Allahabad High Court
Dr. Sushma Chandel vs State Of U.P. And 2 Others on 25 August, 2021
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 16 August 2021 Delivered on 25 August 2021 Court No. - 34 Case :- WRIT - A No. - 9396 of 2021 Petitioner :- Dr. Sushma Chandel Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shashank Shekhar Mishra Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 22070 of 2018 Petitioner :- Chiraunjilal And 7 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare,Utkarsh Birla Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 9744 of 2021 Petitioner :- Ram Chandra Yadav And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Jamil Ahamad Azmi Counsel for Respondent :- C.S.C.,Govind Krishna Hon'ble Yashwant Varma,J.
Heard Sri Shashank Shekhar Mishra, Sri Siddharth Khare and Sri Jamil Ahamad Azmi learned counsel for the petitioners, Sri Govind Krishna who appears for the Nagar Palika Parishad Azamgarh and Sri Ajit Kumar Singh learned Additional Advocate General assisted by Sri Chandan Kumar learned Standing Counsel for the State respondents.
These three petitions which raise a common question have with the consent of parties been taken up for disposal together.
All the petitioners essentially seek the addition of services rendered in an ad hoc or temporary capacity for the purposes of computation of pensionary benefits. It may at the outset be stated that these petitions were taken up for disposal together since the Court was faced with similar writ petitions coming up before it daily. It was thus thought expedient that the basic issues which would need to be borne in mind by the respondents while dealing with such claims would warrant articulation. On the aforesaid view being expressed, Sri Ajit Kumar Singh the learned Additional Advocate General, in his usual fairness, suggested that since the petitions are proposed to be disposed of without the State being invited to file formal replies, issues such as the statutory regimen which would govern and the essential factors which would merit consideration may be enunciated leaving it to the respondents to reevaluate the claims as raised by the petitioners here. The sound counsel of the learned Additional Advocate General was duly accepted and it is on those lines and to the aforesaid extent alone that the Court proceeds to frame its present decision.
Before proceeding forth, it would be relevant to advert to the individual facts of the three writ petitions which are proposed to be disposed of by means of this common judgment.
A. FACTS OF THE INDIVIDUAL WRIT PETITIONS
1. Sushma Chandel Vs. State of U.P. and others [Writ A NO. 9396 OF 2021] The petitioner here was initially appointed in May 1990 on daily wage basis. That appointment was brought to an end in November 1990. The order of termination was challenged by way of a writ petition in which an interim order was granted providing that the respondents would not interfere with the working of the petitioner as a Medical Officer. Pursuant to that interim order, she is stated to have continued to function as Medical Officer till 27 November 1998 when she was appointed on ad hoc basis. Various other Medical Officers who were continuing on ad hoc terms under the respondents agitated their claims for regularisation before the respondents. In the litigation which ensued, one writ petition preferred by Dr. Smt. Sudha Tripathi came to be disposed of by a Division Bench calling upon the State to consider her claim for regularisation. Pursuant to the directions issued by the Division Bench on that writ petition and the dismissal of the Special Leave Petition of the State, the services of Dr. Smt. Sudha Tripathi came to be confirmed. In the meanwhile, various other Medical Officers like the petitioner who had initially been engaged on ad hoc basis and had continued to serve under the respondents for years together without being regularized, petitioned the Lucknow Bench of this Court aggrieved by the denial of their claims. The lead matter of the batch which came to be instituted was of Dr. Dhirendra Prakash Tiwari v. State of U.P. And Others1. The Division Bench while rendering judgment on that batch firstly took note of the judgment rendered by the Court in Dr. Yogendra Singh And Others v. State of U.P. And Others2 and the directions issued therein for the claim of regularisation being considered in accordance with the policy decision of the State Government which extended the benefit of regularisation to all ad hoc Medical Officers who had been appointed on or before 17 July 1991. The aforesaid decision in Dr. Yogendra Singh was unsuccessfully assailed by the respondents before the Supreme Court which dismissed the Special Leave Petitions on 02 April 1998. The Division Bench also noticed the provisions made in respect of regularisation in the U.P. Regularisation of Ad hoc Appointments (On Post Within the Purview of the Public Service Commission) (Third Amendment) Rules (2001)3. The Court in Dr. Dhirendra Prakash Tiwari ultimately proceeded to allow the writ petitions in the following terms: -
"We are of the considered opinion that all the petitioners are entitled to be treated as ad hoc medical officers from a date prior to 30.6.1998, leaving it open for the respondents to determine the exact date in the light of pronouncement of this Court dated 21.11.1996 in the earlier proceedings. To this extent the government order dated 27.11.1998 will not come in the way of the petitioners for consideration of their regularisation. Respondent No.1 is directed to reconsider the case of petitioners, including those who have retired from service, for regularisation of their services under the Regularisation Rules of 1979 strictly in accordance with the observations made hereinabove, treating them as ad hoc medical officers, from a date prior to 30.6.1998. Respondent no.1 shall pass requisite orders accordingly, within a period of two months from the date a certified copy of this order is produced before him. While considering the case of the petitioners for regularisation, the date of regularisation of their seniors and juniors shall also be kept in mind by the respondents. It is made clear that the case of the petitioners shall not be rejected on the ground that they were not ad hoc medical officers prior to 30.6.1998.
