# Prem Singh v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1043
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-30
- **Case number:** Civil Misc. Writ Petition No.8876 of 2013
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-singh-v-state-of-u-p-and-ors-42542
- **Pages:** 8

## Headnote

Constitution of India-Art. 226- Ad-hoc
appointment-on post of L.T. grade teachermade under provision of Removal of
difficulties order 1981-approved by DIOS
continued upto 17 years-after retirementclaimed
post
retirel
benefits-denied-on
ground -appointment being ad-hoc basisnot a regular one-held-appointment on ad
hoc
basis
following
procedure
for
appointment-is substantive appointmentmade under difficulties removal order 1981held-entitled for pensionary benefit-petition
allowed.

Held: Para-30 & 31

## Text

2 All] Prem Singh Vs. State of U.P. and Ors.

1043

10. Writ petition is, therefore,
dismissed.

11. Stay order stands automatically
discharged.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 30.07.2013

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.8876 of 2013

Prem Singh

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

Constitution of India-Art. 226- Ad-hoc
appointment-on post of L.T. grade teachermade under provision of Removal of
difficulties order 1981-approved by DIOS
continued upto 17 years-after retirementclaimed
post
retirel
benefits-denied-on
ground -appointment being ad-hoc basisnot a regular one-held-appointment on ad
hoc
basis
following
procedure
for
appointment-is substantive appointmentmade under difficulties removal order 1981held-entitled for pensionary benefit-petition
allowed.

Held: Para-30 & 31
30. The principle which can be discerned
from the above mentioned judgment is
that
if
adhoc/stopgap/temporary
employee having essential qualification
and
is
appointed
in
terms
of
the
statutory Rules and he continues for a
long time and fulfills the qualifying
service is entitled for pension and other
retiral benefits.
31. Having regard to the facts and
circumstances of the case I am of the
view that petitioner is entitled for the
post retiral benefits as his appointment
was made in terms of the statutory Rules
viz. Removal of Difficulties Order, 1981,
against a short term vacancy with the
approval
of
the
appropriate
authority/District Inspector of Schools
and he worked uninterruptedly for 17
long years.

Case Law discussed:
2007 (3) UPLBEC 2073; 2006 (3) AWC 2909;
(2000) 8 SCC 25; (2001) 1 SCC 637; (1989)
UPLBEC 501; 2006(1) ALR 839; (2002) 4 LLN
566; 2007(3) UPLBEC 2073; 2012(2) ALJ 132

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. By way of this writ petition the
petitioner who was appointed as Assistant
Teacher has challenged the order passed
by the Joint Director dated 3.11.2012
whereby petitioner's representation for
payment of post-retiral benefit has been
rejected on the ground that petitioner was
not a permanent teacher.

2. Foundational facts in brief are that
Karma Kshettra Inter College, Etawah is a
recognized institution, wherein education
is imparted upto the level of Intermediate.
It receives aid out of State Fund. The
provisions of the U.P. Intermediate
Education Act, 1921 , the Regulations
framed thereunder, the Uttar Pradesh
Secondary Education (Services Selection
Board) Act, 1982 (U.P. Act No. 5 of
1982) and the U.P. High Schools and
Intermediate College (Payment of Salaries
to Teachers and other Employees) Act,
1971 are applicable to the institution. The
institution
is
administered
by
the
respondent no.6, the Committee of
Management.
1044 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

3. It is averred by the petitioner that
a regular/permanent Assistant Teacher
namely
Gyan
Shanker
Verma
was
promoted on the post of Lecturer causing
a short term vacancy The petitioner was
appointed against the said vacancy as ad
hoc Assistant Teacher in L.T. Grade after
following the procedure prescribed under
the law. After the appointment, the
management sent the papers to the office
of District Inspector of the Education for
his approval.

4. The District Inspector of School
having satisfied, accorded his approval,
vide order dated 1.2.1995. The Copy of
the said order is brought on the record as
Annexure-1 to the writ petition. The
petitioner joined his duties on the same
day. He continuously worked in the
Institution and drew his salary from the
Salary Payment Account of the state. The
Secondary Education Services Selection
Board, for the some reasons, could not
make selection against the post; therefore,
he
continued
uninterruptedly.
The
petitioner
reached
his
age
of
superannuation
on
30.6.2012.
He
completed his 17 years 2 month service in
the same status, i.e., on ad hoc basis.
After his retirement the petitioner made a
representation for his post retrial benefits
including the pension. His repeated
representation did not find favour from
the authority concerned.

