# Ram Pratap Shukla v. State of U.P. and others

- **Citation:** (2006) 1 ILRA 408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-27
- **Case number:** Civil Misc. Writ Petition No. 43128 of 2003
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pratap-shukla-v-state-of-u-p-and-others-40745
- **Pages:** 9

## Headnote

Rules-Rule
56
(e)
Constitution of India, Art. 226-readwith
Civil
Services
Regulation-Regulation
361-grant of Pension-petitioner initially
appointed as helper on 20.12.76 on work
charge basis-by notice dated 30.7.02
information given to retire on 31.7.0224.4.03 application for payment of post
retrial
benefit-rejected
as
he
was
regularized 1993 hence the period from
20.12.76 to 93 shall not be counted-held
in view of G.O. 1.7.89 after completing
10 years service be treated regular in
nature-26 years continuous workingentitled for pension.

Held: Para 17 and 18

The Government Order dated 1.7.1989
meant ten years government servant
should be regular in nature meaning
thereby
that
if
the
temporary
government servant has performed his
duties irregularly i.e. with gaps of years,
his services may not be treated to be
regular. Thus, the contention of the
learned Standing Counsel that the words
''regular service' used in the Government
Order means substantive service or
service rendered by an employee in
regular capacity cannot be accepted. The
petitioner admittedly, rendered 26 years
under the respondent. From the record,
it is clear that the petitioner has
continuous worked from 20.12.1976 and
was permitted to retire at the age of
superannuation on 31.6.2002 and from
1976 to 2002, he has continuously
worked. From the foregoing discussions
it is clear that as the petitioner has
rendered considerable period of service,
he was entitled for the benefit of the
Government Order dated 1.7.1989 and if
the interpretation as given by the
respondent
is
accepted,
that
the
government
order
excluded
the
temporary government servants, who
has retired after 26 years of service and
is not entitled for pension the said
Government Order will become bad on
account of unreasonable and arbitrary
classification put by the respondent.
Furthermore,
as
observed
the
fundamental Rule 56 sub clause (e)
mandade grant of retiring pension to the
temporary Government Servants. The
Government Order dated 1.7.1989 has to
be read subject to the Fundament Rules
56 (e). The similar controversy came up
for consideration before this Court in
case of Dr. Hari Shankar Asopa Vs. State
of U.P. and others reported in 1989, ACJ
337, (Supra). After referring to the
fundamental
Rule,
56,
and
various
provisions contained in Civil Service
Regulations, this Court has observed as
under-

"Clause (e) of Rule 56 unequivocally
recognizes,
declares
and
guarantees
retiring pension to every Government
1 All] Ram Pratap Shukla V. State of U.P. and others
409
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) or Clause (b), or who is required to
retire or 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."

In view of the matter the contention of
the respondents that since the petitioner
was
not
a
permanent
confirmed
employee and hence not entitled for
pension, is clearly misconceived and is
rejected.
Case law discussed:
2003 (3) UPLBEC-2521
AIR 1980 SCC-1464
2000 (2) AWC-1261
1996 (7) SCC-113
1995 (3) UPLBEC-1842
AIR 1981 SC-41
2006 (1) ESC-611
1989 ACJ-337

## Text

408 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
11. This Court has also reiterated the
same view in Special Appeal No. 1293 of
2005, Gulzar Singh vs. State of U.P.
and others decided on 7.11.2005.

12. In the aforesaid circumstances,
we do not find any reason to interfere
with the order of the Hon'ble Single
Judge. Therefore, the special appeal,
being without merit, is dismissed. No
order as to costs.
 Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2006

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 43128 of 2003

Ram Pratap Shukla

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

Counsel for the Petitioner:
Sri Ramanuj Pandey

Counsel for the Respondents:
S.C.

