Allowed

State of U.P. Thru. Addl. Chief Secy. Education and Skill Deve.Govt. Civil Secrt. Lko. and Another v. Smt. Hemlata Mishra

Allahabad HC10 Feb 2023/60/2023

Case brief

AI extract

What is this about?

Special Appeal regarding the regularisation and pension entitlement of a teacher appointed on ad hoc basis. The Single Judge granted benefits based on a prior Supreme Court order. This Bench noted that critical eligibility contention under the 2021 Validation Act was not addressed. It set aside the impugned order and remitted the matter for fresh consideration.

What did the court decide?

The impugned judgment and order dated 30.08.2022 is set aside. The matter is remitted to the Single Judge to decide it afresh by dealing with the issue raised by the appellant.

State of U.P. Thru. Addl. Chief Secy… — Pension and Retirement Benefits | Allahabad HC (2023)

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Court No. - 1

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Case :- SPECIAL APPEAL DEFECTIVE No. - 60 of 2023

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Appellant :- State Of U.P. Thru. Addl. Chief Secy. Education And Skill Deve.Govt. Civil Secrt. Lko. And Another Respondent :- Smt. Hemlata Mishra Counsel for Appellant :- C.S.C. Counsel for Respondent :- Pradeep Chandola,Abhishek Dwivedi

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Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.

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C.M. Application No. 1 of 2023 : Application for Condonation of Delay.

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(1) This intra Court appeal is beyond 130 days.

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(2) Heard Shri Kuldeep Pati Tripathi, the learned Additional Advocate General, assisted by Shri Vivek Shukla, the learned Standing Counsel appearing for appellants/State and Shri Pradeep Chandola and Shri Abhishek Dwivedi, learned Counsel for the respondent/writ petitioner.

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(3) The cause shown in the affidavit filed in support of aforesaid application for condonation of delay is sufficient. The application for condonation of delay is allowed and the delay in filing the instant appeal is condoned .

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Order on Memo of the Appeal

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(4) Feeling aggrieved by the judgment and order dated 30.08.2022 passed by the Hon’ble Single Judge in Writ-A No. 3387 of 2022 : Smt. Hemlata Mishra Vs. State of U.P. and another, by which the Hon’ble Single Judge allowed the said writ petition with the

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direction to the appellants herein to pass necessary orders in compliance of the order keeping in mind the fact that husband of writ petitioner/respondent is entitled for benefits as have been granted in Writ Petition No. 4319 (S/S) of 2010 : Ashok Kumar Dixit Vs. State of U.P., decided on 29.04.2020, which was upheld by the Apex Court, the State and its authorities have filed this intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952.

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(5) Shri Kuldeep Pati Tripathi, learned Additional Advocate General, assisted by Shri Vivek Shukla, learned Standing Counsel appearing for appellants/State has drawn our attention to paragraph-7 of the impugned judgement passed by Hon’ble Single Judge and has submitted that the claim of the writ petitioner to grant all post-retiral dues to the writ petitioner and also pay arrears of pension to the writ petitioner from the date of retirement of her husband i.e. 30.09.2016, was opposed by the learned Standing Counsel before Hon’ble Single Judge, asserting that firstly husband of the writ petitioner was not qualified and therefore he is not eligible for being regularized and secondly in the light of the ‘The Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021’ (U.P. Act No. 1 of 2021), the husband of the writ petitioner is not covered by the provisions of Validation Act, 2021 and hence he is not entitled for post-retiral dues .

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(6) Shri Tripathi has submitted that the impugned judgment and order dated 30.08.2022 was passed on the basis of judgment and order dated 29.04.2020 passed in Writ Petition No. 4319 (S/ S) of 2010, which was passed prior to the enforcement of the U.P. Act No. 1 of 2021. He submits that Section 2 of the U.P. Act No. 1 of 2021 defines the term ‘Qualifying Service’, which means the service rendered by the officer appointed on a temporary or permanent post in accordance with the provisions prescribed by the Government for the post. He submits that the Hon’ble Single Judge, while passing the impugned order, though noted down the aforesaid Act No. 1 of 2021 but no finding has been recorded regarding the applicability or otherwise of the said Act to the case of the respondent/writ petitioner.

