Allahabad High Court
Sinchai Mazdoor Sangh And 16 Others vs State Of U.P. And 4 Others on 14 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 1021
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 36 Case :- WRIT - A No. - 12780 of 2018 Petitioner :- Sinchai Mazdoor Sangh And 16 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sanjay Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Sanjay Kumar Mishra, learned counsel for the petitioners and Shri Apurva Hajela, learned Standing Counsel for the State respondents.
The present writ petition is being filed under Article 226 of Constitution of India by Sinchai Mazdoor Sangh Uttar Pradesh through its General Secretary and 16 other employees working and retired employees of Workshop of Irrigation Department assailing the validity of order dated 07/17.03.2018 passed by Deputy Secretary (Yantrik), State of U.P., Civil Secretariat, Lucknow and further commanding the respondents to sanction the regular pension of the petitioner nos.2 to 171 at par with the Government Employees from the date of their respective retirement.
The description of petitioners are as follows:-
Sl. No. Name of Employee Last post hold by the employee Department Date of appointment Date of retirement (if attained the age of superannuation)
1.
Satveer Singh s/o Late Diwan Singh (Petitioner no.2) Senior Fitter Okhla Irrigation Workshop 01.05.1981 31.12.2012
2. Isham Singh s/o Late Kullu Ram (Petitioner no.3) Senior Fitter Erection Workshop, Meerut 12.10.1973 31.01.2014
3. Kamal Singh s/o Late Shiv Giri (Petitioner no.4) Master Fitter Irrigation Workshop, Mawana Road, Meerut 01.12.1972 31.07.2012
4. Ram Pal s/o Late Fakeera (Petitioner no.5) Senior Moulder Irrigation Workshop, Mawana Road, Meerut 11.11.1967 30.11.2008
5. Sarjeet Singh s/o Late Mangat Ram (Petitioner no.6) Master Turner Irrigation Workshop, Mawana Road, Meerut 02.11.1972 30.09.2011
6. Indra Pal singh s/o Late Beerbal Singh (Petitioner no.7) Master Turner Irrigation Workshop, Mawana Road, Meerut 09.08.1972 31.12.2012
7. Samar Pal Singh s/o Late Virendra Singh (Petitioner no.8) Turner Okhla Irrigation Workshop 30.01.1982 31.01.2014
8. Jagpal Singh s/o Late Khairati Lal Singh (Petitioner no.9) Moulder Irrigation Workshop, Mawana Road, Meerut 23.11.1967 21.11.2009
9. Babu Ram s/o Late Sonar Singh(Petitioner no.10) Welder Okhla Irrigation Workshop 11.03.1981 14.09.2009
10. Suleman Ansari s/o Late Akbar Ansari (Petitioner no.11) Helper Irrigation Workshop, Mawana Road, Meerut 03.09.1980 31.05.2013
11. Gordhan Singh s/o Late Ghanshyam (Petitioner no.12) Hammerman Irrigation Workshop, Mawana Road, Meerut 05.09.1980 31.03.2013
12. Laxmi Chand s/o Late Phool Singh (Petitioner no.13) Welder Irrigation Workshop, Mawana Road, Meerut 24.04.1971 30.04.2013
13. Sardar Mohd. Khan s/o Late Khijar Mohd. Khan (Petitioner no.14) Machinist Okhla Irrigation Workshop 04.04.1981 28.02.2014
14. Man Singh s/o Late Govind Singh (Petitioner no.15) Moulder Irrigation Workshop, Mawana Road, Meerut 20.10.1972 31.12.2013
15. Har Gulal Singh s/o Late Ram Phal Singh (Petitioner no.16) Senior Electrician Irrigation Workshop, Mawana Road, Meerut 13.03.1978 31.09.2012
16. Raj Kumar Sharma s/o Late Asha Ram Sharma (Petitioner no.17) Turner Irrigation Workshop, Mawana Road, Meerut 10.06.1980 31.07.2017 The terms and conditions of services of petitioners are governed under the Sinchai Karyashala Circle Service Rules, 19842. Admittedly, the petitioners are receiving the admissible salary and other allowances at par with the Government employees as has been paid to the regular employees of the Irrigation Department. Vide Government Orders dated 13.11.2007 and 27.02.2009, the employees working in the Irrigation Department under Industrial Establishment have been treated as Government Servants (Annexure no.2 and 3 to the writ petition). Accordingly, contribution towards provident fund had been deducted from the salary of the petitioners and other similarly situated employees and as such, it is alleged that since the very beginning they were in bona-fide belief/impression that they are receiving the regular salary and other allowances at par with the Government Employees, whereas, the same has not been ensured in favour of the petitioners. It has also been alleged that the Department had also discriminated some other employees, whose details are mentioned in paragraphs 26 and 27 of the writ petition, and they are getting pension like Government employees. Once this discrimination has been surfaced, the petitioners have agitated their claim and