HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 24 Case :- SERVICE SINGLE No. - 584 of 1998 Petitioner :- Ram Deo Tewari Respondent :- State Of U.P. Through Principal Secy. Counsel for Petitioner :- S.B.Pandey,S.P. Singh,Shiv Shankar Singh Counsel for Respondent :- C.S.C. Hon'ble Dr. Devendra Kumar Arora,J.
Heard Sri Uma Shanker Tiwari, Advocate holding brief on behalf of Sri Shiv Shanker Singh, learned Counsel for the petitioner and Sri Badrul Hasan, learned Additional Chief Standing Counsel.
Through instant writ petition, the petitioner has soughtfor a writ of mandamus commanding the opposite parties to give post retrial benefits i.e. pension and gratuity to the petitioner w.e.f. 1.2.1998 and onwards.
According to the petitioner's Counsel,the petitioner was initially appointed as Mechanic in work charge establishment in Gandak Project Chap Branch Division, Deoria in 3rd Circle Gorampur, Irrigation Department in the basic salary of Rs. 825/- per month. Thereafter, in the year 1977 he was transferred to 11th Circle, Irrigation Works, Faizabad and thereafter he was posted in Sharda Canal Division, 43 Faizabad.
It has been pointed out that the services of the petitioner was regularized by means of the order dated 3.3.1994 on the post of Mate in the pay scale of Rs. 725-1025 and the petitioner was posted at Sharda Shayak Khand-43 and ultimately retired on 31.1.1998 on attaining the age of 60 years but in an arbitrary manner he has been denied the pension and other retiral dues, which is unjust and unwarranted.
In contrast, the learned Standing Counsel on the basis of averments made in the counter affidavit and the Supplementary Counter Affidavit stated that the petitioner was appointed in the Work Charged Establishment w.e.f. 1.1.1975 and thereafter on availability of the vacant post in the regular establishment, he was given appointment in the regular establishment on 4.3.1994 and petitioner after working for about 3 years 10 months and 27 days attained the age of superannuation on 31.1.1998. As his services are less than 10 years, therefore, petitioner is not entitled for pensionary benefits. It is also stated that the Work Charged Employees are paid salaries from the fund available in the sanctioned projects under which they are employed and after completion of the work in the concerned project, their services come to an end.
To strengthen the aforesaid contention, the learned Standing Counsel has relied upon a recent judgment of Division Bench headed by the Hon'ble the Chief Justice in Special Appeal Defective No. 23 of 2014:Jai Prakash Vs. State of U.P. and others; 2014(2) AWC 1771, wherein it has been held that the work charged employees constitute a distinct class and they cannot be equated with regular employees and in the absence of any specific provision to that effect in Article 370 (ii) of the Civil Services Regulations. They are not entitled for pensionary benefits.
I have considered the submission of the learned Counsel for the parties and gone through the record. There is no dispute to the fact that the petitioner was engaged as work charged employee and on account of availability of the clear vacancy he was given regular appointment vide order dated 3.3.1994. After rendering about 3 years 10 months and 27 days service, he attained the age of superannuation on 31.1.1998. As per the provisions of Article 370 of the Civil Services Regulations continuous/temporary or officiating service under the Government of Uttar Pradesh followed without interpretations by confirmation in the same or any other post shall qualify for pension except i)periods of temporary or officiating service in non-pensionable establishment ii) period of service in work charged establishment and iii) period of service in a post and from contingencies. Article 370 reads as under:-
"Article 370 of the Civil Service Regulations, as applicable in the State of Uttar Pradesh, provides that continuous, temporary or officiating service under the Government of Uttar Pradesh followed without interpretations by confirmation in the same or any other post shall qualify for pension except;
(i)periods of temporary or officiating service in non-pensionable establishment;
(ii)periods of service in work charged establishment; and
(iii)periods of service in a post paid from contingencies."
A plain reading of the provisions of Article 370 of the Civil Services Regulations makes it clear that the period of service in work charged establishment cannot be counted for the purpose of determining the qualifying service for grant of pension. A Full Bench of this Court in Pawan Kumar Yadav Vs. State of U.P. and others; 2010(8) ADJ 664 after pointing out the difference between a person appointed in a regular establishment and in a work charged establishment, held that a work charged employee engaged in connection with the affairs of the State, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a 'Government servant' within the meaning of Rule 2(a) of U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974, and thus his dependents on his death in harness are not entitled to compassionate appointment under the Rules. The reasons given by the Full Bench reads as under:
"20. In respect of the employees the State Government in Irrigation Department, Public Works Department, Minor Irrigation, Rural Engineering Services, Grounds Water Department has provided for employment in the regular establishment and workcharge establishment. The person appointed in regular establishment are appointed against a post, after following due procedure prescribed under the rules. In workcharge establishment the employees are not appointed by following any procedure or looking into their qualification. They do not work against any post or regular vacancy. They only get consolidated salary under the limits of sanction provided by Government Order dated 6th April, 1929. The conditions of their employment is provided in paragraphs 667, 668 and 669 of Chapter XXI under the Head of Establishment in Financial Hand Book Volume IV. Their payments are provided to be made in same Financial Hand Book Volume IV in Paragraph Nos.458, 459, 460, 461, 462 and 463.
