Amir Ullah vs State of U.P. and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the parties. Petitioner retired from the post of clerk from Government Unani Medical College, Allahabad previously known as Unani Medical College Allahabad. Under U.P. Indian Medical institutions (Acquisition and Misc. Provisions) Act, 1982, the institution in question was taken over by the State Government and its name was changed to Government Unani Medical College, Allahabad mentioned at serial number 4 in the schedule to the said Act and whereupon all the employees of the institution including the petitioner became Government employees.

Departmental proceedings were initiated against the petitioner and petitioner was suspended on 18.11.1996 charge-sheet was served on 22.11.1997. The allegation was of embezzlement. The petitioner filed a writ petition in the year 2002 wherein interim order was passed directing for concluding the inquiry within four months. The inquiry was not concluded within the said period and petitioner was provisionally reinstated on 13.5.2003 and was posted on post of Ayurvedic and Unani Clerk, Pratapgarh. The writ petition (No. 2606 of 2002) was finally disposed of on 20.12.2005 and it was directed that inquiry should be concluded within four months.

Petitioner retired on 31.1.2006. Petitioner applied for payment of provisional pension, however, he was paid provident fund and insurance amount, but according to para 17 of writ petition other retiral dues including pension were not paid.

Smt. Samuda Bibi widow of Dr. Humdum Usmani filed writ petition in this Court being Writ Petition No. 50978 of 2004 which was allowed by Division Bench on 27.10.2006 directing that her husband''s services prior to provincialization in 1982 should be counted for calculating pension and family pension. Petitioner also filed Writ Petition No. 33473 of 2007. Counter affidavit was filed in the said writ petition and it was stated therein that inquiry against the petitioner had been finalized on 1.10.2008 and 10% pension had been withheld. The said writ petition was disposed of on 11.2.2009 directing that petitioner shall file representation which shall be deciding in accordance with the Division Bench judgment of Smt. Samuda Bibi v. State of U.P. (Writ Petition No. 50978 of 2004) decided on 27.10.2006. Thereafter, petitioner''s representation was rejected on 21.8.2009, copy of which is Annexure-7 to the writ petition and the same has been challenged through this writ petition. The said order has been passed by Dr. Raksha Goswami, Director Ayurvedic and Unani Services, U.P., Lucknow.

Dr. Humdum Usmani was also appointed in the same college before 1982 in which petitioner was appointed i.e. Unani Medical College, Allahabad. Petitioner was appointed on 1.1.1971. In the impugned order, the Director has refused to grant benefit of the Division Bench judgment to the petitioner in spite of order dated 11.2.2009 passed in the previous writ petition of the petitioner himself on an extremely wonderful ground. The ground is that the widow of Dr. Humdum Usmani after decision of her writ petition had filed contempt petition hence under the pressure of contempt petition the order had to be complied by the respondents. Such a view taken by a high officer of the State Government gives queer feeling of the Court. In the most sophisticated words such approach may be described as ridiculous.

In para 9 of the counter affidavit it has been stated that according to para 13 of Government Order dated 2.7.1982 the petitioner did not deposit the C.P.F. amount with interest into G.P.F. account. However, in the impugned order itself, it is mentioned that the said amount could not be deposited by the petitioner as there was no facility of the C.P.F. in the Unani Medical College, Allahabad prior to its provincialization (in the year 1982). The said G.O. has also taken into consideration by the Division Bench in its judgment dated 27.10.2006.

Writ petition is allowed. Impugned order is set aside. It is directed that pension shall be computed treating the petitioner to be in service since 1971 and it shall be paid after withholding of 10% of the same promptly in no case beyond three months from date of production of certified copy of this order.

Civil Misc. Correction Application No. 257539 of 2012

Allowed.

Three corrections have been carried out in the original order. It is further directed that the statement in the second line of the judgment that "Petitioner retired from the post of clerk from Government Unani Medical College, Allahabad" must be read as "Petitioner retired from the post of clerk from the office of respondent No. 4-Regional Ayurvedic and Unani Officer, Pratapgarh."