State Of U.P. Thru. Sec. P.W.D. And ... vs Sri Ram
2015 Latest Caselaw 2335 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 A.F.R.
 
Chief Justice's Court 
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 664 of 2015
 

 
Appellant :- State Of U.P. Thru. Sec. P.W.D. And 3 Others
 
Respondent :- Sri Ram
 
Counsel for Appellant :- A.K. Roy,S.C.
 
Counsel for Respondent :- Chandeshwar Prasad
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Yashwant Varma,J.

(Per Hon'ble Yashwant Varma, J.)

The State is in appeal assailing the judgment rendered by a learned Single Judge of this Court of 5 December 2014. The learned Single Judge allowed the writ petition preferred by the sole respondent against an order of 25 November 2014 which had turned down his claim for grant of pension and gratuity. The order of 25 November 2014 records that the respondent had worked as a muster roll employee between the period 3 June 1989 to 28 February 2011. He was subsequently absorbed in the permanent establishment on 1 March 2011 whereafter he retired on 30 June 2014. The claim for pension and other benefits came to be turned down on account of the respondent not acquiring the requisite qualifying service essential for grant of the above benefit. The learned Single Judge relying upon earlier judgments rendered by the Court came to the conclusion that the period of service spent by the respondent as a work charged employee was liable to be included in computing qualifying service and accordingly set aside the order impugned and remitted the matter to the fourth appellant for reconsideration of the claim of the respondent. The issue canvassed before us was whether the period of service spent by the respondent in a work charged establishment was liable to be included for the purposes of computation of qualifying service. The State has urged that the period spent by an employee on a work charged establishment is not liable to be included for the purposes of computation of qualifying service bearing in mind the provisions of Rule 3 of the U.P. Retirement Benefits Rules, 19611 and Article 368 of the Civil Service Regulations2 as applicable in the State of U.P. Apart from the above, the appellants have contended that the various judgments relied upon by the learned Single Judge were themselves based upon an incorrect appreciation of the law laid down by the Supreme Court in Punjab State Electricity Board And Others Vs. Naratha Singh3. It has been contended that subsequent Division Benches of this Court have upon a review of the earlier judgments and the relevant provisions of the statute applicable in the State of U.P. have come to hold that the period of service rendered by an employee in a work charged establishment stands on a completely different and distinct footing and consequently cannot be added for the purposes of computing qualifying service.

This Court in State of U.P. Thru. Prin. Secretary Irrigation And 3 Others Vs. Ram Nagina Lal Srivastava4, had an occasion to review the various judgments rendered by the Court on the above subject and upon an exhaustive review of the earlier precedents held:

"Insofar as the State of U.P. is concerned, the provision which governs the field is Regulation 370 of the Civil Services Regulations3 which in unambiguous terms excludes the period of service rendered by an employee in a work charged establishment while computing continuous, temporary or officiating service. The issue was dealt with in a judgment rendered by the Supreme Court in Punjab State Electricity Board and Ors. Vs. Naratha Singh. In Naratha Singh (supra), the Supreme Court dealt with a claim claim for pension consequent to the striking down of Rule 3.17(ii) of the Punjab Civil Services Rules by a Full Bench of the Punjab & Haryana High Court, which excluded the period of service rendered in a work charged establishment for the purposes of determining qualifying service. A Full Bench of the Punjab and Haryana High Court in Kesar Chand Vs. State of Punjab & Ors5 had struck down rule 3.17(ii) of the Rules aforementioned5. The Special Leave Petition preferred against the aforesaid judgement of the Full Bench came to be dismissed by the Supreme Court. It was in the above backdrop and the situation as prevailing insofar as the State of Punjab and Haryana was concerned that the service rendered by an employee in a work charged establishment was held to be added for the purposes of computing qualifying service.

