Allahabad High Court
Shri Rama Shankar Pandey (Seenchpal) vs State Of U.P. And Others on 31 July, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 24.07.2013 Delivered on 31.07.2013 Court No. - 34 (1) Case :- WRIT - A No. - 23873 of 2011 Petitioner :- Shri Rama Shankar Pandey (Seenchpal) Respondent :- State Of U.P. And Others Counsel for Petitioner :- Ranjit Saxena, Brij Lal Verma Counsel for Respondent :- C.S.C. (2) Case :- WRIT - A No. - 42058 of 2009 Petitioner :- Nisar Ahmad & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- Syed Fahim Ahmed, Ashok Khare Counsel for Respondent :- C.S.C. (3)Case :- WRIT - A No. - 25757 of 2009 Petitioner :- Ram Lakahan Respondent :- State Of U.P. & Others Counsel for Petitioner :- Harshita Vishwakarma, Akhilanand Mishra,S.K. Yadav Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Since all the three writ petitions, involve a common issue, hence they were heard altogether and are being decided by this composite order.
(I) WRIT - A No.- 23873 of 2011
2. Heard Sri Ranjeet Saxena, Advocate for the petitioner and Sri S.K. Misra, learned Standing Counsel for respondents.
3. The petitioner is aggrieved by order dated 08.04.2011, passed by Additional Director, Treasury and Pension, Allahabad Circle Allahabad whereby he has held that the petitioner is not entitled to pension since the Governor has discontinued pension scheme for Government employees with effect from 1st April 2005, and the petitioner having been appointed on 9.8.2005, no pension is payable to him. He has also prayed for issuance of a writ of certiorari for quashing Article 370 of Civil Service Article (hereinafter referred to as "CSR") as applicable in the State of U.P. He has further sought a writ of mandamus commanding the respondents to pay pension after after counting period of work rendered as Supervisor in work charge establishment, before his regular appointment on 08.08.2005, as Seenchpal.
4. This writ petition was initially dismissed on 25.04.2011, by a learned Single Judge of this Court, holding that under Article 370, CSR, service rendered in work charge, does not qualify for computing qualifying service for pension as also held in Bansh Gopal Vs. State of U.P. 2006 (3) ESC 2428 and State of U.P. Vs. Ram Pratap Shukla 2008 (3) ESC 2123 and the petitioner was not entitled to compute his services rendered in work charge establishment for the purpose of pension. The Court did not address itself to the issue of validity of Article 370 CSR.
5. The petitioner thereafter preferred an intra Court appeal, i.e., Special Appeal No. 899 of 2011 which was partly allowed and disposed of vide order dated 11th July 2011 as follows:
"Heard learned counsel for the parties.
The petitioner is in appeal against the judgment and order dated 25.4.2011, whereby the petitioner's claim that his services as work-charged employee should be considered for the purpose of pension has been rejected.
After considering the impugned judgment, we really do not find that the findings suffer from any illegality or infirmity warranting our interference. Those findings are confirmed. However, learned counsel for the appellant points out to us that there a judgment of the Supreme Court in the case of Punjab State Electricity Board and another Vs. Narata Singh and another, AIR 2010 SC 1467, wherein a provision for excluding the period of service for work-charged employee for the purpose of pension has been struck down by the Full Bench of Punjab & Haryana High Court and the SLP against the said order has been dismissed was considered.
Considering the above, to that extent, we partly allow this appeal and set aside the order, and remit the matter back to the learned Single Judge, to enable the petitioner to amend the petition, if so advised to challenge the relevant rule. We make it clear that, on the matter being remanded, the challenge will be limited to the vires of Rule 370 of the Civil Services Articles as applicable in the State of Uttar Pradesh.
If the petitioner applies for amendment, within four weeks from today, then the same shall be considered according to law.