Fundamental
Rules-Rule
56
(e)
Constitution of India, Art. 226-readwith
Civil
Services
Regulation-Regulation
361-grant of Pension-petitioner initially
appointed as helper on 20.12.76 on work
charge basis-by notice dated 30.7.02
information given to retire on 31.7.0224.4.03 application for payment of post
retrial
benefit-rejected
as
he
was
regularized 1993 hence the period from
20.12.76 to 93 shall not be counted-held
in view of G.O. 1.7.89 after completing
10 years service be treated regular in
nature-26 years continuous workingentitled for pension.

Held: Para 17 and 18

The Government Order dated 1.7.1989
meant ten years government servant
should be regular in nature meaning
thereby
that
if
the
temporary
government servant has performed his
duties irregularly i.e. with gaps of years,
his services may not be treated to be
regular. Thus, the contention of the
learned Standing Counsel that the words
''regular service' used in the Government
Order means substantive service or
service rendered by an employee in
regular capacity cannot be accepted. The
petitioner admittedly, rendered 26 years
under the respondent. From the record,
it is clear that the petitioner has
continuous worked from 20.12.1976 and
was permitted to retire at the age of
superannuation on 31.6.2002 and from
1976 to 2002, he has continuously
worked. From the foregoing discussions
it is clear that as the petitioner has
rendered considerable period of service,
he was entitled for the benefit of the
Government Order dated 1.7.1989 and if
the interpretation as given by the
respondent
is
accepted,
that
the
government
order
excluded
the
temporary government servants, who
has retired after 26 years of service and
is not entitled for pension the said
Government Order will become bad on
account of unreasonable and arbitrary
classification put by the respondent.
Furthermore,
as
observed
the
fundamental Rule 56 sub clause (e)
mandade grant of retiring pension to the
temporary Government Servants. The
Government Order dated 1.7.1989 has to
be read subject to the Fundament Rules
56 (e). The similar controversy came up
for consideration before this Court in
case of Dr. Hari Shankar Asopa Vs. State
of U.P. and others reported in 1989, ACJ
337, (Supra). After referring to the
fundamental
Rule,
56,
and
various
provisions contained in Civil Service
Regulations, this Court has observed as
under-

"Clause (e) of Rule 56 unequivocally
recognizes,
declares
and
guarantees
retiring pension to every Government
1 All] Ram Pratap Shukla V. State of U.P. and others
409
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) or Clause (b), or who is required to
retire or 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."

In view of the matter the contention of
the respondents that since the petitioner
was
not
a
permanent
confirmed
employee and hence not entitled for
pension, is clearly misconceived and is
rejected.
Case law discussed:
2003 (3) UPLBEC-2521
AIR 1980 SCC-1464
2000 (2) AWC-1261
1996 (7) SCC-113
1995 (3) UPLBEC-1842
AIR 1981 SC-41
2006 (1) ESC-611
1989 ACJ-337

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

1. The present writ petition has been
filed for quashing the order dated
31.1.2003 (Annexure 4 to the writ
petition) passed by the respondent No.5
and issuing a writ of mandamus directing
the respondents to grant pension and other
post retirement benefits to the petitioner
forthwith with interest at the rate of 18%
till the actual payment is made to the
petitioner.

