Allahabad High Court
Awadhesh Kumar Srivastava vs State Of U.P. And 4 Others on 3 July, 2023
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:130367 AFR Reserved on 20.04.2023 Delivered on 03.07.2023 Case :- WRIT - A No. - 746 of 2023 Petitioner :- Awadhesh Kumar Srivastava Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pankaj Kumar Srivastava,Astitva Srivastava Counsel for Respondent :- C.S.C. Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the petitioner and Sri Vikram Bahadur Yadav, learned Standing Counsel for the respondents.
2. The petitioner by means of the present writ petition has assailed the order dated 31.05.2022 passed by the respondent no.5-Executive Engineer, Investigation & Planning (Water Resources), Division Mirzapur (Fatehi Irrigation Colony), Mirzapur to the extent the benefit of pension to the petitioner has been converted into new pension and further prayed for a writ of mandamus directing the respondents to include the service rendered by him as daily-wager and in work-charged establishment with regular service and grant benefit of Old Pension Scheme to the petitioner.
3. The brief facts of the case are that the petitioner was initially engaged as a daily wager on the post of Gaze Reader on 01.05.1989. Due to the promotion of employees, some posts fell vacant. The Superintending Engineer issued a letter dated 24.07.1997, addressed to the Executive Engineer, forwarding the names of the daily wage employees who have completed 240 days in service and were found eligible by the Selection Committee for being appointed on said vacant posts. The name of the petitioner appeared at Sl. No.1 in the list enclosed with the said letter. In compliance whereof, the Executive Engineer issued an appointment letter dated 25.07.1997 to the petitioner appointing him as a work-charge employee on the post of Gaze Reader. Later on, the service of the petitioner was regularized on the post of Gaze Reader by the order dated 29.09.2011. The petitioner received a letter dated 31.05.2022 from the office of respondent no.5 informing him that he is retiring on 30.06.2022 and papers relating to the benefit of the New Pension Scheme in respect of the petitioner were forwarded to the concerned department.
4. The petitioner being aggrieved by the said letter, has preferred the present writ petition praying that the services rendered by him as a daily-wager and work-charged employee be counted in his regular service for pension.
5. A counter affidavit has been filed by the respondents stating that the petitioner was engaged as a daily wager due to exigency. The petitioner was engaged as Gaze Reader by the order dated 25.07.1997 in the work charge establishment. The services of the petitioner was regularised by the order dated 15.07.2011.
6. The respondents further pleaded that the State of U.P. introduced the New Contributory Pension Scheme w.e.f. 01.04.2005 by the Government Order No.G-33-379/X-2005-301(9) 2003 dated 28.03.2005. The said Scheme as per the Government Order dated 28.03.2005 has been mandatorily made applicable to all new recruits to the service of the State Government and of all State controlled autonomous institutions and State aided private educational institutions.
7. It is further pleaded that by means of another Notification dated 07.04.2005, the Uttar Pradesh Retirement Benefit (Amendment) Rules, 2005 was notified, whereby sub-clause (3) was added to Rule (2) of the Uttar Pradesh Retirement Benefit Rules, 1961 (hereinafter referred to as 'Rules, 1961'), which provides that nothing in the said Rules would apply to the persons entering service on or after 01.04.2005. On 07.04.2005, State Government issued another Notification notifying the General Provident Fund (U.P.) (Amendment) Rules, 2005. The State Government thereafter on 14.08.2008 issued an office order notifying the New Pension Scheme which applies to the persons joining service on or after 01.04.2005.
8. Further case of the respondents is that since the service of the petitioner was regularized in the year 2011, therefore, he entered into the service after 01.04.2005, and as such, the provisions of Rules, 1961 do not apply to the petitioner, hence, he is not covered by Old Pension Scheme. It is further submitted that the petitioner was allotted PRAN No.110052567014 under New Pension Scheme. The contribution of the petitioner as well as the State Government were deposited in the said PRAN number, and after the retirement of the petitioner on 30.06.2022, all admissible benefits have already been paid.
9. Further case of the respondents is that after the judgment of the Apex Court in Prem Singh Vs. State of U.P. and Others (2019) 10 SCC 516, the State of U.P. has promulgated U.P. Act No.1 of 2021 defining 'qualifying service' which means the services rendered on a temporary or permanent post in accordance with the provisions of Service Rules prescribed by the Government for the post. Section 4 of the U.P. Act No.1 of 2021 provides that the provisions of this Act shall have the effect, notwithstanding anything inconsistent therewith contained in any other law for the time in force in any instrument other than this Act. Therefore, the 'qualifying service' has to be determined in accordance with the provisions of Section 2 of Act No.1 of 2021 and not in accordance with previous judgements.
10. Learned counsel for the petitioner has contended that the service rendered by the petitioner as a daily wager and under work-charged establishment cannot be excluded from computing qualifying service for grant of the Old Pension Scheme. It is contended that the petitioner is entitled to the benefit of the judgement of the Apex Court in the case of Prem Singh (supra) and the right of the petitioner for adding the services rendered by him as a daily wager and in the work-charged establishment cannot be negated on the strength of the amendment. It is submitted that Section 2 of the U.P. Act No.1 of 2021 defining 'qualifying service' arbitrarily excludes from the term 'qualifying service' the service rendered as a daily wager or under work-charged establishment by an employee before regularization.
