Mohd. Haroon vs State Of U.P.Thru ...
2021 Latest Caselaw 3769 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- SERVICE SINGLE No. - 24211 of 2016
 

 
Petitioner :- Mohd. Haroon
 
Respondent :- State Of U.P.Thru Prin.Secy.Forest & Wild Life Anubhag-3&Ors
 
Counsel for Petitioner :- Vinay Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Dhari Singh,J.

Today, Sri Vinay Misra, learned Counsel for the petitioner has sought for adjournment on the ground of illness.

On earlier occasion, on 23.02.2021, the matter was adjourned on the same ground. This Court after considering the fact that the counsel for the petitioner is ill and also the matter is of 2016, office was directed to list this case peremptorily on 17.03.2021. From the order-sheet, it reflect that after 2016, no effective hearing has been made.

In view of above, this Court has left with no option except to proceed to decide the matter in absence of Sri Vinay Misra, learned Counsel for the petitioner.

Heard Dr. Udai Veer Singh, learned Counsel appearing on behalf of the State and perused the records. Counter and rejoinder affidavits have been exchanged between the parties.

The instant writ petition has been filed by the petitioner with the following main prayers:

"(I). Issue a writ order or direction in the nature of mandamus commanding the opposite parties to include and take into consideration the services so rendered by the petitioner as Junior Clerk on daily wages in the respondent organization and treat the same as qualifying period of service for computation of pension and other post retiral benefits, in the interest of justice.

(II). Issue a writ order or direction in the nature of mandamus commanding the opposite parties to take into consideration the enormous delay on the part of the opposite parties in complying the orders of this Hon'ble Court issued for regularizing the services of the petitioner in 1992 though the regularization order was issued in 2002 and therefore the past services so rendered by the petitioner on daily wages cannot be ignored from being computed as qualifying service in the interest of justice."

Brief facts of the case are that the petitioner was engaged as daily wager on 29.04.1988. After sometimes, the petitioner had preferred a representation to the respondents for regularization and when no heed was paid, the petitioner had approached this Court by filing Writ Petition No.7236 (SB) of 1992 in which an interim order dated 15.10.1992 was passed directing the respondents to consider the case of the petitioner for regularization on the post of Junior Clerk and pay regular scale as admissible to the junior clerks. Thereafter, the petitioner had filed contempt petition bearing No.400 (c) of 1992 for non-compliance of the order dated 15.10.1992 in which notices were issued to the respondents showing cause as to why the proceedings be not initiated against the respondents for having wilfully disobeyed the order of writ Court. Vide order dated 31.01.2002, the services of the petitioner was regularized from the date of taking over the charge under the provisions of U.P. Regularisation of Daily Wages Appointment on Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998. The petitioner had joined his services on the same day i.e. 31.01.2002 on the post of Junior Clerk. After regularization, the petitioner had preferred applications for computing his services rendered as daily wager in order to get the benefit of Section 8 of Uttar Pradesh Retirement Benefits Rules, 1961 which provides qualifying service for pension in accordance with the provisions of Article 368 of the Civil Service Regulations.

It is averred by the petitioner in the pleadings that a plain reading of Rule 8 of Uttar Pradesh Retirement Benefits Rules, 1961 indicates that continuous temporary service rendered by the petitioner will also be treated as qualifying service as temporary service was followed by confirmation on the said post. It is also contended in the pleadings that the earlier services rendered by an employee in temporary capacity cannot be ignored if there was continuity in service. It is also held that when regular and substantive post was available then it was incumbent upon the authorities to have passed the formal order of regularization/ confirmation and it was not done then the employee cannot be made to suffer for the fault on the part of the authorities.

In rejoinder affidavit, the petitioner has stated that the services rendered by an employee on daily wage basis and work charge basis shall be computed as qualifying service. In support of his contention, the petitioner has relied upon a judgment of Hon'ble Supreme Court in the case of Habib Khan vs. State of Uttarakhand and others decided on 23.08.2017 in Civil Appeal No.10806 of 2017.

Per contra, Dr. Udai Veer Singh, learned Counsel appearing on behalf of the State has submitted that the petitioner was appointed on purely daily wages for performing specific/ particular work. The services rendered as daily wages cannot be considered at par with the services of regular appointed employees. The benefit of retirement and pension can only be given to the permanent/ regular employees. There is no provision to compute the services rendered by an employee as daily wager prior to his regularization for the purpose of pensionary benefits. It is admitted case that the petitioner was appointed on daily wage basis, therefore, he is not eligible for the benefit as claimed.

In support of his submissions, learned Counsel appearing on behalf of the State has placed reliance to the decision of this Court rendered in the case of Ram Aasre Yadav vs. State of U.P. and others decided on 13.04.2017 in Special Appeal No.2114 of 2011 in which the Division Bench has held that the term "qualifying service" is defined in Section 1 Chapter 16 of Article 361 of the Civil Service Regulations, which provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions: (A) The service must be under Government (B) The employment must by substantive and permanent and (C) The service must be paid by Government Regulation 368 of Civil Service Regulation, clearly proceeds to mention that service does not qualify, unless the officer holds a substantive office on permanent establishment. Learned Counsel has again submitted that it is settled law that the services rendered prior to regularization as daily wager cannot be considered for the purpose of retirement and pensionary benefits. Hence, the writ petition being devoid of merit is liable to be dismissed.

I have considered the submissions of learned Counsel for the parties and perused the record.

It is admitted fact that the petitioner was engaged as daily wager in the year 1988 and vide order dated 31.01.2002, the services of the petitioner was regularized. The sole grievance of the petitioner is that while regularizing the services of the petitioner, the respondents have not counted the services rendered by the petitioner as daily wage which is against the provisions of Section 8 of Uttar Pradesh Retirement Benefits Rules, 1961 which reads as under:

"8. Qualifying service "means service which qualifies for pension in accordance with the provision in accordance with the provision of Article 368 of the Civil Service Regulations:

Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except-

(i) period of temporary of officiating service in a non-pensionable establishment,

(ii) period of service in a work-charged establishment, and

(iii) period of service in a post paid from contingencies, shall also count as qualifying service.

Note:- If service rendered in a non-pensionable establishment, work charged establishment or in a post paid from contingencies falls between two period of temporary service in a pensionable establishment or between a period of temporary service and permanent service in pensionable establishment, it will not constitute an interruption of service."

A plain reading of the abovesaid Rule 8 itself provides that temporary service rendered by an employee shall be treated as qualifying service. In this case, admittedly, the petitioner was engaged as daily wager in the year 1988. Therefore, the benefit as claimed by the petitioner cannot be given.

In my view, a daily wager cannot be said to be holding a post in the State Government nor does he hold a lien on such post. Besides, the daily wagers are paid from contingencies and not from the consolidated fund of the State. In view of the above referred statutory rules services rendered as daily wage employee cannot be treated as pensionable service nor can such service be counted for computation of pension. Hence the services rendered by the petitioner on daily wages prior to date of regularisation cannot be considered pensionable.

For the reasons stated above, the writ petition is dismissed.

Order Date :- 17.3.2021

akverma