2. The facts arising out of the
present writ petition are that the petitioner
was initially appointed as helper under the
control of the respondent No.3 w.e.f.
20.12.1976 and thereafter the petitioner
was given all the benefits of revised pay
scale from time to time. The work and
conduct of the petitioner was always
excellent and no disciplinary proceeding
was initiated against the petitioner.
Taking into consideration the work and
seniority of the petitioner, the respondent
No.4 confirmed the petitioner in the pay
scale of Rs.750-940. A copy of the same
has been annexed with the writ petition as
Annexure 1 to the writ petition. The
respondent No.4 served a notice of
retirement-dated
30.7.2002
upon
the
petitioner indicating therein that the
petitioner will be retired in the after noon
of 31.7.2002 on attaining the age of
superannuation. Though, it was obligatory
on the part of the respondents to complete
all the papers within a period of six
months before the retirement of the
petitioner for payment of post retrial
benefits but with a malafide intention the
respondents have not done anything.
When nothing was done for the purposes
of payment of post retrial benefits to the
petitioner,
the
petitioner
moved
an
application
on
25.4.2003
to
the
respondent No.3 for making the payment
of post retrial benefits to the petitioner. It
is necessary to mention here that the
petitioner received a copy of the letter of
Additional Director, Pension, Allahabad,
in which it has been stated that the matter
of the petitioner shall be dealt by the
respondent No.4, as the petitioner belongs
to Class IV category and further as the
services rendered by the petitioner is less
than 10 years, as such, the petitioner is not
entitled for pension. A copy of the orderdated 31.1.2003 has been filed as
Annexure 4 to the writ petition. It has
been submitted by the petitioner that the
petitioner was in continuous service since
20.12.1976 and retired on 31.7.2002 and
has rendered service for more than 26
years, as such, the petitioner is entitled for
pension and other post retrial benefits.
410 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
This Court has held that if the temporary
and regular employee in the government
service appointed and if he is working on
any post and has completed 10 years of
service is entitled to get the pension under
the law. Admittedly, the appointment of
the petitioner is 20.12.1976 in accordance
with the rules and after completing all the
requisite formalities, and as such, there
was no occasion not to count the services
from 20.12.1976 to 1993, i.e. the date of
regularization and thus, the past services
rendered by the petitioner ought to have
counted for calculation of pension and
other post retrial benefits. Aggrieved by
the aforesaid order, the petitioner has filed
the present writ petition.

3. The writ petition was entertained
and the counter and rejoinder affidavit
have been filed, as such, the writ petition
is being disposed of finally.

4. It has been submitted on behalf of
the petitioner that the Government order
dated 1.7.1989 relates to regularization of
service, 10 years continuous service have
been treated as regular service and 20
years has been treated on temporary basis.
The contention of the respondents to this
effect that the petitioner is not eligible for
pension and other post retrial benefits is
totally misconceived. The petitioner is
entitled to get the pensionary benefits
after rendering continuous service for
about 26 years. The respondents are
disputing the claim on the ground that the
employment of the petitioner was not on
substantive character. It is further stated
that after amendment of Fundamental
Rules, 1956, 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 retrial benefits shall be available to
every government servant who retires
under this Rule. It is further stated that the
provisions of Fundamental Rules 56 shall
prevail over Civil Service Regulations
and moreover, on the government orders
which have been annexed upon by the
answering respondent. Words ''regular
service'
has
not
defined
in
the
Government Order. The word ten years
regular service has been referred to
service rendered and not to the status of
an employee and employee substantively
appointed and permanent is automatically
entitled for pension. The Government
Order
dated
1.7.1989
does
not
contemplate
10
years
''substantive
service'. The words ''regular service' used
in
the
Government
Orders
is
not
anonymous to substantive service. The
benefit of Government servant is to be
extended
to
temporary
government
servant.
The
temporary
government
servant cannot be said to have substantive
regular service, as such, the word ''regular
service' has not been used as specifying
the capacity or status as a whole but has
been used to denote and specify the nature
of his service rendered, meaning thereby
that the service should be regular.

5. The regular means steady or
uniform in course practice or occurrence
not subject to unexplained or irrational
variation. The right of the petitioner flows
from rendering of service for such a long
period, which is a statutory right of the
petitioner and cannot be ignored in any
manner.

6. The reliance has been placed by
the
petitioner
in
Shakuntala
alias
Bhahmodevi (Smt.) Vs. Director of
Pension, reported in 2002 (3) UPLBEC
2521, the said judgment followed by AIR
1980 Supreme Court 1464 Messers
1 All] Ram Pratap Shukla V. State of U.P. and others
411
Rajkanta
Vs.
The
Finance
Commissioner, Punjab and another. The
reliance has been placed upon Para 10 of
the said judgment. The same is being
reproduced below:-

