# State Of U.P. & Ors v. Roop Chandra

- **Citation:** (2016) 3 ILRA 512
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-19
- **Bench:** Rakesh Tiwari, Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-roop-chandra-43434
- **Pages:** 6

## Headnote

This special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, has been
preferred challenging the judgment And order dated 30.01.2009 passed by Learned Single Judge in
Civil Misc. Writ Petition No. 52720 of 2007 - Roop Chandra Vs. State of U.P. and four Others,
whereby the writ petition was allowed in part And the respondents-appellants were directed to
allow the benefit of Government Order dated 19.04.2006, to the petitioner-respondent From the
date of Government Order.

Brief facts giving rise to present appeal are that the petitioner- Respondent was appointed as Class IV
employee on 07.08.1971, by The competent authority in Mahamana Malviya Inter College

Khekhada, District - Aligarh imparting secondary education and is Also under grant-in-aid by the
State Government. The petitioner Retired on attaining age of superannuation on 31.10.2005.
Admittedly, When petitioner-respondent retired, he was not entitled for gratuity And other retiral
benefits. Meanwhile, the State Government by the Government Order dated 19.04.2006, provided
benefits of gratuity And other retiral benefits to the non-teaching Class IV employees. The petitionerrespondent claimed the benefit of gratuity and post retiral Benefits on the basis of the said
Government Order and accordingly Moved a representation in this regard. The representation was not
Decided. The petitioner-respondent filed Writ Petition No. 52720 of 2007, which was partly allowed,
directing the respondents-appellants To grant the benefit of Government Order dated 19.04.2006, to
the petitioner-respondent from the date of Government Order, giving rise To present appeal.

Sri Som Pal Mishra, learned Standing Counsel appearing for respondents-appellants, submits that
the petitioner-respondent is not Entitled for the gratuity and other retiral benefits as he has retired
Prior to 19.04.2006 and bunder the Government Order dated 19.04.2006, only those nonteaching staffs are entitled for the benefit Of the gratuity and post retiral benefits, who retires after
19.04.2006.This position has been clarified by the Government Order dated 23.11.2007. In other
words, the aforesaid Government Order is

Prospective and not retrospective i.e. it is made applicable to the Employees who retired earlier,
only w.e.f. 19.04.2006 and not prior to that.

On perusal of impugned judgment and order passed by the Writ Court, we find that same is a well
discussed judgment incorporating detailed discussion of facts and law, therefore, we are of the
considered opinion that petitioner-respondent is entitled for the benefit of gratuity as provided by the
Government Order dated 19.4.2006, which was further clarified by Government Order dated
23.11.2007. We find no infirmity legal or otherwise in the impugned judgment and order and the
same is hereby upheld. The respondents-

Appellants are directed to comply with the directions given by the Writ Court wit

## Text

512 INDIAN LAW REPORTS ALLAHABAD SERIES

13. A Division Bench of this Court, in which one of us (Hon'ble Rakesh Tiwari, J.) was a
member, in Service Single No.5512 of 2013 Ajay Kumar Misra and 8 others vs. Hon'ble
High Court of Judicature at Allahabad thru R.G. & others held that "Since as already settled
all such appointments made otherwise than by way of regular selection, do no confer any
perennial right of continuance on sanctioned posts and the principle of last come first go is
applicable, the consequence of this judgment shall accordingly follow."

14. In view of the admitted fact that on the date of initial appointment no vacant post for
appointment of petitioner-appellant was available, approval or permission of the D.I.O.S, will
not be considered as creation or sanction of the post. Apart from this, post was not advertised
immediately as due procedure for recruitment has not been approved. No regularization scheme
has been floated by the Government for absorption of the petitioner-appellant like persons,
therefore availability of subsequent vacancy will not make any change in the situation. Apart
from this appointment of petitioner-appellant is also not in consonance of the aforesaid legal
position.

15. In the judgment impugned learned Single Judge has recorded a clear finding that the
petitioner was appointed against a non-existent post and, as such, he was neither entitled for
payment of salary nor he has any right to claim continuance on such a non-existent post. In
reaching the above conclusion, he has rightly relied a full Bench decision rendered by this Court
in the case of Gopal Deubey Vs. District Inspector of Schools, Maharajganj, 1991 UPLBEC
Volume (1) page 1 (Full Bench).

16. Perusal of judgment impugned reveals that all the arguments raised on behalf of
petitioner-appellant were discussed in detail and proper conclusions have been drawn.

17. For all aforesaid reasons, we find no infirmity or illegality in the judgment impugned.
Special appeal lacks merit and is liable to the dismissed.

18. This special appeal is accordingly dismissed

19. There is no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2015

BEFORE

THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE SHASHI KANT, J.

