# Smt. Santosh Kumari v. State Of U.P. & Ors

- **Citation:** (2016) 3 ILRA 64
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-08
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-santosh-kumari-v-state-of-u-p-ors-43497
- **Pages:** 13

## Headnote

Service Law - Pension - Ad-hoc appointment - Regularisation - Computation of ad-hoc service
for pension - Regularisation Rules, 1979 (as amended in 2001) - Civil Service Regulations -
Regulation 370 - Due date of regularisation - Officiating service - Deemed confirmation -
Mandamus for grant of pensionary benefits.

The regularisation rules in so far as its application to a direct ad-hoc appointee lay down a cut of date
i.e. 30.06.1998 and the requirement of employee's continuity in service as on the date of
commencement of rules i.e. 20.12.2001 is also provided for under Rule 4 (1) (i). Both these conditions
stand met with by the petitioner. A complete reading of Rule 4 (1) (i) to (iii) makes it abundantly clear
that a person directly appointed as ad-hoc on or before 30.06.1998 who is continuing in service on the
commencement of rules and is possessed with the requisite qualification on the date of initial
appointment and having completed or after he has completed three years requisite service shall be
considered for regularisation on the basis of record against an available permanent or temporary
vacancy subject to his or her suitability. The accrual of right of consideration is the due date and it is
this date from which a person acquires a right to hold the post and services so rendered from the due
date not being fortuitous are bound to be treated as officiating services. Once an ad-hoc employee
whose right of consideration has accrued from the due date in terms of Rule 4 (1) (i) to (iii) is
regularised in service later, the past services from the due date are bound to be treated as officiating
services against permanent or temporary vacancy and the same are computable for post retiral dues.
(Paras 16-20)

Held: (Para 28-30) Having given a careful thought to the provisions of statutory rules, I am of the
considered opinion that question no. 1 & 2 framed above are to be answered in affirmative. The
Regularisation Rules envisage a statutory duty on the state authorities to consider the claim of an adhoc employee for regularisation as per rules on the vacancy becoming / having become available and
non-performance of this duty would entitle a person regularised in service to claim the benefit of past
services for post retiral dues from the due date. In the result, the petitioner's services rendered
w.e.f. 20.12.2001 i.e. date of third amendment in the Regularisation Rules, 1979 as per the prayer
made and confined orally in the present case is liable to be entertained for the purpose of grant of
pension and her claim to this extent deserves to be allowed. The ground of parity in the light of
order dated 14.12.2014 is also left open to considered by the competent authority. Accordingly, the
writ petition is disposed of and a writ of mandamus is issued to the respondents to consider the
petitioner's claim for the grant of pension by allowing her the benefit of past services w.e.f.
20.12.2001 for the purpose of pensionary benefits and the requisite exercise in this regard inclusive of
the payment of arrears shall be undertaken and completed by the respondents within a period of
three months from the date a certified copy of this judgement is filed before them.

Case Law discussed: --

## Text

64 INDIAN LAW REPORTS ALLAHABAD SERIES
immediately while plying on road and should be treated as offence under the
Act calling for punishment under Section 177 of the Central Act and other
provisions."

12. Evidently, these directions have not been strictly enforced by the State
Government. Now, in pursuance of the previous order of this Court, the Assistant
Prosecution Officer (Transport) has placed on the record communications issued,
inter alia, to the State Bar Council, Bar Associations, Superintendents of Police,
Regional Food Controllers, District Basic Education Officers, District Inspector of
Schools, District Social Welfare Officers, Commissioner of Income Tax and District
Supply Officers among other government officials for ensuring compliance. Even
these circulars have been predominantly issued to the government officials in the
district of Allahabad. The enforcement action should not only be confined to the
district of Allahabad but must be adopted with all seriousness across the State.
Compliance with the Rules cannot only be confined to the district of Allahabad and
must be ensured throughout the State.

13. We accordingly direct the Secretary, Ministry of Transport in the State
Government to issue strict directions to all the Regional Transport Officers across
the State to take enforcement action to ensure that all such violations of the Rules in
the form of improper registration plates are strictly dealt with by the imposition of
penalties as permissible in law. The Secretary in the Ministry of Transport shall
monitor on a monthly basis the compliance made by the Regional Transport Officers
who shall submit monthly reports to the Principal Secretary in regard to the extent
of enforcement and nature of compliance. Circulars shall accordingly be issued to
all the heads of the respective departments across the State of U.P. to ensure
compliance in strict terms.