The appeal is partly allowed and is disposed of accordingly." (emphasis added)
6. Thus the Court remanded the matter only to the extent of consideration by this Court about vires of Article 370 of CSR, as applicable in UP. After remand, the petitioner came up with an amendment application no. 206282 of 2011 which was allowed on 10.10.2011 as a result whereof grounds no. (e), (f), (g) and prayer no. (v) ought to have been incorporated in the writ petition. While carrying out amendment, the petitioner though has incorporated prayer no. (v) but grounds (e), (f) and (g), allowed to be incorporated in the writ petition, have not actually been added and the amendment to that extent has not been carried out. Today, when the matter was taken up, learned counsel for the petitioner did not make any request for carrying out that partial amendment which he had failed to do so. The writ petition therefore, has been heard on the paper book of the writ petition, containing partial amendment with insertion of prayer (v) only. However, I have given full latitude to learned counsel to address this Court on the question of validity of Article 370, CSR.
7. Now coming to legal aspect, it would be appropriate to give brief facts as pleaded in the writ petition. Service details of petitioner have not been stated anywhere except to the extent that earlier he was a Supervisor in work charge and on 8.8.2005, appointed as Seenchpal in pay scale of Rs. 3050-4590, vide an order passed by Superintending Engineer, Irrigation Work Circle, Allahabad. The appointment order is Annexure-4 to the writ petition which shows that from work charge establishment, the petitioner was regularised on the post of Seenchpal in regular establishment. Thereafter, petitioner attained the age of superannuation of 60 on 31.01.2011 and made to retire vide Fundamental Rule 56. In the entire writ petition, neither there is any averment nor any ground which may throw light on the challenge to vires of Article 370 CSR. The only averments going to some extent near the argument about vires, are contained in paras 9, 10, 11, 12 and 13 of the writ petition and the same aver that the respondents having denied pensionary benefit to the petitioner, by not counting service rendered as work charge Supervisor, have acted illegally, arbitrarily and their action is violative of Article 21 of Constitution of India.
8. In the rejoinder affidavit also, there is nothing to show as to how, why and in what manner Article 370 is ultra vires and of what. In fact, in a long paragraph 5 of the rejoinder affidavit, the petitioner has referred to various judgments and then says that Article 370 of CSR is ultra vires.
9. During the course of argument, Sri Saxena, learned counsel for the petitioner was repeatedly asked by this Court as to how he has pleaded that Article 370 of CSR, as applicable in U.P. is ultra vires.
10. Regular establishment and work charge establishment stand on different footing. Pointing out this distinction, a Full Bench of this Court in Pawan Kumar Yadav Vs. State of U.P. and others 2011(1) 1028 in para 20 observed as under:
"20. In respect of the employees the State Government in Irrigation Department, Public Works Department, Minor Irrigation, Rural Engineering Services, Grounds Water Department has provided for employment the regular establishment and workcharge establishment. The person appointed in regular establishment are appointed against a post, after following due procedure prescribed under the rules. In workcharge establishment the employees are not appointed by following any procedure or looking into their qualification. They do not work against any post or regular vacancy. They only get consolidated salary under the limits of sanction provided by Government Order dated 6th April, 1929. The conditions of their employment is provided in paragraphs 667, 668 and 669 of Chapter XXI under the Head of Establishment in Financial Hand Book Volume IV. Their payments are provided to be made in same Financial Hand Book Volume IV in Paragraph Nos. 458, 459, 460, 461, 462 and 463." (emphasis added)
11. In para 21 thereafter, the Full Bench has referred to the provisions contained in Financial Hand Book, Volume 4 with respect to appointment in regular establishment and workcharge establishment and thereafter in para 22 the status of workcharge employee as noticed by Apex Court in Uttaranchal Jal Sansthan V. Laxmi Devi & Ors., (2009) 2 SCC L&S 304 has been reproduced and it reads as under:
"22. In Uttaranchal Jal Sansthan Vs. Laxmi Devi (Supra) the Supreme Court has held "it is one thing to say that by reason of such contingencies services of the workcharge employee should be directed to be regularised, but it is another thing to say that although they were not absorbed in the permanent cadre, still on their deaths their dependants would be entitled to invoke the Rules".