So far as the claim of the petitioners for regularisation of their services with effect from the date of their initial appointment is concerned, we do not find any merit in the same."
Following the aforesaid decision, the writ petition preferred by the petitioner here being Writ-A No. 21307 of 2012 was allowed on similar terms on 07 August 2014. The challenge to the judgment rendered on the aforesaid writ petition by the State came to be negatived with the Supreme Court dismissing the Special Leave Petitions on 27 March 2015. The petitioner was ultimately regularised in service by an order of 24 September 2015. That order provided that she would be deemed to have been regularised in service with effect from 16 March 2005. Before this Court it is not disputed that the regularisation of the petitioner with effect from the aforesaid date was in light of the directions framed by the Division Bench in Dr. Dhirendra Prakash Tiwari which required the respondents to regularise individual ad hoc Medical Officers bearing in mind the date from which their seniors and juniors had been accorded that facility. The respondents while preparing the pension papers of the petitioner here have taken note of her entry into government service as being on 22 December 1998. That admittedly is the date on which the petitioner joined service pursuant to the order of appointment dated 27 November 1998. However, the total length of qualifying service has been computed to be 13 years 4 months and 15 days. The aforesaid computation has essentially been made with the period of service rendered post 16 March 2005 along being liable to be included in qualifying service. The service rendered by the petitioner between December 1998 till 16 March 2005 has not been considered. It is in the aforesaid backdrop that the present writ petition has come to be preferred.
2. Chiraunjilal and 7 others Vs. State of U.P. and others [Writ A NO. 22070 OF 2018] The petitioners here were appointed as part time/ad hoc Tubewell Operators on different dates. All of them were confirmed and regularised in terms of the details which have been set forth in paragraphs 10 to 15 of the writ petition. They have approached this Court aggrieved by the fact that while computing qualifying service, the respondents have only accounted for service rendered by the petitioners post their regularisation. It is in the aforesaid backdrop that they contend that the services rendered by them on part time and ad hoc basis is also liable to be included for the purposes of computation of pensionary benefits.
The respondents in the counter which has been filed have referred to the fact that the petitioners were initially engaged as short term Tubewell Operators on consolidated pay. They also allege that their initial appointment was not made in accordance with the relevant rules and regulations framed nor were they appointed against substantive posts. In paragraph-20 it is contended by the respondents that the provisions of Articles 368 and 370 of the Civil Service Regulations can only apply to those who worked on the regular establishment of the State and in view of the aforesaid, the period of service rendered by the petitioners prior to their date of regularisation is not liable to be included for the purposes of pensionary benefits.
3. Ram Chandra Yadav and other Vs. State of U.P. and others [Writ A NO. 9744 OF 2021] The petitioners here were initially appointed on a temporary basis as Pump Attendants on 01 April 1988 and 05 January 1990 respectively. Their services were ultimately regularized with effect from 14 February 2005 and 05 January 2001. Both the petitioners are stated to have retired in June and September 2018. They are essentially aggrieved by the fixation of their pensionary benefits with the respondents excluding the period which was rendered by them prior to their regularisation. It is in the aforesaid factual backdrop that the issues raised are liable to be considered.
