Allahabad High Court
Dr. Shyam Kumar vs State Of U.P. Thru. Prin. Secy. Ayush ... on 17 February, 2023
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- WRIT - A No. - 8968 of 2022 Petitioner :- Dr. Shyam Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Ayush Civil Secrt. Lko. And Another Counsel for Petitioner :- Vivek Sirswal,B.N. Sirswal Counsel for Respondent :- C.S.C. ALONG WITH: (1) Case :- WRIT - A No. - 6343 of 2020 Petitioner :- Smt.Sukhrani Respondent :- State Of U.P.Thru Prin.Secy.Public Works Deptt.Lucknow Andors. Counsel for Petitioner :- Rakesh Kumar Singh Counsel for Respondent :- C.S.C. (2) Case :- WRIT - A No. - 7877 of 2022 Petitioner :- Shambhu Pal Respondent :- State Of U.P. Thru. Prin.Secy. Irrigation Deptt. And 5 Others Counsel for Petitioner :- Angrej Nath Shukla Counsel for Respondent :- C.S.C. (3) Case :- WRIT - A No. - 9 of 2023 Petitioner :- Santosh Kumar Shukla Respondent :- State Of U.P. Thru. Its Prin. Secy. Rural Engeneering Deptt. Lko. And 5 Others Counsel for Petitioner :- Km. Pratima Devi,Km. Manorama,Rajesh Kumar Tripathi Counsel for Respondent :- C.S.C. (4) Case :- WRIT - A No. - 18054 of 2021 Petitioner :- Jagdish Bahadur And Anr. Respondent :- State Of U.P. Thru. Addl.Chief Secy. Revenue Lko. And Anr. Counsel for Petitioner :- Vivek Kumar Rai,Chandan Sharma Counsel for Respondent :- C.S.C. (5) Case :- WRIT - A No. - 3662 of 2019 Petitioner :- Jai Ram Chaturvedi And Another Respondent :- State Of U.P. Thru Prin.Secy. Rural Engineering Lko. And Anr. Counsel for Petitioner :- Jitendra Kumar Pandey Counsel for Respondent :- C.S.C. (6) Case :- WRIT - A No. - 5274 of 2019 Petitioner :- Anil Kumar Kapoor Respondent :- State Of U.P. Thru. Prin. Secy. Irrigation And Ors. Counsel for Petitioner :- Lalji Yadav,Prashant Kumar Chaurasia,Purshottam Chaurasia,Upendra Kumar Counsel for Respondent :- C.S.C. (7) Case :- WRIT - A No. - 25891 of 2021 Petitioner :- Krishna Pal Mishra Respondent :- State Of U.P. Thru. Pramukh Sachiv Forest Lko. And Anr. Counsel for Petitioner :- Manendra Nath Rai,Uzma Afsar Counsel for Respondent :- C.S.C. (8) Case :- WRIT - A No. - 1592 of 2021 Petitioner :- Shri Mohsin Murtaza Rizvi Respondent :- State Of U.P.Thru.Secy.Minority Welfare And Muslim Waqf And Ors. Counsel for Petitioner :- Fahmid Ahmad,Amir Mohsin Rizvi Counsel for Respondent :- C.S.C. (9) Case :- WRIT - A No. - 2122 of 2020 Petitioner :- Sunder Lal Mishra And Ors. Respondent :- State Of U.P. Through Prin.Secy. Horticulture And Ors. Counsel for Petitioner :- Mohd. Ateeq Khan Counsel for Respondent :- C.S.C. (10) Case :- WRIT - A No. - 5685 of 2022 Petitioner :- Shailendra Pratap Singh Respondent :- State Of U.P. Thru. Addl. Chief Secy. Minor Irrigation Dept. Civil Secrett. Lucknow And 3 Others Counsel for Petitioner :- Suneel Kumar Singh Kalhans,Brijendra Pratap Singh,Shikha Srivastava,Yogesh Kumar Counsel for Respondent :- C.S.C. (11) Case :- WRIT - A No. - 32317 of 2019 Petitioner :- Mata Prasad Tiwari Respondent :- State Of U.P.Thru Secy. Irrigation Deptt. Lko And Ors. Counsel for Petitioner :- Shobh Nath Pandey Counsel for Respondent :- C.S.C. (12) Case :- WRIT - A No. - 8059 of 2019 Petitioner :- Harish And 2 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Rural Engineering Lucknow Andors. Counsel for Petitioner :- Sudeep Kumar,Avdhesh Kumar Pandey Counsel for Respondent :- C.S.C. (13) Case :- WRIT - A No. - 14750 of 2021 Petitioner :- Raja Ram And Anr. Respondent :- State Of U.P. Thru Secretary Irrigation And Ors. Counsel for Petitioner :- Ramesh Kumar Srivastava Counsel for Respondent :- C.S.C. (14) Case :- WRIT - A No. - 21878 of 2020 Petitioner :- Ram Bhajan Respondent :- State Of U.P.Thru.Secy.Rajya Sampatti Vibhag And Ors Counsel for Petitioner :- Mohammad Tauseef Siddiqui Counsel for Respondent :- C.S.C. (15) Case :- WRIT - A No. - 1020 of 2023 Petitioner :- Jagdish Prasad Respondent :- State Of U.P. Thru. Secy. Panchayati Raj Civil Sectt. Lko. And 2 Others Counsel for Petitioner :- Pradeep Kumar Shukla,Shiv Shankar Mishra Counsel for Respondent :- C.S.C. (16) Case :- WRIT - A No. - 493 of 2023 Petitioner :- Ram Achal Respondent :- State Of U.P. Thru. Prin.Secy. Forest Deptt. Lko. And 2 Others Counsel for Petitioner :- Yogesh Chandra Srivastava Counsel for Respondent :- C.S.C. (17) Case :- WRIT - A No. - 6074 of 2020 Petitioner :- Dr. Mahendra Pratap Singh And 6 Ors. Respondent :- State Of U.P. Thru Prin.Secy. Medical Health And Family And Ors. Counsel for Petitioner :- Jai Bahadur Singh Counsel for Respondent :- C.S.C.. (18) Case :- WRIT - A No. - 26309 of 2021 Petitioner :- Dr. Raje Lal Respondent :- State Of U.P. Thru. Prin. Secy. Ayush Anubhag Lko. And Ors. Counsel for Petitioner :- Mohammad Tauseef Siddiqui,Jahan Singh Yadav Counsel for Respondent :- C.S.C. (19) Case :- WRIT - A No. - 19227 of 2021 Petitioner :- Dr. Ramakant Pandey Respondent :- State Of U.P. Thru. Prin. Secy. Ayush Anubhag-1 And Ors. Counsel for Petitioner :- Mohammad Tauseef Siddiqui,Jahan Singh Yadav Counsel for Respondent :- C.S.C. (20) Case :- WRIT - A No. - 6421 of 2020 Petitioner :- Ravi Prakash Srivastava Respondent :- State Of U.P.Thru Prin.Secy.Revenue Department Lucnow And Anr. Counsel for Petitioner :- Angrej Nath Shukla Counsel for Respondent :- C.S.C. (21) Case :- WRIT - A No. - 2581 of 2022 Petitioner :- Dr. Daya Shankar Giri Respondent :- State Of U.P. Thru. Addl. Chief Secy. Dept. Of Ayush Govt. Of U.P. Lko. And 3 Others Counsel for Petitioner :- Mrinal Tripathi Counsel for Respondent :- C.S.C. (22) Case :- WRIT - A No. - 20 of 2023 Petitioner :- Shiv Shankar Verma Respondent :- State Of U.P. Thru. Agriculture Production Commissioner Lko. And 3 Others Counsel for Petitioner :- Nirankar Singh Counsel for Respondent :- C.S.C. (23) Case :- WRIT - A No. - 29184 of 2019 Petitioner :- Dr. Brijpal Singh And Anr. Respondent :- State Of U.P.Thru Prin.Secy.Ayush Anubhag-I Lko And Ors. Counsel for Petitioner :- Ashok Kumar Mishra Counsel for Respondent :- C.S.C. (24) Case :- WRIT - A No. - 10079 of 2021 Petitioner :- Dr. Pradeep Kumar Respondent :- State Of U.P. Thru Prin.Secy. Medical Edu. Ayush Anu.I Andors. Counsel for Petitioner :- Vimal Kumar,Km. Vishwa Mohini Counsel for Respondent :- C.S.C. (25) Case :- WRIT - A No. - 23027 of 2021 Petitioner :- Dr. Pradeep Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Ayush Anubhag Lko. And Ors. Counsel for Petitioner :- Mohammad Tauseef Siddiqui,Jahan Singh Yadav Counsel for Respondent :- C.S.C. (26) Case :- WRIT - A No. - 26130 of 2021 Petitioner :- Dr. Anil Kumar Srivastava Respondent :- State Of U.P. Thru. Prin. Secy. Ayush Anubhag-I Lko. And Ors. Counsel for Petitioner :- Mohammad Tauseef Siddiqui,Jahan Singh Yadav Counsel for Respondent :- C.S.C. (27) Case :- WRIT - A No. - 24316 of 2021 Petitioner :- Dr. Lok Maan Singh Respondent :- State Of U.P. Thru. Prin. Secy. Ayush Lko. And Ors. Counsel for Petitioner :- Mohammad Tauseef Siddiqui Counsel for Respondent :- C.S.C. (28) Case :- WRIT - A No. - 19931 of 2021 Petitioner :- Rajendra Dutt Sharma Respondent :- State Of U.P. Thru. Prin. Secy. Technical Edu. And Ors. Counsel for Petitioner :- Mohammad Tauseef Siddiqui Counsel for Respondent :- C.S.C. (29) Case :- WRIT - A No. - 20119 of 2021 Petitioner :- Maslahuddin And Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Technical Education Lko.Andors Counsel for Petitioner :- Mohammad Tauseef Siddiqui Counsel for Respondent :- C.S.C. (30) Case :- WRIT - A No. - 22080 of 2021 Petitioner :- Dr. Prem Shankar Shukla Respondent :- State Of U.P. Thru. Prin. Secy. Ayush Anubhag-I Lko. And Ors. Counsel for Petitioner :- Mohammad Tauseef Siddiqui,Jahan Singh Yadav Counsel for Respondent :- C.S.C. (31) Case :- WRIT - A No. - 27977 of 2021 Petitioner :- Dr. Ashok Kumar Respondent :- State Of U.P. Thru. Appar Chief Secy Ayush Anubhag Lko And Ors Counsel for Petitioner :- Mohammad Tauseef Siddiqui,Shareef Ahmad Counsel for Respondent :- C.S.C. (32) Case :- WRIT - A No. - 1360 of 2022 Petitioner :- Vinod Kumar Srivastava Respondent :- State Of U.P. Thru. Addl. Chief Secy. Planning Dept. -1 Lko. And Others Counsel for Petitioner :- Ashwani Kumar Counsel for Respondent :- C.S.C. (33) Case :- WRIT - A No. - 1931 of 2022 Petitioner :- Raj Kumar Singh Respondent :- State Of U.P. Thru. Its Prin. Secy. Women Welfare Civil Secrtt. Lko.And 4 Others Counsel for Petitioner :- Arvind Pratap Singh Counsel for Respondent :- C.S.C. (34) Case :- WRIT - A No. - 1127 of 2023 Petitioner :- Dr. Chandra Kant Pandey Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Ayush Lko. And Another Counsel for Petitioner :- Vinod Kumar Shukla,Rakesh Singh Counsel for Respondent :- C.S.C. (35) Case :- WRIT - A No. - 816 of 2023 Petitioner :- Dr. Narendra Kumar Dixit Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Ayush, Lko. And 3 Others Counsel for Petitioner :- Vinod Kumar Shukla,Anupama Bhadauria,Rakesh Singh Counsel for Respondent :- C.S.C. (36) Case :- WRIT - A No. - 93 of 2023 Petitioner :- Brija Shankar Verma Respondent :- State Of U.P. Thru. Its Prin. Secy. Ayush Section Lko. And 2 Others Counsel for Petitioner :- Aditya Vikram Shahi Counsel for Respondent :- C.S.C. (37) Case :- WRIT - A No. - 5071 of 2022 Petitioner :- Sunil Kumar Mishra Respondent :- State Of U.P. Thru. Appar Chief Secy. Ayush Anubhag -1 Civil Secret. Lucknow And 4 Others Counsel for Petitioner :- Mohammad Tauseef Siddiqui Counsel for Respondent :- C.S.C. (38) Case :- WRIT - A No. - 2740 of 2022 Petitioner :- Dr. Rakesh Nigam And Another Respondent :- State Of U.P. Thru. Appar Chief Secy. Ayush Anubhag-I, Lko. And Others Counsel for Petitioner :- Mohammad Tauseef Siddiqui Counsel for Respondent :- C.S.C. (39) Case :- WRIT - A No. - 4859 of 2022 Petitioner :- Dr. Rakesh Kumar Gupta And 2 Others Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Ayush Govt Of U.P. Sectt Lko And 3 Others Counsel for Petitioner :- Mrinal Tripathi,Birendra Narain Shukla,Prabhaw Kumar Tripathi Counsel for Respondent :- C.S.C. (40) Case :- WRIT - A No. - 23115 of 2020 Petitioner :- Mansaram Yadav Respondent :- State Of U.P.Thru.Prin.Secy.Revenue Deptt. And Ors. Counsel for Petitioner :- Vinod Kumar Singh,Dharmendra Kumar Tiwari,Vivek Mishra Counsel for Respondent :- C.S.C. (41) Case :- WRIT - A No. - 43 of 2023 Petitioner :- Pradeep Kumar Respondent :- State Of U.P. Thru. Agriculture Production Commissioner Civil Secrett. Lko. And 3 Others Counsel for Petitioner :- Nirankar Singh Counsel for Respondent :- C.S.C. (42) Case :- WRIT - A No. - 30 of 2023 Petitioner :- Mohd. Baqar Respondent :- State Of U.P. Thru. Agri. Production Commissioner Civil Secrt. Lko. And 3 Others Counsel for Petitioner :- Nirankar Singh Counsel for Respondent :- C.S.C. (43) Case :- WRIT - A No. - 27 of 2023 Petitioner :- Pratibha Vishwakarma