Deep Narain Mishra And Others vs State Of U.P. Through Secy. Minor ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 
Case :- WRIT - A No. - 5308 of 2011
 
Petitioner :- Deep Narain Mishra And Others
 
Respondent :- State Of U.P. Through Secy. Minor Irrigation And Ground Wate
 
Counsel for Petitioner :- Nitin Kumar Mishra
 
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 declare the petitioners service for the pensionary benefit considering representation dated 05.05.2011, contained in Annexure No. 1 to this writ petition:

ii) a writ of mandamus or a writ, order of direction in the nature of mandamus commanding the opposite parties to declare the retiral benefits to the petitioners from the date of their initial appointment while working in the work charge establishment upto the date of their retirement alongwith the consequential benefits:

iii) a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties to dispose of the representation dated 05.05.2011 preferred by the petitioner numbers 1 and 2, contained in Annexure No. 1 to this writ petition;

iv) a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties to complete all the formalities and papers for providing pensionary benefit to the petitioners before the date of their superannuation;

(v) 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

vi) allow this writ petition with costs;"

(3) Learned counsel for the petitioners 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) 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. Nos.

Name

Father's Name

Date of Appointment

Date of Regularization

Date of retirement and Post

1.

Deep Narain Mishra

Deep Narain Mishra

29.10.1974

15.05.2004

31.12.2011

Chowkidar

2.

Chhote Lal

Suphal Gupta

15.12.1997

15.05.2004

30.06.2012

Field Assistant

3.

Chandra Pal Singh

Vijay Pal Singh

03.11.1980

15.05.2004

31.12.2012

Field Assistant

These particulars of the petitioners are not disputed by the State Government in their counter affidavit.

(8) Relevant 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 :- 21.4.2023

R.C.