the employee shall
be counted in the total length of service and
such employee shall be given the retiral
benefits counting said ad hoc services. The
competent authority in the impugned order
dated 1.8.2016 has categorically indicated
that the present petitioner may not get the
benefit of the order dated 1.3.2012 in re;
Dr. Amrendra Narain Srivastava (supra)
for the reason that the issue of the
petitioner is different from the matter of
Dr. Amrendra Narain Srivastava (supra).
It has further been indicated in the
impugned order that for providing such
benefit, the provision of Regulation 361 of
the Civil Service Regulations shall be abide
by and since such provisions are not being
abide by in the case of the petitioner,
therefore, his services rendered on ad hoc
basis shall not be counted.

4. Learned counsel for the petitioner
has drawn attention of this Court towards
the judgment of the Division Bench of this
Court in re; Shashi Srivastava Vs. State of
U.P. and Another, reported in [(2019) 2
UPLBEC 1326], wherein the identical
controversy has been decided. For the
brevity, the judgment and order dated
20.5.2019 in re; Shashi Srivastava (supra)
is being reproduced herein below:-

"1.
Order
dated
01.05.2018
having been recalled vide order of date
passed on Recall Application, writ petition
is restored to its original number. As
requested and agreed by learned counsel
for parties, We proceed to hear and decide
this case finally at this stage.

2. Heard Sri Pradeep Verma,
learned counsel for petitioner and learned
Standing Counsel for State of U.P. And
perused the material available on record.

3. This writ petition under Article
226 of Constitution of India has been filed
against order dated 21.05.2014, whereby
service rendered by petitioner on adhoc
basis before regularization from the years
1975 to 1992 has not been treated
'qualifying service' for the purpose of retiral
benefits by referring to Article 361 of Civil
Service Regulations (hereinafter referred to
as "C.S.R.").

4. In the impugned order dated
21.05.2014,
Director,
Bal
Vikas
Avam
Pushtahar has said that under Article 361, adhoc
service does not qualify for pension.

5. It is not disputed that retirement of
petitioner is governed by fundamental Rule 56
read with relevant provisions of C.S.R. Every
employee, whether permanent or temporary or
ad-hoc is liable to retire on attaining age of
superannuation as provided under fundamental
Rule 56.

6. Under U.P. Retirement Benefit
Rules, 1961 (hereinafter referred to as "Rules,
1961") "qualifying service" is defined in Rule
3(8). It means 'service' which qualifies for
pension in accordance with provisions of
Article 368 of C.S.R. 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 workchanged establishment, and

(iii) periods of service in a post,
paid from contingencies; shall also count
as qualifying service.
1202 INDIAN LAW REPORTS ALLAHABAD SERIES

Note- If service rendered in a
non-pensionable
establishment,
workcharged establishment or in 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 pensionable establishment, it will not
constitute an interruption of service."

(emphasis added)

7. Article 368, C.S.R., provides
that service does not qualify, unless officer
holds a substantive office in a permanent
establishment. Articles 368 and 369 are
quoted herein 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 on actual duty on the
first day on which the establishment was
again re-employed."

8. It is not in dispute that
petitioner was appointed on substantive
post in permanent establishment which
is/was
pensionable.
Nature
of
his
appointment i.e. ad-hoc appointment is not
of much relevance in as much as period
spent by him as ad-hoc was in permanent
pensionable
establishment,
which
ultimately resulted into regularization of
petitioner without any break in service.

9. Moreover, vide Sub-rule 8 of
Rule 3 of Rules 1961, qualifying service
includes temporary service followed by
confirmation
and
continued
without
interruption. In this view of the matter,
services rendered by petitioner on ad-hoc
basis followed by Regularization would
stand covered under "qualifying service"
defined under Rule 3(8) of Rules 1961, for
the purpose of pension.

10. In taking this view we are
fortified by a Division Bench decision in
State of U.P. and Others vs. Dr. Amrendra
Narain Srivastava, 2012 (8) ADJ 376.
Similar issue recently has been considered
by this Court in Dr. Indrapal Singh Sachan
vs. State of U.P. and 4 Others, (Writ -A o.
62179 of 2015) decided on 07.02.2018,
wherein this Court has followed judgment
passed in Writ Petition No. 65873 of 2014
and directed that adhoc service would be
counted for payment of retiral benefit
treating the same as "qualifying service".
Judgment passed in Dr. Indra Pal Singh
Sachan (supra) reads as under:-

"Heard
Shri
Ashok
Khare,
learned Senior Counsel, assisted by Shri
Siddharth Khare, learned counsel for the
petitioner and learned Standing Counsel
appearing for the respondents.

