Allahabad High Court
Sajeevan Lal And 26 Ors. vs State Of U.P. Thru Pein.Secy. ... on 23 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Judgment Reserved On :- 24.11.2022 Judgment Delivered On :- 23.01.2023 A.F.R. Court No. - 28 Case :- WRIT - A No. - 22586 of 2019 Petitioner :- Sajeevan Lal And 26 Ors. Respondent :- State Of U.P. Thru Pein.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Subhas Chandra Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 29674 of 2018 Petitioner :- Ram Ratan Kori And 8 Ors. Respondent :- State Of U.P.Thru Prin.Secy.Irrigation Andwater Resourcesandors. Counsel for Petitioner :- Dharmendra Kumar Maurya,Dhruvendra Pratap Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 29679 of 2018 Petitioner :- Ram Sagar And 21 Ors. Respondent :- State Of U.P.Thru Prin.Secy.Irrigation Andwater Resourcesandors. Counsel for Petitioner :- Dharmendra Kumar Maurya Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 29723 of 2018 Petitioner :- Surendra Kumar Maurya And 23 Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy.Irrigation And Water And Ors. Counsel for Petitioner :- Dharmendra Kumar Maurya Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 29757 of 2018 Petitioner :- Uma Shanker Pandey And 20 Ors. Respondent :- State Of U.P.Thru Prin.Secy.Irrigationand Water Resourcesandors. Counsel for Petitioner :- Dharmendra Kumar Maurya Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30534 of 2018 Petitioner :- Idrish Khan And 14 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Lko. And Ors. Counsel for Petitioner :- Subhas Chandra Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30541 of 2018 Petitioner :- Dhirendra Singh And 2 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigarion Deptt. Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30557 of 2018 Petitioner :- Ram Awatar And 15 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30569 of 2018 Petitioner :- Buddh Raj And 5 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30589 of 2018Template 43 Petitioner :- Ram Bahadur Pandey Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30599 of 2018 Petitioner :- Ram Jeet Yadav And 12 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30603 of 2018 Petitioner :- Atul Kumar Mishra And 32 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30609 of 2018 Petitioner :- Manmohan Satwal And 32 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30614 of 2018 Petitioner :- Shiv Murti And 39 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 31464 of 2018 Petitioner :- Bansh Bahadur Singh And Another Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Mahesh Chandra Shukla Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 31582 of 2018 Petitioner :- Ganesh Chandra And 52 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 32023 of 2018 Petitioner :- Pyarelal Sahu And 50 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Lucknow And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 32045 of 2018 Petitioner :- Gaya Prasad And 6 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 32053 of 2018 Petitioner :- Maharaj Singh And 6 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 32065 of 2018 Petitioner :- Ram Dev And 2 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Lucknow And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 32428 of 2018 Petitioner :- Ranvir Singh And 95 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 32452 of 2018 Petitioner :- Sarvesh Kumar And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 32540 of 2018 Petitioner :- Shiv Shanker Yadav And 23 Ors Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 32593 of 2018 Petitioner :- Ramesh Chandra And Anr Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 32613 of 2018 Petitioner :- Ram Lotan Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 32685 of 2018 Petitioner :- Santosh Kumar And 13 Ors Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 33254 of 2018 Petitioner :- Abdul Mannan And 32 Ors Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 33694 of 2018 Petitioner :- Anil Kumar Savita And 61 Ors Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 33810 of 2018 Petitioner :- Sarvjeet Singh And 29 Ors Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 33811 of 2018 Petitioner :- Kanhaiya Lal And Anr Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Rakesh Chandra Tewari,Rakesh Chandra Tewari Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 34145 of 2018 Petitioner :- Hari Om Awasthi And Ors. Respondent :- State Of U.P.Thru. Prin.Secy.U.P. Irrigation Deptt. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 34260 of 2018 Petitioner :- Ram Dev Chaudhri And Anr Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 34317 of 2018 Petitioner :- Smt Sakuntla Devi Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 34463 of 2018 Petitioner :- Ravi Karan Singh And 73 Ors Respondent :- State Of U.P Thru Prin Secy Irrigation And Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C & Case :- WRIT - A No. - 36422 of 2018 Petitioner :- Chandra Pal Singh Respondent :- The State Of U.P. Thru. Prin. Secy. Irrigation Deptt. And Ors Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 37011 of 2018 Petitioner :- Ram Bahadur Singh And Ors. Respondent :- State Of U.P. Thru. Secy. Irrigation And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 37014 of 2018 Petitioner :- Maha Ram And Ors. Respondent :- State Of U.P. Thru Secy. Irrigation Dept. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 37018 of 2018 Petitioner :- Jai Pal Singh And Ors. Respondent :- State Of U.P. Thru Secy. Irigation Dept. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 37410 of 2018 Petitioner :- Suraj Pal Singh Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Dept.And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 37592 of 2018 Petitioner :- Prem Pal Respondent :- The State Of U.P Thru. Prin. Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 37696 of 2018 Petitioner :- Umesh Chandra Dubey And Anr. Respondent :- State Of U.P. Thru Prin. Secy. Deptt. Of Irigation And Ors. Counsel for Petitioner :- Anand Mani Tripathi,Anand Mani Tripathi,Girish Chandra Mishra,Girish Chandra Misra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 1889 of 2019 Petitioner :- Gyan Prakash And Ors. Respondent :- State Of U.P. Thru Prin. Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Subhas Chandra Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 1898 of 2019 Petitioner :- Ram Manohar Gupta And Ors. Respondent :- State Of U.P. Thru Prin. Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Subhas Chandra Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 1908 of 2019 Petitioner :- Vijay Dutt Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation And Ors. Counsel for Petitioner :- Subhas Chandra Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 3175 of 2019 Petitioner :- Ahivaran Lal Dinker Respondent :- State Of U.P. Thru Prin. Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Sanjay Kumar Srivastava Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 4436 of 2019 Petitioner :- Rama Shanker Prasad And Another Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 6009 of 2019 Petitioner :- Babu Lal Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Subhas Chandra Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 8086 of 2019 Petitioner :- Raja Ram Prasad And 5 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Lucknow And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 8411 of 2019 Petitioner :- Tejpal Singh And 2 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 8448 of 2019 Petitioner :- Ram Roop And 2 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Deptt. Lucknow Andors Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 10109 of 2019 Petitioner :- Suresh Lal Verma Respondent :- State Of U.P. Thru Prin. Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 10417 of 2019 Petitioner :- Shri Kant Shukla Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Subhas Chandra Pandey,Avadhesh Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 12168 of 2019 Petitioner :- Krishna Mohan Mishra Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 15441 of 2019 Petitioner :- Dharmendra Kumar Dvivedi And 53 Ors. Respondent :- State Of U.P. Thru Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 16504 of 2019 Petitioner :- Mukesh Kumar Bhatnagar Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 16508 of 2019 Petitioner :- Bhukan Singh Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 16674 of 2019 Petitioner :- Rajendra Singh Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 16701 of 2019 Petitioner :- Rameshwar Dayal Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 23640 of 2019 Petitioner :- Nooral Navi And Another Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 23650 of 2019 Petitioner :- Shadhu Sharn And 5 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Krishna Kumar Verma Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 24513 of 2019 Petitioner :- Diwakar Singh And 11 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Anand Mani Tripathi Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 25341 of 2019 Petitioner :- Sultanul Arfin And 32 Others Respondent :- State Of U.P.Thru.Prin.Secy.Irrigation Andwater Resources Andors Counsel for Petitioner :- Mrs. Sandhya Singh,Subiya Sultan Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 26188 of 2019 Petitioner :- Tanveer Ahmad Khan And 32 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 26195 of 2019 Petitioner :- Rabeesh Ali And 63 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 26600 of 2019 Petitioner :- Sanjay Babu And 23 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lukcnow And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 27193 of 2019 Petitioner :- Ram Ji Singh Respondent :- State Of U.P.Thru Prin.Secy.Irrigation Deptt. Lko And Ors. Counsel for Petitioner :- Krishna Kumar Verma Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 27736 of 2019 Petitioner :- Raja Ram And 5 Ors. Respondent :- State Of U.P.Thru Prin.Secy.Irrigation Deptt. Lko And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 27849 of 2019 Petitioner :- Prembabu Respondent :- State Of U.P.Thru Addl.Chief Secy.Irrigation Dept. Lko Andors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 29138 of 2019 Petitioner :- Ram Prasad Respondent :- State Of U.P.Thru Prin.Secy. Irrigation Deptt. Lko And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 29572 of 2019 Petitioner :- Amar Pal Singh And 43 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 31084 of 2019 Petitioner :- Lal Babu Pandey And Anr. Respondent :- State Of U.P.Thru Prin.Secy. Irrigation Deptt. Lko And Ors. Counsel for Petitioner :- Vipineshwar Upadhyay Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 36045 of 2019 Petitioner :- Ram Diraj Chauhan And Ors. Respondent :- State Of U.P.Thru.Prin.Secy.Irrigation Deptt.Lko.And Ors. Counsel for Petitioner :- Krishan Kumar Verma Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 5917 of 2020 Petitioner :- Ganga Sahay And 7 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Irrigation Deptt. Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 8846 of 2020 Petitioner :- Amarjeet Singh And 14 Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 8894 of 2020 Petitioner :- Sripal Singh Respondent :- State Of U.P. Thru Addl.Chief Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 10614 of 2020 Petitioner :- Rajendra Prakash Respondent :- State Of U.P. Thru Addl.Chief Secy.Irrigation Lko. And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 10645 of 2020 Petitioner :- Chhotey Lal Respondent :- State Of U.P. Thru Addl.Chief Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 12545 of 2020 Petitioner :- Chandra Bhushan Dwivedi And Others Respondent :- State Of U.P. Thru Prin Secy Irrigation Department And Others Counsel for Petitioner :- Yogendra Kumar Mishra,Ajey Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 12563 of 2020 Petitioner :- Shyam Sharan Varun And Ors. Respondent :- State Of U.P. Thru. Prin.Secy. Irrigation Dept. And Ors Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 12574 of 2020 Petitioner :- Dhruv Pratap Singh And Ors. Respondent :- State Of U.P. Thru. Prin.Secy.Irrigation Deptt. Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra,Ajey Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 13513 of 2020 Petitioner :- Shubh Singh Respondent :- State Of U.P. Thru Addl.Chief Secy Irrigation Deptt. And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 13519 of 2020 Petitioner :- Lekhraj And Anr. Respondent :- State Of U.P. Thru Addl.Chief Secy Irrigation Deptt. And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 17770 of 2020 Petitioner :- Rakesh Kumar And Ors. Respondent :- State Of U.P.Thru Prin.Secy. Irrigation Deptt. Lko. And Ors. Counsel for Petitioner :- Gyanendra Singh Sikarwar,Kuldeep Singh Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 18299 of 2020 Petitioner :- Hanuman Prasad Mishra And Ors. Respondent :- State Of U.P. Thru Secretary Irrigation Deptt. Lko. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 18302 of 2020 Petitioner :- Ram Adar And Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra,Ajey Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 19252 of 2020 Petitioner :- Baij Nath Pal And Others Respondent :- State Of U.P. Thru. Addl. Chief Secy. Irrigation Lko And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 19257 of 2020 Petitioner :- Brijesh Kumar Singh And Others Respondent :- State Of U.P. Thru. Addl. Chief Secy. Irrigation Lko And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 20170 of 2020 Petitioner :- Gaya Prasad And Ors. Respondent :- State Of U.P. Thru Prin. Secy. Irrigation Dept. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 20175 of 2020 Petitioner :- Sajal Kumar Chaudhary And Ors. Respondent :- State Of U.P. Thru Prin. Secy. Irrigation Dept. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 20721 of 2020 Petitioner :- Satish Chandra And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation Deptt. Lko. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 20739 of 2020 Petitioner :- Shital Prasad And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko.And Ors Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 20813 of 2020 Petitioner :- Ram Shankar Pathak And Anr. Respondent :- State Of U.P.Thru. Prin.Secy.Irrigation Deptt. Lko. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 20814 of 2020 Petitioner :- Ajay Kumar And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 20816 of 2020 Petitioner :- Abdul Karim Khan Respondent :- State Of U.P.Thru. Prin.Secy.Irrigation Deptt. Lko. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 21275 of 2020 Petitioner :- Ram Awadh And Ors. Respondent :- State Of U.P.Thru. Prin.Secy.Irrigation Deptt. Lko. Andors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 21434 of 2020 Petitioner :- Om Prakash And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Department And Ors Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 21851 of 2020 Petitioner :- Ramanand Verma Respondent :- State Of U.P.Thru.Prin.Secy.Irrigation Deptt. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 22075 of 2020 Petitioner :- Heera Lal And Ors. Respondent :- State Of U.P.Thru.Prin.Secy.Irrigation Deptt. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 22454 of 2020 Petitioner :- Chob Singh And Anr. Respondent :- State Of U.P.Thru.Prin.Secy.Irrigation Deptt.And Ors. Counsel for Petitioner :- Krishna Kumar Verma Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 22516 of 2020 Petitioner :- Onkar Nath Gupta Respondent :- State Of U.P.Thru.Prin.Secy.Irrigation Deptt. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 1755 of 2021 Petitioner :- Jas Karan Singh Respondent :- State Of U.P.Thru.Prin.Secy.Irrigation Deptt. And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 1808 of 2021 Petitioner :- Rakesh Kumar And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko.And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 2296 of 2021 Petitioner :- Sri Om Gupta And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Udai Pratap Yadav,Krishna Kumar Verma Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 2410 of 2021 Petitioner :- Mujtaba Hasan Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 2915 of 2021 Petitioner :- Rahis Pal Singh And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 2965 of 2021 Petitioner :- Prem Shankar And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra,Ajey Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 3703 of 2021 Petitioner :- Anil Kumar And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 3706 of 2021 Petitioner :- Ravi Nandan Singh And Anr. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 4059 of 2021 Petitioner :- Ram Adhar Yadav Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 4146 of 2021 Petitioner :- Shahid Ali And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 4271 of 2021 Petitioner :- Satyapal Singh And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 4601 of 2021 Petitioner :- Lal Bhadur Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 5680 of 2021 Petitioner :- Rang Nath Dubey And Ors. Respondent :- State Of U.P.Thru.Addl.Chief Secy./Prin.Secy.Irrigation Andors Counsel for Petitioner :- Yogendra Kumar Mishra,Ajey Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 5978 of 2021 Petitioner :- Ram Raj Yadav Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 6131 of 2021 Petitioner :- Rajendra Kumar Gupta And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 7195 of 2021 Petitioner :- Saleem Haedar Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Krishna Kumar Verma Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 7777 of 2021 Petitioner :- Shivram Singh And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Anand Mani Tripathi,Anurag Tripathi Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 8705 of 2021 Petitioner :- Kshetra Pal Sharma And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra,Ajey Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 9091 of 2021 Petitioner :- Gulfan Singh And Ors. Respondent :- State Of U.P.Thru.Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 13519 of 2021 Petitioner :- Hari Badan Yadav And Ors. Respondent :- State Of U.P. Thru. Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Krishna Kumar Verma Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 13665 of 2021 Petitioner :- Jagveer Singh And Ors. Respondent :- State Of U.P. Thru. Prin.Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 13886 of 2021 Petitioner :- Radhey Shyam Shukla And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Krishna Kumar Verma Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 14073 of 2021 Petitioner :- Maya Ram And Ors. Respondent :- State Of U.P. Thru. Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 14097 of 2021 Petitioner :- Shiv Raj Singh And Anr. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 14264 of 2021 Petitioner :- Sant Ram Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 14425 of 2021 Petitioner :- Rama Kant Shukla And Another Respondent :- State Of U.P. Thru. Secy. Irrigation Deptt Lko And Others Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 14511 of 2021 Petitioner :- Vishambar Dayal And Others Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt Lko And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 14732 of 2021 Petitioner :- Ram Fer Tiwari And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. And Ors. Counsel for Petitioner :- Krishna Kumar Verma,Udai Pratap Yadav Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 15229 of 2021 Petitioner :- Kameshvari Prasad Yadav And Ors. Respondent :- State Of U.P. Thru Addl.Chief Secy. Irrigation And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 15369 of 2021 Petitioner :- Sangopal Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt Lko And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 15667 of 2021 Petitioner :- Jas Karan Lal And Anr. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation Lucknow And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 16016 of 2021 Petitioner :- Javahir Mishra And Ors. Respondent :- State Of U.P.Thru. Prin. Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 16147 of 2021 Petitioner :- Triyugi Narayan Pandey And Ors. Respondent :- State Of U.P. Thru Addl. Chief. Secy. Irrigation Dept. And Ors Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 16174 of 2021 Petitioner :- Dhanpal Narayan Verma And Ors. Respondent :- State Of U.P.Thru Addl.Chief Secy. Irrigation And Ors. Counsel for Petitioner :- Rakesh Chandra Tewari Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 16718 of 2021 Petitioner :- Suchendravir And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 16877 of 2021 Petitioner :- Om Prakash Singh And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation And Ors. Counsel for Petitioner :- Shiv Pravesh Dhar Dubey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 17901 of 2021 Petitioner :- Charan Singh And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra,Ajey Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 17910 of 2021 Petitioner :- Thakur Das And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation And Ors. Counsel for Petitioner :- Yogendra Kumar Mishra,Ajey Mishra Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 23700 of 2021 Petitioner :- Satguru Prasad Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 23745 of 2021 Petitioner :- Kailash Pati Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Lko. And Ors. Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 30612 of 2021 Petitioner :- Ibrahim And Ors. Respondent :- State Of U.P. Thru Prin.Secy. Irrigation And Ors. Counsel for Petitioner :- Vinay Misra,Nazmul Hasan Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 1076 of 2022 Petitioner :- Ram Milan Yadav And Another Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Department Lko. And Others Counsel for Petitioner :- Krishna Kumar Verma Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 3326 of 2022 Petitioner :- Indrapal Singh And 4 Others Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko. And 2 Others Counsel for Petitioner :- Raj Deepak Chaudhary Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 7127 of 2022 Petitioner :- Badri Parasad Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation Deptt. And 2 Others Counsel for Petitioner :- Kunj Bihari Pandey Counsel for Respondent :- C.S.C. Hon'ble Om Prakash Shukla, J.
1. The conundrum relating to the reckoning of dates for the purpose of computation of "qualifying service' for grant of pensionary benefits to an employee having being regularized to a post has been a subject matter of adjudication in several judgments in the past and although this court has in several precedents has carved a niche leading to the development of service jurisprudence on the said issue, but unfortunately the controversy has refused to die down and yet, the present bunch of matters have come for consideration before this court.
2. Since, common issue is raised in all these writ petitions, the bunch is being taken for final disposal together.
3. Apparently, there are two class of petitioners in these bunch of petitions, the first being those petitioners who had as per the direction of this court given a detailed representation to the authority and their representation having been decided unfavourably against them vide various orders including order dated 05.11.2020, 10.07.2018 etc., have again approached this court challenging the said impugned orders and the second class of petitioner belonging to those category, who have approached this court for the first time highlighting the self-same issue, which had been raised by the first set of petitioners in the earlier round of litigation. The similarity, however, lies in the entry in service, therefore, the above classification in the pursuit of an identical right is immaterial. Suffice it to say that entry in service at par with a member of service is either by regular appointment according to service rules or by regularization according to regularization rules.
4. Heard Shri Sudeep Seth, learned Senior Advocate assisted by Shri Kunj Bihari Pandey, Advocate for the petitioner and Additional Advocate General Shri Ramesh Kumar Singh, Senior Advocate assisted by Shri Sanjay Sarin, Shri Pratyush Tripathi, learned Additional Chief Standing Counsel's for the State and Shri Tushar Verma, learned Special Counsel for the opposite parties.
5. It is the common case of the petitioners that, they had been appointed as "Part time Tube well operators" during the year 1987 to 1994 and their services were regularized during the year 2008 to 2009. It is their case that although they had been regularized in the year 2008-2009, however in view of the judgment of this court passed in writ petition No. 3558 of 1992 (Suresh Chandra Tiwari and others Vs. State of U.P. and others) by a Single Bench on 18.05.1994, which was subsequently upheld by the Hon'ble Apex Court vide order dated 22.03.1995, wherein these "Part time tube well operators" have been granted the same emoluments i.e. in the same scale of pay which were given to the regular Tube well operators, they have now claimed pensionary benefits etc. by including past services from initial engagement for the purpose.
6. Rule of law is the hall mark of a democractic society. In the pursuit of this object public services play a vital role. The appoitment of personnel to public services play a vital role. The appointment of personnel to public services at the grassroot level has throughout posed vexatious problems in the matter of appointment and regulation of service condition. Article 14 of the Constitution of India has withstood the temperts of classification and discrimination but the emerging disparity to regulate the condition of pension as an end result of service ought not to obliterate the object of equality in a level playing field. In other words, the application of pension rules knows of no exception or discrimintion once it is a firmly provided that the marriage of resentment with the post (temporary or permanent) ought to be qualified with the appointment of personnel by strict application of service rules for recognising a person to be a member of service. It is for this reason that a backdoor entry in service does not confer membership in service till an incumbent is duly regularised and the date of regularization in this manner assumes the decisive basis for determination of seniority.
7. Thus, these "Part time tube well operators" have claimed that as and from 18.05.1994, since the government had given them the same scale of pay as that of the regular tube well operators, however the other service benefits like calculation of ACP, pension, GPF, Gratuity etc. has not been given from the said date and thus they are entitled for the same. There is also a further relief being claimed, wherein some of the petitioners have sought the same relief of calculation of ACP, Pension, GPF, gratuity from the date of their appointment in view of the judgment passed by the Hon'ble Apex Court in Prem Singh V. State of Uttar Pradesh, 2019 (10) SCC 516. Further, some petitioners have also prayed to relate back the date of regularization to 17.12.1996 i.e the date of issuance of the government order whereby the cadre of part-time tube well operators/ tube well assistants was abolished under the UP irrigation department regularization of part time tube well operators on the posts of tube well operators rules, 1996.
Contention of the Petitioners:
8. Mr. Sudeep Seth, Ld. Senior Counsel led the argument along with Mr. Kunj Bihari Pandey, learned Advocate from the side of the petitioners. Mr. Seth also field his written submission and in his crisp manner, distilled the issue to the point that the judgment of the Hon'ble Apex Court passed in Prem Singh Vs State of Uttar Pradesh, 2019 (10) SCC 516, is squarely applicable to the facts of the present case. According to him, the Hon'ble Apex Court while holding that services rendered in work charge establishment be treated as qualifying services for pensions, has not only read down rule 3(8) of Pension Rules, 1961 but has also struck down regulation 370 of the Civil Services Regulations. Mr. Seth has authoritatively argued that the services in regular establishment like the "Part time tube well operators" are on better footing as compared to services in the work charge establishment, which are essentially temporary in nature. He submits that the work charge employees are engaged on a temporary basis and their appointments are made for the execution of a specified work and their services automatically come to an end on completion of work. However, regular establishment is permanent in nature and hence regular establishment is on a much better footing as compared to work charge establishment. As to the notification dated 07.04.2005 relating to applicability of 1961 rules to only those persons, who were appointed/regularized prior to 01.04.2005, the Ld. Sr. Counsel submits that said notification losses significance the moment past services of the petitioners, for the date of their respective appointments, are reckoned for the purposes of pensionary benefits in terms of the judgment passed by the Hon'ble Apex Court in Prem Singh's case.
9. Further, as to the U.P qualifying service for pension & Validation Act, 2021 applicable since 05.03.2021 is concerned, the Ld. Sr. Counsel submits that the said amendment Act has been dealt by a Division bench of this court in (i) Judgment dated 04.02.2021 passed in Special Appeal Defective No. 1003 of 2020, (ii) Judgment dated 09.06.2021 passed in Special Appeal No. 97 of 2021 and (iii) Judgment dated 14.07.2021 passed in Special Appeal No. 152 of 2021, wherein the Division bench has held that the said Act enures to the benefit of the petitioners and not to the State and according to him each time the division bench had granted the benefit of past services of temporary post/ in work charge establishments for the purposes of pensioner benefits in terms of the Prem Singh case. He further submits that even the SLP filed by the state against one of the order's of the Division Bench has been dismissed by the Hon'be Apex Court.
10. The Ld. Sr. Counsel also drew attention of this court to a Government Order dated 11.08.2020 passed by the state of Uttarakhand, granting benefit of the Prem Singh's case to "Part time tube well operators" in the state of Uttrakhand. According to him, since in the bunch of matters decided by the Hon'ble Apex Court, one of the petitions was that of a "Part time tube well operators" from the state of Uttarakhand, the issue relating to the part time tube well operator in the state of Uttar Pradesh has to be decided in similar manner. Further, he sought to draw an analogy with the matter of seasonal collection amin, who have been granted benefit of the judgment of Prem Singh case by a division bench of this court in Special Appeal No. 438 of 2017 (Brahamanand Singh V/s State of U.P). He has also referred to observation made by the Hon'ble Supreme Court in a compassionate appointment of a dependent of deceased "Part time tube well operators," to buttress his point that the petitioner in that case was treated as regular employee by the conduct of the state government even though they were labelled as a "Part time tube well operators". (State of Uttar Pradesh V/s Uttam Singh vide Civil Appeal No. 4575 of 2021).
11. The Ld. Senior Counsel to further bolster his argument, submits that the issue relating to admissibility of regular pay scales being applicable to "Part time tube well operators" were a subject matter of confusion, wherein the Hon'ble Apex Court had to intervene and vide its judgment dated 04.01.2016 passed in Rakesh Kumar V/s State of UP (SLP (civil) No. 34861/2015) had made it clear that the part time tube well operators would be entitled to regular pay scale in the light of the decision of High Court in Suresh Chandra Tiwari Case (mentioned supra). He further explained that the judgment dated 25.09.2013 being relied upon by the state government passed in the case of Dukh Haran Singh V/s State of U.P ( SLP No. 27713 of 2009) by the Hon'ble Apex Court was neither considering the issue of reckoning past services as "Part time tube well operators" for computation of pensionary benefits nor such an issue was raised in the said petition and thus according to him the judgment passed by the Division Bench of the supreme court in the said case was impliedly overruled and was in per incuriam to the judgment passed by three judge bench of the supreme court in Prem Singh Case.
