1. Heard Sri Rakesh Kumsr Srivastava, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.
2. The petitioners in Writ Petition No.444(S/S) of 2013 (hereinafter after referred to "first petition") admittedly, have worked in work-charged establishment and after attaining the age of superannuation, some of them have retired and some of them are working at the time of filing writ petition. They are aggrieved by Rule 3(8)(ii) of U.P. Retirement Benefits Rules, 1961 (hereinafter referred to as "Rules, 1961") whereby service rendered in work-charge establishment does not qualify for pension. It reads as under:
(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 service 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"
3. He placed reliance on Apex Court's decision in Dakshin Haryana Bijli Vitran Nigam Vs. Bachan Singh, (2009) 14 SCC 793, Punjab Electricity Board Vs. Narata Singh and another, 2010 (4) SCC 317, Full Bench judgment in Kesar Chand Vs. State of Punjab and Ors., AIR 1988 Punjab & Haryana 265 and Single Judge judgment of Nainital High Court In Rameshwar Vs. State of Uttarakhand and others, Writ Petition No.401 of 2005 (S/S) decided on 16.09.2010.
4. The facts pleaded in the writ petition to assail vires of Rule 3(8)(ii) of Rules, 1961 and the relevant averments, if any, this Court finds in paras 16 to 22 of first petition, which read as under:
"16. That it is submitted here that the petitioners are government servant from the dates of their engagement in the work charged establishment and have been paid from the Government Revenue and Government Fund and as such they cannot be excluded from the purview of the Rules, 1961 in relation to pension and the provisions of the impugned rule 3(8)(ii) of the Rules, 1961 excluding the services of the petitioners rendered in work charged establishment are totally arbitrary, discriminatory and violative of Article 14 of the constitution of India.
17. That it is submitted here that the pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government Servant to receive pension is a right to property and a Government Servant cannot be deprived of this right save by legislation which, too, has to satisfy the test of Article 14 of the Constitution of India.
18. That the principles underlying the guarantee of Article 14 of the Constitution of India is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed and equal laws would have to be applied to all in the same situation and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
19. That the impugned rule 3(8)(ii) of the Rules 1961 says that the period of service in a work-charged establishment shall not be taken into account in calculating the qualifying service.
20. That it is submitted here that even the temporary or officiating service under the state government has to be reckoned for determining the qualifying service under the impugned rule. After the service of a work-charged employee has been regularized he becomes a public servant and his service from the very beginning is under the Government and is paid by it and once the services of a work-charged employee have been regularized, there is no reason to deprive him of the pensionary benefits as are available to other public servants under Rule 3(8) of the Rules, 1961.
21. That the classification which is sought to be made amongst government servants who eligible for pension and those who started as work- charged employees and their services regularized subsequently, and the others is not based on any intelligible criteria and, as such the same is not sustainable at law.
22. That it is pertinent to mention at this juncture that the service rendered in a work charge establishment which falls between to periods of temporary service or between a period of temporary service and permanent service will not constitute an interruption of service and the same has to be counted for qualifying service under the impugned rule itself."
5. In the connected petition No.4506 (S/S) of 2013 (hereinafter referred to as "second petition") also the averments are same.
6. It has to be examined whether the pleadings are sufficient to hold that service rendered in work-charged establishment is same as that of employee in regular establishment so as to render impugned provision irrational or arbitrary.
7. This Court in Bansh Gopal Vs. State of U.P., 2006 (3) ESC 2428 and State of U.P. Vs. Ram Pratap Shukla, 2008 (3) ESC 2123 held that service rendered in work-charged would not qualify for pension and a work-charged employee would not be entitled for pension.
8. No doubt, in those matters validity of Article 370 of Civil Service Article (hereinafter referred to as "CSR") was not involved. The regular establishment and work charged establishment came to be considered by a Full bench of this Court in Pawan Kumar Yadav Vs. State of U.P. and others, 2011 (1) AWC 1028 and in para 20 thereof, the Court said:
"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 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." (emphasis added)
9. The pleadings, as noticed above, do not show as to how employees of regular establishment are placed identical with those of work-charged establishment. The pleadings are vague and lacks specific details. By merely relying on a Full Bench judgment of Punjab and Haryana High Court and others cannot help petitioners to assail statutory rules framed under proviso to Article 309 before this Court applicable to the State of U.P.
