# State of U.P. & Ors v. Surendra Singh & Anr

- **Citation:** (2023) 6 ILRA 972
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-20
- **Case number:** Special Appeal Defective No. 172 of 2023
- **Bench:** Mrs. Sunita Agarwal J. Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-surendra-singh-anr-50486
- **Pages:** 13

## Headnote

Civil Law - Service Law- The U.P. St. Aided
Educational
Institution
Employees
Contributory Provident Fund, Insurance
Pension Rules, 1964 - teachers-learned
single judge's direction under challenge-
ad hoc services to be included for
computation of pension - after their
regularisation in service- the U.P. St.
Aided Educational Institution Employees
Contributory Provident Fund, Insurance
Pension Rules, 1964- Amendment Act
No.7/2016 w.e.f. 22.03.2016 in the U.P.
Secondary Education Services Selection
Board Act, 1982- services of petitioners
stood regularised- Section 33 G of the Act-
Rules 18, 19, 21, 34- no distinction
between confirmation and regularisation-
procedure properly followed- no infirmity
in the judgement rendered by single
judge- petitioner entitled to pension-
6 All. State of U.P. & Ors. Vs. Surendra Singh & Anr.
973
special appeal dismissed. (Paras 22, 23,
29, 30, 32, 34, 40, 41, 43 and 46)

HELD:
The procedure, prescribed under Section 33G of
the Selection Board Act, 1982, thus, had
recognized only such teachers who had been
appointed
in
accordance
with
the
then
appointment Rules. Their selection had been
made in accordance with the procedure
prescribed in the relevant rules at the relevant
point of time, on regularisation for substantive
appointment, the selection had been made of
only those teachers which were found suitable
by the Selection Committee constituted under
the provisions of the U.P. Secondary Education
Services Selection Board Act, 1982. (Para 22)

The result is that the long continuous services
rendered by the teachers against substantive
posts in the institutions recognized under
provisions of the Intermediate Education Act,
1921,
had been
recognized
by
the
St.
Government by bringing the provision for
regularisation
of
short
term
or
ad
hoc
appointments which had continued for years. In
none of the writ petitions before us, it is the
case of the respondent that the retired teachers
were not eligible for regularisation. Moreover, as
observed by the learned Single Judge the writ
petitioners having earned the legal status of a
permanent employee w.e.f. 22.03.2016, there
cannot be any dispute to their eligibility to the
post. The writ petitioners having completed the
tenure of their permanent employment on
substantive posts had retired from service on
attaining the age of superannuation. (Para 23)

The clear language employed in the said Rule
19 is that services rendered by an employee will
not be counted for pension unless he holds
substantive post on permanent establishment.
The continuous temporary or officiating service
followed without interruption by confirmation in
the same or another post shall count as
qualifying services. (Para 29)

Rule 21 further provides that an employee shall
be eligible for superannuation/retiring/invalid
pension only after completing 10 years of
qualifying service, thus, provided the maximum
limi

## Text

_Characters 0–39,499 of 42,969. This is a partial read: ask again with offset=39499 for what follows._

972 INDIAN LAW REPORTS ALLAHABAD SERIES
principal Act pending immediately before
the commencement of this Act, before any
Court, tribunal or other authority shall
abate:

Provided that this section shall not
apply to the proceedings relating to
sections 11, 12, 13 and 14 of the principal
Act insofar as such proceedings are
relatable to the land, possession of which
has been taken over by the State
Government or any person duly authorised
by the State Government in this behalf or
by the competent authority."

10. Since neither the respondents have
taken actual physical possession of the
surplus declared land nor have paid any
compensation in terms of Section 10(3)
read with Section 11 of the Act, 1976,
therefore, even the proceedings under
Section 10(3) of the Act, 1976 is not saved
by saving clause contained in Section 3 of
the Repealing Act, 1999. Since the
respondents
have
neither
paid
any
compensation in terms of Section 10(3)
read with Section 11 of the Act, 1976 nor
have taken actual and physical possession
of the surplus declared land, therefore, the
entire proceedings under the Act, 1976 with
respect to the surplus declared land in
question stood abated in terms of the
Section 4 of the Repealing Act, 1999. The
attempt of the respondents for mutation of
name of State in the khatauni of Fasli Year
1427-1432 by letter dated 20.09.2021 filed
as Annexure-CA-9 to the counter affidavit,
is wholly without authority of law and
illegal.

11. For all the reasons aforestated, the
writ petition is allowed. The respondents
are directed to restore the name of the
petitioner in the Revenue Records i.e.
khatauni and khasra and not to interfere
with his occupation, use and enjoyment of
the land in question.
----------
(2023) 6 ILRA 972
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal Defective No. 172 of 2023
alongwith
Special Appeal Defective No. 192 of 2023
alongwith
Special Appeal Defective No. 249 of 2023

State of U.P. & Ors. ...Appellants
Versus
Surendra Singh & Anr. ...Respondents

Counsel for the Appellants:
C.S.C.

