# Satya Prakash Sharma v. State of U.P. & Anr

- **Citation:** (2023) 8 ILRA 1414
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-23
- **Case number:** Writ-A No. 2733 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-prakash-sharma-v-state-of-u-p-anr-50542
- **Pages:** 8

## Headnote

Law
-
UP
Contributory
Provident Fund Insurance Pension Rules,
1964 - Rule 19(b) - Pension - Entitlement
of Officiating Principal to get pension -
Failure of St. in not making the officiating
post as the post on substantive basis -
Effect - Held, if the St., on its own
inaction, does not make appointment on
substantive basis to a post, a person
holding the post as officiating capacity but
post
being
substantive
in
nature
is
drawing salary also as admissible to the
said post, cannot be denied pensionary
benefits - Lakshman Veer's case relied
upon. (Para 7 and 12)
B. Interpretation of statute - Beneficial
construction - The pensionary benefit
rules have to be construed so as to ensure
that the object with which rules are made,
is achieved and the benefit reaches to the
last man in queue - D. S. Nakara's case
relied upon. (Para 10)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

1414 INDIAN LAW REPORTS ALLAHABAD SERIES
her appointment and continuous service of
the petitioner should have been treated by
the respondents to be made on regular basis
keeping in view of the law laid down by
this Court in the aforesaid judgments.

18. Keeping in view of the aforesaid
discussions, the writ petition is allowed.

19. The order impugned dated
27.12.2017, a copy of which is annexure
no.1 to the petitioner, is quashed. A writ of
mandamus is issued to the respondents
directing them to consider the payment of
retiral dues of the petitioner treating her to
have been appointed on a regular post
under the provision of Rules, 1974 and also
make payment of her retiral dues in
accordance with law within a period of
three months from the date of receipt of
certified copy of this order.
----------
(2023) 8 ILRA 1414
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 2733 of 2023

Satya Prakash Sharma ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Vashishtha Tiwari

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
UP
Contributory
Provident Fund Insurance Pension Rules,
1964 - Rule 19(b) - Pension - Entitlement
of Officiating Principal to get pension -
Failure of St. in not making the officiating
post as the post on substantive basis -
Effect - Held, if the St., on its own
inaction, does not make appointment on
substantive basis to a post, a person
holding the post as officiating capacity but
post
being
substantive
in
nature
is
drawing salary also as admissible to the
said post, cannot be denied pensionary
benefits - Lakshman Veer's case relied
upon. (Para 7 and 12)
B. Interpretation of statute - Beneficial
construction - The pensionary benefit
rules have to be construed so as to ensure
that the object with which rules are made,
is achieved and the benefit reaches to the
last man in queue - D. S. Nakara's case
relied upon. (Para 10)
Writ petition allowed. (E-1)
List of Cases cited:
1. Narsingh Rai Vs Deputy Director of Education,
Varanasi & ors.; 2018 (11) ADJ 135
2. Rudra Kumar Sain Vs U.O.I.; (2000) 8 SSC 25
3. Lakshman Veer Vs St. of U.P.; 2019 (4) AllLJ
116
4. Surendra Prasad Agnihotri Vs St. of U.P.;
2010 0 Supreme (All) 196
5. D.S Nakara Vs U.O.I.; 1983 AIR 130
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Vashishtha Tiwari,
learned counsel for the petitioner and
learned Standing Counsel for the State
respondents.

2. In compliance of my last order
dated 22nd March, 2023, an affidavit of
compliance has been filed, which is taken
on record.

3. In the compliance affidavit State
Government has come with a case that in
view of the judgment in the case of Virsh
Bhan Sharma v. State of U.P. and others
8 All. Satya Prakash Sharma Vs. State of U.P. & Anr.
1415
passed in Writ - A No.- 23690 of 2018
decided
on
9th
January,
2019,
an
officiating principal cannot be said to have
held the said post in substantive capacity
and, therefore, an interpretation to Rule
19(b) of U.P. Contributory Provident Fund
Insurance Pension Rules, 1964 is sought to
be urged to be providing that a person must
be holding substantive post to hold him
entitled to receive pension.