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(7) Shri Tripathi has further submitted that at the relevant time, the terms and conditions relating to appointment of the husband of respondent/writ petitioner were regulated under Government Order dated 28.05.1975 but the respondent’s husband was deficient of the requisite eligibility qualification as prescribed in Government Order dated 28.05.1975. His submission is that since the husband of respondent/writ petitioner was not having the requisite eligibility qualification prescribed in the Government Order dated 28.05.1975, his services were not regularized by the department.

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(8) Elaborating his submission, Shri Tripathi has pointed out that earlier the husband of the writ petitioner filed writ petition No. 253 (S/S) of 2012, seeking direction for regularization, which was dismissed by the Hon’ble Single Judge by means of the judgment and order dated 13.03.2012, against which Special Appeal No. 180 of 2012 was filed, which too was dismissed by the Co-ordinate Bench of this Court by means of the judgment and order dated 09.07.2014. He further submits that in the counter affidavit, there was categorical statement made by the appellants that the ad hoc services of the respondent’s husband cannot be counted as qualifying service for pension but the Hon’ble Single Judge did not consider the said averments of the counter affidavit filed by the appellants in the writ petition while passing the impugned judgment and order dated 30.08.2022.

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(9) Per contra, Shri Pradeep Chandola and Shri Abhishek Dwivedi, the learned Counsel appearing on behalf of the respondent/writ petitioner have submitted that the appointment of the husband of the writ petitioner/respondent was made on ad hoc basis against the permanent post. A selection committee was constituted for regularization of the ad hoc Instructor in the year 1983. The Selection Committee had considered the candidature of 65 ad hoc Instructor for regularization, however, 54 ad hoc Instructors were regularized and 11 ad hoc Instructors including the respondent/writ petitioner were not

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regularized. He submits that Hon’ble Single Judge, after considering the facts and circumstances of the case, has rightly allowed the writ petition by means of the impugned order.

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(10) We have examined the contentions of the learned Counsel for the parties and gone through the impugned judgment as well as material brought on record.

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(11) It is an undisputed fact that the husband of the writ petitioner/ respondent was appointed in the Government Industrial Training Institute on ad hoc basis. His services were not regularized till attaining the age of superannuation, however, he was granted the benefit of promotional pay-scale from time to time.

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(12) The contention raised by the appellants/State in paragraph-7 of the impugned judgment before Hon’ble Single Judge that ‘ firstly husband of the petitioner was not qualified and therefore he is not eligible for being regularized and secondly in the light of the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 (U.P. Act No. 1 of 2021), the petitioner’s husband is not covered by the provisions of Validation Act, 2021 and hence is not entitled for post retiral dues, has not been dealt with by Hon’ble Single Judge while passing the impugned order. Therefore, we are of the considered view that interest of justice would suffice by remitting the matter to the Hon’ble Single Judge for fresh

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consideration of the contention raised by the learned Standing Counsel, which is recorded in paragraph-7 of the impugned order.

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(13) For the reasons aforesaid, the instant intra Court appeal is allowed . The impugned judgment and order dated 30.08.2022 passed by Hon’ble Single Judge in Writ-A No. 3387 of 2022 is hereby set-aside. The matter is remitted to Hon’ble Single Judge to decide it afresh by dealing with the issue raised by the appellant, which is recorded in paragraph-7 of the judgment, expeditiously.

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(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

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Order Date :- 10.2.2023 Ajit/-

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Digitally signed by :- AJIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. Addl. Chief Secy. Education and Skill Deve.Govt. Civil Secrt. Lko. and Another v. Smt. Hemlata Mishra

Case brief

What is this about?

What did the court decide?

State of U.P. Thru. Addl. Chief Secy. Education and Skill Deve.Govt. Civil Secrt. Lko. and Another v. Smt. Hemlata Mishra

Case brief

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What did the court decide?

What the court decided

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