Allahabad High Court
Vishnu Prasad Thru. His Son Arjun Kumar vs State Of U.P. Thru. Prin. Secy. Social ... on 28 January, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:8961 Court No. - 6 Case :- WRIT - A No. - 5799 of 2023 Petitioner :- Vishnu Prasad Thru. His Son Arjun Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Social Welfare Deptt. U.P. Lucknow And 3 Others Counsel for Petitioner :- Shambhoo Sharan Lal Srivastava Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel appearing for State respondents.
2. The present petition has been filed with the following prayer:
"(i) issue a writ, order or direction in the nature of certiorari thereby quashing the impugned order passed by director Samaj Kalyan Directorate, U.P., Lucknow as communicated vide letter dated 10-01-2023 issued by Joint Director, on behalf of Director, Social Welfare, U.P. Lucknow.
(ii) issue a writ, order or direction in the nature of mandamus Commanding and directing the opposite parties to make payment of post retiral dues such as pension, gratuity, group insurance, G.P.F. and other dues to the petitioner the arrears of the same as well as interest on the delayed payment of the post retiral dues to the petitioner.
(iii) issue any other writ order or direction, which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in favour of the petitioner, in the interest of justice.
(iv) allow the writ petition with costs in favour of the petitioner."
3. Learned counsel for the petitioner has submitted that the petitioner was initially appointed on the post of Sweeper-cum-Chaukidar on the pay-scale of Rs.305-390/- on adhoc basis vide order dated 30.03.1987 issued by Deputy Director, Social Welfare Department, Faizabad Circle, Faizabad. The services of petitioner were confirmed vide letter dated 07.02.1991 issued by Deputy Director, Social Welfare Department, Division- Ayodhya and sanctioned selection grade vide order dated 05.04.2002 with effect from 01.04.1995 on completion of 8 years of satisfactory service. He has further submitted that the petitioner was further granted the promotional pay-scale on completion of 14 years of satisfactory service vide order dated 05.04.2002. Apart from the above, a seniority list was also finalized on 20.12.2016, in which, the name of the petitioner also finds mention at serial no.132. After serving for substantial length of time, the petitioner retired from service on 31.07.2020 on attaining the age of superannuation. He has next submitted that the grievance raised by the petitioner in the present petition is with regard to the non-consideration of payment of post-retiral dues to him and in this regard, the petitioner had, on the previous occasion, approached this Court by filing a petition bearing Writ A No.2991 of 2022, which was disposed of by this Court by means of order dated 30.05.2022, directing the respondent no.2 i.e. Director, Social Welfare Department, UP to consider the grievance of the petitioner. In compliance of the aforesaid order, the Director,Social Welfare Department, UP had considered the representation of the petitioner and rejected his claim for post-retiral dues vide order dated 10.01.2023, stating therein the services of the petitioner were never regularized in terms of the Regularization Rules, 1979. He has further submitted that it is only the aspect of regularization that a government servant is entitled for post-retiral dues, pension, etc and accordingly, the claim of the petitioner was rejected. He has submitted that firstly, appointment of petitioner was a regular appointment against the substantive post, though, it was termed as 'adhoc' in the appointment letter, but subsequently, by means of letter dated 07.02.1991, the services of the petitioner were confirmed.
4. Learned counsel for the petitioner has next submitted that this Court had noticed the assertions made by the petitioner with regard to his confirmation and directed the State to file an affidavit specifically responding to the arguments made by the petitioner pertaining to his confirmation. The State has filed a reply to rejoinder affidavit wherein a letter dated 18.10.2021 written by theDeputy Director, Social Welfare Department, UP to the Principal Secretary, Government of UP has been enclosed, in which, it has been stated that the services of the petitioner have been confirmed. From the aforesaid, it is clear that the petitioner is confirmed employee and in the aforesaid circumstance, the question for consideration before this Court is that, as to whether, the petitioner would be entitled to pension and other post-retiral dues. In this regard, the Hon'ble Supreme Court has also given its finding in the case of S. Narayana v.. Md. Ahmedulla Khan and Ors. reported in (2006) 10 SCC 84. Relevant portion of the aforesaid judgment is reproduced as under:
"15. Counsel drew our attention to the judgment of this Court in B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507 (hereinafter "Nagarajan"). This Court in categorical terms rejected the argument that regularisation and permanence and confirmation meant the same thing. Reiterating the observations made in State of Mysore v. S.V. Narayanappa, 2 and R.N. Nanjundappa v. T. Thimmiah, [1972] 2 SCR 799 at p. 810, this Court in Nagarajan (supra), observed :
"Firstly, the words "regular" or "regularisation", do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments".