4. In Virsh Bhan's case, accordingly,
the petitioner in that case was refused
pension. The ratio of the judgment as
contained in paragraph 9 is reproduced
hereunder:

"9. According to Rule-19 (a) of
the Rules, service rendered by an employee
would not be counted for pension unless the
employee holds a substantive post on a
permanent establishment. Sub Rule (b) of
Rule-19 is an exception, according to
which
the
Continuous
temporary
or
officiating service would also be included
for the purposes of payment of pension , if
such continuance is followed without any
interruption by confirmation in the same or
another
post.
The
statutory
scheme,
therefore, clearly suggests that it is either a
post held substantively by a government
servant which would be the relevant
criteria for determination of pension or the
service on continuous, temporary or
officiating basis, which is followed with the
confirmation on that post or on similar
post. The determination of qualifying
service is essential aspect, which is dealt
with by Rule 19 (b) of the Rules, while the
right
of
pension payable
would
be
regulated by Rule 19 (a). It is the
substantive post held by an employee
which, therefore, would determine his
entitlement to receive pension. Since the
petitioner held the post of Lecturer on
substantive basis, his pension will have to
be determined with reference to his
substantive
appointment
and
the
respondent, therefore, have committed no
error
in
determining
his
pension
accordingly."

5. Petitioner has relied upon two
judgments of concurrent Bench of this
Court. The first one in the case of Narsingh
Rai v. Deputy Director of Education,
Varanasi and others: 2018 (11) ADJ 135,
wherein the view of the Supreme Court as
expressed in the case of Isharat Jahan v.
State of U.P. and others passed in Writ - A
No.- 5737 of 2018 has been referred, had
relied upon a judgment in the case of
Rudra Kumar Sain v. Union of India:
(2000) 8 SSC 25. Interpreting service
jurisprudence his Lordship referred to the
aspect of the matter that a person holding
position for a long period of time having
requisite qualification, would entitle him to
get the pensionary benefits as the pension is
to be determined on the basis of last pay
drawn.

6. The word 'substantive basis' is
sought to be interpreted to mean a person
must be holding the post substantive in
nature with requisite qualification. Thus,
thin distinction is sought to be drawn
between substantive post and holding the
post on substantive basis. Judgement as
quoted in paragraph 4 of the Narishing
Rai's case is reproduced hereunder:

"4- Against the afore-quoted
order, the petitioner filed Writ -A No.7439
of 2016 (Narsingh Rai v. State of U.P. and
3 others) , which was allowed by this Court
by order dated 21.3.2018, as under:

"Heard
Shri
Adarsh
Singh,
learned counsel for the petitioner and
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Additional Chief Standing Counsel
for State respondents.

The petitioner is before this Court
assailing the order dated 15.2.2018 passed
by the third respondent, Deputy Director of
Education
(Secondary),
5th
Region,
Varanasi whereby he has declined to
sanction his pension and for direction to
the third respondent to sanction his pension
on the post of Assistant Teacher L.T. Grade
and to pay the same with effect from the
date of his retirement i.e. 31.3.2018.

Learned counsel for the petitioner
submits that the petitioner was initially
appointed as Assistant Teacher in L.T.
Grade in a recognised and aided institution
namely 'Gramodaya Inter College Gaura
Badshahpur, District Jaunpur' on 2.7.1994.
In pursuance thereof, he joined in the
institution on 8.7.1994. Since then, he has
been teaching in the institution in question
on the said post, and has also been paid
regular salary including annual increments
and selection grade of LT Grade after 10
years of service. The appointment of the
petitioner was also duly approved by the
District Inspector of Schools, Jaunpur on
15.7.1995. Subsequently, by the order
dated 25.4.2017 passed by the Joint
Director of Education, Varanasi Region,
Varanasi, his services have also been
regularized w.e.f. 22.3.2016. After serving
more than 23 years, the petitioner has
retired on 31.3.2018 on the said post after
attaining the age of superannuation.