Respondent :- State Of U.P. Thru. Agriculture Production Commissioner Civil Lko. And 3 Others Counsel for Petitioner :- Nirankar Singh Counsel for Respondent :- C.S.C. (44) Case :- WRIT - A No. - 1089 of 2022 Petitioner :- Shri Vijay Pratap Singh And 2 Others Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Revenue Lko. And 2 Others Counsel for Petitioner :- Mukesh Kumar,Anuj Dayal,Manish Srivastava Counsel for Respondent :- C.S.C. (45) Case :- WRIT - A No. - 945 of 2023 Petitioner :- Chhobe Lal Yadav Respondent :- State Of U.P. Thru. Prin. Secy. Revenue Deptt. Civil. Sectt. Lko. And 3 Others Counsel for Petitioner :- Digvijay Singh Yadav Counsel for Respondent :- C.S.C. (46) Case :- WRIT - A No. - 17032 of 2020 Petitioner :- Bachchoo Lal Respondent :- State Of U.P. Thru Prin. Secy. Deptt. Of Revenue And Ors. Counsel for Petitioner :- Pradip Kumar Srivastava,Renu Misra Counsel for Respondent :- C.S.C. (47) Case :- WRIT - A No. - 394 of 2023 Petitioner :- Guru Narayan Respondent :- State Of U.P. Thru. Its Prin. Secy. /Addl. Chief Secy. Deptt. Of Revenue Lko. And 3 Others Counsel for Petitioner :- Lalendra Pratap Singh Counsel for Respondent :- C.S.C. (48) Case :- WRIT - A No. - 9665 of 2019 Petitioner :- Sageer Ahmad And Anr. Respondent :- State Of U.P. Thru. The Prin. Secy. Deptt. Of Revenue And Ors Counsel for Petitioner :- A.P. Singh,Amarendra Pratap Singh Counsel for Respondent :- C.S.C. (49) Case :- WRIT - A No. - 126 of 2023 Petitioner :- Shiv Kumar Gaur Respondent :- State Of U.P. Thru. Prin.Secy. Public Works Deptt. And 2 Others Counsel for Petitioner :- Satish Kumar Sharma,Harendra Singh Counsel for Respondent :- C.S.C. (50) Case :- WRIT - A No. - 3234 of 2022 Petitioner :- Dr. Shailendra Kumar Mishra Respondent :- State Of U.P. Thru. Prin. Secy. Ayush Anubhag -1 Lko. And Others Counsel for Petitioner :- Ashok Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Vivek Chaudhary,J.
1. Heard learned counsel for the petitioners Sri Vivek Sirswal, Sri Rakesh Kumar Singh, Sri Angrej Nath Shukla, Km. Pratima Devi, Sri Vivek Kumar Rai, Sri Jitendra Kumar Pandey, Sri Lalji Yadav, Sri Manendra Nath Rai, Sri Fahmid Ahmad, Sri Mohd. Ateeq Khan, Sri Suneel Kumar Singh Kalhans, Sri Shobh Nath Pandey, Sri Sudeep Kumar, Sri Ramesh Kumar Srivastava, Sri Mohd. Tauseef Siddiqui, Sri Pradeep Kumar Shukla, Sri Yogesh Chandra Srivastava, Sri Jai Bahadur Singh, Sri Mrinal Tripathi, Sri Nirankar Singh, Sri Ashok Kumar Mishra, Sri Vimal Kumar, Km. Vishwa Mohini, Sri Ashwani Kumar, Sri Arvind Pratap Singh, Sri V.K. Shukla, Sri Aditya Vikram Shahi, Sri Vinod Kumar Singh, Sri Mukesh Kumar, Sri Digvijay Singh Yadav, Sri Pradip Kumar Srivastava, Sri Lalendra Pratap Singh, Sri A.P. Singh, Sri Satish Kumar Sharma and Sri Praful Yadav, learned Standing Counsel for the State.
2. This Bunch of writ petitions relates to interpretation and application of Section 2 of the Act of 2021 for counting qualifying service for the purpose of pension with regard to work charge employees, daily wager employees, adhoc appointees against the post as well as Seasonal Collection Amin. Since common issue is involved in all the writ petitions with regard to interpretation of Section 2 of Section 2021, therefore, the same are being decided by this common judgment.
Work-Charge Employees:
3. The petitioners are work charge employees appointed between 1979 to 1988 and regularized in different departments between 1994 to 2013. All the petitioners are now retired. They claim entitlement of pension after taking into account the services rendered by them as work charge employee.
