Ravindra Kumar Gupta vs State Of U.P. And 2 Others
2023 Latest Caselaw 27756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:195045
 
Court No. - 34
 

 
Case :- WRIT - A No. - 1167 of 2022
 
Petitioner :- Ravindra Kumar Gupta
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjay Kumar Om,Praveen Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajit Kumar,J.

1. Petitioner who has worked initially as Mate on temporary basis/daily wage basis in the year 1984 and was recorded as permanent muster roll w.e.f. 30.06.1989. His services came to be reguarlised in the year 2006 as Junior Engineer (Mechanical) by the Public Works Department. The petitioner got retired on 30.06.2021, however, he was not given any benefit of the period of temporary service rendered by him and consequently, no pension was allowed.

2. Learned counsel for the petitioner on the last date placed a Division Bench judgment of this Court passed in Writ-A No.25145 of 2018 (Shiv Lal vs. State of UP & ors) which was disposed of with the direction to decide the matter in light ofSupreme Court decision dated 02.09.2019 rendered in Civil Appeal No. 6798 of 2019 (Prem Singh vs. State of U.P. and others). Accordingly, this Court passed following orders on 05.09.2023:

"1. Petitioner claims pension and gratuity as post retirement dues for he having retired from service of the respondent-Public Works Department in the year 2018 upon attaining the age of superannuation.

2. Let a proper affidavit by filed in the matter on behalf of the respondents on or before the next date fixed as to why the pension and gratuity amount have remained unpaid to the petitioner till date and why this petition may not be allowed in terms of the order passed by the Division Bench of this Court in Writ A No.25145 of 2018 (Shiv Lal vs. State of U.P. and 2 Others).

3. List this case on 27.09.2023 amongst top ten cases.

4. It is made clear that if proper affidavit is not filed on or before the next date fixed, the Court will be compelled to take serious view of the matter. "

3. Today, learned Standing counsel submits that some more time may be allowed as per instructions received by him.

4. In the considered view of the Court, if the controversy is no more res integra in view of the judgment of a Co-ordinate Bench of this Court in the case of Awadhesh Kuamr Srivastava vs. State of UP, in which all previous judgments have been considered including the judgment of Prem Singh (supra), still further I find that in Udai Pratap Thakur & ors vs. State of Bihar in SLP (C) No.10653 of 2018 decided on 28.04.2023, the Apex Court has very categorically held that in the matters of temporary employment, the period to be counted towards qualifying service should be in light of judgment of the Supreme Court in the Prem Singh (supra) case to the extent it fall short for an employee to attain qualifying service for the purposes of payment of pension. Vide para 6, the Apex Court has held thus:

"6. It is required to be noted that the respective appellants were working as work charged under the work charged establishment in the State. Their services have been regularized under the Rules, 2013 and the follow up notification of the Finance Department vide Circular No. 10710 dated 17.10.2013. Rule 5(v) of the Circular reads as under:-

5(v) Old pension rules shall be applied on these employees. The benefit pension & gratuity shall be counted by giving one year advantage against the five years services as work-charged employee. Even then if the minimum requirement of 10 years of service for pension is not met under the old rules, then minimum service shall be added to give advantage thereof.? Civil Appeal No. 3155 of 2023

6.1 Rule 5(v) of the Rules, 2013 as such can be said to be beneficial to such work charged employees, whose services have been regularized subsequently. As per Rule 5(v), even if the minimum requirement of 10 years of service (qualifying service) for pension is not met, in that case also, the service rendered as a work charged to be added for qualifying service for pension. Therefore, the efforts have been made by the State Government to see that after rendering services for number of years as work charged, and thereafter, their services have been regularized, they may not be denied the pension on the ground that they have not completed the qualifying service for pension. It also further provides that the benefits like pension & gratuity shall be counted by giving one year advantage against the five years services as work-charged employee. Therefore, Rule 5(v) as observed hereinabove, is beneficial also in favour of such work charged employees, whose services have been regularized subsequently, and they may not be deprived of the pension on the ground that they have not completed the qualifying service for pension. The denying of pension after rendering service as work charged for number of years on the ground that they have not completed the qualifying service can be said to be Civil Appeal No. 3155 of 2023 unfair and illegal and can be said to be exploitation.

