# Ramdhani & Anr v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 132
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-13
- **Case number:** Writ-A No. 39283 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramdhani-anr-v-state-of-u-p-ors-45921
- **Pages:** 7

## Headnote

C.S.C.,
Sri
K.K.
Roy,
Sri
Rajendra
Srivastava, Sri Rakesh Kumar Srivastava,
Sri Shyam Krishna Gupta

A. Service Law -U.P. Basic Education Act,
1972
-
Civil
Service
Regulation:
Regulation 368- Regulations framed under
U.P. Basic Education Act, 1972- Regulation
44- Government Order No.3-1152/Vas915-86 dated 01.07.1989- Government
Orders dated 14.06.1978, 30.06.1996,
17.06.1996-
Pension
-Employee
appointed on fixed pay/salary -Difference
in the nature of appointment of temporary
employee vis-à-vis any employee who is
appointed on fixed salary - a temporary
appointment can be made against a permanent
or temporary post, whereas for the appointment
on fixed pay there is no requirement of a post.
(Para 11)

Temporary or substantive services rendered by
work charged employees will qualify for pension
when they are given monthly salary on regular
pay scale and are also allowed to cross
efficiency bar. In other words, when there is no
qualitative difference between them and other
employees of regular establishment. (Para 14)

The petitioners in the present case were
appointed
on
fixed
monthly
salary.
The
appointments were neither on substantive posts
nor were given regular pay scales. Therefore, it
was held that the services rendered by the
petitioners on Fixed Pay as Class IV employee
will not be treated as qualifying service. (Para 6,
16)

Writ Petition dismissed. (E-4)

Precedent followed:

## Text

132 INDIAN LAW REPORTS ALLAHABAD SERIES
employees
of
Government
or
its
instrumentalities will mar the chances of
promotion of their juniors and prove to be
an undue encouragement to the other
employees to make similar applications at
the fag end of their service careers with
the sole object of preventing their
retirements when due. Extraordinary
nature of the jurisdiction vested in the
High Courts under Article 226 of the
Constitution, in our considered view, is
not
meant
to
make
employees
of
Government or its instrumentalities to
continue in service beyond the period of
their entitlement according to dates of
birth
accepted
by
their
employers,
placing reliance on the so-called newlyfound material. The fact that an employee
of Government or its instrumentality who
will be in service for over decades, with
no objection whatsoever raised as to his
date of birth accepted by the employer as
correct, when all of a sudden comes
forward towards the fag end of his
service career with a writ application
before the High Court seeking correction
of his date of birth in his Service Record,
the very conduct of non-raising of an
objection in the matter by the employee,
in our view, should be a sufficient reason
for the High Court, not to entertain such
applications on grounds of acquiescence,
undue delay and laches. Moreover,
discretionary jurisdiction of the High
Court can never be said to have been
reasonably and judicially exercised if it
entertains such writ application, for no
employee, who had grievance as to his
date of birth in his `Service and Leave
Record' could have genuinely waited till
the fag end of his service career to get it
corrected by availing of the extraordinary
jurisdiction of a High Court. Therefore,
we have no hesitation, in holding, that
ordinarily High Courts should not, in
exercise
of
its
discretionary
writ
jurisdiction,
entertain
a
writ
application/petition filed by an employee
of the Government or its instrumentality,
towards the fag end-of his service,
seeking correction of his date of birth
entered in his Service and Leave Record'
or Service Register with the avowed
object of continuing in service beyond the
normal period of his retirement."

 (emphasis supplied)

9.

Turning
to
the
facts
and
circumstances
of
the
case
at
hand,
admittedly the petitioner entered in the
service of Nigam in the year 1989 and the
date of birth entered in the service record
was on the basis of High School certificate
submitted by him. It is not the case of the
petitioner that his service book was never
shown to him or that the petitioner did not
know about the date of birth entered into
his service record.

10. Even though the petitioner has put
in 28 years of service, before approaching
this Court, the petitioner has neither
disputed the correctness of his serviced
record nor has he been able to state any
cogent reason for the change in the date of
birth entered in his service record.