Counsel for the Respondents:
Sri Chandra Shekhar Singh, Sri V.K. Singh
(Sr. Advocate)

Civil Law - Service Law- The U.P. St. Aided
Educational
Institution
Employees
Contributory Provident Fund, Insurance
Pension Rules, 1964 - teachers-learned
single judge's direction under challenge-
ad hoc services to be included for
computation of pension - after their
regularisation in service- the U.P. St.
Aided Educational Institution Employees
Contributory Provident Fund, Insurance
Pension Rules, 1964- Amendment Act
No.7/2016 w.e.f. 22.03.2016 in the U.P.
Secondary Education Services Selection
Board Act, 1982- services of petitioners
stood regularised- Section 33 G of the Act-
Rules 18, 19, 21, 34- no distinction
between confirmation and regularisation-
procedure properly followed- no infirmity
in the judgement rendered by single
judge- petitioner entitled to pension-
6 All. State of U.P. & Ors. Vs. Surendra Singh & Anr.
973
special appeal dismissed. (Paras 22, 23,
29, 30, 32, 34, 40, 41, 43 and 46)

HELD:
The procedure, prescribed under Section 33G of
the Selection Board Act, 1982, thus, had
recognized only such teachers who had been
appointed
in
accordance
with
the
then
appointment Rules. Their selection had been
made in accordance with the procedure
prescribed in the relevant rules at the relevant
point of time, on regularisation for substantive
appointment, the selection had been made of
only those teachers which were found suitable
by the Selection Committee constituted under
the provisions of the U.P. Secondary Education
Services Selection Board Act, 1982. (Para 22)

The result is that the long continuous services
rendered by the teachers against substantive
posts in the institutions recognized under
provisions of the Intermediate Education Act,
1921,
had been
recognized
by
the
St.
Government by bringing the provision for
regularisation
of
short
term
or
ad
hoc
appointments which had continued for years. In
none of the writ petitions before us, it is the
case of the respondent that the retired teachers
were not eligible for regularisation. Moreover, as
observed by the learned Single Judge the writ
petitioners having earned the legal status of a
permanent employee w.e.f. 22.03.2016, there
cannot be any dispute to their eligibility to the
post. The writ petitioners having completed the
tenure of their permanent employment on
substantive posts had retired from service on
attaining the age of superannuation. (Para 23)

The clear language employed in the said Rule
19 is that services rendered by an employee will
not be counted for pension unless he holds
substantive post on permanent establishment.
The continuous temporary or officiating service
followed without interruption by confirmation in
the same or another post shall count as
qualifying services. (Para 29)

Rule 21 further provides that an employee shall
be eligible for superannuation/retiring/invalid
pension only after completing 10 years of
qualifying service, thus, provided the maximum
limit of pension payable to employee completing
10 years or more of qualifying service. (Para 30)
The submission is that word used in Rule 19(b)
is "confirmation on the post" "in continuation of
temporary
or
officiating
service
rendered
interruption" whereas in the instant case the
writ petitioners were regularised by virtue of the
provision which was brought on the statute
book on 22.03.2016. The regularisation of
service of an adhoc teacher by application of
Section 33G of the Act, 1982 cannot be equated
with confirmation of temporary or officiating
services of an employee appointed on a
substantive post on probation under the
selection rules. (Para 34)

Having noted the reasons and the provisions of
adhoc
appointment
of
teachers
against
substantive vacancies or short term vacancies
which were later converted into a substantive
vacancies, we find that Section 33G for
regularisation of ad-hoc appointment made
under the above noted provisions was in
recognition of the long services rendered by the
teachers appointed on adhoc basis against
substantive vacancy or short term vacancy
which were later converted into substantive
vacancy. The procedure for regularisation under
Section 33G had taken care that the teachers
appointed
on
adhoc
basis
possessed
qualification
prescribed
in
the
statutory
provisions and were suitable for appointment in
a substantive capacity. (Para 40)
It was provided in Section 33G that such
teachers must have been continuously serving
the
institution
from
the
date
of
their
appointment
uptil
the
commencement
of
regularisation provision w.e.f 22.03.2016. Such
teachers were working against substantive
vacancies and their names were recommended
for substantive appointment on their selection
by the Selection Committee constituted under
the statutory provisions/Act, 1982 to assess
their suitability to the post. The substantive
appointment of such teachers was kept on
probation and only after they were found
suitable, they were made permanent. (Para 41)