14. We clarify that the compliance shall be exacted from all vehicles whether
they be private or public vehicles.

15. The petition is accordingly disposed of. There shall be no order as to costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2016

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Service Single No.- 2710 of 2015

Smt. Santosh Kumari ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents
3 All. Smt. Santosh Kumari Vs State Of U.P. & Ors.
65

Counsel for the Petitioner:
Jyoti Sikkanee Mehrotra

Counsel for the Respondents:
C.S.C.

Service Law - Pension - Ad-hoc appointment - Regularisation - Computation of ad-hoc service
for pension - Regularisation Rules, 1979 (as amended in 2001) - Civil Service Regulations -
Regulation 370 - Due date of regularisation - Officiating service - Deemed confirmation -
Mandamus for grant of pensionary benefits.

The regularisation rules in so far as its application to a direct ad-hoc appointee lay down a cut of date
i.e. 30.06.1998 and the requirement of employee's continuity in service as on the date of
commencement of rules i.e. 20.12.2001 is also provided for under Rule 4 (1) (i). Both these conditions
stand met with by the petitioner. A complete reading of Rule 4 (1) (i) to (iii) makes it abundantly clear
that a person directly appointed as ad-hoc on or before 30.06.1998 who is continuing in service on the
commencement of rules and is possessed with the requisite qualification on the date of initial
appointment and having completed or after he has completed three years requisite service shall be
considered for regularisation on the basis of record against an available permanent or temporary
vacancy subject to his or her suitability. The accrual of right of consideration is the due date and it is
this date from which a person acquires a right to hold the post and services so rendered from the due
date not being fortuitous are bound to be treated as officiating services. Once an ad-hoc employee
whose right of consideration has accrued from the due date in terms of Rule 4 (1) (i) to (iii) is
regularised in service later, the past services from the due date are bound to be treated as officiating
services against permanent or temporary vacancy and the same are computable for post retiral dues.
(Paras 16-20)

Held: (Para 28-30) Having given a careful thought to the provisions of statutory rules, I am of the
considered opinion that question no. 1 & 2 framed above are to be answered in affirmative. The
Regularisation Rules envisage a statutory duty on the state authorities to consider the claim of an adhoc employee for regularisation as per rules on the vacancy becoming / having become available and
non-performance of this duty would entitle a person regularised in service to claim the benefit of past
services for post retiral dues from the due date. In the result, the petitioner's services rendered
w.e.f. 20.12.2001 i.e. date of third amendment in the Regularisation Rules, 1979 as per the prayer
made and confined orally in the present case is liable to be entertained for the purpose of grant of
pension and her claim to this extent deserves to be allowed. The ground of parity in the light of
order dated 14.12.2014 is also left open to considered by the competent authority. Accordingly, the
writ petition is disposed of and a writ of mandamus is issued to the respondents to consider the
petitioner's claim for the grant of pension by allowing her the benefit of past services w.e.f.
20.12.2001 for the purpose of pensionary benefits and the requisite exercise in this regard inclusive of
the payment of arrears shall be undertaken and completed by the respondents within a period of
three months from the date a certified copy of this judgement is filed before them.

Case Law discussed: --
1. Industrial Supplies Pvt. Ltd. & another v. Union of India & others, (1980) 4 SCC 341,referred in para
21; applied in para 22.
2. (2001) 7 SCC 161 - referred and relied upon in paras 23 and 24.
3. Special Appeal Defective No. 23 of 2014, Jai Prakash v. State of U.P. & others ,noticed in para 27.
4. Writ (A) No. 60352 of 2015, Babu @ Babu Ram v. State of U.P. & others, Full Bench, decided on
18.02.2016 - noticed in para 27.
66 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Attau Rahman Masoodi, J.)

1. Supplementary counter affidavit filed by learned Standing Counsel is taken on
record.

2. Learned Counsel for the petitioner does not wish to file any rejoinder affidavit to the
supplementary counter affidavit.

3. Heard learned Counsel for the petitioner and learned Standing Counsel who has
accepted notice on behalf of respondents.

Factual Background

4. The petitioner was initially appointed as junior clerk on ad-hoc basis by order dated
22.04.1989 against a regular post and she was regularized in service on the post of junior
clerk under the Uttar Pradesh Regularisation of Ad-hoc Appointments (On Posts Outside the
Purview of the Public Service Commission) Rules, 1979 as amended in the year 2001 by
order dated 30.06.2008.