11. Learned counsel for the petitioner further contends that it is evident from Notification No.G-3-379/X-2005-301(9)-2003, dated 28.05.2005 that the New Pension Scheme as introduced by the State Government shall apply to the new entrants to the service of the State Government and of all State controlled autonomous institutions and State aided private educational institutions. It is submitted that plain reading of the sub-rule (3) of Rule 2 introduced by the Uttar Pradesh Retirement Benefits (Amendment) Rules, 2005 in the Uttar Pradesh Retirement Benefits Rules, 1961 implies that the New Pension Scheme shall apply to the employees entering in services on or after April 1, 2005, in connection with the affairs of the state borne on pensionable establishment whether temporary or permanent.
12. Accordingly, it is submitted that once the petitioner is entitled to the services rendered by him in the work-charged establishment along with regular service, it can by no stretch of imagination be said that the petitioner is the new entrant in the services of the State Government as the petitioner entered into the service of the State Government on the date of engagement as daily-wager on the post of Gaze Reader and continued thereafter as Gaze reader till his retirement. Thus, it is contended that the New Pension Scheme as introduced by the State Government by Notification dated 28.03.2005 does not apply to the petitioner. Accordingly, it is submitted that the petitioner is entitled to the benefit of the Old Pension Scheme
13. Per contra, learned Standing Counsel for the respondents would contend that after the judgment of the Apex Court in the case of Prem Singh (supra), the State Government has promulgated Uttar Pradesh Qualifying Service For Pension Validation Act, 2021 (U.P. Act No.1 of 2021) defining 'qualifying service'. He submits that according to Section 2 of the U.P. Act No.1 of 2021, the 'qualifying service' means the service 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. He further submits that the U.P. Act No.1 of 2021 has come into force with effect from 1st April 1961 which is evident from Section 3 of U.P. Act No.1 of 2021, therefore, the benefit of the judgement of the Apex Court in the case of Prem Singh (supra) is not available to the petitioner, consequently, the service rendered by the petitioner as daily-wager and in work charged establishment cannot be added in his regular service for determining 'qualifying service' for pension.
14. He further contends that the State of U.P. has issued a Notification dated 28.03.2005 introducing a New Contribution Pension System in place of the existing Pension Scheme for new entrants to the service of the State Government and of all State controlled autonomous institutions and State aided private educational institutions, and accordingly, it amended Rules 1961 by U.P. Retirement Benefit Rules 2005 by inserting sub-rule (3) in Rule 2 of Rule, 1961 which states that Rule 1961 shall not apply to the employees entering into service on or after 1st April, 2005 in connection with the affairs of the state borne on pensionable establishment, whether temporary or permanent.
15. On the strength of the said amendment in Rule, 1961, he submits that as admittedly the service of the petitioner has been regularized by order dated 29.09.2011, therefore, his entry into the service of the State Government is after April 1, 2005, and therefore, he shall be governed by New Pension Scheme as introduced by the State Government by Notification dated 28.03.2005 and therefore, the petitioner has rightly been placed under New Pension Scheme.
16. Learned Standing Counsel placed reliance upon the three judgements of this Court in Special Appeal No.398 of 2021 (Shri Chandra Singh Vs. State of U.P. and others), decided on 22.04.2022, Special Appeal Defective No.17 of 2023 (State of U.P. through Principal Secretary, Department of Irrigation & Others Vs. Sadananad), decided on 16.01.2023 & Special Appeal No.80 of 2019 (U.P. Avas Evam Vikas Parishad Lucknow and others Vs. Syed Jalal Haider Rizvi and others), decided on 24.01.2023.
17. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record.
18. The undisputed facts as emerges from the record are that the petitioner was engaged as a daily wager on the post of Gaze Reader on 01.05.1989. Subsequently, the post in the department fell vacant on account of the promotion of the employees, the Superintending Engineer by a letter dated 24.07.1997 forwarded the names of the daily wage employees screened by the Selection Committee, who have completed more than 240 days as daily-wager, for being appointed as work-charged employee. In the said list, the name of the petitioner appeared at Sl. No.1. Pursuant to the letter dated 24.07.1997, Executive Engineer issued an appointment letter to the petitioner on 25.07.1997 as Gaze Reader in the pay scale of Rs.775-12-955-द0 रो0-14-1025.
19. Subsequently, the service of the petitioner was regularized by order of the Executive Engineer dated 29.09.2011 on the post of Gaze Reder. The petitioner asserts that he has been engaged as Gaze Reader on 01.05.1989 and continued to work in the office of respondent No. 5 till his retirement as Gaze Reader, therefore, his past service as a daily-wager and under work-charged establishment are liable to be counted for pension.
20. Now, in light of the aforesaid facts, this Court proceeds to analyse the arguments advanced by the respective counsels.
21. The first question that arises for consideration before this Court is whether the State can negate or override the judgement of the Apex Court in the case of Prem Singh (supra) and deny the benefit of service spent by an employee as a daily wager and under work-charged establishment in not adding the said period with regular service for determining the qualifying service for pension by promulgating U.P. Act No.1 of 2021.
