Navrang Lal Srivastava vs State Of U.P. Thru' Secry. And 2 ...
2015 Latest Caselaw 1298 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Court No.39
 

 
Case :- SPECIAL APPEAL No. - 1306 of 2013
 

 
Appellant :- Navrang Lal Srivastava
 
Respondent :- State Of U.P. Thru' Secry. And 2 Others
 

 
Counsel for Appellant :- K. Shahi,O.P. Mishra
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Dilip Gupta, J.

Hon'ble Vinod Kumar Misra, J.

This Special Appeal has been filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 against the judgment dated 23 July 2013 of a learned Judge of this Court by which Writ-A No.32312 of 2011 filed by the appellant was dismissed.

The said writ petition was filed with a prayer that the provisions contained in Clause (ii) of Article 370 of Civil Services Regulations1, insofar as it denies service rendered in a work charged establishment to be computed as qualifying service for pension, be declared arbitrary and violative of Articles 14 and 16 of the Constitution. A further relief that was claimed in the writ petition was that the order dated 29 October 2010 passed by the Executive Engineer, Rihand Dam Construction Division, Sonbhadra rejecting the claim of the writ petitioner for adding the period of service rendered by him in a work charged establishment for pension, should be set aside.

The learned Judge did not accept the plea of the writ petitioner for the reason that there was no pleading to substantiate his claim that the service rendered in a work charged establishment can be placed at par with the service rendered in a regular establishment and all that was relied upon by learned counsel for the writ petitioner during the course of the argument was the decision of the Supreme Court in Punjab State Electricity Board & Ors. vs. Naratha Singh2. The learned Judge has observed that the said decision of the Supreme Court in Punjab State Electricity Board (supra), on which reliance was placed by learned counsel for the writ petitioner, would be of no benefit to the writ petitioner.

The writ petitioner was initially engaged as a Pump Operator in a work charged establishment on 1 July 1978 in Kanhar Construction Division on a consolidated pay of Rs.220/-. He was appointed in the regular establishment in the office of the Executive Engineer on the post of Meth with effect from 31 March 2000 and ultimately retired on 30 January 2010. Pension was not paid to the writ petitioner as he had completed only nine years, nine month and twenty-one days in the regular establishment as against the requirement of ten years. The period during which the writ petitioner worked in the work charged establishment was not added to the length of service in the regular establishment in view of the provision of Article 370(ii) of the Regulations which provides that period of service rendered in a work charged establishment shall not qualify for pension.

Learned counsel for the appellant has submitted that in view of the decision of the Supreme Court in Punjab State Electricity Board (supra) and in view of the decisions of the Division Benches of this Court in State of U.P. & Ors. Vs. Prem Chandra & Ors.3; Bhuneshwar Rai Vs. State of U.P. & Ors.4; and State of U.P. & Ors. Vs. Panchu5, the length of service rendered by the appellant in the work charged establishment from 1 July 1978 to 31 March 2000 deserves to be added for payment of pension and Article 370 of the Regulations has to be read down to this extent.

Learned Standing Counsel appearing for the respondents has, however, placed reliance on the Division Bench decision of this Court rendered on 9 January 2014 in Jai Prakash Vs. State of U.P.& Ors.(1)6 and the decision of the Supreme Court rendered on 5 September 2014 in Jai Prakash Vs. State of U.P.(2)7. Learned Standing Counsel has also pointed out that against the judgment of the Division Bench rendered in Panchu (supra), the State of Uttar Pradesh filed Special Leave to Appeal (Civil) No.7222 of 2014 which was decided by the Supreme Court on 28 October 2014 holding that the impugned judgment passed by the High Court will not be cited as a precedent in any other case.

We have considered the submissions advanced by learned counsel for the parties.

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 interruption 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.

Thus, on a plain reading of the provision of Article 370, it is clear that the period of service in a work charged establishment cannot be counted for the purpose of determining the qualifying service for grant of pension.

Though the writ petitioners had challenged the vires of Article 370 of the Regulations, neither before the learned Judge nor before this Court, submissions have been advanced as to why the provisions of Article 370(ii) which deny counting of service in a work charged establishment for pension should be declared ultra vires Articles 14 and 16 of the Constitution. All that has been submitted by learned counsel for the writ petitioner is that it should be read down in view of the decision of the Supreme Court in Punjab State Electricity Board (supra) and the judgments of the Division Benches of this Court rendered in Prem Chandra (supra); Bhuneshwar Rai (supra) and Panchu (supra).

Rule 3.17(ii) of the Punjab Civil Services Rules, which is similar to the provision of Article 370(ii) of the Regulations and excludes the period of service rendered in a work charged establishment for pension, was struck down by a Full Bench of the Punjab and Haryana High Court in Kesar Chand Vs. State of Punjab & Ors.8 and the Special Leave Petition preferred by the State of Punjab was dismissed by the Supreme Court. Thus, the decision rendered by the Full Bench of the Punjab and Haryana High Court had attained finality and would only have a persuasive value. The subsequent decision of the Supreme Court in Punjab State Electricity Board (supra) would not be of any benefit to the petitioner for the reason that in the State of Punjab and Haryana, Rule 3.17(ii) of the Punjab Civil Services Rules had already been struck down by the Full Bench and the State Government had taken a decision for payment of pension in respect of temporary service rendered under the State Government.