Learned counsel for the petitioner
apprises to the Court that the claim set up
by the petitioner is squarely covered by the
judgement and order passed by this Court
dated 7.3.2018 in Writ A No.5737 of 2018
(Ishrat Jahan vs. State of UP and 3
others), which was allowed on 7.3.2018,
with following observations:-

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

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

18. The Supreme Court in the
case of Ramesh K. Sharma v. Rajasthan
Civil
Services,
(2001) 1
SCC 637,
considered the word "substantive basis"
following the judgment of Baleshwar Dass
v. State of U.P. (AIR 1981 SC 41). The
Supreme Court held that if an incumbent
holds the post for indefinite period then it
cannot be said to be adhoc appointment.
The Court held as under :-
8 All. Satya Prakash Sharma Vs. State of U.P. & Anr.
1417

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

19. This Court in the case of Dr.
Hari Shanker Asopa v. State of U.P. And
another, reported (1989) UPLBEC 501,
considered the Article 361 and Clause (e)
of Rule 56 of Fundamental Rules as applied
in Uttar Pradesh and the Civil Service
Regulations. Dr. Hari Shanker Asopa was
appointed on temporary basis on the post
of lecturer in the department of Surgery at
S.N.Medical College, Agra on 4th August,
1964. In the year 1969, he was appointed
on a substantive post of Reader in Surgery
at same College that appointment too was
on temporary basis. The term of the
appointment was one year or till the
candidate selected by the U.P.Public
Service
Commission
was
available,
whichever was earlier. After three years, he
was promoted to the post of Professor in
Surgery in Jhansi Medical College. The
said appointment was also temporary and
it was for a period of one year or till the
candidate
regularly
selected
by
the
U.P.Public
Service
Commission
was
available or till the services of Dr. Asopa
were needed, whichever was earlier. Dr.
Asopa uninterruptedly continued for 18
years as a Lecturer, Reader and Professor
on temporary basis. His request for
voluntary retirement was allowed by the
State Government in the year 1983 with a
condition that no pension would be paid to
him, as he was not permanent on any post
of the Government Service. Dr. Asopa
feeling aggrieved by the said order dated
21.2.1983 preferred a writ petition before
this Court.

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

"In the present case, so far as the
condition Nos. A and C are concerned, they
are satisfied and the dispute is only with
respect to condition No. B i.e., lack of
permanent character of service. However,
in out view, the aforesaid provisions stand
obliterated
after
the
amendment
of
Fundamental Rule 56 by U.P.Act No. 24 of
1975 which allows retirement of a
temporary employees also and provides in
clause (e) that a retiring pension is payable
and other retiral benefits, if any, shall be
available to every Government Servant who
retires or is required or allowed to retire
under this Rule. Since the aforesaid
amendment Rule 56 was made by an Act of
Legislature,
the
provisions
contained
otherwise under Civil Service Regulations,
which are pre-constitutional, would have to
give way to the provisions of Fundamental
Rule 56. In other words, the provisions of
Fundamental Rule 56 shall prevail over
the Civil Service Regulations, if they are
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
inconsistent. Condition -B (supra) of
Article 361 of Civil Service Regulations
are clearly inconsistent with Fundamental
Rule 56 and thus is in operative."

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

22. Having regard to the facts
and circumstances of the case, I am of the
view that petitioner is entitled for the post
retiral benefits as her appointment was
made in terms of the statutory Rules and
the same was also approved by the District
Inspector of Schools by an order dated
8.5.2013. Admittedly, on account of an
interim order dated 20.1.2004 passed in
Writ Petition No.38769 of 2000, the
petitioner continued to work in the
institution and finally retired on attaining
the age of superannuation on 1.7.2017
(worked under the sessions benefit upto
31.3.2018)
and
she
worked
uninterruptedly for more than 25 long
years.

23. A direction is issued to the
respondents to pay the post retiral benefits
to the petitioner in accordance with law as
expeditiously as possible preferably within
three
months
from
the
date
of
communication of this order.

24.
Consequently,
the
writ
petition is allowed."

Learned counsel for the petitioner
further states that the claim set up by the
petitioner is on the better footing, as his
services have already been regularized on
22.3.2016 as per provisions contained
under Section 33-C of U.P. Intermediate
Education Act, 1921. The request has been
made that the present writ petition is also
liable to be allowed in terms of the
aforesaid judgement.

Learned
Additional
Chief
Standing Counsel does not dispute the
factual and legal aspect of the matter.

