Allahabad High Court
Lal Bahadur Yadav S/O Late Ram ... vs State Of U.P. Through Secy. Minor ... on 20 April, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 20
Case :- WRIT - A No. - 8159 of 2011
Petitioner :- Lal Bahadur Yadav S/O Late Ram Asrey And 7 Ors.
Respondent :- State Of U.P. Through Secy. Minor Irrigation And Ground Water
Counsel for Petitioner :- Nitin Kumar Mishra,Kamlesh Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Karunesh Singh Pawar,J.
(1) Heard Sri Nitin Kumar Mishra, learned counsel for the petitioners and Sri Rajesh Kumar Shukla, learned Standing Counsel for the State-respondents.
(2) By this petition, the petitioners have prayed for the following reliefs:-
"(i) a writ of Mandamus or a writ, order or direction in the nature of Mandamus commanding the opposite parties to allow the retiral benefits to the petitioners from the date of their initial appointment while working in the work charge establishment to the date of their retirement alongwith the consequential benefits;
(ii) any other appropriate writ, order or direction which this Hon'ble Court may deem just, fit and appropriate looking into the prevailing facts of the case may also be passed in favour of the petitioner; and
(iii) allow this writ petition with costs."
(3) Learned counsel for the petitioners, at the outset, submits that he does not want to press the petition for petitioners No.2 & 7 as they were not regularized. He further submits that after the petition was filed and also after the judgment of Prem Singh vs. State of Uttar Pradesh & Ors. reported in [(2019) 10 SCC 516], the Uttar Pradesh Qualifying Service for the Pension and Validation Act, 2021 has come into effect.
(4) In view of the peculiar facts of this case, the petition qua the petitioners No.2 & 7 is dismissed as not pressed with liberty to file a fresh petition for their grievances.
(5) So far as the other six petitioners are concerned, learned counsel for the petitioners submits that petitioners have worked as a work charge employee for a considerable long period and subsequently, their services were
regularized therefore, in view of the judgment of Prem Singh (supra), their services rendered as a work charge employee are liable to be added in their regular service and they are entitled for the post retiral dues.
(6) Learned Standing Counsel does not dispute this settled proposition of law that services of the work charge employee has to be added in their regular service for the purpose of computation of their post retiral dues in view of the judgment of Prem Singh (supra).
(7) The particulars of the petitioners has been mentioned in the following chart:-
Sr.
Name
Father's Name
Date of Appointment and Post
Date of regularisation and post
Date of retirement and Post
1.
Lal Bahadur Yadav
Late Sri Ram Asrey
01.05.1973
Gauze Reader
28.05.2004
Filed Assistant
13.12.2009
Field Assistant
2.
Sampati Ram Yadav
Sri Sita Ram Yadav
27.01.1978
Field Assistant
15.06.2011
Helper
31.07.2011
Helper
3.
Suresh Babu Yadav
Sri Tilak Singh
12.08.1983
T.D.C.
15.05.2014
Data Processor
31.12.2011
Data Processor (To be retired)
4.
Chandra Prakash Srivastav
Sri Jwala Prasad Srivastava
23.09.1981
Field Assistant
15.06.2011
Data Processor
30.09.2011
Data Processor
5.
Kesari Kumar Verma
Late Sri Shiv Ram
03.04.1973 Helper/ Khalasi
17.05.2000
Gauze Reader
31.07.2009
Gauze Reader
6.
Balveer Singh Negi
Sri Padam Singh
16.09.1980
15.05.2005
Beldar
31.07.2009
Beldar Class IV
These particulars of the petitioners are not disputed by the State Government in their counter affidavit.
(8) Para 31 to 36 of the judgment of Prem Singh (supra) are extracted below:-
"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 regularized. 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 regularization 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 Note to Rule 3(8) of 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 the 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 regularized 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 regularized under the Government instructions and even as per the decision of this Court in State of Karnataka v. Uma Devi 2006 (4) SCC 1. 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 regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. 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."
(9) In view of above settled proposition of law, this Court is of the opinion that services rendered as work charge employee have to be added in their regular service for the purpose of determination of pension and for other retiral dues hence for this reason, the petition is allowed with a direction to the opposite party No.2 to add the services of the petitioners rendered as work charge employee in their regular service for the purpose of grant of retiral dues. Opposite party no.2 is further directed to provide all the benefits as admissible to the petitioners in terms of the Prem Singh (supra) within a period of four months from the date of production of certified copy of this order.
Order Date :- 20.4.2023
Saurabh Yadav/-