accordingly, wrote letters dated 04.03.2013 and 08.11.2013 to the second respondent for grant of pension to the employees who are working in Industrial Establishment of Irrigation Department3. Similarly, the Chief Engineer (Mechanical), Irrigation Department U.P. Lucknow, on his turn, has also recommended regarding payment of pension to employees working in the Industrial Establishment vide letter dated 30.05.2013 addressed to the respondent no.2 as the issues have already been clarified in Government Order dated 13.11.2007, whereby, the employees of the Irrigation Department, who are working in Irrigation Workshop Divisions under Industrial Establishment, have been treated as Government Servants and accordingly, they are also entitled for pension and family pension at par with the Government Employees. Meanwhile, some inability had been shown regarding difficulty in payment of pension to petitioners and similarly situated employees through letter dated 25.06.2013 sent by Up-Sachiv, Government of U.P. to the Chief Engineer (Mechanical), Irrigation Department U.P. at Lucknow but subsequently through letter dated 03.07.2013, the Superintending Engineer, Irrigation Department Lucknow again reiterated and requested for ensuring the pension and another benefits as admissible to the Government Employees working in the Department.
Once the required benefits have not been ensured, the petitioners have preferred Civil Misc. Writ Petition no.668(S/S) of 2014. The same was disposed of according leave to the petitioners to move fresh representation before the Deputy Secretary (Yantrik), State of U.P., Civil Secretariat, Lucknow and the Authorities were also directed to decide the same within three months period. In response thereof, the petitioners have moved representation dated 22.12.2017, which was decided by the order impugned, whereby, the claim of the petitioners for pensionary benefits has been negated by treating them employees of Industrial Establishment as their services are governed under the provisions of Industrial Employment (Standing Orders) Act 1946 and Model Standing Orders, 1992 as well as other Labour Laws like Payment of Wages Act 1936 and Industrial Disputes Act 19474.
Learned counsel for the petitioners has drawn the attention of the Court to the fact that earlier the State Government has discriminated the petitioners while fixing a date of retirement as 58 years, whereas, the superannuation of State employees are 60 years. The same was assailed before this Court by preferring Writ Petition no.7641(S/S) of 2003 (Beni Madhav Pandey and another vs. State of U.P. and others). Vide order dated 11.10.2011, the said writ petition was allowed. For ready reference, the order dated 11.10.2011 is extracted as under:-
"Heard learned counsel for the petitioner. Learned Standing Counsel appears for the respondents.
According to the petitioners' counsel, the petitioners have attained the age of superannuation while working in the workshop of Irrigation Department. According to him, all those persons working in the Irrigation Department are entitled to continue up to the age of 60 years but a notice was served on the petitioners with regard to superannuation at the age of 58 years. The submission is that merely because the petitioners have been discharging duty in the workshop does not mean that they shall not be entitled for service benefits at par with other employees. In spite of categorical pleading on record, nothing has been brought on record to rebut the argument advanced by the petitioners' counsel that the employees working in the workshop are part and partial of the irrigation department; rather in paragraph 5 of the counter affidavit, it has been stated that the petitioners belong to irrigation department. Once the petitioners are the employees of the State Government and also they have been admitted as employees of the Irrigation Department, only because they are discharging duty in the workshop shall not disentitle them to avail the service benefit at par with other employees of the irrigation department. Attention of this Court has not been invited to any rules, regulations or statutory provisions to make out a case that the service condition of the workshop employees are governed by different set of rules or regulations. In view of above, there appears to be no justification on the part of the respondents to treat the petitioners differently than other employees of the irrigation department. The impugned notice suffers from vice of arbitrariness and is discriminatory in nature.