B. THE STATUTORY BACKGROUND The Court firstly deems it necessary to advert to the relevant provisions as made in the Civil Service Regulations4. Article 361 reads thus: -
"361. The service of an officer does not qualify for pension unless it conforms to the following three conditions-
First- The service must be under Government.
Second- The employment must be substantive and permanent.
Third- The service must be paid by Government. "
Regulations 368 provides that service does not qualify unless the officer holds a "substantive office" on a "permanent establishment" of the Government.
Regulation 370 makes the following additional provisions in respect of pension:-
"370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post shall qualify except-
(i) periods of temporary or officiating service in non-pensionable establishment;
(ii) periods of service in work-charged establishment, and
(iii) periods of service in a post paid from contingencies."
On 01 April 1961 the State Government framed and promulgated the Uttar Pradesh Retirement Benefit Rules 19615 by virtue of the powers conferred by the proviso to Article 309 of the Constitution. The 1961 Rules define the expression "qualifying service" in Rule 3(8) as under:-
"3.
...
(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 work-charged establishment, and
(iii) periods of service in a post, paid from contingencies shall also count as qualifying service.
Note-If service rendered in a non-pensionable establishment, work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service.
... "
The provisions as made in the CSR as well as in the 1961 Rules fell for consideration before the Supreme Court in the matter of Prem Singh v. State of Uttar Pradesh and Others6. Prem Singh was essentially considering the claim of work-charged employees who had been continued in that capacity for decades and ultimately denied pensionary benefits with the respondents taking the position that service rendered in such an establishment is not liable to be included while calculating qualifying service in accordance with the provisions made in the CSR and the 1961 Rules. The Supreme Court in Prem Singh ultimately came to hold:-
"30. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work-- charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma & Ors. v. State of Uttar Pradesh & Ors. (CA No.______2019 @ SLP (C) No.5775 of 2018) the appellants were allowed to cross efficiency bar, after ''8' years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak w.e.f 15.9.1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs.200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation.
31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment.
32. In view of the Note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work-charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.
33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularisation had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.
34. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non-discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
35. In view of the Note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook."
The Court firstly held that the continued engagement of the petitioners and showing them as working in a work-charged establishment was clearly exploitative since their continued engagement itself established that the work performed by them was regular and permanent in character. The Court held that the action of the State of continuing to take work from such employees on a work-charged basis was thus unfair and illegal. Turning its attention then to the Note appended to Rule 3(8) of the 1961 Rules, the Supreme Court noted and held that there appeared to be no logical basis for the stipulation of service rendered as work charged followed by regularisation being recognised as qualifying for pension only if such service had fallen between two spells of temporary or in between spells of temporary and permanent service. The Court accordingly read down the Note to hold that services rendered even prior to regularisation albeit in the capacity of a work-charged employee or contingency paid fund employee shall also be counted towards qualifying service even if such service were not sandwiched between spells of service as provided for. In light of the reading down of the Note to Rule 3(8) of the 1961 Rules, the Supreme Court proceeded to strike down Regulation 370 of the CSR.
Post the decision rendered in Prem Singh the State promulgated an Ordinance titled the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance 2020 (U.P. Ordinance No. 19 of 2020). That Ordinance introduced the following measures for the purposes of computation of qualifying service: -
"1. (1) This Ordinance may be called the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020.
(2) It shall extend to the whole of the State of Uttar Pradesh.
(3) It shall be deemed to have come into force on April 1, 1961.
2. Notwithstanding anything contained in any rule, regulation or Government order for the purposes of entitlement of pension to an officer, "Qualifying Service" means the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post.
3. Notwithstanding any Judgement, decree or order of any Court, anything done or purporting to have been done and may action taken or purporting to have been taken under or in relation to sub-rule (8) of rule 3 of the Uttar Pradesh Retirement Benefit Rules, 1961 before the commencement of this Ordinance, shall be deemed to be and always to have been done or taken under the provisions of this Ordinance and to be and always to have been valid as if the provisions of this Ordinance were in force at all material times with effect from April 1, 1961.
4. Save as otherwise provided, the provisions of this Ordinance shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Ordinance."