The procedure adopted for regularisation of
adhoc teacher as provided in Section 33G of the
Selection Board Act, 1982 does not give any
room
to
make
any
distinction
between
confirmation of an employee or teacher working
in
temporary
or
officiating
capacity
or
confirmation of adhoc teachers working on
974 INDIAN LAW REPORTS ALLAHABAD SERIES
substantive posts in a permanent establishment.
The
dictionary
meaning
of
the
word
"confirmation", from the Black's Law Dictionary
8th Edition (South Asian Edition) shows the
meaning of the word confirmation:- (i) as the
act of giving formal approval; (ii) the act of
verifying or corroborating; (iii) the act of
ratifying a voidable eSt.; (iv) a declaration that
corrects a null provision of an obligation in order
to make the provision enforceable. (Para 43)

We may further note that the Rules, 1964
are special provisions applicable to the
teachers
and
non-teaching
employees
serving in St. Aided Educational Institutions
in the St. of U.P. The general provisions of
U.P. Qualifying Service for Pension and
Validation Act, 2021 defining the term
'qualifying
service'
in
U.P.
Retirement
Benefits Rules, 1961
w.e.f 01.04.1961,
applicable to 'officers' defined in Rule 3(6) of
the
Rules,
1961,
which
means
the
Government
servant
having
a
lien
on
permanent pensionable post under "the
Government," would not be applicable to the
writ petitioners. All the arguments of the
learned Additional Advocate General to
challenge the correctness of the decision of
the learned Single Judge dated 30.09.2022
in Nand Lal (supra), subject matter of
challenge in connected special appeals are
found without any force. (Para 46)

Appeal dismissed. (E-14)

List of cases cited:

1. Sunita Sharma Vs St. of U.P. & ors. Writ-A
No.25431 of 2018 decided on 20.12.2018
affirmed by the Special Appellate Court in
Special Appeal (D) No.181 of 2020 (St. of U.P.
Vs Sunita Sharma) vide judgement and order
dated 11.06.2020

2. Nand Lal Vs St. of U.P. & ors. Writ A
No.12070 of 2022

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Vikas Budhwar, J.)

1. The issue for consideration in these
three connected appeals is one and the
same. They have been heard together and
are being decided by this common
judgement.

2. This intra-Court appeal filed by the
State and the Department of Education is
directed against the orders of the learned
Single Judge wherein the claim of the writ
petitioners for including the ad-hoc services
rendered by them, before regularization of
their service, in the qualifying service, as
per the U.P. State Aided Educational
Institution
Employees
Contributory
Provident Fund, Insurance Pension Rules'
1964,
found
favorable
consideration.
Direction was issued by the learned Single
Judge in the judgement impugned to
compute pension together with its dues
within a time bound period and make
payment. In one of the connected matters,
the petitioners have been held to be entitled
to interest at the rate of 8% from the date of
the order till the date of actual payment, in
case of failure, to make payment within the
time provided therein.

3. The undisputed relevant facts of the
matter are that all the writ petitioners herein
had been appointed as Assistant Teachers
on ad-hoc basis against the substantive
vacancies in the institution in question, in
accordance
with
the
U.P. Secondary
Education Services Commission (Removal
of Difficulties) (Second) Order, 1981.

4.

With
the
enforcement
of
Amendment Act No.7/2016 wef 22.03.2016
in the U.P. Secondary Education Services
Selection Board Act' 1982 (hereinafter
referred to as the Act), the services of the
writ petitioners stood regularized w.e.f.
22.03.2016. It is also not in dispute that all
the writ petitioners/respondents herein
6 All. State of U.P. & Ors. Vs. Surendra Singh & Anr.
975
continued to work in permanent capacity
against substantive vacancies till the date of
their retirement on attaining the age of
superannuation. The salary allowances and
other dues have been paid to the writ
petitioners/respondents herein. The dispute,
however, pertains to the claim of reitral
dues including pension. The appellants had
rejected the claim of the writ petitioners for
payment of pension and hence they
approached the writ court.

5. Taking note of the stand of the writ
petitioners and the decisions of this Court
in Sunita Sharma Vs. State of U.P. &
others Writ-A No.25431 of 2018 decided
on 20.12.2018 affirmed by the Special
Appellate Court in Special Appeal (D)
No.181 of 2020 (State of U.P. Vs. Sunita
Sharma) vide judgement and order dated
11.06.2020 as also the relevant statutory
provisions, it was held by the learned
Single Judge in the judgement and order
dated 30.09.2022 in the case of Nand Lal
Vs. State of U.P. & others Writ A
No.12070 of 2022 connected with other
writ petitions that the denial of the claim
made by the writ petitioners was contrary
to law.

