HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No.28 AFR Case :- WRIT - A No. - 14756 of 2009 Petitioner :- Bandhu Prasad Respondent :- State Of U.P. & Others Counsel for Petitioner :- Nasiruddin Warsi,R.P.L. Srivastava Counsel for Respondent :- C.S.C. Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and learned Standing Counsel.
The present petition has been filed for order or direction in the nature of mandamus directing the respondents to release the pension of the petitioner due from the date of his retirement forthwith.
According to the petition, the petitioner was initially appointed on the post Beldar on 1.12.1969. Thereafter he was appointed as Telephone Operator from 1.10.1982 and worked till 1.7.1996. On 1.7.1996 he was promoted to the post of Seench Pal and worked till 31.1.2006 and he has thus completed 37 years of continue work without any break The averments made in paragraphs 6,7 and 8 of the counter affidavit is quoted as under:-
''6. That it is stated that the petitioner Bandhu Prasad was employed in the office of the answering respondent as Daily-wages employee from 1.12.1996 to 31.12.1974, and thereafter, the petitioner worked for the post of Beldar in the Work Charge Establishment from 1.1.1975 to 30.6.1996. it is further stated that the petitioner's services have been regularized in the regular establishment by an order dated 29.6.1996 issued by ther Executive Engineer, Irrigation Divison, Ist, Deoria and in pursuance thereof, the petitioner joined his duties on 1.7.1996 and continued to work as Sinchpal and superannuated from the said post of Sinchpal on 31.1.2006. A true copy of the order dated 29.6.1996 issued by the Executive Engineer, Irrigation Divison, Ist, Doria, is being filed herewith and marked as Annexure No.CA.1 to this counter affidavit.
7. That the answering respondent further submits that as per the Civil Services Regulation, 370, as applicable in U.P./Services, rendered by the employee in the Work Charge Establishment, shall not be counted for the purpose of pension . The petitioner has worked in the regular establishment for the post of Sinchpal from 1.7.1996 to 31.12.2006, and therefore, he has served the department for 9 years and 7 months, as such, he is not qualified to be granted regular pension, because the petitioner has not completed 10 years of regular services in the department, which is condition precedent. It is further stated that as per the Government Order dated 1.7.1989, the petitioner is not entitled for the pension, because before his service have been regularized in the regular establishment, the petitioner was working in the Work Charge Establishment, as Beldar from 1.1.1975 to 30.6.1996. The answering respondent further submits that the gratuity for the period of services rendered by the petitioner in Work Charge Establishment has already been paid by an order dated 21.6.2007 and the amount of Rs.32,907/- has been paid to the petitioner. A true copy of the Government Order dated 1.7.1989, and a true copy of the order dated 21.6.2007, are being filed herewith and marked as Annexure Nos. CA.2 and CA.3 to this Counter affidavit.''
8. That it is relevant to mention here that the gratuity amount of Rs. 38,190/- relating to the services rendered by the petitioner in the regular establishment has also been paid on 12.7.2006. A true copy of the forwarding letter by Joint Director, Treasury and Pension, Gorakhpur Divison to the Treasury Officer, Kushinagar is being filed herewith and marked as Annexure No.CA.4 to this counter affidavit.
Thus, the case of respondent is that the petitioner has served in the department for 9 years and 7 months and as such, he could not be granted regular pension because the petitioner has not completed 10 years in regular service therefore has not been given any pension.
Learned counsel for the petitioner has placed various judgement of this Court to contend that the petitioner is entitled for pension. He has referred various decision of this Court rendered in Writ -A No.17150 of 2015, Kedar Ram Vs. State of U.P. and 4 others and Special Appeal (Defective) No.264 of 2013, State of U.P Vs. Prem Chandra decided on 13.5.2013 against which Special Leave Petition- C No.22271 of 2013, State of U.P. Vs. Prem Chandra was dismissed on 17.1.2014 with the following orders.
" Delay condoned.
Special leave petition is dismissed."
He further placed reliance on decision of Hon'ble Division Bench in Special Appeal No.1891 of 2013, Parmatma Ram Vs. State of U.P. and other against which Special Leave Petition (C) No.2255 of 2015, State of U.P. Vs. Parmatma Ram, was dismissed on 30.2.2015 with the following order:-
"Delay condoned.
