Hon'ble Attau Rahman Masoodi,J.
This writ petition seeks to challenge the validity of Regulation 370 (I) and (II) of the U.P. Civil Service Regulations and a further claim for the computation of past daily wage services has been made so as to qualify the minimum requirement of 10 years' service for the purpose of payment of pension. In so far as the validity of Regulation 370 is concerned, it is to be noted that the same has been questioned on the touchstone of Article 14 of the Constitution of India, however, the plea has not been dealt with in the writ petition on the strength of any cogent reasoning or justification except by making a reference to the Full Bench judgement rendered by Punjab & Haryana High Court, reported in AIR 1988 P&H 265.
At the outset we may note the position of law and the view expressed in a Full Bench judgement of this Court rendered in Writ-A No. 60352 of 2015 as regards the computation of past services rendered by an employee in a work charge establishment and the opinion so expressed for ready reference may be extracted as under:
"We accordingly conclude that the judgments of this Court which proceeded to follow Narata Singh failed to bear in mind the distinguishing features of the statutory regime in the backdrop of which it came to be delivered. As noted above, Rule 3.17(ii) of the Punjab Civil Service Rules had been struck down. The absence of Rule 3.17(ii) from the statute book formed the bedrock upon which Narata Singh was decided. Significantly, Regulation 370 continues to govern the field and in clear and unambiguous terms provides that the period of service rendered in a work charged establishment is liable to be excluded while computing qualifying service.
We therefore hold that the period of service spent in a work charged establishment is not liable to be countenanced for the purposes of computing qualifying service. The law in this regard stands correctly declared and elucidated in Jai Prakash, Navrang Lal Srivastava and Ram Nagina. The decision in Panchu and the other judgments of this Court which have followed the line of reasoning adopted therein shall accordingly stand overruled.
Before concluding, we may only refer to three judgments cited before us in support of the contention that the period of service rendered in a work-charged establishment was liable to be counted while computing qualifying service. These were (a) Dakshin Haryana Bijli Vitran Nigam & Others Vs. Bachan Singh 25; (b) Amarkant Rai Vs. State of Bihar & Others 26; and (c) Secretary, Minor Irrigation Deptt. & R.E.S. Vs. Narendra Kumar Tripathi 27. Dakshin Haryana Bijli Vitran Nigam was a matter which arose from a judgment rendered by the Punjab & Haryana High Court and was again based upon the judgment rendered by the Full Bench of that High Court in Kesar Chand. Amarkant Rai dealt with the regularization of the appellant who was working on daily wages. It obviously has no relevance to the issue which falls for our consideration. Similarly, Narendra Kumar Tripathi was dealing with an issue as to whether the period of service as rendered on ad hoc basis was liable to be counted for the purposes of seniority. This judgment too has no application to the issue which stands referred to this Full Bench.
We accordingly answer the reference by holding that the period of service spent by a person in a work charged establishment is not liable to be counted for the purposes of computing qualifying service. Regulation 370 of the Civil Service Regulations continues to govern and hold the field. The factual backdrop in which Narata Singh came to be rendered escaped the attention of the various Division Benches which followed it despite the existence of the unambiguous command of Regulation 370. Jai Prakash and the subsequent pronouncements following it and referred to above represent the correct position in law. The matter shall now be placed before the learned Single Judge for a decision on the writ petition in the light of what has been held above."
Once the services rendered in a work charge establishment do not inure to the advantage of an employee for its computation towards pensionery benefits, the present case of the petitioner who was initially employed as a daily wage employee and came to be regularised by order dated 19.6.2007, in our view, cannot claim the benefit of daily wage services contrary to what has been opined in the Full Bench decision mentioned above. To understand the controversy we may refer to the relevant regulations i.e. Regulation 361, 368 and 370 of the U.P.Civil Service Regulations and the same are reproduced below:
"361 - The service of an officer does not qualify for pension unless it confirms 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."
"368 - The service does not qualify unless the officer holds a substantive office on a permanent establishment."
"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 form contingencies."
In the context of statutory rules noted above, firstly, it is to be understood as to what is the true import of the rules having regard to the various modes in which appointments are made and secondly, as to which mode of appointment would entitle an employee for the payment of pension within the scope of Regulation 370. Thirdly, whether classification set out in Regulation 370 is violative of Article 14 of the Constitution of India or not requires to be dealt with by reading the entire scheme of the relevant rules and regulations.