These distinguishing features and the factual backdrop in which Naratha Singh was decided appear to have escaped the attention of earlier Benches of this Court which purported to follow Naratha Singh to hold that the period of service rendered in a work charged establishment was liable to be included for the purposes of computing qualifying service. Following the above dictum, this Court in Thakur Prasad Vs. State of U.P. Through Principal Secretary Food & Others6, Jawahar Prasad Tripathi Vs. State of U.P. and others7, Board of Revenue, Lucknow & Ors. Vs. Prasidh Narain Upadhyay8, Chedi Ram Maurya Vs. Uttar Pradesh Basic Education Board, Allahabad and others9, State of U.P. and Ors. Vs. Panchu10 and Raj Dularey Dubey Vs. Public Service Tribunal Lucknow & Ors.11 proceeded to hold that the period of service spent in a work charged establishment was liable to be included."

"Significantly, the Supreme Court in Punjab State Electricity Board and others Vs. Jagjiwan Ram and others12, Jaswant Singh & Ors. Vs. Union of India & Ors.13 and State of Rajasthan Vs. Kunji Raman14 considered the issue again in the context of a claim of work charged employees for grant of time bound promotional scale and promotional increments. Following what was held in Jaswant Singh (supra) and Kunji Raman (supra), the Supreme Court in Jagjiwan Ram (supra) laid down the law in the following terms:

"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.

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

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

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.""

(empahasis supplied)

""Noticing the law as laid down by the Full Bench of this Court in Pavan Kumar Yadav (supra) and the subsequent judgements of the Supreme Court in Jagjiwan Ram (supra), Jaswant Singh (supra) and Kunji Raman (supra), a Division Bench of this Court in Jai Prakash (supra) held as follows:

"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."

More recently a Division Bench of this Court in Navrang Lal Srivastava (supra) tracing the various judgments rendered from time to time on this issue, explained the position in law as under:

"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.""

""It would not be out of place to note here that against the judgment rendered in Raj Dularey Dubey (supra), a Special Leave Petition was carried to the Supreme Court in Engineer in Chief, Lok Nirman Vibhag & Ors. Vs. Raj Dularey Dubey15 and the same came to be dismissed on 19 January 2015 in the following terms:

"Having heard the parties, we are not inclined to interfere with the impugned order. The special leave petition is dismissed. However, petitioners are directed to pay the respondent consequential benefit including arrears of salary, post retirement benefits including pension with statutory interest to which the respondent is entitled pursuant to the High Court's order within two months."

The above order of 19 January 2015 indicates that the special leave petition was dismissed without the law as laid down by this Court in Raj Dularey Dubey (supra) being affirmed.

The judgment rendered by this court in Jai Prakash (supra) and which reviewed the entire body of precedent on the subject was also taken in appeal16 before the Supreme Court where the special leave petition came to be dismissed on 5 September 2014 with the following observations:

"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 judgment.

The special leave petition is dismissed."

The last judgment of this Court which struck a discordant note and which must be noticed is that rendered by the Division Bench in Panchu (supra). It is apposite to note here that Panchu was also taken in appeal to the Supreme Court where the Special Leave Petition17 came to be dismissed on 28 March 2014 in the following terms:

"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."

From the above narration of facts and the various judgments rendered on the issue, it is apparent that the judgments of this Court which held that the service rendered by a person in a work charged establishment was eligible for inclusion in the period of qualifying service proceeded on the basis that the judgment rendered in Naratha Singh applied and failed to notice the distinguishing features upon which it came to be rendered. The law subsequently has been authoritatively pronounced and ruled upon in both Jai Prakash and Navrang Lal Srivastava, and in judgments of the Hon'ble Supreme Court noticed earlier.

In light of the above, this Court reiterates and holds that the service rendered by an employee in a work charged establishment stands on a completely different and distinct footing and bearing in mind the provision made in Regulation 370 the same cannot stand added for the purposes of computing qualifying service.""

Upon an exhaustive review of the earlier judgments considered and the ultimate conclusion arrived at by this Court it must be held that a person working on a work charged establishment is not entitled to require the State to include the period of service rendered in such an establishment for the purposes of computation of qualifying service. This is now admittedly the settled position in law as found by this Court in Jai Prakash, Navrang Lal Srivastava and Ram Nagina Lal Srivastava.

