Bali Ram Singh vs State Of U.P. And 4 Others
2021 Latest Caselaw 11525 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
A.F.R.     
 
Court No. - 25
 

 
Case :- WRIT - A No. - 58889 of 2017
 

 
Petitioner :- Bali Ram Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Daya Shanker Yadav,Mahendra Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble J.J. Munir,J.

This petition is directed against an order passed by the Additional/Joint Director, Treasury and Pension, Varanasi, Uttar Pradesh dated 24.09.2017, requiring the Sub-Divisional Magistrate, Raja Talab, Varanasi to submit a revised proposal for consideration of the petitioner's case for the grant of pension and other post-retiral benefits, after excluding the period of service rendered by him, prior to his regularisation, as a Lekhpal.

2. A counter affidavit on behalf of respondent nos. 3 and 5 jointly, and a separate counter affidavit on behalf of respondent no. 4 have been filed. In reply to both these counter affidavits, the petitioner has filed two separate rejoinders.

3. This petition was admitted on 08.12.2020, and the hearing had proceeded on that date. Later on, it was brought to the Court's notice that the rights of the petitioner to pension, reckoning the period of his continuous service rendered as a Lekhpal prior to regularisation, would now be governed by the provisions of the Uttar Pradesh Qualifying Service of Pension and Validation Ordinance, 2020 (U.P. Ordinance 19 of 2020). The service book of the petitioner was summoned and retained on record.

4. Heard Mr. Daya Shanker Yadav, Advocate, along with Mr. Mahendra Kumar, learned Counsel for the petitioner, Mr. L.K. Tiwari, the learned Additional Chief Standing Counsel along with Mr. Sharad Chand Upadhyaya, the learned State Law Officer on behalf of the State-respondents.

5. The moot question involved in this petition is :

Whether the petitioner, a retired Lekhpal, has put in qualifying service, entitling him to receipt of pension, gratuity and other post-retiral benefits?

6. The Additional/Joint Director, Treasury and Pension, Varanasi, Uttar Pradesh, by his order impugned dated 24.09.2017, has opined that the petitioner's service, prior to his regularisation as a Lekhpal w.e.f. 13.09.2006, cannot be counted towards his qualifying service for the purpose of pension etc. The Additional/Joint Director, Treasury and Pension, has relied on an order of the Board of Revenue dated 17.10.2016 to discount the services of the petitioner rendered as an untrained Lekhpal prior to his regularisation. If that Board order alone were to be the law governing the right of the petitioner to receive his retirement pension and other post-retiral benefits, the matter would have to be considered from a different perspective altogether, and, may be, to reach a very different conclusion. The rights of parties, however, have suffered a change, in view of the Uttar Pradesh Qualifying Service of Pension and Validation Act, 2021 (U.P. Act No. 1 of 2021). The aforesaid Act shall hereinafter be referred to as "the Act".

7. The brief facts of the petitioner's case are that he was appointed by the Sub-Divisional Officer, Tehsil Raja Talab, District - Varanasi on the post of a temporary Lekhpal vide order dated 30.03.1987. It is the petitioner's case that he continuously worked on the post of Lekhpal in several Tehsil of the Varanasi district, and did so always to the satisfaction of his superiors. He was sent for training from 01.05.2006 to 31.07.2006. His services were regularised w.e.f. 13.09.2006. He retired from service on 31.03.2016, upon attaining the age of superannuation. Post retirement, the petitioner submitted his documents before the respondents for sanction and disbursement of his pension and other post-retiral benefits. It is at this stage that the Additional/Joint Director, Treasury and Pension, Varanasi, passed the order impugned dated 24.09.2017, addressed to the Sub-Divisional Officer, Raja Talab, Varanasi, requiring him to revise the proposal for sanction of the petitioner's retirement pension, after excluding from qualifying service the period prior to 13.09.2006, that is to say, the period of service rendered by the petitioner prior to regularisation.

8. It is the petitioner's case, relying on the decision of the Supreme Court in Habib Khan v. State of Uttarakhand and others1 that services rendered continuously in a work-charged establishment, let alone temporary or officiating service rendered without interruption and followed by confirmation, would all reckon towards qualifying service for the grant of pension. It is pointed out that according to the respondents' stand in the counter affidavit filed by respondent no. 4, the period of the petitioner's services rendered post regularisation, that is to say, from 13.09.2006 to 31.03.2016, does not qualify him for the grant of retirement pension and other benefits. The respondents, it is pointed out, have pleaded in Paragraph No. 4 of the counter affidavit filed on behalf of respondent no. 4, that in terms of the Board of Revenue's orders dated 16.10.2016, service rendered as an untrained Lekhpal prior to regularisation does not qualify for the purpose of pension. The petitioner's services post regularisation being less than ten years, do not entitle him to pension, according to the respondents.

