# Rana Pratap Singh Chauhan v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 353
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-02
- **Case number:** Writ-A No. 12434 of 2017
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rana-pratap-singh-chauhan-v-state-of-u-p-ors-49141
- **Pages:** 5

## Headnote

A. Service Law - UP Qualifying Service For
Pension and Validation Act, 2021
-
Pension - Appointment on the substantive
vacancy - Period of adhoc service, how far
relevant to fix the pension - Held, once
the appointment is made against the
substantive vacancy following the rules,
service rendered in the adhoc capacity
must have been considered while fixing
the
pensionary
benefits
-
Non
consideration of adhoc services is bad and
contrary to settle proposition of law. (Para
13)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

1 All. Rana Pratap Singh Chauhan Vs. State of U.P. & Ors.
353
as such the present bunch of writ petitions
are DISPOSED OF in the said terms. It is
made clear that this court has not expressed
its view on any individual matters, which
nonetheless shall be guided on their own
merits and may also be entitled for the
benefits, if any, in case accrued to them as
per the judgment in Sanjay Singh's case
and the subsequent compliances made by
the State as aforesaid. There shall be no
order as to costs.
----------
(2023) 1 ILRA 353
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 12434 of 2017

Rana Pratap Singh Chauhan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Piyush Shrivastava, Rajeev Shukla, Sanjeev
Kumar Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Qualifying Service For
Pension and Validation Act, 2021
-
Pension - Appointment on the substantive
vacancy - Period of adhoc service, how far
relevant to fix the pension - Held, once
the appointment is made against the
substantive vacancy following the rules,
service rendered in the adhoc capacity
must have been considered while fixing
the
pensionary
benefits
-
Non
consideration of adhoc services is bad and
contrary to settle proposition of law. (Para
13)
Writ petition allowed. (E-1)
List of Cases cited:

1. Service Single No. 5433 of 2013; Shiv
Shankar Vajpayee Vs St. of U.P. decided on
21.11.2014
2. Writ A No. 35301 of 2017; Bhanu Pratap
Singh Vs St. of U.P. & ors. decided on
06.10.2020
3. Appeal No. 6798 of 2019; Prem Singh Vs St.
of U.P.& ors.
4. Special Appeal No. 152 of 2021; St. of U.P.
through Secretary, Lok Niram Vibhag & ors. Vs
Bhanu Pratap decided on 14.7.2021
5. Writ A No. 15529 of 2018; Dr. Ram Sharan
Tripathi Vs St. of U.P. & anr. decided on
15.09.2021
6. Writ A No. 6583 of 2022; Dr. Anil Kumar
Singh Vs St. of U.P. & ors. decided on
30.09.2022
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the State-respondents.

2. Present petition has been filed with
the following prayer:-

(i) Issue a writ, order or directing in
the nature of mandamus commanding the
opposite parties to calculate pension and
other post retiral benefits from the date of
his appointment as Ad-hoc employee i.e.
from 13.7.1978 and give the pension on the
basis of recalucated period of service and
furnish the arrears accumulated till date
alongwith time scale prescribed by the
Government of U.P."

3. At the very outset, learned counsel
for the petitioner submitted that he is not
pressing his prayer so far relate to grant of
time scale. He further requested that he
may be permitted to pursue his remedy
354 INDIAN LAW REPORTS ALLAHABAD SERIES
before the authorities for which learned
standing counsel has no objection.

