Allahabad High Court
Namo Narayan Rai And 52 Ors. vs State Of U.P. Thru ... on 8 September, 2017
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 7 Case :- SERVICE SINGLE No. - 13626 of 2017 Petitioner :- Namo Narayan Rai And 52 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Deptt.Lucknow & Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. Connected with Case :- SERVICE SINGLE No. - 18364 of 2017 Petitioner :- Amar Nath Verma And 50 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Deptt.Lucknow & Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
1. Petitioners have assailed the Government Order dated 24.5.2017, and consequential order dated 27.5.2017, passed by the Executive Engineer, Tubewell Division, and a further prayer is made to direct the respondents to continue to make GPF deductions from their salary and not to compel them to fill up pension forms, as per new pension scheme introduced on 28.3.2005 to be effective from 1.4.2005. The Government Order dated 24.5.2017, under challenge, provides as under:-
"mi;qZDr fo"k; ij eq>s ;g dgus dk funs'k gqvk gS fd flapkbZ ,oa ty lalk/ku foHkkx m0 iz0 esa fnukad &01-04-2005 ds ckn fofu;fer fd;s x;s uydwi pkydksa ls uoifjHkkf"kr isa'ku ;kstukUrxZr dVkSrh ugha fd;s tkus ds dkj.k muds }kjk isa'ku vkfn ykHk ikus ds fy, ek0 mPp U;k;ky; esa fofHkUu ;kfpdk,a ;ksftr dh tk jgh gSaA foHkkx }kjk bl laca/k esa leqfpr dk;Zokgh le; ls ugha fd;s tkus ds dkj.k ek0 U;k;ky; ds le{k fo"ke fLFkfr mRiUu gks jgh gSA 2& vr% d`i;k iz'uxr izdj.k esa fuEukuqlkj dk;Zokgh izkFkfedrk ij lqfuf'pr djus dk d"V djsa%& 1- fnukad&01-04-2005 ds ckn fou;fer lHkh va'kdkfyd uydwi pkydksa dh uoifjHkkf"kr isa'ku ;kstukUrxZr dVkSrh ekg ebZ] 2017 ds osru ls djus gsrq izHkkoh dk;Zokgh dh tk;sA 2- va'kdkfyd uydwi pkydksa }kjk ;ksftr lHkh oknksa dh izHkkoh iSjoh uksMy vf/kdkjh ¼vf/k'kklh vfHk;Urk] uydwi [k.M] y[kuŽ ds ek/;e ls dh tk;A 3- fnukad& 01-04-2005 ds mijkUr fofu;fer va'kdkyhu uydwi pkykdksa ls dVkSrh uoifjHkkf"kr isa'ku ;kstukUrxZr u djus rFkk th0 ih0 ,Q0 dh dVkSrh djus] tks fnukad&01-04-2005 ds ckn fd;k tkuk fu;e laxr ugha gS] ds laca/kk esa nks"kh vf/k'kk"kh vfHk;Urkvksa ds fo:) dk;Zokgh dk izLrko 'kklu dks miyC/k djk;k tk;A 4- va'kdkfyd uydwi pkydksa }kjk ;ksftr lHkh oknksa dh lwph v|ru fLFkfr lfgr ,oa lHkh va'kdkfyd uydwi pkydksa dh dVkSrh uoifjHkkf"kr isa'ku ;kstuk ds rgr djus dk izEkk.k&i= 'kklu dks ekg twu ds f}rh; lIrkg rd vo'; miyC/k djk;k tk;A"
2. The consequential order of the Executive Engineer contains a direction requiring part-time tubewell operators, who have been regularized after 1.4.2005, to apply under the new pension scheme by filling up requisite forms, and also provides that their GPF be no longer deducted. It is admitted that all the petitioners have been regularized after 1.4.2005 and are therefore covered by the new pension scheme. The issue as to whether petitioners are covered under the new pension scheme, introduced on 28.3.2005, as they have been regularized after 1.4.2005 is no longer res integra. A Division Bench of this Court in Special Appeal No.240 of 2009 (State of U.P. vs. Dukh Haran Singh) examined the question as to whether services of such part-time tubewell operators, prior to their regularization, be counted towards qualifying service for payment of pension. After examining the issue extensively, this Court proceeded to hold as under:-
"Here, in the present case, I have already observed that the service rendered by the writ petitioner prior to his regularization by order dated 25.9.1997 does not qualify for grant of pension as in terms of Regulations 361 and 370 of the Regulations, services rendered prior to that are neither substantive, permanent nor temporary. In my opinion, the service rendered by the writ petition subsequent to his regularization on 25.9.1997 only qualifies for pension and he having retired before rendering 10 years continuous service, is not entitled to get pension.
In view of the aforesaid, the conclusion arrived at by the learned Judge that the writ petitioner had rendered 32 years service and was entitled for pension cannot be sustained.
In the result, the appeal succeeds and is allowed. The judgment and order dated 228.8.2008 passed by the learned Judge in Writ Petition No.1378 (SS) of 2008 is set aside but without any order as to costs."
