1. Whether service rendered on non pensionable post can be included in "Qualifying Service" for grant of pension, is the question posed to this Court in this petition.
2. This petition seeks issuance of a writ in the nature of certiorari quashing impugned order dated 13.5.2009, passed by respondent no.3, placed on record as Annexure-1. The petition also seeks issuance of a writ in the nature of mandamus directing the respondents to pay retiral benefits, including the pensionary benefits to the petitioner, counting earlier service rendered by the petitioner in Poorvanchal Vikas Nigam Limited, so as to include it in the qualifying service.
3. None appears for the petitioner.
4. A request for adjournment has been floated on behalf of learned counsel for the petitioner. This Court finds that it was made clear to learned counsel for the petitioner vide order dated 18.11.2014 that no further time would be given to the counsel for the petitioner. It appears to the Court that the counsel is evading arguing the case.
5. The case relates to the year 2009 and, therefore, cannot be adjourned any further and, therefore, is being decided on the basis of pleadings and arguments addressed by the available counsel.
6. Sri Pankaj Patel, learned Additional Chief Standing Counsel has addressed arguments contending that impugned order, Annexure-1, dated 13.5.2009, has been passed on the basis of Government order dated 8.12.2008 and Government order dated 11.11.1993, which when employed, would make it evident that the petitioner has not completed qualifying service.
7. I have gone through the pleadings, orders earlier passed by this Court and have heard Sri Patel, appearing for the respondents.
8. Facts and circumstances that emanate from the record are that the petitioner was serving on non pensionable post as Chaukidar w.e.f. 1.4.1976 in Poorvanchal Vikas Nigam Limited. The Nigam was wound up in the year 1992. A decision was taken to absorb the petitioner in deference to directions of this Court rendered on 14.10.1992 in Writ Petition No.4178 (M/B) of 1992. Consequently, vide order dated 15.6.1998 the petitioner was absorbed in Government Service vide order Annexure SA-3 appended with supplementary affidavit dated 2.9.2014 filed by the petitioner. Absorption of the petitioner was made in terms of Government Order dated 11.11.1993.
9. The petitioner has not placed any conclusive evidence/document on record to show that the post held by the petitioner in Poorvanchal Vikas Nigam Limited was pensionable, under the Government of Uttar Pradesh or that the petitioner held substantive office in a pensionable establishment.
10. Admittedly services of the petitioner were confirmed w.e.f. 1.8.2002, vide Annexure-4, dated 26.4.2005. The petitioner figures at serial no.10 in the said order. The order itself makes it explicit that the persons thus absorbed, would be entitled to pensionary benefits and the period of service rendered on temporary basis with the respondent-State would be counted for pension purposes. The order provides that the temporary service before confirmation would be governed by the provisions of Article 370 of the Civil Service Regulations.
11. It is further the admitted case of the petitioner that the the petitioner attained age of superannuation on 31.10.2006. The petitioner was not allowed pensionary benefits, therefore, petitioner made a representation. The representation has been decided (rejected) vide impugned order Annexure-1, in deference to directions of this Court issued in Writ Petition No.1394 (S/S) of 2008, titled Baburam and others v. State of U.P. and others.
12. In the impugned order dated 13.10.2009 it has been said that the petitioner did not complete qualifying service, hence he is not entitled to pensionary benefits. For drawing the said conclusion, the respondent has invoked Government Order dated 8.12.2008 which clarifies the issue. Reference has also been made to Government Order dated 11.11.1993 to which reference has been made above.
13. Somewhat similar circumstances came for adjudication before this Court in Special Appeal Defective No.23 of 2014 (Jai Prakash v. State of U.P. and others). A Division Bench of this Court vide judgment dated 9.1.2014 ruled that the period of service spent in work-charged establishment cannot be counted for the purposes of determining the qualifying service for grant of pension. Provisions of Article 370 of Civil Service Regulations have been considered in extenso. Relevant portion from the judgment reads as under:
"Learned counsel for the appellant has placed reliance upon the judgment of the Supreme Court in Punjab State Electricity Board & Anr. Vs. Narata Singh and Anr. reported in (2010) 4 SCC 317 to support his contention that the period during which the appellant worked in the work charged establishment should also be included while computing the qualifying service for the purpose of payment of pension.
A perusal of the said judgment of the Supreme Court shows that Rule 3.17(i) of the Punjab Electricity Service Rules, which also excluded the period of service rendered in a work charged establishment for the purpose of determining the qualifying service, had earlier been struck down by the Full Bench of the Punjab and Haryana High Court in Kesar Chandra Vs. State of Punjab and Ors. reported in AIR 1988 Punjab & Haryana 265 and the Special Leave Petition filed to assail the said judgment had been dismissed by the Supreme Court. It is for this reason that the Supreme Court held that the service in work charged establishments under the State Government qualified for grant of pension under the Rules.
