2017 (4) TMI 999

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....ionary as well as the retiral benefits to the petitioner. 2. The brief facts are as follows: The petitioner who was a Law Graduate registered himself as an Advocate on 20.3.1976. He started his practice in Taxation Laws and continued do so till he was selected in the service of opposite parties. An advertisement was issued in the year 1997 by the U.P. Public Service Commission vide advertisement No. 5/96-97, wherein applications were invited from practicing lawyers for appointment on the post of Member Trade Tax Tribunal. As the petitioner had all the requisite qualifications he applied for the said post. He qualified the interview of the U.P. Public Service Commission and was selected on the said post. An appointment letter dat....

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....les provides that the entitlement of pension will be according to the relevant service Rules and none of the earlier incumbent were given this benefit by the department. 5. Sri Tung Nath Tiwari, learned counsel for the petitioner has emphatically denied that there was any such stipulation in the advertisement by which the appointment of the petitioner was to be non pensionary. The advertisement has been annexed with the petition by the petitioner. A perusal of the advertisement dated 29.3.1997 (contained as Annexure-2 to the writ petition) shows that it does not contain any such stipulation. Sri Tung Nath Tiwari has further argued that advertisement can never be taken as the terms of the appointment and conditions of service. The conditi....

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....- (i) Where the Tribunal consists of one or more persons who is or are member or members of the U.P. Higher Judicial Service then he or senior most amongst them shall be appointed as the President; (ii) No person shall be appointed from amongst advocates unless he has paid income-tax on income from such profession (exclusive of all other incomes) in each of the five consecutive years preceding such appointment. (1-A) The State Government may prescribe such other qualification or conditions for the appointment of the President and the other members of the Tribunal as it may deem fit. (1-B) The provisions of the rule 56 of the U.P. Fundamental Rules shall continue to apply to every member of the Tribunal in....

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.... have to be governed by Rule 56 (e) of the Fundamental Rules. His services shall therefore be pensionable. Aforesaid Rule 56 (e) is quoted here-below of convenience: "A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant Rules to every Government Servant who retires or is required or allowed to retire under this Rule." 9. Sri Tung Nath Tiwari, learned counsel for the petitioner has forcefully argued that once Rule 56 of the U.P. Fundamental Rules have been made applicable by virtue of Section 10 (1) of the U.P. Trade Tax Act, which finds mention in the appointment order. The benefit of retiral dues cannot be denied to the pet....

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....oner has challenged the Government Order, but in view of his argument, it is not necessary to deal any further on the veracity of the Government Order. We, however, feel that the Government Order shall not be applicable to the petitioner. 11. The fourth argument of the learned Standing Counsel is to the effect that none of the members of Trade Tax Tribunal were ever given any benefit of pension and post retiral dues. The Court feels that this argument has no legal value, if no one challenges an action of the opposite parties it will not give legitimacy to the action. In the present case, we feel that justice cannot be denied to the petitioner only because the earlier members did not approach the Court. 12. The Petitioner has also r....

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....¥ चुने गये अभ्यर्थी श्री जय प्रकाश, एडवोकेट को उ०प्र० व्यापार कर अधिनियम, 1948 की धारा 10 की उपधारा (1) के अधीन अधिकारों को प्रयोग करते हुए राज्यपाल मà¤....