# Suresh Chandra Pandey v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 167
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-03-06
- **Case number:** Writ A No.10116 of 2018
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-chandra-pandey-v-state-of-u-p-ors-44794
- **Pages:** 10

## Headnote

Law-
Regularization
-
Fundamental
Rules:
Rule
56;
Uttar
Pradesh Collection Amins Service Rules,
1974 - Temporary Seasonal Collection
Amin is entitled to post retiral benefits.
168 INDIAN LAW REPORTS ALLAHABAD SERIES
A temporary employee appointed on the
regular establishment of the Government is
entitled to pension under Fundamental Rule

## Text

3 All. Suresh Chandra Pandey Vs. State of U.P. & Ors.
167
grace marks of question Nos.16, 18 and
131 were given on the agreement with the
learned counsel for the parties.

41) In regard to the questions, which
were directed to be examined by subject
experts under the order of this Court after
the report submitted is on record. We have
perused the same, which reflects that only
three questions out of total 150 questions
were found doubtful. Consequently, the
method adopted by the examination
regulatory authority by granting three marks
to all the candidates would be fair and
should not cause prejudice to any candidate,
as the framing of doubtful questions cannot
be attributed to the candidates. Moreover,
the TET examination being a qualifying
examination, in case more number of
candidates
qualify,
the
same
would
certainly result in increasing the level of
competitiveness
rom
amongst
the
candidates appearing for the examination
which would ultimately result in the best
amongst the best being selected in order to
teach the young and impressionable minds
of children.

42) We also perused the report
submitted by the subject experts on
11.04.2018, which reveals that three
questions were found to be doubtful
having different answers, therefore, we
are with the agreement of the report
submitted by the subject experts being
based on concensus of the learned
advocates appearing for the parties.

43) In view of the above, the special
appeal is liable to be allowed.

44) Accordingly, the judgment and
order passed by learned Single Judge
dated 06.03.2018 is hereby set aside. The
special appeal succeeds and is allowed.

45) However, the Examination
Regulatory Authority is directed to treat
four questions to be within the syllabus
and award marks accordingly.

46) It is further directed to award
marks against 13 questions treating to
have correct answers and grace marks for
three
questions
containing
incorrect
answers in the answer key.

47) Accordingly, the Secretary,
Examination Regulatory Authority is
directed to declare the result within a
period of two months from the date of
production of a certified copy of this
order and to conduct the Assistant
Teachers Recruitment Examination within
a period of two months, thereafter.
----------

(2019)11ILR A167

ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: ALLAHABAD 18.09.2019

BEFORE

THE HON'BLE SUNEET KUMAR , J.

Writ A No.10116 of 2018

Suresh Chandra Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vineet Kumar Singh.

Counsel for the Respondents:
C.S.C.

A.
Service
Law-
Regularization
-
Fundamental
Rules:
Rule
56;
Uttar
Pradesh Collection Amins Service Rules,
1974 - Temporary Seasonal Collection
Amin is entitled to post retiral benefits.
168 INDIAN LAW REPORTS ALLAHABAD SERIES
A temporary employee appointed on the
regular establishment of the Government is
entitled to pension under Fundamental Rule
56. (Para 14)

B. Words & Phrases - Interpretation -
"regular service" - the word "regular
service" refers to nature of service
rendered.

It has not been used in the Government order
anonymous to substantive service. The word
"regular service" has not been used as
specifying the capacity or status of its holder
but to specify the nature of service rendered.
To fall into the domain of "regular service" the
service of a temporary employee should be in
regular manner, methodically, in due order.
(Para 9)

C. Service - Substantive appointment is
not
a
condition
precedent
for
the
entitlement of pensionary benefit - The
appointment has to be a regular appointment
on the pensionable establishment of the
Government to earn pension. (Para 17)

Petition allowed (E-4)

Precedent followed: -
1. Hari Shankar Asopa Vs St. of U.P. & anr.
(1981) 1 UPLBEC 501 (Para 6)

