Case: PREM SINGH Vs. THE STATE OF UTTAR PRADESH SECRETARY

3. The facts are being narrated from Prem Singh v. State of Uttar Pradesh (C.A. No.________of 2019 @ SLP (Civil) No.4371 of 2011). The appelant was appointed as a Welder in the year 1965 in a work- charged establishment (Ram Ganga River Valley Project, Kalagarh). He was transferred from one place to another and thereafter ultimately the Selection Committee recommended for regularization of his services. His services were regularized on 13.3.2002 and was posted as Pump Operator in the pay scale of Rs.3050-4590 in the regular establishment. He superannuated on 31.1.2007. Then he filed a writ petition in the High Court on 31.7.2008 to count period spent in the work-charged establishment as qualifying service under the Rules of 1965. The High Court directed to submit a representation, accordingly it was filed which met with rejection on 12.12.2008. Yet another representation filed also met with the same fate vide order dated 23.3.2009. The writ petition and special appeal had been dismissed.The appellant has placed reliance upon the decision of this Court in Habib Khan vs. State of Uttarakhand (Civil Appeal No.10805-10807 of 2017) in which a Division Bench of this Court considering Regulation 370 of the Civil Service Regulations which has been approved in the State of Uttarakhand after its bifurcation from the State of Uttar Pradesh, held that Regulation 370 is pari materia provision to the one as contained in Rule 3.17 (ii) of the Punjab Civil Services Rules which had been struck down by a Full Bench decision of Punjab and Haryana High Court in Kesar Chand vs. State of Punjab and Ors. (supra). The challenge to the same was rejected by this Court. The Court has further relied on Punjab State Electricity Board & Anr. v. Narata Singh and Anr., (2010) 4 SCC 317     in which it has been observed that the High Court of Punjab and Haryana was perfectly justified in striking down Rule 3.17(ii) of Punjab Civil Services Rules resulting in obliteration of the distinction made in said rule between temporary and officiating service and work-charged service. This Court held that period of work-charged service should be counted for computation of qualifying service for grant of pension.This Court in other cases has followed the aforesaid decision in Habib Khan v. State of Uttarakhand (supra) giving relief to the employees. In Ram Deo Tiwari v. State of Uttar Pradesh & Ors. (Civil Appeal No.2896 of 2018) decided on 16.3.2018, the decision of Habib Khan (supra) has been followed. This Court has dismissed the Review application filed in the case of Habib Khan (supra).

Court's reasoning:
18. In Punjab State Electricity Board v. Narata Singh (2010) 4 SCC 317  , this Court once again considered the similar question of determination of qualifying service for grant of pensionary benefits, in particular, the benefit of the previous service in work-charged capacity with the State Government and whether it can be included as pensionable service. The Punjab State Electricity Board by Circular dated 25.5.1985 adopted policy decision of State Government contained in the letter dated 20.5.1982. The effect of the adoption of the policy decision was that temporary employees who had been retrenched from the services of Central/State Government and have succeeded in obtaining employment in Punjab State Electricity Board are entitled to count prior service rendered under Central/State Government, to the extent, such service was qualified for grant of pension under the rule of Central/ State Government. Relying upon Kesar Chand v. the State of Punjab (supra) it has been held that employee holding substantively a permanent post on the date of retirement is entitled to count in full as qualifying service the period of service rendered in the work-charged establishment. Thus, the department could not have excluded the same on the ground that it was rendered on the non-pensionable establishment.In view of the observations made by this Court in Jaswant Singh case (supra), it cannot be disputed that work-charged employees are appointed for a particular project and it was observed that their status was better than temporary employees. Though they cannot claim quasi-permanent status. At the same time, work-charged employees could claim their benefits under the provisions of the Industrial Disputes Act. This Court at the same time had observed that the time has come that Government should frame specific rules concerning service conditions of work-charged employees to dispel all doubts and confusion. The work-charged employees in the Jaswant Singh (supra) were appointed for a particular project and thereafter on completion of the same they were removed. The question involved in the present matters is different, whether after regularization employees are entitled to count their service. The question involved in Jaswant Singh (supra) was different and no such rule like Rule 3(8) of Rules of 1961 was involved.In the State of Rajasthan, the Public Works Department is maintaining two separate establishments: (1) Regular and (2) Work-charged. The employees working in the regular establish- ment are governed by the RSR and the work-charged employees are governed by the Work-charged Employees Service Rules. The RSR are made inapplicable, inter alia, to the work-charged employees. The work-charged employees fall under two catego- ries: (1) those who are working on a project and (2) those who are not working on a project. It appears that for the workmen en- gaged in the work-charged establishment of Mahi Bajaj Sagar Project the Government has framed separate standing orders un- der the Industrial Employment (Standing Orders) Act, 1946 and they apply to all persons engaged in work-charged establishment of the said Project whose terms of service are not regulated by the RSR, Rajasthan Civil Service (Classification, Control, and Appeal) Rules and any other Rules framed under Article 309 of the Constitution by the Government of Rajasthan. The standing orders provide not only for classification, recruitment, and ter- mination of service but also for wages and allowances and other service conditions of the persons engaged in the Mahi Project. Whereas the employees who are not working on a project get work-charged pay scale those who are working on a project get a special pay scale and they are also entitled to other benefits and allowances as are applicable to all the employees covered under the Industrial Disputes Act, 1947, Factories Act, 1948 and Indus- trial Employment (Standing Orders) Act, 1946. The petitioner and other employees represented by him are undisputably gov- erned by the said certified standing orders. They are not treated as full-time government employees and, therefore, are free to uti- lise their free time in the manner they wish. They are also enti- tled to grant of overtime wages. A sub-division is regarded as a unit for the purpose of establishment of the work-charged em- ployees. A separate seniority list of each category is maintained in each unit for the purpose of promotion as well as retrench- ment. The service of a work-charged employee is ordinarily not transferable from one work-charged establishment to another work-charged establishment.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.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.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 aforesaidfind 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.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.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.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 Courts 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.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.It is apparent from the aforesaid discussion that it would depend upon the service rules or schemes whether the period of work-charged service has to be counted for ACP, in case provision has been made under a particular statute, rule or scheme, service rendered as work- charged employees can be counted. It would depend upon the relevant provision of which benefit is claimed. Again, this Court has emphasized that by its very nature of employment work-charged employees have not to continue for long, employment comes to an end with the project.