Allahabad High Court
Ram Sewak Yadav vs State Of U.P. And 3 Others on 1 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:17407
Court No. - 7 Reserved
A.F.R.
Case :- WRIT - A No. - 9872 of 2023
Petitioner :- Ram Sewak Yadav
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Puneet Bhadauria
Counsel for Respondent :- C.S.C.,Saurabh Tiwari
Hon'ble J.J. Munir,J.
1. This writ petition has been instituted, praying that a mandamus be issued to the respondents to grant post retiral benefits to the petitioner, a Pump Attendant in the Water Supply Division of the Nagar Palika Parishad, District Etawah, after taking into consideration his ad hoc services.
2. According to the petitioner's case, he was 'appointed' as a Pump Attendant in the Water Supply Division of the Nagar Palika Parishad, Etawah on ad hoc basis w.e.f. 02.09.1988. His services were regularized on 26.03.2006. He retired from service on 31.07.2022, upon attaining the age of superannuation. It is the petitioner's case that upon retirement, he claimed his post retiral dues, which were verified by the Deputy Director, Local Fund Audit Department, U.P., Kanpur on 13.02.2023.
3. The grievance of the petitioner is that despite the said verification and his entitlement, he has not been paid his post retiral benefits. It is averred in Paragraph No.7 of the writ petition that the respondents have reckoned the petitioner's entitlement to post retiral benefits from the date of his regularization and not the date of his appointment. It is the petitioner's case that though he is entitled to receive pension and other retiral benefits, reckoning his entire length of service from the date of his initial appointment, the respondents have declined to grant him pension and other commensurate benefits, taking into consideration the entire length of his service; not just the period of service post regularization.
4. Respondent No.4, that is to say, the Executive Officer, Nagar Palika Parishad, Etawah has filed a counter affidavit and the stand taken is that the petitioner's right to receive pension would be governed by the Uttar Pradesh Nagar Palika Non Centralized Services Retirement Benefits Regulations, 1984 (for short, 'the Regulations of 1984'). It is averred that the petitioner was initially engaged as a daily-wager on 02.09.1988, which was not a pensionable post. His services were regularized on 26.03.2006 i.e. after 1st April, 2005. As such, the petitioner is not entitled to receive any retirement pension in accordance with Regulations 3 and 4 of the Regulations of 1984. It is also urged that the petitioner did not hold a 'pensionable post' as defined in Regulation 2(k) of the Regulations of 1984 nor has he rendered 'qualifying service' under Regulation 2(m) of the Regulations last mentioned.
5. The thrust of the fourth respondent's case, set up in the counter affidavit, is that the petitioner did not hold any substantive or pensionable post prior to 26.03.2006, when his services were regularized. His services rendered earlier were ad hoc in nature and not services rendered against any pensionable post. The petitioner's appointment to a post came after 01.04.2005, and, therefore, under Regulation 3(4) of the Regulations of 1984, the petitioner is not entitled to pension and gratuity by virtue of Regulation 13(2). It is also pleaded that by an order dated 13.02.2023 passed by the Deputy Director, Local Fund Audit Department, U.P., Kanpur, the petitioner has been rightly denied sanction of pension and gratuity in accordance with the provisions of Regulation 13(2) of the Regulations of 1984, an order that the petitioner has not challenged. The said order has become final and in the absence of a challenge to the said order, no mandamus can be issued to pay the petitioner his pension and gratuity.
6. Heard Mr. Puneet Bhadauria, learned Counsel for the petitioner and Mr. Saurabh Tiwari, learned Counsel appearing on behalf of the Nagar Palika Parishad, respondent Nos.3 and 4.
7. The relief in this writ petition, though rather vaguely worded as one seeking grant of post retiral benefits, after computing ad hoc services rendered by the petitioner, is one that seeks the grant of pension and gratuity upon reckoning the petitioner's period of engagement as an ad hoc employee together with the period of service post regularization. It is common ground between parties that the petitioner's entitlement to receive his pension and gratuity, in fact, all retirement benefits, are governed by the Regulations of 1984. This commonality of stand is evident upon a conjoint perusal of Paragraph No.15 of the writ petition and Paragraph No.9 of the counter affidavit. The respondent-Nagar Palika Parishad, go as far as saying that the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 (for short, 'the Act of 2021') will not apply to employees of the Nagar Palika Parishad, belonging to the Non-Centralized Services, for whom the Regulations of 1984 have been framed by the Nagar Palika Parishad in exercise of powers conferred by Section 297(2) and sub-Section (2) of Section 300 of the U.P. Municipalities Act, 1916 (for short, 'the Act of 1916').