5. Petitioner has also retired from service in the year 2014 whereafter papers for grant
of pension were forwarded to the Treasury for necessary sanction which on being processed
have been found to be defective and accordingly her claim for pensionary benefits was
returned to the department for rectification of the defects vide letter dated 30.04.2013. The
in-action on the part of the State authorities to rectify the defects in terms of the aforesaid
letter has given rise to the present writ petition wherein the relief prayed for is reproduced
below:-

"(i) Issue a writ, order or direction in the nature of mandamus commanding the
opposite parties to provide the pensionary benefits to the petitioner being a regular
employee.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the
opposite parties to consider the service period rendered by the petitioner as ad-hoc
employee for commutation of pension."

6. Learned Counsel for the petitioner has submitted that the petitioner was appointed as
ad-hoc employee in the year 1989 after following due process of selection who has worked
against a regular post and was granted all the benefits of service including selection grade
and promotional scale on the completion of requisite length of service from the initial date
of appointment. It is further submitted that the case of the petitioner to be considered for
regularisation fell due as per the amendment made in the aforesaid rules w.e.f. 20.12.2001
but non-consideration of the petitioner's claim timely has resulted into an injury which
deserves to be considered on the strength of an uninterrupted satisfactory service rendered
by her ever since her initial appointment or at least by computing her unblemished service
3 All. Smt. Santosh Kumari Vs State Of U.P. & Ors.
67
against a regular vacancy after the enforcement of amendment in the regularisation rules
w.e.f. 20.12.2001.

7. The continuity of the petitioner as ad-hoc employee is not in dispute and availability
of regular post is also not disputed by the learned Standing Counsel in the counter affidavit
filed on 12.08.2015. Moreover, the recommendation made vide letter dated 13.01.2016 for
grant of post retiral dues also makes a mention of the existence of post against which the
petitioner was appointed from the initial stage and the entire services rendered by the
petitioner are in a permanent establishment is also not in dispute.

8. The fact remains that the petitioner after being regularised in service by order dated
30.06.2008 has thereafter not raised any grievance against her regularisation for being
related back to the due date and a specific grievance as regards the consequence of
regularisation being effective from the date of order, on her post retiral benefits, was also not
conceived and agitated by her while in service and the issue of confirmation never surfaced
before the petitioner till she attained the age of superannuation. It is in this background that
the State Government in its stand taken in the counter affidavit has denied the benefit of
pension disallowing her ad-hoc service to be treated as computable for the purpose of
fulfilling the requisite period of ten years length of service for the grant of pension.

9. The minimum length of qualifying service for the purpose of eligibility for payment
of pension to a government servant undisputedly is ten years. The dispute only relates to the
inclusive computation of ad-hoc service from the due date or at least from the date of
amendment of rules i.e. 20.12.2001 upto the date of regularisation i.e. 30.06.2008 for the
purpose of sanction of pensionary benefits.

10. Learned Counsel for the petitioner has submitted that the authorities ought to have
considered her for regularisation soon after the amendment in the Regularisation Rules,
1979 which was given effect to w.e.f. 20.12.2001 and non-consideration of petitioner's
candidature for regularisation as per rules without there being any justifiable reason entitles
the petitioner's ad-hoc services to be treated as computable for the purposes of pension. The
grievance raised by the petitioner does appear to be just for the reason that a large number of
ad-hoc employees in various departments have been considered for regularisation from the
date of enforcement of amendment Rules, 2001 and this fact has come to be noticed by this
Court in several cases. The petitioner has also brought to the notice of this Court an order
dated 14.12.2012 which shows that similarly situated persons were granted the benefit of adhoc services barring the period of three years from the initial date of appointment.

11. Learned Standing Counsel on the contrary has submitted that in view of the
provisions of Rule 370 of the Civil Service Regulations, a public servant does not qualify for
pension unless the service rendered by an employee is regular and substantive.