22. To appreciate the said question, it would be apposite to consider the background in which the Apex Court has given the judgment in the case of Prem Singh (supra). The issue before the Apex Court in the said case was whether Rule 3 (8) of the Rules,1961 and Regulation 370 of the Civil Services Regulation of Uttar Pradesh be declared ultra virus in view of the fact that the Apex Court in the case of Dakshin Haryana Bijli Vitran Nigam Vs. Bachan Singh, (2009) 14 SCC 793 has upheld the Punjab and Haryana High Court's judgement in the case of Kesar Chand Vs. State of Punjab, AIR 1988 P & H 265 declaring pari materia provision enacted in the State of Punjab which excluded the computation of the period of work charge services from the qualifying service for pension ultra-vires.
23. The Apex Court in paragraph no.16 in the case of Prem Singh (supra) noted paragraph 19 of Kesar Chand's judgement of the Punjab and Haryana High Court wherein the Punjab and Haryana High Court detailed the reasons in concluding the action of the State Government arbitrary in excluding the service rendered by an employee on the work-charged establishment from the regular service for pension. The Punjab and Haryana High Court held that "Equal protection of laws must mean the protection of equal laws for all persons similarly situated. Article 14 strikes at arbitrariness because the provision which is arbitrary involves negation of equality. Even the temporary or officiating service under the State Government has to be reckoned for determining the qualifying service. It looks to be illogical that the period of service spent by an employee in a work-charged establishment before his regularization has not been taken into consideration for determining his qualifying service. The classification which is sought to be made among Government servants who are eligible for pension and those who started as work-charged employees and their services regularize subsequently, and the others is not based on any intelligible criteria and, therefore, is not sustainable at law. After the services of a work-charged employee have been regularized, he is a public servant like any other servant. To deprive him of the pension is not only unjust and inequitable but is hit by the vice of arbitrariness, and for these reasons, the provisions of sub-rule (ii) of Rule 3.17 of the Rules have to be struck down being violative of Article 14 of the Constitution."
24. The law enunciated by the Punjab and Haryana High Court in the case of Keasr Chand (supra) was approved by the Apex Court in the case of Bachan Singh (supra) and also in the case of Punjab SEB Vs. Narata Singh case (SCC pg.530 paragraph no.18 of the judgement of Prem Singh).
25. In the context of the present case, it would be apt to reproduce paragraph no.20 of the judgement of the Apex Court in the case of Prem Singh (supra), which reads as under:-
"20. This Court in Narata Singh's case ( SCC pp. 324-25 & 328, paras 25-27 & 40) relied upon Kesar Chand (supra) and has observed:-
"25. In Kesar Chand v. State of Punjab, the Full Bench held that Rule 3.17(ii) of the Punjab Civil Services Rules was violative of Article 14 of the Constitution of India. The Full Bench decision was challenged before this Court by filing a special leave petition which was dismissed. Thus, the ratio laid down by the Full Bench judgment that any rule which excludes the counting of work-charged service of an employee whose services have been regularised subsequently, must be held to be bad in law was not disturbed by this Court. The distinction made between an employee who was in temporary or officiating service and who was in work-charged service as mentioned in Rule 3.17(ii) of the Punjab Civil Services Rules disappeared when the said Rule was struck down by the Full Bench. The effect was that an employee holding substantively a permanent post on the date of his retirement was entitled to count in full as qualifying service the periods of service in work-charged estab- lishments.
26. In view of this settled position, there is no manner of doubt that the work-charged service rendered by Respondent 1 under the Government of Punjab was qualified for grant of pension under the rules of the Government of Punjab and therefore, the Board was not correct in rejecting the claim of the respondent for inclusion of period of work-charged service rendered by him with the State Government for grant of pension, on the ground that service rendered by him in the work-charged capacity outside PSEB and in the Departments of the State Government was a non-pensionable service.
27. The apprehension that acceptance of the case of Respondent 1 would result into conferring a status on them as that of employees of the State of Punjab has no factual basis. It is true that the State Government has power to frame rules governing services of its employees under Article 309 of the Constitution whereas the Board has power to prescribe conditions of service by framing regulations under Section 79 (c) of the Electricity (Supply) Act, 1948. However, governance of a particular institution and issuance of instructions to fill up the gap in the fields where statutory provisions do not operate, is recognised as a valid mode of administration in modern times.
40. So far as this argument is concerned, it is true that the Division Bench of the High Court has expressed the above opinion in the impugned judgment. However, the reference to Rule 3.17(ii) of the Punjab Civil Services Rules as well as the Full Bench decision of the Punjab and Haryana High Court in Kesar Chand v. State of Punjab (supra) and the speaking order dated 16-11-2005 passed by the Board rejecting the claim of Respondent 1 makes it abundantly clear that the High Court has directed the appellants to count the period of service rendered by Respondent 1 in work-charged capacity with the State Government for determining qualifying service for the purpose of pension. Further, Respondent 1 has been directed to deposit the amount of Employee's Contributory Fund which he had received from the appellants along with interest as per the directions of the Board before the pension is released to him."
