Om Prakash vs State of U.P.& Anr.

S. H. A. Raza & B. K. Singh, J.J.

By means of this writ petition, the petitioner has staked a claim to confirm him with effect from 111980 on the post of Medical Officer and to grant him time scale of Rs. 1,2502,050 revised to Rs. 30004500 and Rs. 3,7005,000 with effect from 1782 and 14883 on completion of ten and sixteen years of service and to give arrears of pension with effect from 1778 instead of 1689.

As far as the grant of pension to the petitioner with effect from 1788 instead of 1689 in concerned the petitioner was given the pension with effect from 1 689 for the simple reason that on that date the Government of U.P. has issued a Government Order indicating that those temporary servants who have completed ten years'' continuous service will be entitled for grant of pension. In view of the aforesaid situation it was stated in the counter affidavit filed by the office of the Accountant General that the petitioner was given the pension with effect from 1689 instead of 1788 when he attained the age of superannuation. The said question came up for consideration before a Division Bench of the High Court at Allahabad in the case of Hari Shanker Asopa v. State of U. P. and another, 1990 Lab. I.C. 292, wherein it was indicated that after the induction of 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, become entitled for a retiring pension, provided, of course, the first and third conditions stipulated in Article 361 of the Civil Service Regulations arc satisfied. It was further provided that such a person becomes 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 petitioner on the ground of his not being permanent on any post of the Government service was clearly violative of Cl. (e) of R. 56 of the Rules, the requirement of employment being substantive and permanent, which is one of the three basicconstituents of ''qualifying service'' envisaged in Arts. 465 and 465A, 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 R. 56 of the Rules and rescinding Arts. 465 and 465A of the Regulations, has been enforced.

In view of the aforesaid position, we are of the view that the petitioner would be entitled for the payment of pension with effect from the next date on which he has attained the age of superannuation. The petitioner attained the age of superannuation on 30th June, 1988 and hence he would be entitled for payment of pension with effect from 171988.

As far as the second contention of the petitioner is concerned, no counter affidavit has been filed on behalf of the State of U.P., inspite of lapse of five years. A request has been made by the learned Standing Counsel for the grant of further time to file a response. We are of the view that at such a belated stage, such a request deserves to be rejected.

The petitioner was denied his confirmation with effect from 111980 on the post of Medical Officer and time scale of Rs. 1,250 2,050 revised to Rs. 30004500 and Rs. 3,7005,000 with effect from 1782 and 14883 on completion of ten years and sixteen years of service for the simple reason that the petitioner had earned adverse entries for the years 197172,197273,197374, 197475,197576, 197677,197778 and 198182. Inspite of these adverse entries the services of the petitioner were regularised in accordance with Regularisation Rules, 1979 by means of the order dated 16th March, 1990 with effect from 14th May, 1979.

It is pertinent to mention here that Rule 4 (1) of the Regularisation Rules provides that an appointment made on ad hoc basis shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders. subRule (4) of Rule 4 further provides that the appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority as determined, from the date of order of appointment and, if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee alongwith their character rolls and such other records, pertaining to them, as may be considered necessary to judge their suitability. Rule 8 of the said Rules further provides that if a person appointed on ad hoc basis would not be found "suitable, his services will be dispensed with. The word ''his record and suitability before any regular appointment is made'' and the words'' to judge their suitability'' occurring in Rule 4 (1) (iii) of the Regularisation Rules as well as subrule (4) of Rule 4 of the Regularisation Rules respectively, are of definite meaning inasmuch as before regularisating the service of an ad hoc employee the appointing authority/selection committee shall peruse the record and suitability of a public servant and Judge his suitability on the basis of the record. As on the perusal of service record and judging his suitability, the Selection Committee came to a conclusion that the petitioner should be retained in service, hence in our opinion the adverse entries which he had earned prior to the date of regularisalion, not only have lost their meaning, but the entries have been watered down by the subsequent order of rcgularisation passed in favour of the petitioner. In this view of the matter the grades, which are generally given to a public servant after completion of ten years of service or sixteen years of service cannot be denied to him, hence the writ petition deserves to succeed in that regard.

In view of what we have indicated hereinabove the writ petition succeeds. A writ in the nature of certiorari quashing the cut of date, is issued meaning thereby that the petitioner will be given pension with effect from 1788 instead of 1689 and the authorities will consider the case of the petitioner''s confirmation with effect from 111980 on the post of medical officer arid also consider the case of the petitioner for grant of time scale with effect from the dates mentioned by the petitioner in relief (ii) to the writ petition or any suitable date and pass appropriate orders expeditiously, say, within a period of three mont1 from the date of production of a copy of his order. No order is made as to costs.