# Saghirul Hasan & Ors v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-11
- **Case number:** Service Single No. 29948 of 2018
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saghirul-hasan-ors-v-state-of-u-p-ors-47370
- **Pages:** 7

## Headnote

A. Service Law - Qualifying service for the
grant of pension, gratuity and other retiral
benefits - While calculating the qualifying
service, ad hoc service rendered shall be
taken into consideration in grant of
pension and other retiral dues. (Para 4, 15,
16)

The petitioners are entitled for calculation of
their ad hoc service for reckoning the qualifying
service. It is evident that the petitioners were
granted ad hoc appointment by following the
procedure prescribed under the applicable rules.
They continued for a long spell of time and
taking into consideration their ad hoc service,
they have been regularized in service. (Para 9,
17)

Writ petition allowed. (E-4)
9 All Saghirul Hasan & Ors. Vs. State of U.P. & Ors.
1219
Precedent followed:

## Text

1218 INDIAN LAW REPORTS ALLAHABAD SERIES
orders issued for the transfer session 202122 have been suspended until further orders
and as per Ms. Sikka, the fact finding
enquiry is going on and as soon as the
report of fact finding enquiry is received to
the competent authority, appropriate orders
would be passed. In case the competent
authority finds that the earlier transfer
orders issued in favour of the petitioner and
other employees are appropriate orders,
such employees would be permitted to
discharge their respective duties at the
transferred place and if it is found that such
transfer orders were not passed strictly as
per policy or law, those transfer orders
would be cancelled and the employees
would have to submit their joining at the
earlier places. In any case, since no final
decision has yet been taken, therefore,
grievance of the petitioner that by means of
impugned order dated 27.7.2021 and
28.7.2021 (Annexure Nos.1 & 2), the
earlier transfer orders of the petitioner have
been cancelled is misconceived. The said
transfer order has been suspended for the
time being till any appropriate order is
passed by the competent authority.

9. Besides, if the transfer order of the
petitioner is permitted to be existed, in that
case he shall remain be posted at
Farrukhabad and in case his transfer order
is cancelled, even in that case he shall
remain be posted at Farrukhabad. The
present petitioner shall remain be posted at
Farrukhabad in any eventuality. Therefore,
I wonder as to why the present transfer
order has been challenged by the petitioner
when his place of posting is unchanged in
any circumstance. The Hon'ble Apex Court
has time and again and also in re; Namrata
Verma (supra) has categorically observed
that the employee may not insist for
particular place of posting.

10. In view of the above, I do not find
any infirmity or illegality in the impugned
orders dated 27.7.2021 passed by opposite
party no.2 and 28.7.2021 passed by
opposite party no.3 (Annexure Nos.1 & 2).

11. Therefore, the writ petition is
dismissed being misconceived.
----------
(2021)09ILR A1218
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.08.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 29948 of 2018

Saghirul Hasan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Pradeep Kumar Srivastava, Renu Misra

Counsel for the Respondents:
C.S.C.

A. Service Law - Qualifying service for the
grant of pension, gratuity and other retiral
benefits - While calculating the qualifying
service, ad hoc service rendered shall be
taken into consideration in grant of
pension and other retiral dues. (Para 4, 15,
16)

The petitioners are entitled for calculation of
their ad hoc service for reckoning the qualifying
service. It is evident that the petitioners were
granted ad hoc appointment by following the
procedure prescribed under the applicable rules.
They continued for a long spell of time and
taking into consideration their ad hoc service,
they have been regularized in service. (Para 9,
17)

Writ petition allowed. (E-4)
9 All Saghirul Hasan & Ors. Vs. State of U.P. & Ors.
1219
Precedent followed:

1. Hari Shankar Asopa Vs St. of U.P. & anr.
[1990 LAB I.C. 292] (Para 5)

2. Yashwant Hari Katakkar Vs U.O.I. & ors.
[1995 LAB I.C. 718] (Para 5)

3. St. of U.P. & anr. Vs Dr. Sri Kant Chaturvedi
& ors. [Service Bench No. 1896 of 2015] (Para
5)

4. St. of U.P. & ors. Vs Vimal Kumar Shukla
[Special Appeal Defective No. 1084 of 2020]
(Para 5)

5. Bhanu Pratap Singh Vs St. of U.P. & ors. [Writ
Petition No. 6518 (S/S) of 2012] (Para 5)

(Delivered by Hon'ble Irshad Ali, J.)

