Hon'ble Rakesh Srivastava,J.
1. Heard Mr. V.P. Nag, learned Standing Counsel appearing for the appellants.
2. This intra court appeal has been filed with some delay. It is accompanied with an application for condonation of delay along with an affidavit.
3. The cause shown in the affidavit is sufficient, even otherwise, we feel appropriate to condone the delay in filing of this appeal.
4. The delay is condoned.
5. Now we proceed to decide the appeal on merit.
6. Learned Standing Counsel submits that under similar facts and circumstances this Court in Special Appeal (Defective) 771 of 2014: State of U.P. through Principal Secretary Public Works Department Lucknow and others Vs. Ram Charan, has been pleased to dismiss the special appeal.
7. The controversy involved has been set at rest by the Apex Court in the case of Prem Singh versus State of U.P. and others (Civil Appeal No. 6798 of 2019) reported in 2019 SCC Online SC 1134.
8. Learned standing counsel submits that the writ Court by the impugned order was pleased to disposed of writ petition with a direction to opposite parties (present appellants) to consider the petitioner's case with regard to the claim of petitioner for payment of pensionary benefits.
9. We have considered the submissions and gone through the record.
10. In the case in hand, we find that respondent-writ petitioner was employed on 1.4.1971 as work charge employee. After considering the service record the appellants had regularized the respondent on 7.2.1995 on the post of Chowkidar in the pay scale of Rs. 750-940. Thereafter, he was declared as permanent employee on the post of Chowkidar on 27.1.2005. The respondent on attaining the age of superannuation retired on 31.3.2005.
11. The Apex Court in the case of Prem Singh versus State of U.P. and others (supra) held that such employees shall be entitled to receive pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. The relevant paragraph i.e. paragraph nos. 30 to 39 of the judgment are reproduced below:
"30. The submission has been urged on behalf of the State of Uttar Pradesh to differentiate the case between work-charged employees and regular employees on the ground that due procedure is not followed for appointment of work charged employees, they do not have that much work pressure, they are unequal and cannot be treated equally, work-charged employees form a totally different class, their work is materially and qualitatively different, there cannot be any clubbing of the services of the work-charged employees with the regular service and vice versa, if a work-charged employee is treated as in the regular service it will dilute the basic concept of giving incentive and reward to a permanent and responsible regular employee.
31. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma v. State of Uttar Pradesh (CA No.______2019 @ SLP (C) No. 5775 of 2018) the appellants were allowed to cross efficiency bar, after ?8? years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak w.e.f 15.9.1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs. 200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs. 205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation.
32. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment.
33. In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.
34. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.
35. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or nonpensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
36. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.
37. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.
38. 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.
39. All pending interlocutory applications and miscellaneous applications, if any, are disposed of.?"
12. Considering the law laid down by the Apex Court, the extract of which have been reproduced above, we find that the judgment under challenge has been passed while considering the relevant principles of law and does not call for interference in this intra court appellate jurisdiction.
13. The appeal is accordingly dismissed.
14. Interim order, if any, stands discharged.
[Rakesh Srivastava, J.] [Ritu Raj Awasthi, J.] Order Date :- 26.11.2019 Anurag