The Ordinance was thereafter replaced by an Act7 [U.P. Act No. 01 of 2021] which was notified on 05 March 2021. It becomes relevant to note that both the Ordinance as well as the Validating Act introduced provisions with retrospective effect providing that it shall be deemed to have come into force with effect from 01 April 1961. The aforesaid date as noticed hereinabove is the date when the 1961 Rules were enforced. The Validating Act provides that qualifying service for the purposes of considering the entitlement to pension would mean services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed for the post. The introduction of this definition with retrospective effect from 01 April 1961 bids us to view Rule 3(8) contained in the 1961 Rules accordingly. Article 368 as noticed above had provided that service would not qualify unless it be found that the officer held a substantive office on a permanent establishment. The Validating Act thus lays in place a test which stands retrospectively introduced with only such service liable to be considered when rendered on a temporary or permanent post and with the added qualification of the appointment having been made in accordance with the relevant rules. It essentially lays in place the following twin preconditions for the purposes of computing qualifying service
(a) The officer having rendered service on a temporary or permanent post, and
(b) The appointment being one which was made in accordance with the provisions of the service rules prescribed.
C. DIVISION BENCH JUDGMENTS POST ORDINANCE AND THE VALIDATING ACT The effect of the Ordinance on a claim for pensionary benefits was considered by a Division Bench of the Court firstly in the matter of State of U.P. And Others v. Mahendra Singh8. Noticing the provisions made therein the Division Bench observed: -
"It is clear from perusal of Section 2 of the Ordinance 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. Though it has been informed at the bar that in certain writ petitions, validity of the aforesaid U.P. Ordinance has been challenged, however, even if for purpose of adjudicating the present appeal the Ordinance is accepted as it is, section 2 thereof would inure to the benefit to the opposite party-petitioner and not to the benefit of appellants. The word "Qualifying Service" has been defined in Section 2 of the aforesaid U.P. Ordinance 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.
As discussed aforesaid, the appellants have admitted the appointment of the opposite party-petitioner on temporary post of Godown Chaukidar from 04.09.1981 till the date of his appointment on a regular post in 1997. Therefore, under this very U.P. Ordinance, the petitioner is entitled to his claim for counting the period of his service from the date of his appointment on 04.09.1981 on a temporary post till his regularisation on the permanent post in the year 1997."
In State of U.P. And 4 Others v. Bhanu Pratap Sharma9, the Court was called upon to consider the question whether the period spent by an employee prior to regularisation was liable to be taken into consideration for the purposes of pension. That claim was challenged in light of the provisions made in the Ordinance with the appellants there contending that in light of Sections 2, 3 and 4 thereof, the period spent prior to regularisation would stand excluded. Dealing with the aforesaid contention, the Division Bench held: -
"It is clear from the perusal of section 2 of the Act of 2021 that it would have effect notwithstanding anything contained in U.P. Retirement Benefit Rules, 1961 or Regulation 361 and 370 of the Civil Service Regulation. Careful reading thereof, however, revels that "Qualifying Service" has been defined to mean the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post. In the counter affidavit filed by present appellant in the writ petition it was categorically admitted by the appellant that the petitioner was appointed in the office of Executive Engineer, Nalkoop Nirman Khand I, Bareilly on the post of Rig Assistant on work charge basis on 25.04.1979. Subsequently, the petitioner was regularized from work charge basis to regular establishment on the post of helper on 18.03.2006.
Thus admittedly, the petitioner was appointed on a post in work charge establishment. The record reveals that the initial appointment of the petitioner was as helper. Thus the post which is referred to in the counter affidavit is that of Helper on which he was regularized. The post of Helper thus permanently existed. Further more, it is not the case of the appellant that the respondent was not appointed in accordance with the provisions of Service Rules. Thus having been initially appointed on the post of Helper, the appellant were not justified in denying the service benefit."
It would also be pertinent to notice yet another decision handed down by a Division Bench of the Court in State of U.P. And 4 Others v. Narayan Singh Sharma10. Dealing with an identical question, the Division Bench there held:-
"...
7. In the case in hand the petitioner/ non-appellant was appointed on ad hoc basis but was against the sanctioned post. Thus, approval as per rules was given to his appointment by the District Inspector of Schools. The regularisation of service may be subsequently by an order issued in the year 2016 but then as per the Ordinance of 2020, the period of service rendered after appointment on temporary basis as per rules could not have been ignored. For that purpose Ordinance of 2020 is quoted hereunder:
...
8. A perusal of Section 2 of the Ordinance of 2020 reveals that service rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of service rules would be counted towards qualifying service.