1: Heard Sri Pradip Kumar Srivastava,
learned counsel for the petitioners and Sri
Shatrughan Chaudhary, learned Additional
Chief Standing Counsel for State-respondent.

2: By means of the present writ petition,
the petitioners have prayed for issuance of writ
of mandamus commanding the respondents to
count the ad hoc service rendered by the
petitioners prior to their regularization towards
qualifying service for the grant of pension,
gratuity and other retiral benefits and to grant
third time pay scale on completion of 26 years
of service taking into consideration the ad hoc
service, which was made basis of grant of
regularization to the petitioners.

3: Facts in brief are that the petitioners
were granted appointment following the
procedure of selection on the post of Vice
Principal, I.T.I. vide order dated 5.10.1988
(petitioner Nos.1 and 2) and 17.12.1988
(petitioner No.3) and on completion of
satisfactory service, pay scales were provided
to them and ultimately, petitioner Nos.1 and 2
were regularized vide order dated 20.12.2013
and petitioner No.3 was regularized vide
order dated 30.12.2014 w.e.f. 14.2.2010. On
completion of satisfactory service, benefits of
second time bound pay scale was granted to
the
petitioners
w.e.f.
14.10.2010
and
thereafter,
on
attaining
the
age
of
superannuation, the petitioners retired from
service on 31.12.2019, 30.9.2019 and
30.6.2019 respectively. After retirement of
the petitioners, they were not paid the retiral
dues and pension, on the ground that they
have not completed ten years of service to
their credit for consideration of claim for the
payment of retiral dues as well as pension. It
has also been the ground for non payment of
third A.C.P. that the petitioners have not
completed regular 26 years of service, thus,
they are not entitled for the grant of third
A.C.P.

4: Learned counsel for the petitioners
submits that the law in this regard is settled
by this Court as well as by the Hon'ble Apex
Court that while calculating the qualifying
service, ad hoc service rendered shall be
taken into consideration in grant of pension
and other retiral dues.

5: In support of his submission, he
placed reliance upon the following judgments
:-

(i) Hari Shankar Asopa Vs. State
of U.P. & Another [1990 LAB I.C. 292]

(ii) Yashwant Hari Katakkar
Vs. Union of India & Others [1995 LAB
I.C. 718]

(iii) State of U.P. & Another Vs.
Dr. Sri Kant Chaturvedi & Others
[Service Bench No. 1896 of 2015]

(iv) State of U.P. & Others Vs.
Vimal Kumar Shukla [Special Appeal
Defective No.1084 of 2020]
1220 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) Bhanu Pratap Singh Vs.
State of U.P. & Others [Writ Petition
No.6518 (S/S) of 2012]

6: On the basis of the aforesaid, his
submission is that the petitioners are
entitled for calculation of their service
rendered on ad hoc basis for reckoning the
qualifying service for the grant of pension
and other benefits. Next submission is that
the respondents are acting arbitrarily and
for no valid justification, they have ignored
the ad hoc service of the petitioners and
have not released the post retiral dues and
pension in favour of the petitioners. Last
submission is that the claim setup by the
petitioners is fully covered by the judgment
relied upon, which are part of the writ
petition as Annexure-7 to the writ petition.

7: On the other hand, Sri Chaudhary,
learned Additional Chief Standing Counsel
submits that for the payment of pension and
other retiral dues, service rendered on ad
hoc basis cannot be made a ground for
reckoning as a qualifying service. The
petitioners have not completed ten years of
service, therefore, they are not entitled for
pension and other benefits admissible to the
post. He next submits that the present
petition was filed prior to retirement from
the post, therefore, there may not be a
prayer to release the post retiral dues and
pension in favour of the petitioners. Last
submission is that there is no illegality on
the part of the respondents in not releasing
the said benefit.