5. Petitioner in his evening of life,
having lost all the hope, preferred a writ
petition No. 41841 of 2012 (Prem Singh
Verma v. State of U.P. and others) before
this
Court
for
direction
upon
the
respondents to consider his cause, which
was disposed of on 24.8.2012 with a
direction upon the competent authority to
consider the grievance of the petitioner. A
copy of the said order has been brought
on record as Annexure-3 to the writ
petition.

6. Pursuant thereto, the Joint
Director of Education has passed the
impugned order on 3.11.2012 whereby
Petitioner's
representation
had
been
rejected primarily on the ground that
petitioner was a ad hoc / temporary
employee and the pension is admissible
only to the regular/permanent teacher.

7. A counter affidavit has been filed
on behalf the Sate functionaries. Their
stand in the counter affidavit is that the
petitioner was admittedly ad-hoc teacher
and only a permanent teacher is entitled
for the pension, therefore, the ground
mentioned in the impugned order are
justifiable and no interference is called for
under the writ jurisdiction.

8. I have heard Sri Siddarth Khare,
learned counsel for the petitioner and Sri
A. K. Yadav, learned Standing Counsel .

9. Learned counsel for the petitioner
Sri Siddarth Khare submits that the
Petitioner has completed more than 17
years of continuous service, therefore, he
is entitled for all the benefits which is
admissible to a regular teacher. He has
drawn the attention of the court to
Government
order
dated
1.07.1989,
wherein it is provided that after ten years
regular service if an employee reaches his
age of superannuation is entitled for
pension. He further submits that the said
Government Order was filed before Joint
Director along with his representation but
the Joint Director has failed to advert to
the issue. Only a passing reference to the
said Government Order has been made by
him in the impugned order. He placed
2 All] Prem Singh Vs. State of U.P. and Ors.

1045
reliance on the judgment of this Court
passed in the case of Hans Raj Pandey v.
State of U.P. and others reported in
2007 (3) UPLBEC 2073 and Ram
Pratap Shukla v. State of U.P. and
others reported in 2006 (3) AWC 2909.

10. Learned Standing Counsel Sri
A.K.Yadav, has drawn the attention of the
Court to Article 465 A and Article 361 of
the Civil Service Regulations wherein
conditions have been laid down for
qualifying service. He further urged that
Article
361
of
the
Civil
Service
Regulations requires three conditions a)
the service must be under Government, b)
the employment must be substantive and
permanent and c) the service must be paid
by
Government.
Amplifying
his
submission he urged that in any event the
petitioner does not fulfill the condition no.
b) in as much as his appointment is
indisputably made on ad hoc basis and it
was not a permanent appointment.

11. Lastly Sri Yadav, contended that
the ad hoc appointment is a stop gap
arrangement and petitioner's appointment
was only till the regular selection was
made by the U.P. Secondary Education
Board , therefore a stop gap appointment
cannot
be
held
to
be
a
regular
appointment.

12. I have considered the rival
submissions of the learned counsel for the
respective parties and perused the record.

13. The appointment of the
petitioner was made on ad hoc basis. The
institution where the petitioner was
appointed as ad hoc teacher is govern by
the U.P. Intermediate Education Act,
1921 (in short Act,1921) and Act No. 5 of
1982. In the Act, 1921 the word ad hoc or
temporary is not defined. Section 16 E deals
with the appointment of teachers in
Intermediate Colleges; under Section 16 E
(11) the temporary appointment were
permissible only against a temporary
vacancy caused by grant of leave to a
incumbent for a period not exceeding six
months. Chapter II of the Regulations
framed under the Act, 1921 deals with the
appointment of Heads of the institution and
teachers. Proviso to Regulation 2 sub-clause
1 also permit to make appointment against a
temporary vacancy caused by grant of leave
for a period not exceeding six months or by
death, retirement or by suspension.

14. The State Government amended
U.P. Intermediate Education Act, 1921
drastically by U.P. Secondary Education
Laws (Amendment) Act, 1975 (U.P.Act
No. 26 of 1975). The same difficulties
arose due to said amendment and as such
the State Government vide Notification
dated 18th August, 1975 issued U.P.
Secondary
Education
(Removal
of
Difficulties) Order, 1975 in respect of
substantive or leave vacancy or any
vacancy existing or occurring during the
academic session of the head of the
institution of teachers. For the first time
the management was empowered to make
ad hoc appointment in the manner
provided under the said order. In quick
succession the State Government in order
to overcome further difficulties which
arose, issued Removal of Difficulties
Second, Third, Fourth, Fifth, Sixth and
Seventh orders between the year 1975 -
1977. There is no need to go into details
of those orders as it is not relevant for the
issue involved in the present case. Suffice
would be to say, that for the first time
concept of ad hoc appointment was
introduced under the U.P. Intermediate
Education Act,1921.
1046 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