12. The stand taken by the learned Standing Counsel appears to be in the light of
paragraph-3 (D) of the counter affidavit, which is reproduced below:-
68 INDIAN LAW REPORTS ALLAHABAD SERIES

"3 (D) - That it is submitted that there is no provision in the relevant service
Rules to count the ad-hoc services rendered by the petitioner for the purposes
of pensionary benefits. In this regard it is relevant to submit here that for
extending the benefit of the pension the relevant provisions are Regulation 361,
368 and 370 of the Civil Service Regulations (in short 'CSR')

Under Article 370 of the Civil Service Regularisations there is no provision for
including the services rendered in the Work Charge Establishment alongwith
the services in the regular establishment for extending the benefits of pension.
The provisions of Section 361, 368 and 370 of the Civil Service Regularisations
are being reproduced below for ready reference and kind convenience of this
Hon'ble Court :

"Section 361 - The service of an officer does not qualify for pension unless it confirms to the
following three conditions:-

(A) The service must be under Government
(B)The employment must be substantive and permanent.
(C) The service must be paid by Government."

"Section 368 - The service does not qualify unless the officer holds a substantive office on a
permanent establishment."

"Section 370 - Continuous temporary or officiating service under the Government of Uttar
Pradesh followed without interruptions by confirmation in the same or any other post shall
qualify except --
(i) periods of temporary or officiating service in non-pensionable establishment;
(ii) periods of service in work-charged establishment; and
(iii)
periods of service in a post paid form contingencies."

Discussion and Conclusions

13. The controversy centres round the interpretation of Rules 4, 6 and 7 of the
Regularisation Rules as amended from time to time in harmony with the provisions of
Regulation 370 of the Civil Service Regulation. The relevant provisions of Regularisation
Rules are extracted below:-

The Uttar Pradesh Regularisation of Ad-hoc Appointment (On Post Outside the
Purview of the Public Service Commission) Rule, 1979
3 All. Smt. Santosh Kumari Vs State Of U.P. & Ors.
69
(4) Regulation of ad-hoc appointments.-------

(1)
Any person who ----

(i) was directly appointed on ad-hoc basis before January 1, 1977 and is
continuing in service as such on the date of commencement of these rules:

(ii) possessed requisite qualifications prescribed for regular appointment at
the time of such ad-hoc appointment; and

(iii) has completed or, as the case may be, after he has completed three years
service as such, shall be considered for regular appointment in permanent or
temporary vacancy, as may be available, on the basis of his record and
suitability before any regular appointment is made in such vacancy in
accordance with the relevant rules or orders.

(2) In making regular appointments under these rules, reservations for the
candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward
classes and other categories shall be made in accordance with the order of
the Government in force at the time of recruitment.

(3) For the purpose of sub-rule (1) the appointing authority shall constitute
a Selection Committee
.
(4) The appointing authority shall prepare an eligibility list of the
candidates arranged in order of seniority, as determined from the date of
order of appointment and, if two or more persons are appointed together from
the order in which their names are arranged in the said appointment order,
the list shall be placed before the Selection Committee alongwith their
character rolls and such other records of the candidates as may be considered
necessary to assess their suitability.

(5) The Selection Committee shall consider the cases of the candidates on
the basis of their records referred to in sub-rule (4).

(6) The Selection Committee shall shall prepare a list of the selected
candidates, the names in the list being arranged in order to seniority, and
forward it to the appointing authority.

(6)Appointments be deemed to be under the relevant service rules etc.Appointment made
under these rules shall be deemed to be under the relevant service rules or orders, if any.

(7) Seniority.-
70 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) A person appointed under these rules shall be entitled to seniority only
from the date of order of appointment after selection in accordance with these
rules and shall, in all cases, be placed below the persons appointed in
accordance with the relevant service rules, or as the case may be, the regular
prescribed procedure, prior to the appointment of such person under these
rules.

(2) If two or more persons are appointed together, their seniority inter-se
shall be determined in the order mentioned in the order of appointment.

The Uttar Pradesh Regularisation of Ad-hoc Appointment (On Post Outside the Purview
of the Public Service Commission) (Third Amendment) Rule, 2001. (Published on
20.12.2001).