10. Validity of this entire provision has been challenged without any factual foundation or pleading. Moreover, in absence of any factual averment to demonstrate, how a work charge establishment and service rendered therein can be treated at par with service in regular establishment and service rendered therein, it cannot be said that there is any discrimination or arbitrariness on the part of rule framing authority so as to create a distinction between the two. It is not that Article 370(ii), CSR has been challenged in the present writ petition but petitioners have prayed that Article 370 should be struck down and that too, without demonstrating as to how and in what manner the aforesaid provision is bad or is ultra vires.
11. Now coming to the decisions in Punjab Electricity Board Vs. Narata Singh (supra), I find that vide this judgment, Apex Court has not declared any provision bad or ultra vires. It appears that similar to Article 370(ii), there was Rule 3.17(ii) in Punjab Civil Services Rules, validity whereof was challenged before Punjab and Haryana High Court in Kesar Chand (supra). A Full Bench declared Rule 3.17(ii) of Punjab Civil Services Rules ultra vires and violative of Article 14 of Constitution and consequently, struck it down. Special Leave Petition was preferred by the State Government before Apex Court but the same was dismissed rendering the judgement of Punjab and Haryana High Court final. Mere dismissal of a Special Leave Petition does not make a judgement of High Court to be that of Supreme Court. It shall result in rendering the High Court judgement final and does not raise the status of High Court judgement to be that of Supreme Court, so as to be a binding law on all other Courts. (See Supreme Court Employees' Welfare Association Vs. Union of India and Anr., (1989 ) 4 SCC 187; State of Manipur Vs. Thingujam Brojen Meetei AIR 1996 SC 2124; Kunhayammed Vs. State of Kerala (2000) 6 SCC 359; S. Shanmugavel Nadar Vs. State of Tamilnadu (2002) 8 SCC 361=JT 2002(7)SC 566; U.P.S.R.T.C Vs. Omaditya Verma (2005) 4 SCC 424; National Housing Cooperative Society Ltd. Vs. State of Rajasthan and Others (2005) 12 SCC 149; Pernod Ricard India (P.) Ltd. Vs. Commissioner of Customs JT 2010 (7) SC 602 = (2010) 8 SCC 313; Meghmala & Ors. Vs. G. Narasimha Reddy & Ors 2010(8) SCC 383 and Gangadhara Palo Vs. Revenue Divisional Officer & Anr (2011) 4 SCC 602.
12. Judgment of another High Court may have a persuasive value but shall not be binding like that of a law, laid down by Apex Court. Here also, what is binding, is ratio laid down by Apex Court in a judgment and not an order, where no issue has been considered and adjudicated by Apex Court. Learned counsel for the petitioner could not show anything in the aforesaid judgment i.e., Narata Singh (supra), whereby Apex Court considered vires of Rule 3.17 (ii) itself and has decided the issue. Since it was already struck down by the High Court and that judgment attained finality after dismissal of Special Leave Petition, and for the employees of State of Punjab, that Rule becomes non est. In that view of the matter, natural consequence thereof will have to be applied to concerned persons only. It is not so, so far as this Court is concerned.
13. In the above case, an employee of Punjab State Electricity Board was denied benefit of service rendered by him in work charge in the Punjab State Government. He challenged the same on the ground that Punjab State Electricity Board has decided vide memo dated 25.11.1985 to adopt letter dated 20.5.1982 of Department of Finance, Government of Punjab, in order to allocate liability of pension in respect of temporary service rendered under the State Government. Looking to these facts, the Apex Court noticed that the Board had already resolved to give due credit to temporary service rendered in the State Government for the purpose of computing qualifying service for pension and the provision, which excluded service rendered in work charge as qualifying service having already been struck down by a Full Bench of High Court, there was no provision existing in Punjab Civil Services Rules authorising the Board or State Government, not to give due credit to the service rendered in work charge. Hence denial otherwise was bad. It is in these circumstances, the Division Bench decision of Punjab High Court was upheld.
14. Despite repeated query, Sri R.K.Srivastava, learned counsel for the petitioner could not point out any finding of Hon'ble Supreme Court to go into validity of Rule 3.17 (ii) of Punjab Civil Services Rules itself and deciding thereof.
15. The next decision is Dakshin Haryana Bijli Vitran Nigam v. Bachan Singh reported in (2009) 14 SCC 793. Therein also, I find that the Court referred Full Bench of Punjab and Haryana High Court in Kesar Chand (supra) since this case had also cropped up from the State of Haryana. Following Full Bench decision, the High Court had granted relief to Sri Bachan Singh whereagainst Dakshin Haryana Bijli Vitran Nigam brought the matter to Apex Court. In paras 15 and 16 of the judgment, the Court referred to discussion made by High Court in Kesar Chand (supra) while considering validity of Rule 3.17(ii). Therefrom it is evident that after considering the pleadings available in Kesar Chand (supra), the High Court found that the distinction brought before them by State Government could not show any intelligible differentia.