12. In the present case, in absence of any factual foundation and pleadings in writ petition, to demonstrate as to how Article 370 CSR is ultra vires or violative of any provision of the Constitution or is otherwise bad, I find nothing but a bare and naked reference to the judgment of Apex Court in Punjab Electricity Board Vs. Narata Singh and another 2010(4) SCC, 317, on the basis whereof Sri Saxena has claimed that Article 370, CSR itself should be struck down. The submission is thoroughly misconceived. My reasons are as under:
13. Article 370 of CSR, as applicable in U.P. reads as under:
"370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions 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 form contingencies."
14. Validity of this entire provision has been challenged without any factual foundation or pleading. If this entire provision goes, even the temporary official's service shall not be liable to count as qualifying service. Moreover, in absence of any factual averment to demonstrate, how a work charge establishment and service rendered therein, can be treated at par with service in regular establishment and service rendered therein, it cannot be said that there is any discrimination or arbitrariness on the part of rule framing authority so as to create a distinction between the two. It is not that Article 370(ii), CSR has been challenged in the present writ petition but the petitioner has prayed that Article 370 should be struck down and that too, without demonstrating as to how and in what manner the aforesaid provision is bad or is ultra vires.
15. Now coming to the decisions in Punjab Electricity Board Vs. Narata Singh (supra), I find that vide this judgment the Apex Court has not declared any provision bad or ultra vires. It appears that similar to Article 370(ii), there was Rule 3.17(ii) in Punjab Civil Services Rules, the validity whereof was challenged before Punjab and Haryana High Court in Kesar Chand Vs.State Of Punjab And Ors. 1988 AIR 1988 P &H 265. A Full Bench declared Rule 3.17(ii) of Punjab Civil Services Rules ultra vires and violative of Article 14 of Constitution and consequently, struck it down. Special Leave Petition was preferred by the State Government before the Apex Court but the same was dismissed rendering the judgement of Punjab and Haryana High Court final. Mere dismissal of a Special Leave Petition does not make a judgement of High Court to be that of Supreme Court. It shall result in rendering the High Court judgement final and does not raise the status of High Court judgement to be that of Supreme Court, so as to be a binding law on all other Courts. (See Supreme Court Employees' Welfare Association Vs. Union of India and Anr., (1989 ) 4 SCC 187; State of Manipur Vs. Thingujam Brojen Meetei AIR 1996 SC 2124; Kunhayammed Vs. State of Kerala (2000) 6 SCC 359; S. Shanmugavel Nadar Vs. State of Tamilnadu (2002) 8 SCC 361=JT 2002(7)SC 566; U.P.S.R.T.C Vs. Omaditya Verma (2005) 4 SCC 424; National Housing Cooperative Society Ltd. Vs. State of Rajasthan and Others (2005) 12 SCC 149; Pernod Ricard India (P.) Ltd. Vs. Commissioner of Customs JT 2010 (7) SC 602 = (2010) 8 SCC 313; Meghmala & Ors. Vs. G. Narasimha Reddy & Ors 2010(8) SCC 383 and Gangadhara Palo Vs. Revenue Divisional Officer & Anr (2011) 4 SCC 602.
16. Judgment of another High Court may have a persuasive value but shall not be binding like that of a law, laid down by the Apex Court. Here also, what is binding, is ratio laid down by the Apex Court in a judgment and not a an order, where no issue has been considered and adjudicated by the Apex Court. Learned counsel for the petitioner could not show anything in the aforesaid judgment i.e., Narata Singh (Supra), whereby the Apex Court considered the vires of Rule 3.17 (ii) itself and has decided the issue. Since it was already struck down by the High Court and that judgment attained finality after dismissal of Special Leave Petition, and for the employees of State of Punjab, that Rule becomes non est. In that view of the matter, the natural consequence thereof will have to be applied to the concerned persons only. It is not so, so far as this Court is concerned.
