Allahabad High Court
Sunder Lal vs State Of U.P. And 2 Others on 17 August, 2023
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:165687
Court No. - 34
Case :- WRIT - A No. - 12950 of 2023
Petitioner :- Sunder Lal
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Manta Ram Gupta
Counsel for Respondent :- C.S.C.
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties.
2. The petitioner who was appointed initially on a temporary post as cleaner in Public Works Department on 05.06.1984 later on was assigned the work of Road Roller with effect from 31.05.2021. He continued as such until his services were regularised vide order dated 12.03.2008. The petitioner continued to discharge duties as Road Roller until he attained age of superannuation on 31.08.2019, however he has not been awarded with benefit of pension on the ground that his services came to be regularised after the old pension scheme stood scrapped.
3. It is argued by learned counsel for the petitioner that he has not been told that he would stand covered under the New Pension Scheme. It is further argued that the controversy is not more res integra in view of the decision of this Court and the Supreme Court in the case of Prem Singh vs. State of U.P. and others:2019 (10) SCC 516 and the later judgments of this Court following the same in the case of Kaushal Kishore Chaubey and others versus State of U.P. and others, Writ A No.5817 of 2020, delivered on 08.10.2021 and Awadhesh Kumar vs. State of U.P. and others in Writ A No.746 of 2023 recently delivered on 03.07.2023 and the judgment of the Supreme Court in the case of Udai Pratap Thakur and others vs. State of Bihar in SLP (C) No.10653 of 2018 decided on 28.04.2023 and State of Gujarat and others v. Talsibhai Dhanjibhai Patel passed in Special Leave to Appeal (C) No.- 1109 of 2022 decided on 18th February, 2022.
4. Besides the above in case of Udai Pratap Thakur (Supra), Supreme Court has come to deal with all these aspects including its earlier judgment in the case of Prem Singh (Supra) and has held this vide paragraph 6:
"6. It is required to be noted that the respective appellants were working as work charged under the work charged establishment in the State. Their services have been regularized under the Rules, 2013 and the follow up notification of the Finance Department vide Circular No. 10710 dated 17.10.2013. Rule 5(v) of the Circular reads as under:-
?5(v} Old pension rules shall be applied on these employees. The benefit pension & gratuity shall be counted by giving one year advantage against the five years services as work-charged employee. Even then if the minimum requirement of 10 years of service for pension is not met under the old rules, then minimum service shall be added to give advantage thereof.? Civil Appeal No. 3155 of 2023 6.1 Rule 5(v) of the Rules, 2013 as such can be said to be beneficial to such work charged employees, whose services have been regularized subsequently. As per Rule 5(v), even if the minimum requirement of 10 years of service (qualifying service) for pension is not met, in that case also, the service rendered as a work charged to be added for qualifying service for pension. Therefore, the efforts have been made by the State Government to see that after rendering services for number of years as work charged, and thereafter, their services have been regularized, they may not be denied the pension on the ground that they have not completed the qualifying service for pension. It also further provides that the benefits like pension & gratuity shall be counted by giving one year advantage against the five years services as work-charged employee. Therefore, Rule 5(v) as observed hereinabove, is beneficial also in favour of such work charged employees, whose services have been regularized subsequently, and they may not be deprived of the pension on the ground that they have not completed the qualifying service for pension. The denying of pension after rendering service as work charged for number of years on the ground that they have not completed the qualifying service can be said to be Civil Appeal No. 3155 of 2023 unfair and illegal and can be said to be exploitation.
Therefore, to make such work charged employees eligible for pension, Rule 5(v) provides that if any work charged employee, whose services have been regularized under the Rules, 2013, is short of qualifying service, to the extent of such shortage of qualifying service, the services rendered as work charged to be counted for the purpose of qualifying service for pension. Under the circumstances, the Larger Bench of the High Court has rightly observed and held that for the purpose of pension, only such period from the work charged tenure would be added for making the service of an employee, who has been regularized to qualify him for pension.
6.2 Insofar as the submission on behalf of the appellants that their entire services rendered as work charged should be considered and/or counted for the purpose of pension / quantum of pension is concerned, the same cannot be accepted. If the same is accepted, in that case, it would tantamount to regularizing their services from the initial appointment as work charged. As per the catena of decisions of this Court, there is always a difference and distinction between a regular employee appointed on a substantive post and a work charged employee working under work charged establishment.
Civil Appeal No. 3155 of 2023 The work charged employees are not appointed on a substantive post. They are not appointed after due process of selection and as per the recruitment rules. Therefore, the services rendered as work charged cannot be counted for the purpose of pension / quantum of pension. However, at the same time, after rendering of service as work charged for number of years and thereafter when their services have been regularized, they cannot be denied the pension on the ground that they have not completed the qualifying service for pension. That is why, the service rendered as work charged is to be counted and/or considered for the purpose of qualifying service for pension, which is provided under Rule 5(v) of the Rules, 2013.
6.3 Now, insofar as the reliance placed upon the decision of this Court in the case of Prem Singh (supra) by the learned counsel appearing on behalf of the appellants is concerned, the reliance placed upon the said decision is absolutely misplaced. In the said case, this Court was considering the validity of Rule 3(8) of the U.P. Retirement Benefit Rules, 1961, under which the entire service rendered as work charged was not to be counted for qualifying service for pension. To that, this Court has observed and held that after rendering service as work Civil Appeal No. 3155 of 2023 charged for number of years in the Government establishment / department, denying them the pension on the ground that they have not completed the qualifying service for pension would be unjust, arbitrary and illegal. Therefore, this Court has observed and held that their services rendered as work charged shall be considered / counted for qualifying service. This Court has not observed and held that the entire service rendered as work charged shall be considered / counted for the quantum of pension / pension. The decision of this Court in the case of Prem Singh (supra), therefore, would be restricted to the counting of service rendered as work charged for qualifying service for pension."
(Emphasis added)
5. Learned Standing Counsel on the contrary argues that this matter needs consideration by the competent authority in the first instance.
6. In view of the above, this petition stands disposed of with direction to the competent authority that the claim of the petitioner may be considered in the light of the judgment of the Supreme Court as mentioned above and shall also be disposed of by the competent authority within a period of two months of production of certified coy of this order.
Order Date :- 17.8.2023
Deepika