10. Fundamental Rule 56 empowers
the Government to compulsory retire a
Government servant after he attains the
age of 58 years. The same provision i.e.
sub-clause
(C)
also
provides
that
Government servant may by notice to the
appointing authority voluntarily retire at
any time after attaining the age of 45
years or after completing qualifying
service of 20 years. Sub-clause (e) of
Fundamental Rule 56 is relevant for the
present
controversy.
 Sub-clause
(e)
provides that the 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
very
Government
Servant who retires or is required or
allowed
to
retire
under
this
rule.
 Fundamental Rule 56(e) thus clearly
contemplate payment of retiring pension
in
both
categories
i.e.,
voluntary
retirement and compulsory retirement.
Fundamental Rule, thus, mandate for
payment of retiring pension even to a
person who has compulsory retired. Thus,
the rule do not make any distinction with
regard to payment of retiring pension to a
person who has voluntary retired or has
been compulsory retired. By Government
Order dated 1.7.1989 it was provided that
temporary Government Servants who
have rendered ten years regular service
are also entitled for the retirement
benefits.
The
aforesaid
Government
Order was issued with intent to extend the
pensionary
benefits
to
temporary
Government Servants, which is clear from
the first Paragraph of the Government
Order. Paragraph 2 of the Government
Order
further
provides
that
those
temporary Government Servants who
have completed minimum ten yeas regular
service
on
the
date
of
retirement/superannuation or who have
declared
invalid
by
the
appointing
Authority
will
be
entitled
the
superannuation/invalid pension, gratuity,
family pension as admissible to a
permanent employee. Paragraph 3 further
provides that this provision will also be
applicable
in
those
cases
where
permission
has
been
granted
for
voluntary retirement in accordance with
the
Fundamental
Rule
56.
The
Government Order do not specifically
provide that the persons who are
compulsory retired will not be given the
benefit. Reliance has been placed on the
guidelines of Clause 14 circulated along
with Government order dated 24.6.1996.
The aforesaid Clause 14 provides:

14. vfuok;Z lsokfuozfr 1-7-89 ds lkluknsl ls
vkPNkfnr ugh gS vr( vfuok;Z lsokfuozfr ij islau dh
ns;rk ds fG;s LFkkbZ gksuk vkol;d gS A "

7. The ad hoc employee on daily
wages basis, contract basis or work
charge basis to be treated as falling within
ambit of expression ad hoc appointee
continued fairly long spell of time, as
such, presumption may arise that there
was a regular need of service, as such, it
was obligatory on the part of the
employer to take steps for regularization
of such employees which has been held in
various judgments. The reliance has been
placed upon a judgment reported in 1997
AWC (Supplement) 550 Anil Kumar
Kaushik Vs. New Okhla Industrial
Development
Authority
Nodia
and
another and 2000 (2) AWC, 1261 State
of U.P. and others Vs. Dileram and
412 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
others. It has been submitted that the
Court has considered that rendering a
service for a long period is status of such
employee in absence of material on record
to show as to why he had not been
permanent despite such a long service. It
has been held that he should be deemed to
have become permanent as such, he is
entitled for pension. The reliance has been
place upon a judgment of this Court in
Yashwant Hari Katakkar Vs. Union of
India and others reported in 1996 part-7,
Supreme Court Cases, 113. It has also
been held that an employee who has
served more than 20 years of service is
entitled for pension and denial of retiring
pension to the petitioner on the ground of
not being permanent in on any post
clearly
violative
to
Clause
(e)
of
Fundamental Rules, 56 which clearly
entitle
for
pension.
The
temporary
department cannot keep a person as
temporary or on daily wages indefinitely.
It has been submitted that in case reported
in (1995) 3 UPLBEC 1842 (Supplement)
A.P. Srivastava Vs. Union of India and
others the Apex Court has clearly taken a
view the condition precedent for being
entitlement to pension in case of a
temporary employee who has rendered 20
years of service is entitled to pension. The
Apex
Court
while
dealing
with
''substantive
capacity'
the
emphasis
imparted by the adjective ''substantive' is
that a thing is substantive if it is essential
part of constituent or relating to what is
essential. Therefore, when a post is
vacant, however, designated in officials,
the capacity in which the person holds the
post has to be ascertained by the State.
The
substantive
capacity
refers
to
capacity in which person holds the post
and not necessarily to the nature and
character of the post. Thus, a person is
said to hold a post in a substantive
capacity when he holds it for an indefinite
period especially for a long duration in
contradistinction to a person who holds it
for a definite or a temporary period or
holds
it
on
probation
subject
to
confirmation. The reliance has been
placed in AIR 1981 Supreme Court, 41
Baleshwar Dass Vs. State of U.P. and
reliance has been placed upon Para 9 of
the said judgment. The same is being
reproduced below:-