The Court has proceeded to
examine the record in question and finds
that while passing the order impugned the
Deputy Director of Education (Secondary),
5th Region, Varanasi has taken note of the
regularization of the petitioner by an order
dated 22.3.2016 and thus, the case of the
petitioner is squarely covered by the
aforesaid judgement.

In view of above, the impugned
order cannot sustain and the same is
accordingly set aside.

Consequently, the writ petition is
allowed and the matter is remanded back to
the
Deputy
Director
of
Education
(Secondary) to take appropriate decision
afresh in the light of the aforesaid
judgement passed in Ishrat Jahan's case
(supra) within a period of two months from
the date of production of certified copy of
this order."

(emphasis added)

7. Another concurrent Bench of this
Court in the case of Lakshman Veer v.
State of U.P. : 2019 (4) AllLJ 116
specifically dealt with this issue and sought
to draw in fundamental Rule 26 C and E
with the amendment validation Act, 1975
8 All. Satya Prakash Sharma Vs. State of U.P. & Anr.
1419
to interpret that the rules do not distinguish
between a permanent and a temporary
employee. The Court in this case also has
been in tune with the philosophy of service
jurisprudence which requires a person to
possess requisite qualification under the
rules to hold a position. If the State,
therefore, on its own inaction does not
make appointment on substantive basis to a
post, a person holding the post as
officiating
capacity
but
post
being
substantive in nature is drawing salary also
as admissible to the said post, cannot be
denied pensionary benefits in view of the
judgment cited above. Relevant paragraphs
28, 29, 30 31 of the judgment are
reproduced hereinunder:

"28. Rules 17 provides eligibility
for the pension and Rule 17(1) says that
employee shall be eligible for pension after
retirement
on
attaining
the
age
of
superannuation or on the expiry of
extension granted beyond supperannuation
and in present case, undisputedly petitioner
retired
after
attaining
the
age
of
supperannuation. So far as Rule 19-A is
concerned, it says that for pension,
employee should hold substantive post on a
permanent establishment. Here the facts
are also not disputed that petitioner was
appointed on substantive post of a
permanent establishment receiving grantin-aid
from
the
State
Government.
Therefore, as provided in Rule-17 and 19-A
of Rules, 1964, petitioner is entitled for
pension
after
attaining
the
age
of
supperannuation.

29. Learned counsel for the
petitioner has placed reliance upon
Article 361 of Civil Service Regulation
and the same is also being quoted here in
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.

1.
Substantive
service
in
a
permanent post qualifying for pension
unless the service in a particular post in
specifically declared as non-qualifying
under Article 350 C.S.R. when a temporary
post is made permanent or a permanent
post is sanctioned, it is not necessary to
state that the post in question would also be
pensionable under Article 361 C.S.R.

361-A. The State Government
may, however, in the case of service paid
from General Revenues, even though either
or both of conditions (1) and (2) are not
fulfilled:--

(1) declare that any specified
kind of service rendered in a non-gazetted
capacity shall qualify for pension;

(2) in individual cases and
subject to such conditions as it may think fit
to impose in each case, allow service
rendered by an officer to count for pension.

Subject to such conditions as it
may think fit to impose, the State
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
Government may delegate its powers under
this Article to the Heads of Departments.

30. By the perusal of Article 361 of
Civil Service Regulation, it is very much clear
that the petitioner is fulfilling the first and third
contingencies and so far as the second
contingency is concerned, argument of counsel
for the petitioner is having force as his matter of
regularisation was not decided due to inaction
on the part of respondent No. 5 within time
after order of this Court dated 25.04.2005 and
that has been decided vide order dated
03.01.2015 after retirement of petitioner, which
is not sustainable as discussed hereinabove.

31.
Learned
counsel
for
the
petitioner has also placed reliance upon Rules
56(C) and (E) of Act, 1975 and the same is
being quoted below:-

56(c).
Notwithstanding
anything
contained in Clause (a) or Clause (b), the
appointing authority may, at any time, by notice
to any Government servant (whether permanent
or temporary), without assigning any reason,
require him to retire after he attains the age of
fifty years or such Government servant may by
notification
to
the
appointing
authority
voluntarily retire at any time after attaining the
age of fifty years or after he has completed
qualifying service for twenty years.