Accordingly, the writ petition is allowed. A writ of certiorari is issued quashing the impugned notice dated 1.11.2003(Annexure-1) with consequential benefits."
In this backdrop, learned counsel for the petitioners submits that petitioners have also been discharging duties in the workshop but the same does not mean that they shall not be entitled to the service benefits at par with other employees of Irrigation Department, who have been accorded pension. The aforesaid order dated 11.10.2011 has been passed after exchange of affidavits. While passing the said order, the Court has specifically held that nothing has been brought on record to rebut the argument of petitioners that employees working in the workshop are not the part and partial of the Irrigation Department; rather in paragraph 5 of the counter affidavit, it has been stated that the petitioners belong to Irrigation Department. Once the petitioners are employees of the State Government and the same had also been admitted by the respondents while filing counter in the said case, then there shall not be any dis-entitlement of petitioners to avail the service benefits at par with the other employees of the Department. He informed to the Court that in the light of the observations made by this Court, the benefits have been extended to the petitioners in the said writ petition and age of their superannuation has been re-fixed to 60 years, as such, at this stage, the discrimination is being carved out in the case of petitioners and the same is in violation of Articles 14 and 16 of the Constitution of India.
Learned counsel for the petitioners has placed reliance on Section 2(d)(ii) of the Industrial Employment (Standing Orders) Act 1946, wherein, the employer has been defined as "in any Industrial Establishment under the Control of any department of any Government in India, the authority appointed by such Government in this behalf, or where no authority is so appointed, the head of the department." Thus, it is apparent that a Government may own industrial undertaking and in that circumstance, an employee working in such an industrial undertaking has to be held in service of Government and if the appointment is substantive and his service is to be paid by the Government, in such a situation, the employees would come under the purview of Regulation 361 of the Civil Services Regulation and accordingly, the petitioners are entitled for pension. The same view has been laid down in Gorakh Nath Pandey and others vs. State of U.P. and others5, wherein, the plight of the incumbents those were working in the U.P. Government Cement Factory Churk, Mirzapur and they had been devoid the pension and other retiral benefits has been considered and accorded relief in the light of observations made in Suresh Chandra vs. State of U.P. and others6. Relevant extract of the said judgement is reproduced as under:-
"12. The Court has perused the order dated 12.3.2013 passed in Writ Petition No.47974 of 2008 wherein this Court had quashed the order passed by the General Manager, District Industries Centre, Sonebhadra and the direction was issued for according fresh consideration to the representation of the petitioner in the light of the order dated 2.8.2005 as indicated above. A perusal of the order dated 2.8.2005 issued by the Commissioner and Director of Industries, U.P. shows that the aforesaid order takes into account the fact that the employees appointed in U.P. Cement Factory at the time when it was run and managed by the Industries Department, were government employees. It further takes into consideration that from 1.4.1972 till 31.3.1981, such government servants were treated to be on deputation with U.P. State Cement Corporation and stood absorbed w.e.f. 1.4.1981 to the service of the U.P. State Cement Corporation Ltd. The order further indicates that the services rendered by such employees prior to 1.4.1981 were the services rendered as government servants.
13. This much is also reflected that the office order referred to the Government order dated 1.7.1981, by which retiral benefits have also been sanctioned to the temporary employees, and as such, the order dated 2.8.2005 had fastened the liability upon the General Manager, District Industries Centre to scrutinize the relevant pension papers and to forward the same to the State Government and the office of Accountant General so that the relevant papers for pension could be processed. Surprisingly, in derogation to the office order dated 2.8.2005 the present impugned order has been passed by the General Manager, District Industries Centre, Sonebhadra.