Pleadings have been exchanged
between the parties and we have perused
the same.

The petitioner is aggrieved by the
office order dated 9th September, 2015,
passed by the Principal Secretary, AYUSH,
State of U.P., whereby the representation of
the petitioner, for payment of pensionary
benefits, has been rejected.

The petitioner was appointed as
Ayurvedic doctor on contract basis vide
order dated 1.12.1988. The petitioner
continued to function as such. A Writ
Petition No. 4806 of 1990 (U.P. Anskalik
Chikitsak Sangrah Samiti vs. State of U.P.
and another), came to be filed by
association of Ayurvedic doctors. It was
3-5 All. Munindra Chandra Gaur Vs. State of U.P. & Ors.
1203
decided vide judgment and order dated
11.9.1992, with a direction to consider the
claim of their regularisation within six
months and for the payment of full salary
of a Medical Officer.

In pursuance of the above
judgment of this Court, an office order
was issued on 28.2.1992, directing for
treating the services of the contract basis
Ayurvedic doctors on ad hoc basis. The
petitioner was also included in the list
attached with the aforesaid office order
and his services also were treated on ad
hoc basis.

Subsequently, by order dated
25th September, 2009, the services of all ad
hoc
doctors
were
regularized
and,
accordingly, the services of the petitioners
were also regularized with effect from
16.3.2005.
The
petitioner,
ultimately,
retired on 30.9.2007. On his retirement, he
raised a claim for grant of pensionary
benefits,
which
was
not
accepted.
Therefore, he filed Writ Petition No. 49467
of 2012 (Dr. Indrapal Singh Sachan vs.
State of U.P. and others), which was
disposed of on 22.4.2015, observing that
the issue arising in the petition stand
answered by the decision of the Court,
rendered in Writ Petition No. 61974 of
2011 (Dr. Amrendra Narain Srivastava vs.
State of U.P. and others), which has been
followed in Writ Petition No. 65873 of
2014 (Dr. Mohd. Mahboob Husain Abbasi
vs.
State
of
U.P.
and
4
others).
Accordingly,
the
Principal
Secretary,
Department
of
Medical
Education,
Government of U.P., Lucknow, was
directed to consider the claim of the
petitioner within a time-bound period,
keeping into mind the parameters as has
been settled in the aforesaid two decisions.

In pursuance of the above, the
impugned order has been passed, rejecting
the representation of the petitioner with
regard to the claim of the pentionary
benefits.

The claim of the petitioner has
been distinguished in it from that of Dr.
Amerendra Narain Srivastava, on the
ground that the petitioner was never
confirmed, therefore, his services cannot be
counted for the purposes of grant of
pension. In the case of Amrendra Narain
Srivastava, the Division Bench has dealt
with the Uttar Pradesh Retirement Benefit
Rules, 1965, and the period of qualifying
service mentioned therein vis a vis
Regulation 368 of the Civil Services
Regulations and came to the conclusion
that the petitioner therein shall be entitled
to pension from the date on which he
joined the services by adding the services
rendered by him in temporary capacity to
his services rendered by him with the
Government Department on substantive
basis. In other words, on being absorbed in
the Government Department in substantive
capacity or being regularized, it was
provided that the services earlier rendered
by him may be in a temporary capacity has
to be counted for the purposes of payment
of pension.

The aforesaid decision has been
followed in the case of Dr. Mohd.
Mahboob Husain Abbasi.

In the instant case also, the
services of the petitioner, treated to be on
ad hoc basis vide order dated 28.2.1992,
was ultimately regularized vide order dated
25.9.229 with effect from 16.3.2005. Thus,
once
the
petitioner
stood
duly
regularized/confirmed,
the
services,
rendered by him prior to his regularization
on ad hoc basis, would be included in his
length of service for the purposes of grant
of pension. In this way, for the purposes of
pension, the petitioner has rendered service
with effect from 28.2.1992 till 30.9.2007.
The said period is more than the qualifying
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
service period of 10 years necessary for the
grant of pensionary benefits.

