AFR

Court No. - 2

Case :- WRIT - A No. - 15529 of 2018

Petitioner :- Dr. Ram Sharan Tripathi

Respondent :- State of U.P. and Another

Counsel for Petitioner :- Shashank Shekhar Mishra

Counsel for Respondent :- C.S.C.

Hon'ble Suneet Kumar,J.

1.

Heard learned counsels for the parties.

2.

The second respondent, Director, Ayurvedic and Unani

Services, Lucknow, issued an advertisement on 23.05.1987, for

appointment on the post of Ayurvedic and Unani Medical Officers in

the State of U.P. The advertisement invited applications for 206

posts of Unani Medical Officers and 1194 posts of Ayurvedic

Medical Officers. 53 posts was reserved for female candidates.

Petitioner, being fully qualified, was called for interview; on being

recommended, petitioner came to be appointed by order dated

18.06.1988 on the post of Medical Officer (Ayurvedic). The name of

the petitioner finds place at sl.no. 91. Petitioner resumed duty on

12.07.1988 at the State Ayurvedic Dispensary. After appointment,

petitioner was posted at various State Ayurvedic Dispensaries.

Petitioner after putting in 17 years of service, came to be regularized

on 16.03.2005 in terms of U.P. Regularization of Ad-hoc

Appointments (on the Post Outside the Purview of Public Service

Commission) Rules, 1979¹. The name of the petitioner finds place at

sl.no. 125. Petitioner retired on the attaining the age of

superannuation on 31.01.2014 from State Ayurvedic Dispensary,

Guda, District Lalitpur. During the service period, petitioner was

sanctioned Assured Carrier Progression scale (A.C.P.), Government

Provident Fund and Group Insurance Scheme. Petitioner on

1. for short “Rule, 1979”

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retirement claimed pension, however, the same was not considered on

the plea that petitioner lacks the requisite qualifying service of ten years.

In other words the ad-hoc services rendered by petitioner since 1988 was

not being counted towards pensionary benefits. Aggrieved, petitioner

approached this Court by filing a petition, being Writ Petition No. 67672

of 2015, which came to be disposed of vide order dated 08.04.2016,

directing the competent authority to decide the representation of the

petitioner towards counting of ad-hoc service. Pursuant thereof, the

impugned order dated 04.01.2018 has been passed by the first

respondent, Secretary/Special Secretary, Ayush-1, U.P., Lucknow,

whereby, petitioner has been denied the benefit of ad-hoc service.

3.

It is noted in the impugned order that the appointment of the

petitioner was made on stop gap basis as Medical Officer and not as

regular officer of the State Government; petitioner was appointed on

temporary basis, hence, not entitled to pension under the Rules

governing pension. Petitioner came to be regularized in 2005 and retired

in 2014 without completing qualifying service of ten years. It is further

submitted that in view of U.P. Qualifying Service for Pension and

Validation Act, 2021 (U.P. Act No. 1 of 2021)² the services rendered by

petitioner as ad-hoc employee would not count as “qualifying service”

defined thereunder.

4.

Learned counsel for the petitioner submits that petitioner came to

be appointed against substantive vacancy of Medical Officer in the

Unani and Ayurvedic Hospitals of the State Government, the

appointment was against the pay scale admissible to a Medical Officer.

The appointment was made after due approval by the Hon'ble Governor.

As per appointment letter, petitioner was entitled to all benefits of pay

scale, D.A., A.C.P. etc. It is not being disputed by learned counsel

appearing for the State that appointment of the petitioner was against a

2. for short “Act, 2021”

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substantive vacancy on the post of Medical Officer. The advertisement

was duly issued by second respondent on approval of the State

Government. Thereafter, services of the petitioner came to be

regularized under Rule, 1979. It is further sub