3. The judgment in State of U.P. vs. Dukh Haran Singh (supra) was challenged before the Apex Court in Special Leave to Appeal (C) No.27713 of 2009, which came to be dismissed by following orders:-
"Heard Mr. Subramonium Prasad learned counsel for the petitioner in support of this petition and Mr. Ratnakar Dash learned senior counsel appearing on behalf of the respondents.
(2) The petitioner's claim for pensionary benefits was rejected by the High Court by impugned order dated 21.7.2009 and that is why the present special leave petition has been filed.
(3) The petitioner's services came to be regularized on 28th September, 1997 in consequence of the Rules for regularization which was framed in the year 1996. The petitioner was retired on 30th November, 2005 and demanded the retiral benefits including pensionary benefits. Since as per the relevant rules minimum qualifying service for pension is 10 years, the petitioner had not fulfilled that minimum requirement. That being so, the petitioner could not be held to be eligible for pension though be would be entitled to gratuity and other benefits subject to applicable rules. In view of the above, we see no reason to interfere with the impugned order of the High Court.
(4) The special leave petition is dismissed accordingly."
4. In view of the authoritative pronouncement on the issue by the Apex Court, it is by now well settled that services rendered by the part-time tubewell operators, prior to their regularization, would not be counted for payment of pension. Since petitioners have been regularized after 1.4.2005, as such, they would be covered under the new pension scheme. The government order dated 24.5.2017 as well as consequential order dated 27.5.2017 insofar as directions are contained in para 2(1), requiring deduction to be made under new pension scheme for those getting regularized after 1.4.2005, and requiring them to fill up requisite forms under the new pension scheme, is thus affirmed. Realizing the legal position, petitioners have also not pressed their claim in that regard during the course of hearing of the writ petitions. It is, therefore, clarified that all petitioners, who have been regularized after 1.4.2005, would be governed by the new pension scheme, introduced on 28.3.2005, and challenge made to that extent in these petitions, accordingly fails.
5. The challenge in these petitions is restricted to the part of the government order alone whereby a direction is issued not to deduct GPF from petitioners' salary, after 1.4.2005, and the writ petitions are pressed to that extent alone.
6. State of Uttar Pradesh exercising its powers under the proviso to Article 309 of the Constitution of India has framed rules, known as General Provident Fund (Uttar Pradesh) Rules, 1985 (hereinafter referred to as the 'Rules of 1985'), which got published on 29.10.1985 in Gazatte and remains operative. Rule 4 provides for conditions of eligibility of scheme, which reads as under:-
"4. Conditions of eligibility. - All permanent Government servants and all temporary Government servants, other than those appointed on contract and reemployed pensioner, whose services are likely to continue for more than a year shall subscribe to the fund from the date of joining the service.
Note 1. - Apprentices and Probationers shall be treated as temporary Government servant for the purpose of this rule.
Note 2. - Temporary Government servant (including Apprentices and Probationers) who have been appointed against regular or temporary vacancies and are likely to continue for more than a year shall subscribe to the Fund from the date of joining the service.
Note 3. - Executive authorities should inform the Accounts Officer as soon as a Government servant becomes liable to subscribe to the Fund."
The Rules of 1985 have been amended vide notification issued on 7.4.2005 and a proviso to rule 4 has been added in following terms:-
"Provided that no government servant entering service on or after April 1, 2005 shall subscribe to the fund."
7. It is on account of the proviso added to rule 4 that the respondent State of Uttar Pradesh contends that since petitioners have entered service after 1.4.2005, as such, they shall not subscribe to the provident fund created under the Rules of 1985. Petitioners' contention, per contra, is that they are already covered under rule 4 and as they were subscribing to the provident fund right from 1998 onwards, they cannot be ousted from the scheme now, in view of the proviso. The question therefore that arises for consideration in these petitions is as to whether petitioners would continue to subscribe to the provident fund under the Rules of 1985 or not?
The facts
8. Principal Secretary, Department of Irrigation and Water Resources, Government of Uttar Pradesh has filed an affidavit in response to the directions issued by this Court in Writ Petition No.18364 of 2017, and the facts stated therein need be noticed first. A Government Order on 22.12.1981 was issued creating various posts of Tubewell Operator-cum-Mechanic and Part-time Tubewell Operators. 2147 posts of part-time tubewell operators were created with the approval of the Governor with the contemplation that such part-time tubewell operators would be paid a fixed salary of Rs.150 per month. Para 1 of the government order reads as under:-
"mi;qZDr fo"k;d vkids i= la[;k&54305@fu0&12@fnukad 2-11-81 ds lanHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd uydwiksa dks pykus rFkk mlds ejEer djus ds fy, uydwi pkyd de feL=h ds 2300 ¼nks gtkj rhu lkS½ vLFkk;h iw.kZ dkfyd inksa dks osrueku 354&10&124&n0jks0&10&454&12&514&njks&12&550 ¼vufUre :i ls½] esa rFkk vU; uydwiksa dks pykus ds fy, va'kdkfyd uydwi pkyd ds 2147 ¼nks gtkj ,d lkS lSrkfyl½ vLFkk;h inksa dks Hkh :0 150@& izfrekg fu;r osru ij l`ftr djus dh Lohd`fr jkT;iky egksn; us bl 'kklukns"k ds tkjh gksus ds fnukad ls vFkok iniwfrZ ds fnukad ls tks ckn esa gks fnukad 20-02-1982 rd ds fy, iznku dj nh gSA c'krsZ fd inksa dks fcuk iwoZ lwpuk ds igys gh u le;kuqlkj fn;s tk;sA"
9. A circular subsequently was issued by the Chief Engineer, Irrigation Department, U.P. on 18.2.1982, whereby posts of part-time tubewell operators were assigned to different regions/blocks. Norms were laid and accompanied alongwith this letter of Chief Engineer, providing for advertisement of vacancy in the village by beat of drum and that the minimum age of appointment as per the government rules would apply for such part-time tubewell operators. Clause 6 further provided that such part-time tubewell operators would work between 9.30 AM to 12.00 Noon, but in the remaining time also they would remain present near the tubewell where their duties are assigned. Clause 12 provided that these part-time tubewell operators would not be provided benefit of provident fund, pension and gratuity.
