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TMI Blog2016 (5) TMI 1601X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (hereinafter referred as 'Rules of 1991')" which were notified on 9.5.1991. On 11.11.1993 a government order was issued for absorption of the employees of erstwhile A.T.L. in various departments of the State of U.P. and its instrumentalities. In pursuance thereof the petitioner was absorbed on the post of 'Manoranjan Kar Nirikshak, Grade-II, in the Entertainment Tax Department of the Government of U.P. on 19.2.1996. He joined his service in the new department on 27.2.1996. He claims to have worked till 31.1.2008 when he is said to have been retired from service on attaining the age of superannuation. 4. While in service i.e. on 26.12.1998 the petitioner is said to have submitted a representation for protection of his last pay drawn in the erstwhile A.T.L. As, allegedly, no action was taken thereon, he preferred a writ petition No. 6428(SS) of 2006 which was disposed of with a direction to the State Government to take a decision within three months. In pursuance of the said order the petitioner's claim was considered and his last pay drawn was protected vide order dated 11.10.2007. 5. However, after his retirement his pension was fixed considering only the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rule making power of the Governor. 11. It is not in dispute that the petitioner, after his absorption in the Entertainment Tax Department of the Government, falls under the rule making power of the Governor. It is also not in dispute that the petitioner was absorbed in government service in the said department on 19.2.1996 and functioned till 31.1.2008 when he retired on attaining the age of superannuation. 12. Rule 2(2) of the Rules of 1961 mentions that the pension provisions contained in Civil Services Regulations shall continue to apply to the officers governed by these Rules, except insofar as they are inconsistent with any of the provisions of these Rules. 13. The term "qualifying service" as has been defined in Rule 3(8) would mean 'service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations, provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except (1) periods of temporary or officiating service in a non-pensionable establishment, (ii) periods of service in a work-charged establishment, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the modification application filed in the said case for modification of the said judgment, which has also been quoted in an order dated 1.2.2013 at page 60 of the writ petition, and the factual scenario which emerges therefrom is that the question as to whether the past service rendered by Sri Hridesh Dayal Srivastava in the erstwhile A.T.L. should be counted for the purposes of calculation of his qualifying service for payment of pensionary benefits by the State Government, was neither raised nor considered nor decided by the Division Bench in the said case. No argument had been advanced before the court on this issue. All that was raised before the court was the benefit of the past services for the purposes of fixation of pay and consequential re-calculation of pay. For the reasons mentioned in the said judgment, specially the stand of the State Government in an affidavit filed before the Supreme Court to the effect that the prior services of retrenched employees are liable to be counted for the purposes to fix the pay-scale in another employment, this court allowed the said writ petition and fixed the salary of the said petitioner accordingly and his retiral dues were dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n A.T.L. Pratapgarh for the purposes of retiral dues. The court was persuaded by the judgment in Hridesh Dayal Srivastava and the judgment of the Supreme Court in the case of Chitranjan Sharma & Ors. vs. State of Himachal Pradesh and others. Relevant observations made by the court read as under: "Controversy is squarely covered by decision of a Division Bench of this Court given in the case of Hridayesh Dayal Srivastava Vs. State of U.P. And others [Writ Petition No. 410 of 2010 (SB)]. In Para 21 of the judgment it is said that with regard to the pay scale and the actual pay to which petitioner was entitled could have been sanctioned as personal pay to protect the last salary drawn. Division Bench has relied upon the judgment of Hon'ble Apex Court given in the case of Chittaranjan Sharma and others Vs. State of Himachal Pradesh and another [1996 (3) ESC 622 (SC)] wherein direction to maintain the pay scales and to make adjustment and absorption, was found to be correct. Division Bench took the view that past service of the petitioner are liable to be considered for time bound pay scales and other benefits. SLP against the order of Division Bench was dismissed. ............. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific provision in the Rules, we are of the view that no such benefit can be provided by the Court. In the result the relief sought by the respondent to calculate his previous service rendered in Auto Tractors Ltd., Pratapgarh from 1 October 1980 to 20 November 1990 for pensionary benefits stands rejected and to this extent the judgment impugned dated 18.4.2015, passed by the learned Single Judge in Writ Petition No. 5748 (SS) of 2014 is set aside. The Special Appeal is, accordingly, disposed of. There shall be no order as to costs." 26. As stated earlier, the Single Judge Bench had relied upon the judgment in Hridesh Dayal Srivastava's case (Supra) which in fact was only concerned with pay-protection, and not with qualifying service for post-retirement benefits, therefore, the decision of the Division Bench quoted hereinabove acquires significance and is applicable on on all its fours to the facts of the present case. This aspect could not be considered by this court in the earlier judgments which proceeded on an assumption that Hridesh Dayal Srivastava's case (supra) also decided the question of qualifying service for pensionary benefits also, when in fact it had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purposes of pensionary benefits, therefore, the government order dated 28.12.2001 on the same lines clarified its earlier order dated 10.7.1998 that the same shall be applicable only to autonomous bodies and not Corporations/Undertakings. The government order further goes on to clarify that the word 'Autonomous Bodies' implies such bodies whose entire or more than 50% of the finances/expenditures are provided by the State Government. Though the aforesaid government order, considering the subject matter referred hereinabove, do not apply to the case of the petitioner, but assuming their applicability there is nothing on record to show that the expenditures of the A.T.L. were entirely or more than 50% of its financial requirements were financed by the State Government. 31. Moreover, there is another reason for non-applicability of the said government orders to the case of the petitioner that is absorption herein was made under the Rules of 1991 framed under the proviso to Article 309 wherein there was no such provision for giving the benefit of services rendered in the A.T.L. to the petitioner as has been held by the division Bench in Ram Shanker Gupta's case (s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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