2.Amendment of rule 4.- In the Uttar Pradesh Regularisation of Ad-hoc Appointments (on
posts outside the purview of the Public Service Commission) Rules, 1979 in rule 4 for
existing sub-rule (1)set out in column 1 below, the sub-rule as set out in column 2 shall be
substituted, namely :

Column 1
Column 2
Existing sub-rule
Sub-rule as hereby substituted
(1) Any person who-----
(1) Any person who-----
(i) was directly appointed on ad-hoc basis before January 1,
1977 and is continuing in service as such on the date of
commencement of these rules:

(i) was directly appointed on ad-hoc basis on or before June
30, 1998 and is continuing in service as such on the date of
commencement of the Uttar Pradesh Regularisation of Adhoc Appointments (on posts outside the purview of the
Public Service Commission) (Third Amendment) Rules,
2001.
(ii) possessed requisite qualifications prescribed for regular
appointment at the time of such ad-
hoc appointment; and
(ii) possessed requisite qualifications prescribed for regular
appointment at the time of such ad-hoc appointment; and
(iii) has completed or, as the case may be, after he has
completed three years service shall be considered for
regular appointment in permanent
or temporary vacancy, as may be available, on
the basis of his record and suitability before any
regular appointment is made in such vacancy in
accordance with the relevant rules or orders.
(iii) has completed or, as the case may be, after he has
completed three years service shall be considered for
regular appointment in permanent or temporary vacancy,
as may beavailable, on the basis of his record and
suitability before any regular appointment is made in such
vacancy in accordance with therelevant rules or orders.

14. The petitioner has argued that the requisite three years period of ad-hoc service
prior to the enforcement of third amendment in Regularisation Rules, 1979 on 20.12.2001
may exclusively be relevant for petitioner's consideration for regularisation in service but
the satisfactory service rendered by her against an existing post from the due date of her
eligibility and particularly after enforcement of amendment in the statutory rules on
3 All. Smt. Santosh Kumari Vs State Of U.P. & Ors.
71
20.12.2001, is bound to be treated as computable for pension once the petitioner was
regularised in service as per rules by order dated 30.06.2008. It is true that the order of
regularisation issued on 30.06.2008 is effective from the date of its issuance but in a
situation where dereliction of duty on the part of State Authorities is equally made out, the
grievance cannot be out rightly rejected and equitable considerations must come into play.

15. In the light of above argument, it is necessary to understand the scheme of
regularisation rules before the services of an ad-hoc employee may be interpreted as
computable or not for the purposes of pension within the scope of statutory provisions as
have been placed reliance upon.

16. The regularisation rules in so far as its application to a direct ad-hoc appointee lay
down a cut of date i.e. 30.06.1998 and the requirement of employee's continuity in service
as on the date of commencement of rules i.e. 20.12.2001 is also provided for under Rule 4
(1) (i). Both these conditions stand met with by the petitioner for the reason that the
petitioner was initially appointed on ad-hoc basis vide order dated 22.04.1989 and she was
continuing in service as on the date of enforcement of third amendment made in the
statutory rules on 20.12.2001. The petitioner was also possessed with the requisite
educational qualifications at the time of her initial appointment on ad-hoc basis and
fulfilment of all the above three requirements in terms of Rule 4 (1) (i) & (ii) are not in
dispute.

17. The rule that lends support to the claim of an ad-hoc employee for computation of
his/her ad-hoc services for the purposes of post retiral benefits is manifest from the language
of Rule 4 (1) (iii) which provides that an ad-hoc employee who has completed or as the
case may be, after he has completed three years, shall be considered for regular appointment
in permanent or temporary vacancy, as may be available on the basis of his record and
suitability. This rule in its application is wide enough and also applies to a past claim with
reference to cut of date i.e. 30.06.1998 and subject to the satisfaction of other conditions viz
(a) availability of vacancy and (b) suitability judged on the basis service record prior to the
availability of vacancy temporary or permanent. A complete reading of Rule 4 (1) (i) to (iii)
makes it abundantly clear that a person directly appointed as ad-hoc on or before 30.06.1998
who is continuing in service on the commencement of rules and is possessed with the
requisite qualification on the date of initial appointment and having completed or after he
has completed three years requisite service shall be considered for regularisation on the
basis of record against an available permanent or temporary vacancy subject to his or her
suitability. The statutory obligation on the part of State Government to consider the claim
gives birth as soon as upon the enforcement of rules, the vacancy is/was available whether
temporary or permanent. In the present case the respondents have not disputed the
availability of post / vacancy but what is pleaded is that the petitioner's ad-hoc services can
not be computed in view of the provisions of the Civil Service Regulations. It may be noted
that by virtue of Rule-6 of the Regularisation Rules, all appointments under the
regularisation rules are deemed as if they are made under the relevant service rules. The
regularisation order issued to the petitioner on 30.06.2008 clearly makes out the nature of
her appointment to be permanent and the period of probation is also not provided for
72 INDIAN LAW REPORTS ALLAHABAD SERIES
therein. Regularisation of an employee for the purposes of seniority as per Rule-7 of the
Regularisation Rules may be effective from the date of order but for all other purposes the
services are to be counted from the 'due date' i.e. when regularisation of an ad-hoc employee
fell due.