14. It is not disputed by the respondents while responding to the present writ petition regarding their absorption prior to 1.4.1981 and as such, all the petitioners fulfilled the stipulation contained in the Government order dated 1.7.1989 and the office order dated 2.8.2005 and consequently they are entitled for the pension. It is relevant to indicate that by the Government order dated 1.7.1989 the State Government had proceeded to issue an order providing pension to temporary Government servants, who have completed minimum 10 years of regular service. Admittedly, services rendered by the petitioners since 1.4.1971 till 31.3.1981 were treated as on deputation with U.P. State Cement Corporation and their services stood absorbed w.e.f. 1.4.1981 to the services of U.P. State Cement Corporation Limited and finally they have attained the age of superannuation between the years 1994 to 2004. Even otherwise as per the Government order dated 1.7.1989, admittedly the petitioners have completed 10 years' of regular service and as such, they are entitled for the pensionary benefits.
15. The Court has perused the order impugned and find that the respondents had taken objection precisely on the ground that the case of petitioners is unsustainable in the light of provisions contained under Article 361 of Civil Services Regulation. The same cannot be sustained and is accordingly rejected. Once the respondent authorities had accorded certain benefits to the similarly situated employees, then the same cannot be denied to the petitioners.
The Court has also perused the Government order dated 1.7.1989 and the judgement of this Court in Suresh Chandra's case (supra) and find that the same is not applicable in the present facts and circumstances of the case.
16. In view of above, the impugned order cannot be sustained and is set aside.
17. The writ petition is allowed and the respondents are directed to calculate and pay the entire retiral dues of the petitioners within three months from the date of production of certified copy of this order."
Suffice to indicate that the said judgement has been approved/affirmed by the Division Bench of this Court in State of U.P. vs. Gorakh Nath Pandey7 reported in. Relevant paragraphs of the said judgement is quoted as under:-
"State of U.P. not being satisfied with the judgment and order of the learned Single Judge has filed this intra-court appeal.
Learned Advocate General of the State of Uttar Pradesh, Sri Raghvendra Singh challenges the correctness of the conclusions so drawn by the learned Single Judge. He would contend that the principle issue which requires consideration is as to whether the employees/workmen appointed in government cement factory, whose service conditions are governed by the Standing Orders certified under the Act, 1946 would be entitled to the benefits of pension under Civil Service Regulations or not.
He would submit that in terms of the Rule 7-B of the U.P. Fundamental Rules, the term Government Servant has been defined as a person appointed to a civil post or a civil service under the State Government, and serving in connection with affairs of Uttar Pradesh whose conditions of service have been or may be prescribed by the Governor under Section 241 (2) (b) of the Act.
Under Section 241 (2) (b) of the Government of India Act, 1935, the conditions of service of persons serving in a civil capacity in India could be prescribed, in the case of persons service in connection with the affairs of the Province, by rules made by the Governor or by a person authorized by the Governor to make rules for the purpose.
The Civil Service Regulations (Relating to Pension), in terms of Regulation 1 (a), are intended to define the conditions under which pension is earned by service in a Civil Department.
Therefore, the provisions of the U.P. Fundamental Rules as also the Civil Service Regulations would be applicable only to persons appointed to a civil post or a civil service under the State Government and serving in connection with the affairs of the State Government, or in other words to a Government Servant only.
In the facts of the present case the petitioners were industrial workmen with the meaning to be assigned as per the Standing Orders certified under the Act of 1946. Their conditions of service were governed by the Certified Standing Orders. The petitioners were thereof clearly not civil servant or holders of civil post under the definition of the term Government Servant contemplates the U.P. Fundamental Rules. They were not appointed to a civil post or to a civil service under the State Government so as to entitle them for pension which is earned by service in a Civil Department as required under the Civil Service Regulations.
Crux of the submission of the learned Advocate General therefore, is what once the petitioners are found to answer the description of workmen/industrial employees within the meaning of to be assigned under the Standing Orders Act, they stand excluded from the definition of a person appointed to a civil post or in civil service within the meaning of U.P. Fundamental Rules/Civil Service Regulations and therefore they are not entitled to pension.
We specifically inquired from the learned Advocate General as to under which provision of the U.P. Fundamental Rules/Civil Service Regulations/Standing Orders Act, any such exclusion in respect of the persons who are workmen are not being a person appointed to a civil post. No response could be given. It is more or less an admitted position that there is no specific provision for excluding the workmen/industrial employees in the matter of payment of pension/retiral dues, who otherwise satisfy all the conditions as contemplates by Regulation 361 of the Civil Service Regulations.
