Allahabad High Court
State Of U.P.Thro.Prin.Secy.Public ... vs Prem Chandra And Ors. 8577(S/S)2010 on 13 May, 2013
Bench: Uma Nath Singh, Mahendra Dayal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ? Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 264 of 2013 Petitioner :- State Of U.P.Thro.Prin.Secy.Public Works Deptt.Lko.& Ors. Respondent :- Prem Chandra And Ors. 8577(S/S)2010 Petitioner Counsel :- C.S.C. Respondent Counsel :- A.M.Tripathi AND Special Apepal No. 275 of 2007 State of U.P. and others Vs. Udai Bhan Mishra AND Special Apepal No. 583 of 2007 State of U.P. and others Vs. Basant Ram Sahrma AND Special Appeal No. 182 of 2008 State of U.P. and others Vs. Mohd. Khalil AND Special Apepal No. 722 of 2009 State of U.P. and others Vs. Mohd. Mustafa AND Special Appeal No. 601 of 2011 State of U.P. and others Vs. Rabibul Khan Hon'ble Uma Nath Singh,J.
Hon'ble Mahendra Dayal,J.
Order (Oral) We have heard learned counsel for parties and perused the pleadings of the Special Appeal. This order shall dispose of all the connected appeals, for, they impugn the same cause of action with some what similar facts.
The private respondents herein were engaged as the daily wager employees in the Public Works Department at Ghaziabad. Having found their work and conduct satisfactory and up to the mark, they were granted status of work charged employees in the department with effect from 1.7.1989, 1.6.1984 and 1.7.1989 respectively. They were later appointed as Beldar and Chaukidar. It also appears that all the private respondents worked continuously from the date of their engagement till the date of retirement on 31.1.2009. Thus they worked for over 31 years, namely, around 20 years as work charged employees and over 10 years as regular employees. It appears that respondents no.1 and 2 were regularized on 1.4.1999 while no.3 became regular on 24.7.1999.
During their engagement as work charged employees several substantive posts became vacant on account of death, retirement and resignation of regular employees, but despite the continuous service they were not considered for regularization. Thus they filed a writ petition before this Court, which has been decided by the impugned order dated 9.9.2011 by granting parity with similarly situated employees, who filed Writ Petition No. 2637(S/S) of 2009: Mohd. Mustafa versus State of U.P. and others, which is reported in 2009 (27) LCD 1163, and wherein this Court has granted them the pensionary benefits.
Learned counsel for the appellant- State of U.P. argues that since the respondents were engaged for about 20 years as work charged employees and remained regularized for less than 10 years, they do not possess the qualifying service for the purpose of grant of pensionary benefits. Learned counsel referred to Regulation 370 of the U.P. Civil Service Regulation in support of his contention that even though the respondents worked continuously for over 31 years but since they worked for about 20 years in work charged establishment, they failed to qualify for the grant of pensionary benefits in the absence of 10 years regular service with the department.
On the other hand, learned counsel for private respondents Shri A.M. Tripathi submitted that there was a parallel provision in Punjab Civil Services Rules, namely, 3.17 (ii) which was considered by a Full Bench of the Punjab and Haryana High Court in the matter of Kesar Chand v. State of Punjab and others (reported in AIR 1988 Punj & Har 265) and the provision having not been found sustainable was quashed. The matter was taken up before the the Apex court but the judgment of the Full Bench was upheld. Thus a parallel provision existing in the service regulation of U.P. have to be read down to conform to the judgment of Hon'ble the Apex Court in the case of Kesar Singh (supra).
On due consideration of rival submissions, we dismiss the special appeal for reasons that the learned Single Judge has granted parity with a similarly situated employee as referred to herein above, namely Mohd. Mustafa; and that in a similar case a Full Bench of the Punjab and Haryana High Court has quashed the provision which was upheld by the Hon'ble Apex Court in appeal: the judgment of the Full Bench has merged into the judgment of the Hon'ble the Apex Court reported in AIR SCW 1670 (Punjab Electricity Board and another v. Narata Singh and another). Thus the provisions of regulation 370 of the U.P. Civil Service Regulation have to be read down in line with judgment of Hon'ble the Apex Court in the absence of challenge to the validity of the regulation in this petition or in any other petition earlier.
Regarding the application for condonation of delay in filing the Special Appeal, as learned counsel for the respondents does not have any objection to the application being allowed it is hereby allowed and the delay as pointed out by the registry is thus condoned.
The special appeal, being devoid of merit, is dismissed.
Order Date :- 13.5.2013 Muk