Special Appeal No. - 817 of 2010

State Of U.P. & Ors. ...Appellants
Versus
Roop Chandra ...Respondent
3 All. State OF U.P. & Ors. Vs Roop Chandra
513

Counsel for the Appellants:
Suresh Singh, A.C.S.C

Counsel for the Respondent:
A.N Rai

This special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, has been
preferred challenging the judgment And order dated 30.01.2009 passed by Learned Single Judge in
Civil Misc. Writ Petition No. 52720 of 2007 - Roop Chandra Vs. State of U.P. and four Others,
whereby the writ petition was allowed in part And the respondents-appellants were directed to
allow the benefit of Government Order dated 19.04.2006, to the petitioner-respondent From the
date of Government Order.

Brief facts giving rise to present appeal are that the petitioner- Respondent was appointed as Class IV
employee on 07.08.1971, by The competent authority in Mahamana Malviya Inter College

Khekhada, District - Aligarh imparting secondary education and is Also under grant-in-aid by the
State Government. The petitioner Retired on attaining age of superannuation on 31.10.2005.
Admittedly, When petitioner-respondent retired, he was not entitled for gratuity And other retiral
benefits. Meanwhile, the State Government by the Government Order dated 19.04.2006, provided
benefits of gratuity And other retiral benefits to the non-teaching Class IV employees. The petitionerrespondent claimed the benefit of gratuity and post retiral Benefits on the basis of the said
Government Order and accordingly Moved a representation in this regard. The representation was not
Decided. The petitioner-respondent filed Writ Petition No. 52720 of 2007, which was partly allowed,
directing the respondents-appellants To grant the benefit of Government Order dated 19.04.2006, to
the petitioner-respondent from the date of Government Order, giving rise To present appeal.

Sri Som Pal Mishra, learned Standing Counsel appearing for respondents-appellants, submits that
the petitioner-respondent is not Entitled for the gratuity and other retiral benefits as he has retired
Prior to 19.04.2006 and bunder the Government Order dated 19.04.2006, only those nonteaching staffs are entitled for the benefit Of the gratuity and post retiral benefits, who retires after
19.04.2006.This position has been clarified by the Government Order dated 23.11.2007. In other
words, the aforesaid Government Order is

Prospective and not retrospective i.e. it is made applicable to the Employees who retired earlier,
only w.e.f. 19.04.2006 and not prior to that.

On perusal of impugned judgment and order passed by the Writ Court, we find that same is a well
discussed judgment incorporating detailed discussion of facts and law, therefore, we are of the
considered opinion that petitioner-respondent is entitled for the benefit of gratuity as provided by the
Government Order dated 19.4.2006, which was further clarified by Government Order dated
23.11.2007. We find no infirmity legal or otherwise in the impugned judgment and order and the
same is hereby upheld. The respondents-

Appellants are directed to comply with the directions given by the Writ Court within a period of two
months from the date of production of certified copy of this order.

Held: Para-

Case Law discussed:
514 INDIAN LAW REPORTS ALLAHABAD SERIES
Dhanraj and Another Vs. State of Jammu and Kashmir and Others [1998(2) UPLBEC
1525].Shanti Devi (Smt.) Versus State of U.P. and Others (Supra).Smt. Akhtari Begum
Vs. Director of Education

Rajmuni Devi Versus District Inspector of Schools, Ghazipur and others, D.S. Nakara Vs
Union of India (Supra).D.S. Nakara and others Vs. Union of India (Supra)Mohal Lal
Sharma and etc. Vs. State of Rajasthan and another (Supra),

(Delivered by Hon'ble Rakesh Tiwari, J.
&
Hon'ble Shashi Kant, J.)

1. Heard Sri Som Pal Mishra, learned Standing Counsel appearing for appellants, Sri
A.N. Rai, learned counsel for respondent and perused the record.

2. This special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules,
1952, has been preferred challenging the judgment and order dated 30.01.2009 passed by
Learned Single Judge in Civil Misc. Writ Petition No. 52720 of 2007 - Roop Chandra Vs.
State of U.P. and four Others, whereby the writ petition was allowed in part and the
respondents-appellants were directed to allow the benefit of Government Order dated
19.04.2006, to the petitioner-respondent from the date of Government Order.