11. In view of the consistent legal
position, the relief prayed for cannot be
granted. The petition is devoid of merit and
is accordingly dismissed.
----------
(2020)09ILR A132
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
9 All. Ramdhani & Anr. Vs. State of U.P. & Ors.
133
Writ-A No. 39283 of 2004

Ramdhani & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri S.A. Lari, Sri Digvijay Tiwari

Counsel for the Respondent:
C.S.C.,
Sri
K.K.
Roy,
Sri
Rajendra
Srivastava, Sri Rakesh Kumar Srivastava,
Sri Shyam Krishna Gupta

A. Service Law -U.P. Basic Education Act,
1972
-
Civil
Service
Regulation:
Regulation 368- Regulations framed under
U.P. Basic Education Act, 1972- Regulation
44- Government Order No.3-1152/Vas915-86 dated 01.07.1989- Government
Orders dated 14.06.1978, 30.06.1996,
17.06.1996-
Pension
-Employee
appointed on fixed pay/salary -Difference
in the nature of appointment of temporary
employee vis-à-vis any employee who is
appointed on fixed salary - a temporary
appointment can be made against a permanent
or temporary post, whereas for the appointment
on fixed pay there is no requirement of a post.
(Para 11)

Temporary or substantive services rendered by
work charged employees will qualify for pension
when they are given monthly salary on regular
pay scale and are also allowed to cross
efficiency bar. In other words, when there is no
qualitative difference between them and other
employees of regular establishment. (Para 14)

The petitioners in the present case were
appointed
on
fixed
monthly
salary.
The
appointments were neither on substantive posts
nor were given regular pay scales. Therefore, it
was held that the services rendered by the
petitioners on Fixed Pay as Class IV employee
will not be treated as qualifying service. (Para 6,
16)

Writ Petition dismissed. (E-4)

Precedent followed:
1. St. of U.P. & ors. Vs Gaya Ram, 2009 (2) ESC
1145 (All.) (Para 11, 13)

2. Basic Shikhsha Parishad . & ors. Vs Ram
Awadh & ors., Special Appeal No 536 of 2011,
decided on 17.01.2013 (Para 13)

3. District Basic Education Officer . & ors. Vs
Ram Awadh Yadav and another, Special Appeal
No. 1462 of 2011, decided on 02.09.2015 (Para
13)

Precedent distinguished:

1. Prem Singh Vs St. of U.P. & ors., Civil Appeal
No. 6798 of 2019, decided on 02.09.2019 (Para
14)

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Digvijay Tiwari, learned
counsel for learned counsel for petitioners,
learned
Standing
Counsel
for
Staterespondent-1 and Sri Shyam Krishna
Gupta, learned counsel for respondent-2.

2. This writ petition under Article 226
of Constitution of India has come up before
this Court at the instance of two petitioners
namely, Ramdhani son of Shri Mahesh and
Mallu son of Ghaur, who have prayed for
issue of a writ of mandamus commanding
respondents to pay pension to petitioners
from the date of their retirement and
continue to pay the same, month to month,
as and when it falls due. Petitioners have
also prayed for a writ of mandamus
commanding respondents to pay Life
Insurance Policy amount of petitioner-2
with interest.

3. Facts in brief, giving rise to present
writ petition, are, that "Junior High School"
of Avra Chauro, Area Baitalpur, DistrictDeoria is a recognized "Senior Primary
School" governed by the provisions of U. P.
Basic Education Act, 1972 (hereinafter
134 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to as "Act, 1972") and Rules
framed
thereunder.
Petitioner-1
was
appointed as Class IV employee on
01.10.1972 and petitioner-2, similarly, was
appointed as Class IV employee on
01.01.1957. After completing 31 and 47
years of service, petitioner-1 attained age of
superannuation and retired on 31.03.2003
while petitioner-2 retired on 03.08.2001.
After retirement, petitioner-2 was paid a
sum of Rs.4538/- towards Insurance
amount on 29.10.2003.

4. Petitioner-2 was paid fixed salary
from
01.01.1957
to
30.11.1997
and
thereafter the prescribed pay scale of
Rs.750-940/- with effect from 01.12.1997.
Petitioner-1 was given fixed pay up to
31.10.1997 and thereafter he was placed in
prescribed pay scale w.e.f. 01.11.1997.

5. Since, pensionary benefits were not
given, petitioners made representation
dated 01.07.2003. Seeking clarification,
whether pension is payable to petitioner-2,
a letter was sent by District Basic
Education Officer, Deoria (hereinafter
referred to as "DBEO") to Deputy Director,
Secretariat
Training
and
Management
Institute, Gorakhpur Branch, Gorakhpur
informing that petitioner-2 was appointed
on 01.01.1957 on Class IV post (Peon) and
paid fixed pay of Rs.24/- per month w.e.f.
01.01.1957, Rs.34/- per month w.e.f.
01.01.1976, Rs.165/- per month w.e.f.
01.04.1979, Rs.305/- per month w.e.f.
01.11.1982, Rs.750/- per month w.e.f.
01.01.1986 and Rs.2550/- per month w.e.f.
01.01.1996, besides dearness allowance.
Petitioner-2 was placed in regular pay scale
vide order dated 01.12.1997 and his pay
was fixed as Rs.2550/- per month. He
retired on 30.08.2001. He was declared
permanent w.e.f. 01.12.1998. As per
Regulation 368 of Civil Service Regulation
(hereinafter referred to as "CSR"), no
pension is payable unless government
servant is permanent. In the present case,
petitioner-2
became
permanent
on
01.12.1998 and has not completed 10 years
of service till date of his retirement, as a
confirmed
employee.
However,
vide
Government Order No.3-1152/Vas-915-86
dated 01.07.1989 it has been provided that
those who have completed 10 years of
regular service, shall be paid pension as
payable to permanent employees. In these
circumstances,
DBEO,
Deoria
sought
clarification whether pension is payable to
petitioner-2 or not.

