Manisha Kumar vs State Of U.P. And 2 Others
2023 Latest Caselaw 8137 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 32
 

 
Case :- WRIT - A No. - 4821 of 2023
 

 
Petitioner :- Manisha Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Shalini Mishra,Sanjay Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Ravi Prakash Pandey
 

 
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 orders dated 22.11.2022 and 17.1.2023 whereby the respondents have rejected the claim of the petitioner for payment of gratuity and pension of late husband of the petitioner on the ground that husband of the petitioner was not working against the sanctioned post.

The husband of the petitioner was appointed on the post of Assistant Cost Accountant on probation basis on 18.06.1988 and he continued to work regularly. The husband of the petitioner expired on 11.06.2019. The husband of the petitioner was working regularly and regular service benefits including the revised pay scale and allowances and benefit of ACP were given by the respondents from time to time.

It is sad to note that petitioner's husband 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."

Therefore, in view of the law settled by the Supreme Court settled by the Supreme Court in the case of Prem Singh (Supra) and the period spent by the petitioner's husband and the fact that he was also getting all the service benefits at par with regular employees, the services of petitioner's husband are liable to be treated as regular service.

Learned counsel for petitioner further submits that he is entitled for pension under U.P. Development Authorities Centralized Services Retirement Benefit Rules, 2011 (Rules of 2011). Reference is made to Rule 2(jha), which reads as follows:

"(झ) "अर्हकारी सेवा" का तात्पर्य सेवा के किसी सदस्य की ऐसी सेवा से है जो निम्नलिखित शर्तों को पूरा करता होः-

(एक) सेवा किसी प्राधिकरण के अधीन अवश्य हो,

(दो) नियोजन मौलिक/नियमित/स्थायी अवश्य हो,

(तीन) सेवा का भुगतान किसी प्राधिकरण द्वारा अवश्य किया जाता हो,

(चार) किसी प्राधिकरण के अधीन गैर पेंशनयोग्य अधिष्ठान में अस्थायी या स्थानापन्न सेवा को छोड़कर सेवा की अवधि,

(पांच) किसी कार्य प्रभारित अधिष्ठान में सेवा की अवधि और,

(छह) आकस्मिक व्यय से भुगतान किये जाने वाले पद में सेवा की अवधि :

परन्तु यह कि सेवा के किसी सदस्य की सेवा क्षति पूर्ति उपदान के सिवाय पेंशन और उपदान के लिए तब तक अर्ह नहीं होगी जब तक कि उसने बीस वर्ष की सेवा पूरी न कर ली हो :

परन्तु, यह और कि किसी सुधारन्यास, प्राधिकरण, पालिका, बोर्ड, निगम, केन्द्र या राज्यसरकार के अधीन निरन्तर अस्थायी या स्थानापन्न सेवा की अवधि की गणना अर्हकारी सेवा के रूप में की जायेगी यदि उसी या किसी अन्य पद पर सेवा के किसी व्यवधान के बिना बाद में उसे स्थायी कर दिया जाय।

टिप्पणीः- यदि किसी पेंशन रहित अधिष्ठान, कार्य प्रभारित अधिष्ठान में या आकस्मिकता व्यय से भुगतान किये जाने वाले किसी पद पर की गयी सेवा किसी पेंशनयुक्त अधिष्ठान में अस्थायी सेवा की दो अवधि के बीच में या किसी पेंशनयुक्त अधिष्ठान में अस्थायी सेवा और स्थायी सेवा की अवधि के बीच में पड़ती हो तो वह सेवा का व्यवधान नहीं होगी।"

Further submission is that similar rules prevailed with regard to employees of the State Government which also provide non-counting of services performed on work charge basis. A three Judge's Bench of Supreme Court on reference in case of Prem Singh vs. State of U.P. and others, (2019) 10 SCC 516 considered their entitlement for pension. The relevant paragraphs of the said judgment reads:

"8. We first consider the provisions contained in the Uttar Pradesh Retirement Benefits Rules, 1961 (for short the 1961 Rules). Rule 3(8) of the 1961 Rules which contains the provisions in respect of qualifying service is extracted hereunder:

3. In these rules, unless is anything repugnant in the subject or context

(1)-(7) * * *

(8) Qualifying service means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations:

Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except

(i) periods of temporary or officiating service in a non-pensionable establishment;

(ii) periods of service in a work-charged establishment; and

(iii) periods of service in a post paid from contingencies shall also count as qualifying service.