9. In view of the above, even the Ordinance of 2020 would not affect the claim of the petitioner/non-appellant having been appointed against the sanctioned post, may be initially on ad hoc but as per rules and subsequently his service was regularized. It is not the case of the respondents that initial appointment of the petitioner was against the rules. It is more so when the writ petition was filed with clear statement of fact that petitioner/non- appellant was appointed against the sanctioned post and in accordance with rules. Therefore, even approval to his appointment was given by the District Inspector of Schools.
10. In the light of the discussion made above, we do not find any reason to cause interference in the judgment impugned herein. However, we have given additional reason to allow pensionary benefits to the petitioner/non-appellant by counting his length of service."
D. SUBMISSIONS OF THE STATE Sri Ajit Kumar Singh, the learned Additional Advocate General, has contended that the Validating Act has introduced seminal changes relating to computation of qualifying service. According to the learned Additional Advocate General since the provisions of the Act have come to be introduced with retrospective effect and are to operate notwithstanding anything to the contrary contained in any rule, regulation or Government Order, it has now become incumbent upon an officer to establish that the service of which inclusion is sought for the purposes of pensionary benefits was one which was rendered on a temporary or permanent post. Additionally, it is also incumbent upon such an officer or employee to establish that his induction into service was in accordance with the provisions made in the relevant service rules. The learned Additional Advocate General also contended that the petitioners here having accepted the terms of their regularisation as set forth in the orders issued in that regard, cannot turn around now and seek inclusion of service rendered prior thereto for the purposes of pension. According to the learned Additional Advocate General, service rendered prior to the date from which the petitioners came to be regularized is neither liable to be included nor can any benefits in respect of that service be claimed. The learned Additional Advocate General has placed reliance upon a decision rendered by a learned Judge in Brahamanand Singh and others v. State of U.P. and others11 to contend that the aforesaid submission finds sustenance from the principles propounded in that decision. Reliance in this regard was placed upon the following passages of the aforesaid decision: -
"9. Though petitioners contended that they are entitled to be regularised from the date of their temporary appointment in the year 1986 to 1989, but no provision in law has been shown whereunder such a right could be claimed....... Even under the Rules of 2001, petitioners could not have been considered for regularisation prior to 7.11.2006. This Court while allowing the petition had not directed consideration of petitioners' claim from any date prior to passing of order itself. Petitioners' have otherwise accepted the order of regularisation passed in the year 2007 and the same was never challenged while they remained in service......."
E. EVALUATION OF THE SUBMISSIONS OF THE STATE Before proceeding to deal with the submissions addressed by the learned Additional Advocate General relating to the terms of the Validating Act and the 1961 Rules, it would be appropriate to firstly deal with the submission advanced based on Brahamanand Singh. The Court in Brahamanand Singh was essentially called upon to consider a situation where an employee came to be regularized post 01 April 2005 and, in that context, whether he would be entitled to claim pensionary benefits. It becomes pertinent to note that Rule 2(3) of the 1961 Rules had come to be amended with effect from 07 April 2005 and provided that they shall not apply to employees entering service on or after 01 April 2005. The Court took into consideration the admitted fact that the services of the petitioner in that case had come to be terminated. The order of termination was ultimately set aside with the writ petition being allowed on 07 November 2006. It was in the aforesaid background that it was held that any period of service falling prior to 7 November 2006 was not liable to be countenanced. It then took into consideration that fact that the order of regularisation which came to be passed in 2007 was never assailed. The Court held that the effective date of regularisation which stands mentioned in that order cannot be questioned after retirement. The aforesaid decision, strictly speaking, does not deal with the questions which arise and fall for our consideration in this batch for more than one reason.