Though a Division Bench of this Court in Panchu (supra), after placing reliance upon the decision of the Full Bench of the Punjab and Haryana High Court in Kesar Chand (supra) and the decision of the Supreme Court in Punjab State Electricity Board (supra), did hold that the services rendered in a work charged establishment should be counted while computing the qualifying service of ten years for grant of pensionary benefits, another Division Bench of this Court in a subsequent decision rendered in Jai Prakash (1) (supra), after taking note of the aforesaid decision in Panchu (supra), held that the service rendered by a work charged employee cannot be counted for the purpose of computing the qualifying service for payment of pension. The portion of the judgment which is relevant for the purpose of this Special Appeal is reproduced below:-

"It needs to be noticed that a Full Bench of this Court in Pavan Kumar Yadav 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 Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under the Rules. The reasons given by the Full Bench for recording this finding are :-

"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."

(emphasis supplied)

In Punjab State Electricity Board and Ors. Vs. Jagjiwan Ram and Ors. reported in (2009) 3 SCC 661, the Supreme Court also examined 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 Supreme 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 observations are as follows:-

"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.

...................

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21. For the reasons mentioned above, we hold that the respondents were not entitled to the benefit of time bound promotional scales / promotional increments on a date prior to completion of 9/16/23 years regular service and the High Court committed serious error by directing the appellants to give them benefit of the scheme by counting their work charged service."

(emphasis supplied)

In Jaswant Singh (supra), which was relied upon by the Supreme Court in Jagjiwan Ram (supra), the Supreme Court held that the employees appointed in the work charged establishments are not entitled to service benefits available to regular employees.

In Kunji Raman (supra), which was also relied upon by the Supreme Court in Jagjiwan Ram (supra), the Supreme Court did not accept the contention that the provisions of Rajasthan Service (Concessions on Project) Rules, 1962 and Rajasthan Service Rules, 1951 were violative of Articles 14 and 16 of the Constitution as they did not treat the employees of the work charged establishment at par with regular employees and the relevant observations are:-

"8. A work-charged establishment thus differs from a regular establishment which is permanent in nature. Setting up and continuance of a work-charged establishment is dependent upon the Government undertaking a project or a scheme or a "work" and availability of funds for executing it. So far as employees engaged in work-charged establishments are concerned, not only their recruitment and service conditions but the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. A regular establishment and a work-charged establishment are two separate types of establishments and the persons employed on those establishments thus form two separate and distinct classes. For that reason, if a separate set of rules are framed for the persons engaged in the work-charged establishment and the general rules applicable to persons working on the regular establishment are not made applicable to them, it cannot be said that they are treated in an arbitrary and discriminatory manner by the Government. It is well settled that the Government has the power to frame different rules for different classes of employees. We, therefore, reject the contention raised on behalf of the appellant in Civil Appeal No. 653 of 1993 that Clauses (g), (h) and (7) of Rule 2 of RSR are violative of Articles 14 and 16 of the Constitution and uphold the view taken by the High Court.

........................

10.It was also contended on behalf of the State that the High Court having held that the workmen working on the regular establishment and the employees working on a work-charged establishment belong to two separate categories and, therefore, separate classification made by the Government in that behalf is reasonable, committed a grave error in striking down Rules 2(b) and (d) of the 1962 Project Rules and Rules 4(2) and (4) of the 1975 Project Rules by invoking the principle of equal pay for equal work. The reason given by the High Court for taking that view is that the project allowance is compensatory in nature and, therefore, the classification made between the work-charged employees and the employees of the regular establishment has no rational nexus with the object sought to be achieved by those Rules. What the High Court failed to appreciate is that when an employee working in the regular establishment is transferred to a project he has to leave his ordinary place of residence and service and go and reside within the project area. That is not the position in the case of an employee who is engaged in the work-charged establishment for executing that work. ............................ From what is now stated by them in the counter-affidavit, it appears that what they really want is parity in all respects with the employees of the regular establishment. In other words, what they want is that they should be treated as regular employees of the Public Works Department of the Rajasthan Government and should be given all benefits which are made available under the RSR and the Project Rules. Such a claim is not justified and, therefore, the contention raised in that behalf cannot be accepted."

(emphasis supplied)

It, therefore, follows from the aforesaid judgments 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 service benefits which are admissible to regular employees under the relevant rules.

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."

(emphasis supplied)

Jai Prakash, however, filed Special Leave to Appeal before the Supreme Court to assail the judgment dated 9 January 2014. The Special Leave to Appeal was dismissed on 5 September 2014 and the judgment is reproduced below:

"There is nothing on the record to suggest that any Rule or Scheme framed by the State to count the work-charged 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 judgment.

The special leave petition is dismissed."

Reliance on the decision rendered by the Division Bench of this Court in Panchu (supra) placed by learned counsel for the appellant is, therefore, misconceived.

Even otherwise, the State of Uttar Pradesh filed Special Leave to Appeal before the Supreme Court against the judgment rendered by the Division Bench in Panchu (supra). Though the Special Leave to Appeal was dismissed on 28 March 2014 but the Supreme Court observed that the impugned judgment of the High Court in Panchu (supra) will not be cited as a precedent in any other case. The order passed by the Supreme Court is reproduced below:

"The special leave petition is dismissed.

The question of law relating to counting the period of work charge establishment is left open for determination in an appropriate case. The impugned judgment passed by the High Court cannot be cited as a precedent in any other case."

Thus, there is no manner of doubt that the service rendered by an employee in a work charged establishment cannot be counted for the purpose of computing the qualifying service of ten years for payment of pension. The submission of learned counsel for the petitioner that Article 370(ii) of the Regulations should be read down to include the service rendered in a work charged establishment for payment of pension, therefore, cannot be accepted.

There is, therefore, no error in the impugned judgment which may call for interference in this Special Appeal.

The Special Appeal is, accordingly, dismissed.

Date:16.07.2015

SK

(Dilip Gupta, J.)

(Vinod Kumar Misra, J.)