The Standing Orders Act has been enforced with an object to law down the condition of service like disciplinary action, leave, allowances etc. so as to minimize the fraction between the workmen and employer in Industrial Undertaking. Such Industrial Undertaking can be private undertaking or Government Undertaking or Public Private Undertaking. It is useful to refer to the definition of employer contained in Section 2 (d) (ii) of the Act, 1946, which reads as follows: "2. Interpretation.
(d) "employer".......
(ii) in any industrial establishment under the control of any department of any Government in India, the authority appointed by such Government in this behalf, or where no authority is so appointed, the head of the department;"
Thus, it will be seen that a Government may own industrial undertaking and in that circumstance, a employee working in such an industrial undertaking has to be held to be in service of Government and if the appointment is substantive and his service is to be paid by the Government, he stands covered by the provisions of Regulation 361 of the Civil Service Regulations, which entitles him to pension.
For ready reference, Regulation 361 of the Civil Service Regulations reads as under:
"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."
We may explain that use of the word "civil service" under Civil Service Regulations has to be read to include all nature of employment in the Government, except those which are in relation to defence service or service connected with defence.
Civil Service as defined in The New Dictionary of Cultural Literacy, Third Edition by Houghton Mifflin Company reads as under:
"The nonmilitary personnel who work for a government, applying its laws and regulations."
In our opinion the service conditions laid down as per the Certified Standing Orders, the Act, 1946 do not in any way impinge upon the right of a employee working in a Government Industrial Undertaking to be entitled to pension and other retiral dues under Regulation 361 of Civil Service Regulations. Provisions of Regulation 361 of the Civil Service Regulations are a beneficial piece of legislation and we do not find any reason for the persons who are covered by the Certified Standing Orders to be excluded from the benefits of Regulation 361 of the Civil Service Regulations, if they satisfy the other requirements of Regulation 361 of the Civil Service Regulations.
In our opinion even a workman/industrial employee of Government Industrial Undertaking has to be held to be a civil servant/holder of a civil post under the Government so as to be covered within the meaning of Regulation 361 of the Civil Service Regulations.
There is no issue with regard to other employees appointed in Factory at Churk and subsequently absorbed in the Corporation being paid pension in terms of the Government Order dated 2nd August, 2005.
We for the reasons recorded above see no reason as to why the workmen/industrial employees similarly appointed and absorbed be denied the same benefit. It is held that petitioners who answer the description of industrial employees/workmen shall also be covered by the Government Order dated 2nd August, 2005 and would be entitled to all benefits following therefrom.
In the totality of the circumstances on record we do not find any substance in the contentions raised by the learned Advocate General for the State to interfere with the judgment and order of the learned Single Judge dated 12th April, 2016.
All these appeals lack merit and are accordingly dismissed."
Learned counsel for the petitioners further submits that the petitioners had worked against substantive post since very beginning and their appointment is not at all from backdoor and time to time salary and other allowances, which were admissible to them, had been ensured in their favour and at this stage, they cannot be discriminated only on the ground that their services are governed with the Industrial Employment (Standing Orders) Act 1946 and Model Standing Orders, 1992 as well as other Labour Laws. In support of his submission, he has also relied upon the recent judgement passed by Hon'ble the Apex Court in the case of Prem Singh vs. State of U.P. and others8. The relevant extract of the said judgement is quoted as under:-
"29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.
36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed.
37. All pending interlocutory applications and miscellaneous applications, if any, are disposed of."
In this backdrop, he submits that the case of the petitioners are on better footing in comparison to the work charged employee and as such, the benefit of pension is liable to be extended to the petitioners, as such, the order impugned is unsustainable being in violation of Article 14 and 16 of the Constitution of India and thus, this Court should come to the rescue and reprieve of the petitioners.
