Allahabad High Court
Gorakh Singh vs State Of U.P. And 4 Others on 1 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:77984
Court No. - 34 Reserved
A.F.R.
Case :- WRIT - A No. - 12955 of 2023
Petitioner :- Gorakh Singh
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Sandeep Maniji Bakhshi
Counsel for Respondent :- CSC,Vijay Kumar Dubey
Hon'ble J.J. Munir,J.
1. This writ petition has been instituted praying that a mandamus be issued to the Executive Officer, Nagar Panchayat, Magahar, District Sant Kabir Nagar to grant the petitioner his pension and other post retiral benefits.
2. The petitioner was appointed a Tax Moharrir on 01.04.1989 by the Nagar Panchayat, Magahar, District Sant Kabir Nagar (for short, 'the Nagar Panchayat'), when it was a notified area, on a daily-wage of Rs.30/- per day. The petitioner joined with the Nagar Panchayat, the day he was appointed. The case of the petitioner is that, according to the Government Orders dated 08.01.1992 and 03.02.1992, the petitioner was entitled to be regularized. He draws the Court's attention to the Government Order dated 08.01.1992, which provides that employees working on daily-wages, who have been appointed before 11.10.1989 and completed three years of continuous service with 240 days in each calendar year, are entitled to be regularized in service.
3. It is the petitioner's case that the Government Order aforesaid provides that those who have not completed three years' service, their services will not be terminated and they would be absorved in future as regular employees. The petitioner asserts that he has been in continuous employ of the Nagar Panchayat from the date of his appointment, to wit, 01.04.1989, until his retirement. Thus, the petitioner was entitled to be regularized pursuant to the Government Orders last mentioned, but was not. He represented his case with the Nagar Panchayat seeking regularization, but was paid no heed.
4. The petitioner points out that there were a number of permanent posts lying vacant with the Nagar Panchayat, but the petitioner, whenever he raised his claim to be regularized in service, was given verbal assurance and nothing more. He was told that he would be accommodated in future as there was no permanent vacancy available in the establishment of the Nagar Panchayat. Two persons, however, were appointed in the Nagar Panchayat establishment by the then Officer-in-Charge, Nagar Panchayat, Basant Ram, the Sub-Divisional Officer, Khalilabad, then part of District Basti. The aforesaid illegal appointment, according to the petitioner, was made because the appointee was a true brother of one Ram Poojan Dubey, an employee of the Nagar Panchayat and other man appointed, was a true brother of the then Officer-in-Charge of the Nagar Panchayat, Basant Ram. Basant Ram, being the Appointing Authority, made both these illegal appointments. These appointments were to the petitioner's prejudice, whose claim for regularization was pending without consideration. It is pointed out that the services of the two men, who were inducted illegally, to wit, Jai Shankar Dubey and Ram Kewal, have been regularized as Clerks in the establishment of the Nagar Panchayat w.e.f. 25.05.1992.
5. The petitioner and other similarly circumstanced employees represented against the above illegal appointments and regularization of the aforesaid employees, which led the Commissioner, Basti Division, Basti to address a letter to the Director, Local Bodies, bringing to the Director's notice the illegal appointments made in the Nagar Panchayat. It was reported that the appointments of Jai Shankar Dubey and Ram Kewal were contrary to Government Orders. There were various other illegalities that had fouled these appointments. Nothing in consequence happened and the petitioner represented again to the Commissioner, Basti Division to consider his case for regularization. The Commissioner found the petitioner's claim to be worthy, but nothing came of it.
6. In the circumstances, the petitioner filed Civil Misc. Writ Petition No.279 of 2000, claiming relief of regularization in service, based on the Government Orders introducing a regularization scheme. The aforesaid writ petition was dismissed by a learned Single Judge of this Court vide order dated 22.02.2011. The petitioner carried a special appeal to the Division Bench, being Special Appeal No.1837 of 2011. The said appeal, according to the petitioner, is still pending. In the meantime, the petitioner's services were regularized on 03.02.2011 and he is working regularly. The petitioner asserts that he has rendered more than 32 years of service with the Nagar Panchayat and regularized 9 years prior to his retirement.
