Allahabad High Court
Kishun Dev Ram vs State Of U.P. And Others on 7 May, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 28.04.2022 Delivered on 07.05.2022 Court No. - 34 Case :- WRIT - A No. - 38221 of 2011 Petitioner :- Kishun Dev Ram Respondent :- State of U.P. and Others Counsel for Petitioner :- J.P.N. Singh Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J.
1. Petitioner has claimed that he was initially appointed as a Collection Peon on 01.03.1968 and worked till 1981 with some notional break. Subsequently petitioner was again appointed on 19.03.1982 on the post of Collection Peon against a substantive post and continuously worked without a single day break till his date of retirement, i.e., 31.12.2009.
2. Learned counsel appearing for petitioner submitted that petitioner has worked without any complaint or without any adverse entry in the service as well as the realization was always above than 70%, however petitioner's case was not considered for regularization. He alongwith others have filed Writ Petition No. 11009 of 1989 which was disposed of vide order dated 19.03.1998 with the direction to respondent-authorities to decide the claim of petitioner as well as similarly situated other employees. Petitioner submitted various representations, however despite he has worked about 41 years (27 years without any break), his services were not regularized.
3. Learned counsel for petitioner further submitted that respondents have not followed the Government Order dated 01.07.1989 as well as relevant Rules, namely, U.P. Collection Peon Service Rules, 2004. Learned counsel for petitioner also pointed out that petitioner filed a Writ Petition No. 6007 of 2011 before this Court which was disposed of vide order dated 01.02.2011 with the direction to District Magistrate, Ballia to decide representation of petitioner. However, the representation was rejected vide impugned order dated 03.05.2011 by Collector, Ballia on the ground that petitioner was appointed on 01.03.1968 as Seasonal Collection Amin and his services were extended by different orders for short period. Petitioner continued to work under an interim order dated 19.04.2000 passed in Writ Petition No. 18230 of 2000 filed by number of persons which was disposed of vide order dated 30.07.2009 treating their services to be temporary and, therefore, the interim order dated 19.04.2000 was came to an end. In the order it was further mentioned that petitioner does not fall within the provisions of Government Order dated 01.07.1989 as the petitioner has not completed 10 years of regular service.
4. Learned counsel submitted that issue of regularization of Seasonal Collection Amin has come up before this Court on number of occasions and this Court has passed different orders for regularization, such as, Board of Revenue and others vs. Prasidh Narain Upadhyay, 2006(1) ESC 611 (DB) wherein the contention of respondents that Seasonal Collection Peon was appointed on temporary basis and his engagement was extended from time to time, therefore, he is not entitled for regularization, was rejected. Next is, State of U.P. through Secretary, Revenue Department and others vs. Ram Sunder Ram (Special Appeal No. 1891 of 2009), decided on 23.08.2016 wherein the Division Bench of this Court observed in the factual situation of that case that writ petitioner was accorded pay scale and increments duly approved by competent authority, therefore, petitioner therein cannot be treated as Seasonal. In State of U.P. and others vs. Panmati Devi and another (Special Appeal no. (508) of 2008), decided on 07.07.2008 the Division Bench has also considered not to be a Seasonal as petitioner therein was paid salary in regular pay scale. In Krishna Kumar Savita vs. State of U.P. and others, 2014(11) ADJ 347 (DB), petitioner therein was already regularized, therefore, it was directed that pensionary benefits be considered. Similarly in other cases on the basis of facts therein the benefit was granted to petitioner.
5. Learned counsel for petitioner has also relied on a judgment passed by Division Bench of this Court in State of U.P. and others vs. Bhanu Pratap Sharma (Special Appeal No. 97 of 2021), decided on 09.06.2021 that in that case the judgment passed by Supreme Court in Prem Singh vs. State of U.P. and others, AIR 2019 SC 4390 and U.P. Qualifying Service for Pension and Validation Ordinance (Ordinance No. 19 of 2020) was considered and since petitioner therein was appointed in work charge establishment, therefore, the Division Bench held that benefit of Prem Singh (supra) be granted to petitioner. Similarly, in Special Appeal Defective No. 1003 of 2020 (State of U.P. and others vs. Mahendra Singh), decided on 04.02.2021 also despite the U.P. Ordinance No. 19 of 2020 the Court has granted benefit of Prem Singh (supra) on the ground that petitioner therein was on temporary post for a certain period and thereafter his appointment was on a regular post.