In Writ-A No.6343 of 2020, claim of the petitioner was rejected by impugned order dated 28.1.2020 on the ground that judgment in case of Prem Singh vs. State of U.P. and others, (2019) 10 SCC 516 has not attained finality;
In Writ-A No.7877 of 2022, the petitioner has challenged the order passed in the year 2022 without any specific date, rejecting his claim on the ground that as per the Ordinance issued on 5.3.2021, case of the petitioner is not covered;
In Writ-A No.9 of 2023, under challenge is the impugned order dated 11.11.2022 whereby claim of the petitioner was rejected on the ground that his initial appointment was on work charge post;
In Writ-A No.18054 of 2021, challenge is made to the impugned order dated 29.12.2020 by means of which claim of the petitioners was rejected on the ground that they are not a party to the case of Prem Singh (supra); and In Writ-A No.3662 of 2019, petitioners have challenged the order dated 10.7.2018 whereby claim of the petitioners was rejected on the ground that their services were regularized on 21.1.2013 i.e. after old pension scheme was abolished.
4. Learned counsels for the petitioners have relied upon the case of Prem Singh (supra) as well as judgment of this Court in the cases of State of U.P. and others vs. Mahendra Singh (Special Appeal Defective No.1003 of 2020), decided on 4.2.2021; State of U.P. and others vs. Bhanu Pratap Sharma (Special Appeal No.97 of 2021) decided on 9.6.2021; State of U.P. and others vs. Bhanu Pratap (Special Appeal No.152 of 2021) decided on 14.7.2021 and the order dated 11.7.2022 passed in the case of State of U.P. and others vs. Bhanu Pratap (Special Leave to Appeal (c) No.10381 of 2022, which is rejected by the Supreme Court.
5. On the other hand, learned Standing Counsel opposing the same, submits that the judgment in case of Prem Singh (supra) is passed on the basis of Civil Services Regulations (CSR Regulations) as existed at that time. The same stand superseded by the U.P. Ordinance No.19 of 2020 (The U.P. Qualifying Services for Pension and Validation Ordinance, 2020) published in extraordinary gazette of Government of U.P. on 21.10.2020 followed by the U.P. Qualifying Service for Pension and Validation Act, 2021 (for short 'the Act of 2021'). As per Section 2 of the Act of 2021, the term 'qualifying service' means services rendered by an officer appointed on temporary or permanent post in accordance with the service Rules prescribed for the post. Since the petitioners were not appointed on any post, but were work charge employees, hence, the said services cannot be counted and, thus, they are not entitled for pensionary benefits. Learned Standing Counsel has placed reliance upon a judgment and order dated 8.11.2021 passed by a Full Bench of this Court in the case of Ram Das Yadav vs. State of U.P. and others (Writ Petition No.25955 of 2017); as well as judgment of this Court in case of Jang Pal vs. State of U.P. and others (Specia Appeal No.240 of 2021) decided on 16.5.2022; interim order dated 26.4.2022 in case of State of U.P. and others vs. Gulam Sarver (Special Appeal No.165 of 2022); State of U.P. and others vs. Raj Bahadur Pastor, 2022(3) ADJ 5 (DB); and judgment and order dated 7.5.2022 passed in case of Kishun Dev Ram vs. State of U.P. and others (Writ-A No.38221 of 2011).
6. The Supreme Court in Prem Singh case (supra) considered the applicability and validity of U.P. Retirement Benefit Rules, 1961 and CSR Regulations, which barred payment of pension to persons working in work charge establishment and held:
"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 v. State of U.P. [CA No. ______2019 arising out of 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 with effect from 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 regularised time to time by different orders. However, the services of some of the appellants in few petitions/appeals have not been regularised 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 regularised. 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 regularisation 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 the Note to Rule 3(8) of the 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 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 regularised 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 regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . 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 regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. 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."
Thus, the Supreme Court held that since the State Government has proceeded to take work on long term basis from the work charge employees, without there being a rational classification between the work performed by such work charge employees and the regular employees of the State Government, the Rules are required to be read down, as otherwise they would be arbitrary and, thus, gave benefit of the services rendered as work charge employees in counting the period of qualifying service for pensionary benefits.
7. Now, by the Act of 2021, the effect of the aforesaid judgment of the Supreme Court is attempted to be undone by the State Government. It has come up with Section 2, which provides:
"2. Notwithstanding anything contained in any rule, regulation or Government order for the purposes of entitlement of pension to all 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."