10. All the petitioners were appointed as part-time tubewell operators on different dates between 1989 to 1991. An appointment order issued to petitioner no.8 Ratnesh Kumar Rai of Writ Petition No.13626 of 2017 has been brought on record, which records that applicant having been selected and having cleared training is appointed as part-time tubewell operator on a consolidated salary of Rs.290 per month subject to restrictions mentioned in the appointment order dated 24.8.1989. Clause 1 of the appointment order clearly states that services of appointee could be terminated in accordance with the provisions of U.P. Temporary Government Servants (Termination of Service) Rules 1975 (hereinafter referred to as "1975 Rules") at any point of time without any notice. The order further contains recital that appointee would not be entitled to provident fund, pension and gratuity and benefit of regular service.
11. Sri Suresh Chandra Tiwari and others, who were also appointed as part-time tubewell operators, as petitioners, filed Writ Petition No.3558 (SS) of 1992 (Suresh Chandra Tiwari and others vs. State of U.P. and others) before this Court for issuance of a writ in the nature of mandamus commanding the State Government to pay to them the regular scale of pay, which was admissible and being paid to the full-time tubewell operators and also for quashing the notification dated 20.2.1992 by which honorarium at the rate of Rs.550/- was fixed for part-time tubewell operatorss.
12. It is relevant to notice at this stage that some of the part-time tubewell operators had also approached the Labour Court, raising similar grievance, and the Labour Court delivered an award holding that part-time tubewell operators perform same functions as regular tubewell operators and thus shall also be entitled to regular scale of pay admissible to a full-time tubewell operator. Aggrieved by the aforesaid award of the Labour Court, Engineer in Chief, Irrigation Department, U.P. and others filed Writ Petition No.1502 (SS) of 1992 (Engineer in Chief, Irrigation Department, U.P. and others vs. Markand Singh and others) before this Court. The writ petition filed by Suresh Chandra Tiwari and others, besides the writ petitions of several other part-time tubewell operators and the aforesaid Writ Petition No.1502 (SS) of 1992 came up for consideration before this Court on 18th March, 1994. The Hon'ble Judge by order dated 18th May 1994, allowed all the writ petitions except Writ Petition No.1502 (SS) of 1992 and quashed the notification by which honorarium at the rate of Rs.550/- per month was fixed. A further finding was returned that part-time tubewell operators perform the same function, as the full-time tubewell operators, and shall be entitled to the same emoluments, i.e. the same scale of pay which was being paid to other regularly appointed full-time tubewell operators. While doing so, this Court observed as follows:-
"What we have found in the earlier part of the judgment, is that the tubewell operators and erstwhile part-time tubewell operators, now called as tubewell assistants perform same nature of duties. It is though provided that duty hours of the tubewell assistants are from 9.30 AM to 12.00 noon, but it is only on paper while in fact they have to work whenever electricity is available during any time of the day and it has also been found that they work much more than two and a half hours, in respect of which in different writ petitions, the petitioners have placed material to indicate that they work for more than two and a half hours. The condition that their services are not transferable is of no consequence, nor the fact that their mode of recruitment is different. There is no denial of the fact that tubewell operators getting higher emoluments are still still there very much in service, whereas for the same work the petitioners are being paid less. The plea that it is uneconomical to pay them full wages is not a valid ground and in favour of some of the petitioners, orders passed for payment of wages to them under the Minimum Wages Act have been upheld by the High Court. It is highly improper to change the nomenclature of the part-time tubewell operators to that of tubewell assistants without their being anyone to whom they could render the assistance and there being no change in the nature of their work, it was not done with bona fide intentions. In view of the above, the petitions deserve to be allowed."