It was also observed : "........when rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules"
16. Closure on this issue must surely be attained after the recent judgment of a Constitution Bench of this Court in Secretary, State of Karnataka v. Umadevi 2006(2) SCT 462 : (2006) 4 SCC 1. After reviewing the cases that we have already adverted to, especially Nagarajan (supra), the Constitution Bench declared:
"...the words"regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasised that when rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation".
5. Once, a government servant becomes the member of service, he is entitled to all the service benefits which are available to a regular government servant including a place in the seniority list. He has submitted that in the present case, undisputedly, the petitioner's name was included in the seniority list and he was granted all the service benefits which are available to a regular government servant. He was also granted the promotional pay-scale on completion of 8 and 14 years of service. In the aforesaid circumstances, the decision taken by the respondents that because the services of the petitioner were not regularized, he would not be entitled to post-retiral benefits itself is flawed and deserves interference of this Court.
6. Considering the aforesaid submission and perusing the facts of the case, apart from the assertions made in the impugned order that a person who has not been regularized will not be given pension, I do not find any Government order or rule in this regard. Post-retiral dues or pension are not a bounty but right of the government servant who has worked tirelessly for the Government and is applicable to such an employee as an outcome of the rule position. I also take note of the judgement of the Hon'ble Supreme Court given in the case of State of Gujarat Vs.Talsibhai Dhanjibhai Patel, Special Leave to Appeal (C) No.1109 of 2022. In the aforesaid case, the Hon'ble Supreme Court has taken cognizance on the fact that the petitioner therein had worked for 30 years on adhoc basis and the State of Gujarat had denied the payment of pension, and has held "the State cannot be permitted to take benefit of its own wrong. To take the services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continuous service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand."
7. The Hon'ble Supreme Court, while upholding the rights of contractual employees in the case of Jaggo Vs. Union of India reported in 2024 SCC OnLine SC 3826, has observed the following:
"16. The appellants? consistent performance over their long tenures further solidifies their claim for regularization. At no point during their engagement did the respondents raise any issues regarding their competence or performance. On the contrary, their services were extended repeatedly over the years, and their remuneration, though minimal, was incrementally increased which was an implicit acknowledgment of their satisfactory performance. The respondents? belated plea of alleged unsatisfactory service appears to be an afterthought and lacks credibility.
19. It is evident from the foregoing that the appellants? roles were not only essential but also indistinguishable from those of regular employees. Their sustained contributions overextended periods, coupled with absence of any adverse record, warrant equitable treatment and regularization of their services. Denial of this benefit, followed by their arbitrary termination,amounts to manifest injustice and must be rectified.
22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long- term obligations owed to employees. These practices manifest in several ways:
? Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.
? Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.
? Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant.
? Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.
? Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances ? Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment.
? Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.
26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that it principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between ?illegal? and ?irregular? appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.
27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country."
8. Accordingly, I find that the case of the petitioner stands on a better footing than the case of State of Gujarat Vs. Talsibhai Dhanjibhai Patel (supra) inasmuch as the services of the petitioner were confirmed while he was in service. For the aforesaid facts, I find that the aspect of confirmation has not been taken into account by the respondents while passing the impugned order denying post-retiral dues to him.
9. Despite the fact that even in the affidavits, the respondents have admitted the aspect of confirmation of the petitioner, I find that the impugned order 10.01.2023 is illegal and arbitrary and liable to be set aside for the reasons aforesaid. I also find that the petitioner would be entitled to be dealt with as a regular and confined employee of the Department and would be entitled for all the service benefits including the post-retiral dues.
10. Accordingly, the present petition is allowed and the order dated 10.01.2023 is hereby set aside.
11. In light of the above, let necessary order be passed by the Competent Authority within four weeks from the date of production of certified copy of this order and proceed for the issuance of pension payment order. The petitioner would be entitled to all the consequential benefits. In case, the post-retiral dues are not paid to the petitioner within a period of two months, the respondents shall pay the same with interest at the rate of 12% per annum.
(Alok Mathur,J.) Order Date :- 28.1.2025 V. Sinha