Court No. - 35
Case :- WRIT - A No. - 16159 of 2019 Petitioner :- Bahiya Lal Patel Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Awadh Narain Rai,Nagendra Kumar Tripathi Counsel for Respondent :- C.S.C.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Awadh Narain Rai, learned counsel for the petitioner and Sri V.K. Yadav, learned Standing Counsel for the State.
2. This writ petition has been filed by the petitioner claiming issuance of a writ in the nature of certiorari to quash the order dated 28.11.2018 passed by respondent no.5 with further issuance of writ of mandamus directing the respondents to grant all due retirement benefits along with monthly pension from due date along with interest.
3. Vide impugned order Annexure-10 passed by the Superintending Engineer, Banda Circle, Public Works Department, Banda, whereby it is held that since petitioner became a member of regular service after coming into force of new pension Rules w.e.f. 01.04.2005, therefore, provisions of earlier pension rules will not be applicable to the case of the petitioner and in view of such appreciation of facts, his representation dated 17.04.2018 has been rejected.
4. The brief facts of the matter are that, petitioner was appointed as a muster roll employee on 26.12.1987 in terms of financial handbook part-6 para 429, 430 and 431. Their services were not taken either in terms of any service rules or regulations or upon selection through proper channel, nor in any pay-scale but as per the requirement of the work on dailywages. Petitioner continued to be a daily-wager on muster roll.
5. A writ petition no.3660 of 1998 (Rakesh Kumar Tripathi and others Vs. State of U.P. and others) was decided on 30.11.2004 and, thereafter, writ petition No.6737 of 1999 was decided on 07.03.2005 and another writ petition No.37582 of 1998 was decided on 25.04.2005, when in terms of these orders and also in terms of the orders passed by the State Government on 17.02.2006, Engineer-in-chief treated muster roll employees to be ad-hoc and passed orders for their regularization.
6. Petitioner's contention is that in terms of the judgment of Supreme Court in case of Habib Khan Vs. State of Uttarakhand and others passed in Civil Appeal No.10806 of 2017 arising out of S.L.P. (Civil) No.7434 of 2016, it has been held that services rendered on work charged basis shall be counted for the purposes of computation of qualifying service for grant of pension. Pari materia provisions of the Rule 3.17(ii) of the Punjab Civil Services Rules had been interpreted and it is held that Rule 370 of the Civil Service Regulations applicable to the State of Uttarakhand are pari materia with the provisions of Rule 3.17(ii) of the Punjab Civil Service Rules and in that backdrop work charged employees were allowed to count their past services for the purposes of computation of qualifying service.
7. Learned counsel for the State, in his turn, submits that for the purposes of the implementation and impact of provisions of Uttar Pradesh Retirement Benefits Rules, 1961, it is necessary that a person before the amendment in the said rules which became effective from 1st April, 2005 should be a regular and permanent member of the service.
8. In the present case, admittedly, order of regularization was passed by the Engineer-in-chief on 11.08.2006, whereby services of the petitioner was regularized and, therefore, he being not a member of service borne on the regular cadre prior to 1st April, 2005 is not entitled to any benefit of Pension in terms of the old pension rules.
9. After hearing learned counsel for the parties and going through the record, it is evident that petitioner was not in a work charged establishment. Therefore, ratio of the law laid down in case of Habib Khan (supra) cannot be extended to the petitioner, especially when it is settled law that benefits of pension can be drawn by a person borne on a regular cadre in service on or before the cut off date. It is settled law that a daily-wager has no right or in a lien on a post. Supreme Court in case of Government of A.P. Vs. P. Laxmi Devi; (2008) 4 SCC 720 has held that Court should not interfere in the executive action of fixing a cut off date. They should maintain judicial restrain in matters relating to the legislative and executive domain.
10. Secondly, judgment in case of Habib Khan (supra) is distinguishable on its own facts, inasmuch as, the petitioner before being absolved regularly in case of Habib Khan (supra) was a member of a work charged establishment.
11. Thus, when there is a work charged establishment and a person belonging to that establishment is absorbed or regularized in a different establishment, then the person having worked in work charged establishment will not forfeit his services in that establishment and it is permissible for him to carry his years spent in that establishment to the regular establishment, whereas, a muster roll employee is under the category of a daily-wage earner and his case is not on the same footing as that of a member of a work charged establishment and, therefore, even if for the purposes of regularization, petitioner's past services have been taken to be ad-hoc, but the fact of the matter is that, petitioner was never appointed on ad- hoc basis against any sanctioned vacant post awaiting regular process of recruitment to set in and, therefore, date of regularization of the petitioner is the date for taking into consideration the applicability of the provisions of Uttar Pradesh Retirement Benefits Rules, 1961.
12. Even the judgment of Supreme Court in case of Prem Singh Vs. State of Uttar Pradesh and others; (2019) 10 SCC 516 is in regard to work charged establishment employees and not in relation to daily rated or muster roll employees i.e. the petitioner and, therefore, this judgment in case of Prem Singh (supra) being distinguishable on its own facts will not be applicable to the facts and circumstances of the petitioner so to permit him to count his past services as a muster roll employee for the purposes of treating him to be a member of regular pensionary establishment prior to its amendment w.e.f. 01.04.2005, therefore, petition fails and is dismissed.
Order Date :- 29.9.2021 Ashutosh