6. The above submissions are opposed by Sri Vikram Bahadur Yadav, learned Additional Chief Standing Counsel appearing for State-Respondents. He submitted that it is not disputed by petitioner that he worked as a Seasonal Collection Amin and not as a Temporary Collection Amin. He worked only for a fixed period from time to time in accordance with the term of engagement. The Government Order dated 01.07.1987 is applicable only to the temporary servants and not to Seasonal Collection Amin. The judgments referred above are passed on the basis of facts of that case whereas in the present case not only petitioner worked as Seasonal Collection Amin but he has also worked under the strength of an interim order passed by this Court. There is no document on record that petitioner was ever considered or treated like a temporary Collection Amin. According to U.P. Qualifying Service for Pension and Validation Act, 2021 the definition of qualifying service contained in Rule 38 of U.P. Retirement Benefit Rules, 1961 stand retrospectively modified and petitioner being Seasonal Collection Amin, is not entitled for any benefit of the said Rules or the judgment passed in Prem Singh (supra).
7. I have heard learned counsel for parties and perused the material available on record.
8. In the present case it is not in dispute that petitioner was engaged as Seasonal Collection Amin for many years and though his engagement was extended but it has many breaks. There is no document to suggest that petitioner was appointed on a substantive post as well as his claim for regularization was earlier rejected on the ground that he being a Seasonal Collection Amin and not a temporary Collection Amin.
9. The judgments relied by learned counsel for petitioner wherein benefits were granted to petitioners therein, were passed on the basis of facts of peculiar case wherein petitioners were either appointed against substantive post or were treated like regular Collection Amin or regularized, therefore, the Courts (Single Judge as well as Division Bench) have held that petitioners cannot be considered to be Seasonal. However, the facts of the present case are absolutely contrary and distinguishable as in the present case there is no document which suggests that petitioner was appointed not as Seasonal Collection Amin but as a Temporary Collection Amin.
10. In Prem Singh (supra) the services of work charge 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 has 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 Division Bench of this Court in State of U.P. and others vs. Raj Bahadur Pastor, 2022(3) ADJ 5 and the relevant paras are mentioned hereinafter:
22. The 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. The provisions that fell for consideration before the Supreme Court are extracted in paragraphs 8 & 9 of the judgment in Prem Singh (supra), which are reproduced hereinafter:-
"8. We first consider the provisions contained in the Uttar Pradesh Retirement Benefits Rules 1961 (for short, "the 1961 Rules"). Rule 3(8) of Rules of 1961 which contains the provisions in respect of qualifying service is extracted hereunder: "Rule 3. In these rules, unless is anything repugnant in the subject or context- (1) ........
(2) ........
(8) "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations.
Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except-
(i) periods of temporary or officiating service in a non-
pensionable establishment.
(ii) periods of service in a work-charged establishment and
(iii) periods of service in a post paid from contingencies shall also count as qualifying service.
Note:- If service rendered in a non-pensionable establishment work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service." (emphasis supplied)
9. Regulations 361, 368 and 370 of Uttar Pradesh Civil Services Regulations are also relevant. They are extracted hereunder:
"361. The service of an officer does not qualify for pension unless it conforms to the following three conditions: - First - The service must be under Government.
Second - The employment must be substantive and permanent.
These three conditions are fully explained in the following Section.
368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.
370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post shall qualify, except -
(i) periods of temporary or officiating service in non-
pensionable establishment;
(ii) periods of service in work charged establishment; and
(iii) periods of service in a post paid from contingencies."
23. 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, in paragraphs 29 and proceeded to observe as under in paragraphs 30 to 37:-
"30. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma & Others Vs. State of Uttar Pradesh & others (CA No.______2019 @ SLP (C) No.5775 of 2018) the appellants were allowed to cross efficiency bar, after ''8' years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak w.e.f 15.9.1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs.200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation.
31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment.
32. In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.
33. 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.
34. 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.
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.
36. 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 & others Vs. 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.
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."
24. 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."
25. Above ordinance is followed with the promulgation of the Uttar Pradesh Qualifying Service For Pension And Validation Act, 2021 (U.P. Act No. 1 of 2021). The statement of objects and reasons of U.P. Act No. 1 of 2021 is reproduced hereinafter:-
"STATEMENT OF OBJECTS AND REASONS Pension and gratuity admissible to a retired Government servant are determined in relation to the length of qualifying service of the Government servant. Although the term "Qualifying Service" is described in the Uttar Pradesh Civil Service Regulation and the Uttar Pradesh Retirement Benefit Rules, 1961, however the definition of the said term is open to subjective interpretation which leads to administrative difficulties.
I has, therefore, been decided to make a law defining the term "Qualifying Service" and to validate such definition with effect from April 1, 1961 which is the date of commencement of the Uttar Pradesh Retirement Benefit Rules, 1961.
Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 (U.P. Ordinance No. 19 of 2020) was promulgated by the Governor on October 21, 2020.
This Bill is introduced to replace the aforesaid Ordinance.
By order, ATUL SRIVASTAVA, Pramukh Sachiv."
26. 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.
27. We may note that the Ordinance of 2020 substituted by U.P. Act No. 1 of 2021 was not under challenge before the learned Single Judge. 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. The amended provision requires the qualifying service for the purposes of entitlement of pension, notwithstanding any judgment, decree or order of any court, to be rendered by an officer appointed on temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post. This aspect has completely been ignored by the learned Single Judge although the provisions of the Ordinance were specifically brought on record by way of the counter affidavit filed in the writ petition. There is otherwise no pleading in the writ that the initial appointment of respondent petitioner on 1.1.1989 was in accordance with the service rules prescribed for the post. It is otherwise apparent that appointment to the post of Junior Engineer could be made only through the Public Service Commission which admittedly was not the mode of appointment offered to the respondent/petitioner.
28. So far as the judgment of the Division Bench in the case of Bhanu Pratap Sharma (supra) is concerned, we may note 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. The relevant observation of this Court in case of Bhanu Pratap Sharma (supra) would be worth noticing at this stage and are reproduced:-
"It is informed that this Ordinance has been enacted by U.P. Act No.1 of 2021 on 05.03.2021 as the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021.
It is clear from the perusal of section 2 of the Act of 2021 that it would have effect notwithstanding anything contained in U.P. Retirement Benefit Rules, 1961 or Regulation 361 and 370 of the Civil Service Regulation. Careful reading thereof, however, revels that "Qualifying Service" has been defined to mean 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. In the counter affidavit filed by present appellant in the writ petition it was categorically admitted by the appellant that the petitioner was appointed in the office of Executive Engineer, Nalkoop Nirman Khand I, Bareilly on the post of Rig Assistant on work charge basis on 25.04.1979. Subsequently, the petitioner was regularized from work charge basis to regular establishment on the post of helper on 18.03.2006.
Thus admittedly, the petitioner was appointed on a post in work charge establishment. The record reveals that the initial appointment of the petitioner was as helper. Thus the post which is referred to in the counter affidavit is that of Helper on which he was regularized. The post of Helper thus permanently existed. Further more, it is not the case of the appellant that the respondent was not appointed in accordance with the provisions of Service Rules. Thus having been initially appointed on the post of Helper, the appellant were not justified in denying the service benefit.
The impugned order when tested on the anvil of above analysis cannot be faulted with.
In view whereof no indulgence is caused."
(emphasis supplied by us)
29. In the facts of the present case, we find that neither engagement of respondent/petitioner was in a work charge establishment, nor is it admitted anywhere that engagement/appointment of respondent/ petitioner was in accordance with the service rules. The specific case of the respondent in para 11 of the counter affidavit that appointment of respondent/petitioner was not made by the competent authority. There is no discussion in the judgment of the learned Single Judge about the appointment of respondent/petitioner to be in accordance with the service rules prescribed for the post. We, therefore, find force in the contention of Mr. Pandey that learned Single Judge fell in error in allowing the writ petition relying upon the judgment of Supreme Court in Prem Singh (supra) and Bhanu Pratap Sharma (supra), particularly after retrospective amendment of the provisions of the U.P. Retirement Benefit Rules, 1961 vide U.P. Act No. 1 of 2021.
30. Law is settled that direction by a writ court can only be in accordance with law and not contrary to it. In Manish Goel v. Rohini Goel, (2010) 4 SCC 393, the Supreme Court observed as under:-
"14. Generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (Vide State of Punjab v. Renuka Singla [(1994) 1 SCC 175] , State of U.P. v. Harish Chandra [(1996) 9 SCC 309 : 1996 SCC (L&S) 1240 : AIR 1996 SC 2173] , Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453 : AIR 1996 SC 3285] , University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264 : 1997 SCC (L&S) 1265] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560 : AIR 2002 SC 629] .)"
11. In view of above, as the case of petitioner for regularization has already been rejected by respondents on the ground that he has worked only as a Seasonal Collection Amin and not as a Temporary Collection Amin, therefore, only on the strength that petitioner has worked for about 41 years, he cannot be entitled for regularization. Therefore, no case is made out and learned counsel for petitioner has also failed to point out any error in the impugned order warranting interference.
12. The writ petition is accordingly dismissed.
13. Interim order, if any, stands vacated.
Order Date :-07.05.2022 AK