Dismissed

Shyam Deo v. State of U P and 2 Others

Allahabad HC11 Jul 2018WRIA/9307/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order denying the petitioner old pension scheme rights due to regularization after April 1, 2005. The court distinguished the Apex Court judgment in Habib Khan, holding the petitioner was not entitled to old rules, but directed a two-month timeframe for considering gratuity and GPF claims.

What did the court decide?

Petition dismissed. Claim for gratuity, GPF etc. to be considered by concerned authority within two months; amounts due to be released immediately.

Shyam Deo Vs State of U P and 2 Others — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 58

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Case :- WRIT - A No. - 9307 of 2018

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Petitioner :- Shyam Deo Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Anil Kumar Tiwari Counsel for Respondent :- C.S.C.

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Hon'ble Ashwani Kumar Mishra,J.

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Petitioner is aggrieved by an order dated 25.11.2017 passed by the Additional Director (Pension & Treasury), Azamgarh, which records that as petitioner's services have been regularized vide order dated 25.08.2006 and as such, his entry into service would be treated, in law, to be after 01.04.2005. Since new pension Rules have been introduced, as such, petitioner has been found to be not entitled to old pension scheme and his papers have been returned. The order dated 25.11.2017 is assailed in this petition.

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Learned counsel for the petitioner submits that since petitioner had continued since long, therefore, he is entitled to be treated as having entered into service prior to 01.04.2005.

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Petition is opposed by the learned standing counsel.

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I have heard learned counsel for the parties and have perused the material brought on record.

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Learned counsel for the petitioner, at the very outset, places reliance upon a judgment of the Apex Court in Habib Khan Vs. State of Uttarakhand (Civil Appeal No. (S) 10806 of 2017, decided on 23.08.2017) in order to contend that services, rendered in work-charge establishment, is also liable to be counted for the purposes of calculating qualifying service for pension.

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The question, that arises for consideration in the present case, is as to whether old pension Rules, as were enforced under the provisions of U.P. Retirement Benefits Rules, 1961 (hereinafter referred to as, 'the Rules of 1961'), would be applicable upon the petitioner or not?

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The issue, in that regard, has been examined by this Court in Rakesh Kumar Tripathi & 7 Others Vs. State of U.P. & 7 Others (Writ A No. 10719 of 2018, decided on 04.07.2018) and it has been held that date of substantive appointment / entry into service would be the date of substantive appointment or regularization. Temporary appointment or engagement on work-charge basis would not be covered within the expression "entry into service." Petitioner has not disputed that he has been regularized after 01.04.2005 and there is no challenge to such order,

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otherwise.

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For the reasons recorded in Rakesh Kumar Tripathi & 7 Others Vs. State of U.P. & 7 Others (Writ A No. 10719 of 2018, decided on 04.07.2018), no relief can be granted to the petitioner.

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So far as judgment in Habib Khan (supra) is concerned, it would be appropriate to notice that the issue before the Apex Court was as to whether the services, rendered in work-charge establishment, would be counted for the purposes of determining the qualifying service. The issue, relating to applicability of Rules of 1961, was not the question involved therein. Once the rule itself is not shown to be applicable, by virtue of an express provision contained in the Rules itself, the judgment of the Apex Court would have no applicability in the facts of the present case.

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In view of the facts and circumstances, noticed above, the writ petition fails and it is hereby dismissed.

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Claim of the petitioner for being paid gratuity, GPF, etc., however, shall be considered by the authority concerned, in terms of the applicable provisions, and a decision would be taken within a period of two months from today. The amount, which is found due and payable to the petitioner, shall be released immediately thereafter.

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Order Date :- 11.7.2018 Amit Mishra

Shyam Deo v. State of U P and 2 Others

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Shyam Deo v. State of U P and 2 Others

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