Allahabad High Court

Mool Chand vs State Of U.P. And 2 Others on 18 October, 2019

Author:
Suneet Kumar

Bench:
Suneet Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 2

Case :- WRIT - A No. - 2773 of 2017

Petitioner :- Mool Chand

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Mohd. Sarwar Khan,Akhilesh Kumar Singh,Avinash Dube

Counsel for Respondent :- C.S.C.

Hon'ble Suneet Kumar,J.

1. Civil Misc. Withdrawal Application No. 11 of 2019

Shri Akhilesh Kumar Singh, learned counsel states that he was subsequently engaged as counsel for the petitioner. On instructions, he submits that the application to withdraw the petition may be dismissed as not pressed and the matter be decided on merit.

Accordingly, withdrawal application is dismissed as not pressed.

2. Order on memo of petition

Heard Sri Mohd. Sarwar Khan, learned counsel for the petitioner and learned Standing Counsel.

Petitioner was given temporary appointment in regular pay scale on 14 October 1986, as Godown Chowkidar, by the Regional Food Controller, Region Agra. Petitioner worked continuously and was regularized on 2 January 2006, in the pay scale of 2550-3200. Petitioner retired on attaining the age of superannuation on 31 August 2013. Petitioner was not paid retiral dues, aggrieved, petitioner filed a petition being Writ - A No. 60607 of 2014, which came to be disposed of vide order dated 16 October 2015, directing the second respondent-Regional Food Controller, Agra Region, Agra, to consider the claim of the petitioner. Pursuant thereof, by the impugned order dated 19 March 2016, representation has been rejected on the sole ground that since petitioner has not put in 10 years of regular substantive service, therefore, is not entitled to pension under the Government Order.

Learned counsel for the petitioner submits that it is not disputed by the respondents that the petitioner has put in more than 27 years of regular service since 1986, thereafter, petitioner was regularized in 2006. Petitioner was given throughout the regular pay scale and increments were paid to him, as is reflected from the service book brought on record. Merely for the reason that the petitioner has not put in substantive service for 10 years, he cannot be deprived of retiral dues by counting the past service.

Learned standing counsel does not dispute the facts, but submits that the stand taken in the counter affidavit that since the petitioner has not put in 10 years of substantive service, petitioner is not entitled to retiral dues under the Government Order and Rules.

It is not being disputed that the petitioner came to be appointed Chowkidar against a regular post, he was given pay scale and earned increments. Petitioner subsequently was regularized on the post. Throughout he worked as temporary employee on pensionable establishment of the State Government.

The Division Bench of this Court in Hari Shankar Asopa Versus State of U.P. and another1, was considering as to whether a temporary government servant appointed against the substantive post and continued as lecturer, reader and professor of surgery is entitled to retiring pension upon seeking to retire voluntarily. The Court upon considering the Articles 465 and 465A of the Civil Service Regulations read with Financial Hand Book Volume-II Part 2 to 4 made the following observation:

"16. The requirement of employment being substantive and permanent, which is one of the three basis constituents of ''qualifying service', envisaged in Articles 465 and 465-A has ceased to be sine qua non for earning a retiring pension by service under the Government of Uttar Pradesh after 7th June, 1975 with effect from which date the Uttar Pradesh Fundamental Rule 56 (amendment and Validation) Act, 1975 U.P. Act No. 24 of 1975), amending Rule 56 of the Rules and rescinding Articles 465 and 465-A of the Regulations, has been enforced. Now the source for attaining the right to retiring pension in R. 56.............

Clause (e) of Rule 56 unequivocally recognises, declares and guarantees retiring pension to every Government servant who retires on attaining the age of superannuation or who is prematurely retired or who retires voluntarily. To be precise, every Government servant (whether permanent or temporary) who retires under Cl. (a) or Cl. (b). or who is required to retire, or who is allowed to. Retire under Cl. (c) of R. 56, becomes entitled for a retiring pension, provided, of course, the first and third conditions stipulated in
Article 361
of the Regulations are satisfied."

The Court accordingly held that person appointed temporarily against a substantive vacancy is entitled to retiring pension in view of Rule 56 of the Fundamental Rules.

