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2014 DIGILAW 78 (ALL)

JAI PRAKASH v. STATE OF U. P.

2014-01-09

D.Y.CHANDRACHUD, DILIP GUPTA

body2014
JUDGMENT By the Court.—A learned Judge of this Court dismissed Writ Petition No. 26736 of 2012 that was filed by the appellant for quashing the order dated 3 May 2011 which denied benefit of the service rendered by the appellant in a work charged establishment for computing the qualifying service for grant of pension as the learned Judge had earlier rejected such a contention in the judgment rendered on 31 July 2013 in Writ Petition No. 2387 of 2011 (Shri Rama Shankar Pandey [Seenchpal] v. State of U.P. and others). It is against this order of dismissal of the writ petition that the present Special Appeal has been filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952. 2. In Shri Rama Shankar Pandey (supra), the learned Judge held that the service rendered in a work charged establishment does not qualify for grant of pension in view of the provisions of Article 370(ii) of the Civil Service Regulations as applicable in the State of Uttar Pradesh. For arriving at this conclusion, reliance was placed on the decision of a Full Bench of this Court in Pavan Kumar Yadav v. State of U.P. and others, 2010 (8) ADJ 664 and several decisions of the Supreme Court which explained the nature of appointment of work charged employees. 3. Article 370 of the Civil Service Regulations, as applicable in the State of Uttar Pradesh, provides that continuous, temporary or officiating service under the Government of Uttar Pradesh followed without interpretations by confirmation in the same or any other post shall qualify for pension 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. Thus, on a plain reading of the provision of Article 370, it is clear that the period of service in a work charged establishment cannot be counted for the purpose of determining the qualifying service for grant of pension. The appellant did not challenge the vires of Article 370(ii) of the Civil Service Regulations in the writ petition. 4. What transpires from the records is that the appellant was initially appointed in a work charged establishment on 1 October 1982 and was subsequently given appointment on a regular basis with effect from 5 January 1996. The appellant did not challenge the vires of Article 370(ii) of the Civil Service Regulations in the writ petition. 4. What transpires from the records is that the appellant was initially appointed in a work charged establishment on 1 October 1982 and was subsequently given appointment on a regular basis with effect from 5 January 1996. The appellant retired on 30 September 2006 and then filed a representation for fixing his pension by giving him the benefit of the period of service rendered by him in the work charged establishment. When the representation was not decided, he filed Writ Petition No. 73886 of 2012 which was disposed of on 21 December 2010 with a direction to the respondents to decide the claim in accordance with law. The representation filed by the appellant was rejected by the order dated 3 May 2011 which was assailed by the appellant in the writ petition. 5. Learned counsel for the appellant has placed reliance upon the judgment of the Supreme Court in Punjab State Electricity Board and another v. Narata Singh and another, (2010) 4 SCC 317 , to support his contention that the period during which the appellant worked in the work charged establishment should also be included while computing the qualifying service for the purpose of payment of pension. 6. A perusal of the said judgment of the Supreme Court shows that Rule 3.17(i) of the Punjab Electricity Service Rules, which also excluded the period of service rendered in a work charged establishment for the purpose of determining the qualifying service, had earlier been struck down by the Full Bench of the Punjab and Haryana High Court in Kesar Chandra v. State of Punjab and others, AIR 1988 P & H 265 and the Special Leave Petition filed to assail the said judgment had been dismissed by the Supreme Court. It is for this reason that the Supreme Court held that the service in work charged establishments under the State Government qualified for grant of pension under the Rules. 7. Article 370(ii) of the Civil Service Regulations, as applicable in the State of Uttar Pradesh, has not been struck down, nor the vires of the said provision was challenged in the writ petition. The decision of the Supreme Court in Narata Singh (supra) would, therefore, not help the appellant. 8. 7. Article 370(ii) of the Civil Service Regulations, as applicable in the State of Uttar Pradesh, has not been struck down, nor the vires of the said provision was challenged in the writ petition. The decision of the Supreme Court in Narata Singh (supra) would, therefore, not help the appellant. 8. It needs to be noticed that a Full Bench of this Court in Pavan Kumar Yadav (supra), after pointing out the difference between a person appointed in a regular establishment and in a work charged establishment, held that a work charged employee engaged in connection with the affairs of the State, who is not holding any post, whether substantive or temporary, and is not appointed in any regular vacancy, even if he was working for more than 3 years, is not a ‘Government servant’ within the meaning of Rule 2(a) of U.P. Recruitment of Dependants of Government Servant (Dying in Harness) Rules, 1974, and thus his dependants on his death in harness are not entitled to compassionate appointment under the Rules. The reasons given by the Full Bench for recording this finding are : “20. In respect of the employees the State Government in Irrigation Department, Public Works Department, Minor Irrigation, Rural Engineering Services, Grounds Water Department has provided for employment in the regular establishment and workcharge establishment. The person appointed in regular establishment are appointed against a post, after following due procedure prescribed under the rules. In workcharge establishment the employees are not appointed by following any procedure or looking into their qualification. They do not work against any post or regular vacancy. They only get consolidated salary under the limits of sanction provided by Government Order dated 6th April, 1929. The conditions of their employment is provided in paragraphs 667, 668 and 669 of Chapter XXI under the Head of Establishment in Financial Hand Book Volume IV. Their payments are provided to be made in same Financial Hand Book Volume IV in Paragraph Nos. 458, 459, 460, 461, 462 and 463. 