TMI Blog2016 (5) TMI 1601X X X X Extracts X X X X X X X X Extracts X X X X ..... suming the applicability of the said government orders there is nothing on record to show that the services of the petitioner in the A.T.L. were pensionable. Moreover, the government order was subsequently clarified vide government order dated 28.12.2001 which has been impugned herein. It has been mentioned in the government order dated 28.12.2001 that the earlier government order dated 10.7.1998 was applicable only where pension scheme was applicable in the autonomous bodies referred therein, however, as, at some places in the said government order the word 'Corporation/Undertaking' has been used in place of autonomous bodies and considering the categorical policy of the Government of India that services rendered in a Corporation/Undertaking are not countable 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 - Though the aforesaid government order, considering the subject matter referred hereinabove, do not apply to the case of the petitioner, but assuming their applicability t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 services rendered by him in the absorbed department of the Government without giving him the benefit of past services rendered in the erstwhile A.T.L., accordingly he submitted a representation to the concerned official for counting said services for the purposes of his post-retirement benefits. He filed a writ petition No. 607(SS) of 2013 for the said purpose. This writ petition was disposed of with a direction to the concerned to decide the petitioner's representation which was disposed of on 31.8.2015. In compliance thereof the claim of the petitioner was considered but has been declined b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, and (iii) periods of service in a post paid from contingencies, shall also count as qualifying service.' A 'Note' to the said provision says 'if service rendered in a not-pensionable establishment, work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service.' 14. The term retirement has been defined in Rule 3(9) to mean 'dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 directed to be re-calculated based thereon. The petitioner was held as not entitled to any other relief. Even in the order passed on 6.8.2012 on the modification application filed subsequently no such direction was issued for counting the services rendered in the erstwhile A.T.L. for calculation of qualifying service for grant of pensionary benefits by the Government. The request for deletion of the line petitioner is not entitled to any other relief from the judgment was declined for the reasons mentioned therein. 21. What is most important is that against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. .............. The learned standing counsel does not dispute the aforesaid legal position. In view of the above, writ petition succeeds and is allowed. Respondents are directed to give all the consequential benefits taking into account the service rendered by petitioner in Auto Tractors Ltd., Pratapgarh for the purpose of retiral benefits. Interest @ 8% per annum shall also be paid for unpaid post-retiral dues including pension. 25. Apparently the Standing Counsel did not dispute the legal position put forth by the petitioner resulting in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not. 27. This court in the earlier judgments did not take into consideration the relevant provisions of the Rules of 1961 nor of the Civil Services Regulations which should have been referred hereinabove and have also been referred in the impugned order. 28. In paragraph 11 of the writ petition the petitioner has referred to a government order dated 10.7.1998, though a copy of the said government order is not annexed the same has been made available by the Standing Counsel alongwith the government order dated 28.12.2001 which clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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