In view of the aforesaid facts and
circumstances, the distinction, made by the
Principal
Secretary
in
passing
the
impugned order, is not tenable and,
accordingly, the same is hereby quashed,
holding that services rendered by the
petitioner with effect from 28.2.1992, shall
be counted in his services rendered by him
after his regularization for the purposes of
grant of pension. The respondents are, as
such, directed to work out the pension
admissible to the petitioner as aforesaid and
to start paying the same as well as the
arrears. The arrears shall be paid with
interest of 8 per cent within a period of
three months.

The writ petition is allowed,
accordingly."

(emphasis added)

11. Even otherwise, we find that
Fundamental Rule 56, as operative in Uttar
Pradesh made by Provincial Legislation,
clearly provides that any person, who
retires under Fundamental Rule 56, would
be
entitled
for
'retiring
pension'.
Fundamental Rule 56, since, it is a
Provincial enactment, would prevail over
C.S.R.,
which
are
pre-constitutional
provision. This aspect was considered by a
Division Bench of this Court in Prasidh
Narain Upadhyay, 2006(1)ESC 611, and
Court held:

"12.
The
term
"qualifying
service" is defined in Section 1 Chapter 16
of Article 361 of the Civil Service
Regulations which provides that the service
of an officer does not qualify for pension
unless it conforms to the following three
conditions:

(A)The service must be under
Government.

(B)The employment must be
substantive and permanent.

(C)The service must be paid by
Government.

13. In the present case, so far as
the condition Nos. A and C are concerned,
they are satisfied and the dispute is only
with respect to condition No. B, i.e. lack of
permanent character of service. However,
in our view, the aforesaid provisions stand
obliterated
after
the
amendment
of
Fundamental Rule 56 by U.P. Act No. 24
of 1975 which allows retirement of a
temporary employee also and provides in
Clause (e) that a retiring pension is payable
and other retiral benefits, if any, shall be
available to every Government servant who
retires or is required or allowed to retire
under this Rule. Since the aforesaid
amendment
Rule
56
was
Service
Regulations, which are pre-constitutional
would have to give way to the provisions of
Fundamental Rule 56. In other words, the
provisions of Fundamental Rule 56 shall
prevail over the Civil Service Regulations,
if they are inconsistent. Condition B (supra)
of Article 361 of Civil Service Regulations
are clearly inconsistent with Fundamental
Rule 56 and thus, is inoperative.

14. A similar controversy came
up for consideration earlier before this
court in the case of Dr. Hari Shanker
Ashopa Vs State of U.P. and others, 1989
ACJ
337.
After
referring
to
the
Fundamental
Rule
56
and
various
provisions contained in Civil Service
Regulations, this Court observed as under:

"Clause
(e)
of
Rule
56
unequivocally recognizes, declares and
guarantees
retiring
pension
to
every
Government
servant
who
retires
on
attaining the age of superannuation, or who
is prematurely retired or who retires
voluntarily.
To
be
precise,
every
Government servant (whether permanent or
temporary) who retires under Clause (a) of
Clause (b), or who is required to retire, or
3-5 All. Munindra Chandra Gaur Vs. State of U.P. & Ors.
1205
who is allowed to retire under Clause (C)
of Rule 56, becomes entitled for a retiring
pension, of course, the first and third
conditions stipulated in Article 361 of the
Regulations are satisfied."

(emphasis added)

12. This has been followed and
further clarified in Babu Singh vs. State of
U. P. and others, 2006 (8) ADJ 371 and
Bansh Gopal Vs. State of U. P., 2006 (3)
ESC 2248 (All.) and above decisions fully
support the case of petitioner with which
we are in agreement.

13. In view thereof, the writ
petition is allowed. Impugned order dated
21.05.2014 is set aside. The respondents
are directed to treat entire adhoc service of
petitioner
as
'qualifying
service'
for
pensionary
benefits.
Accordingly,
respondents
shall
also
recalculate/recompute
retiral
benefits
payable to petitioner and pay arrears within
three months and regular pension shall be
paid regularly. "

5. In the aforesaid judgment, the
Division
Bench
of
this
Court
has
considered the judgment of this Court in re;
Dr. Amrendra Narain Srivastava (supra)
and also interpreted the relevant provisions
of law of Civil Service Regulations. The
view of the Division Bench in re; Shashi
Srivastava (supra) is that since the
petitioner
of
that
writ
petition
was
appointed on substantive post in permanent
establishment
which
is
pensionable,
therefore, nature of his appointment i.e. ad
hoc appointment is not of much relevance
inasmuch as the period spent by him as ad
hoc
was
in
permanent
pensionable
establishment, which ultimately resulted in
regularization of the petitioner without any
break in service.