Article 370(ii) of the Civil Service Regulations, as applicable in the State of Uttar Pradesh, has not been struck down, nor the vires of the said provision was challenged in the writ petition. The decision of the Supreme Court in Narata Singh (supra) would, therefore, not help the appellant.
It needs to be noticed that a Full Bench of this Court in Pavan Kumar Yadav (supra), after pointing out the difference between a person appointed in a regular establishment and in a work charged establishment, held that a work charged employee engaged in connection with the affairs of the State, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a 'Government servant' within the meaning of Rule 2(a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under the Rules. The reasons given by the Full Bench for recording this finding are :-
"20. In respect of the employees the State Government in Irrigation Department, Public Works Department, Minor Irrigation, Rural Engineering Services, Grounds Water Department has provided for employment in the regular establishment and workcharge establishment. The person appointed in regular establishment are appointed against a post, after following due procedure prescribed under the rules. In workcharge establishment the employees are not appointed by following any procedure or looking into their qualification. They do not work against any post or regular vacancy. They only get consolidated salary under the limits of sanction provided by Government Order dated 6th April, 1929. The conditions of their employment is provided in paragraphs 667, 668 and 669 of Chapter XXI under the Head of Establishment in Financial Hand Book Volume IV. Their payments are provided to be made in same Financial Hand Book Volume IV in Paragraph Nos.458, 459, 460, 461, 462 and 463.
21. Shri M.C. Chaturvedi, learned Chief Standing Counsel submits that by Government Order dated 1.1.2000 Paragraphs 667, 668 and 669 of Financial Hand Book Volume 4 have been deleted and that thereafter the payments are not being made to them from the budget allotted from the regular establishment, and they are not entitled to any allowance or pensionary benefits. They are paid from contingencies and are required to work until the work is available. The services of workcharge employees are regularised only when regular vacancy is available. Until then they cannot be treated as government servants."
(emphasis supplied) In Punjab State Electricity Board and Ors. Vs. Jagjiwan Ram and Ors. reported in (2009) 3 SCC 661, the Supreme Court also examined whether work charged employees in the service of Punjab State Electricity Board, who were subsequently appointed on a regular basis, could claim that the service rendered by them as work charged employees should be counted for the purpose of grant of time bound promotional scale/promotional increments and after taking note of the earlier decisions in Jaswant Singh & Ors. Vs. Union of India & Ors., (1979) 4 SCC 440 and State of Rajasthan Vs. Kunji Raman, (1997) 2 SCC 517, the Supreme Court observed that the work charged employees constitute a distinct class and they cannot be equated with any other category or class of employees, much less regular employees and they are not entitled to service benefits which are admissible to regular employees under the relevant rules or policy framed by the employer. The observations are as follows:-
"9. We have considered the respective submissions. Generally speaking, a work charged establishment is an establishment of which the expenses are chargeable to works. The pay and allowances of the employees who are engaged on a work charged establishment are usually shown under a specified sub-head of the estimated cost of works. The work charged employees are engaged for execution of a specified work or project and their engagement comes to an end on completion of the work or project. The source and mode of engagement/recruitment of work charged employees, their pay and conditions of employment are altogether different from the persons appointed in the regular establishment against sanctioned posts after following the procedure prescribed under the relevant Act or rules and their duties and responsibilities are also substantially different than those of regular employees.
10. The work charged employees can claim protection under the Industrial Disputes Act or the rights flowing from any particular statute but they cannot be treated at par with the employees of regular establishment. They can neither claim regularization of service as of right nor they can claim pay scales and other financial benefits at par with regular employees. If the service of a work charged employee is regularized under any statute or a scheme framed by the employer, then he becomes member of regular establishment from the date of regularization. His service in the work charged establishment cannot be clubbed with service in a regular establishment unless a specific provision to that effect is made either in the relevant statute or the scheme of regularization. In other words, if the statute or scheme under which service of work charged employee is regularized does not provide for counting of past service, the work charged employee cannot claim benefit of such service for the purpose of fixation of seniority in the regular cadre, promotion to the higher posts, fixation of pay in the higher scales, grant of increments etc. ...................
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21. For the reasons mentioned above, we hold that the respondents were not entitled to the benefit of time bound promotional scales / promotional increments on a date prior to completion of 9/16/23 years regular service and the High Court committed serious error by directing the appellants to give them benefit of the scheme by counting their work charged service."
(emphasis supplied) In Jaswant Singh (supra), which was relied upon by the Supreme Court in Jagjiwan Ram (supra), the Supreme Court held that the employees appointed in the work charged establishments are not entitled to service benefits available to regular employees.