2. Shakuntala @ Brahmo Devi (Smt.) Vs
Director of Pension, (2002) 2 UPLBEC 2521
(Para 8)

3. Yashwant Hari Katakkar Vs U.O.I. & ors.
(1996) 7 SCC 113 (Para 11)

4. A.P. Srivastava Vs U.O.I. & ors. (1995) 3
UPLBEC 1842 (Supplement) (Para 12)

5. Ram Pratap Vs St. of U.P., (2006) 4 ADJ 709
(Para 12)

6. Babu Singh Vs St. of U.P., (2006) 8 ADJ 371
(Para 12)

7. Kedar Ram -I Vs St. of U.P., (2008) ILR (All)
659 (Para 12)
8. Ram Sajiwan Maurya Vs St. of U.P. & ors.
WP No. 3031 (S/S) of 2004 (decided on 12
August 2009) (Para 12)

9. Kanta Devi Vs St. of U.P., (2009) 10 ADJ 18
(Para 12)

10. Kishan Singh Vs St. of U.P. (2009) 9 ADJ
516 (Para 12)

11. Awadh Bihari Shukla Vs St. of U.P., (2015)
6 ADJ 186 (Para 12)

12. St. of U.P. & ors. Vs Mahendra Chaubey,
(2018) 9 ADJ 829 (Para 12)

13. Prem Singh Vs St. of U.P., (2019) LawSuit
(SC) 1557 (Para 15, 18)
Precedent referred:-
1. B.O.R. & ors. Vs Prasidh Narain Upadhyay,
[(2006) 1 ESC 611 (All)(DB) (Para 10)]
Present petition challenges orders dated
07.03.2018 and 25.05.2012, passed by
District
Magistrate,
Ballia
and
Up-
Ziladhikari, Ballia respectively.

(Delivered by Hon'ble Suneet Kumar, J. )

1. Heard Sri Vineet Kumar Singh,
learned counsel for the petitioner and
learned Standing Counsel for the State.

2. Petitioner came to be appointed
temporary Seasonal Collection Amin on 7
February 1978, in pay scale 200-320 and
thereafter, was granted regular pay scale
of Collection Amin from 1982, until his
retirement on attaining the age of
superannuation
on
31
July
2010.
Petitioner was granted increments, bonus,
leave encashment and income tax was
regularly deducted from his salary. The
pay scale was revised from time to time.
During service, petitioner filed several
petitions seeking regularization under
35% quota provided under the Uttar
Pradesh Collection Amins Service Rules,
3 All. Suresh Chandra Pandey Vs. State of U.P. & Ors.
169
1974 (for short "the Rules 1974"). The
petition being Writ- A No.20531 of 2010
came to be disposed of on 24 November
2014, directing the Collector, Ballia, to
consider the claim of the petitioner for
regularization on the post of Collection
Amin under the Rules, 1974. The District
Magistrate, Ballia, vide order dated 4
April 2015, rejected the claim of the
petitioner on the ground that he was not
found
suitable.
The
petitioner
immediately after retirement filed a
petition being Writ-A No.75928 of 2011,
claiming pension alongwith interest. The
petition came to be disposed of on 27
November 2017, directing the District
Magistrate, Ballia, to consider the claim
of the petitioner for post retiral dues
including pension.

3. The petition assailing the order
dated 4 April 2015, passed by the District
Magistrate, Ballia, rejecting the claim of
the petitioner for regularization and the
petition being Writ-A No.31488 of 2015,
came to be disposed of in terms of the
aforesaid order dated 27 November 2017.
Pursuant to the directions of this Court,
petitioner submitted a comprehensive
representation for arrears of pension,
retiral dues and assailed the order
rejecting the claim of the petitioner for
regularization.

4. By the impugned order dated 7
march 2018, the District Magistrate,
Ballia, declined to grant post retiral
benefits, as well as, pension on the
ground that petitioner is not entitled under
the Rules, 1974, for the pensionery
benefits after retirement from service.

5. It is urged that by the learned
counsel for the petitioner that the
petitioner came to be appointed in 1978
and retired on 31 July 2010, having
rendered service for three decades as
temporary employee appointed against a
post, therefore, is entitled to pension.