6. It was held that the Rules' 1964 are
specific rules applicable to permanent
employees serving in the State aided
education institutions of specified category.
Rule 3 & 4 provides the category of the
institution and the employees of the State
Aided Education Institutions to whom
benefits under the 1964 Rules would be
applicable. It was held that there being no
dispute that the writ petitioners were
permanent employees on the date of
retirement upon regularization granted
under Section 33-G of the Act wef
22.03.2016, they would be included within
the meaning of word "employee" defined
in Rule 5(g) of the Rules' 1964. As per
Rules 19 & 21 of the Rules' 1964, an
employee who holds a substantive post of a
permanent
establishment,
having
performed ten years continuous service on
the date of his superannuation would be
entitled for the benefits of pensions and
other dues. Under Rule 19(b), while
counting qualifying services continuous
temporary or officiating services followed
without interruption by confirmation in the
same or another post shall also be counted
as qualifying services. It was, thus, held
that from reading of Rule 19(a) & (b) and
Rule 21, the requirement is that;- (i) the
concerned
employee
have
held
a
substantive
post
on
a
permanent
establishment, on the date of his retirement;
(ii) such employee must have performed 10
years of qualifying service on the date of
his superannuation. It was noted that a
retired employee would be eligible to
pension, if he has completed 10 years of
qualifying service on the date of his
retirement. For computation of qualifying
service, the provisions of Rule 19(a) and
(b) have to be taken into consideration.

7. The arguments of the Stateappellants/respondent therein that the writ
petitioners having being regularized in a
permanent vacancy after the cut off date i.e.
01.04.2005 whereafter the New Pension
Scheme has been made effective, would be
ineligible to pension under the Rules' 1964,
has been turned down. The contention that
Rule 19 (a) & (b) of the Rules' 1964 would
not be applicable as the the date of
regularization of the writ petitioners under
Section 33G of the Act is 22.03.2016, being
beyond the cut off date i.e. 31.03.2005, the
petitioners are not entitled to payment of
pension as they were borne in the cadre
uptil 22.03.2016, has also been turned
down. The U.P. Retirement Benefit Rules'
976 INDIAN LAW REPORTS ALLAHABAD SERIES
1961 and U.P. Qualifying Services for
Pension and Validation Act' 2021 have been
held to be inapplicable on the ground that
the said enactments were covering the
officers, such government servants who
may
hold
a
lien
on
a
permanent
pensionable post under the Government.
The writ petitioners being teachers working
in the State Aided Education Institution and
not State owned institutions, could not be
covered within the meaning of "officers" of
the State Government. There did not ever
exists
any
master-servant
relationship
between them and the State Government as
may ever allow them to be described as
"officers" of the State Government.

8. It was further noted that both sets
of Rules namely U.P. Retirement Benefit
Rules'1961 and the Rules' 1964 applicable
to teachers of the State Aided Education
Institutions, are Rules framed under Article
309 of the Constitution of India. The State
had chosen to amend only the Pension
Rules to government servant namely Rules'
1961 without making any parallel effort to
amend
another
set
of
Rules'
1964
applicable
to
teachers
at
State-aided
educational
institutions.
It
is,
thus,
impossible to conceive that the petitioner's
right to pension have been altered by the
amendment made in U.P. Retirement
Benefit Rules 1961 w.e.f 01.04.2005. The
claim of the writ petitioners being covered
by the Rules' 1964 had illegally been
rejected for including the ad-hoc services
rendered by them in the qualifying services
(for the purpose of grant of retiral benefits
including pension) under the Rules' 1964
by applying U.P. Retirement Benefit Rules'
1961 w.e.f. 04.04.2005.

9. In other decisions of the learned
Single
Judge
dated
25.07.2022
and
23.05.2022 under challenge before us, the
reliance is placed on the judgement of this
Court in Sunita Sharma (supra) to hold
that the issue pertaining to grant of
pensionary
benefits
to
the
Assistant
Teachers
of
State-aided
education
institutions under the Rules' 1964 had been
set at rest. The writ petitioners have been
held entitled to pensionary benefits in
accordance with the Rules' 1964.

10. Pressing these intra court appeals,
it is vehemently argued by Sri Neeraj
Tripathi
learned
Additional
Advocate
General that ad-hoc services rendered by
the Assistant Teachers prior to their
regularization
w.e.f
22.03.2016
in
accordance with Section 33G of the Act,
cannot be counted as temporary or
officiating service on the post in question to
compute the same as qualifying service
within the meaning of Rules' 1964. It is
submitted that the Assistant Teachers
regularized under Section 33G of the Act
were borne into the cadre on the date of
their regularization which is 22.03.2016.
By the said date, the amendments were
incorporated in the U.P. Retiral Benefits
Rules' 1961 and with the incorporation of
sub rule (3) of Rule 2 in the Rules 1961
w.e.f. 01.04.2005, the said rules have been
held to be inapplicable to employees
entering service and post on or after April,
01.2005.