Submission
advanced
by
learned
Additional Chief Standing Counsel is that
the amendment was incorporated under the
pension
rules,
which
has
not
been
considered in the judgments relied upon by
the learned counsel for the petitioners,
therefore, the ratio of the judgment are not
attracted to the facts and circumstances of
the present case.

8: I have considered the submission
advanced by learned counsel for the parties
and perused the material on record.

9: On perusal, it is evident that the
petitioners
were
granted
ad
hoc
appointment by following the procedure
prescribed under the applicable rules. They
continued for a long spell of time and
taking into consideration their ad hoc
service, they have been regularized in
service.

10: I have also gone through the
judgment relied upon by learned counsel
for the petitioners in the case of Hari
Shankar
Asopa
(Supra).
Relevant
paragraph Nos.17 and 18 are quoted below
:-

"17. Clause (e) of Rule 56
unequivocally recognises, 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 Cl. (a) or
Cl. (b), or who is required to retire, or who
is allowed to retire under Cl. (e) of R.56,
becomes entitled for a retiring pension,
provided, of course, the first and third
conditions stipulated in Art. 361 of the
Regulations are satisfied.

18.
In
the
instant
case,
indisputably,
Dr.
Asopa,
who
(was)
allowed to retire under Cl. (e) of R. 56 and
the first and third conditions envisaged in
Art. 361 of the Regulations were satisfied.
He, therefore, became qualified for a
9 All Saghirul Hasan & Ors. Vs. State of U.P. & Ors.
1221
retiring pension notwithstanding the fact
that he was not permanent or 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 Cl. (e) of R.56 of the
Rules. Condition contained in para 2 of the
order dt. 21st Feb., 1983 (Annexure 10 to
the writ petition), depriving Dr. Asopa of
retiring pension cannot, therefore, be
sustained. The contention of 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."

11: In the aforesaid judgment, Dr.
Asopa,
whose
case
was
under
consideration, was ad hoc employee and
continued for several years and retired from
service. The Hon'ble Supreme Court after
considering the submission of Standing
Counsel in the matter that Dr. Asopa was
not entitled to any pension, held that the
contention of learned Standing Counsel
lacks merit and thereafter, direction was
issued to release the pension in his favour.

12: Relevant paragraph-3 of the
judgment in the case of Yashwant Hari
Katakkar (Supra) is quoted below :-

"Dr. Anand Prakash, learned
senior Advocate appearing for the Union of
India, has contended that on March 7, 1980
when the appellant was pre-maturely
retired he had put in 181⁄2 years of quasipermanent service. According, to him to
earn pension it was necessary to have
minimum of 10 years of permanent service.
It is contended that since the total service
of the appellant was in quasi-permanent
capacity he was not entitled to the
pensionary benefit. There is nothing on the
record to show as to why the appellant was
not made permanent even when he had
served the Government for 181⁄2 years It
would be travesty of justice if the appellant
is denied the pensionary benefits simply on
the ground that he was not a permanent
employee of the Government. The appellant
having served the Government for almost
two decades it would be unfair to treat him
temporary/quasi-permanent. Keeping in
view the facts and circumstances of this
case we hold that the appellant shall be
deemed to have become permanent after he
served the Government for such a long
period. The services of the appellant shall
be treated to be in permanent capacity and
he shall be entitled to the pensionary
benefits. We allow the appeal, set aside the
judgment of the Tribunal and direct the
respondents to treat the appellant as
having been retired from service on' March
7, 1980 after serving the Government for
181⁄2 years (more than 10 years as
permanent service) and as such his case for
grant of pension be finalised within six
months from the receipt of this order. The
appellant shall be entitled to all the arrears
of pension from the date of retirement. No
costs."

13: In the case of State of U.P. &
Another Vs. Dr. Sri Kant Chaturvedi &
Others, the order passed by the State
Public Services Tribunal, Lucknow was
under challenge, whereby the ad hoc
service rendered by respondent Nos.1 and 2
has been directed to be counted towards
pensionary benefits and also for allowing
the pension to respondent Nos.1 and 2. The
Division Bench of this Court, taking into
consideration
entire
facts
and
circumstances of the case, affirmed the
judgment passed by the Tribunal and the
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
petition has been dismissed, which was
challenged in Special Leave to Appeal (C)
No.18622/2016 (State of U.P. & Another
Vs. Dr. Srikant Chaturvedi & Another),
which has also been dismissed, affirming
the order passed by the Tribunal, Lucknow.

