Pet it ioner v. St at e of Ut t arakhand Ot hers

“ I . I ssue a writ order of direct ion in t he nat ure of cert iorari quashing t he im pugned 2022/ Shi.Ka.Ko.Pe.Ha./ E- Pension/ I .D./ 010097580/ 2018- 19 dat ed 28.03.2019 passed by respondent no. 3. ( Annexure no. 1 t o t he writ pet it ion) no. I I . I ssue a writ order of direct ion in t he nat ure of cert iorari quashing t he im pugned 1893/ Shi.Ka.Ko.Pe.Ha./ E- dat ed Pension/ I .D./ 010097580/ 2018- 19 no. 1

23.02.2019 passed by ( Annexure no. 1 t o t he writ pet it ion) respondent no. 3. nat ure of m andam us I I I . I ssue a writ or der of direct ion in t he t he respondent no. 3 t o release t he pension of t he applicable pet it ioner int erest , suffer irreparable loss and inj ury and t he sam e cannot be com pensat ed by any m eans.” alongwit h pet it ioner fort hwit h dir ect ing t he

2. I n t he im pugned order, Addit ional Direct or ( Treasury, Pension & Ent it lem ent ) has t aken t he view t hat t he services rendered aft er subst ant ive appoint m ent alone can be t aken int o account for pension. The Addit ional Direct or relied upon Regulat ion 361 of Civil Service Regulat ions, which is ext ract ed below: “ 361. The service of an officer does not qualify for pension unless it conform s t hree condit ions: - - following t he t o First —The under Governm ent . service m ust be Second—The em ploym ent m ust be subst ant ive and perm anent . Third—The service m ust be paid by Governm ent .

3. Civil Service Regulat ions are applicable t o St at e em ployees of Ut t arakhand. Regulat ion 368 and 370 of t he Civil Service Regulat ions also would be relevant , which are ext ract ed below: “ 368. Service does not qualify t he officer holds a subst ant ive unless office on a perm anent est ablishm ent .

370. Cont inuous t em porary or officiat ing service under t he Governm ent of Ut t ar Pradesh followed wit hout int errupt ions by confirm at ion in t he sam e or any ot her post shall qualify except — i) periods of t em porary or in non- pensionable officiat ing service est ablishm ent ; 2 ii) periods of service in work- charged est ablishm ent ; and iii) periods of service in a post paid from cont ingencies, ( The am endm ent t akes effect from April 20, 1977) Not e: - - I f service rendered in a non- pensionable est ablishm ent , work- charged est ablishm ent or in a post paid t wo from cont ingencies periods of in a pensionable est ablishm ent or bet ween service t em porary periods perm anent service in a pensionable est ablishm ent , it will not const it ut e an int errupt ion of service.” t em porary service falls bet ween

4. Pet it ioner has challenged t he order passed by t he Addit ional Direct or ( Treasury, Pension & Ent it lem ent ) by cont ending t hat since pet it ioner was given ad hoc appoint m ent against vacant post , t herefore, service rendered by him in ad hoc capacit y cannot be ignored. Learned Counsel for t he pet it ioner furt her subm it s t hat pet it ioner cannot be t reat ed as new ent rant in service aft er regularizat ion.

5. Per cont ra, learned St at e Counsel subm it s t hat pet it ioner’s services were regularized only in 2004 and t he dat e of regularizat ion would be t he dat e of his subst ant ive appoint m ent , t herefore, in t erm s of Regulat ion 361 of Civil Service Regulat ions, pension would be payable t o him only in respect of service rendered aft er regularizat ion and past services rendered in ad hoc capacit y cannot be t aken int o account . Learned St at e Counsel also relies upon Ut t arakhand Ret irem ent 3 Benefit s Act , 2018. Sect ion 3( j ) and Sect ion 4 of t he said Act are ext ract ed below: “ 3( j ) ‘Qualifying service’ m eans period of service which has been done as subst ant ive/ regular service under t he St at e Governm ent ; The qualifying service for pension according t o following condit ions- service

4. ( a) The service has been done t he subst ant ively and regularly under St at e Governm ent ; ( b) The service shall be t aken ret irem ent as qualifying service t he benefit s subst ant ively perm anent / t em porary creat ed post in any est ablishm ent .” em ployee appoint ed

6. We find subst ance t he subm ission m ade by learned St at e Counsel. Addit ional Direct or ( Treasury, Pension & Ent it lem ent ) has given valid reason for refusing t o t ake int o account t he services rendered by pet it ioner in ad hoc capacit y, pension. The view t aken by Addit ional Direct or is in consonance wit h Regulat ion 361 of Civil Service Regulat ions. Before his regularizat ion, pet it ioner was not subst ant ively appoint ed, t herefore dat e of regularizat ion would be t he dat e of his subst ant ive appoint m ent . Thus we do not find any reason t o int erfere wit h t he im pugned order. However, it is an adm it t ed fact t hat pet it ioner was regularized in t he m ont h of February, 2004 and New Pension Schem e was int roduced w.e.f.

1.10.2005, t herefore, pet it ioner is ent it led t o benefit of Old Pension Schem e. Accordingly, we dispose of t he writ pet it ion by direct ing t he Direct or, Technical Educat ion, Ut t arakhand t o release all ret iral dues 4 including pension, as per t he Old Pension Schem e, t o t he pet it ioner wit hin six weeks from t he dat e of product ion of cert ified copy of t his order. I f t he ret iral dues are not paid wit hin six weeks, t hen pet it ioner shall be ent it led t o int erest @ 8 per cent per annum . ( A sh i sh N a i t h a n i , J.) ( M a n o j K u m a r Ti w a r i , J.) 3 0 .4 .2 0 2 5 Pr PRABOD H KUMAR DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3a082a00a95aff911a9559743af8f21c5 0602ff6eae4e61af3aeab198d462503, postalCode=263001, st=UTTARAKHAND, serialNumber=0DC111E8D8CA66E16B940EFDF 806ACCC1AB588052DF6FCA58C67F3C91957BE 53, cn=PRABODH KUMAR 5