Rejoinder affidavit filed by learned counsel for the petitioner is taken on record.
Heard Sri N.K. Pandey, learned counsel for the petitioner and Sri Rajesh Kumar, learned Standing Counsel for the State-respondent.
The learned counsel for the petitioner has submitted that the petitioner is claiming the benefit of service rendered by him in the department as work charge employee. He has submitted that the Hon'ble Apex Court has held in the matter of Prem Singh vs. State of U.P. and others (AIR 2019 SC 4390) that the services rendered by the employee in the work-charged establishment shall be treated to be qualifying service period for calculation of post retiral dues for grant of pension also. He has further submitted that the Division Bench of this Court in the matter of State of U.P. and others vs. Bhanu Pratap Sharma has also granted the benefit of Prem Singh (supra) to similarly placed employees, therefore, the present petitioner may be extended the benefit of order dated 09.06.2021 passed by the Division Bench of this Court in Special Appeal No. 97 of 2021. For ready reference, the order dated 09.06.2021 is reproduced herein below:-
"Matter is taken up through Video Conferencing.
Ms. Subhash Rathi, learned counsel appears on behalf of appellant.
State of Uttar Pradesh and its functionaries take exception to order dated 06.10.2020 passed in Writ A No.35301 of 2017.
The petition was filed against the non grant of pension which was denied on the anvil of Regulation 370 of the Civil Service Regulation.
Learned Single Judge on the findings that the petitioner was initially appointed on 25.04.1979 as Helper in Department of Irrigation, Jhansi., later regularized on 05.08.2006, and retired on attaining the age of superannuation on 31.01.2017 and relying on the decision in Prem Singh Vs. State of Uttar Pradesh and Others (AIR 2019 SC 4390) allowed the petition. In Prem Singh (supra) it is held:
"36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed.
The exception to impugned order is taken on the ground that with the promulgation of Uttar Pradesh Qualifying Service for Pension and Validation Ordinance (Ordinance No.19 of 2020) published in Uttar Pradesh Gazette (Extraordinary) dated 21.10.2020. It is urged that in view of newly promulgated Ordinance, particularly the non obstante clauses Section 2, 3 and 4, the petitioner is not entitled to claim the period of service from 1979 to 2006 as qualifying service for the pension. It is urged that the payment for said period and thereafter from the date of regularization was from the Contingencies fund.
The Ordinance 2020 is reproduced for ready reference:
"NO. 1877(2)/LXXIX-V-1-2020-2(ka)20-2020 Dated Lucknow, October 21,2020.
In pursuance of the provisions of clause (3) of Article 348 of the Constitution of India, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Pension Hetu Aharkari Sewa Tatha Vidhimanyakaran Adhyadesh, 2020 (Uttar Pradesh Adhyadesh Sankhya 19 of 2020) promulgated by the Governor. The Vitta ( Sammanya) Anubhag-3 is administratively concerned with the said Ordinance.
THE UTTAR PRADESH QUALIFYING SERVICE FOR PENSION AND VALIDATION ORDINANCE, 2020 (U.P. Ordinance no. 19 of 2020) (Promulgated by the Governor in the Seventy-first Year of the Republic of India).
AN ORDINANCE to provide for qualifying service for pension and to validate certain actions taken in this behalf and for matters connected therewith or incidental thereto.
WHEREAS, the State legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action;
NOW,THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor is pleased to promulgate the following Ordinance:-
1.(1) This Ordinance may be called the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020.
(2) It shall extend to the whole of the State of Uttar Pradesh.
(3) it shall be deemed to have come into force on April 1,1961.
2. Notwithstanding anything contained in any rule, regulation or Government order for the purposes of entitlement of pension to an officer, "Qualifying Service" means 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.
3. Notwithstanding any judgment, decree or order of any Court, anything done or purporting to have been done and may action taken or purporting to have been taken under or in relation to sub-rule (8) of rule 3 of the Uttar Pradesh Retirement Benefit Rules, 1961 before the commencement of this Ordinance, shall be deemed to be and always to have been done or taken under the provisions of this Ordinance and to be and always to have been valid as if the provisions of this Ordinance were in force at all material times with effect from April 1,1961.
4. Save as otherwise provided, the provisions of this Ordinance shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Ordinance.
ANANDIBEN PATEL Governor, Uttar Pradesh By order U.P. Singh-II, Pramukh Sachiv "
It is informed that this Ordinance has been enacted by U.P. Act No.1 of 2021 on 05.03.2021 as the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021.
It is clear from the perusal of section 2 of the Act of 2021 that it would have effect notwithstanding anything contained in U.P. Retirement Benefit Rules, 1961 or Regulation 361 and 370 of the Civil Service Regulation. Careful reading thereof, however, revels that "Qualifying Service" has been defined 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. In the counter affidavit filed by present appellant in the writ petition it was categorically admitted by the appellant that the petitioner was appointed in the office of Executive Engineer, Nalkoop Nirman Khand I, Bareilly on the post of Rig Assistant on work charge basis on 25.04.1979. Subsequently, the petitioner was regularized from work charge basis to regular establishment on the post of helper on 18.03.2006.
Thus admittedly, the petitioner was appointed on a post in work charge establishment. The record reveals that the initial appointment of the petitioner was as helper. Thus the post which is referred to in the counter affidavit is that of Helper on which he was regularized. The post of Helper thus permanently existed. Further more, it is not the case of the appellant that the respondent was not appointed in accordance with the provisions of Service Rules. Thus having been initially appointed on the post of Helper, the appellant were not justified in denying the service benefit.
The impugned order when tested on the anvil of above analysis cannot be faulted with.
In view whereof no indulgence is caused.
Consequently, appeal fails and is dismissed. No costs."
Learned Standing Counsel has tried to defend the impugned order dated 26.06.2021 passed by respondent no.05 which is contained as Annexure no. 7A to the writ petition referring the law on counting the total length of service but on being confronted showing the judgment of the Division Bench of this Court dated 09.06.2021 in re:- Bhanu Pratap Sharma (supra), learned Standing Counsel has submitted that if this Court may remand back the matter to the competent authority, appropriate decision will be taken in terms of the judgment in re:- Bhanu Pratap Sharma (supra) after verifying the facts and circumstances of the present case.
Accordingly, I hereby dispose of the present writ petition finally permitting the respondent no.05 to pass fresh order in the case of the petitioner in terms of the order dated 09.06.2021 passed by the Division Bench of this Court in re:- Bhanu Pratap Sharma (supra) and if the facts and circumstances of the case and legal position of the present case finds favour from the decision of the Division Bench of this Court in re:- Bhanu Pratap Sharma (supra), the appropriate order shall be passed in favour of the petitioner ignoring the order dated 26.06.2021 which is contained as Annexure No.7A to the writ petition. Such order shall be passed with expedition preferably within a period of ten weeks and the decision thereof shall be communicated to the petitioner forthwith.
The writ petition is disposed of in the aforesaid terms.
Order Date :- 16.8.2021 Vikas/-