13. Directions on similar lines were issued in large number of other cases by this Court. The award of the Labour Court, as affirmed by this Court in the writ petition, and orders passed in other similar writ petitions granting scale of pay admissible to a regular full-time tubewell operator to the part-time tubewell operator were challenged before the Supreme Court in Special Leave Petition (C) No.16219 of 1994, and other analogous cases and the Hon'ble Supreme Court vide order dated 22.3.1995 dismissed all the Special Leave Petitions. While doing so, the Apex Court observed as follows:-
"On the basis of the evidence led before the Labour Court, the said court came to the conclusion that the duties, qualifications and hours of working of the part-time tubewell operators and the regularly working tubewell operator were identical. On the basis of the principle of equal pay for equal work the labour court directed that the part-time tubewell operators be paid the same salary (prospectively) as was being drawn by the regular tubewell operator. The High Court reappreciated the evidence and the material before it and concurred with the Labour Court. We see no ground to interfere with the concurrent findings of the two courts below. These Special Leave Petitions are dismissed."
14. It is thereafter that Governor of the State in exercise of power conferred under proviso to Article 309 of the Constitution of India proceeded to frame rules namely U.P. Irrigation Department Regularization of Part Time Tube -Well Operator on the post of Tube Well Operator Rules, 1996. The cut-off date specified therein has been amended from time to time. It is in pursuance of such regularization rules that services of petitioners have been regularized on different dates after 1.4.2005. It is further on record that after the direction issued in the case of Suresh Chandra Tiwari and others (supra) on 18.3.1994 attained finality, the State proceeded to pay salary in the regular scale of pay to the part-time tubewell operators as was being paid to a regular full-time tubewell operator. In some of the cases directions were issued to pay regular salary from 1989, but the issue has now been settled by the Apex Court on 4.1.2016 in Special Leave to Appeal No.34861 of 2015 that part-time tubewell opeartors would be paid regular scale of pay only w.e.f. 18.5.1994, in light of the decision of this Court in Suresh Chandra Tiwari (supra) except those who had approached the labour court and award was given in their favour for such benefit w.e.f. 1989. A Government Order dated 3.3.1998 was also issued, in purported compliance of the directions issued by the Hon'ble Court, which contained following stipulation:-
"bl fLFkfr ij fopkjksa ijkUr 'kklu us ;g fu.kZ; fy;k gSA fd va'kdkfyd uydwi pkykdksa dks mlh izdkj okf"kZd osru o`f) vkSj ik= gksus ij xzkeh.k vkokl HkRrk] cksul ,oa vU; lsok ykHkksa dk Hkqxrku mlh izdkj fd;k tk;sxk] ftl izdkj iw.kZdkfyd uydwi pkydksa dks fd;k tkrk gSA"
15. It is in furtherance of the government order dated 3.3.1998 that petitioners were made member of the provident fund scheme introduced under the Rules of 1985. Specific account numbers were issued to them and deduction from their salary commenced as per the Rules of 1985. This position has continued throughout without any interruption till 2014. An issue appears to have been raised after the proviso was added to rule 4 of 1985 Rules and after the petitioners' regularization as to whether petitioners would continue to be members of the provident fund scheme under the Rules of 1985? This aspect has now been resolved by the Government Order under challenge.
Submissions
16. Sri Satish Chandra Mishra, learned senior counsel assisted by Sri R.C. Tiwari for the petitioners contend that petitioners were covered under the provident fund scheme introduced vide Rules of 1985, as they were "temporary government servant" who were likely to continue for more than a year and the provisions of rules were in fact made applicable upon them and such position cannot be altered now, merely because petitioners have subsequently been regularized after 1.4.2005. It is contended that petitioners were already covered under the provident fund scheme by virtue of rule 4 and the proviso had no applicability upon them. It is also stated that proviso to rule 4 cannot be given a retrospective effect. It is contended that petitioners' engagement were against specific post created by the State to be paid out of State fund and have continued against such post for nearly a decade whereafter the State Government itself extended the provisions of Rules of 1985 upon them, and therefore, after such long lapse of time, it was not open for the State to withdraw such benefits.
17. Per contra, Sri Sobhit Mohan Shukla, learned Standing Counsel appearing for the State contends that in a series of orders passed by this Court, it is by now well recognized that petitioners do not qualify to be "temporary government servant" and that the benefit of scheme under Rules of 1985 was wrongly extended from 1998 to them and that the State has committed no illegality in correcting its mistake. It is also contended with reference to orders passed by this Court in a bunch of writ petitions with leading case in Writ Petition No.122 (SS) of 2012 (Shiv Shankar Lal and others vs. State of U.P. and others) decided on 17.1.2017 as well as the judgment delivered in Writ Petition No.22375 (SS) of 2016 decided on 19.9.2016 that the issue of applicability of Rules of 1985 have otherwise been determined and that petitioners are not entitled to the protection of Rules of 1985.
Questions for determination
18. On the basis of respective submissions advanced following points arise for determination by this Court:-
(i) Whether petitioners are 'temporary government servant' whose services are likely to continue for more than a year so as to be covered under rule 4 of the Rules of 1985?
(ii) In case it is found that petitioners are covered under rule 4, whether the applicability of such rules would stand ousted on account of proviso added to rules w.e.f. 1.4.2005?