26. The Apex Court in paragraph no.29 of the judgement in the case of Prem Singh (supra) noted the submission of the counsel for the State of Uttar Pradesh whereby the distinction between the work-charged employees and regular employees was sought to be made on the ground that the due procedure is not followed in engaging work-charged employees whereas regular employees are appointed as per rules and further work-charge employees do not have that much work pressure and their work is materially and qualitatively different from regular employees. The contention advanced by the State of Uttar Pradesh was repelled by the Apex Court in paragraphs no.30 to 34 in Prem Singh (supra) case.
27. Paragraph nos. 29 to 34 of the judgement is reproduced herein-below:-
"29. The submission has been urged on behalf of the State of Uttar Pradesh to differentiate the case between work-charged employees and regular employees on the ground that due procedure is not followed for appointment of work-charged employees, they do not have that much work pressure, they are unequal and cannot be treated equally, work-charged employees form a totally different class, their work is materially and qualitatively different, there cannot be any clubbing of the services of the work-charged employees with the regular service and vice versa, if a work-charged employee is treated as in the regular service it will dilute the basic concept of giving incentive and reward to a permanent and responsible regular employee.
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.........
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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."
28. The Apex Court read down the provisions of Rule 3(8) of Rule 1961 in the case of Prem Singh (supra). Consequently, it struck down the provisions contained in Regulation 370 of the Civil Service Regulations and Paragraph 669 of the Financial Hand Book on two counts; the action of the State in excluding the service spent by an employee in the work-charged establishment before his regularization for determining his qualifying service is not based on any intelligible criteria because he becomes a public servant after his service is regularized, therefore, to deprive him of pension is not only unjust and inequitable but is hit by Article 14 of the Constitution of India because such a provision involves negation of equality; secondly, the Apex Court noted in paragraph nos. 30 & 31 of the judgement that the work-charged employees were allowed to continue for years, and the State had misused the very concept of work-charged establishment on exploitative terms by taking work which in fact was regular and perennial in nature from such employee. It further noted that the State had acted arbitrarily and employed unfair labour practice in taking work of permanent and perpetual nature from these work-charged employees for years on low wages.
29. It also observed that the State has been benefited by the service rendered by the work-charged employee on low wages, therefore, it would be unjust to deny the inclusion of service rendered as the work-charged employee with regular service for determining the qualifying service for pension.
30. At this point, It would be apt to refer few judgements of the Apex Court laying down the principle that the validating Act has to comply to overrule a judicial decision.
31. In the case of A. Manjula Bhashini & others Vs. Managing Director, Andhra Pradesh Women's Cooperative Finance Corporation Ltd. and Another, (2009) 8 SCC 431, it has been succinctly explained when the legislature can directly overrule, reverse and override the judicial decision. Paragraphs No. 67,68 and 72 of the judgement are reproduced herein below:
67. The distinction between legislative and judicial functions is well known. Within the scope of its legislative competence and subject to other constitutional limitations, the power of the legislature to enact laws is plenary. In exercise of that power, the legislature can enact law prospectively as well retrospectively. The adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of that function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. If the court finds that the particular statute is ultra vires the power of legislature or any provision of the Constitution, then the same can be struck down.
68. It is also well settled that the legislature cannot by bare declaration, without anything more, directly overrule, reverse or override a judicial decision. However it can, in exercise of the plenary powers conferred upon it by Articles 245 and 246 of the Constitution, render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the conditions on which such a decision is based. Such law can also be given retrospective effect with a deeming date or with effect from a particular date. The question whether the legislature possesses the power to enact law apparently affecting pre-existing judgment or amend the existing law which has already been interpreted by the Court in a particular manner, has been considered in several cases.
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72. The Court in referred to the earlier judgments in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, Patel Gordhandas Hargovindas v. Municipal Commr., Ahmedabad, Orient Paper Mills Ltd. v. State of Orissa, Misrilal Jain v. State of Orissa, Tirath Ram Rajindra Nath v. State of U.P., Govt. of A.P. v. Hindustan Machine Tools Ltd, I.N. Saksena v. State of M.P. and some other judgments and held: (Indian Aluminium case, SCC pp. 638-39) "The validity of the validating Act is to be judged by the following tests: (i) whether the legislature enacting the validating Act has competence over the subject-matter; (ii) whether by validation, the legislature has removed the defect which the court had found in the previous law; (iii) whether the validating law is consistent with the provisions of Chapter III of the Constitution. If these tests are satisfied, the Act can validate the past transactions which were declared by the court to be unconstitutional. The legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the judiciary to decide it with reference to the law in force. The legislature also is incompetent to overrule the decision of a court without properly removing the base on which the judgment is founded.
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.
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 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. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date...
32. In State of Gujarat & Another Vs. Raman Lal Keshav Lal Soni & Other, (1983) 2 SCC 33, the Apex Court declared the Gujarat Panchayats (Third Amendment) Act, 1978 ultra vires, which was enacted to nullify the basis of the decision of the High Court, whereby the High Court has granted certain relief to the petitioners holding that the members of panchayat service belonging to the lower cadre were Government servants and issued consequential directions for the equation of posts, revision of pay scale and payment of salaries. Paragraph no.52 of the judgement is reproduced herein-below:
" 52. The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in BS. Yadav. v. State of Haryana. Chandrachud, C.J., speaking for the Court held:
"Since the Governor exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case."