Thus, as per section 2 of the Act of 2021, if a person was not appointed on a temporary or permanent post as per service Rules, his services would not be qualifying service for the purposes of pension. Law with regard to the manner in which the Legislature can nullify or modify the impact of a judgment is settled since long. Suffice is to refer to the case of Indian Aluminium Co. and others vs. State of Kerala and others (1996) 7 SCC 637. In the said case, after considering the entire law on subject, the Supreme Court in Para 56 of the judgment enumerates the principles, which read:
"56. From a resume of the above decisions the following principles would emerge:
(1) The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transactions and require the court to give effect to them;
(2) The Constitution delineated delicate balance in the exercise of the sovereign power by the legislature, executive and judiciary;
(3) In a democracy governed by rule of law, the legislature exercises the power under Articles 245 and 246 and other companion articles read with the entries in the respective lists in the Seventh Schedule to make the law which includes power to amend the law.
(4) Courts in their concern and endeavour to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries. In order that rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free play in their joints so that the march of social progress and order remains unimpeded. The smooth balance built with delicacy must always be maintained;
(5) In its anxiety to safeguard judicial power, it is unnecessary to be overzealous and conjure up incursion into the judicial preserve invalidating the valid law competently made;
(6) The court, therefore, needs to carefully scan the law to find out: (a) whether the vice pointed out by the court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution.
(7) The court does not have the power to validate an invalid law or to legalise impost of tax illegally made and collected or to remove the norm of invalidation or provide a remedy. These are not judicial functions but the exclusive province of the legislature. Therefore, they are not encroachment on judicial power.
(8) In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the court or the direction given for recovery thereof.
(9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same."
8. The law long settled is that the Legislature can render judicial decision ineffective by enacting valid law on the topic within its legislative field by fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid.
9. Therefore, the question now before this Court is whether by bringing Act of 2021, the State Government has done away with the vice pointed out by the Supreme Court in case of Prem Singh (supra). In the said judgment, the Supreme Court found that the State Government has adopted exploitative labour practice by taking work of regular employees from work charge employees on long term basis without any rationale classification while refusing them benefits available to regular employees. Supreme Court specifically held that the State Government can not get involved in corrupt labour practices. On the aforesaid grounds, the Supreme Court read down the provisions of Rule 3(8) of the Rules of 1961 and struck down Regulation 370 of Civil Services Regulations and Para 669 of the Financial Handbook.
10. It is the duty of State to create new temporary or permanent posts as per its needs and make appointments on the same. Law also permits State to appoint daily wagers or work charge employees, but only when the work is for short period or is in a work charge establishment for fixed duration. Law does not permit the State to take work for long period, extending even for the entire working life of a person, on temporary or work charge basis. In such cases, it is the duty of State to create new posts and make appointments, giving all benefits of regular employees. Otherwise, State would be found to be adopting exploitative labour practice. This is the vice pointed out by the Supreme Court in Prem Singh's case (supra), and instead of removing the same, the State by Section 2 of the Act of 2021 has extended the sphere of its illegality. By Section 2 of the Act of 2021, it desires to take benefit of its own failure of creating posts in time and making appointments on the same, by not counting the said period of such service for pensionary benefits. State still fails to explain the rationale on the basis of which it has created this new classification and the manner in which, by the amended provision, it has removed the irrationality.
In case Section 2 of the Act of 2021 is given a literal meaning it would mean that services rendered by a person on a temporary or permanent post alone can be counted for pension. The same would again be an exploitative device and labour malpractice, as by this, the State Government is again attempting to use persons to work for it on long term basis, just like regular employees, without giving them benefits they are entitled to as regular employees. The very vice pointed by the Supreme Court in the judgment of Prem Singh (supra) with regard to work charge employees is, in fact, now made applicable to even larger number of employees and extended to daily wagers and other persons not working on a temporary or a permanent post including, work charge employees.
In case of V. Sukumaran vs. State of Kerala (2020) 8 SCC 106, the Supreme Court held:
"22. We begin by, once again, emphasising that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind i.e. to facilitate a retired government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities."
Thus, again to save Section 2 of the Act of 2021 from the vice/arbitrariness, in the spirit of the judgment of Prem Singh (supra), the word 'post' is required to be diluted to save it from arbitrariness and hence, the word 'post' used in Section 2 of the Act of 2021, be it temporary or permanent, has to be read down as 'services rendered by a government employee, be it of temporary or permanent nature'.
11. The other case laws cited by learned counsel for the petitioners as well as by learned Standing Counsel, as noted above, are not applicable in the facts and circumstances of the present cases, as in none of the above cited cases, interpretation of Section 2 of the Act of 2021 is considered.
12. In the light of aforesaid, since Section 2 of the Act of 2021 also suffers from the vice pointed out by the Supreme Court in the case of Prem Singh (supra), hence, to be brought out of arbitrariness, it is read down and services rendered on temporary or permanent post is read as services rendered by a government employee, be it of temporary or permanent nature. Therefore, it is held that the petitioners are also entitled for the benefit of the judgment of Prem Singh (supra). All the impugned orders are set aside.