(iii) Whether issue of applicability of Rules of 1985, upon persons such as petitioners, has been settled under the previous orders passed by this Court?
Question No.(i)
19. Engagement of part-time tubewell operators is by the State Government against temporary post specifically created for the purposes. It is not in dispute that these posts have continued to remain in existence since 1981 and persons appointed against it have subsequently been regularized/confirmed. Engagement and working of the petitioners therefore is against specific temporary post created for the purposes by the State Government. The circular of the Chief Engineer dated 18.2.1982 also makes it clear that salary to such tubewell operators, though initially termed as part-time, was paid continuously by the State out of its own fund. These persons were assigned duties by the concerned officials of the Department of Irrigation dealing with the tubewell division. It would therefore be apparent that petitioners were in the service of the State Government and were also receiving salary from the State fund. So far as their status as part-time is concerned, the issue got resolved in 1994 with a clear finding returned by this Court that these part-time tubewell operators are performing the same functions as are being done by the regular tubewell operators. The petitioners' nomenclature as part-time tubewell operators after 1994 remained only to facilitate reference to them, otherwise they were put at par with the regular tubewell operators. After such an adjudication attained finality, the State Government also issued the Government Order dated 3.3.1998, whereby benefits of service were provided to these tubewell operators from 1998 onwards. The appointment orders issued to the petitioners contained a clear stipulation in clause 1 that services of part-time tubewell operators could be terminated in accordance with the provisions of the 1975 Rules. Rule (2) of 1975 Rules also defines "temporary service" in following words:-
"2 Definition. In these rules temporary service means officiating or substantive service on a temporary post, or officiating service on a permanent post under the Uttar Pradesh Government."
20. Since engagement of petitioners was against temporary post created under the Uttar Pradesh Government and the provisions of 1975 Rules were otherwise specifically made operative upon the petitioners vide their appointment order itself, as such, I am of the opinion that petitioners are temporary government servants in terms of rule 4 of the Rules of 1985.
21. In order to make the Rules of 1985 applicable upon the petitioners it would have to be seen as to whether the other condition contemplated under rule 4 are also fulfilled or not? Rule 4 clearly provides that services of all permanent government servant and all temporary government servant, other than those appointed on contract and re-employed pensioners, are likely to continue for more than a year before they are to subscribe to the fund. To clarify it further Note 2 has been added which provides that temporary government servant (including apprentices and probationers) who have been appointed against regular or temporary vacancies and are likely to continue for more than a year, shall subscribe to the fund from the date of joining the service. Engagement of petitioners have continued uninterruptedly since their very initial appointment in 1989. Their engagement was against specific temporary vacancy created for the purposes and was likely to continue for more than a year. It has in fact continued for more than decades. The term "likely to continue" is also of importance inasmuch as while creating the post a stipulation may be made that such creation is for the year, but if the post is likely to continue, considering the exigencies, then all such vacancies would be covered. In the instant case, these tubewell operators were engaged to look after the tubewell installed by the State for its irrigation project and it could not be doubted that such creation of posts were likely to continue for more than a year. As a matter of fact after the term "part-time" was made redundant by the orders of this Court in 1994, and the issue attained finality upto the Apex Court, the State Government rightly realized that these temporary government servant would be covered under conditions of eligibility contemplated in rule 4 and passed the government order in 1998, clearly holding that such tubewell operators would be entitled to all service benefits as are otherwise admissible to a full-time tubewell operator. This recognition of petitioners' status as a temporary government servant did not remain only on files but was followed with specific act on part of the State extending the benefits of the provident fund scheme under the Rules of 1985 as well. Provident fund accounts were opened in respect of petitioners, specific account numbers were given and deduction from salary for contributing in the provident fund under the Rules of 1985 actually commenced. All this happened in 1998. No issue survived in law nor in fact that petitioners were temporary government servants covered under rule 4 of Rules of 1985, and therefore, entitled to be a member of the fund. No objection in that regard was raised by the State. As a model employer, the State rightly discharged its obligation under Rules of 1985 by extending benefits admissible under a welfare scheme. Even otherwise, once the State has treated the petitioners to be temporary government servant and thereby covered under the rules, and have allowed deduction from their salary since 1998, which is based upon correct interpretation of statutory rules, the State would otherwise be estopped from taking a contrary stand now. I, therefore, have no hesitation in coming to a conclusion that petitioners are temporary government servants whose services were likely to continue for more than a year, and therefore, covered under rule 4 of the 1985 Rules. The first point formulated for determination is answered accordingly.
