# Uma Shanker Mishra v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 1143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-24
- **Case number:** Writ- A No. 39898 of 2015
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-shanker-mishra-v-state-of-u-p-ors-49306
- **Pages:** 9

## Headnote

A. Service Law - Pension - Uttar Pradesh
Collection Amins Service Rules, 1974 -
Fundamental
Rule
56
-
Substantive
appointment is not a condition precedent
for entitlement of pensionary benefit. The
appointment
has
to
be
a
regular
appointment
on
the
pensionable
establishment of the Government to earn
pension. (Para 12, 15)

In the present case, petitioner was initially
appointed as Seasonal Collection Amin on
03.02.1978 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
31.12.2012. 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. The
petitioner came to be appointed in the year
1978 and retired in the year 2012, having
rendered
service
for
three
decades
as
temporary employee appointed against a post.
(Para 2, 3)
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
This Court is of the view that as the controversy
involved in the present case has already been
decided by this Court vide order dated
18.09.2019 passed in Writ-A No. 10116 of 2018,
the present writ petition is allowed in the same
terms. The petitioner is entitled to pension.
(Para 16)

Writ petition allowed. (E-4)

Precedent followed:

## Text

1 All. Uma Shanker Mishra Vs. State of U.P. & Ors.
1143

(xx) Concept of adverse possession of
lien
on
post
or
holding
over
are
inapplicable in service jurisprudence.

(xxi) The submission on behalf of the
respondents that government orders/
circulars/letters have been complied with,
therefore, no interference is called for, is
preposterous for the simple reason that
such
orders/circulars/letters
being
violative of statutory provisions and
constitutional mandate are just to be
ignored in terms of the judgment of this
Court inRam Ganesh Tripathi[(1997) 1
SCC 621 : 1997 SCC (L&S) 186 : AIR
1997 SC 1446] ."

20. Thus, the essential qualification of
"First Class B. Pharm" amongst other
essential qualifications provided under the
Regulation, 2014 for recruitment on the
post
of
Associate
Professor
and
Lecturer/Assistant Professor is wholly valid
and does not violate fundamental rights of
the petitioners under Article 14 and 21 of
the Constitution of India.

21. The petitioner has not shown
that
how
amongst
equally
situated
persons, the impugned Regulations 2014
causes any discrimination. Therefore, the
argument of learned counsel for the
petitioner that prescribing "First Class B.
Pharm" amounts to discrimination and
thus violative of Article 14 of the
Constitution of India, is wholly baseless
and is hereby rejected.

22. Nothing could be pointed out nor
any material could be placed by learned
counsel for the petitioner before us to
demonstrate that the impugned provisions
of
the
Regulation
2014
violates
fundamental
rights
of
the
petitioner
guaranteed under Article 21 of the
Constitution of India.

23. For all the reasons aforestated, we
do not find any merit in this writ petition.
Consequently, the writ petition fails and is
hereby dismissed.
----------
(2023) 1 ILRA 1143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ- A No. 39898 of 2015

Uma Shanker Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Pandey, Sri J.S. Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Pension - Uttar Pradesh
Collection Amins Service Rules, 1974 -
Fundamental
Rule
56
-
Substantive
appointment is not a condition precedent
for entitlement of pensionary benefit. The
appointment
has
to
be
a
regular
appointment
on
the
pensionable
establishment of the Government to earn
pension. (Para 12, 15)

In the present case, petitioner was initially
appointed as Seasonal Collection Amin on
03.02.1978 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
31.12.2012. 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. The
petitioner came to be appointed in the year
1978 and retired in the year 2012, having
rendered
service
for
three
decades
as
temporary employee appointed against a post.
(Para 2, 3)
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
This Court is of the view that as the controversy
involved in the present case has already been
decided by this Court vide order dated
18.09.2019 passed in Writ-A No. 10116 of 2018,
the present writ petition is allowed in the same
terms. The petitioner is entitled to pension.
(Para 16)

Writ petition allowed. (E-4)

Precedent followed:

1. Hari Shankar Asopa Vs St. of U.P. & anr.
(Para 4)

2. Shakuntala @ Brahmo Devi (Smt.) Vs
Director of Pension (Para 6)

3. Bench in Board of Revenue & ors. Vs
Prasidh Narain Upadhyay (Para 8)

4. Yashwanti Hari Katakkar Vs U.O.I. & ors.
(Para 9)

5. A.P. Srivastava Vs U.O.I. & ors. (Para 10)

6. Ram Pratap Vs St. of U.P. (Para 10)

7. Babu Singh Vs St.of U.P. (Para 10)

8. Kedar Ram-I Vs St. of U.P. (Para 10)

9. Ram Sajiwan Maurya Vs St. of U.P. & ors.
(Para 10)

10. Kanti Devi Vs St. of U.P. (Para 10)

11. Kishan Singh Vs St. of U.P. (Para 10)

12. Awadh Bihari Shukla Vs St. of U.P. (Para
10)

13. St.of U.P. & ors. Vs Mahendra Chaubey
(Para 11)

14. Prem Singh Vs St. of U. P. (Para 13)

15. Suresh Chandra Pandey Vs St.of U.P. &
ors., Writ-A No. 10116 of 2018 (Para 15)

Present
petition
assails
order
dated
04.04.2015, rejecting the claim of the
petitioner for regularization and order
dated 07.03.2018, declining to grant
post
retiral
benefits,
as
well
as,
pension,
passed
by
the
District
Magistrate, Ballia,

(Delivered by Hon'ble Rajiv Joshi, J.)