11. It is argued that the Old Pension
Scheme as applicable to the employees of
the State under the Retirement Benefits
Rules 1961 has been held inapplicable to
the employees borne on pensionable
establishment
whether
temporary
or
permanent on entering services and post on
or after 01.04.2005.

12. Rule 34 of the Rules 1964 has
been pressed into service to assert that in a
6 All. State of U.P. & Ors. Vs. Surendra Singh & Anr.
977
matter concerning pension, which is not
provided specifically under Rules 1964, the
provision laid down in respect to the State
government employees shall apply mutatis
mutandis. It is argued that the Rules 1964
will only apply to those employees, who
are covered in the definition "employee" in
Rule 5(g) of the Rules 1964, a permanently
employed person born on the establishment
of an aided institutions. The writ petitioners
having been appointed in permanent
capacity on regularization cannot be said to
be borne in the whole time teaching
establishment of an aided institution, to be
covered by the definition of "employee"
under Rule 5(g) of the Rules' 1964. The
provisions of Rule 19(a) & (b), therefore,
would not be applicable so as to compute
the ad-hoc services rendered by the writ
petitioners prior to their regularization so as
to count them as qualifying services within
the meaning of Rules' 1964.

13. Even otherwise, with the
promulgation of U.P. Qualifying Service
for Pension of Validation Ordinance 2020,
the term 'qualifying service' as per the U.P.
Retirement Benefits Rules 1961 would only
include the services rendered by an officer
appointed on a temporary or permanent
post in accordance with the provisions of
the service rules prescribed for the
government for the post. As the writ
petitioners/respondents herein have not
been appointed either on a temporary or a
permanent post in accordance with the
provisions of the service Rules prescribed
by the government for the said post, the
services rendered by them on ad-hoc post,
on account of their appointment under the
Removal of Difficulties Order 1981 cannot
be computed as qualifying service. It was
argued that initial appointment of the
petitioners were against the short term
vacancies in accordance with the paragraph
No.2 of the Removal of Difficulties
(second) Order 1981 which was later
converted into a substantive vacancy. The
continuance
of
the
writ
petitioners/respondents on ad-hoc basis
against substantive vacancies in accordance
with Section 18 of the U.P. Secondary
Education (Services) Selection Board Act'
1982 would not be of any benefit. The
arguments is that the Regularization under
Section 33G of the Act' 1982 with the
amendments brought on 22.03.2016 cannot
be equated with the appointment of a
confirmed employee against a substantive
vacancies on successful completion of the
prohibition period after the date of
appointment.

14. The provision of sub-section (6)
of Section 33G of the U.P. Secondary
Education Services Selection Board (Act
1982) has been placed before us to assert
that services of adhoc teachers and the
teachers who have been appointed against
the short term vacancies were regularised
from the date of commencement of U.P.
Secondary Education Services Selection
Board (amendment) Act 2016, which is
22.03.2016. The substantive appointment
of the writ petitioners as teacher in the
institution concerned, thus, came into being
only on 22.03.2016. The writ petitioners,
therefore, cannot derive benefit of services
rendered by them in adhoc or short term
capacity, in as much as, their appointments
in such capacity cannot be said to have
been made in accordance with the service
rules.

15. Considering the above stand of
the counsel for the appellants, we may note
that
the
U.P.
Secondary
Education
(Services Selection Board) Act, 1982 came
into being on 27.07.1998, it was enacted to
establish the Board named as Secondary
978 INDIAN LAW REPORTS ALLAHABAD SERIES
Education Services Selection Board for the
selection of the teachers in institutions
recognized
under
the
Intermediate
Education Act, 1921.

16. As per the Act 1982, it was the
duty of the State Government to establish
Board by notification, to be called as the
U.P.
Secondary
Education
(Services
Selection Board).

17. Section 18 of the U.P. Secondary
Education Services Selection Board Act,
1982
conferred
power
upon
the
management to make appointment purely
on adhoc basis from amongst persons
possessing requisite qualification subject to
the condition that such appointment would
cease on the joining of the post by
candidate
recommended
by
the
Commission.

18. The U.P. Secondary Education
Services
Commission
(Removal
of
Difficulties) Order, 1981 came into being in
the
circumstances
where
the
U.P.
Secondary Education Services Commission
Ordinance, 1981 was promulgated on 10th
July, 1981 with a view to establish the
Secondary Education Service Commission
and six or more Secondary Selection
Boards for selection of teachers
in
institution
recognized
under
the
Intermediate Education Act, 1921. The
establishment by the Commission and the
Selection Board was likely to take
sometime and even after the establishment
of the said Commission and Boards, it was
not possible to make selection of teachers
for the first few months.