6. The Division Bench of this Court
in Hari Shankar Asopa Versus State of
U.P. and another1, was considering as to
whether a temporary government servant
appointed against substantive post and
continued
as
lecturer,
reader
and
professor of surgery is entitled to retiring
pension upon seeking to retire voluntarily.
The Court upon considering the Articles
465 and 465A of the Civil Service
Regulations read with Financial Hand
Book Volume-II Part 2 to 4 made the
following observation:

"16.
The
requirement
of
employment
being
substantive
and
permanent, which is one of the three basis
constituents
of
''qualifying
service',
envisaged in Articles 465 and 465-A has
ceased to be sine qua non for earning a
retiring pension by service under the
Government of Uttar Pradesh after 7th
June, 1975 with effect from which date
the Uttar Pradesh Fundamental Rule 56
(amendment and Validation) Act, 1975
U.P. Act No. 24 of 1975), amending Rule
56 of the Rules and rescinding Articles
465 and 465-A of the Regulations, has
been enforced. Now the source for
attaining the right to retiring pension in
R. 56.............

Clause
(e)
of
Rule
56
unequivocally recognises, declares and
guarantees retiring pension to every
Government servant who retires on
attaining the age of superannuation or
who is prematurely retired or who retires
voluntarily.
To
be
precise,
every
Government servant (whether permanent
170 INDIAN LAW REPORTS ALLAHABAD SERIES
or temporary) who retires under Cl. (a)
or Cl. (b). or who is required to retire, or
who is allowed to. Retire under Cl. (c) of
R. 56, becomes entitled for a retiring
pension, provided, of course, the first and
third conditions stipulated in Article 361
of the Regulations are satisfied."

7. The Court accordingly held that
person appointed temporarily against a
substantive vacancy is entitled to retiring
pension in view of Rule 56 of the
Fundamental Rules.

8. In Shakuntala @ Brahmo Devi
(Smt.) Versus Director of Pension2, the
learned Single Judge of this Court was
called upon to consider whether a
temporary government servant rendering
34
years
of
service
upon
being
compulsory
retired
is
entitled
to
pensionary benefit. While deciding the
issue the Government Order dated 1 July
1989, provided that government servants
not rendering ten years of regular service
are not entitled for pensionary benefits.
The Court taking note of the provisions of
Articles 361, 424, 465 of the Civil
Service Regulations and Fundamental
Rule 56 observed as follows:

"10...........By Government order
dated 1.7.1989, it was provided that
temporary Government servants who
have rendered ten years regular service
are also entitled for the retirement
benefits. The aforesaid Government order
was issued with intent to extend the
pensionary
benefits
to
temporary
Government servants, which is clear from
the first paragraph of the Government
order. Paragraph 2 of the Government
order
further
provides
that
those
temporary Government servants who
have completed minimum ten years
regular
service
on
the
date
of
retirement/superannuation or who have
been declared invalid by the appointing
authority
will
be
entitled
to
the
superannuation/invalid pension, gratuity,
family pension as admissible to a
permanent
employee.
Paragraph
3
further provides that this provision will
also be applicable in those cases where
permission
has
been
granted
for
voluntary retirement in accordance with
the
fundamental
Rule
56.
The
Government order does not specifically
provide that the persons who are
compulsorily retired will not be given the
benefit........

11..............
Thus,
the
intendment of Rule 56 (e) is to provide
retirement pension to every Government
servant who retires or is required to
retire under Rule 56. Thus the intendment
of statutory Rule 56 (e) is to extend
benefit of retiring pension to both
category
of
persons,
i.e.,
persons
compulsory retired or persons voluntarily
retired. From the above intendment of
rule, it is clear that no distinction or
discrimination has been maintained with
regard to payment of retiring pension to
persons
voluntarily
retired
or
compulsorily
retired.
Thus,
by
Government order dated 1.7.1989 the
temporary
Government
servant
compulsorily retired cannot be excluded
from benefits of retiring pension. When
the statutory Rule, i.e., 56 (e) does not
maintain any distinction with regard to
payment of retiring pension to persons
compulsorily
retired
and
voluntarily
retired, no such classification can be
created by a Government order, which is
an executive order. The object of the
Government order as noted above was to
extend pensionary benefits to temporary
3 All. Suresh Chandra Pandey Vs. State of U.P. & Ors.
171
Government servants who have rendered
ten years regular service. Thus, the
persons compulsorily retired cannot be
excluded from the pensionary benefits
and if it is accepted that the Government
order
dated
1.7.1989
creates
such
classification, then the said classification
will be arbitrary and unreasonable. It is
thus held that the benefit of Government
order dated 1.7.1989, is also available to
the temporary Government servants who
are compulsorily retired. There is no
rational basis for any such classification
nor there can be any valid object for such
classification."