1. Heard Shri Ashok Kumar Pandey,
learned Counsel for the petitioner and Shri
Govind Narain Srivastava, learned Standing
Counsel for the respondents-State.

2. The petitioner was initially
appointed as Seasonal Collection Amin on
03.02.1978 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 31.12.2012. 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, 1974 (for short "the Rules
1974"). The
petition
being Writ- A
No.20531 of 2010 came to be disposed of on
24.11.2014, 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
04.04.2015 rejected the claim of the
petitioner on the ground that he was not
found suitable, which is under challenge in
this writ petition.

3. It is urged that by the learned
counsel for the petitioner that the petitioner
came to be appointed in the year 1978 and
retired in the year 2012, having rendered
service for three decades as temporary
employee
appointed
against
a
post,
therefore, is entitled to pension.
1 All. Uma Shanker Mishra Vs. State of U.P. & Ors.
1145

4. The Division Bench of this Court in
Hari Shankar Asopa Versus State of U.P.
and another, 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 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."

5. 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.

6. In Shakuntala @ Brahmo Devi
(Smt.) Versus Director of Pension, 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 01.07.1989, 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
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

7. The Court upon perusal of the
Government order dated 01.07.1989 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
1 All. Uma Shanker Mishra Vs. State of U.P. & Ors.
1147
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.

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. .........."

8. The decision was considered by the
subsequent Division Bench in Board of
Revenue and others Versus Prasidh
Narain Upadhyay. 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.

9. In Yashwant Hari Katakkar v.
Union of India and ors, 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.

10. In A.P. Srivastava v. Union of India
and Ors., 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)

11. The Division Bench of this Court
in State of U.P. and others v. Mahendra
Chaubey, allowed the claim of pension of
a
seasonal
collection
amin
whose
temporary
service
was
followed
by
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
substantive
appointment
despite
the
petitioner therein having not rendered 10
years
substantive
service
after
regularization.

12. 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.

13. A three Judge Bench of the
Supreme Court in Prem Singh vs. State of
Uttar
Pradesh
was
considering
the
question, as to whether, Rule 3 (8) of the
U.P. Retirement Benefits Rules, 1961 and
Regulation 370 of the Civil Services
Regulation of Uttar Pradesh should be
struck down having regard to the fact that
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.

14. 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 regularization. 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 workcharged 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 workcharged 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
1 All. Uma Shanker Mishra Vs. State of U.P. & Ors.
1149
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 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 in-between 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
work-charged
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 workcharged 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 work-charged 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,
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
work-charged
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 workcharged 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."

15. Learned Counsel for the petitioner
submits the similarly situated persons
challenged the order dated 04.04.2015,
passed by the District Magistrate, Ballia, in
Writ-A No.31488 of 2015, which came to
be disposed of vide order dated 27.11.2017
and pursuant to the directions of this Court,
they
submitted
a
comprehensive
representation for arrears of pension, retiral
dues and assailed the order rejecting their
claim for regularization and the District
Magistrate,
Ballia
by
order
dated
07.03.2018 declined to grant post retiral
benefits, as well as, pension on the ground
that they are not entitled for pensionery
benefits under the Rules, 1974, after
retirement
from
service,
which
was
challenged in Writ-A No.10116 of 2018
(Suresh Chandra Pandey Vs. State of
U.P. and three others) and this Court has
allowed the same vide order dated
18.09.2019. The operative part of order
dated 18.09.2019 is quoted as under:-

"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.

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
1 All. Gudda @ Rajman @ Raj Kumar @ Jhalla Vs. State of U.P.
1151
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.

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."

16. This Court is of the view that as
the controversy involved in the present case
has already been decided by this Court vide
order dated 18.09.2019 passed in Writ-A
No.10116 of 2018, the present writ petition
is allowed in the same terms. The petitioner
is entitled to pension. The respondents to
pay the admissible retiral benefits within
three
months
from
the
date
of
communication of the order.

17. No cost.
----------
(2023) 1 ILRA 1151
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Appeal No. 5070 of 2013

Gudda @ Rajman @ Raj Kumar @ Jhalla
 ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri D.P. Singh, Sri Daya Nand Pandey, Sri
I.K. Chaturvedi, Sri Mukesh Singh, Sri
Neeraj Kumar Pandey, Sri P.K. Singh, Sri
Rajendra Prasad Tiwari, Sri Rajrshi Gupta,
Smt. Usha Srivastava, Sri Sushil Kumar
Dwivedi,
Sri
Rijvaan
Ahmad,
Ms.
Shambhavi Shukla

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Evidence Act,
1872- Section 27- Recovery without
disclosure- No other evidence-Even if,
on face value, recovery of the axe and
other belongings on the pointing out of
the appellants/ accused is accepted,
even
then
on
that
strength,
appellants/
accused
cannot
be
convicted
for
want
of
substantial
evidence. Even if, it is accepted, that
after
their
arrest
they
had
made
discloser statement to the arresting
police officer yet in theevent of their
denial before the Court such disclosure
statement
cannot
be
relied
and
accepted. Merely, on the strength of
the discovery of the skelton, weapon
of offence axe with handle, clothes and
other belongings of the deceased at
the pointing out of Raju Kol, it cannot
be suggested that he had done any act
of concealment of the weapon of
offence and body etc.,and it is not
sufficient
to
infer
authorship
of
concealment by Raju Kol, who got
discovered assault weapon and dead
body of the deceased.

Settled law that merely on the basis of recovery of
alleged incriminating articles upon the pointing out
of the deceased where no disclosure has been
made and there is no other substantive evidence,
conviction cannot be secured.

Criminal Appeal Allowed. (E-3)

Case Law/ Judgements relied upon:-