19. The purpose and object of the
promulgation
of
the
(Removal
of
Difficulties) Order, 1981, as noted above,
further noted that there were number of
vacancies in the posts of teachers in various
institutions
recognized
under
the
Intermediate Education Act, 1921, existed
and the failure or delay in filling up of such
vacancies was likely to create difficulties.

20.

The
procedure
for
selection/appointment by promotion or by
direct recruitment of a teacher on purely
adhoc basis had been provided therein. The
U.P.
Secondary
Education
Services
Commission (Removal of difficulties)
(Second) Order, 1981, was brought into
force for the same object as that for
enforcement of the First Order, 1981. The
second Order, 1981, however, provided
procedure for filling up the short term
vacancies on the posts of teachers in the
institutions
recognized
under
the
Intermediate Education Act, 1921.

21. In light of the above provisions,
when we read Section 33-G which was
brought into force on 22.03.2016, it
provided that (i) any teacher who-

(a)
has
been
appointed
by
promotion or by direct recruitment in
accordance with the paragraph-'2' of the
(Removal of Difficulties) (Second) Order,
1981, as amended from time to time, and
such vacancy was subsequently converted
into a substantive vacancy;

(b) was appointed on adhoc basis
vacancy against the substantive vacancy in
accordance with the Section 18;

(c) possesses the qualifications
prescribed
in
accordance
with
the
provisions of Intermediate Education Act,
1921;

(d) has been continuously serving
the institution from the date of such
6 All. State of U.P. & Ors. Vs. Surendra Singh & Anr.
979
appointment
up
to
the
date
of
commencement of the amendment Act,
2016 on 22.03.2016;

(e) has been found suitable for
appointment in a substantive capacity by
the Selection Committee in accordance
with the procedure prescribed in clause (a)
of sub-section (2) of Section 33C read with
clause (b) of the said sub-section; shall be
given substantive appointments by the
Management.

(ii) Sub section (3) of Section 33G provided that every such teacher
appointed on the recommendation of the
Selection Committee, in a substantive
capacity, shall be deemed to be on
probation from the date of such substantive
appointment.

(iii) The date of substantive
appointment of the teachers appointed on
adhoc basis or against short term vacancies,
which were subsequently converted into
substantive vacancies, was thus, treated as
23.02.2016, the date of regularisation of the
services of such teacher w.e.f the date of
commencement of the Amendment Act,
2016.

(iv) Sub section (8) of Section
33G categorically provides that adhoc
teachers who have not been appointed
either in accordance with the provisions of
(Removal of Difficulties) Order, 1981 or in
accordance with the Section 18 of the U.P.
Secondary Education Services Selection
Board Act, 1982 and were otherwise
getting salary only on the basis of
interim/final orders of the Court shall not
be entitled for regularisation.

22. The procedure, prescribed under
Section 33G of the Selection Board Act,
1982, thus, had recognized only such
teachers who had been appointed in
accordance with the then appointment
Rules. Their selection had been made in
accordance with the procedure prescribed
in the relevant rules at the relevant point of
time, on regularisation for substantive
appointment, the selection had been made
of only those teachers which were found
suitable by the Selection Committee
constituted under the provisions of the U.P.
Secondary Education Services Selection
Board Act, 1982.

23. The result is that the long
continuous
services
rendered
by
the
teachers against substantive posts in the
institutions recognized under provisions of
the Intermediate Education Act, 1921, had
been recognized by the State Government
by bringing the provision for regularisation
of short term or adhoc appointments which
had continued for years. In none of the writ
petitions before us, it is the case of the
respondent that the retired teachers were
not eligible for regularisation. Moreover, as
observed by the learned Single Judge the
writ petitioners having earned the legal
status of a permanent employee w.e.f
22.03.2016, there cannot be any dispute to
their eligibility to the post. The writ
petitioners having completed the tenure of
their permanent employment on substantive
posts had retired from service on attaining
the age of superannuation.

24. The submission of the learned
Additional Advocate General that the writ
petitioners were borne into the cadre only
w.e.f from the date of their regularisation,
i.e 22.03.2016 is to be seen in light of the
above facts and the rules providing for
pension other retiral benefits to the teachers
serving in State aided institutions. The
Rules, 1964 which came into force on
980 INDIAN LAW REPORTS ALLAHABAD SERIES
01.10.1964 provided in Rule 3 (4)(a) as
under:-

"3. These rules shall apply to
permanent employees serving in State aided
educational institutions of the following
categories run either by a Local Body or by a
Private management and recognised by a
competent authority as such for purposes of
payment of grant- in-id;

(1) Primary Schools;

(2) Junior High Schools;

(3) Higher Secondary Schools;

(4) Degree Colleges;

(5) Training Colleges.