16. In the present case, there is no pleadings. No facts have been pleaded to show that distinction in work charged establishment and regular one is artificial or unintelligible. There is not even a whisper in the entire writ petition to show that work charged establishment and service rendered therein should be held at par with regular establishment and service rendered therein. On the contrary, this Court is justified in taking judicial cognizance of the fact that distinction between work charged establishment and its employee as also that of regular establishment and its employee, as applicable in the State of U.P., has been noticed by a Full Bench of this Court in Pawan Kumar Yadav (supra) and therefrom, it cannot be said that distinction or differentia is unintelligible or arbitrary or artificial.
17. In Rameshwar Vs. State of Uttarakhan and others (supra), vires of Article 370(2) CSR was not gone into. It is a judgment of Hon'ble Tarun Agarwala, J. (while His Lordship was in High Court of Uttarakhand, at Nainital), wherein, it is true that validity of Article 370(2) CSR was challenged. However, in para 20 of the Judgment, Court declined to go into the question of vires of the aforesaid provision, as is evident from the following:
"20. In view of the aforesaid, this court is of the opinion that it is not necessary to go into the question as to whether sub-clause (ii) of Article 370 of the C.S.R. is ultra vires Article 14 of the Constitution of India. All the aforesaid writ petitions are allowed. The impugned orders are quashed. The petitioners, having retired, after regularisation, from a substantive and permanent post, are eligible for pension and other post retiral benefits. The respondents are directed to release the pension and other post retiral dues within three months from the date of production of the certified copy of this order, failing which the respondents would be liable to pay interest @ 8 % per annum. It is further held that those employees, who have not retired as yet, but, have been regularised and are working on a substantive and permanent post would also be eligible for pension and other post retiral dues upon their superannuation from the service." (emphasis added)
18. The aforesaid decision, therefore, does not help the petitioners in his submission that Article 370 has already been struck down by the High Court of Uttarakhand (at Nainital).
19. The next decision is Chhedi Ram Maurya Vs. U.P. Basic Education Board and others 2008(4)AWC 3546, but there also I find nothing, which may help petitioner in any manner. On the contrary, I find a reference to the Apex Court decision in Prabhu Narain and others Vs. State of U.P. and others 2004(13) SCC 662 whereby the Court upheld non-grant of retiral benefit to work charge employees. It also relied on its earlier decision in Raj Narain Prasad Vs. State of U.P. , 1998 SCC (L & S)1697.
20. There is one more Full Bench Judgment of High Court of Uttarakhand at Nainital in Madan Mohan Chaudhary Vs. State of Uttaranchal and others 2011(1) U.D.6 (Writ Petition No. 284/04 (S/B) decided on 6.1.2011). There the question up for consideration before the Full Bench was :
"Whether, the Government Order dated 1st July 1989, referred in the judgment of the Division Bench (in Special Appeal No. 225 of 2008, State of U.P. and another Vs. Pitamber Dutt Sanwal, arisen out of Writ Petition No. 843 (S/S) of 2003) applies to work-charge employees, or not?"
21. This decision rather goes against petitioners. Referring to Articles 361, 368 and 370 of CSR, the Court, in paras 5, 8 and 11, observed:
"A perusal of Article 361 read with Article 368 and 370 of the CSR clearly indicates that the service does not qualify unless the officer holds a substantive office on a permanent establishment and that the period of service in a workcharged establishment will not qualify service for the purpose of pension. The underlying reason is that a workcharged employee is not holding a substantive post on a permanent establishment." (Para-5) " The genesis of receiving a pension is indicated in Article 361 of the CSR. One such condition is that the employment must be substantive and permanent which is reiterated in Article 368 of the CSR. Article 370(ii) excludes periods of service spent in a workcharged establishment for the purpose of calculating the qualifying service.