15. In the year 1981 the State
Government
established
the
U.P.
Secondary
Education
Service
Commission and Selection Board vide
Ordinance No. 8 of 1981 which was
promulgated on 10th July, 1981. The
State Government in exercise of power
under section 33 of the said ordinance
issued Removal of Difficulties Order,
1981 on 31 July, 1981 which was
followed by (Removal of Difficulties)
(Second) Order, 1982 on 11th September,
1981. Both these orders were issued
laying procedure for appointment on ad
hoc basis against the substantive vacancy
and short term vacancies.

16. After the enforcement of the
U.P.
Secondary
Education
Services
Selection Board Act, 1982, the committee
of management was empowered to make
the ad hoc appointment under section 18
of the Act. The said section was amended
by U.P. Act No. 1 of 1993 and U.P. Act
No. 5 of 2001.

17. From the aforesaid statutory
provisions it is evident that the ad hoc
appointments
were
permissible
by
following statutory provisions which also
requires approval of the District Inspector
of Schools. The payment of salary of the
ad hoc teachers appointed under the
aforementioned statutory provisions are
made by the State Fund/Salary Payment
Account.

18. Concededly, the petitioner was a
ad hoc teacher, his appointment was made
against the short term vacancy with the
approval of the District Inspector of
Schools. He worked for more than 17
years
and
reached
his
age
of
superannuation on 30.6.2012. By the
impugned order the petitioner's prayer for
pension has been rejected only on the
ground that he was not in regular service
and the Government Order dated 1st July,
1989 has used the word 'regular service'
(Niyamit sewa).

19. The Civil Service Regulation as
applicable in Uttar Pradesh are intended
to define the prerequisite conditions for
grant of pension in the Government
Service/Civil Department. The Article
361 of Chapter XVI of the Civil Service
Regulations
provides
conditions
of
qualifications for pension. Article 361
reads as under :-

"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 and

c) the service must be paid by
Government."

20. Article 424 of Chapter XVIII of
the Civil Service Regulations provides the
following kinds of pension admissible to a
Government servant (a) compensation
pension
(b)
invalid
pensions
(c)
superannuation
pensions
(d)
retiring
pensions.

21. The Civil Service Regulation as
applicable
in
Uttar
Pradesh
is
a
preconstitutional
Rules.
The
U.P.Fundamental Rules which has been
made under section 241 (2) ( b) of the
Government of India Act, 1935 came into
force with effect from 1st April, 1942.
Chapter 9 deals with the compulsory
retirement. Fundamental Rule 56 (e)
2 All] Prem Singh Vs. State of U.P. and Ors.

1047
provides for retiring of a Government
servant. Clause (e) of Fundamental Rule
56 reads as under:

"(e) A retiring pension shall be
payable and other retirement benefits, if
any, shall be available in accordance with
and subject to the provisions of the
relevant rules to every Government
servant who retires or is required or
allowed to retire under this rule:

Provided that where a Government
servant who voluntarily retires or is
allowed voluntarily to retire under this
rule the appointing authority may allow
him, for the purposes of pension and
gratuity, if any, the benefit of additional
service of five years or of such period as
he would have served if he had continued
till
the
ordinary
date
of
his
superannuation, whichever be less."

22. The short question which need
determination in this case is whether the
petitioner who was appointed on adhoc
basis and also superannuated in the same
capacity without his regularisation can be
held to work on a regular basis. The terms
under "ad hoc" "stopgap" and "fortuitous"
came to be considered by the Supreme
Court in the case of Rudra Kumar Sain
v. Union of India, (2000) 8 SCC 25. The
Court found that a person who has a
requisite
qualification
and
who
is
appointed with the approval of the
appropriate authority and if he is allowed
to continue on the post for a considerable
long time then such appointment cannot
be held to be stopgap/ fortuitous or purely
adhoc appointment. The Supreme court
observed as under :-

"In service jurisprudence, a person
who possesses the requisite qualification
for being appointed to a particular post
and then he is appointed with the approval
and consultation of the appropriate
authority and continues in the post for a
fairly
long
period,
then
such
an
appointment cannot be held to be
"stopgap or fortuitous or purely ad hoc".

