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Court No. - 34

Case :- WRIT - A No. - 16391 of 2019

Petitioner :- Sundar

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Shri Krishna Mishra

Counsel for Respondent :- C.S.C.,Sharad Chand Rai

Hon'ble Yashwant Varma,J.

Heard Sri Ritesh Kumar, learned counsel holding brief of Sri

Krishna Mishra, learned counsel for the petitioner, Sri Sharad Chand Rai,

learned counsel representing the respondent nos.4 and 5 and Sri Birendra

Pratap Singh, learned Standing Counsel.

The petitioner assails the order dated 10 August 2018 passed by the

third respondent negativing the claim of the petitioner here for grant of

pensionary benefits. The sole ground on which the impugned order rests

is the respondents finding that the petitioner came to be regularized on 05

November 2009 and thus evidently after 01 April 2005 when the New

Contributory Pension Scheme came to be introduced. In view of the

above the respondents have held that the petitioner would not be entitled

to the benefits of the old pension scheme. The aforesaid reasoning is

apparently based on the amendments made in the U.P. Retirement Benefit

Rules, 1961¹ with effect from 7 April 2005 and more particularly Rule

2(3) thereof which provides that the Rules would have no application to

any person “entering services or posts on or after 01 April 2005”.

The stand of the petitioner on the other hand is that he was

appointed as a Class IV employee in the Nagar Panchayat in 1989 on the

post of Peon and continued to work as such till attaining the age of

superannuation in 2018. It is contended that he raised his claim for

regularisation during the period of his service in the Nagar Panchayat

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1961 Rules

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which ultimately came to be allowed on 26 December 2008 with the

Nagar Panchayat acceding to his claim and regularising him on the post

of Peon/Chaukidar. The aforesaid decision of the Nagar Panchayat was

approved by the District Magistrate on 03 November 2009 and a formal

communication in that respect issued on 05 November 2009. It becomes

relevant to note that it is on the aforesaid basis that the third respondents

appear to have taken the view that the petitioner would be deemed to have

been regularly appointed only with effect from 05 November 2009 and

therefore, after the cutoff date as prescribed and noted in Rule 2(3) of the

1961 Rules.

From the pleadings which have been exchanged inter partes, it is

evident that the respondents do not dispute the fact that the petitioner was

engaged in accordance with law and had worked against a post which was

available in the Nagar Panchayat. His engagement in 1989 and his

subsequent regularisation in 2008 are facts on which parties are ad idem.

The Court also takes into consideration the fact that the respondents

appear to have proceeded on the incorrect premise of the petitioner

having been regularised on 05 November 2009. The record however

reflects that the petitioner was regularised on 26 December 2008 by the

Nagar Panchayat. The only significance which the date of 05 November

2009 represents is of the formal communication of the aforesaid decision

by the Nagar Panchayat via a communication bearing that date. The

respondents have also been unable to show to the Court any provision in

terms of which an order of regularisation made by the Nagar Panchayat

would have to be approved by the District Magistrate in order to come

into effect. In view of the above, it is the date of 26 November 2008 alone

which would be liable to be viewed as the effective date of regularisation

of the petitioner.

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The Court then proceeds to consider the principal question which

arises for consideration and that being whether the period of service

rendered by the petitioner between 1989 to 2008 when his services were

ultimately regularised would be liable to be included for the purposes of

computation of pensionary benefits.

In order to answer the same, it would be pertinent to advert to the

following provisions