In Kunji Raman (supra), which was also relied upon by the Supreme Court in Jagjiwan Ram (supra), the Supreme Court did not accept the contention that the provisions of Rajasthan Service (Concessions on Project) Rules, 1962 and Rajasthan Service Rules, 1951 were violative of Articles 14 and 16 of the Constitution as they did not treat the employees of the work charged establishment at par with regular employees and the relevant observations are:-
"8. A work-charged establishment thus differs from a regular establishment which is permanent in nature. Setting up and continuance of a work-charged establishment is dependent upon the Government undertaking a project or a scheme or a "work" and availability of funds for executing it. So far as employees engaged in work-charged establishments are concerned, not only their recruitment and service conditions but the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. A regular establishment and a work-charged establishment are two separate types of establishments and the persons employed on those establishments thus form two separate and distinct classes. For that reason, if a separate set of rules are framed for the persons engaged in the work-charged establishment and the general rules applicable to persons working on the regular establishment are not made applicable to them, it cannot be said that they are treated in an arbitrary and discriminatory manner by the Government. It is well settled that the Government has the power to frame different rules for different classes of employees. We, therefore, reject the contention raised on behalf of the appellant in Civil Appeal No. 653 of 1993 that Clauses (g), (h) and (7) of Rule 2 of RSR are violative of Articles 14 and 16 of the Constitution and uphold the view taken by the High Court.
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10.It was also contended on behalf of the State that the High Court having held that the workmen working on the regular establishment and the employees working on a work-charged establishment belong to two separate categories and, therefore, separate classification made by the Government in that behalf is reasonable, committed a grave error in striking down Rules 2(b) and (d) of the 1962 Project Rules and Rules 4(2) and (4) of the 1975 Project Rules by invoking the principle of equal pay for equal work. The reason given by the High Court for taking that view is that the project allowance is compensatory in nature and, therefore, the classification made between the work-charged employees and the employees of the regular establishment has no rational nexus with the object sought to be achieved by those Rules. What the High Court failed to appreciate is that when an employee working in the regular establishment is transferred to a project he has to leave his ordinary place of residence and service and go and reside within the project area. That is not the position in the case of an employee who is engaged in the work-charged establishment for executing that work. ............................ From what is now stated by them in the counter-affidavit, it appears that what they really want is parity in all respects with the employees of the regular establishment. In other words, what they want is that they should be treated as regular employees of the Public Works Department of the Rajasthan Government and should be given all benefits which are made available under the RSR and the Project Rules. Such a claim is not justified and, therefore, the contention raised in that behalf cannot be accepted."
(emphasis supplied) It, therefore, follows from the aforesaid judgments of the Supreme Court that the work charged employees constitute a distinct class and they cannot be equated with regular employees and that the work charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant rules.
x x x x x x x x ...... .....In this view of the matter, the appellant is not justified in contending that the period of service rendered from 1 October 1982 to 5 January 1996 as a work charged employee should be added for the purpose of computing the qualifying service for payment of pension.
The judgment under appeal, therefore, does not call for any interference. The Special Appeal is, accordingly, dismissed. There shall be no order as to costs.
Let a copy of this order be also sent to the Chief Secretary, Government of Uttar Pradesh for circulation as the earlier judgment rendered on 2 December 2013 was directed to be circulated."
14. From the above extracted portion of judgment rendered by this Court in Jai Prakash case (supra), it becomes evident that the issue of qualifying service would be governed by Article 370 of the Civil Service Regulations as applicable in the State of U.P. There is a difference between a person appointed in a regular establishment, and in a work-charged establishment. The work-charged employees constitute a distinct class and cannot be equated with regular employees. Work-charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant rules. It has been concluded by the Division Bench that period of service rendered as a work-charged employee cannot be added for the purpose of computing the qualifying service for payment of pension.
15. This Court is supported in the above context, even by the rule position. Article 370 of the Civil Service Regulations reads as under:
"370. Continuous temporary or officiating service under the Government of Uttar pradesh followed without interruptions by confirmation in the same or any other post shall qualify except--
(i)periods of temporary or officiating service in non-pensionable establishment;
(ii)periods of service in work charged establishment; and
(iii)periods of service in a post paid from contingencies.
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 periods of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."
(emphasis supplied by me)
16. Reading of the above extracted portion indicates that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify. The provision specifically excludes service rendered by an employee in a non-pensionable establishment, work-charged establishment or in a post paid from contingencies.
17. For the purposes of the present case, Article 370 of the Civil Service Regulations specifically excludes the period of service rendered by the petitioner on non-pensionable post in Uttar Pradesh Poorvanchal Vikas Nigam Limited, therefore, the petitioner cannot claim the benefit of the said period of service for grant of pension.