23. The Supreme Court in the case
of Ramesh K. Sharma v. Rajasthan
Civil
Services,(2001)
1
SCC
637,
considered the word "substantive basis"
following the judgment of Baleshwar
Dass v. State of U.P. (AIR 1981 SC 41).
The Court held that if an incumbent holds
the post for indefinite period then it
cannot be said to be adhoc appointment.
The Court held as under :-

"If an incumbent is appointed after
due process of selection either to a
temporary post or a permanent post and
such appointment, not being either
stopgap or fortuitous, could be held to be
on substantive basis. But if the post itself
is created only for a limited period to
meet
a
particular
contingency,
and
appointment thereto is made not through
any process of selection but on a stopgap
basis then such an appointment cannot be
held to be on substantive basis. The
expression "substantive basis" is used in
the
service
jurisprudence
in
contradistinction with ad hoc or purely
stopgap or fortuitous."

24. This Court in the case of Dr.
Hari Shanker Asopa v. State of U.P.
And another, reported (1989) UPLBEC
501, considered the Article 361 and
Clause (e) of Rule 56 of Fundamental
Rules as applied in Uttar Pradesh and the
Civil Service Regulations. Dr. Hari
Shanker
Asopa
was
appointed
on
temporary basis on the post of lecturer in
1048 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

the department of Surgery at S.N.Medical
College, Agra on 4th August, 1964. In the
year 1969, he was appointed on a substantive
post of Reader in Surgery at same College
that appointment too was on temporary basis.
The term of the appointment was one year or
till the candidate selected by the U.P.Public
Service
Commission
was
available,
whichever was earlier. After three years he
was promoted to the post of Professor in
Surgery in Jhansi Medical College. The said
appointment was also temporary and it was
for a period of one year or till the candidate
regularly selected by the U.P.Public Service
Commission was available or till the services
of Dr. Asopa were needed, whichever was
earlier. Dr. Asopa uninterruptedly continued
for 18 years as a Lecturer, Reader and
Professor on temporary basis. His request for
voluntary retirement was allowed by the
State Government in the year 1983 with a
condition that no pension would be paid to
him, as he was not permanent on any post of
the Government Service. Dr. Asopa feeling
aggrieved by the said order dated 21.2.1983
preferred a writ petition before this Court. .

25. This Court interpreted the
qualifying service envisaged under Article
465 and 465 A of the U.P.Civil Service
Regulations and came to hold that in view
of the subsequent amendment in Rule 56
of
the
U.P.Fundmental
Rules
(Amendment Act Validation) Act, 1975
(U.P.Act No. 24 of 1975), a temporary
government servant is also entitled for the
retiring
pension
notwithstanding
the
definition of qualifying service under
Article 465 and 465 A. Paragraph 19 of
the the said judgment reads as under :-

"In the instant case, indisputably Dr.
Asopa who allowed to retire under clause
(c) of Rule 56 and the first and third
conditions envisaged in Article 361 of the
Regulations were satisfied. He, therefore,
became qualified for a retiring pension
notwithstanding the fact that he was not
permanent on any of the posts held by
him during the tenure of his continuous
services of State Medical Colleges of
Uttar Pradesh Government. Denial of
retiring pension to Dr. Asopa on the
ground of his not being permanent on any
post of the government service was
clearly violative of clause (e) of Rule 56
of the Rules. Condition contained in
paragraph 2 of the order, dated 21st
February, 1983 (Annexure-10 to the writ
petition), depriving Dr. Asopa of retiring
pension cannot , therefore, be sustained.
The contention of the learned Standing
Counsel for the State of Uttar Pradesh that
Dr. Asopa was not entitled to any pension
lacks merit and has got to rejected."

26. The said judgment of Dr. Asopa
was followed by a Division Bench in the
case of Board of Revenue through its
Chairman, U.P.Lucknow and others v.
Prasidh Narain Upadhyay reported
2006(1) ALR 839 and Rajendra Singh v.
Accountant-General ,(2002) 4 LLN 566.
The Division Bench in this case also
considered the Government Order dated
1st July, 1989 wherein the regular service
was mentioned as one of the condition for
the grant of pension. Relevant paragraphs
are extracted hereunder below :-

"From perusal of the G.O., dated 1
July, 1989, Annexure 6 to the writ
petition. Government has already taken a
policy-decision that Government servant,
who has completed 10 years of regular
service, on completing the age of
superannuation
is
entitled
to
get
retirement/inability pension in the similar
situation and manner like permanent
Government employees.
2 All] Prem Singh Vs. State of U.P. and Ors.

1049

The regular Government servant
means, a person working against a post
carrying on a pay-scale. If a person is not
working against any post or is not getting
the pay-scale, he could not be said to be a
person
appointed
and
continuing
regularly.
Only
regular
employee,
whether temporary or permanent, is
entitled to get pension.