17. In the above case, an employee of Punjab State Electricity Board was denied benefit of service rendered by him in work charge in the Punjab State Government. He challenged the same on the ground that Punjab State Electricity Board has decided vide memo dated 25.11.1985 to adopt letter dated 20.5.1982 of Department of Finance, Government of Punjab, in order to allocate liability of pension in respect of temporary service rendered under the State Government. Looking to these facts, the Apex Court noticed that the Board had already resolved to give due credit to the temporary service rendered in the State Government for the purpose of computing qualifying service for pension and the provision which excluded service rendered in work charge as qualifying serve having already been struck down by a Full Bench of High Court, there was no provision existing in Punjab Civil Services Rules authorising the Board or the State Government, not to give due credit to the service rendered in work charge. Hence denial otherwise was bad. It is in these circumstances, the Division Bench decision of Punjab High Court was upheld.
18. Despite repeated query Mr. Ranjeet Saxena, learned counsel for the petitioner could not point out any finding of Hon'ble Supreme Court to go into validity of Rule 3.17 (ii) of Punjab Civil Services Rules itself and deciding thereof.
19. The next decision is Dakshin Haryana Bijli Vitran Nigam v. Bachan Singh reported in (2009) 14 SCC 793. Therein also, I find that the Court referred Full Bench of Punjab and Haryana High Court in Kesar Chand (Supra) since this case had also cropped up from the State of Haryana. Following Full Bench decision, the High Court had granted relief to Sri Bachan Singh whereagainst Dakshin Haryana Bijli Vitran Nigam brought the matter to Apex Court. In paras 15 and 16 of the judgment, the Court referred to discussion made by High Court in Kesar Chand (Supra) while considering validity of Rule 3.17(ii). Therefrom it is evident that after considering the pleadings available in Kesar Chand (supra), the High Court found that the distinction brought before them by the State Government could not show any intelligible differentia.
20. In the present case, there is no pleadings. No facts have been pleaded to show that distinction in work charge establishment and regular one is artificial or unintelligible. There is not even a whisper in the entire writ petition to show that work charge establishment and service rendered therein should be held at par with the regular establishment and the service rendered therein. On the contrary, this Court is justified in taking judicial cognizance of the fact that distinction between work charge establishment and its employee as also that of regular establishment and its employee, as applicable in the State of U.P., has been noticed by a Full Bench of this Court in Pawan Kumar Yadav (supra) and therefrom, it cannot be said that distinction or differentia is unintelligible or arbitrary or artificial.
21. Sri Ranjeet Saxena then submitted that Article 370, CSR has already been struck down by a learned Single Judge of Nainital High Court in Rameshwar Vs. State of Uttarakhand and others, Writ Petition No. 401 of 2005 (S/S) and other connected matters, decided on 16.09.2010. It is a judgment of Hon'ble Tarun Agarwala, J. (while his Lordship was in High Court of Uttarakhand, at Nainital), wherein, it is true that validity of Article 370(2) CSR was challenged. However, in para 20 of the Judgment, Court declined to go into the question of vires of the aforesaid provision, as is evident from the following:
"20. In view of the aforesaid, this court is of the opinion that it is not necessary to go into the question as to whether sub-clause (ii) of Article 370 of the C.S.R. is ultra vires Article 14 of the Constitution of India. All the aforesaid writ petitions are allowed. The impugned orders are quashed. The petitioners, having retired, after regularisation, from a substantive and permanent post, are eligible for pension and other post retiral benefits. The respondents are directed to release the pension and other post retiral dues within three months from the date of production of the certified copy of this order, failing which the respondents would be liable to pay interest @ 8 % per annum. It is further held that those employees, who have not retired as yet, but, have been regularised and are working on a substantive and permanent post would also be eligible for pension and other post retiral dues upon their superannuation from the service." (emphasis added)
22. The aforesaid decision, therefore, does not help the petitioner in his submission that Article 370 has already been struck down by the High Court of Uttarakhand (at Nainital).
