# Uma Shankar Singh v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 128
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-10
- **Case number:** Service Single No. 816 of 2015
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-shankar-singh-v-state-of-u-p-ors-45657
- **Pages:** 6

## Headnote

Law-
Pension/Retirement
benefits - Civil Services Regulation:
Article 361; U.P. Fundamental Rule 56
4 All. Uma Shankar Singh Vs. State of U.P. & Ors.
129
(Amendment and Validation) Act, 1975:
Rules 56 (C), (E) - Petitioner rendered 33
years of continuous satisfactory service but he
has not been paid post retiral benefits on the
ground that his services were temporary as the
issue of regularization remained pending till
retirement. While allowing his claim the Court
held as follows.

B. The provisions of Fundamental Rule 56
shall
prevail
over
the
Civil
Service
Regulation, if they are inconsistent.
Condition - B of Art. 361, that the employment
must be substantive and permanent, is clearly
inconsistent with Fundamental Rule 56 and
thus is in operative. (Para 7)

C. In service jurisprudence, a person who
possesses the requisite qualification for
being appointed to a particular post and
appointed
with
the
approval
and
consultation of the appropriate authority
and continues in the post for a fairly long
period, then such an appointment cannot
be held to be "stopgap or fortuitous or
purely ad hoc" - For the purpose of making
payment of retiral dues the entire service, be it
temporary or permanent shall be considered.
 (Para 7, 8, 9)

Writ petition allowed. (E-4)

Precedent followed:

## Text

128 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent by a review medical board
provided by the appellants. Otherwise, the
recruitment process can be derailed if
such requests of candidates who are not
found to be medically fit for reassessment
on the basis of procedures other than
those
which
are
envisaged
by
the
recruiting authority are allowed. This
would ordinarily be impermissible."

11. In a case where a recruitment
process has been carried out as per
prescribed statutory rules whereunder a
procedure has been prescribed for testing
the medical fitness of candidates by a duly
constituted Medical Board, the report of
the Medical Board is not to be normally
interfered with, and that too, solely on the
basis of a claim sought to be set up by a
candidate on the basis of some subsequent
report(s) procured by him from a private
practitioner(s).

12. It is not the case of the petitioner
that the decision of the Medical Board was
arbitrary, capricious or not in accordance
with the procedure under the relevant
statutory recruitment rules.

13. Having regard to the foregoing
discussion, we are of the view that a claim
sought to be set up on the basis of a
subsequent medical report produced by the
candidate would not have the effect of
overriding or setting at naught the expert
opinion of the Medical Board set up as per
the statutory rules in a recruitment process.
Matters relating to medical evaluation of
candidates
in
a
recruitment
process
involve expert determination and it may
not be desirable to supplant the procedure
prescribed therefor as laid down under the
relevant recruitment rules. Any other view,
in our opinion, may have the effect of
derailing the recruitment process.

14. A bare perusal of the impugned
judgment and order reveals that the same
has been rendered by the learned Single
Judge with cogent and justifiable reasons.

15. In an Intra-Court Special Appeal,
no interference is usually warranted unless
palpable infirmities or perversities are
noticed on a plain reading of the impugned
judgment and order.

16. In the facts and circumstances of
the instant case, on a plain reading of the
impugned judgment and order, we do not
notice any such palpable infirmity or
perversity. As such, we are not inclined to
interfere with the impugned judgment and
order dated 27th May, 2019.

17. For reasons stated above, the
Special Appeal is liable to be dismissed
and stands, accordingly, dismissed.
----------
(2020)02ILR A 128

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.02.2020

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 816 of 2015

Uma Shankar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shikhar Anand. Laxmi Prasad Srivastava

Counsel for the Respondents:
C.S.C.

A.
Service
Law-
Pension/Retirement
benefits - Civil Services Regulation:
Article 361; U.P. Fundamental Rule 56
4 All. Uma Shankar Singh Vs. State of U.P. & Ors.
129
(Amendment and Validation) Act, 1975:
Rules 56 (C), (E) - Petitioner rendered 33
years of continuous satisfactory service but he
has not been paid post retiral benefits on the
ground that his services were temporary as the
issue of regularization remained pending till
retirement. While allowing his claim the Court
held as follows.

B. The provisions of Fundamental Rule 56
shall
prevail
over
the
Civil
Service
Regulation, if they are inconsistent.
Condition - B of Art. 361, that the employment
must be substantive and permanent, is clearly
inconsistent with Fundamental Rule 56 and
thus is in operative. (Para 7)

C. In service jurisprudence, a person who
possesses the requisite qualification for
being appointed to a particular post and
appointed
with
the
approval
and
consultation of the appropriate authority
and continues in the post for a fairly long
period, then such an appointment cannot
be held to be "stopgap or fortuitous or
purely ad hoc" - For the purpose of making
payment of retiral dues the entire service, be it
temporary or permanent shall be considered.
 (Para 7, 8, 9)

Writ petition allowed. (E-4)

Precedent followed:

1. Lakshman Veer Vs. State of U.P. and others,
Writ-A No. 42848 of 2012 (Para 7)

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Shikhar Anand, learned
counsel for the petitioner and Dr. Udai
Veer Singh, learned Addl. C.S.C. for the
State-respondents.