The special leave petition is dismissed.
The question of law is kept open."
He further relied on a decision of Hon'be Apex Court in Punjab State Electricity Board Vs. Narata Singh (2010) 4 SCC 317.
The submission is that the service rendered as work charge employee is liable to be counted for the purpose of completing 10 years service and granting pension.
However, in the judgement rendered by Hon'ble Division Bench of this Court in Jai Prakash Vs. State of U.P, 2014 (ADJ) 382 (DB), wherein the judgement of Hon'ble Single Bench, whereby the writ petition which was filed for quashing the order denying the benefit of service rendered by the appellant in a work charge establishment for computing the qualifying service for grant of pension was dismissed, was under challenge. While dismissing the special appeal the Hon'ble Division Bench observed as under:-
'' It, therefore, follows from the aforesaid judgements of the Supreme Court that the work charged employees constitute a distinct class and they cannot be equated with regular employees and that the work charged employees are not entitled to the services benefits which are admissible to regular employees under the relevant rules. .'' (Emphasis supplied) In this case decision of Punjab State Electricity Vs. Narata Singh (Supra) was also considered by Hon'ble Division Bench.
''We are conscious that in Special Appeal Defective No.842 of 2013 (State of U.P. & Ors. Vs. Panchu) that was decided on 2 December 2013, a Division Bench, after taking notice of the judgment of the Supreme Court in Narata Singh (supra), observed that the rationale which weighed with the Supreme Court should also govern the provisions of the Civil Service Regulations, but what we find from a perusal of the aforesaid judgment of the Division Bench is that the decisions of the Supreme Court in Jagjiwan Ram (supra), Jaswant Singh (supra) and Kunji Raman (supra) as also the Full Bench judgment of this Court in Pavan Kumar Yadav (supra) had not been placed before the Court. 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."
The aforesaid judgement was challenged by the appellant Jai Prakash before Hon'ble the Apex Court by means of filing Special Leave to Appeal (C) No.12648 of 2014, Jay Prakash Vs. State of U.P and others which was dismissed with the following order dated 5.9.2014.
'There is nothing on the record to suggest that any Rule or Scheme framed by the State to count the work-charge period for the purpose of pension in the regular establishment. In absence of any such Rule or Scheme, we find no merit to interfere with the impugned judgement.
The special leave petition is dismissed.' (Emphasis supplied) In view of the aforesaid decision of the Division Bench in the case of Jai Prakash (Supra) wherein it has been categorically held that the work- charge employees are not entitled to the benefit which are permissible to regular employee under the Rules, which was further affirmed by Hon'ble the Apex Court holding that there is nothing on record to suggest any rule or scheme framed by the State to count the work charge period for the purpose in the regular establishment. In absence of any such Rules or Scheme the Hon'ble Apex Court did not find any merit to interfere with the impugned judgement and the Special Leave Petition was dismissed. In the present case also there are no Rules or Scheme providing for grant of pension in work charge establishment.
The other two decisions of Hon'ble Apex Court, simply dismissing the Special Leave Petition against the judgements of this Court leaving this question of law open, are of no help to the petitioner in as much as this question as to whether work charge period for the purpose of pension in regular establishment as on date stood affirmed by Hon'ble Division Bench in the case of Jai Prakash ( Supra) and S.L.P.-C No.12648 of 2014, Jai Prakash Vs. State of U.P. as noted above.
During course of arguments the learned counsel for the petitioner has also supplied a copy of this letter dated 7.1.2015 written by the Chief Engineer Irrigation Department,Lucknow to Executive Engineer Work Charge Establishment. The same is taken on record. This letter indicates only this much that this demand to count work charge period for grant of pension is under consideration. Moreover it also establishes that on the date of retirement of the petitioner i.e 31.1.2001 no such Rules or Scheme framed by the State to count the work charge period for the purpose of pension in the regular establishment was in existence. Perhaps the same is still not in existence. Be that as it may, at present no such relief can be granted to the petitioner.
The petition lacks merit and is dismissed.
Order Date :- 13.7.2015 G.S