Therefore, to make such work charged employees eligible for pension, Rule 5(v) provides that if any work charged employee, whose services have been regularized under the Rules, 2013, is short of qualifying service, to the extent of such shortage of qualifying service, the services rendered as work charged to be counted for the purpose of qualifying service for pension. Under the circumstances, the Larger Bench of the High Court has rightly observed and held that for the purpose of pension, only such period from the work charged tenure would be added for making the service of an employee, who has been regularized to qualify him for pension.

6.2 Insofar as the submission on behalf of the appellants that their entire services rendered as work charged should be considered and/or counted for the purpose of pension / quantum of pension is concerned, the same cannot be accepted. If the same is accepted, in that case, it would tantamount to regularizing their services from the initial appointment as work charged. As per the catena of decisions of this Court, there is always a difference and distinction between a regular employee appointed on a substantive post and a work charged employee working under work charged establishment.

Civil Appeal No. 3155 of 2023 The work charged employees are not appointed on a substantive post. They are not appointed after due process of selection and as per the recruitment rules. Therefore, the services rendered as work charged cannot be counted for the purpose of pension / quantum of pension. However, at the same time, after rendering of service as work charged for number of years and thereafter when their services have been regularized, they cannot be denied the pension on the ground that they have not completed the qualifying service for pension. That is why, the service rendered as work charged is to be counted and/or considered for the purpose of qualifying service for pension, which is provided under Rule 5(v) of the Rules, 2013.

6.3 Now, insofar as the reliance placed upon the decision of this Court in the case of Prem Singh (supra) by the learned counsel appearing on behalf of the appellants is concerned, the reliance placed upon the said decision is absolutely misplaced. In the said case, this Court was considering the validity of Rule 3(8) of the U.P. Retirement Benefit Rules, 1961, under which the entire service rendered as work charged was not to be counted for qualifying service for pension. To that, this Court has observed and held that after rendering service as work Civil Appeal No. 3155 of 2023 charged for number of years in the Government establishment / department, denying them the pension on the ground that they have not completed the qualifying service for pension would be unjust, arbitrary and illegal. Therefore, this Court has observed and held that their services rendered as work charged shall be considered / counted for qualifying service. This Court has not observed and held that the entire service rendered as work charged shall be considered / counted for the quantum of pension / pension. The decision of this Court in the case of Prem Singh (supra), therefore, would be restricted to the counting of service rendered as work charged for qualifying service for pension."

(Emphasis added)

5. Admittedly, petitioner's services have been regularised taking into account previous services rendered, may be on temporary or daily wage basis, since 1984. In case of State of Gujrat & ors vs. Talsibhai Dhanjibhai Patel passed in Special Leave to Appeal (C) No.1109 o 2022 decided on 18th February, 2022, the Supreme Court has held that those who have rendered thirty years of service ion the government department cannot be denied pensionary benefits/retirement dues merely because they have continued on temporary basis or daily wage basis.

6. In view of the above, therefore, since petitioner has rendered services with the respondent department since 1984 on the basis of which his services came to be reguarlised in 2006, his claim is liable to be considered for benefit to be conferred to the old pension scheme. In light of para 46 of the judgment in Awadhesh Kumar Srivastava (supra), by a Co-ordinate Bench, Amending Act No.1 of 2021, in so far as retirement Retirement Rules, 1961 are concerned, will not come in way. Para 46 of the said judgment reads as under:

"46. In such view of the fact, this Court finds that U.P. Act No.1 of 2021 does not qualify the three tests laid down by the Apex Court in the judgements referred above to negate the benefit of the judgement of the Apex Court in Prem Singh's case (supra)."

7. In view of the above legal position and considering the facts and circumstances of the present case, in my considered view, petitioner's claim for pensionary benefits under the Old Pension Scheme deserves consideration. Accordingly, this petition stands disposed of with the direction that the claim of the petitioner for benefit under the old pension scheme, taking into account his temporary period of service as 'Mate' with the Public Works Department for the purposes of qualifying service, his claim may be decided. Petitioner is, accordingly, permitted to move appropriate application afresh within a period of four weeks from today and in the event petitioner makes any such application for consideration of his claim under the old pension scheme, same shall be disposed of in light of what has been observed hereinabove and in light of the judgment of the Supreme Court as well as judgment of this Court , as expeditiously as possible, preferably within a period of two months from the date of production of certified copy of this order.

Order Date :- 10.10.2023

P Kesari