4. (a) These rules are intended to
the
employees
of
the
State
aided
educational institutions, three types of
service
benefits,
viz.,
Contributory
Provident Fund, Insurance and Pension
(Triple Benefit Scheme). The quantum of
the benefits and the conditions by which
they are governed are described in the
succeeding Chapters."

25. The word 'employee' has been
defined in Rule 5(g) of the 1964 Rules in
the following terms:-

"Employee"
means
a
permanently employed person borne on the
whole-time
teaching
or
non-teaching
establishment of an aided institution,
excluding-(a) the inferior staff, and (b) the
ministerial
staff
of
the
institutions
maintained by a Local Body."

26. Rule 17 contained in Chapter V
provides eligibility of 'employee' defined
above for pension and amongst other
conditions provided therein,

"(i) retirement on attaining the
age of superannuation".

27. Rule 18 contained in the same
Chapter further provides that the amount of
pension that may be granted shall be
determined by the length of 'qualifying
service' and provided as to how such
computation shall be made.

28. Rule 19 relevant for our purpose
is to be extracted as under:-

"19.(a) Service will not count for
pension unless the employee holds a
substantive
post
on
a
permanent
establishment.

(b) Continuous temporary or
officiating
service
followed
without
interruption by confirmation in the same or
another post shall also count as qualifying
service. (See also C.S.R. Para 422).

(c) Leave without allowance,
suspension allowed to stand as a specific
penalty, overstayed of joining time or leave
not subsequently regularised, and period of
breaks in service shall not be reckoned as
qualifying service.

(d) Period of breaks between 2
periods of service due to termination of
service, for no fault of the employee shall
not be treated as interruption involving
forfeiture of post qualifying service. In
other cases breaks due to other causes shall
result in forfeiture of past service unless
condoned by Government.

(e) Time passed on earned leave
shall fully count as qualifying service, but
6 All. State of U.P. & Ors. Vs. Surendra Singh & Anr.
981
time passed on other kinds leave with
allowances shall count as qualifying
service as follows :

(i) If the total service is not
less.than 13 years, but less than 30 years,
one year of such leave shall count as
qualifying service;

(ii) If the total service is not less
than 30 years, two years of such leave shall
counts as qualifying service.

Notes - (1) The term 'Earned
Leave' means leave on full average pay.

(2) In case of a married woman
employee time passed on maternity leave
may be allowed to count as qualifying
service, provided that the period covered by
such leave and also earned leave shall not
exceed what: would have been admissible
had she availed of the whole of the earned
leave to which she was entitled under the
rules.

(3) 'Total Service' means total
service
rekoning
from
the
date
of
commencement of service qualifying for
pension and includes periods of leave
referred to above.

(4) The service put in by an
employee before he has completed 18 years
of age or after attaining the age of
superannuation
unless
extended
by
competent authority or on re-employment
after retirement shall not qualify for pension.

(5)
The
entry
relating
to
confirmation of an employee in the service
book shall be countersigned.

(6) In cases not covered by these
rules qualifying service shall be determined
by Government and its decision shall be
final."

29. The clear language employed in
the said Rule 19 is that services rendered
by an employee will not be counted for
pension unless he holds substantive post on
permanent establishment. The continuous
temporary or officiating service followed
without interruption by confirmation in the
same or another post shall count as
qualifying services.

30. Rule 21 further provides that an
employee
shall
be
eligible
for
superannuation/retiring/invalid
pension
only
after
completing
10
years
of
qualifying service, thus, provided the
maximum limit of pension payable to
employee completing 10 years or more of
qualifying service.

31. Rule 34 relied by the learned
Additional Advocate General may also be
noted herein to deal with his argument with
regard to applicability of the said provision.
Rule 34 reads as under:-

"34.
In
matters
concerning
pension/family pension not provided to
specifically
in
these
rules,
the.
corresponding procedure laid down in
respect of State Government employees
shall apply mutatis mutandis."

32. A careful and conjoint reading of
the relevant provisions of Rules 1964, and
the language employed therein, there
remains no doubt that a permanent
employee, a whole time teacher, working in
a
permanent
establishment
of
aided
institution, having rendered 10 years or
more of qualifying service, which shall
include continuous temporary or officiating
services followed without interruption by
982 INDIAN LAW REPORTS ALLAHABAD SERIES
confirmation in the same or another post,
shall be eligible for superannuation pension
and other retiral benefits admissible under
the Rules, 1964".

33. Learned Additional Advocate
General
tries
to
create
a
classification/distinction
by
providing
different
meaning
to
the
words
"confirmation" and "regularisation" to
submit that appointment on a substantive
post by regularisation in continuation of adhoc services rendered by the teachers in
aided institutions would not be covered by
the meaning given to the 'qualifying
service' in sub-Rule (b) of Rule 19 of the
Rules, 1964.