Daily-wager:
13. The petitioners are appointed between 1978 to 1992 as daily wagers in different departments in State of U.P. They all were later regularized between 2005 to 2012 on different posts.
In Writ-A No.32317 of 2019, the petitioner has challenged the order dated 30.9.2019 by means of which claim of the petitioner was rejected on the ground that since his regularisation is after the old pension scheme was abolished, therefore, he is not entitled for any post-retiral benefits;
In Writ-A Nos.5274 of 2019, 493 of 2023, 14750 of 2021 and 1020 of 2023, the petitioners have prayed for mandamus commanding the opposite parties to grant them retiral benefits by counting their services as a daily wager prior to their regularization;
In Writ-A No.126 of 2023, the petitioner has challenged the order dated 1.12.2022 by means of which claim of the petitioner was rejected on the ground that since his regularisation is after the old pension scheme was abolished, therefore, he is not entitled for any post-retiral benefits;
In Writ-A No.21878 of 2020, the petitioner has challenged the order dated 12.5.2020 by means of which claim of the petitioner was rejected on the ground that since his regularisation is after the old pension scheme was abolished, therefore, he is not entitled for any post-retiral benefits;
In Writ-A No.2122 of 2022, learned counsel for petitioner prays to withdraw the writ petition on behalf of petitioners no.8, 10, 12, 13 and 14 with liberty to file fresh writ petition on their behalf.
The permission is granted.
The writ petition is dismissed as not pressed with regard to petitioner nos. 8, 10, 12, 13 and 14 only with the liberty as prayed aforesaid.
Now the writ petition survives only on behalf of petitioners no.1 to7, 9 and 11, who have challenged the impugned order dated 17.12.2019 on the ground that since the petitioners were initially appointed as daily wagers, therefore, their past services before regularization cannot be counted for the purpose of post retiral benefits;
In Writ-A No.5685 of 2022, is filed by the petitioner challenging the impugned order dated 18.01.2016, by means of which petitioner was regularized with immediate effect, while he claimed that he may be regularized form the date of his initial appointment.
In Writ-A No.8059 of 2019, the petitioner has challenged the order dated 28.2.2019 by means of which claim of the petitioner was rejected on the ground that since his regularisation is after the old pension scheme was abolished, therefore, he is not entitled for any post-retiral benefits;
In Writ-A No.1592 of 2021, claim of the petitioner was rejected by impugned order dated 27.5.2020 on the ground that judgment in case of Prem Singh vs. State of U.P. and others, (2019) 10 SCC 516 has not attained finality; and In Writ-A No.25891 of 2021, the petitioner has challenged the order dated 23.9.2021 by means of which claim of the petitioner was rejected on the ground that since his regularisation is after the old pension scheme was abolished, therefore, he is not entitled for any post-retiral benefits.
14. It is settled since long that daily wager employees are entitled to pensionary benefits counting their services from the date of their initial appointment and not from the date of their regularization. Suffice would be to refer to the judgment in cases of Hari Shankar Asopa vs. State of U.P. and another, 1989(1) UPLBEC 501; Yashwant Hari Katakkar vs. Union of India and others, 1996 (7) SCC 113; and Prem Singh (supra). In fact earlier they were covered by Rule 2 of U.P. Retirement Benefit Rules, 1961 and other Civil Services Regulations.
15. Now learned Standing Counsel submits that in view of Section 2 of the Act of 2021, since petitioners were not appointed on a temporary or permanent post initially, therefore, benefit of said services cannot be granted to them.
16. The said aspect of the matter is already discussed above at length. Section 2 of the Act of 2021 is already read down and it is held that the word 'post' used in Section 2 of the Act of 2021, be it temporary or permanent, has to be read down as 'services rendered by a government employee, be it of temporary or permanent nature'.
17. In view thereof, the petitioners are also covered by the aforesaid interpretation of Section 2 of the Act of 2021 as given in the present judgment. Orders impugned in different writ petitions on the grounds stated above are covered by the earlier judgments as well as by findings given above in this judgment and, hence, petitioners are held to be entitled for counting of their services rendered as daily wagers for pensionary benefits. All impugned orders are set aside.