8. It is the submission of Mr. Puneet Bhadauria, learned Counsel for the petitioner that the petitioner is entitled to reckon his services on ad hoc basis rendered in the establishment of the Nagar Palika Parishad together with his services rendered post regularization. To support the aforesaid submission of his, Mr. Bhadauria relies upon the interpretation of Section 2 of the Act of 2021, which he submits, has been read down by a learned Single Judge of this Court in Dr. Shyam Kumar v. State of U.P. and another, 2023 (3) ADJ 138 (LB). The issue before the learned Single Judge in Dr. Shyam Kumar (supra) arose in the context of different categories of employees, such as work-charged employees, daily-wagers, ad hoc employees and seasonal collection peon/ amin. All these various categories of employees were not regular employees in their various establishments, appointed on either temporary or permanent posts. All of them were engaged on one or the other kind of terms of employment, such as work-charged employees or daily-wagers or ad hoc with the common genre being that the appointment was dehors the Rules and not an appointment temporary or permanent on a sanctioned post in the establishment. They were regularized in service later on, but wanted their services for the period that they were not part of the establishment, in one capacity or the other, to be counted for the purpose of granting them post retiral benefits, treating it as qualifying service. Their claim was inspired by the decision of the Supreme Court in Prem Singh v. State of Uttar Pradesh and others, (2019) 10 SCC 516.
9. Now, Prem Singh (supra) was a case, where their Lordships of the Supreme Court were confronted with the validity of the Uttar Pradesh Retirement Benefit Rules, 1961 (for short, 'the Rules of 1961') and the Civil Services Regulations, which did not entitle payment of pension to such employees, who had been part of the work-charged establishment, but not temporary or permanent employees, appointed against a post in accordance with Rules. It was in the context of the said Rules that the Supreme Court held in Prem Singh, of which note has been taken by the learned Single Judge in Dr. Shyam Kumar:
"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."
10. After the decision of the Supreme Court in Prem Singh, the State Legislature of Uttar Pradesh enacted the Act of 2021, which is castigated to have attempted a brazen legislative overruling of the Supreme Court's judgment in Prem Singh, without removing the defect or the vices that were read down by the Supreme Court in Prem Singh to save the Rules of 1961 and the Civil Services Regulations from being struck down as ultra vires. It was in the context of the aforesaid fact that Section 2 of the Act of 2021 was read down by my esteemed Brother Vivek Chaudhary in Dr. Shyam Kumar in terms of the following remarks:
"6. ..........
Thus, the Supreme Court held that since the State Government has proceeded to take work on long term basis from the work charge employees, without there being a rational classification between the work performed by such work charge employees and the regular employees of the State Government, the Rules are required to be read down, as otherwise they would be arbitrary and, thus, gave benefit of the services rendered as work charge employees in counting the period of qualifying service for pensionary benefits.
7. Now, by the Act of 2021, the effect of the aforesaid judgment of the Supreme Court is attempted to be undone by the State Government. It has come up with Section 2, which provides:
"2. Notwithstanding anything contained in any rule, regulation or Government order for the purposes of entitlement of pension to all officer, "Qualifying Service" means the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post."
Thus, as per section 2 of the Act of 2021, if a person was not appointed on a temporary or permanent post as per service Rules, his services would not be qualifying service for the purposes of pension. Law with regard to the manner in which the Legislature can nullify or modify the impact of a judgment is settled since long. Suffice is to refer to the case of Indian Aluminium Co. and others vs. State of Kerala and others (1996) 7 SCC 637. In the said case, after considering the entire law on subject, the Supreme Court in Para 56 of the judgment enumerates the principles, which read:
"56. From a resume of the above decisions the following principles would emerge:
(1) The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions and require the court to give effect to them;
(2) The Constitution delineated delicate balance in the exercise of the sovereign power by the legislature, executive and judiciary;
(3) In a democracy governed by rule of law, the legislature exercises the power under Articles 245 and 246 and other companion articles read with the entries in the respective lists in the Seventh Schedule to make the law which includes power to amend the law.
(4) Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries. In order that rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free play in their joints so that the march of social progress and order remains unimpeded. The smooth balance built with delicacy must always be maintained;
(5) In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made;
(6) The court, therefore, needs to carefully scan the law to find out: (a) whether the vice pointed out by the court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution.
