1. Heard Sri Syed Wajid Ali, learned counsel for the petitioner, and Ms. Monika Arya, learned Additional Chief Standing Counsel appearing for the respondents.
2. The petitioners, through the present writ petition, have prayed for a writ of mandamus commanding the respondents to grant pension and other retiral benefits to them .
3. The petitioners, who are five in numbers, were engaged as Seasonal Collection Amin on different dates in Tehsil Sadar, District Maharajganj. Their services were regularized and all of them have retired. The details of all the petitioners in respect of their date of engagement, regularization, and retirement are given in the table below:-
Sl. No. Name of petitioners Date of Engagement Date of Regularization Date of Retirement
1. Kaushal Kishore Chaubey 05.07.1976 31.05.2012 31.05.2018
2. Nar Singh 20.03.1984 23.12.2011 31.01.2018
3. Ravindra Kumar Dubey 29.08.1989 25.10.2016 20.09.2019
4. Madan Prasad 03.02.1990 24.12.2011 31.01.2020
5. Ramesh Chandra Pandey 10.03.1987 09.09.2012 31.07.2016
4. It is stated in the writ petition that the petitioners had worked as Seasonal Collection Amin continuously except with some artificial break before they were regularized on the post of Collection Amin. The petitioners were granted the pay scale applicable to the regular Collection Amin and their salary was revised from time to time with the approval of the competent authority, therefore, the working of the petitioners cannot be treated as Seasonal Collection Amin rather they were temporary employees, hence, after retirement, they are entitled to retiral benefits including the pension because of Regulation 368 & 370 of the U.P. Civil Service Regulations.
5. As the petitioners are entitled to all the retiral benefits including pension, accordingly, they submitted a representation to respondent no.2-District Magistrate/Collector, Maharajganj to grant them all the retiral benefits including pension, but the competent authority informed them that since they had discharged their duties as Seasonal Collection Amin before their regularization, therefore, they are not entitled to the pension and other retiral benefits.
6. Further, the case of the petitioners is that the petitioners have served as Collection Amin for more than three decades, therefore, the respondent authority has acted arbitrarily and malafidely in not extending the benefit of pension to the petitioners.
7. In the counter affidavit of the respondent nos. 2 and 3, the assertions made by the petitioners in respect of their engagement as Seasonal Collection Amin and their regularization have not been denied. However, in paragraphs nos.10 & 11 of the counter affidavit, it is averred that the petitioners are not entitled to the pensionary benefits in view of Government Orders dated 15.09.2011, 19.05.2016, and 15.05.2009 and further in view of Uttar Pradesh Retirement Benefits (Amendment) Rules, 2005 which clarified that the persons appointed on or after 01.04.2005 are not covered by Pension Rules. It is further stated that whatever post-retiral benefits were due to the petitioners, they have been paid.
8. Strangely, a separate counter affidavit has been filed by respondent no.1 stating therein that the services rendered by the petitioners as Seasonal Collection Amin before regularization is liable to be counted for the qualifying period of 10 years service for the purpose of giving pension and other retiral benefits. Paragraph no.2 of the counter affidavit of respondent no.1 is being extracted here-in-below:-
" 2. That in the present petition, the petitioners continued to work on the post of seasonal collection Amin and their scales were also being revised and subsequently, their services were regularized and they have retired from their posts therefore, the services rendered by the petitioners as seasonal collection Amin before their regularization is liable to be counted for the qualifying period of 10 years for the purpose of giving pension and other retiral benefits."
9. Learned counsel for the petitioners contended that the action of the respondent authorities in not extending the benefit of pension and other retiral dues to the petitioners on the pretext that the claim of the petitioners relating to their post retiral benefits are governed by the various Government Orders, referred above, and Rule 2005, hence, the petitioners are not entitled to the benefits of U.P. Retirement Benefits Rules, 1961 is incorrect and not sustainable in law. He further contends that since, undisputedly the petitioners have been engaged as Seasonal Collection Amin between the year 1976 to 1990 and they have been extended all the benefits, like the revision of pay scale, etc. as applicable to regular Collection Amin, therefore, the nature of appointment of the petitioners is temporary and as the Fundamental Rules 56 applies to them, therefore, it is wrong to contend that they are not entitled to pension and other retiral benefits having been appointed after 01.04.2005.
10. It is submitted that the petitioners have been appointed on various dates between the year 1976 to 1990 and because of their continuance in service, their services have been regularized, therefore, it is wrong to assume that the date of appointment of the petitioners is the date of their regularization and not the date on which they have been engaged as Seasonal Collection Amin.