18. Reference in this context may also be made to Article 474 of the Civil Service Regulations,which provides as under :
"474. Subject to the directions here in after contained in Article 474 (bb), a pension is regulated as follows:
"(a) After a service of less than ten years a gratuity not exceeding (except in special cases and under the orders of the Government of Uttar Pradesh) upto a maximum of 12 months emoluments one-half month's emoluments for each completed six monthly period of service. If the emoluments of the officer have been reduced during the last three years of his service, otherwise than as a penalty, average emoluments may at the discretion of the authority which has the power to sanction the gratuity, be substituted for emoluments:"
(b) For compensating, Invalid and superannuation pensions--
After a service of not less than ten years and amount not exceeding the following :-
x x x x x x x x x x x x " (emphasis supplied by me).
19. From the provision of Article 474(b) of Civil Service Regulations it is gathered that amount of pension would be payable after a service of not less than 10 years in terms of the scale given in the provision. Article 474 (a) of the above Regulations also indicates that after a service of less than 10 years gratuity is payable, to be calculated as per the provisions of the said Article/Provision.
20. For the purposes of calculating qualifying service, reference is also required to be made to the relevant provisions of Uttar Pradesh Retirement Benefits Rules, 1961. In the definition clause provided under Section 3, qualifying service has been defined under sub Rule (8). For exact reference Rule 3(8) reads as under:
"3. Definitions.-- In these rules unless there is anything repugnant in the subject or context--
(1) x x x x x x x (2) x x x x x x x (3) x x x x x x x (4) x x x x x x x (5) x x x x x x x (6) x x x x x x x (7) x x x x x x x (8) "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations:
Provided that continuous temporary or officiating sercvice under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except--
(i) periods of temporary or officiating service in a non- pensionable establishment,
(ii) periods of service in a work-charged establishment, and
(iii)periods of service in a post paid from contingencies, shall also count as qualifying service.
Note.--If service rendered in a not-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."
21. Above extracted provision from the Rules of 1961 also indicates that qualifying service would mean service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations. It also clarifies that period of service rendered in a non-pensionable establishment would not be counted in qualifying service [Rule 3(8)(i)].
22. For ready reference Article 368 of the Civil Service Regulations is also extracted hereinbelow :
"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment."
23. Article 368 of the Civil Service Regulations provides that service does not qualify unless the officer holds a substantive office in a permanent establishment.
24. When the above extracted rules are applied to the case of the petitioner, it becomes clearly evident that while the petitioner was serving in Uttar Pradesh Poorvanchal Vikas Nigam Limited, the petitioner was serving on a non pensionable post. Provisions above referred mandate that the said period of service spent on non-pensionable post is required to be excluded while computing qualifying service.
25. In view of the Rule Position noted above viz. Article 370, 368 and 474 of the Civil Service Regulations read with provisions of Uttar Pradesh Retirement Benefits Rules 1961, the question is answered in the negative.
26. From the facts noted above, the only logical conclusion that follows is that the service rendered by the petitioner, after absorption in permanent establishment can be counted for determining the qualifying service. The petitioner was absorbed w.e.f. 15.6.1998. The services of the petitioner were confirmed w.e.f. 1.8.2002, in permanent establishment in Government Service. For computing the qualifying service, the period of service rendered by the petitioner from 15.6.1998 till the petitioner attained the age of superannuation on 31.10.2006 is required to be counted. The said period of service comes to less than 10 years and, therefore, it is incontestable and obvious that the petitioner cannot claim to have qualifying service to his credit for being eligible for payment of pensionary benefits. The period of service spent by the petitioner on non-pensionable post from 1.4.1976 till the Uttar Pradesh Poorvanchal Vikas Nigam Limited, was wound up in the year 1992 has to be excluded.
27. It has been pointed out by learned counsel for the respondent State that because the petitioner has rendered less than 10 years of regular service, as is made evident from the facts noted above, the petitioner is only entitled to gratuity. The benefits required to be paid according to the rules have already been paid, as has been stated in Para-14 of the Counter Affidavit.
28. This Court is also of the opinion that once it is established that the petitioner served on non-pensionable post, surely the petitioner cannot claim benefit of that period of service for claiming pension. In this circumstance also, petition filed by the petitioner is misconceived and is frivolous.
29. Considering the rule position as depicted above, this Court does not find any reason to judicially review the impugned order. Impugned order is legally tenable and does not deserve interference.
30. In view of the above, no ground for interference is made out.
31. The writ petition is dismissed.
Order Date :- 2.12.2014 Irfan