9. The Court upon perusal of the
Government order dated 1 July 1989 was
of the opinion that the Government order
refers to "regular service" and not
"substantive
service".
The
Court
explained what was meant of regular
service. Relevant portion of the order
reads thus:

"12........The words **nl o"kZ
dh fu;fer lsok iw.kZ dj yh gks*A** used in
the Government order dated 1.7.1989,
means completion of ten years regular
service. Words "regular service" has not
been defined in the Government order.
From a reading of the Government order,
it is clear that the word "ten years regular
service" has been referred to the service
rendered and not to the status of
employee, an employee substantively
appointed and permanent is automatically
entitled for pension. The Government
order
dated
1.7.1989
does
not
contemplate ten years substantive service.
The word "regular service" used in the
Government order is not anonymous to
substantive
service.
Admittedly,
the
benefit by Government order is to be
extended
to
temporary
Government
servants. The temporary Government servant
cannot be said to have substantive or regular
service. Thus, the word "regular service" used
in the Government order dated 1.7.1989 has
not been used as specifying the capacity or
status of its holder rather. The word "regular
service" has been used to denote and specify
the nature of service rendered. The emphasis
is that service should be "regular". While
defining the word 'regular', the Apex Court in
Mrs. Raj Kanta v. Financial Commissioner,
Punjab and another, AIR 198O SC 1464, has
held in paragraph 10 as under :

"To begin with, the word
"regular" is derived from the word
"regula" which means 'rule' and its first
and legitimate signification, according to
Webster, is conformable to a rule, or
agreeable to an established rule, law, or
principle, to a prescribed mode. In Words
and Phrases (Vol. 36A P. 241) the word
"regular" has been defined as 'steady or
uniform
in
course,
practice
or
occurrence, etc., and implies conformity
to a rule, standard, or pattern'. It is
further stated in the said Book that
'regular' means steady or uniform in
course, practice, or occurrence, not
subject to unexplained or irrational
variation. The word 'regular' means in a
regular manner, methodically, in due
order. Similarly, Webster's New World
"Dictionary
defines
'regular'
as
'consistent or habitual in action', not
changing, uniform, conforming to a
standard or to a generally accepted rule
or mode of conduct'."

13. From the above passage of
the Apex Court's judgment, it is clear that
service of a temporary employee should
be in regular manner, methodically, in
due order.
172 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Government order dated
1.7.1989 meant ten years of temporary
Government servant should be regular in
nature meaning thereby that if the
temporary
Government
servant
has
performed his duties irregularly, i.e, with
gaps of years, his service may not be
treated to be regular. .........."

10. The decision was considered by
the subsequent Division Bench in Board
of Revenue and others Versus Prasidh
Narain Upadhyay3. The issue before the
Court was whether a seasonal collection
peon subsequently confirmed is entitled
to pension on rendering 36 years of the
continuous service. The plea of the Staterespondent that since the petitioner
therein had not completed 10 years of
substantive service after confirmation is
not entitled to pension was rejected.

11. In Yashwant Hari Katakkar v.
Union of India and ors.4, it was held
that an employee who has served more
than 20 years is entitled to pension and
denial of retiring pension to the petitioner
on the ground of not being permanent on
any post clearly is violative of Clause (e)
of
Fundamental
Rules,
56.
The
department
cannot
keep
a
person
temporary or on daily wages indefinitely.

