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2012 DIGILAW 1349 (ALL)

HARI BABU SHUKLA v. STATE OF U. P.

2012-06-01

SUNIL HALI

body2012
Sunil Hali, J. In order to resolve the controversy involved in this petition certain facts are required to be taken note of. The petitioner no. 1 was appointed on 26.6.1980 as Mali in User Sudhar Yojana and the petitioner no. 2 was appointed on 1.9.1984 as Van Rakshak in Beehad Sudhar Yojana. The society namely Agragami Kshetra Vikas Agency, Ajeetmal, Etawah was merged into Agragami Vikas Yojana, Ajeetmal, Etawah which was a project for the development of the area started since 1948. The petitioners were absorbed in Agragami Vikas Yojna, Ajeetmal, Etawah and were given work of Kamdar & Chaukidar respectively. The order in this respect was passed on 14.3.1997. On 1.5.2003 the petitioner no. 1 was confirmed as Kamdar in the Agragami Vikas Yojna, Ajeetmal, Etawah whereas the petitioner no. 2 was confirmed as Chaukidar on 1.6.2004. Both the petitioners retired on 31.1.2007 after completing their 60 years of age. By the order dated 2.3.2007, the total period of service rendered by the petitioners for the purposes of computing the pension payable to them showed that their service was less than ten years. On the basis of lack of qualifying service, they have been denied pensionary benefits. This order has been questioned by the petitioners in this Court. The contention of the petitioners is that some of similarly situated employees were allowed pensionary benefits even though they did not have requisite qualifying service which would entitle them to receive pension. The petitioners further submit that they had put more than twenty years of qualifying service in the Department as such they were eligible to receive pensionary benefits. Learned counsel for the respondents submits that as the petitioners prior to their confirmation were working in work charge establishment as such they would not be entitled to pensionary benefits. The plea of discrimination raised by the petitioners is ill founded as persons who have been given pensionary benefits were not similarly situated with the petitioners. They were continuously working on temprorary or officiating basis under the Government of Uttar Pradesh. The petitioners were brough on regular service with effect from 1.3.1997 and as such they did not have the qualifying service of 20 years to make them eligible for pension. I have heard learned counsel for the parties and perused the record. The facts of the present case are not in dispute. The petitioners were brough on regular service with effect from 1.3.1997 and as such they did not have the qualifying service of 20 years to make them eligible for pension. I have heard learned counsel for the parties and perused the record. The facts of the present case are not in dispute. The only question, i.e. required to be determined is as to whether period of service rendered in the work charge establishment before their regularisation can be taken into consideration for determining their qualifying service. Article 370 of the Civil Service Regulation provides that any employee, who was working continuously on a temporary or officiating service withount interruption, would be entitled to pensionary benefits after its confirmation on the said post. Article 370 of Civil Service Regulation is quoted hereinbelow:- "370.- Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except:- ( I)periods of temporary or officiating service in not-pensionable establishment. ( II)periods of service in work-charged establishment; and ( III)periods of service in a post paid form contingencies." The case of the petitioner is covered by exception provided under Article 370 of the C.S.R.. In terms of the Article 370, the time spent by the petitioner in the work charge establishment would not be considered for computing the qualifying service so as to become eligible for pension. Similar provision exists in Rule 3.17 of the Punjab Civil Services Rules, which is quoted hereinbelow:- "Rule 3.17.- If any 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 services 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) * * *" The similar issue was raised before the Hon'ble Punjab and Haryana High Court in the case of Kesar Chand Vs. State of Punjab and others reported in AIR 1988 Punjab and Haryana 265 wherein the following observation was made:- "19....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. State of Punjab and others reported in AIR 1988 Punjab and Haryana 265 wherein the following observation was made:- "19....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 is not 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 any 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 Full Bench Judgment of the Punjab High Court in the of Kesar Chand ( supra) was carried before the Apex Court by way of filing special leave petition. While dismissing the special leave petition, the Apex Court relied upon two Judgments of the Apex Court in the cases of Subrata Sen Vs. Union of India, ( 2001) 8 SCC 71and D.S. Nakara Vs. Union of India, ( 1983) 1 SCC 305 . Following observations were made by the Apex Court in the case of Subrata Sen ( supra):- "14....As observed in Nakara case pension is neither a bounty, not a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in the lurch." The courts were examining the issue of unequility adopted in the matter of granting pension to persons who belong to the weaker sections of the society. As observed hereinabove the classification has been brought into play by excluding those persons from pension who were put in work charge establishment and those who were appointed temporarily but working in the government establishment. As observed hereinabove the classification has been brought into play by excluding those persons from pension who were put in work charge establishment and those who were appointed temporarily but working in the government establishment. It was observed that there was no intelligible criteria in making such classification, therefore the same is not sustainable. The Apex Court emphasised that after the services of a work charged employees have been regularised, they are public servants like other servants. Depriving them from pension is not only unjust and inequitable but it is mark of arbitrariness. While applying the principles of the aforesaid cases, it clearly emerges that denying the petitioners their right to pension is per se discriminatory. The petitioners have wrongly been denied the service rendered in the work charge establishment. I, therefore, set aside the order impugned and direct that the services rendered by the petitioners on work charge establishment shall be computed for the purposes of qualifying service in order to enable them to receive pension. Let this exercise be completed within three months from the date copy of this order is received. With the aforesaid observations, the writ petition is allowed.