12. In any case, he argues that although there are several judgments relied upon by the state government in the two compilation filed by them, but according to him most of these conflicting judgment of coordinate benches of the Single bench or the Division Bench of this court relating to computation of past services as "Part time tube well operators" for the purposes of pensionary benefits are either based on the judgment of Division Bench passed in Dukh Haran Singh Case or are prior to the date of judgment in the case of Prem Singh Case. Thus, it has been argued by the ld. Senior counsel that with the delivery of the judgment dated 02.09.2019 in the Prem Singh Case by the Hon'ble apex court, all the earlier judgments relating to the issue of computation of past services, stands impliedly overruled. In order to fortify the said proposition of law, the Ld. Sr. counsel relied on the judgment passed by the Hon'ble Apex Court in the case of C.N. Rudramurthy V/s K. Barkathulla Khan & Others (1998) 8 SCC 275. Further, as relating to the reliance of the state government on the full bench judgment dated 26.11.2021 passed in the case of Namo Narayan Rai V/s State of U.P (Writ Petition No. 13626 of 2017) is concerned, the ld. Counsel has emphatically tried to drive home the point that the said judgment does not have a binding effect upon the entire cadre of "Part time tube well operators", since the said judgment was based upon a compromise affected between the parties to the said case. According to him, the reference made by the Single Bench of the court has not been answered by the full bench and as such the judgment is not binding and the same theory apply for the order of review dated 22.04.2022 passed by the full bench in that said matter.
13. Thus, it has been submitted by the ld. Sr. counsel that directions may be issued to the state government to reckon the services of the petitioners from the date of their initial appointment as "Part time tube well operators" till their regularization, for the purposes of consequential services benefits including pensionary benefits. The other argument relating to reckoning the date for service benefits to these "Part time tube well operators" from the date of 18.05.1994 i.e when they were granted pay-parity with regular tube well operator, or from the date of 17.12.1996 i.e the date of promulgation of "U.P Irrigation Department Regularization of Part-time Tube well operators on the posts of Tube well operators Rules, 1996 had been either not been argued or has been impliedly waived. Thus, the crux of the issue raised and argued by the counsel for the parties is that all the service benefits given by the state to the petitioners ought to have been reckoned from their date of respective appointment and not from their date of regularization. The Ld. Sr. Counsel in a very emphatical manner tried to drive home his argument by submitting that once the service of these "Part time tube well operators" are reckoned from their date of appointment as is being prayed for, the other consequential relief of other service benefit, including applicability of old pension scheme would follow, as then these "Part time tube well operators" would not be termed as new entrant after 01.04.2005, so as to fall within the mischief of the New Pension scheme.
Contention of the Respondents:
14. On the other hand, the arguments for the state of Uttar Pradesh has been ably led by Sr. Advocate Ramesh Kumar Singh, Ld. Addl. Advocate General, assisted by Shri Sanjay Sarin, Pratyush Tripathi, Ld. Addl. Chief Standing Counsels and Tushar Verma, Ld. Special Counsel.
15. The Ld. Addl. Advocate General has taken this court to the history & background of appointment of these "Part time tube well operators" and has submitted that although the state of Uttar Pradesh had framed the Irrigation Department Tube Well Operators Service Rules 1953 in view of powers conferred by proviso to Article 309 of the Constitution of India, which was notified on 5.10.1953, however, these "Part time tube well operators" were appointed under ''executive instructions' vide order dated 22.12.1981 issued by Sinchai Anubhag, Government of U.P, wherein it was provided that 2300 regular posts of Full Time Tube Well Operators cum Mechanics are being created in the pay scale of Rs. 354-514 to run Tube Wells of State of Uttar Pradesh. A mention was also made in the said executive order that another 2147 posts of Part Time Tube Well Operators are being created at a fixed pay of Rs. 150/- per months till 20.02.1982 in case they are not abolished before such date. Thus, the first point being made by the Ld. AAG is that these "Part time tube well operators" were not appointed as per scheme of the Rules and apparently the appointment was made by virtue of Government Orders and without following the procedure prescribed under 1953 Rules. Mr. Singh argued that the petitioners since the very date of their appointment knew that they were part time appointees and no service benefits would accrue to them. In order to vindicate this stand, the Ld. Sr. Counsel has relied on an office memorandum issued by the Engineer -in-Chief, Irrigation Department on 18.2.1982, by which the conditions governing the appointment and services of such posts of Part Time Tube Well Operators were prescribed.
16. The Ld. Sr. Counsel thereafter developed the second limb of his argument by stating that, the state of U.P issued a Government Order dated 20.2.1992 whereby the nomenclature of "Part Time Tube Well Operator" was changed to "Tube Well Assistant" and their honorarium was enhanced from Rs. 299 per month to 550 per month. The said G.O provided that appointment letter may be issued to all working Part Time Tube Well Operator and they may also be provided the appreciation allowance, on the basis of their performances. The Ld. Sr. counsel submits that pursuant to the aforesaid G.O all the working Part Time Tube Well Operators were issued appointment letters. However, in the intervening period, two cases being Case No. 256/1988 and case no. 20/1989 came to be filed by eight and fifty "Part time tube well operators" respectively, before the Labour court claiming pay parity with regular Tube Well operators under the provisions of U.P. Industrial Disputes Act 1947. Both the cases were decided in favour of the "Part time tube well operators" vide Award dated 15.7.1989 and 1.2.1991 respectively, wherein the Labour court returned a finding that since "Part time tube well operators" worked just as hard as Regular Tube Well Operator, they are entitled to pay parity with Regular Tube Well Operators. Obviously, the state of Uttar Pradesh was not happy with the said award of the labour court and as such they challenged the said award vide a Writ Petition. No. 1502 of 1992. Simultaneously, another writ petition No. 3558 of 1992 (Suresh Chandra Tiwari and others Vs. State of U.P. and others) was filed before this court challenging the aforesaid G.O dated 20.2.1992. The Ld. Sr. Counsel to give a glimpse of the said matter sought to rely on the prayer/ relief sought by the petitioners in the said petition, and thus argued that the relief sought in the said writ petition was relating to direction to regularize the petitioners in service on the post of Tube Well Operators and to pay regular pay scale to them as is admissible to the Full Time Tube Well Operators.
17. The Ld. Sr. Counsel submits that both the appeal filed by the state of Uttar Pradesh against the labour court award as well as the writ filed by Suresh Chand Tewari & others were decided by a common judgment dated 18.5.1994, wherein a Single Bench of this court found the claim of pay parity of "Part time tube well operators" just and therefore granted the relief of same emoluments to them as that of a regular Tube well operators. Further, a special leave petition filed by the State of U. P. against the said judgment was also dismissed by the Hon'ble Supreme Court on 22.3.1995 observing therein that the duties, qualifications, and hours of working of the "Part time tube well operators" are similar to that of regular Tube Well Operators and thus based on the principal of equal pay for equal work, the Apex Court dismissed the SLP of the state. Thus, the Hon'ble Apex court held the "Part time tube well operators" to be entitled for payment of salary (prospectively) as was being drawn by the regular Tube Well Operators. The Ld. Sr. Counsel in order to complete the complete chain of events submits that even the Review Petition filed by the state was dismissed on 18.10.1995. Thus, in compliance of the order of the Hon'ble Apex Court, the State issued an order on 27.10.1995, followed by an order dated 10.11.1995 providing the same emoluments of pay, which were given to the regular Tube well operators to "Part time tube well operators," who were covered by the said judgment dated 18.5.1994 and other similarly situated petitioners.
18. After narrating the events, the ld. Sr. Counsel submitted that in terms of the aforesaid judgment of Suresh Chand Tewari case, the only issue decided by this Court or the Hon'ble Apex Court was relating to the pay-parity between the part time tube well operator and the full time tube well operator, which was decided on the Principal of equal pay for equal work and no other issue was decided and as such reading or interpreting the said judgement to hold that since pay-parity was granted to the part time tube well operator, they ought to be also given other service benefits like pensions etc. would be overreaching the judgment and not as per law.
19. The Sr. Counsel in order to further fortify his stand that, the "Part time tube well operators" cannot be equated to full time tube well operator on the strength of Suresh Chandra Tewari case, took this court to the third limb of his argument relating to the regularization of these "Part time tube well operators". The Ld. AAG submitted that the State enacted the "U.P. Irrigation Department Part Time Tube Well Operators Regularization Rules 1996" for regularization of "Part time tube well operators" and as per the rules made it applicable only to those candidates whose appointment were made prior to 1.10.1986 and who worked continuously till 16.12.1996. The rules also mentioned that there was no distinction between candidates appointed as "Part time tube well operators" or Tube Well Assistant and the said rules were equally applicable to them, provided they met the cut-off dates. The state also issued G.O dated 17.12.1996 whereby the Cadre of "Part time tube well operators" was abolished and further provided that against the vacant posts of Tube Well Operators the proceedings for regularization shall be initiated under the provisions of aforesaid Regulation Rules 1996 only. Hence, the process of regularization of "Part time tube well operators" started and vacant posts were filled up based on seniority and as per the Ld. Sr. Counsel, about 6735 Part Time Tube Well operators were regularized during the period 1997 till 2001 and given the benefit of the Old Pension Scheme as was applicable prior at the time of their regularization.
20. It was further submitted that the state, in order to give full effect to the principles of ''equal pay for equal work' propounded in the judgment passed by the Hon'ble Apex Court as well as this court in Suresh Chand Tewari case, issued G.O dated 3.3.1998 directing all "Part time tube well operators" to be entitled for increment and allowance like the regular Tube Well Operators along with rural house rent allowances, bonus etc. However, the said G.O was subsequently clarified & modified by another G.O dated 28.5.2003, whereby the phrase "other service benefits" mentioned in G.O order dated 03.03.1998 was deleted, however by the subsequent G.O dated 28.5.2003, the benefits of pay increment, rural house rent and bonus continued in the light of the judgment in the Suresh Chandra Tiwari case.
21. Thus, the Ld. Sr. counsel has submitted that the status of the "Part time tube well operators" was not of a temporary government servant but remained as of "Part time tube well operators" and the terms and conditions of the "Part time tube well operators" were governed by the government order dated 18.2.1982 which remained same till their regularization, except for the fact that they were granted the benefit of ''equal pay for equal work' in terms of the judgment and order dated 18.5.1994 passed in the Suresh Chandra Tiwari case. Thus, it has been argued that the mere grant of pay parity to the part time tube well operators cannot confer them a status of a temporary government servant or else he vehemently argues that a situation would be created whereby, "every contractual, daily wager / ad-hoc / temporary / part time engagement would result into a status of regular government servant.
22. The Ld. Sr. Counsel has tried to draw a distinction between a conscious decision and a wrong decision. According to him, the argument of some of the counsel that GPF have been deducted from their account after the government order dated 03.03.1998 and as such they are entitled for the old pension scheme would not be correct and not as per law as the said deduction of funds was made under some misconception. He submits that the petitioners were not legally entitled to subscribe to the fund and the nature of their appointment was contractual and they would only acquire the status of Government servant only after their due regularization. Thus, according to him, the nature of appointment of "Part time tube well operators" cannot vary in reference to different service benefits i.e., for achieving pension their services prior to regularization cannot be held to be substantive or permanent or even temporary.
23. Continuing further, the Ld. Sr. Counsel addressing this court on the regularization of the petitioners, next submitted that for the purposes of regularization of services of "Part time tube well operators", whose services were not covered by Regularization Rules 1996, the State enacted the U.P. Irrigation Department Regularization of Part Time Tube Well Operators on the Post of Tube Well Operators (First Amendment) Rules 2008, which were made applicable to those candidates who were appointed prior to 30.6.1998 and worked continuously till 05.05.2008. Thus, it has been contended by the Ld. Sr. counsel that the present writ petitioners have been regularized in view of this amendment and thus these petitioners having taken the benefit of regularization are now trying to rake the issue of reckoning the date for grant of service benefits from their respective date of appointment cannot be permitted as per law, in view of the scheme of regularization and a series of consistent judgments passed by this court as well as the Hon'ble Apex Court.
24. The first judgement relied by the state is the case of State of U.P. and others Vs. Dukh Haran Singh and others (special Appeal No. 240 of 2009), wherein large number of incumbents similarly placed as the present writ petitioners, whose cases were covered under the Service Rules 1996 and Amended Rules 2008, challenged the validity of the said Rules before a single bench of this Court and were granted relief, in as much as the "Part time tube well operators" were granted pensionary benefits by reckoning their date of appointment. However, interestingly, the said order of the Single Bench was overruled vide judgment dated 21.7.2009 of a Division Bench of this court, which held that service rendered prior to regularisation does not qualify for grant of pension in terms of Regulations 361 and 370 of the Regulations as services rendered, prior to that are neither substantive, permanent nor temporary. Further, in the SLP filed in the said Dukh haran Singh ( Special Leave Petition (C) no. 27713 of 2009, Dukh Haran Singh vs. State of U.P & Ors), the Hon'ble Apex Court vide its judgment dated 25.09.20113 dismissed the said SLP of the petitioner ("Part time tube well operators") by reiterating the judgment of the Division Bench of this court and further observing that since as per the relevant rules minimum qualifying service for pension is 10 years, the petitioner having not fulfilled that minimum requirement, they could not be held to be eligible for pension though he would be entitled to gratuity and other benefits subject to applicable rules.
25. The Ld. AAG also referred to a judgment dated 10.05.2011, passed in Writ Petition No.- A 52397/2009, Subhash Chandra Mishra and others V/s State of U. P. and others, of this court to show that mere providing parity in the matter of pay scale, other conditions of service of part time Tube Well Operators does not become suo moto at par with regularly appointed Tube Well Operators from the date of initial appointment. According to the State, the two sets constitute two different streams and they were not interchangeable and they were engaged with different concepts, different status, conditions of service etc. Thus, it is their submission that any attempts to treat the persons like petitioners and regularly appointed Tube Well Operators at par in all respects would amount to treating unequals as equal.