Learned counsel for the respondent would however bid us to revisit the issue in light of the following judgments upon which reliance was placed by him: (A) Raj Dularey Dubey Vs. Public Service Tribunal Lucknow & Ors18; (B) State of U.P. Thru. Prin. Secy. Public Works Deptt. Lko. & Ors. V. Prem Chandra And Ors.19 (C) Board of Revenue And Others Vs. Prasidh Narain Upadhyay20 and (D) Bhubneshwar Rai Vs. State of U.P. & Others21.

It may be noted here that the judgments rendered by the Division Benches in Raj Dularey Dubey and Prasidh Narain Upadhyay, were duly noticed by this Court in Ram Nagina Lal Srivastava and it was found that the decisions proceeded upon a inadvertent failure to bear in mind the distinguishing features and factual backdrop in which Naratha Singh was decided. The Division Bench which decided Prem Chandra again placed reliance upon Naratha Singh to hold that a work charged employee be granted pension and other benefits taking into account the period of service rendered by him in a work charged establishment. The same is the position with regard to the judgment rendered by the Division Bench in Bhubneshwar Rai. As was noticed and held by the Bench in Ram Nagina Lal Srivastava a line of precedents sprung up from this Court, which failed to bear in mind the distinguishing factual backdrop in which Naratha Singh came to be decided. The distinguishing feature being that in the State of Punjab & Haryana, the provision of the Punjab Civil Services Rule which excluded the period of service rendered in a work charged establishment for the purposes of determining qualifying service had already been struck down. It was in the aforesaid circumstances that Naratha Singh came to be decided by the Supreme Court. Insofar as the State of U.P. is concerned, the provisions of the Rules as well as the Civil Services Regulations continue to govern the field and clearly mandate the exclusion of the period of service rendered in a work charge establishment. More importantly, the Division Benches which proceeded to follow Naratha Singh failed to bear in mind the subsequent judgments rendered by the Apex Court in Jagjiwan Ram, Jaswant Singh and Kunji Raman. In light of the above facts, we find no circumstance that would warrant us taking a view divergent from the one laid down in Ram Nagina Lal Srivastava.

Learned counsel for the respondent has sought to place reliance on the provisions of Fundamental Rule 56 and more particularly clause (e) thereof which reads as under:

"(e) 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:

Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less." (emphasis supplied)

We fail to appreciate how the provisions of Fundamental Rule 56 would alter the position of law as found and held in Ram Nagina Lal Srivastava or for that matter place the case of the sole respondent on a different footing. Clause (e) of Fundamental Rule 56 provides that a retiring pension shall be payable along with other benefits to every Government servant. However, the above mandate is subject to the pension being payable "in accordance with and subject to the provisions of the relevant rules....". The relevant provisions as we have found are those enshrined in Rule 3 of the Rules and Regulation 370. Both the provisions when read together lead us to only one conclusion and that being that the period of service rendered in a work charged establishment is not liable to be computed for the purposes of qualifying service. In view of the above, we find no infirmity in the order passed by the appellant turning down the claim for pensionary benefits as raised by the sole respondent.

In light of what has been found by us above, we are of the opinion that the judgment of the learned Single Judge is clearly rendered unsustainable. Accordingly, we allow this appeal and set aside the judgment of the learned Single Judge dated 5 December 2014. Consequent to what has been held above, the writ petition preferred by the sole respondent shall also stand dismissed.

Order Date :- 16.9.2015

Arun K. Singh

(Yashwant Varma, J.) (Dr. D.Y. Chandrachud, C.J.)

Chief Justice's Court

Re: Civil Misc. Delay Condonation Application No. Nil of 2015:

In:

Case :- SPECIAL APPEAL DEFECTIVE No. - 664 of 2015

Appellant :- State Of U.P. Thru. Sec. P.W.D. And 3 Others

Respondent :- Sri Ram

Counsel for Appellant :- A.K. Roy,S.C.

Counsel for Respondent :- Chandeshwar Prasad

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice

Hon'ble Yashwant Varma,J.

The delay of 240 days in filing the special appeal is condoned since sufficient cause has been shown in the Affidavit filed in support of the application for condonation of delay.

The application stands disposed of. There shall be no order as to costs.

Order Date :- 16.9.2015

Arun K. Singh

(Dr. D.Y. Chandrachud, C.J.)

(Yashwant Varma, J.)