Per contra, Shri Apurva Hajela, learned Standing Counsel has vehemently opposed the writ petition. On the basis of averment mentioned in the Counter Affidavit, he submits that the provisions and service conditions of employees of industrial workshop is different than the service conditions of regular establishment and the same is governed by the Industrial Employment (Standing Orders) Act 1946 and Model Standing Orders, 1992 issued by the Government. For the employees of Industrial Establishment under the provisions of Employees Pension Scheme 1995, the pension is payable by the Employee Provident Fund office, whereas, for getting the said benefit, the petitioners have not submitted the prescribed documents with signatures to the workshop officer instead they are claiming the pension as is admissible to the regular establishment employees, which is not admissible in law as the same would create a separate and distinct class and as such, this Court should not interfere in the matter.
Heard rival submission and perused the record.
In order to appreciate the controversy in hand, it would be relevant to have a glance of provisions contained in Uttar Pradesh Retirement Benefits Rules 19619 Rule 3(8) of the Rules 1961 which contains the provisions in respect of qualifying service is extracted hereunder:-
"Rule 3. In these rules, unless is anything repugnant in the subject or context-
(1) ........
(2) ........
(8) "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations.
Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except-
(i) periods of temporary or officiating service in a non-pensionable establishment.
(ii) periods of service in a work-charged establishment and
(iii) periods of service in a post paid from contingencies shall also count as qualifying service.
Note:- If service rendered in a non-pensionable establishment work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service." (emphasis supplied)"
Regulations 361, 368 and 370 of Uttar Pradesh Civil Services Regulations are also relevant. They are extracted hereunder:
"361. The service of an officer does not qualify for pension unless it conforms to the following three conditions: - First - The service must be under Government. Second - The employment must be substantive and permanent.
Third--The service must be paid by Government.
These three conditions are fully explained in the following Section.
368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.
370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post shall qualify, except -
(i) periods of temporary or officiating service in non-
pensionable establishment;
(ii) periods of service in work charged establishment; and
(iii) periods of service in a post paid from contingencies."
The qualifying service is the one which is in accordance with the provisions of Regulation 368 i.e. holding a substantive post on a permanent establishment. The proviso to Rule 3(8) clarify that continuous, temporary or officiating service followed without interruption by confirmation in the same or any other post is also included in the qualifying service except in the case of periods of temporary and officiating service in a non-pensionable establishment.
The provisions contained in Regulation 370 of the Civil Services Regulations excludes service in a non-pensionable establishment, work-charged establishment and in a post paid from contingencies from the purview of qualifying service. Under Regulation 361 of the Civil Services Regulations, the services must be under the Government and the employment must be substantive and permanent basis.
In the present case, nothing has been brought on record to indicate or suggest that the posts on which the petitioners were working are not substantive and permanent in nature. Contrarily, the petitioners have been given regular pay scale and other admissible allowances from time to time. Even it has not been shown to this Court that there was any break in service of the petitioners. More-so the order dated 13.01.2007 and 27.02.2009 passed by the Secretary of the Department concerned, clearly indicate that the employees of the Irrigation Department, who are working under the Industrial Establishment of the Department, have been treated as "Government Servants".
Once the services of the petitioners have been acknowledged, then there is hardly any scope to deprive them the pensionary benefits, as are available to other public servants. The equal protection of laws must mean the protection of equal laws for all persons similarly situated. Article 14 strikes at arbitrariness because an arbitrary provision involves negation equality. The law is never been stagnated. Now even a work charged employee, once his services is being regularized, he becomes a public servant and the said period is liable to be counted as qualifying service. [Ref: Prem Singh (supra)].
Once the temporary or officiating service under the State Government has to be recounted for determining the qualifying service, in such a situation, it cannot be accepted that the period spent by the petitioners in the Department is to be taken as workman in the Industrial Establishment and they can be accorded the parity with the regular employees.
In the Counter Affidavit at no point of time any objection has been raised that petitioners are not discharging duty commensurate to their post or to the similarly situated employees working in the regular establishment. Every plea raised in a petition has to be specifically denied and in the absence of a specific denial, the assertions made in the petitioner will normally be deemed to have been admitted or at least the court can proceed on the basis of that it is an un-controverted fact.
