Allahabad High Court
Rajkeswar Prasad Dubey vs The Prin.Secy.Deptt.Of Agriculture ... on 30 January, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- WRIT - A No. - 12486 of 2019 Petitioner :- Rajkeswar Prasad Dubey Respondent :- The Prin.Secy.Deptt.Of Agriculture Marketing Lucknow And Ors. Counsel for Petitioner :- Alam Singh Counsel for Respondent :- C.S.C., N.C.Mehrotra Hon'ble Ramesh Sinha, J.
Hon'ble Subhash Vidyarthi, J.
1. Heard Shri Alam Singh, learned Counsel for the petitioner, Shri Indrajeet Shukla, learned Additional Chief Standing Counsel for the State-respondents and Shri N.C. Mehrotra, learned Counsel for the respondents no.2 to 5.
2. The instant writ petition has been filed commanding Rajya Krishi Utpadan Mandi Parishad to count 36 years service of the petitioner for payment of gratuity, including the period w.e.f. 01.07.1982 to 17.07.2012 during which the petitioner had worked in work charge establishment.
3. Briefly stated, facts of the case are that the petitioner was engaged/appointed on work charge basis w.e.f. 01.07.1982. In the year 2001-2002, the petitioner had filed Writ Petition No.1174 (S/S) of 2002 claiming regularization of his service on the ground that some persons junior to him were regularized, in which an interim order was passed providing that in case persons juniors to the petitioner had been regularized, the petitioner's case shall also be considered.
4. The petitioner's services were regularized w.e.f. 18.07.2012 and it is his case that some persons junior to him were regularized prior to regularization of the petitioner. Upon retirement, gratuity was paid to the petitioner without including the period of service rendered in the work charge establishment.
5. Learned Counsel for the petitioner has submitted that the petitioner is entitled to be paid gratuity and all other service benefits after taking into consideration the entire service rendered by him without any break. He has placed reliance upon a judgment passed by the Hon'ble Supreme Court in the case of Punjab State Electricity Board and Anr. Vs. Narata Singh and Anr., 2010 AIR SCW 1670, in which the Hon'ble Supreme Court held that "while computing qualifying service for purposes of pensionary entitlement of employee of Electricity Board, the work charged service rendered by the employee under the State/Central Government has to be considered."
6. However, in the instant case the petitioner had served on work charge basis in Rajya Krishi Utpadan Mandi Parishad, Uttar Pradesh, which has its own rules and, therefore, the aforesaid decision in the case of Punjab State Electricity Board (supra) will not help the petitioner.
7. Learned Counsel for the petitioner has placed another decision of Hon'ble the Supreme Court in the case of Habib Khan Vs. State of Uttarakhand & others, (2019) 10 SCC 542, which related to the claim of qualifying service on the basis of the provisions contained in Rule 370 of Civil Service Regulation.
8. Per contra, Shri N.C. Mehrotra, learned Counsel for respondents no.2 to 5 submitted that Article 370 of the Civil Service Regulation is not applicable in the present case as the Mandi Parishad is having its own service regulation, namely, U.P. Agriculture Produce Markets Board (Officer and Staff Establishment) Regulations, 1984.
Regulation 2(e) whereof defines the word "Employee" as follows:-
"Employees - means every person appointed on whole time basis in Classes A, B, C. and D mentioned in Regulation 5, whether on contract basis, on deputation or otherwise but does not include persons employed on daily wages, work charged and on part-time basis."
Regulation 2(e) specifically excludes persons employed on work charge basis, hence the petitioner would not fall within the definition of "Employee" in Regulation 2(e) of the Regulations of 1984.
9. In State of U.P. Vs. Neeraj Awasthi (2006) 1 SCC 667, while dealing with a case involving interpretation of the aforesaid Regulation 2(e), the Hon'ble Supreme Court held that "if the expression "employee" does not bring within its fold any person employed on daily wages, work charged or on part- time basis, the same would mean that the persons so appointed would not be employees within the meaning of the said Regulations. It would, therefore, not be correct to contend that the Market Committee or the Board has the jurisdiction to appoint anybody on daily wages, work-charged or on part-time basis dehors the Rules. The Hon'ble Supreme Court further held "although the Market Committee may have power to make appointments, such appointments can be made in relation to the posts created therefore by the Board wherefor requisite intimation has to be given to the Director or the officer authorised in this behalf. We may assume that for meeting the exigencies of situations it may be possible for the Committee or the Board to appoint a person on adhoc basis. Such adhoc employees, however, being not "employees" within the meaning of the provisions of the Act and the Regulations, a legal relationship between the employer and the employee would not come into being. As no legal relationship of employer and employee comes into being, evidently, such persons do not derive any status".
10. Shri N.C. Mehrotra, learned Counsel for the respondents- Rajya Krishi Utpadan Mandi Parishad, Uttar Pradesh, has submitted that now the State Government has enacted "The Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 (U.P. Act no.1 of 2021)".
Section 2 whereof defines "Qualifying Service for Pension", which is as follows:-
"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."
Section 3 of the aforesaid Act provides that "notwithstanding any Judgement, decree or order of any Court, anything done or purporting to have been done and any 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 Act, shall be deemed to be and always to have been valid as if the provisions of this Act were in force at all material times with effect from April 1, 1961."
Section 4 of the Act provides that the provisions of the Act shall have effect, notwithstanding anything inconsistent therein contained in any other law.
11. Service rendered on work charge basis would not fall within the scope of "services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of service rules prescribed by the Government for the post" and, therefore, those cannot be taken into consideration while calculating qualifying service for pension.
12. Therefore, while the petitioner was engaged in service of the Mandi Parishad on work charge establishment, he was not an "employee" of the Parishad as defined in Regulation 2(e) of the Regulations of 1984 and the service rendered by him, as such would not be calculated while computing his qualifying service. The claims made by the petitioner for payment of benefits treating the service rendered by him between 01.07.1982 to 17.07.2012 on work charge basis, has no legal basis, and such a claim cannot be allowed.
13. In view of the aforesaid discussion, the writ petition has no merits and it is, accordingly, dismissed.
(Subhash Vidyarthi, J.) (Ramesh Sinha, J.) Order Date :- 30.01.2023 Anand Sri./-