26. Further, Judgment dated 30.07.2014 passed by a Division Bench of this court in Special Appeal No. 146 of 2008, (State of U.P. and others Vs. Ram Niwas) and connected appeal, was referred wherein the Division Bench after recording the various clauses of the 1953 rules relating to appointment of tube well operators in UP, repelled the plea of the "Part time tube well operators" for grant of arrears of salary for the period from their date of appointment to the date of passing of the Suresh Chandra Tewari Case on the ground that none of the procedure, as indicated as per Rules, 1953, has been followed in the appointment of these "Part time tube well operators".
27. The Ld. Sr. Counsel referred to various judgments to show that similar petitions in sum & substance have been rejected earlier by this court, wherein the regularization from the date of initial engagement has been rejected by this court of these "Part time tube well operators". These judgments being:
(i) Judgment dated 08.11.2012, passed in Writ Petition No. 8722 of 2009, (Istgar Ahamad V/s State of U.P. and others), wherein the court repelled the contention of the petitioners to count their services from the date of their initial engagements as "Part time tube well operators" for other service benefits and accordingly found the other prayer regarding deduction of GPF as also not tenable as regularization of services of the petitioners was made on 7.1.2009 and they were covered by the notification dated 21.3.2005.
(ii) Order dated 13.06.2013 passed by this court in Writ A No. 55344 of 2013, (Madan Gopal Pandey Vs. State of U.P. and others)
(iii) Order dated 31.03.2014 passed by a Division Bench of this court in Special Appeal No. 227 of 2014, (State of U.P. and others Vs. Tube Well Operators Welfare Association and others) and other connected Appeals, wherein the Division Bench did not find any substance in the contention that "Part time tube well operators" are entitled to all benefits of service, which is applicable to employee either temporary or permanent employees appointed on any substantive post prior to the date of their regularization.
(iv) Judgment dated 21.11.2014 passed by this court in Writ A-35425 of 1997, (Murari Lal Vs. State of U.P. and others) and other connected petition, wherein this court did not find any valid ground for declaring the regularization Rules as Ultra vires of Articles 14 and 16 of the constitution for not providing for regularization w.e.f. initial date of appointment.
(v) Judgment dated 19.9.2016 passed by a Single Bench of this court in Writ Petition No. 22375 of 2016, (Brij Pal Singh and others v/s State of U.P and others), wherein this court repelled the assertions of the petitioners that they were entitled to get the benefit of Old Pension Scheme as they were engaged sometimes between 1987 and 1993. The court in that case thus held that there was no substance in the said argument of the petitioners, as the date on which they were regularised in the regular establishment was to be taken into account for the purposes of the pension and not the year when they were engaged as "Part time tube well operators" and thus dismissed the writ petition as being devoid of any merits. Even, the appeal filed against the said single Bench order was rejected by the Division Bench of this court vide order dated 15.02.2017 passed in Special Appeal No. 70 of 2017, (Manmohan Satwal and others Vs. State of U.P. and others) connected with Special Appeal No. 65 of 2017, Rajesh Kumar Tiwari and others Vs. State of U.P. and other.
(vi) Judgment dated 17.01.2017 passed in Writ Petition No. 122 of 2012, (Shiv Shankar Lal and others Vs. State of U.P. and others) and other connected writ petitions, wherein identical issue stood decided, wherein the Single Bench refused to give similar reliefs to "Part time tube well operators", who were engaged sometime between 1987 to 1993 and their services were regularized sometime in the year 2008. The said judgment of the single Bench was upheld vide order dated 15.02.2017 passed in Special Appeal No. 65 of 2017, Rajesh Kumar Tiwari and others Vs. State of U.P. and other connected appeals, wherein the Division Bench refused to accept the contention of the "Part time tube well operators" that the word ''New Recruits' does not include those who were appointed earlier even though they have not been regularized later on. The Hon'ble Division bench in that case observed that if such an interpretation is given then any form of engagement or appointment prior to 28.3.2005 would obviously be recruitment, but at the same time such recruits not being regular, the said engagement would not be entitled to the pensionary scheme either old or new unless they are regularized in their services. A new recruit in this context would mean a regular substantive appointee and not a part-time or ad- hoc etc. appointee.
28. The Ld. AAG elaborating further has drawn the attention of this court to the fact that G.P.F. of certain "Part time tube well operators" have wrongly been deducted under old pension scheme due to which they were also claiming the pensionary benefits etc. whereas the regularization of services of said "Part time tube well operators" were made after 01.04.2005 under new pension scheme. In this regard, the Ld. AAG submitted that although Government Order dated 15.9.2011 provides that in case due to wrong deduction of G.P.F. has been made under old pension scheme, the deducted amount will be returned to the incumbents, some 2152 "Part time tube well operators", who were regularized after 01.04.2005 filed writ petitions before this Court praying that their GPF deductions maybe continued to be done as before and in pursuance of the aforesaid deductions they may be granted the benefit of Old Pension Scheme and may be paid the pension accordingly after their superannuation. The Ld. AAG submitted that in the aforesaid bunch of writ petition in which the leading Writ Petition no. 13626 of 2017 (Namo Narain Rai & Others Versus State of U.P. & Others and Other connected Writ Petition) this Court has referred the controversy vide order dated 08.09.2017 by framing a question (in relation to GPF deductions) which stands decided by the larger bench, wherein the larger bench has vide its order dated 26.11.2021 has specifically directed (i) in case of all "Part time tube well operators" regularized after 1 April, 2005 and who are still in service and whose GPF have been deducted after the date of their regularization till date, the amount accumulated along with interest accrued thereon as per the GPF Rules shall be transferred to the pension fund and the state shall also transfer its contribution in the pension fund from the date of regularization in lump-sum as per the applicable rules (ii) in case where neither GPF was deducted nor account was opened under the new pension scheme, though their service were regularized from different dates after April 1, 2005, in that case, the employees who are still in service would fill up their forms for becoming members of the new pension scheme and in future deduction from their salary shall be made as per the pension scheme, (iii) as far as amount lying in the GPF account of the employees, who have already retired from the service, the Hon'ble larger bench recorded that the same has been already returned to the employees along with interest and in case it is not so done, the same shall be returned to them along with interest from the date it fell due up to the date of payment as per the GPF rules within a period of three months and (iv) in case of employees, who have been regularized after April 1, 2005, if any amount was lying in the GPF account to their credit before the date of their regularization, the same would be transferred in the pension fund account. There would not be any requirement of the state to contribute to the pension fund for any period prior to their regularization.
29. The Ld. Sr. Counsel has also contended that even a review filed against the said order has been dismissed by the larger bench vide its order dated 22.04.2022. Further, the order dated 26.11.2021 and the review order dated 22.04.2022 passed by the larger bench of this court had been a subject matter of challenge before the Hon'ble Apex Court in a bunch of SLP's including the lead SLP being SLP No. 9180-9185/2022( Mahanth Singh & Os. V/s State of Uttar Pradesh), wherein the Hon'ble Supreme Court vide its order dated 25.07.2022 had been pleased to dismiss the said SLP's. Thus, it has been argued that the order of the larger bench stands confirmed and as such the same is binding on all the parties.
30. The Ld. Sr. Counsel thereafter tried to bring out the meaning of who could be termed as Government servant and as to who is a temporary Government servant to buttress his argument that under the service jurisprudence there can be two types of temporary arrangement; namely those temporary employees who have been substantively appointed in regular manner, while following the due process as prescribed under relevant service Rules and the other category being whose appointment had been on need-based. He submits that for substantive appointment there must be a substantive post. Substantive post, it is trite in law that means the posts which have been created under statutory Constitutional Rules, forming a cadre, as defined under Rule 9(4) of U.P. Fundamental Rules made under Government of India Act 1935, according to which the cadre means strength of service or a part of service sanctioned as a separate unit. The Ld. Counsel also referred to the U.P. Temporary Government Servant (Termination of Service) Rules, 1975 in that regard. Thus, according to him the petitioners having been not appointed in a substantive post, cannot claim to be appointed on a temporary post.
31. The Ld. AAG, thereafter referred to clause (b) of Article 361 of the Civil Service Regulation to show that part-time services cannot be treated as substantive and permanent for qualifying for pension and Article 368 of the Civil Service Regulation, to show that service does not qualify unless the officer holds a substantive post on a permanent establishment. The Ld. Sr. Counsel has also relied upon Rule 3 (8) of Uttar Pradesh Retirement Benefits Rules 1961 and argued that "Qualifying Service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulation which means the employment must be substantive and permanent for qualifying service and the period of appointment can't be counter for grant of pensionary benefits, unless it is substantive and permanent, hence part-time services can't be treated as qualifying service.
32. According to the Ld. Counsel, both Civil Service Regulations and Uttar Pradesh Retirement Benefits Rules 1961, refers only to temporary or officiating service and do not at all mentions part-time service. Thus, according to him, temporary and Officiating appointments are different from part- time appointments and not interchangeable and only Temporary or officiating services followed by confirmation, under the provisions of The Uttar Pradesh Government Servant Confirmation Rules- 1991, can be treated as substantive service/qualifying service for pensionary benefits but part-time service cannot be treated/counted as qualifying service for grant of pensionary benefits. Further, different in nature and no parity/benefit can be claimed by any part time employee under any rule which specifically is framed for ad-hoc employees. Further, the Ld. Counsel has submitted that Rule 2 of the aforesaid Rules, 1961 was amended vide U.P. Retirement Benefit (Amendment) Rules, 2005 by which after sub-rule (2) a new sub-rule (3) has been added. By the aforesaid sub-rule (3) it has been clarified that any employee entering into the services and post of the State after 1st April, 2005 on such employees the U.P. Retirement Benefit Rules, 1961 shall not be applicable.
33. Thus, it has been argued that the petitioners were Part time tube well operators" and their status has been declared by the Division Bench in the case of Dukh Haran case and once it has been settled that they were not temporary employees, the petitioners cannot seek regularization from any anterior date and they could not have subscribed to the fund and even if they were provided to subscribe to the fund, the same was a mistake which stands corrected in the case of the petitioners as well as other "Part time tube well operators". The Ld. Counsel also referred to the definition of qualifying service as defined in clause 2 of The Uttar Pradesh Qualifying Service for Pension and Validation Act (applicable/in force w.e.f. 1 April 1961), which says "Notwithstanding anything contained in any rule, regulation or Government order for the purpose 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." According to the Ld. AAG, the petitioners are not entitled for pension and other service benefits, as they are not appointed in accordance with the provisions of aforesaid service rules of 1953 and in any case none of the petitioners have challenged the Uttar Pradesh Qualifying Service for. Pension and Validation Act by which the "Qualifying Service" has been defined and without putting this Act into challenge the petitioner cannot claim the benefit of grant of pension after their superannuation.
34. The Ld. Sr. Counsel, thereafter taking the argument further submitted that there is another ancillary issue which though is not directly involved in the instant case but is impliedly connected with the instant case, in as much as according to the Ld. Sr. Counsel, these "Part time tube well operators" by seeking backdating of regularization are in fact eyeing to achieve benefit of old pension scheme which was in vogue prior to 1.4.2005 which is not permissible in law. The issue as to whether the "Part time tube well operators" were entitled to subscribe to the fund is no more res-integra in light of judgment and order dated 31.3.2014 passed by the Hon'ble Division Bench of this Hon'ble Court in a bunch of two Special Appeals leading being Special Appeal Defective No. 227 of 2014, (State of U.P. and others Vs. Tube Well Operators Association), wherein it was held by the Hon'ble Division Bench that the Tube Well Operators for whose benefit the writ petition is filed will be entitled to benefits of service including G.P.F. and other benefit like pension etc. from the date they were regularized and not from any date prior to that.
35. The Ld. Sr. Counsel in his endeavour to distinguish the judgment passed by the Apex Court in Prem Singh case, submitted that the working of the petitioner as "Part time tube well operators" cannot be equated with the persons, who are/were working in work charged establishment, as both are entirely distinct and different categories of employment and nature of work. The provision of engagement under the work charged establishment is provided under paragraph 667, 678 and 669 of the Financial Hand Book, Volume 6 part 1 and the expenses of the same was based/charged on the said particular work, whereas the part time engagement of the petitioners (and like-wise other persons) were made under an ''executive instruction' of the government issued vide order dated 22.12.1981 and under subsequent office Memorandum dated 18.2.1982, issued by the Engineer-in- Chief, Irrigation Department by which the conditions governing the appointment and services of such temporary posts of Part Time Tube Well Operators were prescribed. In view of the above the services of "Part time tube well operators" cannot be equated with the persons, who are/were working in work charged establishment, as both are entirely distinct and different, and the petitioner is not entitled to get the benefit of the said judgment passed by the Hon'ble Apex Court in Prem Singh case.
Analysis & Discussion:
36. Having given a thoughtful reasoning to the entire gamut of controversy in these bunch of petitions and the scores of judgments referred by either of the parties, some of which have been also referred by this court, the issue before this court has become clear like a bright daylight. Apparently, it seems the issue has become verbose as numerous petitions were filed and decided by this court at different point of time. However, a closer look to these bunch of matters would reveal that the real issue is encircled around the applicability of the judgment passed in Prem Singh case to these "Part time tube well operators" juxtaposed to the series of judgments already passed relating to the service benefit accrued to them by this court before and after the passing of Prem Singh case. There is also a second aspect to the matter, in as much as in case the Prem Singh case is held to be applicable to the present bunch of writ petitioners, whether the benefit of the Old Pension scheme can be given to these writ petitioners, who have been regularized after 01.04.2005 i.e when the new pension scheme came into force as admittedly in Prem Singh Case, although decided in 2019, the issue relating to the new pension scheme coming into force on 01.04.2005, was not an issue, most probably because the fact narrated was that of a person having been regularized on 13.03.2002 i.e much before the new pension scheme came into existence.
37. The common thread running through the present bunch of matter as far as the facts are concerned lies in a narrow compass, in as much as all the writ petitioners claim to have been engaged as "Part time tube well operators" sometime between 1987 to 1994. They were admittedly not regularly appointed Tube well Operators and their services were regularized sometime in the year 2008-2009. The New Pension Scheme came into force w.e.f. 1.4.2005, meaning thereby Government Servant, who have been appointed/engaged on regular basis on or after 1.4.2005, would come under contributory scheme and not under Old Pension Scheme. However, the petitioners are claiming the benefit of Old Pension Scheme and in their pursuit to get the relief of old pension scheme has sought a declaratory relief from this court to reckon their respective date of appointment as the date for entitlement of service benefits, including pension etc. Appointment of Petitioners:
38. This court finds that, it is not in dispute that the appointment and service condition of regular Tube well Operators are governed by U.P. Irrigation Department Tube Well Operators Service Rules, 1953, according to which, for the appointment of regular Tube well Operators, a selection committee is to be constituted by the Superintending Engineer under Rule 3 (b) and this selection committee includes two Executive Engineers and the senior most Executive Engineer as convenor. Rule 12 of Rules, 1953 provides that the Convenor of the Committee would inform to the concerned Superintending Engineer about the selected candidates. Rule 13 provides for apprentice training for three months and successful candidates will be granted certificate. Rule 14 provides for list of selected candidates including their name and date of birth. Rule 15 provides for appointment from amongst the list prepared under Rule 14 subject to availability of vacancies. However, in the instant case, none of the procedure as prescribed was followed by the concerned Executive Engineer viz. no advertisement was issued; no requisition was made to the Employment Exchange; no selection committee was constituted; and no select list as required under Rule 12 of the Rules, 1953 was published.
Government Order Dated 22.12.1981 & OM Dated 15.02.1982
39. Admittedly, although the state had framed the aforesaid U.P Irrigation Department Tube Well Operators Service Rules 1953, however, the present writ petitioners were not appointed under the said Service Rules, 1953 but under an ''executive instructions' issued vide order dated 22.12.1981 by the Sinchai Anubhag, Government of U.P, wherein it was provided that 2300 regular posts of Full Time Tube Well Operators cum Mechanics are being created in the pay scale of Rs. 354-514 to run Tube Wells of State of Uttar Pradesh. A mention was also made in the said executive order that another 2147 posts of "Part Time Tube Well Operators" are being created at a fixed pay of Rs. 150/- per months till 20.02.1982 in case they are not abolished before such date. Thus, apparently it seems to this court that the appointment of the petitioners as "Part Time Tube Well Operators" was a stop-gap arrangement and made by virtue of Government Orders and without following the due procedure prescribed under 1953 Rules. Further, it is an undisputed fact that the Engineer -in-Chief, Irrigation Department on 18.2.1982, issued certain conditions governing the appointment and services of such posts of "Part time tube well operators", which inter-alia prescribed, relevant to the context:
- As per clause 6, the part time tube well operators would work from 09:30 AM till 12:00PM and they shall be free to do their private work in the rest/remaining period of the day.
- As per clause 11, the part time tube well operators shall be temporary which can be terminated after giving one month notice, if their work is not satisfactory.
- As per clause-12, the part time tube well operators will not be entitled for pension, provident fund, and gratuity etc.
40. The aforesaid memorandum dated 18.02.1982 was amended vide office memorandum dated 19.04.1983, wherein clause 11 was amended to also include a term that their service as part time tube well operators shall be for a period of three years and after the lapse of the said three years, they can again be re-appointed as "Part time tube well operators", in case there work was found to be satisfactory. The fixed pay of these part time tube well operators were further increased to Rs. 299 per month vide memorandum dated 24.08.1989 issued by the irrigation department, wherein certain further conditions were mentioned like the services of these part time tube well operators can be terminated at any time without notice as per the U.P. Temporary Government Servant (Termination of Service) Rules, 1975 and that they would not be entitled to any pension, gratuity, and other regular service benefits.
41. Therefore, it is required to be noted that the writ petitioners were working as "Part time tube well operators" (working for less than three hours a day). The appointment was for a stop-gap arrangement. They were not appointed on any substantive post. Further, it is not in dispute and cannot be disputed that they were not appointed in any sanctioned posts of tube well operators regular or temporary. Even it is not the case on behalf of the writ petitioners that their appointment was done after following due procedure of selection. Neither any documents nor any submission have been made by the parties contradicting the aforesaid analogy drawn by this court. Thus, there appointment remained always irregular.
Pay-Parity with Tubewell Operators
42. The services of these "Part time tube well operators" seemed to be mired with controversy since the very inception as it is reported that some of these "Part time tube well operators" approached the labour court under the provisions of the Industrial Dispute Act, 1947, wherein an Award was passed in their favour in the year 1989, thereby directing that these "Part time tube well operators" to be treated equally like a regular tube well operator as far as admissibility of salary and allowances was concerned, however, interestingly, the labour court as far as regularization of their service is concerned, held & merely recorded that these "Part time tube well operators" shall be given priority in case the department had any available vacant post. Thus, the labour court although granted pay-parity but left regularization to the government, which no doubt was also as per the dictum of Constitution Bench of the Supreme Court in Uma Devi's case [(2006) 4 SCC 1], which authoritatively held that there is no vested right of regularisation. Coming back to the present case, the state was obviously not happy with the said Award of the labour court and challenged the same before this court. In the interregnum, the state also changed the nomenclature of "Part time tube well operators" to Tube well assistants and enhanced their honorarium vide a G.O dated 20.02.1992, however the said honorarium was not equivalent to those being paid to a regular tube well operator. Thus, on the heels of the said Government order, several petitions came to be filed in this court by the "Part time tube well operators" seeking direction to regularize the petitioners in service on the post of Tube Well Operators and to pay regular pay scale to them as is admissible to the Full Time Tube Well Operators.
43. Both the category of writ petitions came to be decided by this court in the lead matter of "Suresh Chandra Tewari & Ors. V/s State of U.P & Ors. (Writ Petition No. 3558(S/S) of 1992 & 49 other similar connected writ petition). Apparently, this court vide its order dated 18.05.1994 decided these writ petitions, thereby directing the state to pay all the writ petitioners the same emoluments i.e in the same scale of pay in which others regularly appointed tube well operators were being paid. Pursuant to the said direction of this court, the state approached the Hon'ble Apex Court vide SLP No. 16219/ 1994 along with other connected matters, wherein the Supreme Court vide an order dated 23.09.1995 dismissed the SLP of the state finding no grounds to interfere with the concurrent findings of the two courts, which had granted the relief to the petitioners based on the principal of "equal pay for equal work". Even the review was dismissed by the Supreme Court vide order dated 18.10.1995, clarifying that the issue in the said proceedings were not related to regularization, but were concerned to the question of grant of pay-parity to the part time tube well operators equal to the regular operators on the principle of equal pay for equal work. Pertinently, the state government issued G.O dated 27.10.1995, thereby issuing directions for making admissible same pay scale to "Part time tube well operators" as admissible to regular tube well operators from the date of judgment of this court i.e 18.05.1994. Further, it is stand of some of the petitioners that there had been conflicting judgments of this court relating to admissibility of regular pay scale to "Part time tube well operators" even after the said government order and as such vide a judgment dated 04.01.2016 passed in SLP No. 34861/2015 by the Hon'ble Apex court, the issue stood settled and clear that the "Part time tube well operators" would be entitled to regular pay scale w.e.f 18.05.1994 in the light of the decision of this court in Suresh Chandra Tiwari case.
44. In the meantime, in view of the direction of this court, the "U.P Irrigation Department Regularization of Part-time Tube well operators on the posts of Tube well operators Rules, 1996" came into formalized, thereby offering to regularize those part time tube well operators, who were appointed prior to 01.10.1986 and continued to work in the said capacity as on the date of promulgation of the said rules. The said regularization rules had its own fate of litigation as the same was also a subject matter of challenge before this court, however the same would be dealt in detail in the subsequent part of the judgment.
45. Coming back to the issue of pay-parity, this court finds that some of the part-time tube well operators armed with the aforesaid judgment of Suresh Chandra Tiwari case and on the principle of equal pay for equal had also approached this court seeking all service benefits like a regular tube well operator from the date of their appointment and not from the date of their respective regularization. This court vide an order dated 10.05.2011 in the case of Subhash Chandra Mishra vs state of Uttar Pradesh (Writ A No. 52397/2009) had repelled the argument of these part time tube well operators by holding that mere providing parity in the matter of pay scale, the other conditions of service of "Part time Tube Well Operators" does not become suo moto at par with regularly appointed Tube Well Operators from the date of initial appointment as "Part time Tube Well Operators". This court in the said judgment held that the two sets constitute two different streams and were not interchangeable as they were engaged with different concepts, different status, conditions of service etc. and as such any attempts to treat the persons like writ petitioners with regularly appointed Tube Well Operators at par would amount to treating unequals as equal. This court in that said judgment also held that the concept of "equal pay for equal work" if followed in a case as such, would not make the person of two different set up at par in all other respects, viz. if a temporary employee is granted salary at par with regularly appointed permanent employee, it would not give security of tenure to a temporary employee in the same manner as it is available to a regularly appointed permanent employee. This court after referring to the Apex Court's observation in Shitala Prasad Shukla v. State of U.P. AIR 1986 SC 1859 wherein the Apex Court had observed that persons having some difference amongst themselves belong to different streams cannot be placed at par in all respects particularly seniority etc. as that would amount to treating unequals as equal, passed the aforesaid judgment. This court finds that the judgment in Subhash Chandra Mishra case squarely applies to the present writ petitioners on all four corner as far as their argument to provide them pensionary benefit from the date of granting them pay parity with regular tube well operators is concerned.
46. This court also finds that mere providing parity in the matter of pay scale, does not enure the part time Tube Well Operators, other benefits like a regular tube well operator. As already discussed herein above, the appointments of these "Part time tube well operators" were not made as per the service rules but under an executive order and was intended to be a stop-gap arrangement. The memorandum issued from time to time also clearly mentioned that pension and the like benefits would not accrue in favour of these "Part time tube well operators". They were predominantly engaged with different purposes, mechanism and conditions of service. Any attempts to treat the persons like petitioners as regularly appointed Tube Well Operators at par in all respects would amount to treating unequals as equal and would be discriminatory. Further, even the Hon'ble Apex Court in the review petition decided in the Suresh Chand case clarified that the issue decided by the Apex court was relating to pay parity only and not relating to regularization etc. Thus, to now argue that the service of these petitioners be treated & reckoned from the date, they were given the benefits of pay-parity i.e 18.05.1994 would be not only over reaching the clarification given by the Apex Court but would also be not as per law. Thus, the contention of the writ petitioners that the service should be reckoned from the date, they were granted pay-parity with regular tube well operators cannot be accepted. Interestingly, even in Suresh Chand Case, the petitioners could have claimed regular appointment or regularisation of services from their initial date of appointment but they did not do so, nor was any such relief granted as was clarified by the Apex Court and thus even pay parity has not been granted from the initial date of appointment, but was only granted only from the date of passing of the judgment in the case of Suresh Chand Case by this court. Thus, this court holds that pensionary benefit from the date of granting "part time tube well operators" pay parity with regular tube well operators cannot be granted and as such the same stands rejected.
Regularization of Part-time Tubewell Operators:
47. That brings this court to consider the aspect as to whether the service of these part time tube well operators can be reckoned from the date of 17.12.1996 i.e the date of promulgation of "U.P Irrigation Department Regularization of Part-time Tube well operators on the posts of Tube well operators Rules, 1996". It is to be noted that the said rules were framed and made applicable to those part time tube well operators who were appointed prior to 01.10.1986 and continued to work in the said capacity as on the date of promulgation of the said rules. The cut of date mentioned above was amended in the year 2008 and the same was made 13.06.1998. It is the case of the writ petitioners that in the intervening period the state issued the G.O dated 03.03.1998, emphasising payment of same benefits to "Part time tube well operators" as payable to regular tube well operators and for compliance of order of this court as well as Apex Court judgment passed in Suresh Chandra Tewari case. In the said G.O, the state also resolved to make payments of annual increment, village house allowance, bonus and other service benefits. However, subsequently, the state deleted the phrase "other service benefits" vide their another G.O dated 28.05.2003 and thus it has been argued that, although they did not challenge the said amendment GO of the state as it did not come into their notice, but the state is obliged to grant them all service benefits as contemplated by them in the GO dated 03.03.1998 or at any rate these benefits ought to be extended to them on and from 17.12.1996 i.e the date when the "UP Irrigation Department Regularization of Part-time Tube well operators on the post of Tube Well operators rules, 1996", came into being as pursuant to the said promulgation, although the post of part time Tube well operators was abolished, however the petitioners continued to work even after the said promulgation, thus it has been submitted that there services ought to be reckoned from the said date of promulgation of the 1996 rules.
48. This court finds the argument of the writ petitioners very attractive in the first instance. However, a closer look would reveal that the entire GO relating to extension of service benefit, dealt with the issue relating to pay parity and is concerning the judgment passed by this court as well as the Apex Court in the case of Suresh Chandra Tewari case, which was based on the principle of equal pay for equal work. The Hon'ble Apex Court itself clarified in the review order that the said judgment concerns only the pay parity. The GO dated 03.03.1998 issued by the state was concerning the pay parity and the allowances to be given. The phrase, other service benefits, mentioned in the said GO cannot be stretched to mean pension or similar other benefits as these benefits are to be found in the rules and not in government orders. In any case, the state having understood the confusion being created by the said GO has already amended/ deleted the said phrase on 28.05.2003. Thus, the said argument of the writ petitioners does not take their case any further as far as the relief of service benefits like pension is concerned, especially when this court is of the view that the appointment of these part time tube well operators were irregular and not as per the rules of 1953. The next limb of argument of the writ petitioners that there services may be reckoned from the date of promulgation of the " UP Irrigation Department Regularization of Part-time Tube well operators on the post of Tube Well operators rules, 1996" is concerned, this court finds that, no doubt vide G.O dated 17.12.1996, the cadre of part time tube well operator was abolished with the direction to regularize the services of the eligible persons under the said regularization rules of 1996, however Rule 7 of the said rules of 1996 is of great importance, which inter-alia states:
"7. The services of a person appointed on the post of part time tube well operator who is not found suitable, or whose case is not covered under sub rule (1) of rule 4 of these rules, shall be terminated forthwith and, at the time of such termination, he shall be entitled to one month's pay compensation which shall be equal to fifteen days average pay for every completed year of service or any part thereof in excess of six months."
The state has contended that the petitioners have themselves annexed a judgment and order dated 01.08.2000, passed in a bunch of 277 writ petitions, wherein it is very much clear that after promulgation of regularization rules of 1996 in December 1996, these 277 writ petition came to be filed by the part time tube well operators being aggrieved with the cut-off date, provided in the said rules as 01.10.1986 for regularization of the services of part time tube well operators and in these writ petitions an interim order was passed in favour of part time tube well operators on the basis of which they were continuing in service, hence it is the contention of the State that this ground of the writ petitioners is completely misconceived, as they are trying to take advantage of their own wrong. Thus, any arguments on behalf of the petitioner that their part time services should have been terminated in year 1996 itself, pursuant to the provision of Rule 7 of the said Rules of 1996 if they were not eligible for regularization under the said rules of 1996 and the same having been not done they are entitled for regularization from the said date, falls flat as these "Part time tube well operators" were continuing in service based on an interim order of this court in the abovementioned writ petitions. In the opinion of this court, merely because the part time tube well operators were allowed to work under the court of an interim order by this court, does not make them entitled for other benefits from the said date as it is these part time tube well operators, who have filed the litigation. Thus, continuity by litigation cannot come to the rescue of the petitioners, while determining their pensionerary benefits. Another collateral submission, made on behalf of the writ petitioners is that they were transferred in year 1999 from Irrigation Department to Gram Panchayat Department where they were working as Multipurpose Worker along with other Regular Tube well Operators and again came back in Irrigation department in year 2005. Since, transfer is an incidence of a permanent reemployment, they may be construed to be on permanent employment since 1999. In this regard, this court finds that, vide G.O dated 01.07.1999, the employees of eight departments were shifted under the control of Gram Panchayat with the nomenclature of Multipurpose Worker for performing the work of their respective departments. These Part Time Tube well Operators were also shifted from Irrigation department to the Department of Gram Panchayat for performing the work of their respective Tube wells but their lien was always with the parental department. Thereafter again vide G.O dated 19.07.2005 these Part Time Tube well Operators were again taken back under the control of Irrigation Department in the same capacity of Part Time Tube well Operators. Here the question was that whether it is a transfer of the employees from the Department of Irrigation to Gram Panchayat Department and again from Gram Panchayat Department to Irrigation Department or it was a deputation from Irrigation Department to Gram Panchayat department and after taking back under the control of Irrigation Department in year 2005, whether the status of these persons was Part Time Tube well Operators or permanent employee. It is reported that after series of litigations, this aspect of the matter was considered thread-bare by the Hon'ble Apex Court in the case of U.P. Panchayat Adhikari Sangh and others Vs Daya Ram Saroj and others, (2007) 2 SCC 138, in which it was held that this was not a transfer but was only a deputation and these Part Time Tube well Operators were not permanent employee. In this judgment, the Government order dated 19.07.2005 (by which these persons were taken back under the control of irrigation Department from Gram Panchayat Department in the same capacity of Part Time Tube well Operators) was restored by the Hon'ble Apex Court with all consequential orders, meaning thereby the status of these persons remained as Part Time Tube well Operators after returning back in the Irrigation Department from the department of Gram Panchayat vide Government order dated 19.07.2005. The relevant part/paragraphs of the abovementioned judgment and order dated 11.12.2006 passed by the Hon'ble apex court in case of U.P. Panchayat Adhikari Sangh and others Vs Daya Ram Saroj and other is as under:
"35. The High Court has also directed that the part-time Tube-well Operators shall be treated as permanent employees under the same service conditions as the Tube-well Operators as far as practicable. This direction runs in the teeth and the guidelines of the Constitution Bench Judgment in Secretary, State of Karnataka & Ors. v. Uma Devi (3) & Ors. (2006) 4 SCC 1. In fact, on this score alone the decision of the Division Bench of the High Court deserves to be set aside."
49. In any case, this court finds that the vires of the "U.P Irrigation Department Regularization of Part-time Tube well operators on the posts of Tube well operators Rules, 1996" was also challenged before this court by some of the part time tube well operators in the case of Murari Lal V/s State of Uttar Pradesh ( Writ A No. 35425/1997), wherein this court vide an order dated 21.11.2014, while repelling the challenge, has held that the writ petitioners were not entitled for a right of regularisation with retrospective effect from the date of initial appointment. This court specifically held:
"....In view of the judgement of the Constitution Bench of the Supreme Court in Uma Devi's case [(2006) 4 SCC 1], there is no vested right of regularisation. The nature of initial appointment is relevant factor to be considered in this regard. The Constitution Bench has categorically held that a person who is temporarily appointed knows fully well about the nature and fate of his appointment and also that the same is terminable on the expiry of such period as mentioned in the appointment letter itself or as per the conditions mentioned therein. No vested right of regularisation accrues in his favour on a subsequent stage also merely on account of having put in long years of service. It has also been held that regularisation is not and cannot be a mode of recruitment.
A Fortiori, there cannot be a right of regularisation with retrospective effect from the date of initial appointment.
Temporary, adhoc, contractual appointments can also be made for carrying out regular work but this does not entitle such appointees to the status of regular employees. A reference may again be made in this context to the pronouncement of the Supreme Court in Umadevi's case (supra) as also to the case of Official liquidator vs. Dayanand (2010 Vol 10 SCC 1)"
50. This court finds that in pursuance of directions of this Court, Rules for regularisation of services of part time tube well operators were framed by the State Government in exercise of powers under the proviso to Article 309 of the Constitution of India and were circulated vide Government Order dated 17.12.96, which clearly mentioned that for such regularisation additional posts were being created/sanctioned. As per Rule 3 (d), 'Part-time Tube-well Operator' included a person who was designated or appointed as Tube-well Assistant by Government Order dated 20.02.92. As per Rule 4 (I) any person who was appointed on the post of part time tube-well operator before 1.10.86 and was continuing in service, as such, on the date of commencement of these Rules, possessed requisite qualifications prescribed for regular appointment to the post of Tube-well Operator at the time of such part time appointment shall be considered for regular appointment to the post of Tube-well Operator before any regular appointment is made on such post in accordance with the service Rules. Rule 6 (I) provided that a person appointed under these Rules shall be entitled to seniority only from the date of the order of appointment after selection in accordance with these Rules, which means from the date of their regularization and shall in all cases be placed below the persons appointed on the post of Tube-well Operators in accordance with the service Rules prior to the appointment of such persons under these Rules.
51. It is pertinent to mention herein that even while making provisions of regularisation, the Rules framing authority have always taken due care that for the purpose of seniority, the reckoning point would be the date of order of regularization and the earlier service shall not qualify for the same. This Concept being consistent with Constitution Bench decision of Apex Court in Direct Recruits Direct Recruit Class-II Engineering Officers' Association v. State of Maharashtra AIR 1990 SC 1607. Thus, in the opinion of this court, the writ petitioners, therefore, constitute a different cadre then regularly appointed Tube Well Operators, to whom statutory provisions extending benefit in respect to pension, gratuity, leave encashment etc. are not applicable since initial date of appointment but from the date they were absorbed in regular services as per the regularization policy. It would be profitable to note that the principal laid down in Direct Recruits Case was subsequently followed by the Apex Court in Keshav Chandra Joshi v. Union of India 1992 Supp (1) SCC 272, Rashi Mani Mishra v. State of Uttar Pradesh 2021 SCC OnLine SCC 509 and Malook Singh V. State of Punjab, wherein on each occasion, the Apex Court observed that the services rendered by ad hoc employees prior to their regularization cannot be counted for the purpose of seniority. As a matter of fact, the Apex Court in the case of Rashi Mani Mishra v. State of Uttar Pradesh, while interpreting the Uttar Pradesh Regularization of Ad Hoc Appointment Rules held that services rendered by ad hoc employees prior to regularization cannot be counted for the purpose of seniority and specifically noted that under the applicable Rules, "substantive appointment" does not include ad hoc appointment and thus seniority which has to be counted from "substantive appointment" would not include ad hoc service. The Apex Court also clarified that the judgement in Direct Recruits (supra) cannot be relied upon to confer the benefit of seniority based on ad hoc service since it clearly states that ad hoc appointments made as stop gap arrangements do not render the ad hoc service eligible for determining seniority. The Apex Court made the following observations in the said judgment:
"36. The sum and substance of the above discussion would be that on a fair reading of the 1979 Rules, extended from time to time; initial appointment orders in the year 1985 and the subsequent order of regularization in the year 1989 of the ad hoc appointees and on a fair reading of the relevant Service Rules, namely Service Rules, 1993 and the Seniority Rules, 1991, our conclusion would be that the services rendered by the ad hoc appointees prior to their regularization as per the 1979 Rules shall not be counted for the purpose of seniority, vis-à-vis, the direct recruits who were appointed prior to 1989 and they are not entitled to seniority from the date of their initial appointment in the year 1985. The resultant effect would be that the subsequent re- determination of the seniority in the year 2016 cannot be sustained which was considering the services rendered by ad hoc appointees prior to 1989, i.e., from the date of their initial appointment in 1985. This cannot be sustained and the same deserves to be quashed and set aside and the seniority list of 2001 counting the services rendered by ad hoc appointees from the date of their regularization in the year 1989 is to be restored."
52. This court cannot be oblivious to the fact that any appointment with retrospective effect, as is being sought to be urged in the present bunch of matters, is normally not permissible. One of the reasons being it will adversely affect others, who have been appointed in the interregnum, in matters of seniority, promotion etc. In a case of regularisation of service also retrospectively will adversely affect such rights of others who have already been regularly appointed in the regular cadre as per the service Rules and are better placed. It is with this object that Rule 6 of the Regularisation Rules of 1996 contains a stipulation that those regularised under these Rules will be placed below those appointed in accordance with service Rules prior to them. The Rule makes a valid distinction between two different classes of employees, one which is regular and other not so. The Supreme Court in the case of Registrar General of India & another vs. V. Thippa Setty & others (1998 Vol. 8 SCC 690) has held that the regularisation should be prospective and not retrospective so that seniority of those, who are already in service, is not affected. This judgement has been followed in the case of Union of India and others vs. Sheela Rani (2007) 15 SCC 230) and State of Haryana vs. Jasmer Singh (1996) 11 SCC 77). Thus, in the opinion of this court, in view of the authoritative judgment passed by the Apex Court in Uma Devi case, the writ petitioners do not have a right to regularization, which as a corollary follow that the writ petitioners did not had any vested interest to be regularized with the promulgation of the "U.P Irrigation Department Regularization of Part-time Tube well operators on the posts of Tube well operators Rules, 1996", which initially prescribed a cut-off date of 01.10.1986 and was amended in the year 2008 to 13.06.1998.
53. That brings this court to the last and pertinent question to be answered, as to from which date, the service of the writ petitioners can be reckoned, to make them eligible for pensionary and other benefits. This court finds that in a bunch of writ petition, leading case being Writ-A No. 3483 of 2003 (Tube well Operator Welfare Association Vs. State of U.P. and others), a Single Bench of this court issued direction to the state to consider the claim of the members of the petitioner's association in terms of the judgment of Suresh Chandra Tiwari Vs. State of U.P. and others (writ petition No. 3558 of 1992) and Sichai Majdoor Sangh Vs. State of U.P. and others: 1996 (1) UPLBEC 9. However, the State authorities filed Special Appeal Defective Nos. 227 of 2014 and 226 of 2014, wherein the Division Bench of this Court, vide judgment and order dated 31.03.2014, disposed of the special appeals as under:
"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 regularized and not from any date, prior to that."
54. The aforesaid judgment and order dated 31.3.2014 has been challenged in Review Application No. 406577 of 2014, which was rejected vide judgment and order dated 15.5.2015. Thus, judgment and order dated 31.3.2014 has attained finality as no subsequent development has been brought to the notice of this Court. Moreover, 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 tube well operators", prior to their regularization, be counted towards qualifying service for payment of pension or not. 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."
55. The judgment in State of U.P. vs. Dukh Haran Singh (supra) was challenged before the Apex Court in SLP (C) No.27713 of 2009, which came to be dismissed vide order dated 25.09.2013, with the following observation: -
"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."
56. Further, in a bunch of petition, leading case being Namo Narain Rai Vs state of Uttar Pradesh ( Writ No. 1326 of 2017), a Single Bench of this court vide an order dated 08/09/2017, while referring the matter of applicability of GPF on part time tube well operators regularised after 01.04.2005 in a very succinct manner enumerated the issue in those bunch of petitions as follows:
"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 parttime 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."
57. Although it is reported that the larger bench has passed a Judgment dated 12/11/2021 and review order dated 26/11/2021 based on certain affidavits filed by the state Government and in that sense the Ld. Counsel for the writ petitioners have argued that the judgment having been passed on the basis of compromise between the parties in that matter cannot be a precedent and cannot be binding on other similarly situated part time tube well operators, however the fact of the matter remains that the issue being dealt by the larger bench was relating to the GPF, which were either wrongly deducted from these part time tube well operators or had not been deducted at all. The larger bench categorizing this part time tube well operators into four category held & directed the treatment of GPF for all these categories in a different matter, although the crux of the issue remained that these part time tube well operators were given pensionerary benefit from the date they were regularized and accordingly the benefit of new pension scheme was extended to these petitioner as they were regularized after 01.04.2005.
58. Thus taking a cue from the aforesaid authoritative pronouncement, it is by now well settled that those services rendered by the "Part time tube well operators" prior to their regularization, would not be counted for payment of pension and the pensionary benefit would be given only from the date of their respective regularization.
59. However, it is the argument of the Ld. Counsel for the writ petitioners that the aforesaid Dukh Haran case was neither considering the issue of reckoning past services as "Part time tube well operators" for computation of pensionary benefits nor such an issue was raised in the said petition and thus according to him the judgment passed by the Division Bench of the supreme court in the said case was impliedly overruled and was in per incuriam to the judgment passed by three judge bench of the supreme court in Prem Singh Case. However, on fact this court finds that Dukh Haran was a case wherein service benefit of pension was sought by a part time tube well operator, who was regularized on 28.09.1997. Since, in that case the petitioner retired on 30.11.2005 i.e before the mandatory 10 years of service being rendered on a regularized post, so as to make him eligible for pensionary benefits, the petitioner in that case was denied the said benefit. Thus, Dukh Haran case was a case wherein pensionary benefit was sought by reckoning service benefit from the date of appointment, which was repelled by this court as well as the Apex Court, wherein the courts recorded that 32 years of service would not entail pensionary benefits to the petitioner.
Prem Singh Case:
60. However, according to the Ld. Counsel for the writ petitioners, the law being changed after the pronouncement of the Prem Singh Case, the issue in hand ought to be decided in the light of the said judgment of the Hon'ble Apex Court. However, a perusal of the facts of the Prem Sigh Case makes it clear that the facts in issue for consideration before the Hon'ble Apex Court with regard to the dispute in question were quite different as to the facts in the present bunch of writ petitions. A perusal of these facts reveals that the facts in issue before the Hon'ble Apex court was about the controversy of adjudicating the "qualifying services" with regard to the services rendered under a work charge establishment prior to the regularisation, whether could be accountable for the purposes of pension considering Regulation 370 of the Civil Service Regulations. Para 3 of the said judgement have also quoted the facts of the case in which the most relevant issue was that the services of the appellant i.e. Prem Singh was as a welder in the year 1965 engaged in the work charge establishment. He was transferred from one place to another and thereafter ultimately the Selection Committee recommended for regularisation and his services came to be regularised on 13/03/2002. Further the appellant superannuated on 31/01/2007. After his superannuation the appellant filed writ petition in High Court to count the period spent in work charge establishment as qualifying service under the Rules of 1961.
61. This court finds that the present writ petitioners had been working as Part time tube well operators and as such cannot be equated with the persons, who are/were working in work charged establishment as both are distinct and different, apparently as also recorded by the Hon'ble Apex Court, the provision of engagement under the work charged establishment (before 01.01.2000) is provided under paragraph 867,678 and 669 of the Financial Hand Book, Volume 6 part 1 and the expenses of the same was based/charged on the said particular work, whereas the part time engagement of the petitioners (and like-wise other persons) was in terms of executive order dated 22.12.1981 and terms and conditions were prescribed under subsequent Office Memorandum dated 18.2.1982, issued by the Engineer-in-Chief, Irrigation Department which covered the appointment and services of such part-time posts of Part Time Tube Well Operators. Thus, the service of work charged establishment can be found in the rules, whereas the service of the part time tube well operators came to existence by an executive order. In view of the above the services conditions of part- time tube well operators cannot be equated with the persons, who are/were working in work charged establishment, as both are entirely distinct and different.
New Pension Scheme
62. Further, there is another point of distinction, in as much as both Dukh Haran Singh case and Prem Singh case was decided for all those persons who were regularized prior to 01.04.2005, however vide Notification dated 28.3.2005, amendment has been introduced in U.P. Retirement Benefit Rules 1961 known as "U.P. Retirement Benefits (Amendment) Rules, 2005", by the Governor in exercise of power conferred by the proviso to Article 309 of Constitution of India. The said Rules have been made applicable w.e.f. 1.4.2005, and it has been clarified therein that Rules shall not apply to employees whether temporary or permanent entering into services on or after 1st April, 2005 in relation to the affairs of State pensionable establishment. Not only this, General Provident Fund ( U.P. ) Rules 1985 have also been amended by the Governor, in exercise of power conferred by the proviso to Article 309 of the Constitution of India, by means of General Provident Fund (U.P.) (Amendment) Rules, 2005, and these Rules have also been made applicable w.e.f. 1.4.2005. While dealing with conditions of eligibility in Rule-4, a proviso has been appended mentioning therein that no government servant entering into on or after 1st April, 2005 shall subscribe to the fund from the date of joining of service.
63. It is necessary to note that the petitioners do not assail the New Pension Scheme as being arbitrary or unreasonable. The entitlement to the post-retirement benefits, including pension, is a matter pertaining to the terms and conditions of the services. This is a matter between the employer and the employee. Subject to the governing laws, an employer is entitled to fix the emoluments on which it offers employment. The employee can accept the employment on the terms as offered or prior to his joining, negotiate for better terms. In any view, once an employer and employee agree to the terms, it is not open for either of them to thereafter question the same. This is, obviously, subject to the exception that the terms and conditions do not conform to any statute or applicable law.
64. As noted above, in the present case, the petitioners do not question the validity of the New Pension Scheme. It is not their case that the said scheme is contrary to any statute or law in force. They essentially, seek coverage of the Old Pension Scheme as the same is perceived as more beneficial. Once it is accepted that the New Pension Scheme is not invalid and the writ petitioners have accepted their respective regularization without any demur, cannot question the same at this later stage after 15 years of their legalization, except on the ground that the same is contrary to any provisions of law. It may be relevant to mention that right to pension is not a fundamental right guaranteed by any Article of Part III of the Constitution of India. It is a mere condition of service. Whether or not an employee of the Government or a Statutory Corporation is entitled to pension, is determined by the terms and conditions of his or her employment. These terms and conditions may be contractual or statutory in nature. No employee of the Government or of any Public or Private Corporation can claim retirement pension de hors the rules and regulations governing conditions of his service. True it is that under the U.P Civil Service Regulations, a Government employee, who was in position till issuance of "U.P. Retirement Benefits (Amendment) Rules, 2005" was entitled to Old Pension Scheme. Even the Government employees who have been recruited/appointed after cut-off date mentioned in "U.P. Retirement Benefits (Amendment) Rules, 2005" are not entitled to pension which clearly means that even the Government employees who are appointed after a particular date are now not entitled to pension. It is true that pension is paid to a retiring employee in recognition of his long services rendered to the employer as also to take care of his post retirement needs. Such assistance to retiring employee could be in different forms. Some employers make provisions for payment of annuity, some for monthly payment in the shape of pension and some by payment of a lump sum amount. Such amount could be in the shape of accumulated employees provident fund or retirement gratuity or some other form of ex gratia payments. It is thus not mandatory for an employer to necessarily make a provision for payment of monthly amount by way of pension to its retiring employees, for, no such right inherits in an employee.
65. As such it is abundantly clear that the services of the appellant in the case of Prem Singh was regularized within the period on which the Old Pension Scheme was prevalent and further regulation 370 has been struck down and rule 3(8) has been read down only for the limited purposes of counting the past services rendered in a work charge establishment of an employee whose regularization has been done when the Old Pension Scheme was prevalent and not otherwise. However, the present bunch of writ petition has been admittedly filed by the writ petitioners, who have been regularized sometime in the year 2008-2009. Once a policy decision has been taken to enforce new pension scheme, contribution pension system w.e.f. 1st April, 2005 with no exception accorded to new entrants to service and the only exception that has been carved out is in reference of candidates whose service would be of less than ten years on 1st of April, 2005, then option has been given to them to voluntarily opt for the new pension system in place of the existing pension scheme. Thus, it is imminently clear that new entrants in service have necessarily to opt for new pension scheme, and have no escape route.
66. This court also cannot be oblivious to the fact that Supreme Court in the Prem Singh Case was examining the question of inclusion of services rendered by a work charged employee towards qualifying service under Rule 3(8) of the U.P. Retirement Benefit Rules, 1961, in light of the previous judgment of the Court in Habib Khan Vs. State of Uttarakhand and others, (2019) 10 SCC 542, wherein the petitioners were regularized before the period of 01.04.2005. The Hon'ble Apex Court after recording rule 3(8) of the Uttar Pradesh Retirement Benefits Rules 1961 (for short, "the 1961 Rules") went to read down the note appended to the said rule to bring the service rendered in a work charged establishment prior to regularization for the purposes of pensionary benefit. The Hon'ble Apex court also quoted regulations 361, 368 and 370 of Uttar Pradesh Civil Services Regulations to arrive at a just decision. The Supreme Court also took note of paragraphs 667, 668 and 669 of the Financial Handbook, Volume (VI) relating to engagement of employees in the work charge establishment. The Court noticed the submission of the State in opposition to the plea for inclusion of services rendered as work charge employee, towards the qualifying service and proceeded to observe as under in paragraphs 35 & 37 as herein under:
"35. 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. 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."
67. However, as already observed herein above, the facts of Prem Singh Case and the present bunch of matters are at stark difference, both in terms of the subject and its applicability. This court finds that while the Apex Court in Prem Singh Case read down the provisions of the Note appended to rule 3(8) and also struck down Regulation 370 of the Civil Services Rules, the proviso to rule 3(8) was not touched, for the simple reason that the proviso was essentially a statutory measure which reinforced the foundation of Prem Singh case, as any denial of the fruits for considerable period of service rendered by a work charged employee would be exploitative and wholly arbitrary. Thus, turning to the Note appended to Rule 3(8), the same was read down by the Supreme Court in Prem Singh case by holding that service rendered even prior to regularisation would be liable to be counted for the purposes of computing qualifying service. In Prem Singh case, the Supreme Court essentially found no justification for not including the service rendered in a work-charged establishment prior to regularisation or for the aforesaid service being restricted only to a situation where it was found that such service was rendered between two spells of temporary or temporary and permanent service. However, it may be noted that provisions similar to those enshrined in Regulation 370 remain preserved and untouched in the proviso to Rule 3(8). That proviso has neither been amended nor deleted. In this regard, it would be profitable to mention that it is well settled and recognised function of a proviso is to carve out an exception to what otherwise would stand governed in the principal provision. The Supreme Court in Durgabai Deshmukh Memorial Sr. Sec. School v. J.A.J. Vasu Sena (2019) 17 SCC 157 has held as herein under:-
"35. It is a settled position of law that the objective of a proviso is to carve out from the main section a class or category to which the main section does not apply. A proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment."
68. It is relevant to mention here that a Division Bench of this court in Special Appeal No. 2114 of 2011 (Ram Ashrey Yadav V/s State of Uttar Pradesh, decided on 13.04.2017), while considering regulation 361, 368 and 370 of the civil service regulations has also been pleased to consider Regulation 352 which specifically deals with the case of wherein claims to pension are inadmissible. The perusal of the aforesaid Regulation 352 makes it quite clear that the person who is not retained for the public service for whole time but he is merely paid for the work done for the State, a months' notice of discharge should be given to such a person and his wages must be paid for any period by which such notice falls short of the month and an officer who served under the covenant which contains no stipulation regarding pension, unless the State Government specially authorizes an officer to count such service towards pension, no pension will be admissible for such services. The said division bench went on to hold that once the petitioner's claim has been considered under relevant service rules for extending the benefit of regularization, he ought to be deemed to have been appointed in the service as per the rules in question and his appointment in question has to be treated as a fresh/regular appointment under the relevant service rules and, accordingly, whatever conditions were applicable on the said date, the same has to be only pressed in to service. The Division Bench thus concluded by holding that once the petitioner has been offered fresh/regular appointment, then petitioner cannot claim that he should be covered by the old pension scheme and other benefits should be made available to him. Although it is reported that a SLP is pending against the said judgment of the Division Bench, however the same is being referred for humble guidance as there is no stay against the said order by the Hon'ble Apex Court.