21. Shri M.C. Chaturvedi, learned Chief Standing Counsel submits that by Government Order dated 1.1.2000 Paragraphs 667, 668 and 669 of Financial Hand Book Volume 4 have been deleted and that thereafter the payments are not being made to them from the budget allotted from the regular establishment, and they are not entitled to any allowance or pensionary benefits. 21. Shri M.C. Chaturvedi, learned Chief Standing Counsel submits that by Government Order dated 1.1.2000 Paragraphs 667, 668 and 669 of Financial Hand Book Volume 4 have been deleted and that thereafter the payments are not being made to them from the budget allotted from the regular establishment, and they are not entitled to any allowance or pensionary benefits. They are paid from contingencies and are required to work until the work is available. The services of workcharge employees are regularised only when regular vacancy is available. Until then they cannot be treated as Government servants.” (emphasis supplied) 9. In Punjab State Electricity Board and others v. Jagjiwan Ram and others, (2009) 3 SCC 661 , the Supreme Court also examined whether work charged employees in the service of Punjab State Electricity Board, who were subsequently appointed on a regular basis, could claim that the service rendered by them as work charged employees should be counted for the purpose of grant of time bound promotional scale/promotional increments and after taking note of the earlier decisions in Jaswant Singh and others v. Union of India and others, (1979) 4 SCC 440 and State of Rajasthan v. Kunji Raman, (1997) 2 SCC 517 , the Supreme Court observed that the work charged employees constitute a distinct class and they cannot be equated with any other category or class of employees, much less regular employees and they are not entitled to service benefits which are admissible to regular employees under the relevant rules or policy framed by the employer. The observations are as follows : “9. We have considered the respective submissions. Generally speaking, a work charged establishment is an establishment of which the expenses are chargeable to works. The pay and allowances of the employees who are engaged on a work charged establishment are usually shown under a specified sub-head of the estimated cost of works. The work charged employees are engaged for execution of a specified work or project and their engagement comes to an end on completion of the work or project. The source and mode of engagement/recruitment of work charged employees, their pay and conditions of employment are altogether different from the persons appointed in the regular establishment against sanctioned posts after following the procedure prescribed under the relevant Act or rules and their duties and responsibilities are also substantially different than those of regular employees. 10. The source and mode of engagement/recruitment of work charged employees, their pay and conditions of employment are altogether different from the persons appointed in the regular establishment against sanctioned posts after following the procedure prescribed under the relevant Act or rules and their duties and responsibilities are also substantially different than those of regular employees. 10. The work charged employees can claim protection under the Industrial Disputes Act or the rights flowing from any particular statute but they cannot be treated at par with the employees of regular establishment. They can neither claim regularization of service as of right nor they can claim pay scales and other financial benefits at par with regular employees. If the service of a work charged employee is regularized under any statute or a scheme framed by the employer, then he becomes member of regular establishment from the date of regularization. His service in the work charged establishment cannot be clubbed with service in a regular establishment unless a specific provision to that effect is made either in the relevant statute or the scheme of regularization. In other words, if the statute or scheme under which service of work charged employee is regularized does not provide for counting of past service, the work charged employee cannot claim benefit of such service for the purpose of fixation of seniority in the regular cadre, promotion to the higher posts, fixation of pay in the higher scales, grant of increments etc. ................... .................. 21. For the reasons mentioned above, we hold that the respondents were not entitled to the benefit of time bound promotional scales/promotional increments on a date prior to completion of 9/16/23 years regular service and the High Court committed serious error by directing the appellants to give them benefit of the scheme by counting their work charged service.” (emphasis supplied) 10. In Jaswant Singh (supra), which was relied upon by the Supreme Court in Jagjiwan Ram (supra), the Supreme Court held that the employees appointed in the work charged establishments are not entitled to service benefits available to regular employees. 11. In Jaswant Singh (supra), which was relied upon by the Supreme Court in Jagjiwan Ram (supra), the Supreme Court held that the employees appointed in the work charged establishments are not entitled to service benefits available to regular employees. 