6. So far as this fact is concerned,
there is no dispute in the present case.
Further, this Court has interpreted the
provisions of Fundamental Rule 56 as well
as Regulation 361 of the Civil Service
Regulations.

7. Learned Addl. Chief Standing
Counsel has tried to justify the impugned
order placing reliance upon the contents of
counter affidavit but there is nothing in the
counter affidavit which could dispute the
settled proposition of law that the services
rendered as an ad hoc employee in the
permanent pensionable establishment may
not be ignored by providing the retiral
benefits.

8. Having heard learned counsel for
the parties and having perused the material
available on record and the judgment in re;
Shashi Srivastava (supra), I am of the
considered opinion that the impugned order
dated 1.8.2016 passed by opposite party
no.1 is not sustainable in the eyes of law,
therefore, the same is liable to be quashed.

9. Accordingly, the impugned order
dated 1.8.2016 passed by opposite party
no.1, which is contained in Annexure No.1
to the writ petition, is hereby quashed. A
writ in the nature of mandamus is issued
commanding the opposite parties to revise
the retiral benefits of the petitioner
including pension, gratuity etc. calculating
his services so rendered on ad hoc basis i.e.
with effect from 6.11.1973 to 31.12.2005
and pay him such benefits.

10. Since the retiral benefits of the
petitioner has been paid without counting
the services rendered on ad hoc basis and
without following the due procedure of
law, therefore, the petitioner shall be
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled for the interest at the rate of 6%
p.a. on the arrears of retiral benefits.

11. Compliance of the aforesaid order
shall be made within a period of three
months from the date of production of
certified copy of the order of this Court,
failing which the petitioner shall be entitled
for the interest at the rate of 12% p.a.

12. The writ petition is accordingly
allowed.

13. No order as to costs.
----------
(2020)03-05ILR A1206
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2020

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

WRIT A No. 15355 of 2019

Santosh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Birendra Singh, Sri Syed Irfan Ali

Counsel for the Respondents:
C.S.C.

A. Service - Cancellation of provisional
appointment - Concealment of pendency
of criminal case - As per the guidelines issued
by the Supreme Court, the employer may in its
discretion, ignore suppression of fact or false
information by condoning the lapse in the cases
of trivial nature or in cases where the candidate
was not aware about the pendency at the time
of filling the form, depending upon the
seriousness of crime. (Para 8)
In the present case, the petitioner had
knowledge of the pendency of the criminal case
which he deliberately concealed and the offence
under which he is being proceeded against
cannot be said to be of petty nature. Thus, the
guidelines issued by the Supreme Court would
not apply. (Para 9)

Petition dismissed. (E-4)

Precedent followed:

1. Avtar Singh Vs U.O.I. & ors., 2016 (8) SCC
471 (Para 2)

Petition against orders dated 03.06.2019
and
12.09.2019,
passed
by
District
Development Officer.

(Delivered by Hon'ble Manoj Kumar
Gupta, J.

1. The petitioner has called in
question the order dated 3.6.2019 passed by
District Development Officer, the seventh
respondent
cancelling
the
provisional
appointment
of
the
petitioner
dated
15.12.2018 and the order dated 12.9.2019
rejecting the representation of the petitioner
made in pursuance of order of this Court
dated 9.7.2019 in Writ-A No.9601 of 2019.

2. The petitioner was selected for the
post of Village Development Officer (Gram
Vikas
Adhikari).
He
was
given
a
provisional appointment by order dated
10.10.2018. On
that day
itself,
the
petitioner gave a written undertaking in
shape of an affidavit that no criminal case
was pending against him and if the
information furnished in this regard is later
found to be incorrect, it shall be open to the
authorities to cancel his appointment and
also take other legal measures. During
verification
of
his
antecedents
and
character,
it
was
reported
by
Superintendent of Police that Crime Case
No.56A/2011 u/s 147, 148, 149, 379, 323,
504, 506, 427 IPC P.S. Dullahpur, district
Ghazipur was pending against him. He was