18. The plain language used by the rule making authority in rule 4, 6 and 7 gives rise to
two important questions viz (1) whether the authorities are duty bound to consider an ad-hoc
appointee for regularisation from the due date i.e. on the availability of a permanent /
temporary vacancy; and failure on their part to carry out this obligation as per rules would
at all entitle an employee for computation of his/her past services for post retiral dues upon
the enforcement of statutory rules. (2) Whether an employee who is regularised in service
from the date of order under the Regularisation Rules is entitled to the benefit of past
services for the purpose of post retiral dues from the due date i.e. when his claim for
consideration fell due.

19. In the context of Regularisation Rules, the 'due date' on which the right of
consideration of an ad-hoc employee accrues does not appear to have been dealt with much
in the case laws. Having regard to the scheme of Regularisation Rules and particularly Rule
4 (1) (i) to (iii) amended from time to time, this Court is of the opinion that as soon as a
temporary or permanent vacancy is/was available, the right of consideration of an ad-hoc
employee accrues for being considered subject to the fulfilment of other statutory
conditions, therefore, the due date of consideration in relation to an ad-hoc employee is the
date when he fulfils all the requisite criteria prescribed under the rules against an available
vacancy whether temporary or permanent. The accrual of right of consideration is the 'due
date' and it is this date from which a person acquires a right to hold the post and services so
rendered from the due date not being fortuitous are bound to be treated as officiating
services. Once an ad-hoc employee whose right of consideration has accrued from the due
date in terms of Rule 4 (1) (i) to (iii) is regularised in service later, the past services from the
due date i.e. when his right of consideration has accrued as per rules are bound to be treated
as officiating services against permanent / temporary vacancy and the same are computable
for post retiral dues. In other words the services rendered by an ad-hoc employee would not
qualify for computation towards post retiral dues so long as a person does not have a right to
hold the post and once the right accrues on availability of vacancy permanent / temporary
and has subsequently crystallised by a positive act of regularisation in service, the due date
becomes significant and the benefits arising therefrom can not be brushed aside on technical
grounds or the default attributable to the employer himself.

20. The regularisation of an employee effective from the date of order issued at a later
stage may be decisive for the purpose of seniority under Rule-7, but so far as the benefit of
pension is concerned, the past services from the 'due date' are liable to be computed for
pension due to the reason that an ad-hoc employee's right to hold and officiate on the post
held by him stands accrued as per law. It may also be noted that as a consequence of failure
to claim the benefit of seniority from the due date, a person may loose his seniority and
some other seniority related parities but for the purposes of pension, services so rendered
3 All. Smt. Santosh Kumari Vs State Of U.P. & Ors.
73
cannot be ignored once an employee is regularised in service as per rules and he has
rendered the past services against a post in permanent establishment.

21. The creation of right of consideration from the due date is a legal fiction which
advances the cause of substantial justice between the parties on equitable consideration.
Such a right is well conceived and is not opposed to the object of Regularisation Rules,
1979. Reference may be made to para25 of the decision of Industrial Supplies Pvt. Ltd. &
another versus Union of India and others reported in (1980) 4 SCC 341 and the same is
extracted below:-

It is now axiomatic that when a legal fiction is incorporated in a statute, the
court has to ascertain for what purpose the fiction is created. After ascertaining the
purpose, full effect must be given to the statutory fiction and it should be carried to its
logical conclusion. The court has to assume all the facts and consequences which are
incidental or inevitable corollaries to giving effect to the fiction. The legal effect of
the words 'as if he were' in the definition of owner in Section 3(n) of the
Nationalisation Act read with Section 2(1) of the Mines Act is that although the
petitioners were not the owners, they being the contractors for the working of the
mine in question, were to be treated as such though, in fact, they were not so. The oftquoted passage in the judgement of Lord Asquith in East End Dwelling Co. Ltd.
versus Finsbury Borough Council brings out the legal effect of a legal fiction in these
words:

If you are bidden to treat an imaginary state of affairs as real, you must
surely, unless prohibited from doing so, also imagine as real the consequence and
incidents which, if the putative state of affairs had in fact existed, must inevitably have
flowed from or accompanied it.......... The statute says that you must imagine a certain
state of affairs; it does not say that having done so, you must cause or permit your
imagination to boggle when it comes to the inevitable corollaries of that state of
affairs.

