Court No. - 5
Case :- WRIT - A No. - 129 of 2019 Petitioner :- Shesh Nath Pandey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anil Kumar Srivastava,Surendra Singh Chauhan Counsel for Respondent :- C.S.C.
Hon'ble Saral Srivastava,J.
Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the State- respondents.
The petitioner, by means of this writ petition, has prayed for the following reliefs:
(i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 20.01.2018 passed by respondent no.4, a copy whereof is contained in Annexure-1 to the writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the entire pensionary benefits to the petitioner after counting his earlier services rendered by him on work charge basis and treating the petitioner to have completed ten years services in the light of judgments of the Hon'ble Supreme Court."
The petitioner was appointed as Runner on 1.3.1979 on ad hoc basis in the Irrigation Department at Varanasi. His services were regularized with effect from 25.9.2008 and he retired from service on 31.10.2012. The petitioner has approached the authority concerned for the payment of retiral dues but vide order dated 20.1.2018(annexure-1 to the writ petition) the Superintending Engineer denied the claim of the petitioner for the payment of retiral dues on the ground that the services rendered as work charge employee could not be counted for the purposes of computing the "Qualifying Service" for pension and other retiral dues. In the aforesaid backdrop the petitioner has prayed for above reliefs.
In the counter affidavit it has been admitted that the petitioner was appointed as work charge employee on 1.3.1979 and the petitioner was posted vide letter dated 25.9.2008 by the Chief Engineer, Nalkoop Khand, Varanasi in the establishment as Runner where the petitioner joined on 23.10.2008. Thereafter, the petitioner retired from service on 31.10.2012. However the claim of the petitioner has been denied on the ground that the petitioner does not possess the "Qualifying Service" for grant of post retiral dues.
Challenging the aforesaid order, learned counsel for the petitioner submits that the petitioner was appointed on 1.3.1979 as Runner on work charge basis and his service was regularized on 23.10.2008 and retired on 31.10.2012. He further submits that when the services rendered by the petitioner as work charge employee were not counted, he filed a writ petition being Writ No. 59086 of 2017, which was disposed of vide judgment and order dated 12.12.2017 directing the authorities to decide the matter of the petitioner in the light of the judgment of the Hon'ble Apex Court in SLP (Civil) No.7434 of 2016 (Habib Khan Vs. State of Uttaranchal).
Learned counsel for the petitioner has further submitted that this Court in Special Appeal Defective No. 1003 of 2020 (State of U.P. and others Vs. Mahendra Singh) has held that once the opposite party has admitted the appointment of the petitioner on temporary basis, the petitioner under the U.P.Ordinance No.19 of 2020 dated Lucknow, October 21, 2020 is entitled to get the relief for counting his services for the purposes of "Qualifying Service" rendered in the judgment of Mahendra Singh (supra), where is extracted here-in-below:
"It is clear from perusal of Section 2of the Ordinance that it would have effect notwithstanding anything contained in U.P.Recruitment Benefits Rules, 1961 or Regulation 361 and 370 of the Civil Service Regulation. Though it has been informed at the bar that in certain writ petitions, validity of the aforesaid U.P.Ordinance has been challenged, however, even if for purpose of adjudicating the present appeal the Ordinance is accepted as it is, section 2 thereof would insure to the benefit to the opposite party-petitioner and not to the benefit of appellants, The work "Qualifying Service" has been defined in Section 2 of the aforesaid U.P.Ordinance to mean the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post.
As discussed aforesaid, the appellants have admitted the appointment of the opposite-party petitioner on temporary post of Godown Chakidar from04.09.1981 till the date of his appointment on a regular post in 1997. Therefore, under this very U.P.Ordinance, the petitioner is entitled to his claim for counting the period of his service from the date of his appointment on 04.09.1981 on a temporary post till his regularization on the permanent post in the year 1997."
Learned counsel for the petitioner has contended that the Apex Court in the case of Prem Singh vs. State of U.P. & Ors. decided on 02.09.2019 has held that the work charge period rendered by an employee shall be included for the purposes of pension and, therefore, the ground on which the pension of the petitioner has been denied is not sustainable.
Learned Standing Counsel submits that the period rendered as work charge employee shall not be counted for the purposes of service, therefore, the petitioner is not entitled for the same.
I have heard the rival submissions of the parties and perused the record.
It is admitted by the respondents the the petitioner was initially appointed as Runner employee on 01.04.1979 and had continued to work as work charge employee till 22.10.2008. The services of the petitioner was regularized on 23.10.2008 and he retired on 31.10.2012.
In view of the aforesaid fact that the petitioner has worked as work charge employee since 22.10.2008, the judgment of the Apex Court in the case of Prem Singh (supra) is applicable and the controversy as in the present case is concluded by the judgment of Apex Court in the case of Prem Singh (supra). Consequently, the services rendered by the petitioner in work charge employee are liable to be counted for the purposes of pension.
Considering the facts and circumstances of the case, the writ petition is allowed and a mandamus is issued to the respondent no.4-The Executive Engineer, Tube-well Construction Division, Irrigation Department Varanasi to add the service rendered as work charge employee in the services rendered by the petitioner as regular employee and pay the pension and other retiral dues to the petitioner in terms of judgment of Prem Singh (supra).
For the reasons given above, the writ petition is allowed. No order as to costs.
Order Date :- 27.7.2021 SKM