11. In support of his contention, learned counsel for the petitioners has placed reliance upon the judgments of this Court in the case of Board of Revenue through its Chairman: The District Magistrate and Up--Zila Adhikari Vs. Prasidh Narain Upadhyay, reported in 2006 (5) AWC 5194 (DB); Gulaichi Devi Vs. State of U.P. and Ors., reported in 2019 12 ADJ 547; State of U.P. and others Vs. Ram Sunder Ram, reported in 2016 34 LCD 2804 (DB); Babu Lal Tewari Vs. State of U.P. and others reported in 2019 (3) ADJ 501 and also the judgment of the Apex Court in the case of V. Sukumaran Vs. state of Kerala and another, reported in 2020 4 Supreme(SC) 509.
12. Per-contra, learned Additional Chief Standing Counsel would contend that the petitioners are not entitled to the pensionary benefits and other retiral benefits in view of the Government Orders dated 15.09.2011, 19.05.2016, and 15.05.2009 and Uttar Pradesh Retirement Benefits (Sansodhan) Rules, 2005.
13. She further contends that the date of regularization of the petitioners shall be taken to be the date of their substantive appointment, and since all the petitioners have been regularized after 01.04.2005, therefore, they are not entitled to the pension and other retiral benefits, and whatever benefit was due to them, that had already been paid to them, as such the writ petition lacks merit and deserves to be dismissed.
14. I have considered the rival submissions advanced by learned counsel for the parties and perused the record.
15. Before dealing with the submissions of learned counsel for the parties, it would be appropriate to have a glance at various pronouncements of Apex Court as well as of this Court dealing with the questions as to whether the services rendered as daily wager or work charged employee, etc. are to be counted for pension or not.
16. In the case of V. Sukumaran (supra), the Apex Court has emphasized that the pensionary provisions must be given a liberal construction being a social welfare measure; it does not mean that something can be given contrary to rules, but the purpose of grant of such pension must be kept in mind while interpreting pensionary provision. It emphasized that the grant of pension is to facilitate a retired Government employee to live with dignity in his winter of life, therefore, such benefit should not be denied to an employee unreasonably on mere technicalities.
17. In the case of State of U.P. and others( supra), the Division Bench of this Court repelled the contention of the counsel for the State of U.P. that the respondent in the appeal is not entitled to the pension and other pensionary benefits as he did not hold any regular post and worked on the non-pensionable establishment on the availability of work and fund. The relevant paragraph nos. 10, 12, 13 & 14 of the judgment are being reproduced here-in-below:-
"10. Dr. Hari Shankar Ashopa v. State of U.P. and Ors. 1989 ACJ 337 after referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations, this Court observed that Clause (e) of Rule 56 unequivocally recognizes, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation, or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Clause (a) or Clause (b) or who is required to retire, or who is allowed to retire under Clause (c) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied.
12. We have occasion to peruse the entire record in question and find that the petitioner-respondent was initially appointed on the post of Temporary Seasonal Collection Peon in agriculture department on 27.5.1970 and subsequently on 31.9.1975 his services were retrenched. Taking shelter of the Government order dated 6.3.1977, which provided that the retrenched employee was to be absorbed in revenue department on the basis of seniority, the petitioner was again appointed on the post of Temporary Collection Peon on 4.2.1981 on substantive post and he worked continuously without any break upto 1.1.1990. Thereafter the petitioner's services were regularized on the post of Collection Peon w.e.f. 1.1.1990. The petitioner has retired on attaining the age of superannuation on 30.6.2004. The petitioner filed the writ petition in question in the year 2007 for counting his temporary services on the post of Temporary Collection Peon from 4.2.1981 to 1.1.1990. Learned Single Judge has proceeded to dispose of the writ petition in question on 16.3.2009 with the following observations:-
"Thus in view of the mater, the contention of the respondents that the service rendered by the petitioner as Temporary Collection Peon is not liable to be taken into consideration for the purpose of computing petitioner's pension is clearly misconceived and is rejected. Respondents are liable to consider the temporary continuous service rendered by the petitioner on the post of Collection Peon from 4.2.1981 to 1.1.1990 for the purpose of computing his pension.
For the aforesaid reasons, the writ petition is finally disposed of with a direction to the petitioner to file a fresh comprehensive representation for revision of his pension on the grounds raised in the present writ petition alongwith the certified copy of this order before the respondent no.2 within two weeks from today and in case any such representation is preferred by the petitioner as directed above, the same shall be considered and decided by the respondent no.2 strictly in accordance with law by a reasoned and speaking order after taking into consideration the service rendered by the petitioner on the post of Temporary Collection Peon from 4.2.1981 to 1.1.1990 as expeditiously as possible preferably within a period of two months from the date of receipt of the petitioner's representation."
