Allahabad High Court
Anvar Begh vs State Of U.P. Thru. Prin. Secy., ... on 3 March, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?
Court No. - 5
Case :- WRIT - A No. - 2087 of 2023
Petitioner :- Anvar Begh
Respondent :- State Of U.P. Thru. Prin. Secy., Public Works Deptt. Lko. And 2 Others
Counsel for Petitioner :- Rajit Ram
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State.
Petitioner has approached this Court praying for a mandamus commanding the respondents to consider the petitioner's claim for providing pension under Old Pension Scheme after counting the entire length of service rendered by him under work charge establishment (since 01.11.1992 to 09.07.2007) for the purposes of qualifying service and pay the same from the due date.
The petitioner was appointed on 01.04.1982 on the post of Cleaner in Public Works Department, Barabanki on Daily Wage basis and was taken in Work Charge establishment w.e.f. 22.03.1983. The petitioner retired on 28.02.2023 after attaining the age of superannuation.
It is sad to note that petitioner's services were never regularized despite his having spent the entire working life with the department. During his service period, petitioner was also provided all the service benefits as provided to the regular employees. Thus, for all practical purposes, petitioner was treated as regular employee.
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.
.....
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.?
Similar controversy has already been adjudicated by this Court by means of judgment and order dated 17.2.2023 passed in a bunch of writ petitions, leading one is Writ-A No.8968 of 2022, wherein issue relating to interpretation and application of Section 2 of the Act of 2021 for counting of qualifying service for the purpose of pension with regard to daily wage employees 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."
....
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 17.2.2023 shall also be made available to the present petitioner in the same terms.
Accordingly, the writ petition is allowed.
Order Date :- 3.3.2023
Arti/-
[Vivek Chaudhary,J.]