7. The grievance of the petitioner is that he has served the Nagar Panchayat for 32 years, but not granted any retirement benefits. The petitioner claims that he has retired from service on 01.01.2021, a year and a half until time when this petition was instituted, but nothing towards his retirement benefits was paid despite repeat claims and representations. In substance, therefore, what the petitioner seeks is the reckoning of all his 32 years of service with the Nagar Panchayat for the purpose of grant of post retiral benefits. The respondents, on the other hand, say that he is disentitled because he has rendered only 9 years of regular service prior to his retirement, which is not qualifying service for the purpose of pension and other post retiral benefits.
8. A supplementary affidavit was filed by the petitioner, wherein it was averred that the petitioner has not been paid gratuity nor his group insurance or leave encashment. It is asserted that he has served for more than 30 years as a daily-wager, which is an appointment temporary in nature, whereafter he was regularized in the year 2011. He served for more than 9 years as a regular employee. He relies upon the law laid down by the Supreme Court in Prem Singh v. State of Uttar Pradesh and others, (2019) 10 SCC 516 to submit that all his services continuously rendered in whatever capacity these might be have to be reckoned towards his qualifying service for the purpose of his entitlement to pension, gratuity, leave encashment, group insurance and other post retiral benefits.
9. On 08.08.2023, a notice of motion was issued to the Executive Officer of the Nagar Panchayat, asking him to show cause by filing a personal affidavit why the petitioner's post retiral benefits and pension have not been paid. A personal affidavit was filed by the Executive Officer of the Nagar Panchayat, which has been read by the Court as a counter affidavit. It does not say much about the petitioner's entitlement to pension and post retiral benefits. Instead, it says that a criminal case is pending against him at the instance of the Nagar Panchayat, being Case Crime No.64 of 2021, under Sections 420, 467, 468, 471, 120-B IPC, P.S. Kotwali Khalilabad, District Sant Kabir Nagar and another Case Crime No.301 of 2021, under Section 409 IPC, P.S. Khalilabad, District Kabir Nagar. The petitioner had been arrested in the said cases.
10. So far as the entitlement of the petitioner to pension is concerned, all that the respondents, in the personal affidavit of the Executive Officer, say is that they undertake that in case anything is due in retiral benefits to the petitioner, the respondents are ready to pay the same without delay. It is also said that the petitioner has concealed facts regarding receipt of retiral dues, that have already been paid to him after scrutiny of his records.
11. A supplementary counter affidavit dated 29th October, 2023 has also been filed on behalf of the Nagar Panchayat by the Executive Officer. The stand taken in Paragraph No.3 of the supplementary counter affidavit is that the services rendered by the petitioner in the regular establishment, do not constitute qualifying service and for the said reason, the Nagar Panchayat did not provide other benefits to the petitioner. It is next averred in Paragraph No.5 of the supplementary counter affidavit that the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 (for short, 'the Act of 2021') is applicable to employees of the State Government and not employees of Non-Centralized Services of the Nagar Panchayat. In substance, therefore, the respondents accept the position that the Act of 2021 does not apply to the petitioner's case. It is next averred in Paragraph No.6 that the principle in Prem Singh (supra) does not apply to the Nagar Panchayat.
12. On the pleadings of parties exchanged, this petition was admitted to hearing on 06.11.2023, which proceeded forthwith. Judgment was reserved.
13. Heard Mr. Sandeep Maniji Bakhshi, learned Counsel for the petitioner, Mr. Vijay Kumar Dubey, learned Counsel appearing on behalf of the President of the Nagar Panchayat and its Executive Officer and Mr. Dinesh Kumar Singh, learned Additional Chief Standing Counsel, appearing on behalf of the State-respondents.
14. There are two issues, which are involved in this case. One is about the petitioner's entitlement to receive a retirement pension taking into account the entire period of his service, most of which was as a daily-wager, and the other is, if the petitioner is entitled to receipt of pension and gratuity pending the two criminal cases against him.
