Radhey Shyam Pandey and Another Vs State of U.P. Thru Addl.Chief Secy.Rural Engineering and Anr.

Neutral Citation No. - 2025:AHC-LKO:13415

Court No. - 6

Case :- WRIT - A No. - 31514 of 2018

Petitioner :- Radhey Shyam Pandey And Another Respondent :- State Of U.P. Thru Addl.Chief Secy.Rural Engineering And Anr. Counsel for Petitioner :- Girish Chandra Verma,Girish Chandra Verma K. Counsel for Respondent :- C.S.C.

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Hon'ble Alok Mathur,J.

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Heard Sri Girish Chandra Verma K., learned counsel for petitioner as well as learned Standing Counsel for respondents.

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The grievance raised by the petitioner in the present writ petition is with regard to rejection of the claim of the petitioner for grant of post retiral dues on account of the fact that petitioner had completed qualifying services and their claim accordingly has been rejected by the respondents which decision has been assailed in the present writ petition.

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It has been submitted by learned counsel for petitioner that petitioner No. 1 was appointed as Junior Engineer in the Rural Engineering Services, Gonda Division on 01.02.1984 while petitioner No. 2 was appointed on 20.12.1988. The services of both the petitioners were terminated on 01.04.1985 and 01.06.1989 respectively against which petitioner No. 1 had filed a writ petition being Writ Petition No. 87 (SS) of 1997(Radheyshyam Pandey Vs. State of U.P. and others) and the said writ petition was disposed of by judgment and order dated 05.12.2003 with certain directions including that in case petitioners are not working, they shall be deemed to be in service during the period they have not worked in pursuance of oral order of termination but they shall not be entitled for backwages for that period and further their claim for minimum scale would be duly considered and the question of regular absorption will also be dealt with in accordance with existing Rules, as laid down by the judgment of the Supreme Court.

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It is submitted that in pursuance of the aforesaid judgment, both the petitioners were reinstated in service n 16.12.2005 and 25.09.2008 respectively. It has further been submitted that against the judgment and order dated 05.12.2003, the State had preferred a special appeal being Special Appeal No. 77 of 2005 but orders were passed thereon and it remain pending and in the

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meanwhile the petitioners had filed contempt petitions and on the strength of the contempt petitions that the respondents had reinstated the petitoner in service.

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It has further been stated that the said special appeal was dismissed as infructuous on 23.01.2023. He further submits that in the meanwhile the petitioners continued to discharge their duties as Junior Engineer and have superannuated from services on 31.01.2021 and 31.07.2020 respectively and the present dispute relates only to the claim for pension and post retiral dues. In this regard several representations have been made by the petitioners and their claim have been rejected by order dated 29.04.2022 stating that the services of the petitioners have been regularised only in 2016 while on the other hand they have superannuated in 2021 and 2020 and consequently have not completed the qualifying services making them eligible for grant of pension as per the Uttar Pradesh Retirement Benefit Rules, 1961 and hence their claim for pension has been rejected.

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Learned counsel for petitioner has vehemently submitted that it on account of litigation which was pending where the termination orders were challenged, the respondents did not consider the claim for regularisation and even if their services were reinstated, the special appeal preferred by the State continued to remain pending and this was another reason due to which the State did not consider the claim of the petitioners for reinstatement despite repeated representations were made by them.

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It has been submitted that petitioners were duly eligible and qualified for being regularised in terms of the Uttar Pradesh Regularization Rules, 2001 amended from time to time and accordingly the services of the petitioners ought to have been regularised from the date of reinstatement. Had the respondents duly considered the claim of the petitioners within reasonable time the regular services of the petitioners would have been counted from 2003 and 2008 respectively and they would have been entitled for grant of pension and post retiral dues.

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An alternate submission has also been made by learned counsel for petitioners that considering the judgment of Hon'ble Single Judge dated 05.12.2003, it was clearly provided tht if the husband of the petitioner are not working they shall be deemed to be in service during the period they have not worked in pursuance of oral order of termination. Consequently, as per the judgment of the Hon;ble Single Judge, the petitioners would be deemed to have been continuously worked from the date of termination till the date of reinstatement and it has further been

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submitted that this aspect was duly considered by the respondents and even backwages were paid to the petitioners for the period they had not worked after the oral order of termination.

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Accordingly, there is no dispute that the services of the petitioners had to be considered having continuously worked from the date their initial appointment till the date of superannuation.

