Court No. - 34
Case :- WRIT - A No. - 67719 of 2009 Petitioner :- Brijvasi And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- B.P. Singh,Vijaya Shankar Shukla Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioners and Sri Vikram Bahadur Yadav, learned Standing Counsel.
This petition has been preferred principally seeking the following reliefs:-
"A. A writ of mandamus commanding/directing the respondents to provide the benefit of seniority, status, salary including admissible increments with T.A., D.A time to time promotions and finally retiral dues, pension, gratuity, group insurance and other benefits as a regular employee since the date of initial appointment of the petitioners in lieu since the date of their regularization on the principal of equal pay for equal work.
B. A writ of mandamus commanding/ directing the respondents to properly make the payment of differences of salary to all the petitioners since their initial appointment as work charge employee to the date of their regularization as a regular employee in view of law laid down by this Hon'ble Court as well as Hon'ble Supreme Court in case of State of U.P. and another Vs. B.L. Prasad and others."
The aforesaid reliefs are claimed in the backdrop of the petitioners having been engaged by the respondents initially in a work charged establishment and ultimately regularized after decades. The details of the working of the individual petitioners is set forth in paragraph 6 of the writ petition. Those details are not disputed by the State. The chart which is set out in paragraph 6 shows that the petitioners were shown to have worked against a work charged establishment ranging for 10 years to 32 years prior to their ultimate regularization.
Before proceeding to notice and consider the rival submissions which were addressed, the Court is constrained to note that neither the petitioner nor the respondents have laid a foundation sufficient to evaluate or enter any determinative finding with respect to the nature of the appointment of the petitioners, the particular projects against which they were employed, the tenure of those projects, the nature of pay scales which were drawn. However, bearing in mind the fact that the writ petition has remained pending on the board of this Court since 2009, there appears to exist no justification to adjourn the matter any further. The Court thus proceeds to decide the writ petition on the state of the record as it exists today.
The Court firstly takes up the claim of the petitioners who seek payment of salary and other emoluments at par with the regular employees of the respondents for the period of service rendered prior to their regularization. The Court finds itself unable to accede to that prayer for the following reasons.
As the details of the engagement of the various petitioners under the respondents as set forth in paragraph 6 would show, all of them were engaged on different dates commencing from 1977 to 1998. However, during the entire period of service till they were ultimately regularized on different dates falling in 1995, 2000, 2003, 2004 and 2008, this claim was never raised prior to the filing of the present writ petition in 2009. Having failed to have claimed this relief at the first available opportunity, the Court finds itself unable to hold in favour of the petitioner insofar as this issue is concerned or to grant the same at this point of time. This more so since the petitioners have failed to aver or establish that the work which was taken from them was the same as that performed by regular and permanent employees of the respondents. The writ petition also does not place any details with respect to the mode and conditions of recruitment, the qualifications prescribed and other factors which would be germane to decide this issue authoritatively.
The Court then notes that the State respondents have failed to provide any details of the particular projects against which each of the petitioners were engaged and those projects continued for decades altogether. The Court bears in mind the following pertinent observations as entered by the Supreme Court in Prem Singh v. State of U.P. And Others [(2019) 10 SCC 516] in this regard:-
"29. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. Payment used to be made monthly but the appointment was made in the pay scale of Rs.200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation.
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."
As is manifest from the aforesaid extract, the Supreme Court in Prem Singh had deprecated the practice of the State in continuing to show the engagement of its employees against a work charged establishment and which position was permitted to perpetuate for decades. It is that very position which stands reflected from the facts of the present case where the petitioners are shown to have been engaged in a work charged establishment ranging from 10 years to 32 years. The State has neither been forthcoming nor has it faithfully disclosed details which would establish that the petitioners were not engaged in connection with work which was permanent and perennial in nature.
The claim of the petitioners for being extended benefits of seniority, salary including admissible increments, time to time promotions would also not be liable to be countenanced in the absence of any foundation having been laid in the writ petition which may tend to establish that the petitioners were in fact not employed in a work charged establishment but were working against posts which were borne on the permanent establishment of the respondents.