Question No.(ii)
22. Rule 4 has been amended subsequently on 7.4.2005 and a proviso is added to it, stipulating that no government servant entering service on or after 1.4.2005 shall subscribe to the fund. The proviso by its very nature is an exception to the main rule and generally outs the applicability of the substantive provision in a given situation. The proviso, therefore, in the instant case, limits the applicability of the substantive provision to those entering service on or after 1.4.2005. It would have to be seen as to whether the proviso is intended to regulate even those cases, which were otherwise already covered under rule 4. The 1985 Rules are in the nature of beneficial legislation regulating a welfare scheme of the State, for the benefit of the employees. It would be reasonable to expect that rights already created in the substantive part would not be taken away by resorting to the proviso, inasmuch as the proviso in that event would have to be given a retrospective application. Whether such a retrospective application was intended or would be legally permissible would then be the question. While introducing the proviso to rule 4, the legislature has made no provision to deal with eventualities where rights have already accrued earlier and deposits have been made for fairly long. The issue of retrospectivity in the context of rights otherwise accrued has been a subject matter of consideration in a series of judgments. It is by now well settled that legislations which modify accrued rights or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give it a retrospective effect. A Constitution Bench of the Apex Court had an occasion to deal with the issue in Commissioner of Income Tax vs. Vatika Township Private Ltd.: (2015) 1 SCC 1, wherein doctrine of fairness was imported to examine as to whether the statute would have prospective or retrospective application. Para 27 to 33 of the judgment which elucidates the law on the subject are reproduced:-
"General principles concerning retrospectivity
27. A legislation, be it a statutory Act or a statutory rule or a statutory notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fiction/non-fiction or even in a judgment of a court of law. There is a technique required to draft a legislation as well as to understand a legislation. Former technique is known as legislative drafting and latter one is to be found in the various principles of "interpretation of statutes". Vis-à-vis ordinary prose, a legislation differs in its provenance, layout and features as also in the implication as to its meaning that arise by presumptions as to the intent of the maker thereof.
28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [(1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. [(1994) 1 AC 486 : (1994) 2 WLR 39 : (1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later.
30. We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators' object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. In Govt. of India v. Indian Tobacco Assn. [(2005) 7 SCC 396] , the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in Vijay v. State of Maharashtra [(2006) 6 SCC 289] . It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. However, we are (sic not) confronted with any such situation here.
31. In such cases, retrospectivity is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the presumption attaches towards prospectivity. In the instant case, the proviso added to Section 113 of the Act is not beneficial to the assessee. On the contrary, it is a provision which is onerous to the assessee. Therefore, in a case like this, we have to proceed with the normal rule of presumption against retrospective operation. Thus, the rule against retrospective operation is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. Dogmatically framed, the rule is no more than a presumption, and thus could be displaced by outweighing factors.
32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as "declaratory statutes". The circumstances under which provisions can be termed as "declaratory statutes" are explained by Justice G.P. Singh [Principles of Statutory Interpretation, (13th Edn., LexisNexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner:
"Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in Craies [ W.F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [Ed.: The reference is to Central Bank of India v. Workmen, AIR 1960 SC 12, para 29] : ''For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word "declared" as well as the word "enacted".' But the use of the words ''it is declared' is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ''to explain' an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ''shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law."
The above summing up is factually based on the judgments of this Court as well as English decisions.
33. A Constitution Bench of this Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas [AIR 1968 SC 1336 : (1968) 3 SCR 623] , while considering the nature of amendment to Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act as amended by Gujarat Act 18 of 1965, observed as follows: (AIR p. 1339, para 8) "8. ... The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from Section 115 of the Code of Civil Procedure, and the legislature has by the amending Act not attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act.""
(Emphasis supplied)
23. Various benefits have been conferred upon the temporary government servant under the provident fund scheme introduced by the Rules of 1985. These rights have actually accrued to the petitioners. In case the proviso is given a retrospective effect, such accrued rights under the scheme would be taken away. Neither any retrospective applicability to the proviso could be inferred from the scheme inasmuch there is nothing to clarify as to what would happen to those whose rights have already been created earlier nor such a construction would withstand the test of judicial scrutiny upon the parameters laid for the purposes, by the Constitution Bench in Commissioner of Income Tax vs. Vatika Township Pvt. Ltd. (supra). The second point formulated is, therefore, answered by holding that proviso added to rule 4 would not have any retrospective effect and that rights which have otherwise accrued under rule 4 would not stand abrogated.
Question No.(iii)
24. This takes me to the last issue as to whether the issue of applicability of 1985 Rules upon the petitioners has already been settled by this Court. Alongwith counter affidavit of the Principal Secretary of the department concerned, various decisions have been relied upon for the purposes. The first judgment relied upon by the State is of the Division Bench in Special Appeal Defective No.240 of 2009 (State of U.P. vs. Dukh Haran Singh). The issue that arose for consideration before the Division Bench was as to whether period of service rendered prior to substantive appointment of persons, similarly placed as petitioners, could be counted for the purposes of grant of pension in terms of Regulations 361 and 370 of the Civil Service Regulations. The operative portion of the judgment of the Division Bench has already been extracted above. It would be appropriate to note that upon the matter being taken to Hon'ble Supreme Court arising out of the Division Bench the Hon'ble Supreme Court while affirming the finding that petitioners had not met the requirement of putting in requisite qualifying service, clearly observed that petitioners therein would be entitled to gratuity and other benefits subject to applicable rules. The observation of the Apex Court in that regard made in para 3 is again reproduced:-
"(3) The petitioner's services came to be regularized on 28th September, 1997 in consequence of the Rules for regularization which was framed in the year 1996. The petitioner was retired on 30th November, 2005 and demanded the retiral benefits including pensionary benefits. Since as per the relevant rules minimum qualifying service for pension is 10 years, the petitioner had not fulfilled that minimum requirement. That being so, the petitioner could not be held to be eligible for pension though be would be entitled to gratuity and other benefits subject to applicable rules. In view of the above, we see no reason to interfere with the impugned order of the High Court."