13. The service record of the petitioner, which is appended alongwith supplementary affidavit filed by the State on 22.12.2015, clearly reveals that no doubt the petitioner was initially inducted in the agriculture department as Seasonal Collection Peon on temporary basis in the year 1976 but he had been accorded regular pay scale and the increment was also given by the department concerned on 1.2.1986 and thereafter he was paid regular pay scales. The engagement of the petitioner was made against substantive post and this is admitted case that he has been accorded pay scales and regular increments and at no point of time the said document had been disputed by the appellants.
14. In the case of Dukh Haran Singh (supra) the Court has taken a view that the petitioner does not qualify for grant of pension as in terms of Regulations 361 and 370 of the Regulations, the services rendered prior to that are neither substantive, permanent nor temporary. The same would not be applicable in the present case as the relief, which has been accorded by learned Single Judge is in consonance with the Regulations wherein the petitioner had been accorded pay scale and other benefits against substantive post and as such, his claim cannot be negated on the ground that his nomenclature was as seasonal. The same would not help to the appellants-respondents."
18. In the case of the Board of Revenue (supra), the Division Bench repelled an argument that the respondent was a Seasonal Collection Amin, therefore, he was not entitled to pensionary benefits. The Court after noting the ingredients of 'qualifying service' defined in Section 1 Chapter XVI of Article 361 of the Civil Service Regulations held that the Conditions (B) of Article 361 of Civil Service Regulations is inconsistent with Fundamental Rule 56, and thus, is inoperative. The Court also observed that the continuous working of the respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea. Relevant paragraph nos.12, 13 & 16 of the judgment are being extracted here-in-below:-
"12. The term "qualifying service" is 'defined in Section 1 Chapter XVI of Article 361 of the Civil Service Regulations, which provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions:-
(A) The service must be under Government.
(B) The employment must be substantive and permanent.
(C) The service must be paid by government.
13. In the present case, so far as the condition Nos.A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B, i.e., lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P. Act, No.24 of 1975 which allows retirement of a temporary employees also and provides in Clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was made by an Act of Legislature, the provisions contained otherwise under Civil Service Regulations, which are pre-constitutional, would have to give way to the provisions of Fundamental Rule 56. In other words the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Conditions (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus is inoperative.
16. Learned counsel for the appellants further submitted that since in the service book, the petitioner-respondent was also shown as Seasonal Collection Peon and, therefore, the mention of word "temporary" as his initial appointment will not make any difference. We do not agree. The contention of the appellants that the petitioner-respondent was a Seasonal Collection Peon and his engagement and post was extended from time to time by the Commissioner is totally unsubstantiated, as nothing has been brought on record to substantiate this plea. Even otherwise the continuous working of the petitioner-respondent for more than 37 years cannot be ignored on the basis of a vague and unsubstantiated plea sought to be raised by the appellants. The statutory right of the petitioner-respondent following by rendering service for such a long service, cannot be brushed aside lightly."
19. In the case of Babu Lal Tewari (supra), the Court has considered the definition of ''qualifying service' defined in Section 1 Chapter XVI of Article 361 of the Civil Service Regulations, and held that Condition (B) of Article 361 of Civil Service Regulations being inconsistent with Fundamental Rule 56 is inoperative. The Court repelled the argument of the respondent-State that as the petitioner has not completed 10 years service as regular employee since prior to that he was appointed as temporary employee as Peon, therefore, he is not entitled to pensionary benefits. Relevant extract of paragraph no. 11 is being reproduced here-in-below:
"11. Even otherwise, I find that Fundamental Rule, 56, as operative in Uttar Pradesh made by provincial legislation, clearly provides that any person who retires under Fundamental Rule 56 would be entitled for retiring pension. Fundamental Rule 56 since it is provincial enactment would prevail over Civil Service Regulations, which are pre-constitutional provision. This aspect was considered by a Division Bench of this Court in Prasidh Narain Upadhyay (supra), and the Court held:
"12. The term "qualifying service" is defined in Section 1 Chapter 16 of Article 361 of the Civil Service Regulations which provides that the service of an officer does not qualify for pension unless it conforms to the following three conditions:
(A)The service must be under Government.
(B)The employment must be substantive and permanent.
(C)The service must be paid by Government.