34. The submission is that word used
in Rule 19(b) is "confirmation on the post"
"in continuation of temporary or officiating
service rendered interruption" whereas in
the instant case the writ petitioners were
regularised by virtue of the provision which
was brought on the statute book on
22.03.2016. The regularisation of service of
an adhoc teacher by application of Section
33G of the Act, 1982 cannot be equated
with
confirmation
of
temporary
or
officiating
services
of
an
employee
appointed on a substantive post on
probation under the selection rules.

35. capacity only after their selection,
from
the
date
of
their
substantive
appointment which was 22.03.2016. The
services rendered by them in adhoc
capacity, prior to the date of their
regularisation cannot be equated with the
temporary officiating services rendered on
a
substantive
post,
followed
by
confirmation in the same or another post, to
be counted as 'qualifying service' within the
meaning of Rule 19(b) of the Rules, 1964.

36. For this reason, the Rule 34 of the
Rules, 1964 as noted above will come into
play and the corresponding procedure
concerning pension as laid down in respect
of the State Government employees shall
apply mutatis mutandis. The result is that
U.P. Retirement Benefits Rules 1961 and
the U.P Qualifying Service for Pension and
Validation Act, 2021 would be applicable to
such employees/teachers who had entered
into services on after 01.04.2005. Having
been borne on a pension establishment,
whether temporary or permanent, after
01.04.2005, none of the writ petitioners can
be said to have completed 'qualifying
service' for the purpose of entitlement of
pension within the meaning of U.P.
Qualifying Services for Pension and
Validation Act, 2021 which has been
enforced w.e.f 01.04.1961, the date of
commencement of the U.P. Retirement
Benefit Rules, 1961.

37. It was, thus, argued that the writ
petitioners
cannot
be
said
to
have
completed 'qualifying services' for the
purpose of entitlement of the pension nor
they are entitled for the benefit of the old
pension scheme as applicable to the whole
time teachers permanently employed in
establishment of an aided institution.

 38. The writ petitioners having been
borne
into
the
cadre
of
permanent
establishment of the aided institution only
on 22.03.2016 cannot be held to be entitled
for pension or other retiral benefits under
the Rules, 1964.

39. We find inherent fallacy in the
arguments
of
the
learned Additional
Advocate General, for an effort to make
distinction
between
the
word
"confirmation" and "regularisation".
6 All. State of U.P. & Ors. Vs. Surendra Singh & Anr.
983

40. Having noted the reasons and the
provisions
of
adhoc
appointment
of
teachers against substantive vacancies or
short term vacancies which were later
converted into a substantive vacancies, we
find that Section 33G for regularisation of
ad-hoc appointment made under the above
noted provisions was in recognition of the
long services rendered by the teachers
appointed
on
adhoc
basis
against
substantive vacancy or short term vacancy
which were later converted into substantive
vacancy. The procedure for regularisation
under Section 33G had taken care that the
teachers
appointed
on
adhoc
basis
possessed qualification prescribed in the
statutory provisions and were suitable for
appointment in a substantive capacity.

41. It was provided in Section 33G
that
such
teachers
must
have
been
continuously serving the institution from
the date of their appointment uptil the
commencement of regularisation provision
w.e.f 22.03.2016. Such teachers were
working against substantive vacancies and
their
names
were
recommended
for
substantive appointment on their selection
by the Selection Committee constituted
under the statutory provisions/Act, 1982 to
assess their suitability to the post. The
substantive appointment of such teachers
was kept on probation and only after they
were found suitable, they were made
permanent.

42. We may further note that such
teachers who were not found suitable by
the Selection Committee and were found
ineligible to get a substantive appointment
under the aforesaid provisions had ceased
to hold the appointment, thereafter, which
means that only those teachers who
possessed eligibility qualification and were
found suitable for appointment in adhoc
capacity, by the Selection Committee were
appointed in the substantive capacity and
allowed to continue on permanent basis. All
the writ petitioners herein have been made
permanent and superannuated in permanent
capacity while working on a substantive
post.

43. The procedure adopted for
regularisation of adhoc teacher as provided
in Section 33G of the Selection Board Act,
1982 does not give any room to make any
distinction between confirmation of an
employee or teacher working in temporary
or officiating capacity or confirmation of
adhoc teachers working on substantive
posts in a permanent establishment. The
dictionary
meaning
of
the
word
"confirmation", from the Black's Law
Dictionary 8th Edition (South Asian
Edition) shows the meaning of the word
confirmation:- (i) as the act of giving
formal approval; (ii) the act of verifying or
corroborating; (iii) the act of ratifying a
voidable estate; (iv) a declaration that
corrects a null provision of an obligation in
order to make the provision enforceable.

44. The same meaning can be
assigned to the word "regularization" for
regularization of the services of an ad-hoc
appointee.

45.