6. Contesting writ petition, counter
affidavit has been filed on behalf of
respondents sworn by Sri Awadhesh
Narayan, Basic Shiksha Adhikari, Deoria.
It is said that petitioner-1 was appointed in
Primary School maintained by Basic
Education Board (hereinafter referred to as
"Board") on 01.10.1972 on fixed salary of
Rs.20/- per month. In District-Deoria there
were 100 sanctioned posts of Peon in
Junior High School, run and controlled by
Board. Government orders provided that
appointment of Peon on fixed salary cannot
be made on sanctioned posts in case
vacancies are available. Petitioner-1 was
appointed
on
sanctioned
post
after
permanent vacancy occurred on 01.01.1998
and on completion of 60 years of age
retired on 31.03.2003. Similarly, petitioner2 was appointed on fixed salary of Rs.20/-
per month on 01.01.1957 and in 1997 he
was given appointment against sanctioned
post. He retired after completion of 60
years of age in 2001. In respect of enquiry
made, it is said that State Government has
provided that those Class IV employees
who were appointed on fixed pay are not
regular employees hence not entitled to
pensionary benefits. Finance and Accounts
9 All. Ramdhani & Anr. Vs. State of U.P. & Ors.
135
Officer, Basic Shiksha Parishad, Deoria by
letter dated 20.07.2004 informed that since
petitioners have not completed 10 years of
service on substantive vacancies in regular
pay scale, hence, not entitled to pension.
There are 100 sanctioned posts of Peon in
District-Deoria whereagainst appointments
could have been given on fixed salary on
vacant substantive posts. However, pension
is payable after completion of 10 years of
regular service.

7. In rejoinder affidavit filed by
petitioner, facts already stated are virtually
reiterated and it is said that petitioners
having worked continuously, followed by
substantive
appointments,
their
entire
service is liable to be computed for pension
and otherwise view taken by respondents is
incorrect.

8. Supplementary affidavit has also
been filed bringing on record Government
Orders (hereinafter referred to as 'G.O.')
dated
14.06.1978,
30.06.1996
and
17.06.1996.

9. Learned Standing Counsel said that
since only G.O.'s have been placed on
record, no supplementary counter affidavit
would be necessary. These are matters of
record and Court may examine the same.

10.

The
only
issue
up
for
consideration
in
this
writ
petition,
therefore, is "Whether service rendered by
petitioners on Fixed Pay is liable to be
computed as qualifying service for the
purpose of pension."

11. This issue I find has been
specifically considered by Division Bench
consisting of Hon'ble Ashok Bhushan, J.
(as His Lordship then was) and Hon'ble
Arun Tandon, J., in State of U. P. and
others vs. Gaya Ram, 2009 (2) ESC 1145
(All). Therein Gaya Ram was appointed as
Class
IV
employee
in
Junior
High
School/Senior Primary School on Fixed
Pay. He was brought in regular pay scale of
Rs.750-940 by order dated 30.111995.
After attaining age of superannuation on
31.12.2004 i.e. on the date of retirement, he
had not completed 10 years of regular
service in regular pay scale. Finance and
Account
Officer,
Basic
Education,
Sonebhadra, vide letter dated 02.06.2005,
informed Basic Shiksha Adhikari that
service rendered on Fixed Pay, prior to
appointment on regular pay scale, will not
be treated as qualifying service, hence,
Gaya Ram was not entitled for pension.
Gaya Ram filed a writ petition claiming
that his entire service be counted as
qualifying service. Learned Single Judge
returned a finding in favour of Gaya Ram,
hence, State came in intra Court appeal.
Division Bench held that as per Rules a
Class IV employee working under the
control of Basic Shiksha Parishad having
rendered 10 years qualifying service, is
eligible for grant of pension. This fact was
not disputed that a Class IV employee of
Junior High School who has put in 10 years
of qualifying service was entitled for
pension.
Under
Regulation
44
of
Regulations framed under U. P. Basic
Education Act, 1972 (hereinafter referred to
as "U.P. Act, 1972"), temporary and
officiating services, if on the same post or
another post by incumbent, can be added as
qualifying service. However, Court held
that Regulation 44 was not applicable in the
case, since, services of Gaya Ram as Class
IV employee on Fixed Pay could not be
termed as temporary or officiating service
but it was an employment on fixed
emoluments. Court explained difference in
the nature of appointment of temporary
employee vis-a-vis any employee who is
136 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed on fixed salary, and said as under
:

