State Of Up And 2 Others vs Devendra Kumar Singh
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Allahabad High Court

State Of Up And 2 Others vs Devendra Kumar Singh on 14 May, 2024

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:88254-DB
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 417 of 2024
 

 
Appellant :- State Of Up And 2 Others
 
Respondent :- Devendra Kumar Singh
 
Counsel for Appellant :- Ankit Gaur,Kunal Ravi Singh
 
Counsel for Respondent :- Bhagwan Dutt Pandey
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Devesh Vikram, learned Additional Chief Standing Counsel for learned counsel for the State-appellants-respondents and Sri B.D. Pandey, learned counsel for the respondent-petitioner.

2. The present intra court appeal is preferred to assail the judgment and order dated 11.04.2023 as corrected on 03.05.2023 passed by learned Single Judge in Writ-A No. 19513 of 2022 (Devendra Kumar Singh Vs. State of U.P. & others), wherein the respondent-petitioner had approached to the writ court and questioned order dated 29.07.2022 whereby the appellant-respondent-Nagar Nigam had refused to grant him pension and other benefits on retirement which he claimed to be entitled.

3. The record reflects that the respondent - petitioner Sri Devendra Kumar Singh, was appointed on ad-hoc basis temporarily as a Clerk by the appointment order No.Memo/NAC/80-81 dated 27.08.1980 of the Officer-in-Charge, Notified Area Committee, Hastinapur, Meerut. Thereafter, by the office order No.8/4149/107-Account Chayan/86 dated 25.07.1989 of the Directorate, the respondent-petitioner was appointed as a Temporary and Adhoc Accountant Grade-2 under Rule 31 of the U.P. Palika Centralized Service Rules, 1966 for a maximum period of one year in the Nagar Palika Parishad, Maunath Bhanjan. Subsequently, his services were regularized by order dated 23.09.2003 under Sub-Rule 7 of Rule 21 'Ka' of Column 2 of the U.P. Palika Centralized Service Twenty-First Amendment Rules, 2003 against the vacant posts of direct recruitment. He superannuated on 30.06.2021. The claim was set up before the learned Single Judge that he was entitled for pension under the Uttar Pradesh Palika (Centralized) Service Retirement Benefits Rules, 1981 (in short 'the Rules of 1981') and reliance was also placed upon a judgment dated 04.04.2023 passed in Writ-A No.5635 of 2023 (Jaidev Singh Vs. State of U.P. and 2 Others) wherein the court has interpreted the Rules of 1981 and services had also been interpreted to include services rendered before regularization as qualifying services for the purpose of pensionary benefits. The learned Single Judge after considering the judgment of Jaidev Singh's case (supra), allowed the writ petition and set aside the order dated 29.07.2022 and directed the appellants - respondents to ensure regular payment of pensionary and other benefits to the petitioner under the Rules of 1981, treating his entire service to be performed as regular employee of the Nagar Palika within a period of three months.

4. Learned counsel for the appellants-respondents states that the said mandate is per se unsustainable in view of the law laid down by the Apex Court in Uday Pratap Thakur and others vs. State of Bihar and others, decided on 28.04.2023, reported in AIR 2023 SC 2971, wherein, the Apex Court considered Rule 5(v) of the Work Charged Establishment Revised Service Condition Rules, 2013, which allows for work-charged service to be counted towards qualifying service for pension if it does not meet the 10-year minimum. However, it does not permit the entire period of work-charged service to count towards the pension amount, distinguishing between regular and work-charged employees. The ratio of the judgment is in Paras-6.1, 6.2 and 6.3, which are extracted below:

"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 casealso, 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 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. 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 Vs. State of Uttar Pradesh and Ors., (2019) 10 SCC 516 by the learned counsel appearing on behalf of the appellants is concerned, the reliance placed uponthe said decisionis 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 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 ofPrem Singh(supra), therefore, would be restricted to the counting of service rendered as work charged for qualifying service for pension."

5. Learned counsel for the appellants-respondents vehemently submits that learned Single Judge has erred in law by including the entire service period, including daily wage work, as regular service for pension, contrary to the Supreme Court's interpretation in Uday Pratap Thakur's case.

6. We find that the Apex Court's judgment in Uday Pratap Thakur (supra) was not placed before the learned Single Judge, who decided the matter based on the Prem Singh' case (supra). Learned counsel for the respondent-petitioner states that instead of admitting the appeal, the impugned order may be set aside and the matter should be remanded to the learned Single Judge for a fresh decision on merits, considering the Apex Court's latest ruling in Uday Pratap Thakur (supra). In the interest of justice, we set aside the impugned order dated 11.04.2023 and remand the case to the learned Single Judge for a fresh decision, but certainly after giving opportunity of hearing to the appellants-respondents.

7. Accordingly, the appeal is partly allowed. Let the matter be placed before learned Single Judge in the first week of July, 2024.

Order Date :- 14.5.2024

NLY