Today's equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tempered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Articles 311 and 14 and is arbitrary and unreasonable. We have considered the question whether any provision of the Gujarat Panchayats (Third Amendment) Act, 1978 might be salvaged. We are afraid that the provisions are so intertwined with one another that it is well-nigh impossible to consider any life saving surgery. The whole of the Third Amendment Act must go. In the result the Writ Petition Nos. 4266-4270 of 1978 are allowed with costs quantified at Rs. 15,000. The directions given by the High Court, which we have confirmed, should be complied with before June 30, 1983. In the meanwhile, the employees of the Panchayats covered by the appeal and the writ petitions will receive a sum of Rs. 200 per month over and above the emoluments they were receiving before February 1, 1978. This order will be effective from February 1, 1983. The interim order made on February 20, 1978 will be effective upto January 31, 1983. The amounts paid are to be adjusted later."
33. The Apex Court in the Case of Chairman, Railway Board and Others Vs. C.R. Rangadhamaiah & Others, (1997) 6 SCC 623, declared the notification issued by the Railway Board revising the pension of its employees with retrospective effect on the ground that by an amendment, the vested right or accrued right cannot be taken away. Para-24 of the judgement is reproduced herein-below:-
"24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon, B.S. Yadav and Raman Lal Keshav Lal Soni."
34. The following principles have been postulated in the aforesaid case by the Apex Court which the validating Act has to satisfy to validate the past transaction declared by the Court to be unconstitutional:-
(i) whether the legislature enacting the Validating Acts has competence over the subject matter;
(ii) whether by validation, the legislature has removed the defect which the Court had found in previous law;
(iii) whether the validating law is in consonance with Chapter III of the Constitution.
35. This Court now proceeds to analyse in the light of the principles laid down by the Apex Court whether the U.P. Act No.1 of 2021 satisfies the parameters laid down by the Apex Court in the aforesaid case to negate the benefit of the judgement of Prem Singh (supra) to the petitioner.
36. As regards the competence of the State Government to legislate U.P. Act No.1 of 2021 is concerned, it is pertinent to note that the State Government has the competence to legislate U.P. Act No.1 of 2021.
37. But, whether the U.P. Act No.1 of 2021 also satisfies the other two conditions to deny the benefit of the judgement of Prem Singh (supra) to the petitioner is a crucial issue in the present case. This Court concludes for the reasons recorded below that the U.P. Act No.1 of 2021 does not satisfy the other two tests, namely, it does not eliminate the vice pointed out by the Apex Court in the case of Prem Singh (supra) nor the said Act is in consonance with part-III of the Constitution of India.
38. The Apex Court in the case of Prem Singh (supra) (SCC pg. 540 para 30, 31) has pointed out that the work-charged employees were allowed to continue for years and there was no qualitative difference between them and the regular employees. Further, the concept of work-charged employee has been misused and exploited by the State Government to its advantage, inasmuch as the appointment was not made for a particular project which is the basic concept of the work-charged employee, rather such employees were allowed to work on exploitative terms for the work which was regular and perennial in nature.
39. It further noted that work-charged employees have been allowed to work on low wages for long before regularization, and their services have benefited the State Government. The practice of taking work of permanent and perennial in nature from the employees engaged as daily-wager or under work-charged establishment has been deprecated by the Apex Court in the case of Prem Singh (supra), consequently, it held that it would be unjust to exclude the period rendered by the work-charged employee with regular service to determine the qualifying service for pension. The respondents have not placed any material on record to demonstrate that the U.P. Act No.1 of 2021 wipes out the vice pointed out by the Apex Court in the case of Prem Singh (supra).
40. In this regard, it is pertinent to note that the Coordinate Bench of this Court in a bunch of writ petitions, leading of which is Writ-A No.8968 of 2022, after noticing that the U.P. Act No.1 of 2021 does not remove the vice pointed out by the Apex Court in Prem Singh Case held in para 12 of the judgement as under:-
"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:"
41. Now, the court proceeds to consider whether U.P.Act No.1 of 2021 is in conformity with the Part III of the Constitution of India. The Apex Court in the case of Prem Singh (supra) took note of its judgement in Bachan Singh's case which upheld the judgement of Punjab & Haryana High Court in Kesar Chand's case wherein Punjab & Haryana High Court held that any Rule which excludes the counting of work-charged service of an employee whose services have been regularized subsequently must be held to be bad in law as such distinction is not based on any intelligible criteria.
42. It also noted in para-33 of the judgement noted that it would be discriminatory and irrational in not counting the period of service spent as work charged employee with regular service though the period of such service could be counted where it had been rendered between two temporary appointments in the pensionable establishment or interregnum two periods of temporary and permanent employment. Consequently, it held that there is no rationale in not counting the service of the work-charged period rendered before regularization for determining 'qualifying service' for the purpose of pension. Consequently, it read down Rule 3(8) of Pension Rule, 1961.
43. This Court is of the view that the action of the State in excluding the service rendered by an employee on the work-charged establishment or daily wager from Section 2 of the U.P. Act No.1 of 2021 is hit by Article 14 of the Constitution of India for the reason that the Apex Court has held that the exclusion of service rendered by an employee on the work-charged establishment from the regular service would amount to treating equals as unequal. Further, there is no rationale in excluding the service of an employee as work-charged or daily-wager from regular service for determining the qualifying service for pension whereas the period of service rendered by an employee as temporary or permanent post is liable to be counted for the purpose of qualifying service when the nature of duties performed by a person appointed as daily wager or on work-charged establishment or temporary or permanent post are similar and identical.