9. The petitioner also pleads discrimination, by citing cases of other Lekhpals like him, who have been regularised later on, after a long and continuous untrained temporary service, but are in receipt of retirement pension, though they have not put in the minimum number of years post regularisation. Attention of the Court is invited, in this connection, to an order dated 19.03.2018, annexed as Annexure RA-1, filed in reply to the return on behalf of respondent nos. 3 to 5, which lists fifteen Lekhpals, whose services were regularised on 06.12.2006, and they retired from service between 30.11.2010 and 31.12.2015, and yet were sanctioned retirement pension, which they are enjoying. Their names figure in the said order, which the Court has perused. Reliance, in particular, has been placed on the decision of the Supreme Court in Prem Singh v. State of U.P. and others2, where, interpreting the provisions of the Uttar Pradesh Retirement Benefit Rules, 19613 and Regulation 361, 368 and 370 of the Uttar Pradesh Civil Service Regulation, it was held that service rendered in a work-charged establishment would reckon as qualifying service for the grant of retirement pension, where Rule 3(8) of the Rules of 1961 was read down by their Lordships of the Supreme Court to hold that services rendered prior to regularisation in a work-charged establishment shall count towards qualifying service for pension etc. Regulation 370 of the Civil Services Regulations and the directions carried in Paragraph No. 669 of the Financial Handbook, were struck down as discriminatory. In Prem Singh (supra), it was held :

31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularised. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work-charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment.

32. In view of the Note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work-charged, contingencies or non-pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.

33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularisation had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.

34. As it would be unjust, illegal and impermissible to make aforesaid classification to make Rule 3(8) valid and non-discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non-pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.

35. In view of the Note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

36. There are some of the employees who have not been regularised in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one-time measure, the services be regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.

10. By virtue of the Rule in Prem Singh, the petitioner would certainly be entitled to reckon his services rendered as a temporary Lekhpal since the year 1987 for the purpose of grant of pension and other post-retiral benefits. His case would stand on a much better footing than those like the petitioner in Prem Singh, who spent most of his time in the work-charged establishment continuously, though, until regularisation in service. The petitioner has worked continuously as a temporary Lekhpal ever since his initial appointment and eventlessly regularised in service on 13.09.2006. This would certainly have been the correct assessment of the petitioner's right to receive pension under the rule in Prem Singh, but for legislative intervention in the first instance by Uttar Pradesh Ordinance 19 of 2020, that has since been replaced by the Act w.e.f. 05.03.2021.

11. It would be profitable to extract the provisions of the Act verbatim, together with its prefatory note, carrying the statements of objects and reasons :

The Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021

[U.P. Act No. 1 of 2021]

[As passed by the Uttar Pradesh Legislature]

An Act to provide for qualifying service for pension and to validate certain actions taken in this behalf and for matters connected therewith or incidental thereto

It is hereby enacted in the Seventy-second Year of the Republic of India as follows-

Prefatory Note-Statement of Object and Reasons.-Pension and gratuity admissible to a retired Government servant are determined in relation to the length of qualifying service of the Government servant. Although the term "Qualifying Service" is described in the Uttar Pradesh Civil Service Regulation and the Uttar Pradesh Retirement Benefit Rules, 1961, however the definition of the said term is open to subjective interpretation which leads to administrative difficulties.

It has, therefore, been decided to make a law defining the term "Qualifying Service" and to validate such definition with effect from April 1, 1961 which is the date of commencement of the Uttar Pradesh Retirement Benefit Rules, 1961.

Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 (U.P. Ordinance 19 of 2020) was promulgated by the Governor on October 21, 2020.

The Bill is introduced to replace the aforesaid Ordinance.

1.Short title, extent and commencement.-(1) This Act may be called the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021.

(2) It shall extend to the whole of the State of Uttar Pradesh.

(3) It shall be deemed to have come into force on April 1, 1961.

2.Qualifying Service for Pension.- Notwithstanding anything contained in any rule, regulation or Government order for the purposes of entitlement of pension to an officer, "Qualifying Service" means the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post.

3.Validation.- Notwithstanding any Judgment, decree or order of any Court, anything done or purporting to have been done and any action taken or purporting to have been taken under or in relation to sub-rule (8) of Rule 3 of the Uttar Pradesh Retirement Benefit Rules, 1961 before the commencement of this Act, shall be deemed to be and always to have been done or taken under the provisions of this Act and to be and always to have been valid as if the provisions of this Act were in force at all material times with effect from April 1, 1961.

