Allahabad High Court
Shamsheer Ali And 15 Others vs State Of U.P. And 3 Others on 24 August, 2023
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
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Neutral Citation No. - 2023:AHC:170786
Court No. - 34
Case :- WRIT - A No. - 14049 of 2023
Petitioner :- Shamsheer Ali And 15 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Sunil Kumar Tiwari
Counsel for Respondent :- CSC
Hon'ble Ajit Kumar,J.
1. Heard Sri Sunil Kumar Tiwari, learned counsel for the petitioners and learned Standing Counsel for the State respondents.
2. The petitioners, who were initially appointed on daily wage basis/ work charged employees in Public Works Department, Prayagraj and later on their services were regularized, now want period rendered as work charged employees to be counted to make retiral dues to make admissible old pension scheme.
3. Petitioners, have thus sought for a direction to the respondents to include services rendered as work charged employee/ daily wage basis for the purposes of calculating qualifying service for determination of pension. Learned counsel for the petitioners has relied upon a judgement of the Apex Court in the case of Prem Singh v. State of Uttar Pradesh and others (2019) 10 SCC 516.
4. Learned Standing Counsel submits that the petitioners are not entitled to get added the services rendered as daily wagers/ work charged employees to their permanent service for pensionary and other benefits in view of the coming into force of Uttar Pradesh Qualifying Service For Pension Validation Act, 2021 (U.P. Act No.- 1 of 2021), whereby Uttar Pradesh Retirement Benefit Rules, 1961 have now been amended with retrospective effect.
5. Grounds taken by the respondents for denying the benefit of service rendered as work charged employee/ daily wage basis in the department is not sustainable in law in view of the judgement of the Apex Court in the case of Prem Singh (supra) recently following in Awadhesh Kumar Srivastava v. State of U.P. and four others (Writ A No.746 of 2023) delivered on 03.07.2023 in which vide paragraph 46 it has been held thus:
"46. In such view of the fact, this Court finds that U.P. Act No.1 of 2021 does not qualify the three tests laid down by the Apex Court in the judgements referred above to negate the benefit of the judgement of the Apex Court in Prem Singh's case (supra)."
6. Thus, this Court is of the view that the services rendered as a daily wager or work charged employee are liable to be added to their regular service for the purpose of determination of pension and other retiral dues in the light of the judgment in Uday Pratap Thakur and another v. State of Bihar: AIR 2023 SC 2971, wherein vide para 6 the Supreme Court has also dealt that the judgment of Prem Singh (supra) and has observed that minimum period that may be required to make a regularized employee entitled for pension can be taken into account towards qualifying service. Para 6 of the judgment runs as under:
"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.
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 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. 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 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)
7. Accordingly, the writ petition succeeds and is allowed with a direction to the respondent No.- 4, namely, Executive Engineer, Prantiya Khand, Public Work Department, Prayagraj to add services of the petitioners rendered as work charged employees in their regular service for grant of retiral dues including pension.
8. Appropriate order shall be passed within three weeks from the date of production of certified copy of this order.
Order Date :- 24.8.2023
Atmesh