21. Shri M.C. Chaturvedi, learned Chief Standing Counsel submits that by Government Order dated 1.1.2000 Paragraphs 667, 668 and 669 of Financial Hand Book Volume 4 have been deleted and that thereafter the payments are not being made to them from the budget allotted from the regular establishment, and they are not entitled to any allowance or pensionary benefits. They are paid from contingencies and are required to work until the work is available. The services of workcharge employees are regularised only when regular vacancy is available. Until then they cannot be treated as government servants".
In the case of Punjab State Electricity Board and others Vs. Jagjiwan Ram and others; (2009) 3 SCC 661, examined the issue whether work charged employees in the service of Punjab State Electricity Board, who were subsequently appointed on a regular basis, could claim that the service rendered by them as work charged employees should be counted for the purpose of grant of time bound promotional scale/promotional increments and after taking note of the earlier decisions in Jaswant Singh & Ors. Vs. Union of India & Ors; (1979) 4 SCC 440 and State of Rajasthan Vs. Kunji Raman; (1997) 2 SCC 517, the Apex Court observed that the work charged employees constitute a distinct class and they cannot be equated with any other category or class of employees, much less regular employees and they are not entitled to service benefits which are admissible to regular employees under the relevant rules or policy framed by the employer. The relevant paragraphs of the report reads as under:-
"9. We have considered the respective submissions. Generally speaking, a work charged establishment is an establishment of which the expenses are chargeable to works. The pay and allowances of the employees who are engaged on a work charged establishment are usually shown under a specified sub-head of the estimated cost of works. The work charged employees are engaged for execution of a specified work or project and their engagement comes to an end on completion of the work or project. The source and mode of engagement/recruitment of work charged employees, their pay and conditions of employment are altogether different from the persons appointed in the regular establishment against sanctioned posts after following the procedure prescribed under the relevant Act or rules and their duties and responsibilities are also substantially different than those of regular employees.
10.The work charged employees can claim protection under the Industrial Disputes Act or the rights flowing from any particular statute but they cannot be treated at par with the employees of regular establishment. They can neither claim regularization of service as of right nor they can claim pay scales and other financial benefits at par with regular employees. If the service of a work charged employee is regularized under any statute or a scheme framed by the employer, then he becomes member of regular establishment from the date of regularization. His service in the work charged establishment cannot be clubbed with service in a regular establishment unless a specific provision to that effect is made either in the relevant statute or the scheme of regularization. In other words, if the statute or scheme under which service of work charged employee is regularized does not provide for counting of past service, the work charged employee cannot claim benefit of such service for the purpose of fixation of seniority in the regular cadre, promotion to the higher posts, fixation of pay in the higher scales, grant of increments etc."
Recently, a Division Bench of this Court in Jai Prakash's case [supra] after taking into consideration various pronouncement s of the Apex Court referred to herein above including the judgment rendered by the Apex Court in Punjab State Electricity Board & Anr. Vs. Narata Singh and Anr. reported in (2010) 4 SCC 317 held in last but one paragraph as under:-
"These decisions of the Supreme Court and the Full Bench of this Court leave no manner of doubt that in view of the material difference between an employee working in a work charged establishment and an employee working in a regular establishment, the service rendered in a work charged establishment cannot be clubbed with service in a regular establishment unless there is a specific provision to that effect in the relevant Statutes. Article 370(ii) of the Civil Service Regulations specifically, on the contrary, excludes the period of service rendered in a work charged establishment for the purposes of payment of pension and we have in the earlier part of this judgment held that the decision of the Supreme Court in Narata Singh (supra), which relates to Rule 3.17(i) of the Punjab Electricity Rules, does not advance the case of the appellant. In this view of the matter, the appellant is not justified in contending that the period of service rendered from 1 October 1982 to 5 January 1996 as a work charged employee should be added for the purpose of computing the qualifying service for payment of pension."
As indicated above, the service of the petitioner in the regular establishment is only for a period of 3 years,10 months and 21 days, he is not entitled to get the pensionary benefits as claimed by hi. Further, for the reasons indicated above, t he services performed by the petitioner in the work charged establishment are not liable to be counted as qualifying services for the purposes of payment of post-retiral /terminal benefits.
In view of the aforesaid discussions, the relief as claimed by the petitioner cannot be granted and the writ petition lacks merit and is liable to be dismissed.
Accordingly, the writ petition is dismissed.
Costs easy.
Order Dated: 16.12.2015 Arvind