..........A workcharged employee is not working on a substantive post and is specifically excluded under clause (ii) of Article 370 of the CSR. Consequently, the period rendered in a workcharged establishment cannot be included for claiming pension. Sub Rule (8) of Rule 3 of the U.P. Retirement Benefit Rules, 1961, supports this view. Said sub Rule defines qualifying service with the note that if a person serves in a pensionable job, then in work-charge establishment, and again there after in regular service, such interruption would not be disqualification. Similar provision is contained in Article 422 of the CSR." (Para-8) "Para 669 of Financial Hand Book, Volume VI, provides that members of workcharged establishment are not entitled to pension except the conditions mentioned therein like in the case of getting injured in the accidents etc." (Para-11) (emphasis added)
22. Lastly a recent decision of Division Bench of this Court at Lucknow in State of U.P. Vs. Prem Chandra and others [Special Appeal No. 264 of 2013 (Defective) decided on 13.05.2013] has been cited to contend that therein this Court has read down Article 370 of CSR so as to grant benefit of service rendered in work-charged establishment for the purpose of pension. I find that the Division Bench has dismissed the appeal holding that in fact, learned Single Judge has granted parity with similarly situated employee and Article 370 has to be read down in the light of judgment of Apex Court in Punjab Electricity Board Vs. Narata Singh (supra). I asked learned counsel for the petitioner to show as to in what manner, he can claim that Article 370 CSR can be read down, particularly when, the finding recorded by learned Single Judge in the instant case, vis a vis Article 370, has been confirmed and while remanding the matter, the Court specifically said that only the question of vires shall be considered by learned Single Judge and nothing more than that. Moreover, the Apex Court in Narata Singh (supra) itself has not considered the question of validity of any provision. As I have already discussed above, in my view, in the present case, no benefit can be extended to the petitioner unless the question whether Article 370 CSR is valid or not, is decided in his favour.
23. Unless pleaded and proved otherwise, as it is generally known, a work charged establishment and its employees stand on a different footing than the regular establishment and its employees. The rigour of selection and appointment governed by Rules in respect of employees of regular establishment is not applicable to work charged establishment and its employees. The degree of responsibility, liability, etc. is much different in the two establishments.
24. Different nature of work charged establishment has been noticed by the Apex Court in State of Himachal Pradesh v. Suresh Kumar Verma AIR 1996 SC 1565 : 1996 (7) SCC 562 and the Court said that work charged employees perform duties of transitory and urgent nature so long as the work exists (in a particular project) and merely because a work charge was engaged in one or another project, does not make his service regular without there being a permanent post.
25. In Ajmer Vidyut Vitran Nigam Limited Vs. Navin Kumar Saini,JT 2010 (11) SC 427 SC, the employees in work charge claimed salary at par with the employees working in regular establishment. Negativing the contention, the Court said:
"......Further workmen were admittedly engaged as helpers in work charge establishment and in that view of the matter for applying the principle of equal pay for equal work, mere the volume of work, shall not be relevant, there being qualitative difference as regards the liability and responsibility. We are of the opinion that workmen were not entitled for the scale of pay of the junior clerk even on notional basis from the date of their engagement as helpers." (emphasis added)
26. I may also mention at this stage that though this Court has no benefit of having entire set of Rules i.e., Punjab Civil Service Rules applicable to the employees of Punjab but some provisions thereof have been quoted in Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi, (2008) 2 SCC 310 and therefrom, I find that Rule 3.17 deny temporary and officiating service rendered in non-pensionable establishment as qualifying service for pension while Rule 3.17A (g) permits the services rendered by an employee of work charge towards retirement benefits subject to certain conditions. Paras 9 and 10 of the judgment referring to the aforesaid provisions read as under:
"9. Rule 3.17 of the Rules provides that in the case of an officer retiring on or after 5th January, 1961, if he was holding substantively a permanent post on the date of his retirement, his temporary or officiating service under the State Government, followed without interruption by confirmation in the same or another post, shall count in full as qualifying service except in respect of the pension period of temporary or officiating service in non- pensionable establishment.
10. Rule 3.17-A(g) of the Rules inter alia provides that the entire service rendered by an employee as work-charged shall be reckoned towards retirement benefits provided:
(i) such service is followed by regular employment;
(ii) there is no interruption in the two or more spells of service or the interruptions fall within condonable limits; and
(iii) such service is a whole time employment and not part-time or portion of day."
27. In the above judgment of Uttar Haryana Bijli Vitran Nigam (Supra), the issue was regarding family pension. Having referred to relevant provisions, in paras 12, 13 and 14, the Court said as under:
"12. Para 11 of the said Scheme excludes the applicability of the scheme inter alia in relation to the work-charge staff. We may notice that in Kanta Devi (supra) the husband of the appellant therein was in temporary service. Construing Para 4(i) as also Note 1 appended thereto, the High Court held that as the husband of Kanta Devi completed more than one year in temporary service, she was entitled to family pension.
"13. We have noticed hereinbefore that Shri Krishan was a member of the Contributory Provident Fund. It has furthermore been noticed by us that even before the High Court the said position stood conceded but she opted for the Pension Scheme only because thereby she considered herself to be entitled to a higher amount.