"9. So, the order of appointment to
the service is decisive of Seniority and the
survive horoscope of each Assistant
Engineer has to be cast with reference to
his appointment order. The next question
then, is when is an engineer appointed to
the service? When, under the Rules, he
becomes a member of the Service. For
until he gains entry into the service he
cannot claim to be appointed to it. To
hover around with prospects of entry is
not the same as actual entry. Therefore,
we have to examine when an engineer
becomes a member of the Service under
the Rules. Clause (b) of Rule 3 defines
"Member of the Service" to mean a
Government servant ''appointed in a
substantive capacity under the provisions
of these rules.... to a post in the cadre of
the Service.' What, then, is the cadre of
the Service?. What do we mean by
appointment in a substantive capacity to a
post in the cadre? Can there be a
temporary post included in the cadre.
Here. Rule 4 becomes relevant. Rule 4
prescribes the sanctioned strength of the
cadre. It provides that the Government
may, subject to the provisions of Rule 40
of the Civil Service (Classification,
Control
and
Appeal)
Rules,
1930
''increase
the
cadre
by
creating
permanent or temporary posts from time
to time as may be found necessary.' So a
1 All] Ram Pratap Shukla V. State of U.P. and others
413
cadre
post
can
be
permanent
or
temporary and if an engineer were
appointed substantively to a temporary or
permanent post he becomes a member of
the Service. The touchstone then is the
substantive capacity of the appointment.
Here we get into service jargon with
slippery
semantic
and
flavored
officalese."

8. The further reliance has been
placed by the counsel for the petitioner in
a Division Bench Judgment of this Court
reported in 2006 (1) ESC 611 (Allahabad)
(Division Bench) Board of Revenue and
others Vs. Prasidh Narayan Upadhayay
and has submitted that in the aforesaid
case, the interpreting various position this
Court has taken a view that "continuous
working for more than 37 years of the
petitioner cannot be ignored on the basis
of vague and unsustainable plea which
has been raised by the appellant." The
statutory right of the petitioner respondent
flowing by rendering service for such a
long service, cannot be brushed aside
lightly. The court has also taken into
consideration the Articles 465 and 465
(A) of Civil Service Regulation.

9. In such a situation, the petitioner
submits that action of the respondents is
wholly illegal and without jurisdiction
and against the well settled principle of
law and as the petitioner has continuously
worked, as such, he is entitled for
pension.

10. A counter affidavit has been
filed and in the counter affidavit it has
been stated that as the petitioner has not
completed 10 years of regular service and
the competent authority has clearly held
that he is not entitled for post retrial
benefits due to non completion of service
of 10 years either in regular or temporary.
According to Civil Regulation, Rule 368,
the service does not qualify unless the
officer holds a substantive office on a
permanent establishment. Further Rule
370 provides that period of service in
work charged establishment does not
qualify a person for an entitlement of
pension. As such, the petitioner is not
entitled
for
pensionary
benefits.
According to Government Order, dated
26.5.1993, the calculation of post retrial
benefits is made by the head of the
department.

11. In view of the aforesaid fact, the
respondents' submits that the petitioner is
not entitled for post retrial benefits.

I have heard learned counsel for the
petitioner and learned Standing Counsel
and have perused the record.

12. It is clear from the record that
there is no dispute between the partiers
regarding the facts. Admittedly, the
petitioner has rendered 26 years of
service. In the counter affidavit it is
admitted that in accordance with the
Government Order dated 1.7.1989 a
temporary government servant who retires
after completing 58 /60 years of age or
voluntary retires from service is entitled
for pensionary benefits.