The petitioner was initially engaged on daily wages on 7.11.1988. The petitioner, as per the government orders issued on 17.2.1999 and 19.2.1990, which provided for 3 years experience as daily wager coupled with 240 days service in each preceding year as on 11.10.1989, was not eligible to be considered for regularisation. He has also not laid any such claim for being considered to be regularised until the year 2007 when his services came to be regularised by order dated 19.6.2007. After regularisation in service by means of the order dated 19.6.2007, the petitioner having accepted the same has served the Lucknow Nagar Nigam in the said capacity till attaining the age of superannuation on 23.11.2014. This writ petition has come to be filed after about two years from the date of petitioner's retirement and that too under the garb of challenging the validity of Regulation 370, which is clearly an afterthought and law may also not support the contention raised by the petitioner for the reason that the petitioner once having accepted his regularisation by means of order dated 19.6.2007, cannot now turnaround and claim any benefit which he otherwise may not be entitled to under the statutory rules. Testing of an argument against the validity of Regulation 370 in the present case is more or less academic, yet it cannot be ignored for the reason that the petitioner has raised a challenge on the anvil of Article 14 of the Constitution of India.
The benefit of pension is a condition of service. It is clear from the scheme of regulations that an employee would qualify for pension provided he meets the requirements envisaged under the Civil Service Regulations. It is well settled that the conditions of recruitment cannot be relaxed and recruitment resorted to dehors the statutory rules is a nullity. The authoritative decision in this regard rendered by the apex court in case of State of Karnataka v. Uma Devi (2006) 4 SCC 1 lays down the law. When we analyze the petitioner's argument from this standpoint, a daily wage employee, in our considered opinion, cannot be equated with a regularly selected person. The apex court in a catena of judgements has spelt out the distinction, therefore, the classification based on the recruitment by following due procedure under the rules and through backdoor entry is well recognised. Once the classification in the matter of recruitment is recognised distinguishably, any challenge to a provision which grants protection of pension to the requisite length of substantive service alone, would be misconceived and contrary to the spirit of Article 16 of the Constitution of India. We may safely observe that any challenge to the validity of Regulation 370 which leads to diminish the distinction between the valid recruitment as per rules and backdoor entry is clearly an attempt to equate two unequal and distinguishable situations which have rightly been classified under Regulation 370. For achieving the goal of Article 16 of the Constitution of India, it is essential to draw such a distinction and the same would not impinge upon any fundamental right available to the petitioner under Article 14 of the Constitution of India, as such, challenge to the validity of Regulation 370 fails.
The petitioner in the instant case has not offered any justification as to how a daily wage employee can be equated with the employees who are recruited in service by following the stringent process of recruitment. The services rendered by a regular employee for that matter can neither be equalised in terms of financial implications nor treated at par with the services of a daily wage employee unless the rules so permit. Now coming to the judgement placed reliance upon by the petitioner, suffice it to say that the case of the petitioner is governed under a different set of rules. The petitioner has also not laid any foundation for establishing equivalence of his daily wage services to be at par with the services of a regularly recruited confirmed employee. Even the right to hold the post prior to the date of his regularisation in a substantive capacity is not established or construed in the light of any statutory rule; and it is also not made out as to how payment made to the petitioner out of contingencies may be treated as regular salary.
In the facts and circumstances of the case, we would not like to go into the aspect of drawing equivalence between the services rendered by the petitioner as daily wage employee to be taken at par with the services of a regular employee, and the authority of granting any such equivalence lies purely within the domain of the employer alone. The petitioner may be well advised to take up the matter with the employer for any such benevolent benefit which we do not find to be within the scope of existing rules. It is well settled that a plea which is unfounded deserves to be rejected, however, we leave it open to the employer to come out with any such beneficial scheme as may govern the cases of the like nature.
In view of above, the writ petition fails and is hereby dismissed.
Order Date :- April 04, 2016 MFA/-
Case :- MISC. BENCH No. - 6116 of 2016 Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Attau Rahman Masoodi,J.
The writ petition is dismissed vide our orders of date, on separate sheets.
Order Date :- April 04, 2016 MFA/-