D.S. Tripathi, J. - (1.) By means of this writ petition filed under Article 226 of the Constitution, the petitioner has prayed for quashing the impugned order dated 28.09.2016 (Annexure No.13 to the writ petition) passed by the Chief Secretary, Medical Education, U.P. Secretariat, Ayush-I, Lucknow whereby the claim of the petitioner for pension and other post retiral dues have been denied.
(2.) Facts giving rise to this writ petition in brief are that the petitioner was initially appointed on 29.06.1988 on the post of Medical Officer (Ayurvedic) on ad hoc basis. The petitioner regularly served the department and by Government Order, he was regularized in the department on 21.01.1991. The petitioner retired on 31.12.2006. The petitioner is being paid the pension amount on the basis of regularization dated 21.01.1991 not from the date of appointment dated 29.06.1988 on ad hoc basis. The petitioner raised an objection on the aforesaid fact before respondent No.5, the Chief Medical Officer, Ballia and Chief Medical Officer, Ballia recommended the matter to respondent No.4, the Additional Director, Treasury and Pension, Varanasi Region, Varanasi which was returned back by order dated 11.04.2014, saying that his services were regularized on 21.01.1991 and prior to regularization, his services cannot be counted for the purpose of pension.
(3.) Being aggrieved by order dated 11.04.2014, the petitioner represented before respondent No.1, the Chief Secretary, Medical Education and Ayush Civil Secretariat, Lucknow by representation dated 23.04.2014 but no action was taken. The petitioner approached this Court by way of Writ - A No.10564 of 2015 challenging the impugned order dated 11.04.2014. The Division Bench of this Court allowed the aforesaid writ petition by order dated 23.02.2015 setting aside the impugned order dated 11.04.2014 with a direction to the respondents to pass appropriate orders, expeditiously and preferably within a period of three months from the date of production of certified copy of this order. Aforesaid order dated 23.02.2015 is reproduced below: "The petitioner retired as a Medical Officer (Ayurvedic) on 31 December 2006. He was initially appointed on 29 June 1988 on ad hoc basis and his services were regularized on 21 January 1991. The issue that arises for consideration in this petition is whether the petitioner is entitled to include his ad hoc services from 29 June 1988 upto 21 January 1991 for determining the qualifying service for payment of pension. The claim of the petitioner for adding the period of service rendered by him on ad hoc basis for the purpose of determining the qualifying service was rejected by order dated 11 April 2014. This order has been assailed in this petition and it is asserted that the ad hoc services should be counted for determining the qualifying service. Such an issue was examined by this Court in Writ Petition No.61974 of 20111. The Court after examining the provisions of the Uttar Pradesh Retirement Benefits Rules, 1961, and Article 368 of the Civil Services Regulations, observed that though the petitioner may have been absorbed in the State Government as a Medical Officer, Ayurvedic and Unani initially on adhoc basis but as he held a substantive office in a permanent establishment and his services ultimately came to be regularized on 16 March 2005 without any break, his service would have to be counted with effect from the date of his absorption in the State Government. In this connection the Court observed that the qualifying service, as defined in sub-rule (8) of Rule 3, includes the service, which qualifies for pension in accordance with the provisions of Section 368 of Civil Services Regulation and that the petitioner has rendered qualifying pensionary service with effect from the date of his absorption in the State Government. This decision was followed by another Division Bench of this Court in Writ Petition No.27579 of 20142 and the observations are as follows:- "..............By means of this writ petition, the petitioners have challenged the order dated 21.04.2014 passed by the respondent no. 1, by which, the petitioners' representation dated 15.02.2014, for counting their ad-hoc services ever-since their initial appointments as Medical Officers, for the purposes of qualifying service and grant of retiral benefits, has been rejected. .................Further, as noted by the Division Bench of this Court in the case of Dr. Amrendra Narain Srivastava , the Rules 3 (8) of the Rules read with Regulations 369 & 370 of the Regulations, make it clear that the term 'qualifying service' includes the service, which qualifies for pension in accordance with the provisions of Regulation 368 of the Regulations. The petitioners do not fall in any of the exceptions mentioned therein. The period of temporary/ad-hoc services rendered by them prior to their regularization was not in a non-pensionable establishment nor a work charged establishment nor was it a service paid from contingency. The petitioners held substantive office in a permanent establishment, as such, the requirements of Regulation 368 are also satisfied. In this regard the provisions of Regulation 369 are also relevant. The provisions of Regulation 370 are pari materia with the provisions of Rule 3(8) and none of the exceptions mentioned therein are attracted in the case of petitioners. The petitioners were appointed after due and proper selection on ad-hoc basis and thereafter their services were regularized w.e.f.16.03.2005. At this stage, we would also like to quote the relevant portion of the aforesaid compliance order dated 22.10.2012 passed by the Principal Secretary Finance, State of U.P. himself, in pursuance of the order dated 23.08.2012 passed by this Court in Writ Petition No. 1222 of 2012, herein below: Thus, the reasons given in the order impugned as well as the opinion of the Finance Department contained therein, is clearly in contradiction to the decision of the Principal Secretary Finance quoted above and as such, the respondents have misdirected themselves in considering the case of the petitioners. In view of above, the reasons given in the impugned order for rejecting the claim of the petitioners, are not sustainable. Consequently, the order impugned dated 21.04.2014 is quashed with a direction to the respondent no. 1 to reconsider the claim of the petitioners in the light of the aforesaid Division Bench judgement dated 01.03.2012 passed in the case of Dr. Amrendra Narain Srivastava as also the order of the Principal Secretary Finance, State of U.P. dated 22.10.2012 quoted above and to take appropriate decision in this regard within a period of 3 months from the date of production of the certified copy of this order. The decision so taken, shall be communicated to the petitioners immediately thereafter. In the event, the petitioners are found entitled to the benefits claimed by them, consequential actions shall be taken forthwith and the amount payable to them shall be paid to them as per law immediately thereafter. The writ petition is accordingly allowed." Learned Standing Counsel has stated that the controversy involved in this petition is covered by the aforesaid judgments. The petitioner is also entitled to the same benefit as was granted in Dr. Prem Chandra Pathak & Anr. . The impugned order dated 11 April 2014 passed by the Additional Director Treasury and Pension, Varanasi Region Varanasi is, accordingly, set aside and it is directed that the respondents shall pass appropriate orders expeditiously and preferably within a period of three months from the date a certified copy of the order is served. The writ petition is allowed to the above extent.";