In Shakuntala @ Brahmo Devi (Smt.) Versus Director of Pension2, the learned Single Judge of this Court was called upon to consider whether a temporary government servant rendering 34 years of service upon being compulsory retired is entitled to pensionary benefit. While deciding the issue the Government Order dated 1 July 1989, provided that government servants not rendering ten years of regular service are not entitled for pensionary benefits. The Court taking note of the provisions of
Articles 361
, 424, 465 of the Civil Service Regulations and Fundamental Rule 56 observed as follows:

"10...........By Government order dated 1.7.1989, it was provided that temporary Government servants who have rendered ten years regular service are also entitled for the retirement benefits. The aforesaid Government order was issued with intent to extend the pensionary benefits to temporary Government servants, which is clear from the first paragraph of the Government order. Paragraph 2 of the Government order further provides that those temporary Government servants who have completed minimum ten years regular service on the date of retirement/superannuation or who have been declared invalid by the appointing authority will be entitled to the superannuation/invalid pension, gratuity, family pension as admissible to a permanent employee. Paragraph 3 further provides that this provision will also be applicable in those cases where permission has been granted for voluntary retirement in accordance with the fundamental Rule 56. The Government order does not specifically provide that the persons who are compulsorily retired will not be given the benefit........

11.............. Thus, the intendment of Rule 56 (e) is to provide retirement pension to every Government servant who retires or is required to retire under Rule 56. Thus the intendment of statutory Rule 56 (e) is to extend benefit of retiring pension to both category of persons, i.e., persons compulsory retired or persons voluntarily retired. From the above intendment of rule, it is clear that no distinction or discrimination has been maintained with regard to payment of retiring pension to persons voluntarily retired or compulsorily retired. Thus, by Government order dated 1.7.1989 the temporary Government servant compulsorily retired cannot be excluded from benefits of retiring pension. When the statutory Rule, i.e., 56 (e) does not maintain any distinction with regard to payment of retiring pension to persons compulsorily retired and voluntarily retired, no such classification can be created by a Government order, which is an executive order. The object of the Government order as noted above was to extend pensionary benefits to temporary Government servants who have rendered ten years regular service. Thus, the persons compulsorily retired cannot be excluded from the pensionary benefits and if it is accepted that the Government order dated 1.7.1989 creates such classification, then the said classification will be arbitrary and unreasonable. It is thus held that the benefit of Government order dated 1.7.1989, is also available to the temporary Government servants who are compulsorily retired. There is no rational basis for any such classification nor there can be any valid object for such classification."

The Court upon perusal of the Government order dated 1 July 1989 was of the opinion that the Government order refers to "regular service" and not "substantive service". The Court explained what was meant of regular service. Relevant portion of the order reads thus:

"12........The words **nl o"kZ dh fu;fer lsok iw.kZ dj yh gks*A** used in the Government order dated 1.7.1989, means completion of ten years regular service. Words "regular service" has not been defined in the Government order. From a reading of the Government order, it is clear that the word "ten years regular service" has been referred to the service rendered and not to the status of employee, an employee substantively appointed and permanent is automatically entitled for pension. The Government order dated 1.7.1989 does not contemplate ten years substantive service. The word "regular service" used in the Government order is not anonymous to substantive service. Admittedly, the benefit by Government order is to be extended to temporary Government servants. The temporary Government servant cannot be said to have substantive or regular service.
Thus, the word "regular service" used in the Government order dated 1.7.1989 has not been used as specifying the capacity or status of its holder rather. The word "regular service" has been used to denote and specify the nature of service rendered. The emphasis is that service should be "regular". While defining the word 'regular', the Apex Court in
Mrs. Raj Kanta v. Financial Commissioner, Punjab and another
, AIR 198O SC 1464, has held in paragraph 10 as under :

"To begin with, the word "regular" is derived from the word "regula" which means 'rule' and its first and legitimate signification, according to Webster, is conformable to a rule, or agreeable to an established rule, law, or principle, to a prescribed mode. In Words and Phrases (Vol. 36A P. 241) the word "regular" has been defined as 'steady or uniform in course, practice or occurrence, etc., and implies conformity to a rule, standard, or pattern'. It is further stated in the said Book that 'regular' means steady or uniform in course, practice, or occurrence, not subject to unexplained or irrational variation. The word 'regular' means in a regular manner, methodically, in due order. Similarly, Webster's New World "Dictionary defines 'regular' as 'consistent or habitual in action', not changing, uniform, conforming to a standard or to a generally accepted rule or mode of conduct'."

13. From the above passage of the Apex Court's judgment, it is clear that service of a temporary employee should be in regular manner, methodically, in due order.