44. The other reason to conclude that Section 2 of the U.P.Act No.1 of 2021 is hit by Article 14 of the Constitution of India is that the State cannot by its arbitrary action put the employee working on work charge establishment or daily wager to disadvantage by taking work of perpetual nature from such employee on low wages for years and excluding the period of service rendered by such employee under work charge establishment or as daily-wager from regular service for counting qualifying service for pension when the nature of duties performed by such employees are akin and similar to the nature of duties performed by the employee appointed on a temporary and permanent post in accordance with the provisions of service rules framed by the State Government and their services are liable to be counted for determining qualifying service.
45. It is settled in law that the accrued or vested right cannot be taken away by an amendment. The law on the point that the pension is not a bounty and is earned by the employee by the dint of his long service is no more res Integra. The right of work charge employee or daily wager to include their service rendered under work charge establishment or daily-wager with regular sevice for determining qualifying service for pension has been recognized by the Apex Court in Prem Singh's case, therefore, such a right of an employee cannot be taken away by enacting a law which is hit by Article 14 of the Constitution of India.
46. In such view of the fact, this Court finds that U.P. Act No.1 of 2021 does not qualify the three tests laid down by the Apex Court in the judgements referred above to negate the benefit of the judgement of the Apex Court in Prem Singh's case (supra).
47. A Division Bench of this Court in Special Appeal No.152 of 2021 has affirmed the judgement of the learned Single Judge in Writ-A No.35301 of 2017 whereby the learned Single Judge has allowed the writ petition of respondent Bhanu Pratap directing the State authorities to give him the benefit of Old Pension Scheme. This Court after noticing Section 2 of U.P. Act No.1 of 2021 held as under:-
"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, reveals 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.
Admittedly, the petitioner was appointed on 10.05.1989 as work charge employee at Azamgarh. His services were however regularised on 15.6.2011. The regularisation of service was against the permanent post and it is not that his initial appointment was not in accordance to service Rules.
In light of the aforesaid, period spent in service may be on temporary basis while working as a work charge employee, proceeded with regularisation, benefit of past services cannot be denied.
The impugned order when tested on the anvil of above analysis cannot be faulted with.
In view whereof no indulgence is caused.
Consequently, appeal fails and is dismissed. No costs."
48. The State of U.P. went up in Special Leave Petition registered as Special Leave to Appeal (C) No. (s) 16381 of 2022 against the judgement in Special Appeal No.152 of 2021. The Special Leave Petition was dismissed by the Apex Court by order dated 11.07.2022. The Apex Court granted eight weeks to comply with the order passed by the High Court. The judgement of the Apex court dated 11.07.2022 is reproduced herein-below:-
"In the facts and circumstances of the case, we are not inclined to entertain the present petition.
The special leave petition is, accordingly, dismissed. Pending application (s), if any, shall stand disposed of.
Learned counsel for the petitioners seeks eight weeks' time to comply with the order passed by the High Court and granted as payed for.
It is made clear that no further extension will be granted.
49. This Court dismissed another Special Appeal No.475 of 2020 filed by the State of U.P. challenging the order dated 2nd July 2019 in a writ petition holding that the service rendered by the petitioner as Collection Peon is liable to be counted for pensionary benefits.
50. Relevant extract of the judgement dated 12.07.2021 passed in Special Appeal No.475 of 2020 is reproduced herein-below:-
"We have considered the submissions urged by learned counsel for the appellants and learned counsel for the petitioner/non-appellant.
It is not in dispute that petitioner/non-appellant was engaged as Seasonal Collection Peon on 20th February, 1976. He continued to work with the respondents till his regularisation on 31st July, 2010. Petitioner/non-appellant then retired from service on 31st March, 2012. Since he was regularised in service prior to retirement, he became entitled for the retiral benefits in view of the judgment of this Court in the case of Board of Revenue and others Vs. Prasidh Narain Upadhyay, 2006 (62) ALR 839 decided the same controversy. It was held that once an employee is regularised in service his entire past services would be counted for the determination of necessary benefits. It is irrespective of initial appointment on temporary basis.
Taking into consideration the judgment of this Court in Prasidh Narayan (supra) and relied upon by the learned Single Judge, we find no reason to cause interference in the appeal. More so, the same issue was decided by this Court in the appeal bearing Special Appeal Defective No. 156 of 2021 (State of U.P. and 4 others Vs. Narayan Singh Sharma) dated 19th February, 2021.
In light of the aforesaid, this appeal fails and is dismissed."
51. The State of U.P. again preferred Special Leave Petition numbered Special Leave to Appeal (C) No(s). 9883-9884/ 2022 which was dismissed by the Apex Court on 11.07.2022 by passing the following order:--
"In the facts and circumstances of the case, we are not inclined to entertain the present petitions.
The special leave petitions are, accordingly, dismissed. Pending application (s), if any, shall stand disposed of.