Regular appointment means the
appointment made according to rule and
procedure. If against a post, a person was
appointed in accordance with rules in the
procedure prescribed for Government
servant,
his
appointment
is regular
appointment."

27. The Government Order dated 1st
July, 1989 again came to be considered by
this Court in the case of State of U.P. v.
Gaya Ram,(2209)75 ALR 77. This Court
has interpreted the word regular service
and held as under :-

"Learned Standing Counsel Sri Ajay
Bhanot has laid much emphasis on the
words as used in the Government Order
dated 1.7.1989. The submission of the
learned Standing Counsel as that the
petitioner
was
only
temporary
Government Servant hence he cannot be
said to have rendered regular ten years
service; hence he is not entitled for the
benefit of Government Order dated
1.7.1989.
The
words
used
in
the
Government Order dated 1.7.1989, means
completion of ten years regular service.
Words ''regular service' has not been
defined in the Government Order. From a
reading of the Government Order it is
clear that the word "ten years regular
service" has been referred to the service
rendered and not to the status of
employee, an employee substantively
appointed and permanent is automatically
entitled for pension. The Government
Order
dated
1.7.1989
does
not
contemplate ten years substantive service.
The words "regular service" used in the
Government Order is not anonymous to
substantive
service.
Admittedly
the
benefit by Government Order is to be
extended
to
temporary
Government
Servant. The temporary Government
Servant cannot be said to have substantive
or regular service. Thus, the words
"regular service" used in the Government
Order dated 1.7.1989 has not been used as
specifying he capacity or status of its
holder rather the words "regular service"
has been used to denote and specify the
nature of service rendered."

28. In the case of Hans Raj Pandey
v. State of U.P. and others, 2007 (3)
UPLBEC 2073 (supra) this Court had
occasion to consider the provisions of
U.P. State Aided Educational Institution
Employees Provident Fund, Insurance and
Pension Rules, 1964 also. Rule 43 ,44 and
45 of the said Rule has been considered at
length by this Court and also the
Regulations 465 and 465 A of the
U.P.Civil Service Regulations. The Court
held as under :-

"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 out 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 employees also
and provides in clause (e) that a retiring
pension is payable and other retiral
benefits, if any, shall be available to every
1050 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Government Servant who retires or is
required or allowed to retire under this
Rule. Since the aforesaid amendment
Rule 56 was made by an Act of
Legislature, the provisions contained
otherwise
under
Civil
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 in operative."

29. Sri A.K.Yadav, learned Standing
Counsel has relied on the judgment of
Deeparam v. State of U.P. And others
2012 (2) ALJ 132. In the said case the
petitioner was working as Seasonal Peon
since the year 1981. His services were
regularised on 29.11.1996 and he retired
on attaining the age of superannuation on
31.12.2007.
The
petitioner
therein
claimed that services rendered by him as
Seasonal
Collection
Peon
since
20.11.1981 should be treated as a
qualifying service for the purpose of
pension and other retiral benefits. The
Court
refused
to
accept
the
said
submission on the ground that the services
rendered as Seasonal Collection Peon
does not qualify for pension as the service
is intermittent and cannot be equated with
a temporary employee. Thus the said case
has a distinguishing features.

30. The principle which can be
discerned from the above mentioned
judgment
is
that
if
adhoc/stopgap/temporary
employee
having essential qualification and is
appointed in terms of the statutory Rules
and he continues for a long time and
fulfills the qualifying service is entitled
for pension and other retiral benefits.

31. Having regard to the facts and
circumstances of the case I am of the view
that petitioner is entitled for the post
retiral benefits as his appointment was
made in terms of the statutory Rules viz.
Removal of Difficulties Order, 1981,
against a short term vacancy with the
approval
of
the
appropriate
authority/District Inspector of Schools
and he worked uninterruptedly for 17 long
years.

32. For the aforesaid reasons the
impugned order dated 3.11.2012 passed
by the Joint Director needs to be set aside.
Accordingly, it is set aside.

33. A direction is issued upon the
concerned respondents to pay the post
retiral benefits to the petitioner in
accordance with law as expeditiously as
possible preferably within three months
from the date of communciation of this
order. It is made clear that if the payment
is not made to the petitioner within the
said period the petitioner shall be entitled
for interest at the rate of 9% per annum on
the delayed payment.

34. The writ petition is allowed with
cost which is quantified Rs.2,000/-.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 23.07.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.12720 of 2010

Vijay Prakash Tiwari

 ...Petitioner