An artificial classification has to be made by the respondent authorities while passing the order impugned amongst the Government servants, who are eligible for pension. The distinction has been tried to be carved out is unsustainable in law and more-so once it has been acknowledged that the petitioners are Government Servants like other employees, then to deprive them for pension is not only unjust and inequitable but hit by principle of arbitrariness and the order impugned is liable to be struck down being in violation of Article 14 of the Constitution of India.
The Hon'ble Apex Court in Prem Singh (supra), while considering the plight of the work charged employee has directed that their engagement under the work-charged establishment shall be counted as qualifying service for the purpose of pension as they had retired from the regular establishment keeping in mind the provisions contained in Rule 3(8) of the Rules 1961 as well as the instructions contained in Para 669 of the Financial Handbook. 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. While passing the said order, the Court has also considered the decision in the case of Secretary, State of Karnataka & Ors. v. Uma Devi10, wherein, it has been 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, as such, the Court has held that 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 and direction has been issued to treat their services as a regular one.
In Kesar Chand v. the State of Punjab11, has been rendered by Full Bench of Punjab and Haryana High Court. The Rule 3.17 (ii) of the Punjab Rules came up for consideration before the Full Bench which reads as under:
Rule 3.17. "if an employee was holding substantively a permanent post on the date of his retirement, his temporary or officiating service under the State Government, followed without interruption by confirmation in the same or another post, shall count in Full as qualifying service except in respect of -
(i) periods of temporary or officiating service in non-pensionable establishment;
(ii) periods of service in work-charged establishment; and
(iii) ......"
A Full Bench of the High Court in Kesar Chand (supra) has discussed the matter thus:
"19. In the light of the above, let us examine the validity of rule 3.17(ii) of the Punjab Civil Services Rules, Vol. II. This rule says that the period of service in a work-charged establishment shall not be taken into account in calculating the qualifying service. After the services of a work-charged employee have been regularised he becomes a public servant. The service is under the Government and is paid by it. This is what was precisely stated in the Industrial Award dated June 1, 1972, between the workmen and the Chief Engineer, P.W.D. (B. & R), Establishment Branch, Punjab, Patiala, which was published in the Government Gazette dated July 14, 1972. Even otherwise. the matter was settled by the Punjab Government Memo No.14095-BRI (3)-72/5383 dated 6th February 1973(Annexure P7) where it was stated that all those work charged employees who had put in ten years of service or more as on 15th August 1972, their services would be deemed to have been regularised. Once the services of a work-charged employee have been regularised, there appears to be hardly any logic to deprive him of the pensionary benefits as are available to other public servants under Rule 3.17 of the Rules. Equal protection of laws must mean the protection of equal laws for all persons similarly situated. Article 14 strikes at arbitrariness because an arbitrary provision involves negation 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 regularisation 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 regularised subsequently, and the others are based on any intelligible criteria and, therefore, is not sustainable at law. After the services of a work-charged employee have been regularised, he is a public servant like 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."
The Hon'ble Apex Court in Punjab State Electricity Board vs. Natara Singh12 has once again considered the question of determination of qualifying service for grant of pensionary benefits, in particular, the benefit of previous service in work-charged capacity with the State Government and whether it can be included as pensionable service. The relevant extract of the said judgement is as follows:-
""25. In Kesar Chand v. State of Punjab 1988 (5) SLR 27 (P&H) the Full Bench held that Rule 3.17(ii) of the Punjab Civil Ser- vices Rules was violative of Article 14 of the Constitution of In- dia. 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 un- der 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 out- side 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 em- ployees of the State of Punjab has no factual basis. It is true that the State Government has power to frame rules governing ser- vices 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 institu- tion and issuance of instructions to fill up the gap in the fields where statutory provisions do not operate, is recognised as a val- id mode of administration in modern times.