That leaves the Court to deal with the claim for payment of retiral benefits. Dealing with the issue of a claim for retiral benefits laid by persons who may have been initially engaged in a work charged establishment and subsequently regularized as well the decision in Prem Singh, the provisions made in the U.P. Retirement Benefit Rules, 1961 and the Validation Act, 2021, this Court in Dr. Sushma Chandel Vs. State of U.P. and 2 others [Writ-A No.9396 of 2021] held as follows:-
"The right to claim pensionary benefits is now and by virtue of the provisions introduced retroactively by the Validating Act made dependent upon it being found that the employee was appointed in accordance with the applicable service rules and held a permanent or temporary post. Since the legislative enactment bids us to proceed on the basis that the aforesaid definition of qualifying service existed and held the field since 1 April 1961, all claims would have to be necessarily evaluated and examined accordingly. This conclusion would necessarily be subject to any challenge that may be laid to the provisions of the Validating Act.
While the Validating Act fundamentally alters the concept of qualifying service, the right to claim addition of service rendered in a temporary or ad hoc basis is one which is still available to be asserted in light of the proviso to Rule 3(8) of the 1961 Rules. While Regulation 370 of the CSR may have been annulled by virtue of the declaration in Prem Singh, the proviso to the aforesaid rule enshrines measures which are akin to those which were contemplated in Regulation 370 when it existed. Regard must also be had to the fact that while the provisions of the aforesaid rule directly fell for consideration in Prem Singh, it was the Note to that rule alone which was read down. The proviso remained untouched and continues to exist in the statute whole, unmutilated and effective. In fact and was noticed hereinabove, the Supreme Court in Prem Singh appears to have consciously left the proviso standing since once it had struck down Regulation 370, that was the only statutory provision which reinforced the central beam of Prem Singh of service discharged for decades together was liable to be taken notice of for the purposes of pension once it be found that the attachment of an officer or employee in a work charged establishment was a mere ruse and camouflage to deny benefits.
From the above recordal of the statutory scheme which now remains in place, it is manifest that the right of an employee to seek addition of continuous, temporary or officiating service followed by confirmation or regularisation would remain preserved notwithstanding the deletion of Regulation 370. Additionally, and as was explained by the Division Benches in Mahendra Singh, Bhanu Pratap Sharma and Narayan Singh Sharma, the right as inhering in a government servant to seek inclusion of services rendered on a temporary or officiating basis provided the appointment was ultimately regularized has not been impacted by the Validating Act. The three decisions afore noted unambiguously hold that the period prior to regularisation cannot be ignored as long as it is established that it was service rendered against a particular post be it temporary or permanent. This aspect was highlighted with the Court holding that the only fetter which now remains in place for the purposes of computing qualifying service is of the service rendered being shown to have been discharged against a permanent or temporary post and the appointment having been made in accordance with the service rules. It was in the aforesaid background that it was held that there was no imperative to assail the validity of the U.P. Act No. 01 of 2021 in such situations.
It may further be noted that the Validating Act makes the right to claim pension dependent upon it being found that service was rendered against a "permanent or temporary post" coupled with it being established that the appointment was made in accordance with the service rules. Notwithstanding the above, the question of whether the engagement of the officer or employee shown against a work charged establishment was merely an "exploitative measure" [an expression which the Court borrows from Prem Singh itself] and designed to deny benefits of long service would still be open to canvassed. As was noted by the Supreme Court in Prem Singh such conduct of the State would clearly fall foul of the constitutional guarantees enshrined in Part III of our Constitution.
The question of service discharged in a temporary or ad hoc capacity followed by regularisation and whether such periods are liable to be included would also have to be necessarily examined in the backdrop of whether the engagement had been made against a permanent or temporary post that was available as also whether the procedure as prescribed under the relevant service rules had been adhered to."
In light of the law as enunciated in the aforesaid decision, it is the issue of retiral and pensionary benefits which would warrant further consideration by the respondents.
Accordingly and to the aforesaid extent, this writ petition shall stand allowed. A writ of mandamus is hereby issued commanding the second respondents to duly evaluate the claim of the petitioners here for grant of retiral benefits bearing in mind the decision of the Supreme Court in Prem Singh and the judgment rendered in Dr. Sushma Chandel. The aforesaid exercise of consideration shall be concluded with expedition and preferably within a period of four weeks from the date of presentation of a duly authenticated copy of this order.
Order Date :- 29.9.2021 Vivek Kr.