23. Next he drew my attention to a Division Bench decision of this Court in Union of India and others vs. Shyam Lal Shukla (Writ Petition No. 60272 of 2009, decided on 23.12.2011). The matter had arisen from a judgment of Central Administrative Tribunal in Original Application No. 1626 of 2005, wherein the Tribunal held that the service rendered by an employee, continuous and uninterrupted, whether it was rendered in work charge or otherwise, would qualify for pension and for the said purpose, reliance was placed on Article 154A of Post and Telegraph Financial Hand Book Volume-I. This Court read Rule 154A to mean as under:
"14. In our view the said Rule clearly spells out its essential purpose, to give pensionary benefit to certain class of employees as 'regular employee', notwithstanding the fact that no formal order of regularization was passed."
24. By no stretch of imagination, it can be said that this decision lends any support to the petitioner in his contention that Article 370 is ultra vires.
25. The next decision is Chhedi Ram Maurya Vs. U.P. Basic Education Board and others 2008(4)AWC 3546, but there also I find nothing which may help the petitioner in any manner. On the contrary, I find a reference to the Apex Court decision in Prabhu Narain and others vs. State of U.P. and others 2004(13) SCC 662 whereby the Court upheld non-grant of retiral benefit to work charge employees. It also relied on its earlier decision in Raj Narain Prasad Vs. State of U.P. , 1998 SCC (L & S)1697.
26. One more decision has been placed on record as Annexure RA-3 to the rejoinder affidavit which is a Full Bench Judgment of High Court of Uttarakhand at Nainital in Madan Mohan Chaudhary Vs. State of Uttaranchal and others 2011(1) U.D.6 (Writ Petition No. 284/04 (S/B) decided on 6.1.2011). There the question up for consideration before the Full Bench was :
"Whether, the Government Order dated 1st July 1989, referred in the judgment of the Division Bench (in Special Appeal No. 225 of 2008, State of U.P. and another Vs. Pitamber Dutt Sanwal, arisen out of Writ Petition No. 843 (S/S) of 2003) applies to work-charge employees, or not?"
27. This decision rather goes against petitioner. Referring to Articles 361, 368 and 370 of CSR, the Court, in paras 5, 8 and 11, observed:
"A perusal of Article 361 read with Article 368 and 370 of the CSR clearly indicates that the service does not qualify unless the officer holds a substantive office on a permanent establishment and that the period of service in a workcharged establishment will not qualify service for the purpose of pension. The underlying reason is that a workcharged employee is not holding a substantive post on a permanent establishment." (Para-5) " The genesis of receiving a pension is indicated in Article 361 of the CSR. One such condition is that the employment must be substantive and permanent which is reiterated in Article 368 of the CSR. Article 370(ii) excludes periods of service spent in a workcharged establishment for the purpose of calculating the qualifying service.