40. So far as this argument is concerned, it is true that the Divi- sion 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 de- cision 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 appel- lants to count the period of service rendered by Respondent 1 in work-charged capacity with the State Government for determin- ing qualifying service for the purpose of pension. Further, Re- spondent 1 has been directed to deposit the amount of Employ- ee's Contributory Fund which he had received from the appel- lants along with interest as per the directions of the Board before the pension is released to him." (emphasis supplied)"
In Habib Khan v. the State of Uttarakhand13, State Public Services Tribunal directed the counting of the service rendered by a work-charged employee as ''qualifying service' for the pension. Writ Petition No.24 of 2007 was filed by the State of Uttarakhand against the said order. The same was dismissed by the Uttarakhand High Court. Against the said order Special Leave to Appeal was filed by the State which was also dismissed. Later on, the Full Bench of the Uttarakhand High Court took the view that the period of work-charged service cannot be counted for computation of the period of ''qualifying service'. Based on Full Bench decision, review of the order dismissing Writ Petition No.24 of 2007 was sought which was allowed by order dated 27th July 2012 the same was questioned before the Hon'ble Apex Court, then the SLP was dismissed as withdrawn. Based on review petition, the matter was re-heard and the High Court vide order dated 26th May 2015 has held that the work-charged service cannot be counted for reckoning of the period of ''qualifying service'. The decision of the Full Bench of the Uttarakhand High Court passed after the grant of review petition came up for consideration before the Hon'ble Apex Court and after placing reliance on the judgement passed in Kesar Chand (supra) and Natara Singh (supra), the Apex Court has held that the service rendered by the apellant as work-charged employee should be computed as qualifying service for grant of pension. The relevant extract of the said judgement dated 23.08.2017 reads as follows:-
"6. The pari materia provision contained in Rule 3.17(ii) of the Punjab Civil Services Rules had been struck down by a Full Bench decision of the Punjab and Haryana High Court in Kesar Chand vs. State of Punjab and ors. (supra). The challenge by the State against the aforesaid decision of the Full Bench of the Punjab and Haryana High Court was negatived by this Court.
The matter came up for consideration before this Court, once again, in the case of Punjab State Electricity Board and anr. Vs. Narata Singh and anr. (2010) 4 SCC 317. While dealing with the said question this Court in paragraph 25 of the report held that the Full Bench decision of the Punjab and Haryana High Court was perfectly justified in striking down Rule 3.17(ii) of the Punjab Civil Services Rules resulting in obliteration of the distinction made in the said Rules between 'temporary and officiating service' and 'work-charged service'. On the said basis, this Court took the view that the period of work-charged service should be reckoned for purposes of computation of ''qualifying service' for grant of pension.
7. As already observed, the provisions of Rule 370 of the Civil Service Regulations applicable to the State of Uttarakhand are pari materia with the provisions of Rule 3.17(ii) of the Punjab Civil Services Rules, discussed above. If that is so, 'we do not see as to why the period of service rendered on work-charged ba- sis by the appellants should not be counted for purposes of com- putation of 'qualifying service' for grant of pension. The pari ma- teria provisions of Rule 3.17 (ii) of the Punjab Civil Services Rules having been interpreted and understood in the above man- ner by this Court in Narata Singh (supra) we do not find any room for taking any other view except to hold that the appellants are entitled to reckon the period of work-charged service for purposes of computation of ''qualifying service' for grant of pen- sion. We order accordingly; allow these appeals and set aside the impugned orders passed by the High Court.
8. All necessary and consequential benefit in terms of the present order will be paid and granted by the State to the appellants forthwith and without any delay."
In the present matter, this Court is of the considered opinion that the case of petitioner is on much better footing than the petitioners (work-charged employees) of Prem Singh (supra) and their services are liable to be considered for computation of length of services for extending the pensionary benefits as in the present matter, the petitioners have been appointed on substantive post in regular capacity and they had rendered their continuous service and the State Government had also accorded regular pay scale and other allowances admissible to the similarly situated other Government employees, in such a situation, after the retirement, it cannot be accepted that the services of petitioners would come under the Labour Laws, hence they are not entitled for pensionary benefit at par with Government employees.
The order impugned is unsustainable and the same is set aside.
Consequently, the Writ Petition is allowed. It is held that the petitioners are entitled for pension and other benefits as is admissible to the similarly situated employees of the State Government from the date of their superannuation. Let the admissible benefits be ensured in favour of petitioners in the light of above observations within the period of three months from the date of production of certified copy of this order.
Order Date :- 14.01.2020 A.Pandey