Learned counsel for the petitioners seeks eight weeks' time to comply with the order passed by the High Court and granted as payed for.
It is made clear that no further extension will be granted."
52. In Special Appeal Defective No.564 of 2020, the State Government challenged the order dated 18.09.2019 passed by this Court in Writ-A No.10116 of 2018 whereby the Special Appellate Court affirmed the judgement passed in Writ-A No.10116 of 2018 granting the benefit of pension to the petitioner. The relevant extract of the judgement is reproduced herein-below:-
"A perusal of the facts averred in the counter affidavit, we find that it is an admitted fact that on being appointed a Seasonal Collection Amin, regular pay scale admissible to the post was given to the respondent-petitioner and that was also revised from time to time. The appellants-respondents also deducted the income-tax from the salary of the respondent-petitioner. The grant of regular pay scale itself is sufficient to arrive at a conclusion that the appointment of the Respondent-Petitioner was on a regular basis and as such he is entitled for post retiral benefits."
53. Against the said judgment, State Government preferred Special Leave to Appeal (C) No(s).12588 of 2021 which was dismissed by the Apex Court on 23.08.2021 by passing the following order:-
"Heard learned counsel for the petitioners.
We do not find any ground to interfere with the impugned order, as much as the petitioner was initially appointed in the year 1978 as a Seasonal Collection Amin, and was extended regular pay scale from 1988 onwards and his pay was also revised from time to time till he attained the age of superannuation.
In that view of the matter, the Special Leave Petition is dismissed."
54. This Court consistently in the aforesaid cases after noticing the U.P. Act No.1 of 2021 approved the law that service rendered as work-charged employee or daily-wager is liable to be counted with the regular service to determine the qualifying service for pension, and the Special Leave to Appeals preferred by the State Government in all the cases have been dismissed with a direction to the State Government to comply with the orders of the High Court within the period stipulated in the order.
55. Now, coming to the judgements on which reliance has been placed by the respondents, this Court may note that those judgements have not considered the principles of law postulated by the Apex Court in the judgements referred above as to when the legislature can override the judgement. Further, those judgements have also not noted the judgements passed by this Court in Special Appeals, referred above, and the order of the Supreme Court dismissing the Special Leave Petitions against those judgements.
56. It is also pertinent to note that a judgment can be said to be perincuriam when it has been delivered by the Court in ignorance of the relevant statutory provisions and or the binding decision of a Court of co-ordinate jurisdiction or that of a higher Court. In this connection the Full Bench of this Court in Rana Pratap Singh... v. State Of Uttar Pradesh..., (1995) 1 All CJ 200: (1996 All LJ 301) has laid down as under (at p. 308 of All LJ):-
"This is what now brings us to what constitute the parameters of the per incuriam rule. As the Supreme Court in Punjab Land and Recreation Corporator Ltd. v. Presiding Officer Labour Court, (1990) 3 SCC 682 explained, "the Latin expression per incuriam means through inadvertance. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a precious decision of this Court". Further "in England a decision is said to be given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords."
A similar exposition of the per incuriam rule is to be found in State of U.P v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, namely, that "incuria" literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.) (1944 1 KB 718) : (1944) 2 All ER 293."
57. In the case of Chandra Singh (supra), the pension of Chandra Singh was reduced by the order dated 16.05.2018 Thereafter, he approached this Court by filing Writ-A No.20874 (S/S) of 2021, and his writ petition was dismissed and Special Appeal was also dismissed by the Special Appeal Court vide order dated 22.04.2022. The Special Appeal Court has proceeded on the basis that as the Seasonal Collection Amin is appointed for a limited period only for specified duty on completion of which he is discharged, therefore, the duty performed by Seasonal Collection Amin intermittently, will not fall within the category "continuous temporary or officiating service under the Government of Uttar Pradesh" within the purview of Rule 352 (a) of the Civil Service Regulations.
58. It may be pertinent to note that this Court in the case of Chandra Singh (supra) did not notice the judgement of the Apex Court in Special Leave to Appeal (C) No(s). 12588 of 2021 dated 23.08.2021, extracted above, affirming the judgement of this Court in Special Appeal No.564 of 2020.
59. So far as the judgement of this Court in the case of Sadanand (supra) decided on 16.01.2023 is concerned, the said judgement has also not noticed the judgement of this Court in Special Appeal No.475 of 2020 and Special Appeal No.152 of 2021, against which Special Leave Petitions have been dismissed by the Apex.
60. Further, the said judgement has not considered the issue whether the U.P. Act No.1 of 2021 satisfies the three tests laid down by the Apex Court in various pronouncements to override a judgement.
61. Similarly, the judgement of this Court in the case of Syed Jalal Haider (supra) passed in Special Appeal No.80 of 2019, decided on 24.01.2023 also does not come to rescue the respondents as the Court has dismissed the Special Appeal relying upon the judgement of this Court in the case of Sadanand' case (supra), decided on 16.01.2023.
62. In the instant case, it is stated by the petitioner in para-5 of the writ petition that he was engaged as a daily wage employee on the post of Gaze Reader on 01.05.1989. This fact has not been denied by the respondents in the counter affidavit. It is also not disputed that the petitioner was engaged subsequently as a work-charged employee by the order of the Executive Engineer dated 24.07.1997 on a pay scale mentioned in the appointment letter dated 24.07.1997, and subsequently, the petitioner was regularized by the order dated 29.09.2011 as Gaze Reader. It is also not disputed that the petitioner since the date of engagement in the year 1989 continued on the post of Gaze Reader till his retirement.
