Allahabad High Court
Sushila Devi vs State Of U.P. Thru. The Secy. ... on 2 March, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- WRIT - A No. - 3170 of 2022
Petitioner :- Sushila Devi
Respondent :- State Of U.P. Thru. The Secy. Forest U.P. Govt. Civil Secrtt. Lko. And 3 Others
Counsel for Petitioner :- Dileep Kumar Pathak,Krishna Madhav Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for petitioner and learned Standing Counsel for the State.
Present petition is filed by the petitioner challenging the order dated 24.02.2022 passed by the opposite party no. 3 whereby the representation of the petitioner for regularization of her husband is rejected. The petitioner has also prayed for pension and other retiral benefits to the petitioner in accordance with law.
Facts of the case are that husband of the petitioner was appointed as a Class-IV employee in the year 1973 and he continued to work throughout. The husband of the petitioner was also granted minimum of the pay scale w.e.f. 28.7.2004 along with other employees. The husband of the petitioner retired from the service on 31.7.2012 but his case for regularization till then was not considered. Now the same has also been rejected by the impugned order on the ground that his case could not be considered as all the posts were required to be filled through direct recruitment.
It is sad to note that the respondents have continued to take work from the petitioner throughout his entire working life and but never regularised his services. The Supreme Court has repeatedly held that the State Government cannot be involved in exploitative labour practice. It cannot engage persons on temporary basis for long periods refusing to grant them benefits of regular employees. Suffice would be to refer to the judgment in case of Prem Singh vs. State of U.P. and others, (2019) 10 SCC 516. The Supreme Court in the said judgment, held:
"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 regularised. 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.
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36. There are some of the employees who have not been regularised 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 regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . 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 regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. 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."
Learned counsel for the petitioner submits that the petitioner is entitled to receive all pensionary benefits as has already been held in the judgment and order dated 17.02.2023 passed in a bunch of writ petitions, leading one is Writ-A No.8968 of 2022 (Dr. Shyam Kumar Vs. State of U.P. & another), wherein issue relating to interpretation and application of Section 2 of the Act of 2021 for counting qualifying service for the purpose of pension with regard to daily wager has been dealt with in detail by this Court. Relevant portion of the said judgment reads:
"....14. It is settled since long that daily wager employees are entitled to pensionary benefits counting their services from the date of their initial appointment and not from the date of their regularization. Suffice would be to refer to the judgment in cases of Hari Shankar Asopa vs. State of U.P. and another, 1989(1) UPLBEC 501; Yashwant Hari Katakkar vs. Union of India and others, 1996 (7) SCC 113; and Prem Singh (supra). In fact earlier they were covered by Rule 2 of U.P. Retirement Benefit Rules, 1961 and other Civil Services Regulations.
15. Now learned Standing Counsel submits that in view of Section 2 of the Act of 2021, since petitioners were not appointed on a temporary or permanent post initially, therefore, benefit of said services cannot be granted to them.
16. The said aspect of the matter is already discussed above at length. Section 2 of the Act of 2021 is already read down and it is held that the word 'post' used in Section 2 of the Act of 2021, be it temporary or permanent, has to be read down as 'services rendered by a government employee, be it of temporary or permanent nature'.
17. In view thereof, the petitioners are also covered by the aforesaid interpretation of Section 2 of the Act of 2021 as given in the present judgment. Orders impugned in different writ petitions on the grounds stated above are covered by the earlier judgments as well as by findings given above in this judgment and, hence, petitioners are held to be entitled for counting of their services rendered as daily wagers for pensionary benefits. All impugned orders are set aside.
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22. In the aforesaid facts and circumstances of the case, all the orders impugned in the writ petitions are passed either on the ground that they are covered by the Ordinance/Act of 2021 or they were not party in case of Prem Singh (supra) or without considering the judgment of Prem Singh (supra) and hence, the same are squarely covered by the finding given above. Therefore, the impugned orders cannot stand and are set aside. However, petitioners shall be entitled to past pensionary benefits for last three years only.
23. All the writ petitions are allowed."
Since grievance of the petitioner in the present petition is similar to one which has already been adjudicated by this Court in the aforesaid case, the benefit of the aforesaid judgment and order dated 17.02.2023 shall also be made available to the present petitioner in the same terms, as expeditiously
Accordingly, the writ petition is allowed and the impugned order dated 24.02.2022 is hereby set aside.
However, petitioner shall be entitled to past pensionary benefits for last three years only.
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(Vivek Chaudhary, J.)
Order Date :- 2.3.2023
Arjun/-