12. In A.P. Srivastava v. Union of
India and Ors.5, the Supreme Court has
clearly taken a view that in case of a
temporary employee who has rendered 20
years of service is entitled to pension. In
the expression 'substantive capacity' the
emphasis imparted by the adjective
'substantive' is that a thing is substantive
if it is essential part of the constituent or
relating to what is essential. Therefore,
when
a
post
is
vacant,
however,
designated in officilase, the capacity in
which the person holds the post has to be
ascertained by the State. The substantive
capacity refers to capacity in which
person holds the post and not necessarily
to the nature and character of the post.
Thus, a person is said to hold a post in a
substantive capacity when he holds it for
an indefinite period especially for a long
duration in contradistinction to a person
who holds it for a definite or a temporary
period or holds it on probation subject to
confirmation. ((Refer Ram Pratap V.
State of U.P.6, Babu Singh V. State of
U.P.7, Kedar Ram-I v. State of U.P.8,
Ram Sajiwan Maurya v. State of U.P.
and others9, Kanti Devi v. State of
U.P.10, Kishan Singh v. State of U.P.11,
Awadh Bihari Shukla v. State of
U.P.12)

13. The Division Bench of this
Court in State of U.P. and others v.
Mahendra Chaubey13, allowed the
claim of pension of a seasonal collection
amin whose temporary service was
followed by substantive appointment
despite the petitioner therein having not
rendered 10 years substantive service
after regularization.

14. The principle that emerges from
the spectrum of decisions is that a
temporary employee appointed on the
regular establishment of the Government
is entitled to pension under Fundamental
Rule 56.

15. A three Judge Bench of the
Supreme Court in Prem Singh vs. State
of Uttar Pradesh14 was considering the
question, as to whether, Rule 3(8) of the
U.P. Retirement Benefits Rules, 196115
and Regulation 370 of the Civil Services
Regulation of Uttar Pradesh should be
struck down having regard to the fact that
3 All. Suresh Chandra Pandey Vs. State of U.P. & Ors.
173
the Supreme Court had upheld the pari
materia provision enacted in the State of
Punjab which excluded computation of
the period of work-charged services from
qualifying service for pension.

16.
The
appellant
before
the
Supreme Court was a work-charged
employee having put in more than three
decades of service, pension was declined
as the appellant had not put in 10 years of
regular service after regularisation. The
question
posed
was
whether
after
regularization employees are entitled to
count their past service. The Court made
the following observations:

"29. We are not impressed by
the
aforesaid
submissions.
The
appointment
of
the
work-charged
employee in question had been made on
monthly salary and they were required to
cross the efficiency bar also. How their
services are qualitatively different from
regular
employees?
No
material
indicating qualitative difference has
been pointed out except making bald
statement. The appointment was not
made for a particular project which is
the basic concept of the work charged
employees. Rather, the very concept of
work-charged employment has been
misused by offering the employment on
exploitative terms for the work which is
regular
and
perennial
in
nature.
Payment used to be made monthly but the
appointment was made in the pay scale of
Rs.200-320. Initially, he was appointed in
the year 1978 on a fixed monthly salary of
Rs.205 per month. They were allowed to
cross efficiency bar also as the benefit of
pay scale was granted to them during the
period they served as work-charged
employees they served for three to four
decades and later on services have been
regularized time to time by different
orders. However, the services of some of
the appellants in few petitions/appeals
have not been regularized even though
they had served for several decades and
ultimately
reached
the
age
of
superannuation.

30. In the aforesaid facts and
circumstances, it was unfair on the part
of the State Government and its officials
to take work from the employees on the
work-charged basis. They ought to have
resorted to an appointment on regular
basis. The taking of work on the work-
charged basis for long amounts to
adopting the exploitative device. Later
on, though their services have been
regularized. However, the period spent
by
them
in
the
work-charged
establishment has not been counted
towards the qualifying service. Thus,
they have not only been deprived of their
due emoluments during the period they
served on less salary in work charged
establishment
but
have
also
been
deprived of counting of the period for
pensionary benefits as if no services had
been rendered by them. The State has
been benefitted by the services rendered
by them in the heydays of their life on
less
salary
in
work-
charged
establishment.

31. In view of the note appended
to Rule 3(8) of the 1961 Rules, there is a
provision to count service spent on work
charged,
contingencies
or
non
pensionable service, in case, a person has
rendered such service in a given between
period of two temporary appointments in
the pensionable establishment or has
rendered such service in the interregnum
two periods of temporary and permanent
employment. The work-charged service
174 INDIAN LAW REPORTS ALLAHABAD SERIES
can be counted as qualifying service for
pension in the aforesaid exigencies.