Undisputedly, in Brahmanand Singh the employee sought inclusion of a period during which an order of termination operated. It was in the aforesaid context that the learned Judge held that such a claim would not sustain and that the period prior to the order of termination coming to be set aside cannot be included. Secondly, the learned Judge held that it would not be open for the employee to seek modification of the date of his regularisation after attaining the age of superannuation. It was essentially held that once the terms of regularisation come to be accepted, the employee cannot turn around and contend that he should be regularised with effect from a date prior to that mentioned in the order itself. It may only be noted in this respect that none of the petitioners here seek modification of their date of regularisation. The date of regularisation is accepted even in the matter of Sushma Chandel with learned counsel stating at the Bar that the petitioner does not assail her regularisation granted with effect from 16 March 2005. In the considered opinion of this Court the claim for inclusion of services rendered prior to regularisation is not an assertion which can be said to be akin or corresponding to an employee seeking a reopening or review of the effective date of regularisation. The date from which an employee comes to be regularized may have a bearing on myriad service related issues. While not to be understood as seeking to exhaustively record or chronicle such matters, claims relating to calculation of increments or seniority are illustrative facets of service which may be impacted by the date of regularisation. However, the claim for inclusion of service rendered prior to confirmation or regularisation is one which is liable to be considered in light of the provisions of Regulation 370 of the CSR as it stood as well as the Proviso to Rule 3 (8) of the 1961 Rules. These provisions did and even presently envisage the inclusion of period of service spent prior to confirmation or regularisation subject to that service meeting the conditions prescribed therein. In view of the aforesaid conclusion, the Court is of the considered view that the claim of the petitioners here cannot be denied on grounds urged by the learned Additional Advocate General. Having ruled on the validity of the submissions addressed by the learned Additional Advocate General, the Court now proceeds to deal with the merits of the question which has fallen for consideration.
F. DISCUSSION ON THE GOVERNING LEGAL REGIME (I). THE CSR PROVISIONS It would be beneficial to advert to the provisions made in the CSR insofar as the issue of pensionary benefits is concerned. Regulation 361, as was noted above, puts in place the three primordial conditions which must be satisfied for a government servant to be held entitled to the payment of pension. It postulates that the service rendered by an officer would qualify for pension only if it is established that the same was discharged under the Government, the employment was substantive and permanent and was paid for by the Government. Regulation 368, as it originally stood, provided that service would not qualify for pension unless the officer held a substantive office in a permanent establishment. This statutory position which held the field has now been amended originally by virtue of the Ordinance that was promulgated and thereafter by the Validating Act. The Validating Act provides that qualifying service would mean service rendered by an officer appointed on a temporary or a permanent post in accordance with the provisions of the service rules prescribed. Thus, the concept of "substantive office" has been replaced with the requirement of the employee establishing that he had been appointed on a "permanent or temporary post". The Ordinance and the Validating Act introduce the further requirement of it being established that the appointment had been made in accordance with the prevalent rules as an additional condition for the purposes of evaluating a claim for pensionary benefits. What the Validating Act essentially does is to erase the connect between the concept of qualifying service and the officer holding a substantive office under the Government. The test for determining qualifying service has undoubtedly been fundamentally altered in terms of the Validating Act. A period of service in order to be included in qualifying service now must necessarily be one which was rendered on a permanent or temporary post and it being additionally found that such service was discharged consequent to an appointment made in accordance with the prevalent rules. Since the Ordinance as well as the Validating Act are to operate retroactively with effect from 01 April 1961, it is this definition of "qualifying service" which would be liable to viewed as existing on the statute book from that date. The provisions made in the 1961 Rules which came into force on the same date, consequently, would also have to be understood in the aforesaid light.
Of equal significance are the provisions made in Section 3 of the Validating Act which seeks to validate any action taken by the State thus far which would be liable to be adjudged on the anvil of "qualifying service" as introduced as well as Section 4 which confers an overriding and overarching effect on the provisions of the Validating Act notwithstanding anything to the contrary contained in any other act, rule or regulation.
The CSR applicable in the State further and in accordance with the provisions made in Regulation 370 prescribed that an officer could count temporary or officiating service under the Government followed by confirmation or regularisation in the same or any other post. The only exception to the aforesaid rule was the exclusion of periods of temporary or officiating service rendered either in a non-pensionable establishment or a work-charged establishment as well as the period of service against a post which was paid from contingencies. Although Regulation 370 was amended in 1977, the position remained essentially the same with the period of temporary or officiating service followed by confirmation or regularisation being entitled to be counted subject to the exceptions noticed above. It is also pertinent to bear in mind that Regulation 370 was ultimately struck down by the Supreme Court in Prem Singh consequent to the Note to Rule 3(8) of the 1961 Rules being read down. The Court shall deal with the significance of Regulation 370 being struck down in the subsequent parts of this decision.