13. The provisions relating to
sanction of pensionary benefits to a
government servant are contained in Civil
Service
Regulation
framed
by
the
Government. The qualifying service and
other provisions pertaining to entitlement
of pensionary benefits have been provided
in Civil Service Regulations. Regulation
361 of the Civil Service Regulation
provides that service of an officer does
414 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
not qualify for pension unless the
employment
is
substantive
and
permanent. Rule 361 is being quoted
below-

361. The service of an officer does not
qualify for pension unless it conforms to
the following three conditions:
First-
The
service
must
be
under
Government.
Second-
The
employment
must
be
substantive and permanent.
Third- The service must be paid by
Government.
These three conditions are fully explained
in the following section."

14. There are four kind of pension,
which have been defined in Regulation
424. The superannuation pension is
granted to an officer in superior or
inferior service entitled or compelled by
Rule, to retire at a particular age
Regulation
465
deals
with
retiring
pension. A retiring pension is granted to a
government servant who is permitted to
retire after completing qualifying service
for 25 years or on attaining the age of 58
years. The retiring pension is also entitled
to government servant, who is required by
government
servant
to
retire
after
attaining the age of 58 years. The age of
retirement of a Government servant is
prescribed under Fundamental Rules, 56.

15. The Standing Counsel has
submitted and laid much emphasis on the
word "nl olZ dh fu;fer lsok" as used in
Government order dated 1.7.1989. The
submission of the learned Standing
Counsel is that the petitioner was a
worker charge employee and has not
completed 10 years of regular service, as
such, he is not entitled for pensionary
benefits. The words ''regular service' has
not been defined in the government order.
From the repelling of the aforesaid
government order, it is clear that words
''ten years regular service' has been
referred to the service rendered and not to
the status of employee, an employee
substantively appointed and permanent
automatically entitled for pension, if he
has rendered a considerable period of
service. The Government Order dated
1.7.1989 does not contemplate the ten
years substantive service. The emphasis is
that the service should be regular and the
Apex Court in the judgment reported in
AIR 1980 Supreme Court 1464 (supra)
has observed as follows-

"To begin with the word "regular" is
derived from the word "regular" which
means ''rule' and its first the legitimate
signification, according to Webster, is
conformable to a rule, or agreeable to an
established rule, law, or principle to a
prescribed mode. In Words and Phrases
(Vol.36-A, P 241) the word 'regular" has
been defined as steady or uniform in
course practice or occurrence, etc. and
implies conformity to a rule, standard, or
pattern. It is further stated in the said
Book that ''regular' means steady or
uniform
in
course,
practice,
or
occurrence not subject to unexplained or
irrational variation. The word "regular"
means in a regular manner, methodically,
in due order. Similarly, Webster's New
World Dictionary defines ''regular' as
''consistent or habitual in action' not
changing uniform, conforming to a
standard or to a generally accepted rule
or mode of conduct."

16. From the perusal of the above
passage of the Apex Court the judgment
which is clear that service of temporary
employee should be in regular manner.
1 All] Ram Pratap Shukla V. State of U.P. and others
415
17. The Government Order dated
1.7.1989 meant ten years government
servant should be regular in nature
meaning thereby that if the temporary
government servant has performed his
duties irregularly i.e. with gaps of years,
his services may not be treated to be
regular. Thus, the contention of the
learned Standing Counsel that the words
''regular service' used in the Government
Order means substantive service or
service rendered by an employee in
regular capacity cannot be accepted. The
petitioner admittedly, rendered 26 years
under the respondent. From the record, it
is clear that the petitioner has continuous
worked
from
20.12.1976
and
was
permitted to retire at the age of
superannuation on 31.6.2002 and from
1976 to 2002, he has continuously
worked. From the foregoing discussions it
is clear that as the petitioner has rendered
considerable period of service, he was
entitled for the benefit of the Government
Order
dated
1.7.1989
and
if
the
interpretation as given by the respondent
is accepted, that the government order
excluded
the
temporary
government
servants, who has retired after 26 years of
service and is not entitled for pension the
said Government Order will become bad
on account of unreasonable and arbitrary
classification put by the respondent.
Furthermore, as observed the fundamental
Rule 56 sub clause (e) mandade grant of
retiring
pension
to
the
temporary
Government Servants. The Government
Order dated 1.7.1989 has to be read
subject to the Fundament Rules 56 (e).
The similar controversy came up for
consideration before this Court in case of
Dr. Hari Shankar Asopa Vs. State of
U.P. and others reported in 1989, ACJ
337, (Supra). After referring to the
fundamental
Rule,
56,
and
various
provisions contained in Civil Service
Regulations, this Court has 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) or Clause (b), or
who is required to retire or 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."