4. Learned counsel for the petitioner
submitted that petitioner was initially
appointed on 3.7.1978 on the post of Junior
Engineer in Irrigation Department on Adhoc basis. His services were regularized on
1.4.1985. After retirement, while fixing the
pension, his adhoc services has not been
taken into consideration. He next submitted
that alongwith petitioner by the same
appointment letter dated 3.7.1978, one Shiv
Shankar Vajpayee was also appointed on
the said post and his services has also not
been considered while fixing the pension.
Thereafter, he has approached this Court by
filing Service Single No. 5433 of 2013
(Shiv Shankar Vajpayee vs. State of U.P.),
which was allowed vide order dated
21.11.2014 directing the respondents to
consider the services of petitioner on adhoc
capacity while fixing the pension. In
compliance of the order dated 21.11.2014,
adhoc services of Shiv Shankar Vaypayee
was considered and acccordingly, pension
was fixed. He further submitted that State
Government has published Ordinance on
21.10.2020 named as Uttar Pradesh
Qualifying Service For Pension and
Validation Ordinance, 2020 (hereinafter
referred to as Ordinance, 2020). The said
Ordinance was enacted by U.P. Act No.1 of
2021 on 5.3.2021 as the Uttar Pradesh
Qualifying Service For Pension and
Validation Act, 2021 (hereinafter referred
to as Act, 2021). He also submitted that the
Ordinance, 2020 as well as Act, 2021 is
under the definition of qualifying service,
but the same are not having the provision
for adhoc services.

5. After publication of Ordinance,
2020, one Bhanu Pratap Singh has
approached this Court by filing Writ-A No.
35301 of 2017 (Bhanu Pratap Singh vs.
State of U.P. & others), which was allowed
vide order dated 6.10.2020 directing the
respondent to consider the Ad-hoc services
of petitioner in light of judgment of Apex
Court in the matter of Prem Singh Vs.
State of U.P. and others passed in Appeal
No. 6798 of 2019. Against the said order,
State Government has preferred Special
Appeal No. 152 of 2021 (State of U.P.
Through Secretary, Lok Niram Vibhag
and 3 others vs. Bhanu Pratap) and
Appellate Court considering the Ordinance,
2020 & Act, 2021, has dismissed the said
appeal
vide
order
dated
14.7.2021
affirming the order of learned Single Judge
dated 6.10.2020 directing the respondents
to consider the services of petitioner as
work charge employee while calculating
the pension.

6. Against the very same order, State
Government has also preferred SLP No.
10381 of 2022, which was also dismissed
vide order dated 11.7.2022. Again, this
issue came before this Court in the matter
Dr. Ram Sharan Tripathi vs. State of U.P.
and Another in Writ-A No. 15529 of 2018
and Court after considering the all
provisions and judgments has held that
while calculating the qualifying services for
the purpose of pension, Ad-hoc services
shall also be taken into consideration.

7. Learned counsel for the petitioner
further submitted that once again this issue
was raised before this Court in the matter
of Dr. Anil Kumar Singh vs. State of U.P.
thru. Addl. Chief Secy Ayush Anubhag-1
Civil Sectt. Lko. And 4 others in Writ- A
No. 6583 of 2022 and this Court after
relying upon the judgment of Dr. Ram
Charan Tripathi (supra) and Act, 2021,
has allowed the petition. He further
submitted that his appointment was made
1 All. Rana Pratap Singh Chauhan Vs. State of U.P. & Ors.
355
against substantive vacancy and also in
accordance with Rules. He firmly and lastly
submitted that controversy so involved
about not having provision of Ad-hoc
service as qualifying service in Ordinance,
2020 or Act, 2021 has already been decided
by the Apex Court and also followed by
this Court in different judgments, therefore,
petitioner is also entitled for the same relief
and petition may be allowed.

8. Learned Standing Counsel though
opposed the submission, but could not
dispute the controversy settled by the Apex
Court as well as this Court.

9. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
judgments as well as record. There is no
dispute on the fact that while fixing the
pension, Ad-hoc services of petitioner has
not been considered. Prior to publication of
Ordinance, 2020 & Act, 2021 in the
similarly situated matter of Shiv Shankar
Vaypayee (supra), Court has taken clear cut
view that Adhoc services shall be taken into
consideration. Relevant paragraph of the
said judgment is quoted hereinbelow:-

"21. On a scrutiny of the facts of the
instant case, what transpires is that it is not
in
dispute
that
ever
since
initial
appointment on ad hoc basis, the petitioner
held a substantive office of the post of
Junior
Engineer
in
the
Irrigation
Department in its permanent establishment.
Thus, I am of the considered opinion that
except for the period, the petitioner
remained on deputation in Betwa River
Board, under the Ministry of Agriculture &
Irrigation, Government of India i.e. w.e.f.
22.07.1978 till 31.07.1981, the services
rendered by him in ad hoc capacity before
regularization of his service by means of
order dated 26.02.1998 ought to have been
taken into account for the purpose of
counting qualifying service for reckoning
the pension."

10. This fact is also undisputed that
State
Government
has
published
Ordinance,
2020
on
21.10.2020
and
considering the same, this Court in the
matter of Bhanu Pratap Singh (supra) has
directed the respondents to consider the
services of petitioner as work charge
employee while calculating the pension in
light of judgment of Apex Court in the
matter of Prem Singh (supra). Relevant
paragraph of the said judgment is quoted
hereinbelow:-

"Sofar as the aforesaid averment of the
counter affidavit is concerned, the Apex
Court has settled the controversy in Appeal
No. 6798 of 2019 (Prem Singh vs. State of
U.P. and others) & connected petitions
wherein the Apex Court has held that the
services rendered as work-charge employee
are liable to counted for the purposes of
counting qualifying service for pension.

In this view of the fact, the plea taken by
the respondents that the services rendered by
the petitioner as work charge employee are
not liable to be counted for the pension is
misconceived and not sustainable.

Thus, for the reasons given above, the
writ petition is allowed and mandamus is
issued upon the respondent No. 3-Engineer in
Chief, Department of Irrigation Government
of U.P. Lucknow to pay all the pensionary
benefits to the petitioner in terms of the
judgment of Apex Court in the case of Prem
Singh (supra) within a period of four months
from the date of filing of copy of the order."

11. Thereafter, Appellate Court in the
case of State of U.P. Through Secretary,
Lok Niram Vibhag (supra), has considered
356 INDIAN LAW REPORTS ALLAHABAD SERIES
the provisions of Ordinance, 2020 & Act,
2021 and dismissed the appeal vide order
dated 14.7.2021 affirming the order of
learned Single Judge dated 6.10.2020 with
direction to respondents to consider the
service of petitioner as work charge
employee while calculating the pension.
Relevant paragraphs of the aforesaid
judgment are quoted hereinbelow:-

"It is informed that this Ordinance has
been enacted by U.P. Act No.1 of 2021 on
05.03.2021
as
the
Uttar
Pradesh
Qualifying
Service
for
Pension
and
Validation Act, 2021.
It is clear from the
perusal of Section 2 of the Act of 2021 that
it would have effect notwithstanding
anything contained in U.P. Retirement
Benefit Rules, 1961 or Regulation 361 and
370 of the Civil Service Regulation. Careful
reading thereof, however, reveals that
"Qualifying Service" has been defined to
mean the services rendered by an officer
appointed on a temporary or permanent
post in accordance with the provisions of
the service rules prescribed by the
Government for the post.

Admittedly,
the
petitioner
was
appointed on 10.05.1989 as work charge
employee at Azamgarh. His services were
however regularised on 15.6.2011. The
regularisation of service was against the
permanent post and it is not that his initial
appointment was not in accordance to
service Rules.

In light of the aforesaid, period spent
in service may be on temporary basis while
working as a work charge employee,
proceeded with regularisation, benefit of
past services cannot be denied.

The impugned order when tested on
the anvil of above analysis cannot be
faulted with.

In view whereof no indulgence is
caused.

Consequently, appeal fails and is
dismissed. No costs."

12. Apex Court has also dismissed the
SLP No. 10381 of 2022 vide order dated
11.7.2022
preferred
by
the
State
Government against the appellate order.

