Husain Haidar vs State Of U.P. Thru ...
2015 Latest Caselaw 477 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 15 							       [A.F.R.]
 

 
Case :- SERVICE SINGLE No. - 1921 of 2013
 

 
Petitioner :- Husain Haidar
 
Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Deptt.Tubewell &Anr.
 
Counsel for Petitioner :- M.P. Yadav,Brijesh Yadav 'Vijay'
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Akhtar Husain Khan,J.

Heard learned counsel for petitioner and learned Standing Counsel.

Present writ petition has been filed by petitioner Husain Haider under Article 226 of the Constitution of India with prayer to issue a writ in the nature of Mandamus, directing respondents to re-determine the fixation of pension and other post retiral dues by also taking into consideration the service period of eight years, one month and twenty four days rendered by petitioner as an work charge employee.

Learned counsel for petitioner contended that petitioner was recruited as helper in the work charge establishment on 10.8.1977 in pay scale of Rs. 185/. Thereafter, on 1.11.1978 he was appointed as Section Mistri in pay scale of Rs. 205-5-250-EB-6-280-320/. Subsequently, he was regularized and was appointed on the post of regular Mistri in the pay scale of Rs. 354-10-424/.

Learned counsel for petitioner contended that petitioner retired on 30.9.2011 after attaining age of superannuation, i.e. 60 years. Learned counsel for petitioner contended that service rendered by petitioner as work charge employee with effect from 10.8.1977 to 4.10.1985 has been excluded in fixing pension and other post retiral dues.

Learned counsel for petitioner contended that it has been settled by Hon'ble Apex Court as well as by this Court that service periiod rendered as a work charge employee shall be considered as continuous service for purpose of calculation of pension and post retiral dues.

Learned counsel for petitioner placed reliance on pronouncement of a Division Bench of this Court rendered in Special Appeal Defective No. 842 of 2013, State of U.P. & ors. v. Panchu (in re: 1828 S/S 2008)

Learned Standing Counsel appearing for respondents contended that petitioner has joined as regular employee on 4.10.1985, therefore, for the purpose of calculation of pension and post retiral dues, petitioner's service shall be counted from 5.10.1985, the date of his joining as a regular employee.

Learned Standing Counsel contended that service rendered by ad hoc, daily wager and work charge employee shall not be counted for the purpose of fixing pension, other pensionary benefits and post retiral benefits.

Learned Standing Counsel placed reliance on Full Court judgment of this Court in the case of Pawan Kumar Singh v. State of U.P. [2010 (28) LCD 1490.

I have considered submissions made by learned counsel for the parties and have gone through the affidavits filed by the parties.

Admittedly, petitioner worked from 10.8.1977 to 10.9.1985 as work charge employee and his services were regularized on 11.9.1985. In pursuance of said regularization order, petitioner joined on the post of regular Mistri on 5.10.1985 in the pay scale of Rs. 354-10-424/.

Point for determination in this writ petition is as to whether service rendered by petitioner form 10.8.1977 to 10.9.1985 as work charge employee shall be counted in fixing pension and other post retiral benefits of petitioner in view of statutory provisions contained in Regulation 370 of U.P. Civil Services Regulations.

In Special Appeal Defective No. 842 of 2013 (Supra), the Division Bench of this Court has placed reliance upon judgment of Hon'ble Apex Court rendered in the case of Punjab State Electricity Board and Anr vs. Narata Singh and Anr. (2010 A.I.R. SCW. 1670, wherein Hon'ble Apex Court has held as under:

"A bare reading of the above-quoted rule makes it clear that periods of service in work charged establishments were not counted as qualifying service. Therefore, the work charged employees had challenged validity of the said Rule. The matter was considered by the Full Bench of Punjab and Haryana High Court. In Kesar Chand v. State of Punjab & Ors. [1988 (5) SLR 27] : (AIR 1988 Punj & Har 265), the Full Bench held that Rule 3.17 (ii) of the Punjab Civil Services Rules was violative of Article 14 of the Constitution of India. The Full Bench decision was challenged before this Court by filing a special leave petition which was dismissed. Thus, the ratio laid down by the Full Bench judgment that any rule which excludes the counting of work charged service of an employee whose services have been regularized subsequently, must be held to be bad in law was not disturbed by this Court. The distinction made between an employee who was in temporary or officiating service and who was in work charged service as mentioned in Rule 3.17 (ii) of the Punjab Civil Services Rules disappeared when the said rule was struck down by the Full Bench. The effect was that an employee holding substantively a permanent post on the date of his retirement was entitled to count in full as qualifying service the periods of service in work charged establishments. In view of this settled position, there is no manner of doubt that the work charged service rendered by the respondent No.1 under the Government of Punjab was qualified for grant of pension under the rules of Government of Punjab and, therefore, the Board was not correct in rejecting the claim of the respondent for inclusion of period of work charged service rendered by him with the State Government for grant of pension, on the ground that service rendered by him in the work charged capacity outside PSEB and in the departments of the State Government was a non-pensionable service."

In Special Appeal Defective No. 842 of 2013 (Supra) after having considered provisions of Regulation 370 of the U.P. Services Regulations, the Division Bench of this Court has held as follows:

"The rationale, which has weighed in the judgment of the Supreme Court in Narata Singh (supra), must equally apply and will govern the similar provisions contained in the U.P. Civil Service Regulations. it would be completely arbitrary to exclude the period of service rendered in a work charged establishment for the computation of qualifying service for the purposes of grant of pensionary benefits."

In view of above pronouncement of Division Bench of this Court rendered in the case of State of U.P. & ors. v. Panchu (Supra), it is apparent that services rendered by petitioner from 10.8.1977 to 4.10.1985 as a work charge employee shall be counted in fixing pension and other pensionary dues.

In the case of Pawan Kumar Singh (Supra), Full Bench of this Court has considered the issue 'as to whether a daily wager and work charge employee, employed in connection with affairs of the Uttar Pradesh, who is not holding any post, whether substantive or temporary, is a 'Government servant' within the meaning of Rule 2 (a) U.P. Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974. The Full Bench of this Court has decided said issue as follows:

"1.A daily wager and workcharge employee employed in connection with the affairs of the Uttar Pradesh, 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 these Rules."

In this judgment, the Full Bench has not considered Regulation 370 of U.P. Civil Services Regulations, and has not interpreted provisions of Regulation 370 of U.P. Civil Services Regulations. This pronouncement is not applicable on the facts of this case.

In view of conclusion drawn above, the present writ petition is allowed, and a writ of Mandamus is issued to respondents with direction to re-determine the pension and other post retiral dues of petitioner after taking into consideration services rendered by him from 10.8.1977 to 4.10.1985 as work charge employee. It is further directed that respondents shall pass order as directed above within two months from the date on which certified copy of this order is produced before them.

Order Date :- 12.5.2015

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