3. Brief facts giving rise to present appeal are that the petitioner-respondent was
appointed as Class IV employee on 07.08.1971, by the competent authority in Mahamana
Malviya Inter College Khekhada, District - Aligarh imparting secondary education and is
also under grant-in-aid by the State Government. The petitioner retired on attaining age of
superannuation on 31.10.2005. Admittedly, when petitioner-respondent retired, he was not
entitled for gratuity and other retiral benefits. Meanwhile, the State Government by the
Government Order dated 19.04.2006, provided benefits of gratuity and other retiral benefits
to the non-teaching Class IV employees. The petitioner-respondent claimed the benefit of
gratuity and post retiral benefits on the basis of the said Government Order and accordingly
moved a representation in this regard. The representation was not decided. The petitionerrespondent filed Writ Petition No. 52720 of 2007, which was partly allowed, directing the
respondents-appellants to grant the benefit of Government Order dated 19.04.2006, to the
petitioner-respondent from the date of Government Order, giving rise to present appeal.

4. Sri Som Pal Mishra, learned Standing Counsel appearing for respondents-appellants,
submits that the petitioner-respondent is not entitled for the gratuity and other retiral benefits
as he has retired prior to 19.04.2006 and under the Government Order dated 19.04.2006,
only those non-teaching staffs are entitled for the benefit of the gratuity and post retiral
benefits, who retires after 19.04.2006. This position has been clarified by the Government
Order dated 23.11.2007. In other words, the aforesaid Government Order is prospective and
not retrospective i.e. it is made applicable to the employees who retired earlier, only w.e.f.
19.04.2006 and not prior to that.
3 All. State OF U.P. & Ors. Vs Roop Chandra
515

5. Learned Standing Counsel further submits that this issue came up before this Court
in Civil Misc. Writ Petition No. 43208 of 2009 - Suresh Chandra Sharma Vs. State of U.P.
and Others and Civil Misc. Writ Petition No. 45209 of 2009 - V.K. Shrama Vs. State of U.P.
and Others, and on account of doubts in respect to cut-off date with regard to applicability of
aforesaid Government Orders, following two issues were referred to the Larger Bench :

"(a) Whether the Government Order dated 19th April, 2006, as explained by the
Government Order dated 23rd November 2007, is valid and being prospective in nature will
have no application to the employees who retired prior to the date of issuance of the
Government Order?

(b) Whether an employee, who had opted for retiring at the age of 60 years, like
the petitioner, without availing the benefit of gratuity can not be permitted to turn around
and claim gratuity after this retirement in view of the Government Order dated 19th April
2006?"

6. By way of supplementary affidavit, filed by the respondents-appellants the order
dated 16.11.2010 of Larger bench (a Division Bench of this Court), has been brought on
record. The relevant part of which reads as under :

"(a) That the Government Order dated 19th April, 2006, as clarified in
Government Order dated 23rd November, 2007, is prospective in nature. It will not apply to
the employees, who had retired prior to the issuance of the said Government Order.

(b) If the employee had opted for retiring at the age of 60 years with specific
stipulation that he will not claim to gratuity, his right stands crystallized accordingly on the
date of retirement and he cannot be permitted to turn around and claim gratuity in view of
the subsequent Government Order dated 19th April, 2006, which is prospective in nature."

7. Countering the above submissions made on behalf of respondents-appellants, Sri
A.N. Rai, learned counsel for petitioner-respondent submitted that the Government Order
dated 19.04.2006, is applicable to those employees also who have retired prior to
19.04.2006. Thus, the petitioner is entitled for the benefit of gratuity and other post retiral
benefits under the Government Order dated 19.04.2006. In support of his contentions he has
placed reliance on the case of Dhanraj and Another Vs. State of Jammu and Kashmir
and Others [1998(2) UPLBEC 1525].

8. Having heard learned counsel for the parties and on perusal of record, we find that
the observations made by the Larger Bench in respect to aforesaid Government Orders are
applicable to the cases where an employee had chosen to retire at the age of 60 years with
specific stipulation that he will not claim gratuity. In the case in hand, the petitionerrespondent, had retired at the age of 58 years, and had filled no option that he will not claim
gratuity.
516 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In our view, in the peculiar facts and circumstances of the present case, the Writ Court has
rightly allowed the claim of petitioner-respondent for payment of gratuity in terms of Government
Order dated 19.04.2006 as well as 23.11.2007. The Writ Court in its order dated 30.01.2009,
impugned in this appeal, has observed thus :

"In the case of Shanti Devi (Smt.) Versus State of U.P. and Others (Supra) the family
pension was provided vide Government Order dated 24.2.1989 w.e.f. 1.1.1989. the family pension
was denied to the petitioner-Shanti Devi on the ground that her husband who was the Class IV
employee in the State aided Junior High School died on 20.11.1987 i.e. before 1.1.1989. This Court
following the decision in the Writ Petition No. 34835 of 1995 Mohmooda Begum and Writ Petition
No. 23609 of 1995 Smt. Akhtari Begum Vs. Director of Education held that the petitioner was
entitled for the benefit of family pension in view of the Government Order w.e.f. 1.1.1989. Similar
view has also been taken by another learned single Judge in the case of Rajmuni Devi Versus
District Inspector of Schools, Ghazipur and others, reported in 2002 (1) ESC-136. In this case also
the benefit of family pension was denied on the ground that husband of the petitioner who was the
employee died on 31.8.1987 prior to 1.1.1989. Learned single Judge has held that denial of family
pension to the petitioner on the aforesaid ground is illegal following the decision of the Apex Court in
the case of D.S. Nakara Vs. Union of India (Supra).