13. This issue was again came before
this Court in the matter of Dr. Ram Sharan
Tripathi (supra), and this Court has held
that while fixing the pension, adhoc
services shall be considered. Paragraph nos.
8 to 10 of the aforesaid judgment are
quoted hereinbelow;-

"8. In the facts of the present case, the
admitted position, inter se parties is, (i)
petitioner came to be appointed against
substantive vacancy; (ii) the salary was
borne by Government; (iii) petitioner was
entitled to all benefits as applicable to a
State employee.
9.
The
expression
"qualifying service", as defined under Act,
2021, would mean service rendered by an
officer appointed on a temporary or
permanent post in accordance with the
provisions of service rules prescribed by
the Government for the post. In the present
case, the Government, having regard to the
large number of vacancies existing in State
of U.P. of Ayurvedic and Unani Medical
Officer, took a conscious decision to curtail
the long procedure of appointment through
the Public Service Commission by directly
issuing advertisement inviting applications
from eligible candidates for the post and on
the recommendation of the selection
committee, candidates were selected. The
appointment
letter
were
issued
after
obtaining approval from Hon'ble Governor.
It cannot be said in the circumstances that
the rules applicable for appointment were
not followed. The rules, as were made
applicable for appointment on ad-hoc basis
1 All. Subhash Chand Vs. State of U.P. & Ors.
357
was duly complied and followed and
petitioner, admittedly, came to be appointed
against substantive vacancy, thereafter, his
service came to be regularized under Rule,
1979. In the circumstances, it cannot be
said that appointment of the petitioner was
against the service rules prescribed by
Government. Under the pension rules a
temporary government servant appointed
against a substantive post is entitled to
pension. The nomenclature ''ad-hoc' would
have no bearing to non-suit the petitioner
towards
pension.
The
nature
of
appointment is temporary appointment
against a substantive post after following
the procedure laid down to appoint such
ad-hoc/temporary Medical Officer. In the
opinion of the Court, the petitioner's
service would fall within the expression
"qualifying service" as petitioner came to
be appointed against substantive post by
following procedure prescribed by the State
Government. It is not in dispute that
appointing authority of the petitioner is the
Hon'ble Governor.

10. In the result, the writ petition is
allowed.
Impugned
order
dated
04.01.2018, is hereby set aside and
quashed. It is held that the service
rendered by petitioner on ad-hoc basis
would count towards "qualifying service",
consequently, petitioner is held entitled for
pension. The first respondent is directed to
compute pension and other post retiral
dues admissible to the petitioner by
adding the period of ad-hoc service
rendered by him. Petitioner shall be
entitled to pension on month to month
basis with effect from the date of his
superannuation. The arrears of pension
would be computed and released within
the period of three months, along with
simple interest at the rate of 6% per
annum from the date of retirement till
actual payment."

14. In the present case, it is
undisputed that appointment of petitioner
was made against substantive vacancy and
in accordance with rules. Once the
appointment
is
made
against
the
substantive vacancy following the rules,
service rendered in the adhoc capacity must
have been considered while fixing the
pensionary benefits. The same preposition
of law is also laid down by this Court as
well as Apex Court, therefore, non
consideration of adhoc services is bad and
contrary to settle proposition of law.

15. Accordingly, the writ petition is
allowed. A writ of mandamus be issued to
respondent nos. 1 & 2 to re-fix the pension
of petitioner considering the services of
petitioner rendered in adhoc capacity with
effect from 3.7.1978 to 1.4.1985 and also
pay arrears of pension alongwith 6 %
interest from due date to the date of actual
payment.
----------
(2023) 1 ILRA 357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 16730 of 2022

Subhash Chand ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Surendra Kumar Chaubey, Sri Marjeet Mishra

Counsel for the Respondents:
C.S.C., Sri Sanjeev Singh, Sri Sumit Suri

A. Service Law - UP Recruitment to
Services (Determination of Date of Birth)
Rules, 1974 - Compulsory retirement from