18. In view of the matter the
contention of the respondents that since
the petitioner was not a permanent
confirmed employee and hence not
entitled
for
pension,
is
clearly
misconceived and is rejected.

19. In view of the aforesaid fact, and
after going through the discussions the
writ petition succeeds and is allowed. The
order-dated 31.1.2003 (Annexure 4 to the
writ petition) is hereby quashed. The
respondents are directed to pay the
pensionary benefits to the petitioner
within a period of three months from the
date of production of the certified copy of
this order. It is also made clear that the
petitioner will be entitled for interest at
the rate of 6% from the date of
entitlement till the date of payment.
Petition Allowed.
---------
416 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2006

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 44373 of 1998

Ramesh Chandra Sharma
...Petitioner
Versus
The Punjab National Bank and others

 ...Respondents

Counsel for the Petitioner:
Sri S.N. Pandey
Km. Suman Sirohi

Counsel for the Respondents:
Sri Satish Chaturvedi
Sri K.L. Grover

Bank Officer, Employees (Disciple and
Appeal)
Regulation
Regulation-4readwith circular dated 5.3.99-Dismissal
order petitioner working as managercommitted
certain
financial
irregularities-after serving the charge
sheet disciplinary proceeding concluded
with
punishment
of
dismissal
after
retirement-held-illegal only the Bank can
make recovery of financial loss and to
deprive
from
retirement
benefitdismissal
order
quashed
with
consequential direction.

Held: Para 15

The said circular provides that where the
departmental proceedings are instituted
while a person is in service and the said
proceedings are continuing after he has
reached the age of superannuation, then
none of the penalties as provided under
Regulation
4
of
the
Bank
Officers
Employees
(Discipline
and
Appeal)
Regulations can be imposed at the
conclusion of the proceedings but the
Bank can make recoveries in the event
the officer have been found guilty of
causing monetary loss to the Bank and
also deprive him of retiral benefits to the
permissible extent.
Case law discussed:
AIR 1972 SC-1343
AIR 1973 SC-1403
AIR 1987 SC-229
AIR 1971 SC-2414
2004 (8) SCC-218
AIR 1997 SC-2249
2005 (7) SCC-435
1996 (9) SCC-69
AIR 1987 SC-943
AIR 1988 SC-842
AIR 1989 SC-1843

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing the order dated 13th
November, 1997, by which the Zonal
Manager Central, U.P. Zone, Agra of the
Punjab National Bank (hereinafter called
the ''Bank'), imposed the major penalty of
dismissal from service of the Bank and
the appellate order dated 21.10.1998 by
which the appeal filed by the petitioner
against the aforesaid order of dismissal
was dismissed by the Appellate Authority.
A further relief has been sought that a
direction
should
be
issued
to
the
respondents
to
pay
the
post-retiral
benefits to the petitioner.

2. The petitioner, who was working
as a Manager in the Bank, was served
with a charge sheet dated 06.03.1996 for
committing certain lapses. The petitioner
did not submit any statement of defence
even though the time was extended on his
request several times. The disciplinary
proceedings were initiated against the
petitioner vide order dated 23rd April,
1996 and the Inquiry Officer was
appointed. The Inquiry Officer found the
charges proved against the petitioner. The
copy of the enquiry report was thereafter