Ashok Kumar Yadav vs State of U.P. and Others

Ritu Raj Awasthi, J.—Learned Standing Counsel was directed to file counter affidavit, however, no counter affidavit has been filed till date.

Heard Mr. Gaurav Mehrotra, learned Counsel for the Petitioner as well as learned Standing Counsel for the State.

With the consent of parties'' counsel this writ petition is being heard and disposed of finally.

The writ petition has been filed challenging the order dated 24.12.2008 by which the Petitioner has been denied the pension on the ground that in view of the Government Order dated 15.4.2004 he was not entitled to the salary for the period 18.7.1974 to 3.11.2002 and his effective period of service was only 9 years, 10 months and 27 days'' and as such he was not entitled for pension.

Mr. Gaurav Mehrotra, learned Counsel for the Petitioner submitted that the Petitioner was not allowed to work during the period 18.7.1974 to 3.11.2002 as criminal proceedings were initiated against certain P.A.C. personnel including the Petitioner on the allegation of alleged P.A.C. revolt. The State Government by Government Order dated 15.4.2004 had taken a policy decision that the persons reinstated in service would not be entitled for continuity of service and arrears of salary for the period they had not worked.

It is submitted that the said Government Order was challenged in Writ Petition No. 37040 of 2006 Paras Nath Singh v. State of U.P. and Ors. at Allahabad and the same has been quashed by the judgment and order dated 25.8.2009 passed by this Court.

The contention is that since the Government Order dated 15.4.2004 has already been quashed, the Petitioner can not be denied the pension and other retiral benefits on the basis of the said Government Order dated 15.4.2004. His further submission is that the similarly situated several persons have been allowed the benefit of the continuity of service and have been declared entitled for pension.

In support of his submissions, the learned Counsel for the Petitioner has drawn the attention of this Court towards the judgment and order dated 25.8.2009 passed in W.P. No. 37040 of 2006 aforesaid, by which the Government Order dated 15.4.2004 has been quashed, a copy of order dated 25.8.2009 is annexed as Annexure No. 11 to the writ petition.

Learned Standing Counsel admits that in the judgment and order dated 25.8.2009 (Supra), the Government Order dated 15.4.2004 has been quashed. It is also admitted between the parties that similarly situated persons have been allowed continuity of service and they have been paid the pensionary benefits.

The Division Bench of this Court in Special Appeal (Defective) No. (801) of 2009 State of U.P. and Ors. v. Ayodhya Rai had observed as under:

Having appreciated the rival submissions, we do not find substance in the submission of Mr. G.C. Upadhyay. In light of the earlier order of this Court, the case of the Petitioner was considered and by an order dated 26th of October, 1999, it has specifically been decided that the period from the date of termination till reinstatement shall count for pension. It is not the case of the Appellants that the aforesaid order has been rescinded. In case, the aforesaid order has not been rescinded, Petitioner shall be governed by that. We may, however, observe that while reinstating the Petitioner in service, it has been specifically stated that the period from the date of termination till reinstatement shall count for the purpose of pension. The Appellants cannot wriggle out from the same as the order has not been rescinded.

The SLP filed before the Apex Court against the said judgment was dismissed by order dated 17.12.2009, a copy of the order passed by the Apex Court in SLP No.CC 244 of 2010 is annexed as Annexure-13 to the writ petition.

The Petitioner is not claiming the back wages or arrears of salary. The only contention of the learned Counsel for the Petitioner is that he is entitled to get the continuity of service.

I have considered the submissions made by the parties'' counsel.

I am of the considered opinion that in view of the fact that the Government Order dated 15.4.2004 has been quashed by this Court, the Petitioner is entitled to get the continuity of service and he can not be denied the pension on the basis of the Government Order dated 15.4.2004.

In this view of the matter, the writ petition is allowed and the impugned order dated 24.12.2008 contained as Annexure-1 to the writ petition is hereby quashed with the direction that the opposite parties shall allow the continuity of service to the Petitioner and consider the case of the Petitioner for grant of pension and other reitral benefits.

With the aforesaid directions, the writ petition is allowed.