Adhoc Employees:
18. In Writ-A Nos.8968 of 2022, 1127 of 2023, 816 of 2023, 2740 of 2022, 4859 of 2022, 6074 of 2020, 2581 of 2022, 5071 of 2022, 93 of 2023 and 1931 of 2022, petitioner has prayed for mandamus commanding the opposite parties to grant him retiral benefits by counting his services rendered on adhoc basis prior to his regularisation;
In Writ-A Nos.3234 of 2022, 24316 of 2021, 22080 of 2021, 27977 of 2021, 26309 of 2021, 19227 of 2021, 29184 of 2019, 10079 of 2021, 26130 of 2021, 23027 of 2021, 43 of 2023, 20 of 2023, 6421 of 2020, 1360 of 2022, 20119 of 2021, 19931 of 2021, 27 of 2023 and 30 of 2023, petitioners have challenged the impugned orders as in all of them, claims of the petitioners were rejected on the ground that their appointment is on adhoc basis, therefore, they are not entitled for any post-retiral benefits;
19. The very initial appointment letters show that petitioners were appointed against substantive posts on adhoc basis. Since their appointment is against a substantive post, hence, they are squarely covered even by Section 2 of the Act of 2021 as it stands. Further, in view of interpretation as given above to Section 2 of the Act of 2021 and it is held that the services performed in temporary or permanent nature need to be counted for pensionary purposes, otherwise, it again would be hit by the judgment of the Supreme Court in case of Prem Singh (supra), thus, there can be no dispute that all the petitioners are are entitled for counting of services rendered by them as ad-hoc employees for pensionary purposes.
In view of above, all the impugned orders are set aside.
Seasonal Collection Peon/ Amin.
20. The petitioners are appointed between 1978 to 1988 against substantive posts of seasonal collection peon and seasonal collection amin . They all were later regularized between 2007 to 2019 on the posts of Collection Peons and Collection Amins.
In Writ-A No.9665 of 2019, Learned counsel for the petitioner submits that petitioner no.2 is not retired as yet. Hence, his case is different from the present bunch. Learned counsel for petitioner prays to withdraw the present writ petition on behalf of petitioner no.2 with liberty to file fresh petition, as and when if required. The prayer is allowed. The writ petition is dismissed as not pressed on behalf of petitioner no.2 with the aforesaid liberty. Now the writ petition survives only on behalf of petitioner no.1.
Claim of the petitioner no. 1 was rejected by impugned order dated 11.02.2019 on the ground that his appointment was for seasonal work therefore he can not claim post retiral benefits as being provided to regular employees;
In Writ-A No.23115 of 2020 and 394 of 2023, the petitioner has prayed for mandamus commanding the opposite parties to grant him retiral benefits by counting his services prior to his regularisation on the post of seasonal collection peon;
In Writ-A No.17032 of 2020, challenge is made to the impugned order dated 29.06.2020 by means of which claim of the petitioners was rejected on the ground that since his regularisation is after the old pension scheme was abolished, therefore, he is not entitled for any post-retiral benefits; and In Writ-A No.1089 of 2022, petitioners have challenged the order dated 18.01.2022 whereby claim of the petitioners was rejected on the ground that their appointment was for seasonal work and not on a substantive regular post.
In Writ-A No. 945 of 2023, Claim of the petitioner is rejected by impugned order dated 26.11.2022 on the ground that since his regularisation he has worked for less than 10 years therefore he is not entitled for any retiral benefits.
21. Law regarding counting of the period of services rendered earlier as Seasonal Collection Peon/Collection Amin for calculation of post-retiral benefits is long settled by a large number of judgments. Suffice would be to refer to the judgment a Division Bench judgment of this Court in the case of Board of Revenue through its Chairman: The District Magistrate and UP-Zila Adhikari vs. Prasidh Narain Upadhyay, 2006 (5) AWC 5194 (DB). The said judgment is followed till date. Furthermore, Fundamental Rule 56 as it stood amended by the U.P. Amendment Act No. 24 of 1975 allows for retirement of a temporary employee and in clause (e) of the Fundamental Rule 56 it is provided that retiral benefits shall be made available to every employee who retires under this Rule. Even after the coming into force of the Act of 2021, since, their appointment is against a post, hence, they are squarely covered even by the original Section 2 of the Act of 2021. Further, in view of interpretation as given above to Section 2 of the Act of 2021 where it is held that the work on temporary or permanent post needs to be read as work taken from a person on a position, be it temporary or permanent, otherwise, it again would be hit by the judgment of the Supreme Court in case of Prem Singh (supra), thus, there can be no dispute that they are entitled for pension by counting in services rendered by them as non-regular employees.
22. In the aforesaid facts and circumstances of the case, all the orders impugned in the writ petitions are passed either on the ground that they are covered by the Ordinance/Act of 2021 or they were not party in case of Prem Singh (supra) or without considering the judgment of Prem Singh (supra) and hence, the same are squarely covered by the finding given above. Therefore, the impugned orders cannot stand and are set aside. However, petitioners shall be entitled to past pensionary benefits for last three years only.
23. All the writ petitions are allowed.
[Vivek Chaudhary,J.] Dated: February 17, 2023 Sachin