25. The issue as to whether petitioners were entitled to benefit of provident fund under Rules of 1985 was not the subject matter of consideration and no finding in respect thereof was returned. The observation by the Division Bench therefore that petitioners' services prior to their regularization were neither substantive, permanent, nor temporary would have to be confined in the context of entitlement to receive pension under the relevant rules. It would be noticed, at this stage, that entirely a different set of rules regulate applicability of pension vis-a-vis provident fund. The point that arises for consideration in this case has to be dealt with in the context of provisions of 1985 Rules. The judgment of the Division Bench, therefore, cannot be relied upon in support of the respondents' plea. The next judgment relied upon by Sri Sobhit Mohan Shukla is also by a Division Bench in Special Appeal Defective No.227 of 2014, State of U.P. vs. Tubewell Operators Welfare Association. This Division Bench followed the judgment of the earlier division bench in State of U.P. vs. Dukh Haran Singh (supra) and proceeded to hold as under:-
"The judgment of this Court, affirmed by the Supreme Court has settled the legal position that all the benefits of service will be applicable to the part time tube well operator from the date, when they are regularised. They will not be entitled to any benefit prior to their regularisation. They will be treated in substantive appointment only after regularisation and not on any date before that.
Shri H.R. Mishra, learned counsel for the respondents submits that all the petitioners were initially enmass transferred to Panchayati Raj department. In the long litigation after which regularisation Rules were made, they cannot be held to be dis-entitled to the benefit of service, when the nature of their work was same. They were also held entitled to regular pay scale and thus benefit of services rendered prior to regularisation cannot be discounted.
We do not find any substance in the submission of Shri H.R. Mishra that part time tube well operators are entitled to any benefits of service, which is applicable to employee either temporary or permanent employees appointed on any substantive post prior to the date of their regularisation.
This High Court as well as the Supreme Court has in the judgment in Dukh Haran Singh's case cited as above has clarified the legal position.
The special appeals are consequently disposed of with clarification that all the writ petitioners for whose benefit the writ petition is filed will be entitled to benefits of service including GPF, promotional and selection grade and the pension treating their services with effect from the date they were regularised and not from any date, prior to that."
Although in the operative portion it is observed by the Division Bench that benefit of GPF would be payable from the date of regularization but there is no consideration or reference to 1985 Rules in the judgment. Although the judgment in State of U.P. vs. Dukh Haran Singh (supra) alone was followed but the observation of the Apex Court limiting the issue to pension alone and leaving other benefits to be dealt with as per rules was not noticed.
Subsequent judgment of the Hon'ble Single Judge of this Court in Writ Petition No.8722 (SS) of 2009 (Istagar Ahmad and others vs. State of U.P. and others), relied upon the proviso to hold that once entry into service has been made after 1.4.2005, the petitioners would not be entitled to benefit of deduction of GPF. The observation made in the judgment dated 8.11.2012 is reproduced:-
"Submission made by the learned counsel for the petitioners that the petitioners should be given all services benefits from the date of their initial appointments does not hold any ground for the reason that all the service benefits to the writ petitioners will be available from the date of their substantive appointment i.e. from the date their services were regularized. As regards the reliance placed by the learned counsel for the petitioners on the judgment of Suresh Chandra Tiwari (supra), it may be stated that the said judgement pertains to payment of emoluments at par with the regular Tubewell Operators on the ground that the work and function being discharged as part time Tubewell Operators is akin to the regular Tubewell Operators. The benefits which can be said to be available to the petitioners on the basis of the judgment in the case Suresh Chandra Tiwari (supra) relate to the period prior to their regularization. So far as the payment of G.P.F. is concerned, the position has been clarified above that the said benefit is not available to the government employees, who were regularly appointed on or after 01.04.2005 as the notification issued on 28.03.2005 applies the Contributory Pension Scheme mandatorily.
In the instant case since the regularization of services of the petitioners was made on 07.01.2009 and they are covered by the notification dated 21.03.2005, it is observed that the services of the petitioners for all benefits are to be counted w.e.f. the substantive appointment. Admittedly, the date of substantive appointment of the petitioners in the instant case will be date their appointment was made under 1996 Rules as amended in the year 2008.
In view of discussions made and reasons indicated above, the prayer made by the petitioners regarding deduction of G.P.F. is not tenable. The other prayer made by the petitioners that their services be counted from the date of their initial engagements as part time Tubewell Operators for other service benefits is also not tenable."