13. In the present case, so far as the condition Nos. A and C are concerned, they are satisfied and the dispute is only with respect to condition No. B, i.e. lack of permanent character of service. However, in our view, the aforesaid provisions stand obliterated after the amendment of Fundamental Rule 56 by U.P. Act No. 24 of 1975 which allows retirement of a temporary employee also and provides in Clause (e) that a retiring pension is payable and other retiral benefits, if any, shall be available to every Government servant who retires or is required or allowed to retire under this Rule. Since the aforesaid amendment Rule 56 was Service Regulations, which are pre-constitutional would have to give way to the provisions of Fundamental Rule 56. In other words, the provisions of Fundamental Rule 56 shall prevail over the Civil Service Regulations, if they are inconsistent. Condition B (supra) of Article 361 of Civil Service Regulations are clearly inconsistent with Fundamental Rule 56 and thus, is inoperative.
14. A similar controversy came up for consideration earlier before this court in the case of Dr. Hari Shanker Ashopa Vs State of U.P. and others, 1989 ACJ 337. After referring to the Fundamental Rule 56 and various provisions contained in Civil Service Regulations, this Court observed as under:
"Clause (e) of Rule 56 unequivocally recognizes, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation, or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Clause (a) of Clause (b), or who is required to retire, or who is allowed to retire under Clause (C) of Rule 56, becomes entitled for a retiring pension, of course, the first and third conditions stipulated in Article 361 of the Regulations are satisfied."
20. In the case of Gulaichi Devi (supra), after analyzing the various pronouncements, the Court has held that a temporary employee appointed on the various establishment of the Government is entitled to the pension under Fundamental Rules, 1956.
21. Undisputedly, the fact in the instant case is that the petitioners have been engaged as Seasonal Collection Amin between the year 1976 to 1990 and their services have been regularized between the years 2011 to 2016 and they have been extended all the benefits like the revision of pay with the approval of the competent authority as paid to the regular Collection Amin. The duties which have been discharged by the petitioners while working as Seasonal Collection Amin was similar to the duties discharged by regular Collection Amin, and on continuance and satisfactory services rendered by them as Seasonal Collection Amin , they have been regularized in service as per Rules. Thus, from the facts narrated above, it is evident that though the nomenclature and nature of appointment to the petitioners were Seasonal Collection Amin , but as a matter of fact, they meet all the requirements to be treated as temporary employees as held by the Apex Court in the case of A.P. Srivastava Vs. Union of India and others, (1995) 3 UPLBEC 1842 (Supplement), [ See also Ram Pratap Vs. State of U.P., 2006 (4) ADJ 709, Babu Singh Vs. State of U.P., 2006 (8) ADJ 371, Kedar Ra-I Vs. State of U.P., 2008 ILR (All) 659, Ram Sajiwan Maurya Vs. State of U.P. and others, Writ Petition No.3031 (S/S) of 2004 (decided on 12 August 2009), Kanti Devi Vs. State of U.P., 2009 (10) AJD 18, Kishan Singh Vs. State of U.P., 2009 (9) ADJ 516 & Awadh Bihari Shukla Vs. State of U.P., 2015 (6) ADJ 186 ].
22. From the judgments referred above, it is clear that the Courts has consistently held that the services rendered by an employee either as work charged employee or Seasonal Collection Amin are to be counted for granting the pensionary benefit to them, and the nomenclature of their appointment, be a daily wager, temporary or whatever, is not material to consider their claim for grant of pensionary and retiral benefits.
23. Further, it is also pertinent to mention that the petitioners have worked for decades as Seasonal Collection Amin discharging the same duty which has been discharged by the regular Collection Amin and have been extended same benefits which have been extended to the regular Collection Amin, therefore, in such factual scenario denying the petitioners the benefit of pension and other benefits which have been extended to Regular Collection Amin would not only be arbitrary but against the concept of the right to equality as enshrined in Article 14 of the Constitution of India.
24. In view of the above discussion and given the law elucidated by the Apex Court as well as by this Court in various pronouncements referred above, the services rendered by the petitioners as Seasonal Collection Amin cannot be ignored for extending the benefits of pension and other retiral benefits to them on the pretext that their appointment is to be treated from the date of regularization and not from the date of their engagement as work charged employee.
25. Consequently,the writ petition is allowed. A writ of mandamus is issued to the respondent to compute pensionary benefit payable to the petitioners after taking into account their entire service including the service rendered by them as Seasonal Collection Amin. The amount payable to the petitioners shall be computed within three months from the date of presentation of a copy of this order downloaded from the official website of Allahabad High Court, and the same shall be paid within the next two months. The respondents shall also continue to pay current pensionary benefits as and when the same fell due.
Order Date :-08.10.2021 NS