(II). THE 1961 RULES The Court then turns to Rule 3(8) of the 1961 Rules. The 1961 Rules while defining qualifying service in Rule 3(8) and as it stood prior to the promulgation of the Ordinance and the Validating Act bid one to revert to the provisions made in Article 368 of the CSR. As a consequence of the introduction of the Validating Act with retrospective effect, the expression "qualifying service" would have to necessarily be understood as services rendered against a temporary or permanent post and with the additional rider of the appointment being one which was made in accordance with the relevant service rules. Further it is of seminal importance to bear in mind that the proviso to Rule 3(8) makes provisions identical to those contained in Regulation 370 of the CSR. Rule 3(8) of the 1961 Rules directly fell for consideration of the Supreme Court in Prem Singh. While the Court in Prem Singh read down the provisions of the Note appended to that rule and also struck down Regulation 370, the proviso was not touched. The reason is neither obscure nor far to seek. The proviso was essentially a statutory measure which reinforced the foundation of Prem Singh namely, that the denial of the fruits of considerable period of service rendered by an employee performing work which was permanent and regular by employing the subterfuge of engagement in a work charged establishment would be wholly arbitrary.
Turning then to the Note appended to Rule 3(8), the same was read down by the Supreme Court in Prem Singh with their Lordships holding that service rendered even prior to regularisation would be liable to be counted for the purposes of computing qualifying service. In Prem Singh, the Supreme Court essentially found no justification for discounting the service rendered in a work-charged establishment prior to regularisation or for the aforesaid service being restricted only to a situation where it was found that such service was rendered between two spells of temporary or temporary and permanent service.
(III). JUDICIAL ANNULMENT OF REGULATION 370 Having dealt with the substantive parts of Rule 3(8) and how they were interpreted and explained by Prem Singh, it would be appropriate to deal with the inmpact, if any, of Regulation 370 being struck down. Prem Singh essentially held that once an employee is ultimately confirmed or regularized, the long length of service rendered purportedly in a work charged establishment is liable to be included for the purposes of pensionary benefits. The Supreme Court arrived at this conclusion as a consequence of the facts that were noticed in paragraph 30 of the report. Their Lordships noticed that the concept of work charged engagement had been "misused" and persons engaged for decades on "exploitative terms". It was further noted that those employees had been engaged for work which was "perennial" and "regular". Significantly once the learned Judges in Prem Singh found no justification to exclude long periods of service rendered ostensibly in a work charged establishment followed by confirmation or regularisation for the purposes of pension and read down the further restrictions placed by the Note appended to Rule 3(8), the only provision which stood in the way of inclusion of service rendered in a work charged establishment was Regulation 370. It was this aspect which clearly appears to have informed the decision to strike down Regulation 370. However and as was noticed hereinabove, provisions similar to those enshrined in Regulation 370 remain preserved and untouched in the proviso to Rule 3(8). That proviso has neither been amended nor deleted. Regard must be had to the well settled and recognised function of a proviso namely of carving out an exception to what otherwise would stand governed in the principal provision. The Court bears in mind the functionality of a proviso as was explained by the Supreme Court in Durgabai Deshmukh Memorial Sr. Sec. School v. J.A.J. Vasu Sena12:-
"35. It is a settled position of law that the objective of a proviso is to carve out from the main section a class or category to which the main section does not apply. A proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment."
G. SUMMATION In light of the aforesaid discussion the Court comes to the conclusion that the expression "qualifying service" would now have to be interpreted in accordance with the provisions made in the Validating Act notwithstanding anything to the contrary that may be contained in any other act, rule or regulation. The Validating Act introduces provisions with retrospective effect from 1 April 1961. Consequently, the provisions of the 1961 Rules which came to be promulgated from that date would have to be construed accordingly.
The right to claim pensionary benefits is now and by virtue of the provisions introduced retroactively by the Validating Act made dependent upon it being found that the employee was appointed in accordance with the applicable service rules and held a permanent or temporary post. Since the legislative enactment bids us to proceed on the basis that the aforesaid definition of qualifying service existed and held the field since 1 April 1961, all claims would have to be necessarily evaluated and examined accordingly. This conclusion would necessarily be subject to any challenge that may be laid to the provisions of the Validating Act.