2. By means of this petition the
petitioner has prayed the following relief:

"i) Issue a writ, order or
direction in the nature of Mandamus
directing the opposite parties to pay pension
as well as gratuity payable to petitioner with
effect from the date of his retirement, that is
30.06.2012 till date as well as continue
paying the pension in future.

ii) Issue a writ, order or
direction in the nature of Mandamus
directing the opposite parties to pay the all
the post retirement benefits along with
interest accrued thereupon till the date of
actual payment."

3. The brief facts of the case are that
the petitioner was appointed on the post of
Skilled Machinist on 4.5.1979 as a
temporary and adhoc employee pursuant
to which the petitioner joined his duties
with effect from 31.7.1979 at Rajkiya
Madhyamik Pravidhik Vidyalaya, Gonda.
Thereafter, in compliance of order dated
6.6.1996 passed by the Director, Technical
Education, U.P. the petitioner discharged
duties at Govt. Polytechnic with effect
from 2 August 1996. It has been noted that
the
request
of
the
petitioner
for
regularisation of service was forwarded by
the Principal, Government Polytechnic,
Faizabad vide letter dated 31.5.2010.
Further, since the work and conduct of the
petitioner was being appreciated by the
authority competent, therefore, he was
granted extension of service beyond the
date of superannuation i.e. on 31.8.2010
till 30.6.2012 as he retired from that post
on that date.

4. In view of above the petitioner had
rendered his services for 33 years of
continuous satisfactory service but he has not
been paid his post retiral benefits such as
pension and gratuity perhaps for the reason that
he was not regularized in service.

5. Learned Addl. C.S.C. has drawn
attention of this Court towards para 4 of
130 INDIAN LAW REPORTS ALLAHABAD SERIES
the counter affidavit of opposite party no.
3 and 4 wherein it has been submitted that
the entire services of the petitioner are
temporary and it is provided in Article 361
of the Civil Services Regulation that
temporary / adhoc services are not tenable,
therefore, the petitioner has not been paid
his retiral benefits including the pension as
prayed for.

6. Dr. Udai Veer Singh has further
drawn attention of this Court towards para
no. 4 of the counter affidavit of respondent
nos. 1,2 and 5 wherein the detailed facts of
the issue of the petitioner has been
narrated and almost same ground has been
taken that since the services of the
petitioner
was
on
temporary
basis,
therefore, he could have not been paid his
retiral benefits as prayed in the writ
petition.

7. Learned counsel for the petitioner
has not only denied the contentions of
counter affidavit but also placed reliance
on the judgment of this Court dated
29.3.2019 in Lakshman Veer vs. State of
U.P. and others in Writ-A No. 42848 of
2012
referring
para
27,
28,
31,32,33,34,35,36, 40,41,and 42 as under :

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

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

First--The service must be under
Government.

Second--The employment must
be substantive and permanent.

Third--The service must be paid
by Government.

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

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

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

(2) in individual cases and
subject to such conditions as it may think
fit to impose in each case, allow service
rendered by an officer to count for
pension.
31. Learned counsel for the petitioner has
also placed reliance upon Rules 56(C) and
(E) of Act, 1975 and the same is being
quoted below:-

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

56(e). A retiring pension shall be
payable and other retirement benefits, if
any, shall be available in accordance with
an subject to the provisions of the relevant
4 All. Uma Shankar Singh Vs. State of U.P. & Ors.
131
rules to every Government servant who
retires or is required or allowed to retire
under this rule.

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

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

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

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

32. Rule 56(C) does not create
any difference between permanent and
temporary employee whereas Rule-56(E)
clearly says that pension shall be payable
to every government servants subject to
provisions of relevant rules who retires or
is required or allowed to be required
under these rules. Therefore, argument
raised
by
learned
Senior
Counsel
appearing for the petitioner is acceptable
in the light of Rules 56(C) &(E) and
petitioner is entitled for pension.