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The writ petition has been opposed by learned Standing Counsel. He has submitted that case of the petitioners were duly considered for regularisation under the RegularisationRules and necessary orders for regularisation ws passed on 16.06.2016 and from the date of regularisation the regular services would be counted and as per the aforesaid rules the date of regularisation fo services would be effected from the date of order itself and there is no provision for granting them benefit from the retrospective period inasmuch as no such provision is there in the aforesaid rules and accordingly in cace regularisation of the petitioners were made in 2016 they had spent only 4-5 years in service which is less than the requisite service as per provisions of Rule 3(8) of the U.P. Retirement Benefit Rules, 1961 and accordingly there is no infirmity in the impugned order dated 29.04.2022 rejecting the claim of the petitioners for grant of pensionery benefits.

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I have heard rival contentions and also perused the record.

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It is noticed that the petitioners were appointed on the post of Junior Engineer on 01.02.1984 and 20.12.1988. Their services were orally terminated and there is no dispute that subsequently the termination orders were set aside by judgment of this Court dated 05.12.2003 passed in Writ Petition No. 87 (SS) of 1997. The petitioners were duly reinstated in service and they continued till the date of superannuation in 2020 and 2021 respectively. After reinstatement by a common order the services of the petitioners were also regularised on 16.06.2016.

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The question which falls for consideration is as to whether the benefit of the previous service can be taken into account while considering the claim for pension of the petitioner. It is noticed that the petitioners were initially appointed on 01.02.1984 and 20.12.1988 respectively and subject to the interference of this Court they are deemed to have continued uninterruptedly till the date of superannuation. Even during the period the oral order of termination was operative as per the judgment of the Single Judge dated 05.12.2003 they would be deemed to be in service even if they have not worked

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subsequently to their oral termination.

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This Court finds force in the submissions of the petitioners that firstly on account of oral order of termination that their case was not considered for regularisation and subsequently even judgment was passed in their favour on 05.12.2003 due to the pendency of the special appeal preferred by the State, their case was not considered till 16.06.2016. In this regard, it is noticed that merely because of the particular circumstance that the State did not take up their case for regularisation, the claim of the government servant for regularisation cannot be defeated from a date such a government servant became eligible to be considered and be regularized. This aspect of the matter has been considered in various judgments of this Court as well as by Supreme Court and even in the case of Madan Lal Sharma Vs. State of Madhya Pradesh passed in Civil Appeal No. 14753 of 202 4 in para No. 14 the Division Bench of the Supreme Court has held as under:-

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"14. Be that as it may, we have noticed that once the Labour Court directed that Madanlal should be classified as a permanent employee, the respondents in their appeal petition before the Industrial Court at Indore had taken a point that Madanlal cannot be regularized in the absence of a sanctioned post. It is, therefore, clear that the respondents were well and truly aware of the implications of the order of the Labour Court which required them to regularize his service on a post. If no post was available then, Madanlal was required to be placed on a supernumerary post till such time a sanctioned post became available where he could be accommodated. The neglect/failure/omission of the respondents in not conferring permanent status to Madanlal cannot afford any justification or good reason for them to take advantage of their own wrong in depriving Madanlal of his pensionary benefits."

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Accordingly, after coming into force Regularization Rules of 2001 the petitioners were duly entitled to be considered for regularisation as by that time they have completed 03 years of services and were duly eligible for consideration. It has further been specially stated that in para 16 of the writ petition that persons junior to the petitioners, namely, Sri Chandrakant Msihra, Sri Hira Lal and Sri S.N. Tripathi who were junior to the petitioners, their cases were considered for regularistaion and orders were passed for their regularisation on 05.03.2002 but State in the counter affidavit filed on 12.09.2019 has not denied assertions made by the petitioners in paragraph No. 16 of the writ petition.

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In view of the aforesaid reasons, this Court finds that the

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petitioners had an indefeasible right of being regularised from the date the juniors were regularised on 05.03.2002 and accordingly the said date should be considered by the respondents for grant of service benefits and other post retiral dues admissible to the petitioners. Accordingly, the impugned order denying the benefit from back date is illegal and arbitrary and is hereby set aside. The writ petition is allowed . The respondents are directed to pass necessary orders for payment of the post retiral dues to the petitioners within two months from the date a certified copy of this order is produced before him.

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(Alok Mathur, J.)

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Order Date :- 5.3.2025

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Ravi/

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Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

Radhey Shyam Pandey and Another v. State of U.P. Thru Addl.Chief Secy.Rural Engineering and Anr.

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Radhey Shyam Pandey and Another v. State of U.P. Thru Addl.Chief Secy.Rural Engineering and Anr.

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