..........A workcharged employee is not working on a substantive post and is specifically excluded under clause (ii) of Article 370 of the CSR. Consequently, the period rendered in a workcharged establishment cannot be included for claiming pension. Sub Rule (8) of Rule 3 of the U.P. Retirement Benefit Rules, 1961, supports this view. Said sub Rule defines qualifying service with the note that if a person serves in a pensionable job, then in work-charge establishment, and again there after in regular service, such interruption would not be disqualification. Similar provision is contained in Article 422 of the CSR." (Para-8) "Para 669 of Financial Hand Book, Volume VI, provides that members of workcharged establishment are not entitled to pension except the conditions mentioned therein like in the case of getting injured in the accidents etc." (Para-11) (emphasis added)
28. Lastly a recent decision of Division Bench of this Court at Lucknow in State of U.P. Vs. Prem Chandra and others [Special Appeal No. 264 of 2013 (Defective) decided on 13.05.2013] has been cited to contend that therein this Court has read down Article 370 of CSR so as to grant benefit of service rendered in workcharge establishment for the purpose of pension. I find that the Division Bench has dismissed the appeal holding that in fact, learned Single Judge has granted parity with similarly situated employee and Article 370 has to be read down in the light of judgment of Apex Court in Punjab Electricity Board Vs. Narata Singh (supra). I asked learned counsel for the petitioner to show as to in what manner, he can claim that Article 370 CSR can be read down, particularly when, the finding recorded by learned Single Judge in the instant case, vis a vis Article 370, has been confirmed and while remanding the matter, the Court specifically said that only the question of vires shall be considered by learned Single Judge and nothing more than that. Moreover the Apex Court in Narata Singh (supra) itself has not considered the question of validity of any provision. As I have already discussed above, in my view, in the present case, no benefit can be extended to the petitioner unless the question whether Article 370 CSR is valid or not, is decided in his favour.
29. Unless pleaded and proved otherwise, as it is generally known, a work charge establishment and its employees stand on a different footing than the regular establishment and its employees. The rigour of selection and appointment governed by Rules in respect of employees of regular establishment is not applicable to work charge establishment and its employees. The degree of responsibility, liability, etc. is much different in the two establishments.
30. Different nature of work charge establishment has been noticed by the Apex Court in State of Himachal Pradesh v. Suresh Kumar Verma AIR 1996 SC 1565 : 1996 (7) SCC 562 and the Court said that work charge employees perform duties of transitory and urgent nature so long as the work exists (in a particular project) and merely because a work charge was engaged in one or another project, does not make his service regular without there being a permanent post.
31. In Ajmer Vidyut Vitran Nigam Limited Vs. Navin Kumar Saini,JT 2010 (11) SC 427 SC, the employees in work charge claimed salary at par with the employees working in regular establishment. Negativing the contention, the Court said:
"......Further workmen were admittedly engaged as helpers in work charge establishment and in that view of the matter for applying the principle of equal pay for equal work, mere the volume of work, shall not be relevant, there being qualitative difference as regards the liability and responsibility. We are of the opinion that workmen were not entitled for the scale of pay of the junior clerk even on notional basis from the date of their engagement as helpers." (emphasis added)
32. I may also mention at this stage that though this Court has no benefit of having entire set of Rules i.e., Punjab Civil Service Rules applicable to the employees of Punjab but some provisions thereof have been quoted in Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi, (2008) 2 SCC 310 and therefrom, I find that Rule 3.17 deny temporary and officiating service rendered in non-pensionable establishment as qualifying service for pension while Rule 3.17A (g) permits the services rendered by an employee of work charge towards retirement benefits subject to certain conditions. Paras 9 and 10 of the judgment referring to the aforesaid provisions read as under:
"9. Rule 3.17 of the Rules provides that in the case of an officer retiring on or after 5th January, 1961, if he was holding substantively a permanent post on the date of his retirement, his temporary or officiating service under the State Government, followed without interruption by confirmation in the same or another post, shall count in full as qualifying service except in respect of the pension period of temporary or officiating service in non- pensionable establishment.
10. Rule 3.17-A(g) of the Rules inter alia provides that the entire service rendered by an employee as work-charged shall be reckoned towards retirement benefits provided:
(i) such service is followed by regular employment;
(ii) there is no interruption in the two or more spells of service or the interruptions fall within condonable limits; and
(iii) such service is a whole time employment and not part-time or portion of day."