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

Explanation- (1) The decision of the
appointing authority under Clause (c) to retire
the Government servant as specified therein
shall be nothing herein contained shall be
construed to require any recital, in the order, of
such decision having been taken in the public
interest.

(2) Every such decision shall, unless
the contrary is proved, the presumed to have
been in the public interest.

(3)
The
expression
'appointing
authority' means the authority which for the
time being has the power to make substantive
appointments to the post or service from which
the Government servant is required or wants to
retire; and the expression 'qualifying service'
shall have the same meaning as the relevant
rules relating to retiring person.

(4) Every order of the appointing
authority requiring a Government servant to
retire forthwith under the first proviso to
clause(d) of this rule shall have effect from the
afternoon of the date of its issue provided that if
after the date of its issue, the Government
servant concerned bona fide and in ignorance
of that order, performs the duties of his office
his acts shall be deemed to be valid
notwithstanding the facts of his having earlier
retired."

8. The Full Bench of this Court in the
case of Surendra Prasad Agnihotri v. State
of U.P.: 2010 0 Supreme (All) 196, very
categorically held that an officiating principal
holding substantive post on the basis of
seniority and possessing requisite qualification,
if cannot be denied service benefits and in terms
of salary, such person can equally be not denied
pension which is also got the service benefits to
which otherwise he would be entitled on the
basis of last pay drawn. Vide paragraph 17 of
the judgment the Court answered the reference
as under:

"17. In view of the aforesaid facts
and circumstances and the legal position, we
make reference for constitution of a Larger
8 All. Mahendra Pal Vs. State of U.P. & Ors.
1421
Bench to deal with the following question of
law:

"Whether a teacher of Intermediate
College who has already been appointed as
officiating principal of the Institution by virtue
of his seniority on attaining the age of
superannuation in the extended period of his
service shall continue as officiating principal or
simply as a teacher?"

9. Coming back to the judgment cited by
and annexed as part of the personal affidavit
filed by Mr. Mukesh Chandra, the Deputy
Director of Education, Agra Region, Agra, with
great respect, I would submit that the
concurrent Bench did not notice the earlier
judgment of earlier concurrent Bench in the
case of Narsingh Rai (supra) and the reference
answered by the Full Bench as quoted above in
the case of Surendra Prasad Agnihotri (supra).

10. As far back as in 1982 the
Constitution Bench of this Court in the case of
D.S Nakara v. Union of India: 1983 AIR 130
had very clearly interpreted that the pensionary
benefit rules have to be construed so as to
ensure that the object with which rules are
made, is achieved and the benefit reaches to the
last man in queue. It would be sufficient enough
in my considered view and in the light of the
judgments cited above, only for holding a post
which is substantive in nature and not holding a
post substantively would make also the one
entitled to pension provided he/ she has
qualifying service to his/ her credit. It has
rightly been said that a Judge while interpreting
the provisions must bear in mind as to whether
the interpretation he is putting forth is going to
benefit the last man in the queue.

11. Since the concurrent Bench in the
case of Virsh Bhan Sharma (supra) has not
noticed either the Narisingh Rai's case or the
reference answered by the Full Bench (supra), it
can not be taken as a binding precedent and so I
am not bound by the view taken in Virsh Bhan's
case.

12. In the present case it is not disputed
that the petitioner had held the position of
officiating principal of the institution which was
a substantive post and with the approval of the
District Inspector of Schools he was also paid
salary as his signatures were attested as such,
and accordingly, I hold him to be entitled to
pension as would be admissible in law
otherwise, on the basis of last pay drawn by the
petitioner as principal of the institution.

13. In view of the above, therefore, the
writ petition succeeds and is allowed as above.

14. The Deputy Director of Education,
Secondary Agra Region Agra is directed to
calculate the pension of petitioner on the basis
of last pay drawn as principal of the institution,
and shall release the same within next three
months' time.

15. In the circumstances, therefore, there
will be no order as to cost.
----------
(2023) 8 ILRA 1421
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.07.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No.5351 of 2023

Mahendra Pal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for thePetitioner:
Vaibhav Srivatava

Counsel for the Respondents: