Court No. - 34
Case :- WRIT - A No. - 51516 of 2015 Petitioner :- Ambika Prasad Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- R.P.L. Srivastava,S.C. Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for parties.
The petitioner is aggrieved by the order of 31 July 2015 which has refused his claim for pensionary benefits. The ground taken by the respondents is that the period of service rendered by the petitioner in a work charged establishment is not liable to be considered for the purposes of computing qualifying service.
The petitioner as per the respondents themselves was appointed as Beldar on 25 January 1971. He is stated to have continued working in that capacity and allegedly in a work charged establishment up to 31 August 1999. On 01 September 1999 he was appointed as Seench Paryavekshak and retired from that post on 30 November 2003. The position taken by the respondents appears to be based solely on the perception that the period of service spent between 1971 to 1999 is not liable to be countenanced for the purposes of computing qualifying service.
Quite apart from the fact that the impugned order does not spell out the project in which the petitioner allegedly worked for more than two decades between 1971 to 1999, the Court bears in mind the principles enunciated by the Supreme Court in Prem Singh v. State of U.P. And Others [(2019) 10 SCC 516]. In Prem Singh upon noticing the provisions of Civil Service Regulations as applicable in the State of U.P. and the prolonged engagement of persons by the State showing them working in a work charged establishment, it was held as follows:-
" 30. 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 regularized. 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.
31. 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.
32. 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 regularization 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 Note to Rule 3(8) of 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.
33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the 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.
34. 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.
35. There are some of the employees who have not been regularized 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 regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka and others vs. Uma Devi, 2006 (4) SCC 1. 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 regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to relegate 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.
36. 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."
In view of the aforesaid, it is manifest that the impugned order is rendered unsustainable.
The writ petition is accordingly allowed. The impugned order dated 31 July 2015 is hereby quashed and set aside. The matter shall in consequence stand remitted to the Executive Engineer respondent No.2 herein for considering the claim of the petitioner afresh and in light of the observations made hereinabove. The respondent shall ensure that a fresh decision is taken with expedition and in any case within a period of two months from today.
Order Date :- 12.8.2021/faraz