33. In the above judgment of Uttar Haryana Bijli Vitran Nigam (Supra), the issue was regarding family pension. Having referred to relevant provisions, in paras 12, 13 and 14, the Court said as under:
"12. Para 11 of the said Scheme excludes the applicability of the scheme inter alia in relation to the work-charge staff. We may notice that in Kanta Devi (supra) the husband of the appellant therein was in temporary service. Construing Para 4(i) as also Note 1 appended thereto, the High Court held that as the husband of Kanta Devi completed more than one year in temporary service, she was entitled to family pension.
"13. We have noticed hereinbefore that Shri Krishan was a member of the Contributory Provident Fund. It has furthermore been noticed by us that even before the High Court the said position stood conceded but she opted for the Pension Scheme only because thereby she considered herself to be entitled to a higher amount.
14. The scheme relating to grant of Family Pension was made under a statute. A person would be entitled to the benefit thereof subject to the statutory interdicts. From a bare perusal of the provisions contained in the Punjab Civil Services Rules, Volume 2 vis-`-vis the Family Pension Scheme, it would be evident that the respondent was not entitled to the grant of any family pension. Husband of the respondent was a work-charge employee. His services had never been regularized. It may be unfortunate that he had worked for 11 years. He expired before he could get the benefit of the regularization scheme but sentiments and sympathy alone cannot be a ground for taking a view different from what is permissible in law. [See Maruti Udyod Ltd. v. Ram Lal and Others, (2005) 2 SCC 638, State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9) SCALE 549, Regional Manager, SBI v. Mahatma Mishra, 2006 (11) SCALE 258, State of Karnataka v. Ameerbi & Ors. 2006 (13) SCALE 319 and State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. [2007 (12) SCALE 72] The statutory provisions, as noticed hereinbefore, debar grant of family pension in favour of the family members as the deceased employee if was a work-charge employee and not a permanent employee or temporary employee. The period during which an employee worked as a work-charge employee could be taken into consideration only when his services are regularized and he becomes permanent and not otherwise.
Furthermore, there exists a distinction between a pensionable and non- pensionable establishment. Shri Krishan being a member of a non- pensionable establishment, Family Pension was not admissible. It is not a case where an employee had been given an option to opt for one or the other schemes. Once a person had opted for non-pensionable scheme, the question of his being entitled to pension or for that matter his family members becoming entitled to family pension did not and could not arise. The High Court only followed Kanta Devi (supra) without noticing the distinctive features thereof. As it is not necessary, we have not gone into the question as to whether Kanta Devi (supra) was correctly decided. Apart from the fact that the fact therein was different, evidently the questions which have been raised before us were not raised therein. The High Court, therefore, committed a serious error in applying Kanta Devi (supra) to the fact of the present case."
34. It is thus evident that there is no inherent defect in making a distinction between the service rendered in pensionable and non-pensionable establishment. In any case, pensionary benefits are applicable as per the Rules or Statute. It is no doubt true that if in a particular facts and circumstances a provision is found hit by Articles 14 or 16 of Constitution due to lack of intelligible differentia or artificial classification or otherwise arbitrary, such Rules would be bad and ultra vires, otherwise the same have to be impleaded as they are.
35. I may also notice at this stage that obstruction in the way of petitioner to claim benefit of service rendered in work charge establishment, as qualifying service, for the purpose of pension cannot be done away merely by challenge to Article 370 CSR for the reason that the provisions contained in CSR are mainly pre-Constitution law (subject to amendment(s) made subsequently) and has continued by virtue of Articles 313 and 372 of the Constitution. However, in the State of U.P., there is another set of rules namely, Uttar Praddesh Retirement Benefits Rules, 1961 (hereinafter referred to as "1961 Rules"). Sub-rule (2) of Rule 2 provides that the provisions of CSR shall continue to apply to the officers governed by Rules 1961 except in so far as they are inconsistent with any of the provisions of Rules 1961. The term 'officer' by itself may create some confusion but that has been removed by the rule making authority by defining the term 'officer' in Rule 3(6) of Rules 1961, which reads as under:
(6) "Officer" means a Government Servant (whether belonging to superior or inferior service) who holds a lien on a permanent pensionable post under the Government or would have held a lien on such a post had his lien not been suspended."