32. The question arises whether
the imposition of rider that such service
to be counted has to be rendered inbetween two spells of temporary or
temporary and permanent service is legal
and
proper.
We
find
that
once
regularization had been made on vacant
posts, though the employee had not
served prior to that on temporary basis,
considering the nature of appointment,
though it was not a regular appointment
it was made on monthly salary and
thereafter in the pay scale of workcharged establishment the efficiency bar
was permitted to be crossed. It would be
highly discriminatory and irrational
because of the rider contained in Note to
Rule 3(8) of 1961 Rules, not to count
such service particularly, when it can be
counted,
in
case
such
service
is
sandwiched between two temporary or
in-between temporary and permanent
services. There is no rhyme or reason
not to count the service of work-charged
period in case it has been rendered
before regularisation. In our opinion, an
impermissible classification has been
made under Rule 3(8). It would be highly
unjust, impermissible and irrational to
deprive such employees benefit of the
qualifying service. Service of workcharged period remains the same for all
the employees, once it is to be counted for
one class, it has to be counted for all to
prevent discrimination. The classification
cannot be done on the irrational basis
and when respondents are themselves
counting period spent in such service, it
would be highly discriminatory not to
count the service on the basis of flimsy
classification. The rider put on that
work-charged
service
should
have
preceded by temporary capacity is
discriminatory and irrational and creates
an impermissible classification.

33. As it would be unjust, illegal
and impermissible to make aforesaid
classification to make the Rule 3(8) valid
and non discriminatory, we have to read
down the provisions of Rule 3(8) and hold
that services rendered even prior to
regularisation in the capacity of workcharged employees, contingency paid
fund employees or non- pensionable
establishment shall also be counted
towards the qualifying service even if
such service is not preceded by temporary
or regular appointment in a pensionable
establishment.

34. In view of the note
appended to Rule 3(8), which we have
read down, the provision contained in
Regulation 370 of the Civil Services
Regulations has to be struck down as
also the instructions contained in Para
669 of the Financial Handbook.

35. There are some of the
employees who have not been regularized
in spite of having rendered the services
for 30-40 or more years whereas they
have been superannuated. As they have
worked
in
the
work-charged
establishment, not against any particular
project, their services ought to have been
regularized
under
the
Government
instructions and even as per the decision
of this Court in Secretary, State of
Karnataka and others vs. Uma Devi, 2006
(4) SCC 1. This Court in the said decision
has laid down that in case services have
been rendered for more than ten years
without the cover of the Court's order, as
one time measure, the services be
3 All. Suresh Chandra Pandey Vs. State of U.P. & Ors.
175
regularized of such employees. In the
facts of the case, those employees who
have worked for ten years or more should
have been regularized. It would not be
proper to relegate them for consideration
of regularisation as others have been
regularised, we direct that their services
be treated as a regular one. However, it
is made clear that they shall not be
entitled to claiming any dues of difference
in wages had they been continued in
service regularly before attaining the age
of superannuation. They shall be entitled
to receive the pension as if they have
retired from the regular establishment
and the services rendered by them right
from the day they entered the workcharged establishment shall be counted
as qualifying service for purpose of
pension.

36. In view of reading down
Rule 3(8) of the U.P. Retirement Benefits
Rules, 1961, we hold that services
rendered
in
the
work-charged
establishment
shall
be
treated
as
qualifying service under the aforesaid
rule for grant of pension. The arrears of
pension shall be confined to three years
only before the date of the order. Let the
admissible benefits be paid accordingly
within three months. Resultantly, the
appeals filed by the employees are
allowed and filed by the State are
dismissed."

17. The short question that arises in
the instant writ petition is as to whether
the temporary Seasonal Collection Amin
is entitled to post retiral benefits. It is
evident from the material placed on
record that the petitioner was appointed
Seasonal Collection Amin in 1978,
thereafter, was given regular pay scale of
Collection Amin from 1982, income tax
was regularly deducted from his salary.
The regular pay scale of the petitioner
came to be revised from time to time. In
the service book, petitioner has been
referred to as a temporary employee. In
the circumstances, it is not open to the
respondents to deny pension discarding
past services rendered by the petitioner as
a temporary employee in the regular
establishment of the State Government.
Substantive
appointment
is
not
a
condition precedent for entitlement of
pensionery benefit. The appointment has
to be a regular appointment on the
pensionable
establishment
of
the
Government to earn pension.