Note. If service rendered in a non-pensionable establishment work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service.

9. Regulations 361, 368 and 370 of the Uttar Pradesh Civil Services Regulations are also relevant. They are extracted hereunder:

361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:

First The service must be under Government.

Second. The employment must be substantive and permanent.

These three conditions are fully explained in the following Regulations.

368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.

370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post shall qualify, except

(i) periods of temporary or officiating service in non-pensionable establishment;

(ii) periods of service in work-charged establishment; and

(iii) periods of service in a post paid from contingencies.

10. The qualifying service is the one which is in accordance with the provisions of Regulation 368 i.e. holding a substantive post on a permanent establishment. The proviso to Rule 3(8) clarify that continuous, temporary or officiating service followed without interruption by confirmation in the same or any other post is also included in the qualifying service except in the case of periods of temporary and officiating service in a non-pensionable establishment. The service in work-charged establishment and period of service in a post paid from contingencies shall also not count as qualifying service.

11. The Note appended to Rule 3(8) contains a provision that if the service is rendered in a non-pensionable establishment, work-charged establishment or in a post paid from contingencies, falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service. Thus, the Note contains a clear provision to count the qualifying service rendered in work-charged, contingency paid and non-pensionable establishment to be counted towards pensionable service, in the exigencies provided therein.

12. The provisions contained in Regulation 370 of the Civil Services Regulations excludes service in a non-pensionable establishment, work-charged establishment and in a post paid from contingencies from the purview of qualifying service. Under Regulation 361 of the Civil Services Regulations, the services must be under the Government and the employment must be substantive and permanent basis.

.........

30. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work-charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma v. State of U.P. [CA No. ______2019 arising out of SLP (C) No. 5775 of 2018] the appellants were allowed to cross efficiency bar, after ''8' years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak with effect from 15-9-1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs 200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs 205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularised time to time by different orders. However, the services of some of the appellants in few petitions/appeals have not been regularised even though they had served for several decades and ultimately reached the age of superannuation.

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.

32. In view of the Note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work-charged, contingencies or non-pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.

33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularisation had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.

34. As it would be unjust, illegal and impermissible to make aforesaid classification to make Rule 3(8) valid and non-discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non-pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.

35. In view of the Note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

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.

37. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."

He further submits that since similar rules for pensionary benefits exist in the respondent authority, therefore, the matter is squarely covered by the said judgment and petitioner herein should also be extended the benefit of the law settled in the case of Prem Singh (Supra).

Learned counsel for the respondent opposes the applicability of the judgment in the case of Prem Singh (Supra) on the ground that effect of the aforesaid judgment stands nullified because of the enactment of the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021.

So far as Act of 2021 is concerned, the same is applicable only upon the employees of State Government. There is no similar Act which is applicable with regard to employees of the Centralized Services of the Development Authority. Even otherwise Act of 2021 is already read down by this Court by judgment dated 17.02.2023 passed in Writ-A No.8968 of 2022 (Dr. Shyam Kumar Vs. State of U.P. and others). Relevant paragraphs of the same reads as:

"19. The very initial appointment letters show that petitioners were appointed against substantive posts on adhoc basis. Since their appointment is against a substantive post, hence, they are squarely covered even by Section 2 of the Act of 2021 as it stands. Further, in view of interpretation as given above to Section 2 of the Act of 2021 and it is held that the services performed in temporary or permanent nature need to be counted for pensionary purposes, 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 all the petitioners are are entitled for counting of services rendered by them as ad-hoc employees for pensionary purposes.

In view of above, all the impugned orders are set aside."

The present Rules of 2011 are parallel to the Rules of State Government which have been read down by the Supreme Court, being held in violation of Article 14 of the Constitution of India, as they create an artificial categorization of similarly situated employees. In the present case also an artificial classification is created as admittedly, as the employees on adhoc appointments perform the same duties as the regular employees and are throughout treated as the regular employee. Thus, the matter is squarely covered by the law settled in case of Prem Singh (Supra).

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 and the impugned orders dated 22.11.2022 and 17.1.2023 are set aside. Respondents are directed to pay regular pension and other retiral benefits to the petitioner. However, petitioner shall be entitled to past pensionary benefits for last three years only.

.

(Vivek Chaudhary,J.)

Order Date :- 21.3.2023

Arjun/-