Allahabad High Court
Vimla Devi vs State Of U.P. Thru Secy. And 3 ... on 16 March, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
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Court No. - 32
Case :- WRIT - A No. - 35063 of 2014
Petitioner :- Vimla Devi
Respondent :- State Of U.P. Thru Secy. And 3 Others
Counsel for Petitioner :- J.P.N. Singh
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State.
Present writ petition is filed by the petitioner challenging the order dated 03.05.2014 whereby the respondents have denied the benefit of entire service rendered by husband of the petitioner as Collection Amin for the purposes of family pension.
Learned counsel for the petitioner submits that petitioner's husband late Satanand was working as temporary Collection Amin in Rasara Tehsil, District Ballia under respondent no.4. The husband of petitioner was appointed as Collection Amin in the year 1976 and worked till the year 1981. After a break of few months, petitioner's husband was again permitted to work as temporary Collection Amin in the year 1982 on a substantive post and he performed his duties without break till 06.03.1999 when he had gone missing. On application of petitioner, the Civil Judge (Junior Division) West, Ballia vide order dated 03.04.2013 declared husband of petitioner as 'Civil Dead'. Learned counsel for the petitioner submits that husband of the petitioner has served in the department from 1976 to 1981 with some artificial break and thereafter from the year 1982 to 05.03.1999, as such he has completed nearly 23 years service in the department with more than 17 years service without break, however, his services has not been regularized in spite of the fact that respondent authority has paid him month to month salary along with all consequential benefits similar to regular employees.
It is sad to note that State has continued to take work from petitioner's husband until his disappearance but never regularized his service. 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."
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 qualifying service for the purpose of pension with regard to seasonal collection amin/peon has been dealt with in detail by this Court. Relevant portion of the said judgment reads:
"21. Law regarding counting of the period of services rendered earlier as Seasonal Collection Peon/Collection Amin for calculation of post-retiral benefits is long settled by a large number of judgments. Suffice would be to refer to the judgment a Division Bench judgment of this Court in the case of Board of Revenue through its Chairman: The District Magistrate and UP-Zila Adhikari vs. Prasidh Narain Upadhyay, 2006 (5) AWC 5194 (DB). The said judgment is followed till date. Furthermore, Fundamental Rule 56 as it stood amended by the U.P. Amendment Act No. 24 of 1975 allows for retirement of a temporary employee and in clause (e) of the Fundamental Rule 56 it is provided that retiral benefits shall be made available to every employee who retires under this Rule. Even after the coming into force of the Act of 2021, since, their appointment is against a post, hence, they are squarely covered even by the original Section 2 of the Act of 2021. Further, in view of interpretation as given above to Section 2 of the Act of 2021 where it is held that the work on temporary or permanent post needs to be read as work taken from a person on a position, be it temporary or permanent, otherwise, it again would be hit by the judgment of the Supreme Court in case of Prem Singh (supra), thus, there can be no dispute that they are entitled for pension by counting in services rendered by them as non-regular employees.
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."
Accordingly, the writ petition is allowed and order dated 03.05.2014 is set aside.
The respondents are directed to pay pensionary benefits to the petitioner by counting her husband's services from the date of his initial appointment as per the law. However, petitioner shall be paid back family pension for the last three years only.
Order Date :- 16.3.2023
Arti/-
[Vivek Chaudhary,J.]