"15. There is a difference in the
nature of the appointment of temporary
employee vis-a-vis an employee who is
appointed on fixed salary. A temporary
appointment can be made against a
permanent or temporary post, whereas for
the appointment on fixed pay there is no
requirement of a post. Thus, there is a
major
difference
in
the
nature
of
appointment of two classes of employees.
Thus, the judgment in the case of Hans Raj
Pandey (supra), insofar as it holds that the
period of service rendered on fixed pay,
prior to regularisation, shall also be added
in his qualifying service, cannot be upheld.

16. Learned Counsel for the
Respondent submits that in the servicebook
of
the
Petitioner
the
word
"temporary" has been mentioned, he was a
temporary employee. Petitioner has also
produced photo copy of the service-book,
which we have perused. From the perusal
of the service-book it is clear that the
Respondent was initially appointed on fixed
emolument of Rs.165 per month and the
said fixed emolument was subsequently
increased w.e.f. 1.1.1986 to Rs.750 which
emolument
was
paid
till
he
was
regularised. While fixing the scale w.e.f.
1.1.1986 it has been mentioned that his
salary was Rs.750. In the order dated
2.6.2005 the Finance and Account Officer
has also noted that the Respondent, prior to
regularisation, was working on fixed pay of
Rs.750."

(emphasis added)

12. In the present case, it is not in
dispute that petitioners were initially
appointed as Class IV employee on fixed
pay.

13. Thus the above law squarely
applied to this case. Above Division Bench
in State of U.P. vs. Gaya Ram (supra) has
been followed in Special Appeal No.536 of
2011, Basic Shiksha Parishad and others
vs. Ram Awadh and others decided on
17.01.2013 and by another Division Bench
in Special Appeal No.1462 of 2011,
District Basic Education Officer and
others vs. Ram Awadh Yadav and
another, decided on 02.09.2015.

14. Learned counsel for appellant,
however, placed reliance on Supreme
Court's recent judgment, in Prem Singh vs.
State of U.P. and others, Civil Appeal
No.6798 of 2019, decided on 02.09.2019,
wherein a Three Judges Bench of Supreme
Court has held that even service rendered in
Work charge establishment will qualify for
pension, but I find that there was no issue
that
employees
in
Work
Charge
establishment were appointed on fixed pay.
When they were substantively appointed,
they were given regular pay scale. On the
contrary, para 22 of the judgment shows
that Advocate General appearing for the
State of U. P. himself contended that
employees engaged in work charge were
temporary and, therefore, it is clear that
they were not employees who were
appointed initially on fixed pay and
thereafter they were given appointment in
regular pay scale. The only issue was
whether temporary or substantive service
rendered in Work Charge will qualify for
pension or not and that has been answered
by Supreme Court holding that services
rendered by work charged employee will
qualify
for
pension.
Work
charge
employees before Supreme Court were
given monthly salary and they were also
allowed to cross efficiency bar. Court,
therefore, found no qualitative difference
between them and other employees of
9 All. Ramdhani & Anr. Vs. State of U.P. & Ors.
137
regular establishment. Observations made
in
paragraph
29
of
judgment
are
reproduced hereinunder :

".......The appointment of the
work-charged employee in question had
been made on monthly salary and they were
required to cross the efficiency bar also.
How
their
services
are
qualitatively
different from regular employees? No
material indicating qualitative difference
has been pointed out except making bald
statement. The appointment was not made
for a particular project which is the basic
concept of the work charged employees.
Rather, the very concept of work-charged
employment has been misused by offering
the employment on exploitative terms for
the work which is regular and perennial in
nature. The work-charged employees had
been subjected to transfer from one place to
another like regular employees as apparent
from documents placed on record. In
Narain Dutt Sharma & Ors. v. State of
Uttar Pradesh & Ors. (CA No.______2019
@ SLP (C) No.5775 of 2018) the appellants
were allowed to cross efficiency bar, after
''8' years of continuous service, even during
the period of work-charged services.
Narain Dutt Sharma, the appellant, was
appointed as a work-charged employee as
Gej Mapak w.e.f 15.9.1978. Payment used
to be made monthly but the appointment
was made in the pay scale of Rs.200-320.
Initially, he was appointed in the year
1978 on a fixed monthly salary of Rs.205
per month. They were allowed to cross
efficiency bar also as the benefit of pay
scale was granted to them during the
period they served as work-charged
employees they served for three to four
decades and later on services have been
regularized time to time by different
orders. However, the services of some of
the appellants in few petitions/ appeals
have not been regularized even though they
had served for several decades and
ultimately
reached
the
age
of
superannuation.