11. In Kunji Raman (supra), which was also relied upon by the Supreme Court in Jagjiwan Ram (supra), the Supreme Court did not accept the contention that the provisions of Rajasthan Service (Concessions on Project) Rules, 1962 and Rajasthan Service Rules, 1951 were violative of Articles 14 and 16 of the Constitution as they did not treat the employees of the work charged establishment at par with regular employees and the relevant observations are : “8. A work-charged establishment thus differs from a regular establishment which is permanent in nature. Setting up and continuance of a work-charged establishment is dependent upon the Government undertaking a project or a scheme or a “work” and availability of funds for executing it. So far as employees engaged in work-charged establishments are concerned, not only their recruitment and service conditions but the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. A regular establishment and a work-charged establishment are two separate types of establishments and the persons employed on those establishments thus form two separate and distinct classes. For that reason, if a separate set of rules are framed for the persons engaged in the work-charged establishment and the general rules applicable to persons working on the regular establishment are not made applicable to them, it cannot be said that they are treated in an arbitrary and discriminatory manner by the Government. It is well-settled that the Government has the power to frame different rules for different classes of employees. We, therefore, reject the contention raised on behalf of the appellant in Civil Appeal No. 653 of 1993 that Clauses (g), (h) and (7) of Rule 2 of RSR are violative of Articles 14 and 16 of the Constitution and uphold the view taken by the High Court. ........................ 10. We, therefore, reject the contention raised on behalf of the appellant in Civil Appeal No. 653 of 1993 that Clauses (g), (h) and (7) of Rule 2 of RSR are violative of Articles 14 and 16 of the Constitution and uphold the view taken by the High Court. ........................ 10. It was also contended on behalf of the State that the High Court having held that the workmen working on the regular establishment and the employees working on a work-charged establishment belong to two separate categories and, therefore, separate classification made by the Government in that behalf is reasonable, committed a grave error in striking down Rules 2(b) and (d) of the 1962 Project Rules and Rules 4(2) and (4) of the 1975 Project Rules by invoking the principle of equal pay for equal work. The reason given by the High Court for taking that view is that the project allowance is compensatory in nature and, therefore, the classification made between the work-charged employees and the employees of the regular establishment has no rational nexus with the object sought to be achieved by those Rules. What the High Court failed to appreciate is that when an employee working in the regular establishment is transferred to a project he has to leave his ordinary place of residence and service and go and reside within the project area. That is not the position in the case of an employee who is engaged in the work-charged establishment for executing that work. ............................ From what is now stated by them in the counter-affidavit, it appears that what they really want is parity in all respects with the employees of the regular establishment. In other words, what they want is that they should be treated as regular employees of the Public Works Department of the Rajasthan Government and should be given all benefits which are made available under the RSR and the Project Rules. Such a claim is not justified and, therefore, the contention raised in that behalf cannot be accepted.” (emphasis supplied) 12. It, therefore, follows from the aforesaid judgments of the Supreme Court that the work charged employees constitute a distinct class and they cannot be equated with regular employees and that the work charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant rules. 13. It, therefore, follows from the aforesaid judgments of the Supreme Court that the work charged employees constitute a distinct class and they cannot be equated with regular employees and that the work charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant rules. 13. We are conscious that in Special Appeal Defective No. 842 of 2013 (State of U.P. and others v. Panchu) that was decided on 2 December 2013, a Division Bench, after taking notice of the judgment of the Supreme Court in Narata Singh (supra), observed that the rationale which weighed with the Supreme Court should also govern the provisions of the Civil Service Regulations, but what we find from a perusal of the aforesaid judgment of the Division Bench is that the decisions of the Supreme Court in Jagjiwan Ram (supra), Jaswant Singh (supra) and Kunji Raman (supra) as also the Full Bench judgment of this Court in Pavan Kumar Yadav (supra) had not been placed before the Court. These decisions of the Supreme Court and the Full Bench of this Court leave no manner of doubt that in view of the material difference between an employee working in a work charged establishment and an employee working in a regular establishment, the service rendered in a work charged establishment cannot be clubbed with service in a regular establishment unless there is a specific provision to that effect in the relevant Statutes. Article 370(ii) of the Civil Service Regulations specifically, on the contrary, excludes the period of service rendered in a work charged establishment for the purposes of payment of pension and we have in the earlier part of this judgment held that the decision of the Supreme Court in Narata Singh (supra), which relates to Rule 3.17(i) of the Punjab Electricity Rules, does not advance the case of the appellant. In this view of the matter, the appellant is not justified in contending that the period of service rendered from 1 October 1982 to 5 January 1996 as a work charged employee should be added for the purpose of computing the qualifying service for payment of pension. 14. The judgment under appeal, therefore, does not call for any interference. The Special Appeal is, accordingly, dismissed. There shall be no order as to costs. 14. The judgment under appeal, therefore, does not call for any interference. The Special Appeal is, accordingly, dismissed. There shall be no order as to costs. Let a copy of this order be also sent to the Chief Secretary, Government of Uttar Pradesh for circulation as the earlier judgment rendered on 2 December 2013 was directed to be circulated.