Allahabad High Court
Jagat Pratap Singh And Ors. vs State Of U.P.Through Secy. Minor ... on 5 May, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 3
Case :- WRIT - A No. - 9318 of 2011
Petitioner :- Jagat Pratap Singh And Ors.
Respondent :- State Of U.P.Through Secy. Minor Irrigation And Ground And Anr
Counsel for Petitioner :- Nitin Kumar Mishra,Kamlesh Kumar
Counsel for Respondent :- C.S.C
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for the petitioners and learned Standing Counsel for the State.
Present writ petition is filed by the petitioners for a mandamus commanding the respondents to pay all the post retiral benefits including gratuity to petitioners after counting their entire services rendered by them as work charge employee for the purposes of qualifying service for retirement benefit.
The petitioners were appointed in the work charge department at different places, details of which is given in the following table:
S.no.
Name
Father's Name
Date of Appointment and Post
Date of Regularization and Post
Date of Retirement
Jagat Pratap Singh
Sri Shiv Shanker Singh
08.05.1979
T.C.S.A.
10.03.2004
Data Processor
11.12.2011
Kailash Lal
Sri Katwaron Prasad
03.06.1976
Survey Khalasi
15.04.2004
Field Assistant
13.12.2013
Mohd. Ali
Sri Ajhar Ali
12.11.1976
Gauze Reader
15.04.2004
Field Assistant
13.12.2013
Kamta Sharan Awasthi
Sri GAjraj Awasthi
13.08.1982
Data Processor
15.06.2011
SFT
in year 2013
Som Nath Mishra
Late Shambhu Nath Mishra
02.05.1980
G.R.
15.06.2011
Data Processor
in year 2018
Dev Narain Tiwari
Late Ram Vilas Tiwari
20.12.1981
Field Assistant
15.06.2011
Field Assistant
in year 2018
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 (Dr. Shyam Kumar Vs. State of U.P.), 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 work charge employees has been dealt with in detail by this Court. Relevant portion of the said judgment reads:
"10. It is the duty of State to create new temporary or permanent posts as per its needs and make appointments on the same. Law also permits State to appoint daily wagers or work charge employees, but only when the work is for short period or is in a work charge establishment for fixed duration. Law does not permit the State to take work for long period, extending even for the entire working life of a person, on temporary or work charge basis. In such cases, it is the duty of State to create new posts and make appointments, giving all benefits of regular employees. Otherwise, State would be found to be adopting exploitative labour practice. This is the vice pointed out by the Supreme Court in Prem Singh's case (supra), and instead of removing the same, the State by Section 2 of the Act of 2021 has extended the sphere of its illegality. By Section 2 of the Act of 2021, it desires to take benefit of its own failure of creating posts in time and making appointments on the same, by not counting the said period of such service for pensionary benefits. State still fails to explain the rationale on the basis of which it has created this new classification and the manner in which, by the amended provision, it has removed the irrationality.
In case Section 2 of the Act of 2021 is given a literal meaning it would mean that services rendered by a person on a temporary or permanent post alone can be counted for pension. The same would again be an exploitative device and labour malpractice, as by this, the State Government is again attempting to use persons to work for it on long term basis, just like regular employees, without giving them benefits they are entitled to as regular employees. The very vice pointed by the Supreme Court in the judgment of Prem Singh (supra) with regard to work charge employees is, in fact, now made applicable to even larger number of employees and extended to daily wagers and other persons not working on a temporary or a permanent post including, work charge employees.
In case of V. Sukumaran vs. State of Kerala (2020) 8 SCC 106, the Supreme Court held:
"22. We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind i.e. to facilitate a retired government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities."Thus, again to save Section 2 of the Act of 2021 from the vice/arbitrariness, in the spirit of the judgment of Prem Singh (supra), the word 'post' is required to be diluted to save it from arbitrariness and hence, 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'.
11. The other case laws cited by learned counsel for the petitioners as well as by learned Standing Counsel, as noted above, are not applicable in the facts and circumstances of the present cases, as in none of the above cited cases, interpretation of Section 2 of the Act of 2021 is considered.
12. In the light of aforesaid, since Section 2 of the Act of 2021 also suffers from the vice pointed out by the Supreme Court in the case of Prem Singh (supra), hence, to be brought out of arbitrariness, it is read down and services rendered on temporary or permanent post is read as services rendered by a government employee, be it of temporary or permanent nature. Therefore, it is held that the petitioners are also entitled for the benefit of the judgment of Prem Singh (supra). All the impugned orders are set aside. "
Since grievance of the petitioners 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 petitioners in the same terms. Thus, the petitioners are held entitled for counting of services rendered by them prior to their regularization, subject to verification of dates given by the petitioners by the department.
Accordingly, the writ petition is allowed. However, petitioners shall be entitled to past pensionary benefits for last three years only.
[Vivek Chaudhary J.]
Order Date :- 5.5.2023
-Amit K-