22. The passage quoted above , in my opinion, does support the reasoning as has been
recorded above.

23. The next hurdle coming in the way of present case is the requirement of
confirmation under Regulation-370 of the Civil Service Regulations. From a plain reading
of the provisions of Regularisation Rules it is clear that the appointments made under the
said rules are permanent and are deemed to have been made under the relevant service rules,
if any. The Regularisation Rules do not provide any period of probation, whereas, the
relevant service rules may provide for the same. In the present case, the petitioner belongs to
the ministerial cadre which is governed under The Subordinate Offices, Ministerial Staff
(Direct Recruitment) Rules, 1985. Rule 28 of the service rules prescribes the period of
probation as one year extendable to a maximum period of further one year. In the case at
hand, even if it is assumed that the petitioner was appointed on probation, in absence of
anything adverse being communicated to her, the petitioner would be deemed to have been
confirmed on completion of maximum period of two years beyond which the period of
74 INDIAN LAW REPORTS ALLAHABAD SERIES
probation could not be extended. Confirmation in government services is an inglorious
uncertainty but in absence of any such dispute in the present case, the appointment of the
petitioner being substantive and she having completed the maximum period of probation
would be deemed as confirmed on the date of retirement, as such, she was rightly
recommended for the payment of pension. Reference may also be made to the judgement
reported in (2001) 7 SCC 161 wherein para 11 of the judgement reads as under:-

11.The question of deemed confirmation in service jurisprudence, which is
dependent upon the language of the relevant service rules, has been the subjectmatter of consideration before this Court, times without number in various decisions
and there are three lines of cases on this point. One line of cases is where in the
service rules or in the letter of appointment a period of probation is specified and
power to extend the same is also conferred upon the authority without prescribing any
maximum period of probation and if the officer is continued beyond the prescribed or
extended period, he cannot be deemed to be confirmed. In such cases there is no bar
against termination at any point of time after expiry of the period of probation. The
other lines of cases is that where while there is a provision in the rules for initial
probation and extension thereof, a maximum period for such extension is also
provided beyond which it is not permissible to extend probation. The inference in such
cases is that the officer concerned is deemed to have been confirmed upon expiry of
the maximum period of probation in case before its expiry the order of termination
has not been passed. The last line of cases is where, though under the rules maximum
period of probation is prescribed, but the same requires a specific act on the part of
the employer by issuing an order of confirmation and of passing a test for the
purposes of confirmation. In such cases, even if the maximum period of probation has
expired and neither any order of confirmation has been passed nor has the person
concerned passed the requisite test, he cannot be deemed to have been confirmed
merely because the said period has expired.

24. Looking to the relevant service rule mentioned above, the Apex Court Judgement
lends complete support to the deemed confirmation of the petitioner in service. It may also
be noted that the respondents have not pointed out anything adverse regarding petitioner's
work and conduct at any point of time. The determination of suitability of the petitioner for
regularisation in service is based on a criteria which is akin to the relevant consideration for
confirmation.

25. In a situation where appointments are made as per regularisation rules, the process
of confirmation is usually merged in the process of determination of regularisation and
separate orders of confirmation in terms of U.P. State Government Servants Confirmation
Rules, 1991 are not issued and an appointee regularised in service is deemed to be
confirmed from the date of issuance of order and it is for this reason that the regularisation
orders do not provide for any period of probation in so far as ad-hoc employees are
concerned. In the present case, the regularisation order issued in favour of the petitioner on
30.06.2008 does not provide any period of probation and her appointment was treated as
confirmed for the purposes of all service benefits from the date of order, therefore, there
3 All. Smt. Santosh Kumari Vs State Of U.P. & Ors.
75
does not arise any question to doubt the petitioner's entitlement for post retiral dues on this
account.

26. The object of equality in service conditions has not to be lost sight of by the State
while discharge of its constitutional obligations and any deviation attempted to prejudice
this object deserves to be discouraged. Not only that the conditions of recruitment are to be
strictly followed but disparity in the service conditions are also bound to be brought down to
the possible extent so that public servants have a strong faith in governance which at no cost
can be allowed to be compromised. Failure on the part of State to achieve just and fair
treatment amongst equals is constantly raising serious issues impinging on the individual
rights and the Courts must come to rescue on noticing the complexity of each case so that
judicial dynamism remains alive within the limits of constitutional mandate.