Similar conclusions have been drawn by another Hon'ble Single Judge of this Court in Writ Petition No.22375 (SS) of 2016 (Brijpal Singh and others vs. State of U.P. and others). Following observations are made in the judgment dated 19.9.2016 and are reproduced:-
"In the present case, petitioners themselves have averred in the writ petition that they were working as Part Time Tube-well Operators in the Irrigation Department between 1987 and 1993, meaning thereby, they were not engaged in regular establishment of the Irrigation Department but their status was part time Tube-well operators till their regularization i.e. in the year 2008. The assertions of the learned Counsel for the petitioners that since the petitioners were continuing since 1987 though as Part Time Tubewell Operators and were regularized sometimes in the year 2008, therefore, they are entitled to get the benefit of Old Pension Scheme, cannot be accepted for the reason that admittedly, petitioners' services were regularized sometimes in the year 2008, which is beyond the cut of date prescribed in the New Pension Scheme i.e. 1.4.2005.
As regard the assertion of the the learned Counsel for the petitioners that tube-well operators, whose services were regularized in accordance with 1996 Rules, are getting the benefit of Old Pension Scheme, whereas the petitioners are being deprived of the Old Pension Scheme, it may be mentioned that the law is well settled that a wrong action taken or order passed cannot be allowed to perpetuate. Moreover, this court refrains from recording any finding in this context, as it may adversely affect the persons directly or indirectly, who are not party to the petition. Thus, the assertions of the petitioners in this regard cannot be accepted.
In view of the aforesaid facts and legal propositions, the assertions of the petitioners that petitioners are entitled to get the benefit of Old Pension Scheme as they were engaged sometimes between 1987 and 1993, has no substance as the date on which they entered in the regular establishment is to be taken into account for the purposes of the pension and not the year when they were engaged as part time tubewell operators."
Again in Writ Petition No.122 (SS) of 2012 (Shiv Shankar Lal and others vs. State of U.P. and others) the pension scheme of State dated 28.3.2005 has been relied upon to hold that benefit of GPF under the Rules of 1985 would not be extended to the petitioners.
26. In all the judgments, referred to above, except for examining the new pension scheme introduced vide Government Order dated 28.3.2005 as well as the proviso appended to rule 4 of 1985 Rules, there is no reference to the substantive rule i.e. rule 4 of 1985 Rules. Whether the benefit of scheme accrued under rule 4 could be taken away by retrospectively enforcing the proviso has not been dealt with. The issue as to whether by introducing new pension scheme, which is regulated under the applicable pension rules meant for the employees of the state government, the vested rights accrued under 1985 Rules could be taken away, has also not been considered. The factors and principles which are relevant for considering entitlement to be paid pension vis-a-vis provident fund are distinct. Pension usually is allowed only after qualifying service is completed as per the rules whereas provident fund scheme under the Rules of 1985 extends to temporary government employees also whose services are likely to continue for more than a year. It appears that in State of U.P. vs. Tubewell Operators Welfare Association (supra), Istagar Ahmad and others vs. State of U.P. and others (supra), Brijpal Singh and others vs. State of U.P. and others (supra) and Shiv Shankar Lal and others vs. State of U.P. and others (supra) neither Rules of 1985 were placed in its entirety nor the fact that petitioners had already perfected right to subscribe to the fund by virtue of rule 4 of 1985 Rules was placed or noticed. Since relevant provisions of rules framed under the proviso to Article 309 of the Constitution and rights created thereunder have not been noticed or discussed, as such, I am of the opinion that the matter needs to be examined and law clarified in this regard, by a Larger Bench, on following issues:-
(i) Whether proviso added to rule 4 of the Rules of 1985 w.e.f. 1.4.2005 could be applied retrospectively, so as to take away rights already accrued under the rules?
(ii) Whether judgments of this Court in State of U.P. vs. Tubewell Operators Welfare Association (supra), Istagar Ahmad and others vs. State of U.P. and others (supra), Brijpal Singh and others vs. State of U.P. and others (supra) and Shiv Shankar Lal and others vs. State of U.P. and others (supra) correctly lay down law on the point in view of the fact that the provisions of rule 4 of the Rules of 1985 and rights accruing thereunder have not been referred to, discussed or examined?
27. Let papers be placed before Hon'ble the Chief Justice for passing appropriate orders.
28. In the meantime, it is provided as an interim measure that GPF deduction, which was being continued till passing of the impugned Government Order, shall continue, insofar as it relates to the petitioners, subject to the final adjudication of cause. It is also provided that those petitioners, who have not yet filled their pension forms on account of pendency of dispute before this court, shall be at liberty to fill up their pension forms, under the new pension scheme, within four weeks and their salary shall not be withheld any longer, on such count. This interim protection shall extend to all petitions connected with these two petitions. Records of writ petitions being Service Single Nos.5533 of 2017, 18257 of 2017, 18222 of 2017, 18195 of 2017, 3089 of 2015, 7227 of 2009, 6148 of 2015, 5005 of 2015, 184 of 2015, 185 of 2015, 597 of 2015, 183 of 2015, 20853 of 2017, as are stated to be not covered, shall be de-linked.
Order Date :- 8.9.2017 Ashok Kr.
(Ashwani Kumar Mishra, J.)