36. Rules 1961 then also provide for qualifying service. It is defined in Rule 3(8) and it reads as under:
(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" (emphasis added)
37. After 1961 in respect of pension, qualifying service has to be seen in the light of Rule 3(8) of Rules 1961 and since this Rule ignores the service rendered in work charge establishment to qualify for pension, in absence of any challenge to the aforesaid Rule, the petitioner even otherwise, cannot get any benefit.
38. In view of the above discussion, I find no substance in the contention that Rule 370 CSR is ultra vires. Since in view of the remand order of Division Bench, scope of adjudication was restricted only to the extent of validity of Article 370, CSR. I have not permitted the counsel for petitioner to address on any other aspect namely, as to whether regularisation of petitioner made on 08.08.2005 can be said to be a fresh recruitment or appointment subsequent to 01.04.2005 or it contemplates an existing appointment so as not to attract the new policy of State Government, whereby it has discontinued scheme of pension.
(II) Writ petition No. - 42058 of 2009
39. In this writ petition, Mr. Syed Fahim Ahmad, learned counsel for the petitioner- Nisar Ahmad and 7 others, contended that even if challenge to Article 370 fails, still that would make no difference inasmuch as, new scheme, discontinuing pension, is applicable to employee(s) on and after 01.04.2005, but the petitioner has not been appointed for the first time after the aforesaid date and he, in fact, has been regularised on 01.01.2006. The regularisation is permissible only if a person is already in service in the Department, and thus he is not a new appointee, therefore, it cannot be said that he is appointed on and after 01.04.2005, so as not to get benefit of pension scheme, which was in existence, when the petitioner was already in service, though in a different capacity, namely, a muster roll employee.
40. The aforesaid argument may have some substance but for the purpose of ultimate relief, sought by the petitioner in this writ petition, it is not in dispute that services rendered by the petitioners prior to 01.01.2006 or any other date subsequent to 01.04.2005 was in work charge. In other words, till the petitioners were regularised, they all were serving as muster roll employees in work charge and that being so, the work charge service, being not computable as qualifying service, for the purpose of pension, the petitioners did not qualify for pension, having not rendered ten years of service, and, therefore, no useful purpose would be served. The contention of Sri Fahim Ahmad that these petitioners cannot be treated to be appointees after 01.04.2005, so as to attract the new provision, whereby, the earlier pension scheme has been discontinued, is only academic so far as the ultimate relief to the petitioner is concerned. It is well established that this Court does not answer purely academic questions.
41. Though in the prayer, validity of Article 361 CSR and Rule 3(8) proviso (ii) of UP Retirement Benefit Rules 1961 has also been assailed by seeking a writ of certiorari for quashing the same, but neither in the writ petition there is any factual averment or ground to show as to in what manner these provisions are ultra vires or bad, nor despite repeated query, learned counsel for the petitioners could advance any argument whatsoever in this regard. In fact, he did not press his case at all so far as Article 361 of CSR and Rule 3(8) proviso (ii) of Retirement Benefit Rules 1961 are concerned.
(III) Writ Petition No. A-25757 of 2009
42. Learned counsel for the petitioner Ram Lakhan has adopted arguments of Sri Ranjit Saxena and Sri Fahim Ahmad, learned counsel appearing in the first and second writ petition.
43. Admittedly in this writ petition, there is only a prayer of mandamus for directing respondents to give pension and gratuity to petitioner and there is no challenge to validity of any provision. In this writ petition also the petitioner has been working in work charge establishment and under Article 370(ii), CSR, such service does not qualify for grant of pension.
44. In view of above discussion, all the three writ petitions fail and are hereby dismissed.
45. No order as to costs.
Order Date :-31.07.2013 Akn.