4.Overriding effect.- Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act.

5.Repeal and saving.- (1) The Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 (U.P. Ordinance 19 of 2020) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the provisions of the principal Act, as amended by the Ordinance referred to in sub-section (1) shall be deemed to have been done or taken under the corresponding provisions of the principal Act as amended by this Act as if the provisions of this Act were in force at all material times.

12. It is evident that the Act nullifies the effect of the decision in Prem Singh, and there could be an issue about its constitutional validity. The petitioner, however, has chosen not to challenge the vires of the Act, though the changed position was brought to the notice of the learned Counsel for the petitioner at the instance of the State, when U.P. Ordinance 19 of 2020 was promulgated, which has since been repealed and replaced by the Act. A look at Section 2 of the Act does not brook doubt that services rendered by an officer appointed on a temporary or permanent basis, in accordance with the provisions of the Service Rules, would reckon for qualifying service under the Act. Section 3 validates all actions in terms of the Act that were hitherto governed by sub-rule (8) of Rule 3 of the Rules of 1961 retrospectively w.e.f. April 1, 1961, notwithstanding any judgment, decree or order of any Court. The clear purport of the Act is to define qualifying service in terms of Section 2 thereof retrospectively, and not in terms of Rule 3(8) of the Rules of 1961 of Regulation 3 of Civil Services Regulations.

13. The learned Counsel for the petitioner, within the frame of the writ petition and its limited scope that does not question the vires of the Act or any of its provisions, relies on the decision of a Division Bench of this Court in State of U.P. through Secretary, Secondary Education and others v. Kamlesh Babu Gaur and another4. He submits that in that case, it was held by this Court that the petitioner, who was appointed on ad hoc basis on 25.01.1996 as an Assistant Teacher, but denied pensionary benefits on ground that he was regularised in service on 22.03.2016 and therefore, had not completed ten years of qualifying service, entitling him to pension, was indeed entitled to reckon for qualifying services the period of his ad hoc services. It is pointed out that in State of Uttar Pradesh v. Kamlesh Babu Gaur (supra) it was held that the ad hoc appointment being approved by the District Inspector of Schools on 03.07.1997, in a case where the petitioner had been initially retained on ad hoc basis against a sanctioned post, the appointment was one made as per the Service Rules. It is urged that here, the petitioner was appointed as a temporary employee against a sanctioned post, which is a case much better than that before the Division Bench in State of Uttar Pradesh v. Kamlesh Babu Gaur. The submission is that temporary appointment against a substantive post, that has continued uninterrupted over a long period of time, has to be reckoned towards qualifying service, as envisaged under Section 2 of the Act. In State of Uttar Pradesh v. Kamlesh Babu Gaur, the facts and the principle on which the decision turned, can best be appreciated in the words of their Lordships, which read to the following effect :

3. The facts on record shows that petitioner was appointed on ad hoc basis on 25.01.1996. It was bearing approval of District Inspector of Schools, Hathras. The approval for it was given after a writ petition bearing number 3321 of 1997. The approval by the District Inspector of Schools by the order dated 03.7.1997 shows appointment of the petitioner/non-appellant to be as per the rules.

4. It is not in dispute that petitioner/non-appellant retired after rendering 22 years of service. The claim of pension was yet denied despite the fact that petitioner was even regularized in service subsequently. The denial of pensionary benefit by order dated 05.11.2019 was challenged before the learned Single Judge. Denial was per se on the ground that petitioner was substantially appointed as Assistant Teacher on 22.3.2016 and he has not completed 10 years' service thereupon. The order dated 05.11.2019 was passed in ignorance of the fact that the order dated 22.3.2016 was to regularize the service of the petitioner without nullifying his ad hoc appointment made as per rules. If the ad hoc appointment of petitioner would not have been made as per rules, there was no reason for District Inspector of Schools to grant approval by order dated 03.7.1997 and that too the approval from the date of appointment dated 25.01.1996.

5. The present appeal has been filed in reference to Uttar Pradesh Qualifying Service For Pension And Validation Ordinance 2020 (in short "Ordinance of 2020"). It is stated that period of service on ad hoc or temporary basis should not have been counted by learned Single Judge as has been nullified by the Ordinance of 2020. Thus, even the judgment by the Apex Court in the case of Prem Singh vs. State of U.P. (2019) 10 SCC 516 could not have been applied by the learned Single Judge.

6. We find that identical issue came up for consideration before this Court in the case of State of U.P. through its Secretary and others vs. Mahendra Singh, Special Appeal Defective No.1003 of 2020. Therein the case was considered in the light of the Ordinance of 2020 and finding that appointment of the petitioner therein on temporary basis was as per rules, period of servicewas ordered to be counted towards qualifying service for pensionary benefits.