(7) The court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the legislature. Therefore, they are not encroachment on judicial power.
(8) In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the court or the direction given for recovery thereof.
(9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same."
8. The law long settled is that the Legislature can render judicial decision ineffective by enacting valid law on the topic within its legislative field by fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid.
9. Therefore, the question now before this Court is whether by bringing Act of 2021, the State Government has done away with the vice pointed out by the Supreme Court in case of Prem Singh (supra). In the said judgment, the Supreme Court found that the State Government has adopted exploitative labour practice by taking work of regular employees from work charge employees on long term basis without any rationale classification while refusing them benefits available to regular employees. Supreme Court specifically held that the State Government can not get involved in corrupt labour practices. On the aforesaid grounds, the Supreme Court read down the provisions of Rule 3(8) of the Rules of 1961 and struck down Regulation 370 of Civil Services Regulations and Para 669 of the Financial Handbook.
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."
11. It must be observed that the above remarks, though on principle ones that cover the case of all kind of employees, who were not part of the regular establishment, selected in accordance with the Rules, were made in the context of work-charged employees. But, the case of the daily-wager was also considered on the same touchstone by his Lordship and in regard to them it was observed:
"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'."
12. This Court would think that the doctrine of reading down may not be attracted at all in a case where the vires of the statute is not under challenge. Apparently, in Dr. Shyam Kumar, there was no challenge raised to the vires of the Act of 2021. This Court would think that the doctrine of reading down is a principle devised to save a statute, otherwise ultra vires and fit to be struck down. And, that too can be done if the words of the legislature are not so clear as not to admit of any ambiguity. If the legislative intent is unmistakable by its words, the constitutionality thereof upon a challenge raised has either to be upheld or the challenge sustained with a striking down of the offending portion. However, in cases where the statute is capable of being ascribed two or more meanings, reading down affords a less intrusive alternative to the striking down of a statute, which the Court finds otherwise must be. A statute in order to be struck down requires the person challenging its vires to specifically plead that case and come up with a prayer for the purpose. It is only in a case where that kind of a prayer is there, which the Court on hearing finds fit to be granted that the milder alternative to remedy the legislative flaw, may be resorted to by reading it down. If there is no prayer to strike down a statute or a provision thereof, we do not think that it can be resorted as a principle of statutory interpretation or construction, while judging rights of parties affected by the statute.
13. Nevertheless, this Court leaves this issue open in the matter, inasmuch as this case may be decided effectively on a different point altogether. The principle laid down by the Supreme Court in Prem Singh can be said to be negated by the Act of 2021, in cases where the said Act applies. In the present case, it is common ground between parties that the Act of 2021 does not apply; rather, the entitlement of the petitioner is governed by the Regulations of 1984. It is true that the Act of 2021 would not affect the petitioner's rights, but the decision in Prem Singh was rendered in the context of Rule 3(8) of the Rules of 1961 and Regulation 370 of the Civil Services Regulations of U.P. in case of work-charged employees, who had worked for a long period of time, holding that non-consideration of long service in the work-charged establishment would be discriminatory in view of the note appended to Rule 3(8) of the Rules of 1961, which says that 'If service rendered in a non-pensionable establishment, work-charged establish-ment 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'. This note appended to Rule 3(8) (supra) was regarded as creating a class without an intelligible differentia bearing nexus with the object of classification, and, therefore, discriminatory when compared to a case of continuous work-charged establishment. It was in the context of Rule 3(8) of the Rules of 1961 and Regulation 370 of the Civil Services Regulations of U.P. that continuous service in the work-charged establishment was held by their Lordships of the Supreme Court to entitle the employee to a reckoning of the work-charged period with service rendered in the regular establishment.
14. Regulation 2(m) of the Rules of 1984 reads:
"2. Definition.- .....
(m) "qualifying service" means service which qualified for pension, in accordance with the provisions of Article 368 of the Civil Service Regulations, as amended from time to time, excepting the following:
(i) periods of temporary or officiating service in a non-pensionable establishment under the Municipal Board concerned;
(ii) periods of service in a work-charged establishment; and
(iii) periods of service in a post paid from contingencies:
Provided that period of continued, temporary or officiating service under the Municipal Board concerned shall count as qualifying service if it is followed by confirmation on the same post or any other post without any interruption of 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."