14. The scheme relating to grant of Family Pension was made under a statute. A person would be entitled to the benefit thereof subject to the statutory interdicts. From a bare perusal of the provisions contained in the Punjab Civil Services Rules, Volume 2 vis-`-vis the Family Pension Scheme, it would be evident that the respondent was not entitled to the grant of any family pension. Husband of the respondent was a work-charge employee. His services had never been regularized. It may be unfortunate that he had worked for 11 years. He expired before he could get the benefit of the regularization scheme but sentiments and sympathy alone cannot be a ground for taking a view different from what is permissible in law. [See Maruti Udyod Ltd. v. Ram Lal and Others, (2005) 2 SCC 638, State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9) SCALE 549, Regional Manager, SBI v. Mahatma Mishra, 2006 (11) SCALE 258, State of Karnataka v. Ameerbi & Ors. 2006 (13) SCALE 319 and State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. [2007 (12) SCALE 72] The statutory provisions, as noticed hereinbefore, debar grant of family pension in favour of the family members as the deceased employee if was a work-charge employee and not a permanent employee or temporary employee. The period during which an employee worked as a work-charge employee could be taken into consideration only when his services are regularized and he becomes permanent and not otherwise.
Furthermore, there exists a distinction between a pensionable and non- pensionable establishment. Shri Krishan being a member of a non- pensionable establishment, Family Pension was not admissible. It is not a case where an employee had been given an option to opt for one or the other schemes. Once a person had opted for non-pensionable scheme, the question of his being entitled to pension or for that matter his family members becoming entitled to family pension did not and could not arise. The High Court only followed Kanta Devi (supra) without noticing the distinctive features thereof. As it is not necessary, we have not gone into the question as to whether Kanta Devi (supra) was correctly decided. Apart from the fact that the fact therein was different, evidently the questions which have been raised before us were not raised therein. The High Court, therefore, committed a serious error in applying Kanta Devi (supra) to the fact of the present case."
28. It is thus evident that there is no inherent defect in making a distinction between the service rendered in pensionable and non-pensionable establishment. In any case, pensionary benefits are applicable as per the Rules or Statute. It is no doubt true that if in a particular facts and circumstances a provision is found hit by Articles 14 or 16 of Constitution due to lack of intelligible differentia or artificial classification or otherwise arbitrary, such Rules would be bad and ultra vires, otherwise the same have to be impleaded as they are.
29. I also find that a similar challenge made to the vires of Article 370 CSR has already been repelled by this Court in Shri Rama Shankar Pandey (Seenchpal) Vs. State of U.P. & Ors., 2013(3) UPLBEC 2610.
30. Against the aforesaid judgment in Shri Rama Shankar Pandey (Seenchpal) (supra), Special Appeal Defective No. 23 of 2014 (Jai Prakash Vs. State of U.P. & 4 Ors.) was filed, which has been dismissed by a Division Bench vide judgment dated 9.1.2014 and while recording a clear finding that work charged employees are distinct and different than regular employees, this Court has said as under:
"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.
We are conscious that in Special Appeal Defective No.842 of 2013 (State of U.P. & Ors. Vs. Panchu) that was decided on 2 December 2013, a Division Bench, after taking notice of the judgment of the Supreme Court in Narata Singh (supra), observed that the rationale which weighed with the Supreme Court should also govern the provisions of the Civil Service Regulations, but what we find from a perusal of the aforesaid judgment of the Division Bench is that the decisions of the Supreme Court in Jagjiwan Ram (supra), Jaswant Singh (supra) and Kunji Raman (supra) as also the Full Bench judgment of this Court in Pavan Kumar Yadav (supra) had not been placed before the Court. These decisions of the Supreme Court and the Full Bench of this Court leave no manner of doubt that in view of the material difference between an employee working in a work charged establishment and an employee working in a regular establishment, the service rendered in a work charged establishment cannot be clubbed with service in a regular establishment unless there is a specific provision to that effect in the relevant Statutes. Article 370(ii) of the Civil Service Regulations specifically, on the contrary, excludes the period of service rendered in a work charged establishment for the purposes of payment of pension and we have in the earlier part of this judgment held that the decision of the Supreme Court in Narata Singh (supra), which relates to Rule 3.17(i) of the Punjab Electricity Rules, does not advance the case of the appellant. 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."
31. In view of the above discussion, both the writ petitions lack merit.
32. Dismissed.
33. Interim order, if any, stands vacated.
Order Date :- 23.9.2014 KA