27. A recent judgement rendered by a Division Bench of this Court in Special Appeal
Defective No. 23 of 2014, Jai Prakash versus State of U.P. and others has also dealt with the
issue in the context of pensionable establishments. In the present case, the permanence of
the establishment is not questionable for the reason that the department itself has
recommended the case of the petitioner for pension, therefore, the law laid down by this
Court fortifies the petitioner's claim. The view taken by the Full Bench in Writ (A) No.
60352 of 2015 (Babu @ Babu Ram versus State of U.P. and others) decided on 18.02.2016
also comes to the aid of the petitioner in principle.

28. Having given a careful thought to the provisions of statutory rules, I am of the
considered opinion that question no. 1 & 2 framed above are to be answered in affirmative.
The Regularisation Rules envisage a statutory duty on the state authorities to consider the
claim of an ad-hoc employee for regularisation as per rules on the vacancy becoming /
having become available and non-performance of this duty would entitle a person
regularised in service to claim the benefit of past services for post retiral dues from the due
date.

29. In the result, the petitioner's services rendered w.e.f. 20.12.2001 i.e. date of third
amendment in the Regularisation Rules, 1979 as per the prayer made and confined orally in
the present case is liable to be entertained for the purpose of grant of pension and her claim
to this extent deserves to be allowed. The ground of parity in the light of order dated
14.12.2014 is also left open to considered by the competent authority.

30. Accordingly, the writ petition is disposed of and a writ of mandamus is issued to the
respondents to consider the petitioner's claim for the grant of pension by allowing her the
benefit of past services w.e.f. 20.12.2001 for the purpose of pensionary benefits and the
requisite exercise in this regard inclusive of the payment of arrears shall be undertaken and
completed by the respondents within a period of three months from the date a certified copy
of this judgement is filed before them.

31. No order as to cost.
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76 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2016

BEFORE

THE HON'BLE V.K SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J

Writ A No.- 66871 of 2015

Nadeem Anwar ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Siddharth Khare

Counsel for the Respondents:
C.S.C., Nisheeth Yadav

Service Law - Judicial Service - Civil Judge (Junior Division) - Advertisement No. A-1/E-1/2013
dated 23.5.2013 - Requisition of 125 posts - Recommendation of selected candidates - Non-joining
of candidates - Vacant posts - Select list - Wait-list - Life of select list - Uttar Pradesh Judicial
Service Rules, 2001 - Uttar Pradesh Judicial Service (Second Amendment) Rules, 2012 - Rule 20(3)
- Rule 21(2) - Statutory Rules - Executive instructions - Government Orders dated 31.1.1994 and
15.11.1999 - Cancellation of candidature - Filling up of vacancies - Mandamus.

Nadeem Anwar is before this Court for the following reliefs:
a writ, order or direction in the nature of mandamus be issued commanding the respondent no. 2 to
forward the name of the General Category candidate in order of the merit to fill the posts of Civil
Judge (Junior Division), lying vacant which was a part of the advertisement dated 23.5.2013 before
the State Government pursuance to which follow up action may be taken within a reasonable period
for appointment.
A writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the
circumstances of the case.
Award cost to the humble petitioner throughout of the present writ petition. (Paras 1)

Brief background of the case, as is reflected from the record in question, is that a requisition of 125
posts for U.P. Civil Judge (Junior Division) under U.P. Nyayik Sewa was sent by the State Government
vide its letter dated 17.4.2013 and in consonance of the aforesaid requisition the U.P. Public Service
Commission (hereinafter referred to as the "Commission") has issued an advertisement for the
aforesaid 125 posts of Civil Judge (Junior Division) vide its advertisement No. A-1/E-1/2013 dated
23.5.2013. . (Paras 2)

Petitioner pursuant to the aforementioned advertisement in question applied for consideration of his
candidature as a General Category candidate and undertook the preliminary examination in question
wherein 1314 candidates were found suitable for the written/main examination. Written/Main
examination for the aforesaid 125 posts was held by the Commission in the month of January 2014
and out of 1314 candidates, 386 candidates were provisionally qualified for the interview/personality
test. This much is also reflected from the record that petitioner faced the interview as a General
Category candidate but he could not be selected in the final select list. Record in question reflects that