33. So far as payment of pension
to retiring person is concerned, learned
Senior Counsel has placed reliance upon
several judgment of Rudra Kumar Sain V.
Union of India, (2000) 8 SCC 25, in which
Supreme Court has considered the words
'ad hoc', 'stopgap' and 'fortuitous' and it
has been answered in Paragraph No. 20 of
the said judgment which is quoted below:-

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

34. Again in the case of Ramesh
K. Sharma v. Rajasthan Civil Services
(2001) 1 SCC 637, Apex Court has
considered the word 'substantive basis'
after relying upon the judgment of
Baleshwar Dass v. State of U.P. (AIR 1981
SC 41) and held that if an incumbent holds
the post for indefinite period, this cannnot
be said to be adhoc appointment. In
paragraph No. 4 of the said judgment, the
Court has held as under:-

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

35. Again issue of payment of
pension came before this Court in the
matter of Dr. Hari Shanker Asopa v. State
of U.P. and another (1989) UPLBEC 501,
who
was
allowed
to
retire
being
permanent on any of the post hold by him
during the tenure of his continuous service
of State Medicine College of Uttar
Pradesh and the court has replied the
same after considering Article 361 and
Clause (A) of Rules 1956 of Fundamental
Rules as applied in U.P. Civil Service
Regulation and held as under:-

"In the instant case, indisputably
Dr. Asopa who allowed to retire under
clause (c) of Rule 56 and the first and
third conditions envisaged in Article 361
of the Regulations were satisfied. He,
therefore, became qualified for a retiring
pension notwithstanding the fact that he
was not permanent on any of the posts
held by him during the tenure of his
continuous services of State Medical
Colleges of Uttar Pradesh Government.
Denial of retiring pension to Dr. Asopa on
the ground of his not being permanent on
any post of the government service was
clearly violative of clause (e) of Rule 56 of
the
Rules.
Condition
contained
in
paragraph 2 of the order, dated 21st
February, 1983 (annexure-10 to the writ
petition), depriving Dr. Asopa of retiring
pension cannot, therefore, be sustained.
The contention of the learned Standing
Counsel for the State of Uttar Pradesh that
Dr. Asopa was not entitled to any pension
lacks merit and has got to rejected."

36. Payment of pension in the
similar matter again came before this
Court in the matter of Hans Raj Pandey v.
State of U.P. and others, 2007 (3)
UPLBEC 2073 and the Court after
considering the different law occupying
the filed with regard to the payment of
pension has held as under:-

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

40.Therefore, in the light of
discussion made herein above, order dated
03.01.2015 is not sustainable in the light
of rules as well as law laid down by this
Court and petitioner is also entitled for
payment of his pension from the date of his
superannuation i.e. 30.06.2011, therefore,
order dated 03.01.2015 is hereby quashed.

41.At this stage, another issue
before this court is that whether matter
should be remanded back to Regional
Committee
constituted
under
the
provisions of U.P. Act No. 5 of 1982 for
taking a fresh decision or not. Similar
issue was came before Division Bench this
2 All. Jitendra Kumar Singh Vs. State of U.P. & Ors.
133
Court in the matter of Tileshwar Nath Vs.
State of U.P. & another (Writ-A No. 8224
of 2012) decided on 11.04.2018, and the
Court has held as follows:-

.........................

"There is another issue before the
Court whether the matter should be remanded
back to the Tribunal or not to consider and
decide again in light of observation made
herein above. Court is of the view that when
charge sheet itself does not establish any
charge and matter is pending since long, no
fruitful purpose shall be served to remand the
matter back to the Tribunal to decide again,
when the petitioner has already retired from
service on 31.01.2006."

...........

42. In the present case too,
grounds taken in order dated 03.01.2015
is absolutely baseless and petitioner has
also attained the age of superannuation on
30.06.2011,
therefore,
instead
of
remanding back the matter to Regional
Committee, respondents are directed to
pay pension to the petitioner forthwith on
month to month basis and also pay arrears
of pension along with 6% interest from the
date of his retirement i.e. 01.07.2011
within three months from the date of
production of certified copy of this order."

8. By means of aforesaid judgment this
Court has referred the settled proposition of law
in question by citing the judgments of Division
Bench of this Court as well as the judgment of
Hon'ble Apex Court and has arrived at
conclusion that for the purpose of making
payment of retiral dues the entire services be it
temporary or permanent shall be considered.

9. Considering the rival contentions
of the learned counsel for the parties and
the settled position of law, as above, the
petitioner is liable to get pension and all
retirement benefits counting his entire
service till his date of retirement. In the
present case since the issue of the
regularisation remained pending till the
retirement of the petitioner as no decision
had been taken, therefore, at this stage I do
not feel it appropriate to remand the matter
before the competent authority for taking
the decision thereon when the law is
settled on the point that for the purpose of
retiral dues the entire services of the
employee shall be considered.

10. Accordingly, the writ petition is
allowed.

11. A writ in the nature of mandamus is
issued to pay the pension as well as gratuity
payable to petitioner with effect from the date
of his retirement, that is 30.06.2012 till date as
well as the petitioner shall be paid his
continuous pension.

12. The compliance of the aforesaid
order shall be made within three months from
the date of production of certified copy of the
order of this Court failing which the petitioner
shall be liable for the interest @ 6% on the
entire arrears of dues.
----------
(2020)02ILR A133

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.02.2020

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 2713 of 2020
And
Service Single No. 2748 of 2020

Jitendra Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents