Allahabad High Court
State Of U.P.Thru.Prin.Secy,Food & ... vs Sukh Lal & Anr. on 24 September, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 3 Case :- SERVICE BENCH No. - 21582 of 2018 Petitioner :- State Of U.P.Thru.Prin.Secy,Food & Civil Supplies,Lko & Ors. Respondent :- Sukh Lal & Anr. Counsel for Petitioner :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard learned State counsel for State-petitioner and perused the record.
Facts in brief of the present case are that respondent No. 1/Sukhlal has filed a Claim petition No. 369 of 2015 (Sukhlal Vs. State of U.P. and another) before the State Public Services Tribunal, Lucknow 9in short 'Tribunal') praying therein that the benefit of temporary services rendered by him as Chowkidar for purposes of fixation of pay and consequential benefits like pension and arrears of pension form 10.03.1966 till 01.05.1984 when he was regularized.
As per the case of the petitioner that petitioner was initially appointed on the post of Chowkidar on 10.03.1966. He was later regularized on 01.05.1984. He was appointed on a permanent basis on 06.11.1990 by orders of Regional Food Controller, Lucknow vide his order number 1796/E-6/Sthaikaran/. he was later appointed as Kamdar on a temporary basis on 03.08.1994 by the order of the RFC Lucknow letter number - 2811/E-6/Niyukti/Kamdar/94. he was alter appointed permanently on the post of Kamdar on 9.11.1998. he worked on the said post till 2006 when he finally retired on 31.08.2006. The pension of the petitioner was fixed as per Regional Food Controller, Lucknow's order dated 15.09.2007. Accordingly to him, his services were counted form 01.05.84 which is wrong. His temporary service from 1966 should have been taken into account for service from 1966 should have been taken into account for purposes of calculation of pension. He gave a representation to this effect to the Regional Food Controller, Lucknow on 18.08.2008. In his representation dated 24.12.2014 he has raised the same pleas and also mentioned that he had been regularly meeting the Regional Food Controller. he further gave a legal notice to the opposite party on 07.02.2015 seeking that same relief.
On behalf of opposite party, it is contended that the post of the chowkidar to which the petitioner was originally appointed in 1966 was a non pensionable one and he was first appointed on a pensionable post only on 01.05.1984. thus he has no claim to addition of the service between 1966 and 1984 as per CSR Rules and Pension Rules 1965. Further, it has been contended that the petitioners order of payment was issued on 01.05.2007 and hence it heavily time barred and liable to be rejected on this ground.
The Tribunal by means of judgment and order dated 07.03.2017 has allowed the claim petition with the following direction:-
"In the instant case, it is not disputed that the petitioner has been retired on attaining the age of superannuation under Fundamental Rule 56. The provisions of Civil Services Regulations which are pre constitutional have to subserve Fundamental Rule 56 which has been enacted by the Legislature. Since Fundamental Rule 56 entitles even a temporary employee to pension, the Civil Services Regulations have to be contructively read consistent with the scheme of Fundamental Rule-56 so as to permit payment of pension with retiral benefits to a temporary employee as well. this results in reading down the provision of CSR which excludes temporary and non-substatntive service form being included in qualifying service. Similar view has also been held by Hon'ble High Court in the case of Dr. Hari Shankar Ashopa Vs. Stat of U.P. and others, 1989 ACJ 337 and Board of Revenue and Ors. Vs. Prasidh Narain Upadhyaya.
In view of the observations above, we see no reason why the petitioner in the present case should be deprived of the benefit of service rendered by him in temporary capacity between 10.03.66 and the date of his regularization of 01.05.84. In our view, the petitioner Sukhlal is entitled for pension and other retiral benefits counting his entire length of service i.e. w.e.f. from 10.03.1966, the date from which the petitioner has worked in the department continuously, till the date of his superannuation i.e. 31.08.2006.
As far as the contention of the Opposite parties regarding non maintainability of the Claim Petition on ground of being beyond the period of limitation, it is not acceptable as the petitioner has represented against his PPO vide his representation dated 18.8.2008 and kept on representing subsequently including even service of a legal notice on 07.02.2015. AS these representations notice were not acted upon, therefore there is merit in accepting that the period of limitation should be counted from the date of legal notice i.e. 07.02.2015. As the petition was filed on 09.3.15 it can be considered to be very well within the prescribed period of limitation.
Order The Claim Petition is allowed. The Opposite Parties are directed to calculate the pension of the petitioner after counting the entire continuous service rendered by the petitioner from 10.03.1966, the date of his initial appointment as temporary Chowkidar, till the date of his retirement i.e. 31.08.2006 and pay him regular pension and arrears arising out of such grant of pension. The orders may be complied with within a period of three months from the day of the service of the certified copy of this order. There is no order regarding costs."
Learned State counsel very fairly stated before this Court that the present case is squarely covered by the judgment rendered in Civil Appeal No.6798 of 2019 (Prem Singh Vs. State of Uttar Pradesh & others), where the Hon'ble the Apex Court dismissed the appeal filed by the State in regard to the same controversy involved in the present case which is identical and similar. The relevant paras no.32 to 36 are reproduced hereinafter:-
"32. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.
33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
34. 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.
35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.
36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."
Thus, keeping in view the judgment given by Hon'ble the Apex Court in the case of Prem Singh (Supra), we do not find any illegality or infirmity in the impugned judgment passed by the Tribunal.
Accordingly, the writ petition lacks merit and is dismissed.
(Saurabh Lavania, J.) (Anil Kumar, J.) Order Date :- 24.9.2019 Ravi/