7. In the case in hand, the petitioner/ non-appellant was appointed on ad hoc basis but was against the sanctioned post. Thus, approval as per rules was given to his appointment by the District Inspector of Schools. The regularization of service may be subsequently by an order issued in the year 2016 but then as per the Ordinance of 2020, the period of service rendered after appointment on temporary basis as per rules could not have been ignored. ........

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8. A perusal of Section 2 of the Ordinance of 2020 reveals that service rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of service rules would be counted towards qualifying service.

9. In view of the above, even the Ordinance of 2020 would not affect the claim of the petitioner/non-appellant having been appointed against the sanctioned post, may be initially on ad hoc but as per rules and subsequently his service was regularized. It is not the case of the respondents that initial appointment of the petitioner was against the rules. It is moreso when the writ petition was filed with clear statement of fact that petitioner/non- appellant was appointed against the sanctioned post and in accordance with rules. Therefore, even approval to his appointment was given by the District Inspector of Schools.

14. It is apparent that the ad hoc appointment of the Assistant Teacher in State of Uttar Pradesh v. Kamlesh Babu Gaur was found to be in accordance with the relevant Service Rules, when initially made, and against a substantive post. Here, what this Court finds, from a reading of the letter of appointment dated 07.05.1978, that the petitioner was appointed by the Sub-Divisional Magistrate (द), Varanasi as a temporary Lekhpal, on the basis of a report submitted by the Tehsildar, Sadar, Varanasi. The appointment letter does not reflect at all that the petitioner was appointed in accordance with the provisions of the Service Rules governing recruitment, selection or appointment. The mere fact that the appointment has been labelled or dubbed as temporary, does not implicitly mean that it is one made in accordance with the Service Rules. Ex-facie, the petitioner's appointment is dehors the Rules.

15. This Court has also gone through the petitioner's service book, which reflects that the petitioner has continued in service uninterruptedly since 07.05.1987, until regularisation on 13.09.2006, with his status being reflected earlier as temporary. There is no hint in the service book to show that the petitioner's appointment prior to his regularisation granted after requisite training was one made in accordance with the Service Rules. It also needs to be remarked that during the entire period of service rendered as a temporary Lekhpal, the petitioner has received recurring increments, pay revisions and Assured Career Promotion, but all that does not show that the petitioner was selected and appointed in accordance with the Service Rules. Rather, the fact that the petitioner had to undergo training for three months from 01.05.2006 to 31.07.2006, before he was granted regularisation by the Appointing Authority, shows that the service rendered by him earlier, though uninterrupted and in a regular pay scale, was one on the basis of an appointment dehors the rules. Therefore, the learned Counsel for the petitioner is not correct in his submission, that the principle in State of Uttar Pradesh v. Kamlesh Babu Gaur (supra) would be attracted to the petitioner's case. Section 2 of the Act that is pari materia with Section 2 of the predecessor ordinance, would bear differently upon the petitioner's rights, and not the way it did in the case before the Division Bench under reference. The reason is that in the case before the Division Bench, the initial ad hoc appointment of the writ petitioner was found to be in accordance with the relevant Service rules, whereas, in this case, the petitioner's appointment, though labelled as temporary and in its turn, uninterrupted, is not found to be one made in accordance with the Service Rules.

16. Learned Counsel for the petitioner further relied on the decision of the Division Bench in State of U.P. v. Bhanu Pratap Sharma5. In the said decision also, it was held that it is not the State-appellant's case that the respondent was not appointed in accordance with the provisions of the Service Rules. Here, it is a case where the petitioner has not been able to show that he was appointed at any time before his regularisation in accordance with the Service Rules, though he was appointed against a sanctioned post on a temporary basis. The appointment, nevertheless, was dehors the rules. Thus, the decision in State of Uttar Pradesh v. Kamlesh Babu Gaur (supra) would also be of no help to the petitioner. The rights of the petitioner judged under the shadow of Section 2 and 3 of the Act cannot be regarded as ones entitling him to qualifying service. The reason is that the petitioner's retention in service, though dubbed as temporary, was not made in accordance with the relevant Service Rules. The appointment between 07.05.1987 and 13.01.2006, until he was regularised in service, was one dehors the Rules. Post regularisation, the petitioner has admittedly not completed 10 years of qualifying service to entitle him to pension, gratuity and other post-retiral benefits that he seeks. As such, the petitioner is not entitled to relief.

17. In the result, the writ petition fails and stands dismissed.

18. There shall be no order as to costs.

Order Date :- December the 24th, 2021

I. Batabyal

(J.J. Munir, J.)