69. As far as the present case is concerned, a perusal of the government order dated 22/12/1981 and office memorandum dated 15/02/1982 clearly stipulates that the writ petitioners have been engaged only on part time basis and not to work as fulltime regular employee and only had to perform a specified duty i.e. operating tube wells whereas on the contrary a regular tube well operators has also to perform the duty to maintain and repair of the tube wells. Moreover, Condition no. 12 specifically stipulated that the part-time tube well operators will not be provided any provident fund, pension or gratuity. As such in view of regulation 352 since the inception of coming into the services, the services rendered by the petitioners has been inadmissible for the purposes of pension as such now after the regularisation the petitioners cannot claim the past services rendered as part-time tube well operators before the date of their regularisation to be counted for the purposes of treating the services as "qualifying services" and since the regularisation of the petitioners have been done on or after 2008 which is an interior date to the coming of the New Pension Scheme wef. 01/04/2005 as such the services of the petitioners being regularised after the aforesaid date would only be accountable for the purpose of getting the New Pension Scheme which is being provided to the other State Government Employees.
70. Thus, in the opinion of this court, the judgement rendered by the Hon'ble Apex Court in the Prem Singh case is not applicable to the facts of the present case as the facts in issue in the aforesaid case as discussed above are absolutely different as compared to the facts in issue in the present bunch of writ petitions filed by the writ petitioners and is distinguishable on the basis of the facts involved. It is a settled principle of law that no decision is binding as a precedent in another case if the material facts or the issues in the latter are not identical as a decision is only an authority for what it actually decides. In any case, the law stands settled that the rules applicable to a government employee on being regularized would be the rules in vogue at the time of regularization as has also been held in the case of State of Bihar V/s Rajmati Devi, wherein the Apex Court vide a judgment dated 20/05/2022 at paragraph 6 held as herein under:
"6. At the outset, it is required to be noted that the husband of respondent No. 1 came to be absorbed in the government service in the year 2014 w.e.f. 02.03.2009. Till 02.03.2009, he remained the employee of the Bihar Research Society, of which he was an employee and working. The Old Pension Rules, 1950 came to be abolished and the New Contributory Pension Scheme came to be introduced w.e.f. 01.09.2005. Under the New Contributory Pension Scheme, there is no provision for pension/family pension. As per the Scheme, all those who are appointed after 31.08.2005 shall be governed by the New Contributory Pension Scheme. Therefore, at the time when the husband of respondent No. 1, who died in the year 2013, was absorbed, the Old Pension Rules were abolished and the New Contributory Pension Scheme was in existence. As per the corrigendum issued in the appointment order and as per clause 6, the prior service rendered by the concerned employee prior to his absorption shall not be treated as a government service. Therefore, the husband of respondent No. 1 can be said to be a government servant and in government service w.e.f. 02.03.2009 only. Therefore, the husband of respondent No. 1 was governed by the New Contributory Pension Scheme under which there is no provision for the pension/family pension. Therefore, the High Court has committed a grave error in directing the appellant to pay the family pension to respondent No. 1 applying the Old Pension Rules, which were appliable prior to 31.08.2005.
The aforesaid aspect has not been considered by the High Court at all and the learned Single Judge simply considered that on the death of the husband of respondent No. 1, who died in harness while in service, respondent No. 1 is entitled to the family pension under family pension scheme. However, the High Court has not at all considered that on coming into force the New Contributory Pension Scheme, no government employee appointed after 31.08.2005 shall be entitled to any other benefit except under the New Contributory Pension Scheme. In that view of the matter, respondent No. 1 shall not be entitled to the family pension under the Old Pension Rules, which were not appliable at the time when the husband of respondent No. 1 came to be absorbed in the government service w.e.f. 02.03.2009"
Uttar Pradesh Qualifying Service for Pension & Validation Act, 2021
71. Further, in Prem Singh case (supra) the services of work charged employees were directed to be included for the purpose of qualifying service for pension. However, subsequently Government of U.P. has proclaimed Ordinance No. 19 of 2020 which has now become U.P. Act No. 1 of 2021 after it was notified in U.P. Gazette (Extraordinary) dated 21.10.2020. The effect of Prem Singh (supra) and U.P. Act No. 1 of 2021 has been considered in detail by a Division Bench of this Court in State of U.P. and others vs. Raj Bahadur Pastor, 2022(3) ADJ 5. This court also cannot be oblivious to the fact that Supreme Court in the case of Prem Singh (supra) was examining the question of inclusion of services rendered by a work charge employee towards qualifying service under Rule 3(8) of the U.P. Retirement Benefit Rules, 1961, in light of the previous judgment of the Court in Habib Khan Vs. State of Uttarakhand and others, (2019) 10 SCC 542, wherein the petitioners were regularized before the period of 01.04.2005. However, after the aforesaid judgment was delivered by the Supreme Court, the State has promulgated U.P. Ordinance No. 19 of 2020 specifying the 'qualifying service' to mean the 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. Clause 3 of the Ordinance also amended sub-rule (8) of Rule 3 of the U.P. Retirement Benefit Rules, 1961 retrospectively w.e.f. 1st April, 1961. Clauses 2 & 3 of the Ordinance are reproduced hereinafter: -
"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."
72. The above ordinance was followed with the promulgation of the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 (U.P. Act No. 1 of 2021). Thus, on account of the above amendment in the U.P. Retirement Benefit Rules, 1961, the definition of 'qualifying service' hitherto contained in Rule 3(8) of 1961 Rules, stands retrospectively modified in terms of the Sections 2 & 3 of the U.P. Act No. 1 of 2021. This amendment has been made applicable w.e.f. 1st April, 1961, notwithstanding any judgment, decree or order of any court.
73. This court note that the Ordinance of 2020 substituted by U.P. Act No. 1 of 2021 is not under challenge in this bunch of writ petitions. Once the statute has been amended retrospectively, the writ court would not be justified in ignoring the provisions of the statute, particularly when they are not under challenge and have otherwise not been read down by having recourse to any of the principles of interpretation of statute. In any case, since the legislative enactment binds us to proceed on the basis that the aforesaid definition of qualifying service existed and held the field since 1 April 1961, all pensioanry claims would have to be necessarily evaluated and examined accordingly. This conclusion would necessarily be subject to any challenge that may be laid to the provisions of the Validating Act.
74. Thus, this court is of the view that the expression "qualifying service" would now have to be interpreted in accordance with the provisions made in the Validating Act notwithstanding anything to the contrary that may be contained in any other act, rule or regulation. The Validating Act introduces provisions with retrospective effect from 1 April 1961. As per Clause 2 of the validating Act, "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. Thus, the right to claim pensionary benefits has now to be interpreted in terms of the said qualifying service, which entails three things (i) officer appointed on a temporary or (ii) permanent post and (iii) in accordance with the provisions of the service rules prescribed by the government for the post.
75. Admittedly, the writ petitioners were appointed and continued to be part time tube well operators before their respective regularization. They neither held nor were appointed on a temporary or a permanent post prior to their regularization. They came to be appointed on a substantive post only after their regularization and as such there service cannot be reckoned from the date of their appointment as part time tube well operators, but it has to be from their respective date of regularization. Moreover, the validating act significantly mentions that it is not necessary that the officer should be merely appointed on a temporary or a permanent post, but it also ensues that the said temporary or permanent appointment should be in accordance with the provisions of the service rules. As far as the present writ petitioners are concerned, although the Irrigation Department Tube Well Operators Service Rules 1953 existed and regular tube well operators were appointed under the said service rules, however these "Part time tube well operators" were appointed under ''executive instructions' vide order dated 22.12.1981 issued by Sinchai Anubhag, Government of U.P. Thus, these part time tube well operators not having been appointed as per the service rules, came to be only recognized and being appointed as per the service rules when their services were regularized. Thus, the qualifying service for pensionary benefits cannot be reckoned from a date, when these writ petitioners were not even appointed as per the service rules.
76. So far as the judgment of the Division Bench in the case of Bhanu Pratap Sharma is concerned argued by Ld. Sr. counsel for the writ petitioners are concerned, it may be noted that the judgment of the Court was on the facts of the case, inasmuch as, the petitioner therein was regularized from work charge basis to regular establishment and it was not the case of the State that his appointment was not in accordance with the provisions of service rules. However, in the present case, this court finds on fact that neither engagement of petitioners are in a work charge establishment, nor is it admitted anywhere that engagement/appointment of petitioner was in accordance with the service rules. In any case, this court finds on the other hand that the state has relied on two judgments of the Division bench passed vide (i) Order dated 22.04.2022 in Special Appeal No. 398 of 2021( Shri Chandra Singh's case) and (ii) Order dated 16.05.2022 in Special Appeal No. 240 of 2021( Jangpal's case), wherein the Hon'ble Division Bench of Lucknow and Allahabad respectively after framing question relating to entitlement of the benefit of the judgment of the Prem Singh in view of the UP qualifying service for pension and validation Act, 2019 was negated.
77. The writ petitioners have also relied upon the judgment dated 03.08.2021 passed by the Apex Court in Civil Appeal No. 4575/2021 (The State of Uttar Pradesh & Ors. Vs Uttam Singh). First & foremost, the said judgment is relating to extending benefit of compassionate appointment under the UP recruitment of dependents of government servant dying in harness rules, 1974 on account of demise of the father, who had been working as a part time tube well operator. Secondly, the said judgment does not address any of the issues, which is engaging the attention of this court in these bunch of matters. The Apex Court was examining the said compassionate appointment in the peculiar facts of the said case observed that at least two persons had been granted employment in a similar scenario although the person had been discriminated in the said case, possibly due to previous litigation between the state and the deceased father. Thus, on the facts of the case, the Apex Court did not find the explanation of the state to be satisfactory and did not permit the state to perpetuate the harassment and dismissed the appeal of the state-department. A decision is only an authority for what it actually decides. The essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence, here and there from a judgment and to build upon it. State of Orissa v. Sudhansu Sekhar Misra, (1968) 2 SCR 154.
Conclusion
78. In view of the above discussion, there is no doubt to hold that the appointment of the petitioners remained irregular in view of the Executive order dated 22/12/1981 & OM dated 15/02/1982. Although, they were granted pay-parity with regular appointed tube well operators in view of the judgment of this court and upheld by the Hon'ble Apex Court, however the Apex Court itself clarified in review order dated 18.10.1995 that the issue in Suresh Chandra Tewari case was not related to regularization, but were concerned to the question of grant of pay-parity based on the principal of "equal pay for equal work".
79. Further, the services of the petitioners cannot be reckoned from the date of 17.12.1996 i.e the date of promulgation of "U.P Irrigation Department Regularization of Part-time Tube well operators on the posts of Tube well operators Rules, 1996" as the rules of regularization clearly postulates that the said rules applied to only those part time tube well operators who were appointed prior to 01.10.1986. Admittedly, the petitioners in the present bunch of matters were appointed after 01.10.1986. Even the challenge to the said rules stands repelled by this court in the light of judgment of the Hon'ble Apex Court in Uma Devi's case [(2006) 4 SCC 1]. Moreover, this court has already held supra that in view of the judgment of the Supreme Court in the case of Registrar General of India & another vs. V. Thippa Setty & others (1998 Vol. 8 SCC 690) and Union of India and others vs. Sheela Rani (2007) 15 SCC 230) and State of Haryana vs. Jasmer Singh (1996) 11 SCC 77), the regularisation can be prospective and not retrospective.
80. This court has also held that service of work charged establishment can be found in the rules, whereas the service of the part time tube well operators came to existence by an executive order and due to various other reasons as mentioned supra, the services conditions of part- time tube well operators cannot be equated with the persons, who are/were working in work charged establishment, as both are entirely distinct and different. Further, the authoritative pronouncement of the Hon'ble Apex Court in Prem Singh Case was related to regularization in the Old Pension scheme era, whereas the present petitioner came to be regularized only in 2008-2009, when the new pension scheme was in vogue in view of the "U.P. Retirement Benefits (Amendment) Rules, 2005" w.e.f 01.04.2005. Thus, in view of the judgment of the Hon'ble Apex Court in State of Bihar Vs Rajmati Devi, the new pension scheme would be made applicable to the petitioners after they were regularized. Further, the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 also does not come to the rescue of the petitioners as they neither held nor were appointed on a temporary or a permanent post prior to their regularization. They came to be appointed on a substantive post only after their regularization and for all intents and purposes there services can be reckoned only from their respective date of regularization.
81. Having considered this bunch of writ petition, this court gives the following directions:
A. The "qualifying service" for the purpose of pension shall be reckoned of the writ petitioners' from the date, when they had been regularized in the regular post as Tube well operator.
B. The writ petitioners shall not be entitled to the Old pension scheme as the pension scheme vogue at the time of their respective regularization was the New Pension Scheme.
C. The state shall take all steps as per the rules for granting all service benefits as may be applicable to the writ petitioners on being regularized, taking cue from the judgment passed by the larger bench vide order dated 12.11.2021 in Namo Narain case. This court holds that as far as the return and/or consideration of GPF is concerned, the present writ petitioners are granted the same relief as has been granted by the larger bench in the said judgment.
D. The exercise of reconsideration may be concluded with expedition and preferably within a period of 3 months of the date of presentation of a certified copy of this order.
E. It is made clear that all the other prayers of the writ petitioners relating to quashing of the impugned orders or providing other service benefit is being rejected & dismissed.
All the writ petitions are DISPOSED OF in the aforesaid terms. There shall be no order as to cost.
Order Date:- 23.1.2023 Lokesh Kumar