14: In the case of State of U.P. &
Others Vs. Vimal Kumar Shukla, the
relevant paragraph is quoted below :-

"The issue aforesaid is now not
open for debate after the judgment of Apex
court in Prem Singh vs. State of Uttar
Pradesh and others, 2019 (10) SCC 516.
Para 36 of the said judgment covers the
issue and for ready reference, is quoted
hereunder :

"There are some of the employees
who have not been regularized in spite of
having rendered the services for 30-40 or
more years whereas they have been
superannuated. As they have worked in the
work-charged establishment, not against
any particular project, their services ought
to have been regularized under the
Government instructions and even as per the
decision of this Court in Secretary, State of
Karnataka and Ors. v. Umadevi, (2006) 4
SCC 1. This Court in the said decision has
laid down that in case services have been
rendered for more than ten years without the
cover of the Court's order, as one time
measure, the services be regularized of such
employees. In the facts of the case, those
employees who have worked for ten years or
more should have been regularized. It would
not be proper to regulate them for
consideration of regularisation as others
have been regularised, we direct that their
services be treated as a regular one.
However, it is made clear that they shall not
be entitled to claiming any dues of
difference in wages had they been continued
in service regularly before attaining the age
of superannuation. They shall be entitled to
receive the pension as if they have retired
from the regular establishment and the
services rendered by them right from the day
they
entered
the
work-charged
establishment shall be counted as qualifying
service for purpose of pension."

The para, quoted above, has
otherwise been referred by the learned
Single Judge in his judgment. It was found
that petitioner was appointed on the post of
Assistant Store Keeper in the year 1978 in
regular pay
scale
thus was against
substantive vacancy. He continued in service
with all due benefits, as are made available
to regular employees.

In the circumstances aforesaid, the
petitioner's case is covered by para 36 of the
judgment of the Apex Court in Prem Singh
(supra), as quoted above. Learned Single
Judge accordingly allowed the writ petition
after
noticing
that
the
petitioner/nonappellant was even allowed the revised pay
scale from time to time as and when revised
pursuant to the recommendation of Pay
Commission.

Taking into consideration the
facts aforesaid, we do not find any error in
the judgment of learned Single Judge
rather the matter is squarely covered by the
judgment of Apex court in the case of Prem
Singh (supra). We therefore, find no merit
in the appeal and even no reason to accept
the application for condonation of delay.

Accordingly
application
for
condonation of delay as well as appeal are
dismissed."

15: In the case of Bhanu Pratap
Singh (Supra) passed by the learned Single
9 All Saghirul Hasan & Ors. Vs. State of U.P. & Ors.
1223
Judge, the relevant paragraph is quoted
under :-

"It is not in dispute between the
parties that the petitioner was appointed on
ad hoc basis on the post of Principal in the
College in question pending availability of
a duly selected candidate from the Board of
Secondary Education. When the provisions
of sub-section 2 of section 18 of the Act,
1982 specifically provide that the senior
most lecturer would be appointed as ad hoc
principal and he would be entitled to the
salary payable to the Principal, the said
benefit cannot be denied to the petitioner. It
is not in dispute between the parties that
the salary of the Principal is Rs. 29,500/-
and in case of the petitioner the same has
been reduced to Rs. 27,870/- which is
wholly illegal and arbitrary being in
violation of statutory Rules and therefore
the impugned orders dated 07.01.2011 and
31.05.2012, Annexure-2 and Annexure-5 to
the writpetition respectively cannot survive.

The order dated 07.01.2011 to
the extent it relates to the reduction of
salary of the petitioner and the order dated
31.08.2012, Annexure-2 and Annexure-5
are therefore quashed.

The writ petition is allowed. At
the time of admission, this Court had been
pleased to stay the operation of the
impugned
order
dated
31.05.2012,
Annexure-5 to the writ petition and had
directed the opposite parties to pay the
petitioner's salary which he was being paid
on his initial appointment prior to the
passing of the impugned order.