While the Validating Act fundamentally alters the concept of qualifying service, the right to claim addition of service rendered in a temporary or ad hoc basis is one which is still available to be asserted in light of the proviso to Rule 3(8) of the 1961 Rules. While Regulation 370 of the CSR may have been annulled by virtue of the declaration in Prem Singh, the proviso to the aforesaid rule enshrines measures which are akin to those which were contemplated in Regulation 370 when it existed. Regard must also be had to the fact that while the provisions of the aforesaid rule directly fell for consideration in Prem Singh, it was the Note to that rule alone which was read down. The proviso remained untouched and continues to exist in the statute whole, unmutilated and effective. In fact and was noticed hereinabove, the Supreme Court in Prem Singh appears to have consciously left the proviso standing since once it had struck down Regulation 370, that was the only statutory provision which reinforced the central beam of Prem Singh of service discharged for decades together was liable to be taken notice of for the purposes of pension once it be found that the attachment of an officer or employee in a work charged establishment was a mere ruse and camouflage to deny benefits.
From the above recordal of the statutory scheme which now remains in place, it is manifest that the right of an employee to seek addition of continuous, temporary or officiating service followed by confirmation or regularisation would remain preserved notwithstanding the deletion of Regulation 370. Additionally, and as was explained by the Division Benches in Mahendra Singh, Bhanu Pratap Sharma and Narayan Singh Sharma, the right as inhering in a government servant to seek inclusion of services rendered on a temporary or officiating basis provided the appointment was ultimately regularized has not been impacted by the Validating Act. The three decisions afore noted unambiguously hold that the period prior to regularisation cannot be ignored as long as it is established that it was service rendered against a particular post be it temporary or permanent. This aspect was highlighted with the Court holding that the only fetter which now remains in place for the purposes of computing qualifying service is of the service rendered being shown to have been discharged against a permanent or temporary post and the appointment having been made in accordance with the service rules. It was in the aforesaid background that it was held that there was no imperative to assail the validity of the U.P. Act No. 01 of 2021 in such situations.
It may further be noted that the Validating Act makes the right to claim pension dependent upon it being found that service was rendered against a "permanent or temporary post" coupled with it being established that the appointment was made in accordance with the service rules. Notwithstanding the above, the question of whether the engagement of the officer or employee shown against a work charged establishment was merely an "exploitative measure" [an expression which the Court borrows from Prem Singh itself] and designed to deny benefits of long service would still be open to canvassed. As was noted by the Supreme Court in Prem Singh such conduct of the State would clearly fall foul of the constitutional guarantees enshrined in Part III of our Constitution.
The question of service discharged in a temporary or ad hoc capacity followed by regularisation and whether such periods are liable to be included would also have to be necessarily examined in the backdrop of whether the engagement had been made against a permanent or temporary post that was available as also whether the procedure as prescribed under the relevant service rules had been adhered to.
Ultimately all the issues which are noticed and enunciated above would merit consideration before the respondents evaluate the claims of the individual petitioners here. The Court is of the firm opinion that a claim for pensionary benefits cannot be negatived solely on the basis of a mere reiteration of the Validating Act having been introduced. The respondents would have to necessarily evaluate such claims bearing in mind the following questions which would arise:-
A. Whether the service rendered in temporary, ad hoc, or officiating capacity was one which was discharged against a permanent or temporary post;
B. Whether the appointment was made in accordance with the provisions made in the prevalent service rules;
C. Whether such service can be excluded notwithstanding the provisions made in the proviso to Rule 3(8) of the 1961 Rules;
D. Whether the service rendered in a work-charged establishment followed by regularisation can be legally excluded while computing qualifying service;
E. Whether such service was performed in connection with work which was regular and perennial and the engagement in a work charged establishment was a mere ruse to deny benefits of long service.
All these and other aspects would merit further examination by the respondents before ruling upon the claims of the petitioners here for grant of pensionary benefits. For the aforesaid purpose, the matters shall stand remitted to the competent authority under the respondents to reevaluate the claim of the petitioners here in accordance with the observations made hereinabove. The exercise of reconsideration may be concluded with expedition and preferably within a period of 3 months of the date of presentation of a duly authenticated copy of this order.
The writ petitions shall stand disposed of in the above terms.
Order Date :- 25.8.2021 faraz (Yashwant Varma, J.)