63. The aforesaid facts establish that the nature of work which the petitioner discharged was permanent and perennial. Further, the action of the respondents in taking the work from the petitioner as a daily wager, and thereafter work-charged employee for about 21 years by paying him low wages is nothing but an arbitrary exercise of powers by the respondents and is an unfair labour practice.
64. It is also relevant to note that the petitioner was discharging the same duty as the other regular employees, and therefore, excluding the period worked by the petitioner as a daily wager and thereafter as a work-charged employee for the purpose of grant of pension would be hit by Article 14 of the Constitution of India being arbitrary and discriminatory. Therefore, this Court is of the view that the petitioner's service since the date of his engagement as daily wager i.e. on 01.05.1989 shall be counted along with regular service for the grant of pensionary benefit to the petitioner.
65. Now, coming to the second submission of learned counsel for the respondents that as the petitioner's service has been regularized by order dated 29.09.2011, the petitioner shall be treated to have joined the service with the State Government after 01.04.2005 i.e. after the introduction of New Pension Scheme, therefore, he cannot be extended the benefit of Old Pension Scheme. In this regard, it is pertinent to note that this Court has given above elaborate reasons that the services rendered by the petitioner as daily-wager and work-charged employee are liable to be counted for the determination of qualifying service for pension.
66. In such view of the fact, the submission that as the entry of the petitioner in the State Government service is after 01.04.2005, therefore, he is covered by the New Pension Scheme is misconceived. The plain reading of the statement of object and reasons of the Notification dated 28.03.2005 suggests that the said Scheme applies to the new entrants to the service of the State Government and of all State controlled autonomous institutions and State aided private educational Institutions where the existing Pension Scheme is patterned on the Scheme for the Government employees and is funded by the consolidated fund of the State Government.
67. Sub-rule (3) inserted in Rule 2 of the Rules 1961 by amendment Rule, 2005 provides that these Rules shall not apply to the employees entering in service and post on or after 01.04.2005 in connection with the affairs of the state borne on pensionable establishment whether temporary or permanent, meaning thereby that the Rules, 1961 do not apply to the Government Servants who have entered in the service on or after 01.04.2005.
68. In the instant case, the petitioner cannot be said to have entered into service after 01.04.2005, inasmuch as it is undisputed that he was engaged as a daily wager on the post of Gaze Reader on 01.05.1989. Subsequently, he was appointed to the work-charged establishment on 25.07.1997. The petitioner was paid wages from the fund of the State Government. Though the petitioner was not enjoying the benefit which was available to the regular employees, the fact remains that he was working in the establishment of the State Government under the supervision of the State authorities and was being paid wages by the State Government since the date of his engagement as daily-wager i.e. from 01.05.1989.
69. In this respect it would be apt to refer to the judgement passed in Writ-A No.28543 of 2013 Bagheswari Prasad, wherein this Court held that the right to get absorb accrued to the petitioner not on 09.04.2005 when the appointment letters came to be issued, but on 29.04.1999 when this Court issued a positive direction in that regard. This Court held that once the State respondents are found to have delayed proceeding in entirety, they cannot be permitted to wriggle out of the consequence of the delay.
70. Even in Prem Singh's case (supra), the Apex Court did not appreciate the action of the respondent State in not regularizing the services of the employees rendering service for thirty, forty years or more and they have been superannuated. The Apex Court following the dictum of the State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 issued a direction to regularize the service of those employees who have worked and completed more than 10 years or more. Para-36 of the judgement of Prem Singh (Supra) is reproduced herein-below:-
"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 State of Karnataka & Ors. v. Umadevi 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."
71. This Court may note that the services of the petitioner should have been regularized earlier, but on account of the apathetic and insensitive approach of the respondents, the service of the petitioner was not regularized earlier, and after rendering about 21 years of service as daily-wager and work-charged establishment, his service was regularized.
72. In such factual backdrop, the State cannot take shelter of the New Pension Scheme notified in the year 2005 to contend that as the service of the petitioner has been regularized after the introduction of the New Pension Scheme by Notification/ Government Order G-33-379/X-2005-301(9)-2003, dated 01.04.2005, therefore, the petitioner is not entitled to Old Pension Scheme.
73. For the reasons given above, the order dated 31.05.2022 passed by respondent no.5-Executive Engineer, Investigation & Planning (Water Resources), Division Mirzapur (Fatehi Irrigation Colony), Mirzapur to the extent it grants the benefit of New Pension Scheme to the petitioner is set aside. Consequently, the writ petition is allowed without any order to as to cost.
74. The respondent concerned is directed to place the petitioner in Old Pension Scheme and calculate his pension by adding the service w.e.f. 01.05.1989 with regular service. The petitioner is further directed to deposit the amount of the Employee's Contributory Fund which he had received from the respondents before the pension is released to him.
75. The aforesaid exercise shall be completed by the respondents within three months from the date of production of a certified copy of this order.
Order Date :-03.07.2023 NS