State Of U.P. & Anr vs Narendra Bahadur Singh & Ors

Petition(s) for Special Leave to Appeal (Civil) No(s).19897/2004 (From the judgement and order dated 07/04/2003 in CMWP No.20703/1997 of The HIGH COURT OF JUDICATURE AT ALLAHABAD)

STATE OF U.P. & ANR. Petitioner(s)

VERSUS

NARENDRA BAHADUR SINGH & ORS. Respondent(s) (With appln(s) for c/delay in filing SLP, exemption from filing O.T., permission to place addl. documents on record, permission for urging additional facts and office report)

Date: 06/09/2011 This Petition was called on for hearing today.

CORAM : HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA HON'BLE MR. JUSTICE ANIL R. DAVE

For Petitioner(s) Mr. S. R. Singh, Sr. Adv. Mr. Shail Kumar Dwivedi, AAG. Ms. Malvika Trivedi, Adv. Mr. Suraj Singh, Adv. Mr. Pradeep Misra, Adv.

For Respondent(s) For RR No. 1 Ms. Rachna Gupta, Adv.

For RR No. 4 Ms. Shobha Dikshit, Sr. Adv. Mr. T. Mahipal, Adv. Mr. Daleep Dhyani, Adv.

UPON hearing counsel the Court made the following O R D E R

Delay condoned.

Leave granted.

For the reasons recorded in the signed order, the appeal stands allowed to the extent indicated therein leaving the parties to bear their own costs.

[KALYANI GUPTA] [RENU DIWAN] COURT MASTER COURT MASTER

Civil Appeal No. 7662 of 2011 @ SLP(C) 19897/2004

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[SIGNED ORDER IS PLACED ON THE FILE.]

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7662 OF 2011 ARISING OUT OF S.L.P. (C) NO. 19897 OF 2004

STATE OF U.P. & ANR. ..... APPELLANTS

VERSUS

NARENDRA BAHADUR SINGH & ORS. ..... RESPONDENTS

O R D E R

1. Delay condoned.

2. Leave granted.

3. The present appeal is directed against the

judgment and order dated 7th April, 2003 passed by the

Division Bench of the Allahabad High Court holding that

respondent no. 1 herein would be entitled to get his past

services effective from 1st September, 1970 to 10th

September, 1973 rendered in the office of State

Agricultural Marketing Officer and the service rendered

by him in Mandi Parishad effective from 11th September,

1973 to 1st May, 1975 counted alongwith the service

rendered as Judicial Officer for the purpose of pension,

gratuity etc.

4. The appellant was appointed as Legal Assistant in

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the office of the State Marketing Officer and worked in

the said post from 1st September, 1970 to 10th September,

1973. The respondent no.1 thereafter submitted his

application for his appointment to the post of Legal

Assistant which was forwarded to the Director (Mandis) in

the Krishi Utpadan Mandi Parishad. The said application

of the respondent no.1 was forwarded by the State

Agricultural Marketing Officer, his erstwhile office by

letter dated 12th August, 1973. A copy of the said

letter which was addressed to the Director (Agriculture)

was also sent to the respondent no. 1 with an intimation

that if he is selected to the post for which he has

submitted the application in Krishi Utpadan Mandi

Parishad, in that event, he would have to resign from the

said post and his lien would not be maintained in the

Department. Thereafter the respondent no. 1 was selected

and was also appointed in Krishi Utpadan Mandi Parishad.

He then resigned from his earlier post in State

Agricultural Marketing Office and joined Krishi Utpadan

Mandi Parishad on 11th September, 1973, wherein he worked

till 1st May, 1975.

5. While working as Legal Assistant in the State

Agricultural Marketing Office, certain vacancies for the

post of Munsiff had arisen and therefore the respondent

no. 1 submitted his application to one of the said posts

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while working in the above-said post. He was selected

and then appointed as a Munsiff in which post he joined

on 2nd May, 1975 i.e. after resigning from the post of

Legal Assistant of the Krishi Utapadan Mandi Parishad.

The respondent no. 1 continued to work as a Judicial

Officer till the date of his retirement.

6. He, however, submitted a representation on 11th

May, 1992, praying for counting his past service that was

rendered in State Agricultural Marketing Office and also

in Krishi Utpadan Mandi Parishad for the purpose of

computing his pension. The aforesaid representation of

the respondent no. 1 was considered by the State

Government and the same was rejected by letter dated 7th

July, 1997. The Government of Uttar Pradesh informed

the Registry of the High Court that since the respondent

no. 1 resigned from the post of Legal Assistant of State

Agricultural Marketing Officer and remained with Krishi

Utpadan Mandi Parishad and thereafter again resigned to

take up the Judicial Services it would not be possible to

compute his past services rendered in Krishi Utpadan

Mandi Parishad for the purpose of computing pension.

7. Being aggrieved by the aforesaid stand taken by

the State Government, the respondent no. 1 filed a writ

petition in the Allahabad High Court which was registered

as Civil Miscellaneous Writ Petition No. 20703 of 1997.

Civil Appeal No. 7662 of 2011 @ SLP(C) 19897/2004

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The said writ petition was heard and was disposed of by

the impugned judgment and order dated 7th April, 2003

rendered by the High Court. The High Court directed that

the past service rendered by the appellant to the

aforesaid extent be computed for the purpose of

computation of his pension, gratuity etc. Being

aggrieved by the said Judgment and order passed by the

High Court, the present appeal has been preferred on

which we have heard the learned counsel appearing for the

parties.

8. The issue, therefore, which arises for our

consideration in the present appeal is whether the

service rendered by the respondent no. 1 on a non-

pensionable post may be added to his continuous length of

pensionable services for the purpose of calculating

pension and gratuity.

9. It is revealed from the records placed before us

that the respondent no. 1 was working as Legal Assistant

from 1st September, 1970 to 10th September, 1973. He,

however, submitted an application which was forwarded

under letter dated 12th August, 1973. In the said

letter, it was clearly indicated that if the respondent

no. 1 was selected to the post for which he has submitted

an application in that event he would have to resign from

the post of Legal Assistant in the Agricultural Marketing

Civil Appeal No. 7662 of 2011 @ SLP(C) 19897/2004

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Section and that his lien would not be maintained in the

Department. Therefore, clearly, as revealed from the

records, the appointment of the respondent no.1 to the

post of Legal Assistant in Krishi Utpadan Mandi Parishad

was a fresh appointment in which post he joined on 9th

November, 1973 and worked till 1st May, 1975. As soon as

the resignation was accepted and he joined the new post

for all practical purposes, the respondent no. 1 became

an employee of the new employer namely, Krishi Utpadan

Mandi Parishad and was guided by their service

conditions. There is no dispute with regard to the fact

that the post which he was holding in Krishi Utpadan

Mandi Parishad was a non-pensionable post. Even

thereafter the respondent no. 1 applied for appointment

to the post of Munsiff. He appeared in the selection and

thereafter joined the post of Munsiff which was again a

fresh appointment. There is no documentary evidence

placed on record to indicate that at the time of his

appointment as Munsiff his past services were protected.

That being the position, the respondent no. 1 would not

be entitled to the benefit of the past services to be

counted for the purpose of his pension. The judgment and

order passed by the High Court therefore cannot be

affirmed which is set aside and the contention of the

respondent no. 1 in the writ petition is held to be

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unsustainable and therefore rejected.

10. The appeal stands allowed to the aforesaid extent

leaving the parties to bear their own costs.

.......................J [Dr. MUKUNDAKAM SHARMA]

........................J [ANIL R. DAVE] NEW DELHI SEPTEMBER 6, 2011.