15. Now, the definition of 'qualifying service' in Regulation 2(m) of the Regulations of 1984 is almost cast in the same terms as that in Rule 3(8) of the Rules of 1961, that were read down by the Supreme Court in Prem Singh to hold that services rendered in the work-charged establishment would be treated as 'qualifying service' under the last mentioned Rules for the purpose of grant of pension. The principle in Prem Singh, to reckon continuous service in the work-charged establishment as 'qualifying service' under Rule 3(8) of the Rules of 1961, has been extended in its application to continuous service of any kind, such as those rendered on daily-wages or ad hoc basis, followed by regularization, on the same post and in the same capacity. These principles have been adopted, particularly, in case of long retention in service on daily-wages or ad hoc basis or work-charged establishment, followed by regularization. Without reference to much authority on this point, it would suffice to refer to a decision of this Court in Kallu Ali v. State of U.P. and others, 2022 (4) AWC 3840, a case relating to an employee of a Development Authority, who had worked for a long time on daily-wages and then regularized in service. The issue had arisen in Kallu Ali (supra) in the context of his qualifying service for the purpose of entitlement to pension. After a copious review of authority on the point in Kallu Ali, it was held:
"28. The authorities referred to herein above and those of this Court clearly hold that if an employee has discharged duties whether temporarily or as a daily wager or on ad hoc basis on a post for which requirement was there and services of such an employee have come to be regularized on the said post or in the same capacity, the period spent before regularization should be considered and added to pensionable services. The courts have not approved the act and conduct of the employer to deny pension to its employee if he has rendered a number of substantial year of continuous service in an establishment leading to his / her regularization if such an establishment holds a pensionable service. The State Government has been taken to be a model employer and a State being a welfare State, the courts have shown serious concern in the event an employee who has spent all his life in the service of such establishment, stands denied pension on his attaining the age of superannuation and being retired as such."
16. The line of decisions noticed in Kallu Ali and the extension of the principle to various classes of employees, who had worked outside the regular establishment followed by regularization, asking their service rendered dehors the rules to be reckoned for the purpose of their qualifying service, entitling them to pension etc., are all based on the principle in Prem Singh. In the opinion of this Court, this line of decisions would pose some difficulty in cases of employees of establishments of the State Government, to which the Act of 2021 applies and which, as said earlier, virtually upturns the principles laid down by the Supreme Court in Prem Singh. This would, however, not be the case about establishments, to which the Act of 2021 does not apply. It has already been noticed that there is no issue in this case that the Act of 2021 does not apply to the respondents. What, therefore, follows is that the law laid down in Prem Singh would govern the rights of employees in the respondents' establishment. The decisions that have followed and extended the principle in Prem Singh to classes of employees functioning dehors the rules followed by regularization for the purpose of reckoning their qualifying service, entitling them to pension, would squarely apply to the petitioner's case.
17. In the opinion of this Court, therefore, the petitioner is entitled to the reckoning of his services rendered on ad hoc basis w.e.f. 02.09.1988 until his regularization in service on 26.03.2006 for the purpose of determining his post retiral benefits. The respondents have committed a manifest error in not taking into account the period of service rendered on ad hoc basis prior to regularization for the purpose of determining the petitioner's pension, gratuity and other post retiral benefits. These have to be determined taking into account the entire period of service, including that rendered on ad hoc basis prior to regularization.
18. In the result, this petition succeeds and is allowed with costs. A mandamus is issued to the respondents, ordering them to revise and redetermine the petitioner's post retiral benefits, including pension and gratuity, taking into account his services rendered on ad hoc basis from 02.09.1988 to 25.03.2006, followed by regularization. The necessary re-determination shall be carried out within a period of two months of the date of communication of a copy of this judgment to the respondents. Arrears on account of the revised post retiral benefits shall be paid to the petitioner within a month of the determination thereof by the respondents. In the event of delay in making the revised determination or the payment of arrears as per schedule indicated above, the petitioner would be entitled to simple interest at the rate of 6% per annum on the due arrears.
19. Let a copy of this order be communicated to the Principal Secretary, Local Bodies, Government of U.P., Lucknow, the Director, Local Bodies, Lucknow, the Chairman, Nagar Palika Parishad, Etawah, District Etawah and the Executive Officer, Nagar Palika Parishad, Etawah, District Etawah by the Registrar (Compliance).
Order Date :- 1.2.2024
Anoop
(J.J. Munir, J.)
