Point of Law: petitioner has rendered qualifying pensionery service with effect from the date of his initial joining in the department in question, so the same shall be treated as service qualifying for pension and pensionery benefits

JUDGMENT :

1. Heard Sri Amol Kumar, learned counsel for the petitioner and Sri Raghvendra Kumar Singh, learned Advocate General of U.P. assisted by Sri Manjive Shukla, learned Additional Chief Standing Counsel for the State-respondents.

2. By means of this writ petition, the petitioner has prayed for the following reliefs :-

"(I) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.03.2021, having reference No.1054/A.N.C./PENSION/M.I-15731 passed by the Joint Director Pension, Kanpur Mandal, Kanpur, by means of which, the pension to the petitioners was stopped with immediate effect as well as the order dated 15.02.2021 having reference No.3625/2021/4217 issued by the Director, Employees State Insurance Scheme, Labour and Medical Services, Uttar Pradesh passed by the opposite part No.3, contained as Annexure Nos.1, 2 & 3.

(II) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to release the pension to the petitioner, without any delay or interruption."

3. The brief facts, as per learned counsel for the petitioner, are that pursuant to the advertisement in the Newspaper on 30.01.1986 for making appointment on adhoc vacancy of Medical Officers in the Employees State Insurance Scheme, Labour and Medical Services, Uttar Pradesh (here-in-after referred to as the "department in question"), the petitioner was appointment as Medical Officer on adhoc basis in the department in question on 17.03.1989.

4. Initially, the medical services rendered by the department in question was looked after by the Department of Medical & Health Services, U.P., however, vide Government Order dated 10.06.1985 a separate wing was created with regard to medical and paramedical staff. The option was also given to the doctors of the medical & health to opt for services of the department in question as the separate directorate and separate cadre for the department was proposed with the separate service rules, on the same emoluments and perks which are paid to the doctors of Medical & Health Department. Such Government Order has been annexed as Annexure No.5 to the writ petition. Admittedly, the aforesaid Government Order has been issued after getting prior approval from the Finance Department and Medical & Health Department of U.P. and also with the order and approval of the Governor.

5. Since pursuant to the Government Order dated 10.06.1985 no service rules were promulgated governing the service condition of the petitioner, therefore, the initial appointment of the petitioner was made on 17.03.1989 by the Competent Authority following the due procedure required for making appointment on adhoc basis. However, the rules were later on promulgated in the name of U.P. Employees State Insurance Scheme, Labour Medical Services Rules, 1993 (here-in-after referred to as the "Rules, 1993").

6. The services of the petitioner were regularized with effect from 24.07.2009 on the basic pay-scale of Rs.8000-13500 pursuant to the order dated 22.12.2011 (Annexure No.6).

7. Learned counsel for the petitioner has submitted with vehemence that the department was created vide Government Order dated 10.06.1985 with due approval by the Finance Department and the Medical & Health Department and also by the order and approval of the Governor creating 345 posts of employees including one Additional Director. The separate directorate and separate cadre was also proposed to be created and separate service rules to be created. Therefore, it cannot be said that pursuant to the advertisement dated 30.01.1986 the appointment of certain employees was not made as per law. Besides, the petitioner has continuously and permanently discharged his duties of Medical Officer till 31.05.2015, i.e. the date of his superannuation.

8. Sri Amol Kumar, learned counsel for the petitioner has further submitted that adhoc services of the petitioner are to be counted for grant of pension as per Regulation 370 of Civil Service Re