18. In the facts and circumstances of
the instant case, the petitioner admittedly
came to be appointed Seasonal Collection
Amin in regular pay scale admissible to
the post. The revised pay was paid from
time to time. Income tax was deducted
from the salary of the petitioner. In the
circumstances, the law declared in Prem
Singh (supra) entitles the petitioner to
pension and retiral dues.

19. In view thereof, the writ petition
is allowed. The impugned orders dated 7
March 2018 and 25 May 2012, passed by
the third respondent-District Magistrate,
Ballia
and
fourth
respondent-UpZiladhikari, Ballia, respectively, are set
aside and quashed. Petitioner is entitled to
pension. The arrears of pension shall be
confined to three years before the date of
order. The respondents to pay the
admissible retiral benefits within three
months from the date of communication
of the order.

20. No cost.
----------
176 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A176

ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: ALLAHABAD 15.10.2019

BEFORE
THE HON'BLE SUNEET KUMAR , J.

Writ A No.13188 of 2019

Vijay Kumar Agrawal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri H.R. Mishra, Sri Krishna Mohan Misra.

Counsel for the Respondents:
C.S.C.

A. Service Law- Suspension - Disciplinary
inquiry
-
Uttar
Pradesh
Cooperative
Societies Act, 1965 - Section 66, 77-A - U.P.
Cooperative Societies Rules, 1968 - Rule
367 - Uttar Pradesh State Cooperative
Societies Election Rules, 2014 - Uttar
Pradesh Government Servant (Discipline
and Appeal) Rules, 1999 - Rule 4 - Lack of
efficiency
or
competence
cannot
be
elevated to be an act and omission to
constitute misconduct.

The
allegation
does
not
disclose
the
imputation of the allegation constituting
misconduct. The charges do not list/disclose
the acts and omission to constitute misconduct
under the Conduct Rules. Mandate of proviso
to Rule 4 is not made out. (Para 14, 15, 16)

Petition allowed (E-4)
Precedent followed:-
1.Jeetendra Nath Singh Vs St. of U.P. & ors.
(Civil Misc. W. P. No. 33269 of 2007), decided
on 02.11.2017 (Para 11)
2.Shabih Haider Vs St. of U.P. & ors. [2018 (1)
ADJ 327 (DB)(LB)] (Para 12)
3. St. of U.P. Vs. Jai Singh Dixit (Alld.), (1974)
ALJ 92 (Para 12)

4. U.O.I. & ors. Vs J. Ahmed, AIR (1979) SC
1022 (Para 14)
Present petition challenges suspension
order
dated
04.08.2019,
passed
by
Secretary, Cooperative, Government of
U.P., Lucknow.

(Delivered by Hon'ble Suneet Kumar, J. )

1. Heard Sri H.R. Mishra, learned
Senior
Counsel
appearing
for
the
petitioner and Sri Ajit Singh, learned
Additional Advocate General for the
State-respondents.

2.
Petitioner,
a
Assistant
Commissioner & Assistant Registrar,
(Agriculture),
Cooperative
Societies,
Varanasi Mandal, Varanasi, is assailing
the impugned suspension order dated 4
August
2019
passed
by
the
first
respondent,
Secretary,
Cooperative,
Government of U.P., Lucknow.

3. The allegation against the
petitioner, inter-alia, is based on a
preliminary enquiry report dated 3 August
2019, pertaining to Adarsh Krishi Sahkari
Samiti, Umbha, District Sonbhadra (for
short " the Adarsh Society"). The report
in so far it relates to the petitioner
primarily records that petitioner had not
followed the mandatory provisions in the
discharge of his duty under the Uttar
Pradesh Cooperative Societies Act, 1965
(for short ''Act, 1965). Consequently,
petitioner was placed under suspension
pending contemplation of enquiry. The
respondents have filed counter affidavit
and
supplementary
counter
affidavit
bringing on record the charge sheet dated
16 September
2019,
leveling
three