A direction is, therefore, issued to
the respondent no.2 to ensure thatthe
petitioner is paid the salary of a Principal
i.e. at the basic pay of Rs.29,500 from the
date he was appointed as ad hoc principal
i.e. 01.08.2010 alongwith arrears thereof."

15: I have gone through the law
report relied upon by learned counsel for
the petitioners and came to the conclusion
that the issue in regard to the inclusion of
ad hoc service rendered by the employee
and subsequently regularized, the service is
countable for reckoning the qualifying
service for the payment of pension.

16: On consideration of the same, the
Court is of the opinion that there is no resintegra to consider the submission as
advanced by learned Additional Chief
Standing Counsel. Once it is settled that the
ad hoc service, which has been made basis
of regularization, has been considered in
catena of judgments and it has been held
that the same is countable for reckoning the
qualifying service for the payment of
pension.

17: In view of the above, I am of the
opinion that the petitioners are entitled for
calculation of their ad hoc service for
reckoning the qualifying service. In view of
the reasons recorded above, the writ
petition succeeds and is allowed.

18. In view of the reasons recorded
above, the respondents are directed to
calculate the ad hoc service rendered by the
petitioners for reckoning qualifying service
and in case the petitioners fulfill the
required qualifying service, it is directed to
pay them the pension and other benefits
admissible to them and release the same
within a period of six weeks from the date
of production of certified copy of this
order.

19: The parties shall bear their own
costs.
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)09ILR A1224
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 33755 of 2019

Mohd. Naseem Uddin ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shivam Sharma

Counsel for the Respondents:
C.S.C.

A. Service Law - Departmental Enquiry -
The
departmental
enquiry
should
be
conducted and concluded within time
frame so provided by this Court vide
specific order and if such enquiry is not
concluded within time stipulated, the
disciplinary authority/inquiry officer may
file appropriate application before the
Court concerned seeking further time to
conclude the departmental enquiry. Even
this Court may suo moto extend the time
to conduct the departmental enquiry, if
the charges are so serious. (Para 10)

In the present case an application for grant of
time has been filed by the Standing Counsel on
25.1.2020, however, the time was expiring on
26.8.2019. Since this Court at Allahabad had
granted time to conclude the departmental
enquiry within time frame and the Division
Bench of this Court had not extended any
further time to conclude the departmental
enquiry, therefore, such application could have
been filed before this Court at Allahabad in the
same writ petition. Even if the opposite parties
were serious to conduct departmental enquiry
seeking further time the appropriate application
could have been filed here at Lucknow in the
month of August, 2019 itself. (Para 11)
Moreover, even the charge-sheet has been
issued after about two months from expiry of
the period so fixed by this Court inasmuch as
the period to conclude the departmental enquiry
was expiring on 26.8.2019 whereas the chargesheet has been prepared on 18.10.2019. (Para
11)

B. Suo-moto extension - The suo moto
extension can be granted if Court finds that the
disciplinary authority/inquiry officer was serious,
they responded promptly after the order of the
Court, issued the charge-sheet and started
departmental enquiry but anyhow the same
could not be concluded within time frame. In
present case exercise and intent to obey
the direction of this Court is absolutely
missing. Even the departmental enquiry did
not start within time frame so there is no
question to extend the time to conduct the
departmental enquiry against the petitioner.
(Para 13)

C.
Post-
retirement
enquiry
-
The
departmental
enquiry
against
the
petitioner after his retirement particularly
in
view
of
the
present
facts
and
circumstances,
cannot
be
permitted.
Petitioner has retired from service on 29.2.2020,
therefore, opposite party no. 1 is not permitted
to conduct the departmental enquiry against the
petitioner pursuant to the charge-sheet dated
18.10.2019 as the aforesaid charge-sheet has
been issued beyond the stipulated period so
fixed by this Court vide order dated 11.7.2019.
(Para 14, 15)

Writ petition allowed. (E-4)

Precedent followed:

1. Abhishek Prabhakar Awasthi Vs New India
Assurance Company Ltd. passed in W.P. No.
(S/S) 7179 of 2009 (Para 7)

Present
petition
assails
charge-sheet
dated 18.10.2019, issued by Secretary
Vocational
Education
and
Skill
Development.

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