(emphasis added)

15. Reasons for considering work
charge services as qualifying service has
been given in paragraphs 32, 33 and 34,
which read as under :

"32. The question arises whether
the imposition of rider that such service to
be counted has to be rendered in-between
two spells of temporary or temporary and
permanent service is legal and proper. We
find that once regularization had been
made on vacant posts, though the employee
had not served prior to that on temporary
basis,
considering
the
nature
of
appointment, though it was not a regular
appointment it was made on monthly salary
and thereafter in the pay scale of workcharged establishment the efficiency bar
was permitted to be crossed. It would be
highly
discriminatory
and
irrational
because of the rider contained in Note to
Rule 3(8) of 1961 Rules, not to count such
service particularly, when it can be
counted, in case such service is sandwiched
between two temporary or in-between
temporary and permanent services. There
is no rhyme or reason not to count the
service of work-charged period in case it
has been rendered before regularisation. In
our
opinion,
an
impermissible
classification has been made under Rule
3(8).
It
would
be
highly
unjust,
impermissible and irrational to deprive
such employees benefit of the qualifying
service. Service of work-charged period
remains the same for all the employees,
once it is to be counted for one class, it has
to
be
counted
for
all
to
prevent
138 INDIAN LAW REPORTS ALLAHABAD SERIES
discrimination. The classification cannot be
done on the irrational basis and when
respondents are themselves counting period
spent in such service, it would be highly
discriminatory not to count the service on
the basis of flimsy classification. The rider
put on that work-charged service should
have preceded by temporary capacity is
discriminatory and irrational and creates
an impermissible classification.

33. As it would be unjust, illegal
and impermissible to make aforesaid
classification to make the Rule 3(8) valid
and non discriminatory, we have to read
down the provisions of Rule 3(8) and hold
that services rendered even prior to
regularisation in the capacity of workcharged employees, contingency paid fund
employees
or
non-
pensionable
establishment
shall
also
be
counted
towards the qualifying service even if such
service is not preceded by temporary or
regular appointment in a pensionable
establishment.

34. In view of the note appended
to Rule 3(8), which we have read down, the
provision contained in Regulation 370 of
the Civil Services Regulations has to be
struck down as also the instructions
contained in Para 669 of the Financial
Handbook."

16. Therefore, bound by Division
Bench judgments of this Court, noticed
above, I have no option but to hold that
services rendered by petitioners on Fixed
Pay as Class IV employee will not be
treated as qualifying service, hence, relief
prayed by petitioners, cannot be granted.

17. Writ petition lacks merit. It is
dismissed accordingly. Interim order, if
any, stands vacated.
----------
(2020)09ILR A138
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2018

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE JAYANT BANERJI, J.

Writ A No. 53897 of 2017

Dashrath Singh Yadav ...Petitioner
Versus
The
Central
Administrative
Tribunal,
Allahabad & Ors. ...Respondents

Counsel for the Petitioner:
In Person

Counsel for the Respondents:
Sri Devendra Pratap Singh

A. Service Law - Departmental Enquiry -
Penalty - P & T Manual Volume - III: Rule
129; Central Civil Services (Classification,
Control
and
Appeal)
Rules,
1965;
Education Code: Article 80.

Jurisdiction of Tribunal - Tribunal cannot
sit in review over the previous order of the
Tribunal while deciding a fresh Original
Application - Tribunal in a previous order
dated 28.08.2009 had quashed and set aside
order dated 22.4.1991 (penalty order of
disciplinary authority, by which the pay was
reduced by four stages) as well as the appellate
order dated 18.01.1996 and remitted the matter
to the appellate authority to decide the appeal.
Appellate authority rejected the appeal and
upheld the penalty order vide order dated
26.11.2009. (Para 6-8)

In the order impugned dated 13.09.2017, the
Tribunal held that the previous Tribunal while
passing the order dated 28.08.2009 had never
questioned
the
order
of
the
disciplinary
authority dated 22.04.1991 and was very clear
in its mind that it was only quashing the
appellate order and had only remitted the
matter back to the appellate authority to
reconsider the appeal of the applicant. The