14. Government order dated 1.7.1989 meant ten years of temporary Government servant should be regular in nature meaning thereby that if the temporary Government servant has performed his duties irregularly, i.e, with gaps of years, his service may not be treated to be regular. .........."

The decision was considered by the subsequent Division Bench in Board of Revenue and others Versus Prasidh Narain Upadhyay3. The issue before the Court was whether a seasonal collection peon subsequently confirmed is entitled to pension on rendering 36 years of the continuous service. The plea of the State-respondent that since the petitioner therein had not completed 10 years of substantive service after confirmation is not entitled to pension was rejected.

In
Yashwant Hari Katakkar v. Union of India
and ors.4, it was held that an employee who has served more than 20 years is entitled to pension and denial of retiring pension to the petitioner on the ground of not being permanent on any post clearly is violative of Clause (e) of Fundamental Rules, 56. The department cannot keep a person temporary or on daily wages indefinitely.

In
A.P. Srivastava v. Union of India and Ors.5
, the Supreme Court has clearly taken a view that in case of a temporary employee who has rendered 20 years of service is entitled to pension. In the expression 'substantive capacity' the emphasis imparted by the adjective 'substantive' is that a thing is substantive if it is essential part of the constituent or relating to what is essential. Therefore, when a post is vacant, however, designated in officilase, the capacity in which the person holds the post has to be ascertained by the State. The substantive capacity refers to capacity in which person holds the post and not necessarily to the nature and character of the post. Thus, a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially for a long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation.

((Refer Ram Pratap V. State of U.P.6,
Babu Singh V. State of U.P.7
,
Kedar Ram-I v. State of U.P.8
,
Ram Sajiwan Maurya v. State of U.P.
and others9,
Kanti Devi v. State of U.P.10
,
Kishan Singh v. State of U.P.11
,
Awadh Bihari Shukla v. State of U.P.12
)

The Division Bench of this Court in
State of U.P. and others v. Mahendra Chaubey13
, allowed the claim for pension of a seasonal collection amin whose temporary service was followed by substantive appointment despite the petitioner therein having not rendered 10 years substantive service after regularization.

The principle that emerges from the spectrum of the decisions is that a temporary employee appointed on the regular establishment of the Government is entitled to pension under Fundamental Rule 56. The nomenclature viz. ad hoc, temporary, daily wage/work charge is of no relevance. The incumbent must have rendered continuous regular service which certainly does mean substantive service.

A three Judge Bench of the Supreme Court in
Prem Singh vs. State of Uttar Pradesh14
was considering the question, as to whether, Rule 3(8) of the U.P. Retirement Benefits Rules, 196115 and Regulation 370 of the Civil Services Regulation of Uttar Pradesh should be struck down having regard to the fact that the Supreme Court had upheld the pari materia provision enacted in the State of Punjab which excluded computation of the period of work-charged services from qualifying service for pension.

The appellant before the Supreme Court was a work-charged employee having put in more than three decades of service, pension was declined as the appellant had not put in 10 years of regular service after regularisation. The question posed was whether after regularization employees are entitled to count their past service. The Court made the following observations:

"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. 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 and others vs. 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 relegate 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."

Applying the precedents on the facts of the instant case, it is evident from the material placed on record that petitioner was appointed in 1986 against a substantive post in a pay scale. The pay-scale came to be revised regularly. In the circumstances, it is not open to the respondents to deny the petitioner pension discarding the past service rendered by the employee.

The Supreme Court in
Prem Singh
(supra) upon reading down Rule 3(8) of the U.P. Recruitment Benefits Rules, 1961, and striking down Regulation 370 of Civil Service Regulation held that in case the employee was appointed in the regular establishment and retired therefrom on rendering continuous service is entitled to count past service for computation of pension. The mandate was made applicable to all such employees who were not regularised despite rendering service on the regular establishment for over three decades.

In the facts of the case in hand, the employee admittedly came to be employed against a regular post on temporary basis. The revised pay was paid from time to time. The employee thereafter came to retire.
In the circumstances, the principle of law declared in
Prem Singh
(supra) would entitle the petitioner for pension.

The writ petition is, accordingly, allowed by passing the following order:

i) the impugned order dated 19 March 2016 passed by the second respondent-Regional Food Controller, Region Agra, Agra, is set aside and quashed;

ii) post retiral dues/pension of the petitioner shall be granted within two months from the date of filing of certified copy of this order, failing which, petitioner shall be entitled to interest @ 6.5% on the entire sum from the due date.

Order Date :- 18.10.2019

Mukesh Kr.