In the case of Dhan Raj and Others Vs. State of Jammu & Kashmir and others (Supra),
the question was whether the drivers and conductors of Jammu & Kashmir State Road Transport
Corporation who retired prior to 9th June, 1981 were entitled for the benefit of the pension under the
Government Order dated 3.10.1986 granting pension w.e.f. 9th June, 1981. The Apex Court held that
the drivers and conductors of Jammu & Kashmir State Road Transport Corporation who retired
prior to 9th June, 1981 are also entitled for the benefit of the pension under the Government Order
dated 3.10.1986 in as much as denial of the pension to those drivers amounts to discrimination and
violative of Article 14. Relying the decision of Constitution Bench of the Apex Court in the case of
D.S. Nakara and others Vs. Union of India (Supra) wherein it has been held that that the criterion
of date of enforcement of the revised scheme entitling benefits of the revision to those retiring after
specified date while depriving the benefits to those retiring prior to that date was violative of Article
14. The Apex Court further held that even otherwise, while considering the question of grant of
pensionary benefits the State has to act to reach the constitutional goal of setting up a socialist State
as stated and the assurance as given in the Directive Principles of State Policy. A pension is a part
and parcel of that goal, which secures to a person serving with the State after retirement of his
livelihood. To deny such a right to such a person, without any sound reasoning or any justifiable
differentia would be against the spirit of the Constitution.

In the case of Mohal Lal Sharma and etc. Vs. State of Rajasthan and another (Supra),
the Rajasthan High Court has also held that there was no justification in denying the pensionary
benefits to those who retired prior to 1.10.1987 and granting benefits to those who retired after
1.10.1987.

In the case of D.S. Nakara and others Vs. Union of India (Supra), the Constitution Bench
of the Apex Court held that all the pensioners have equal right to receive the benefits of liberalised
pension scheme. Pensioners from a class as a whole and cannot be micro-classified by an arbitrary,
3 All. Constable 979 Civil Police Omveer Singh & Ors. Vs State OF U.P. & Ors.
517
unprincipled and unreasonable eligibility criterion for the purpose of grant of revised pension.
Criterion of date of enforcement of the revised scheme entitling benefits of the revision to those
retiring after that date while depriving the benefits to those retiring prior to that date, held, violative
of Article 14.

From the above proposition of law laid down by the Apex Court and this Court it is clear
that the benefit of the Government Order dated 19.4.2006 cannot be denied to the employees who
retired prior to 19.4.2006 and such benefits are also available to them, including the petitioner. The
notification is always read prospectively unless it is made retrospective. The Government Order
dated 19.4.2006 has been further clarified by the Government Order dated 23.11.2007 which said
that the benefit is available w.e.f. 19.4.2006. In this view of the matter, the petitioner is entitled for the
Government Order dated 19.4.2006 w.e.f. 19.4.2006 and not prior to that.

In the result, writ petition is allowed in part. The respondent is directed to allow the benefit
of the Government Order dated 19.4.2006 to the petitioner w.e.f. 19.4.2006 if till date nothing has
been paid to the petitioner, the entire dues may be paid forthwith preferably within a period of two
months from the date of presentation of the certified copy of the order along with simple interest at
the rate of 5%."

10. On perusal of impugned judgment and order passed by the Writ Court, we find that same is
a well discussed judgment incorporating detailed discussion of facts and law, therefore, we are of the
considered opinion that petitioner-respondent is entitled for the benefit of gratuity as provided by the
Government Order dated 19.4.2006, which was further clarified by Government Order dated
23.11.2007. We find no infirmity legal or otherwise in the impugned judgment and order and the
same is hereby upheld. The respondents-appellants are directed to comply with the directions given
by the Writ Court within a period of two months from the date of production of certified copy of this
order.

11. Appeal lacks merit and is accordingly dismissed.

12. No order to as costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2016

BEFORE

THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE SHASHI KANT, J.

Special Appeal No. - 1495 of 2011

Constable 979 Civil Police Omveer Singh & Ors. ...Appellants
Versus
State Of U.P. & Ors. ...Respondents