15. So far as the first issue is concerned, the regulations that apply regarding payment of retirement benefits to employees of Nagar Panchayats, Nagar Palikas, other than members of Centralized Services, are the Uttar Pradesh Nagar Palika Non Centralized Services Retirement Benefits Regulations, 1984 (for short, 'the Regulations of 1984'). Qualifying service has been defined in Regulation 2(m) with reference to Article 368 of the Civil Service Regulations. It is on the foot of that definition of qualifying service that the respondents here regard the period of service rendered by the petitioner on daily-wages as service, not entitling the petitioner to pension and related post retiral benefits. They rely upon the period of service rendered by the petitioner post regularization in service. This issue fell for consideration before me in Ram Sewak Yadav v. State of U.P. and others, Neutral Citation No. - 2024:AHC:17407, where it was held:
"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......"
16. To the clear understanding of this Court, therefore, the period of service rendered by the petitioner as a daily-wager and in the non-pensionable establishment, followed by regularization, has to be reckoned as qualifying service towards grant of pension and gratuity to the petitioner, besides whatever other retiral benefits are dependent upon qualifying service being rendered.
17. This takes us to the other issue, if on account of the two First Information Reports registered against the petitioner, the petitioner is not entitled to pension and gratuity. The position appears to be fairly well settled that if departmental proceedings or an inquiry by the Administrative Tribunal or judicial proceedings, which certainly include criminal trial, are pending against a government servant, a principle extendable to an employee of the Nagar Panchayat, regular and full pension and gratuity cannot be paid until conclusion of the trial, which are described as judicial proceedings. The payment of gratuity would have to await the conclusion of trial, and so far as pension is concerned, provisional pension is payable, which would be slightly less than the final pension to be sanctioned and paid. The other dues, of course, like provident fund, group insurance and leave encashment would be payable. This principle is well settled in view of the authority of the Full Bench of this Court in Shivgopal and others v. State of U.P. and others, 2019 (5) ADJ 441 (FB), a Bench decision of this Court in State of U.P. through Principal Secretary and others v. Mahanand Pandey and another, 2021 (6) All LJ 37 and a very recent decision of mine in Jagdhari v. State of U.P. and another, Neutral Citation No. - 2024:AHC:75212. The petitioner has certainly not been sanctioned any pension, provisional or final, nor has he been paid gratuity. This is because the respondents have disputed his right to receive pension and gratuity on account of the petitioner not having rendered qualifying service to the respondents' understanding. This reasoning of the respondents, we have not accepted, as already indicated. The petitioner is entitled to pension as well as gratuity, so far as his rights under the Regulations of 1984 go. It is not known to this Court if the two FIRs lodged against the petitioner have resulted in charge-sheets and matured into judicial proceedings, taking the shape of criminal trials, pending against the petitioner. If indeed in either of two FIRs registered against the petitioner, he has been charge-sheeted and the criminal trial, which has to be regarded as a judicial proceedings against him, is/ or pending, all that the petitioner can receive is his provisional pension. He will not receive gratuity.
18. The question of entitlement to the award of final pension and gratuity would have to be decided after conclusion of trial. At the same time, provisional pension in accordance with rules would have to be sanctioned for the petitioner and paid to him, to which he is entitled under the Regulations of 1984. So far as the other post retiral benefits, such as leave encashment, group insurance and GPF are concerned, it is not known to the petitioner, if these have been paid. The respondents have said somewhere that some of these benefits have been paid. If these have been paid, there is no further obligation. But if not, the petitioner would be entitled to the payment of each of these.
19. In the circumstances, this writ petition succeeds and allowed in part. The petitioner is held entitled to sanction of a retirement pension and gratuity, reckoning the entire period of his service with the respondents, including the period of his daily-wage service. However, if he is facing a criminal trial, he will, for the time being, be sanctioned and paid a provisional pension and not his gratuity. The sanction and payment of final pension and gratuity would be for the respondents to consider after conclusion of the pending criminal trial, if any. However, if no criminal trial is pending against the petitioner, final pension would have to be sanctioned for him forthwith and both pension and gratuity would become payable. The respondents will scrutinize the petitioner's records and if any other retiral dues, like leave encashment, group insurance and GPF, whatever be due under the rules, has not been paid, the same too shall be paid. The respondents shall be under a command to undertake the necessary reckoning and discharge their obligations to pay the petitioner his post retiral benefits, as above directed, within a period of one month of the receipt of this judgment.
20. No costs.
Order Date :- 01.05.2024
Anoop
(J.J. Munir, J.)
