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2015 DIGILAW 273 (UTT)

STATE OF UTTARAKHAND v. MOHAN SINGH

2015-05-26

K.M.JOSEPH, V.K.BIST

body2015
JUDGMENT : K.M. Joseph, C.J. (Oral) Both the writ petitions being connected are disposed of by this common judgment. 2. CLMA No.2535 of 2015 filed in Writ Petition (S/B) No. 24 of 2007) for taking on record the supplementary counter affidavit is allowed. 3. The claim petition was filed by the respondents declaring them entitled to be regularized from the date of their initial appointments and to count their services rendered in the work-charged establishment as qualifying services for all purposes and, accordingly, allow them all consequential benefits. The Tribunal allowed the writ petitions to the extent that the services rendered by the respondents as work-charged employees from the date of their initial appointments to the date of their regularization was to be counted for qualifying services and for calculation of pension. 4. Rule 370 of the Civil Service Regulations reads as follows:- “370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post shall qualify except – i) periods of temporary or officiating service in a non-pensionable establishment, ii) periods of service in a work-charged establishment, and iii) periods of service in a post paid from contingencies.” A perusal of the same would show that persons, who are appointed in the work-charged establishment, are not entitled to count their service for pensionary benefits. 5. We heard learned Government Counsel for the petitioners, Shri. P.C. Bisht and Shri Sanpreet Singh, learned counsel appearing on behalf of the respondents. 6. It is pointed out by the learned Government Counsel that in view of the aforesaid specific provision, by which the employees in the work-charged establishment are not entitled to claim pension, the order of the Tribunal is unsustainable. Mr. Sanpreet Singh, learned counsel for the respondents would submit that the writ petition filed by the State was earlier dismissed by following a judgment of another Division Bench. He would subsequently point out that against the dismissal of the writ petition filed by the State, the State carried the matter in SLP and the SLP was dismissed in limine without speaking order. Thereafter the State filed a review petition. The ground taken in the review petition was that the earlier Division Bench judgment, which was relied on by this Court in dismissing the writ petition, was, in turn, overruled by a subsequent Full Bench of this Court. Thereafter the State filed a review petition. The ground taken in the review petition was that the earlier Division Bench judgment, which was relied on by this Court in dismissing the writ petition, was, in turn, overruled by a subsequent Full Bench of this Court. The Division Bench overruled the contentions of the respondents to the extent that a subsequent Full Bench could not be a basis for review and allowed the review petition. Against the same, respondents filed SLP. Though initially an interim order was granted, subsequently, the SLP was dismissed as withdrawn. It is also pointed out that a special leave petition was filed against the judgment of Full Bench of this Court by one of the respondents and that is pending. He would further submit that actually the Full Bench of this Court which purported to overrule the Division Bench relying upon which this Court had allowed the review petition cannot be, in law, treated as Full Bench. In this connection our attention was drawn to a judgment of Hon’ble Apex Court, reported in (2014) 9 SCC, 124 (Kushalbhai Ratanbhai Rohit & others vs. State of Gujarat), wherein the Apex Court, inter alia, held as follows: “10. In Sangam Lal v. Rent Control and Eviction Officer ( AIR 1966 All 221 ), while dealing with the rent control matter, the Court came to the conclusion that until a judgment is signed and sealed after delivering in court, it is not a judgment and it cannot be changed or altered at any time before it is signed and sealed. 13. In Iqbal Ismail Sodawala v. State of Maharashtra [(1975) 3 SCC, 140], the judgment in Surendra Singh ( AIR 1954 SC 194 ) referred to hereinabove was considered in this case. In that case, criminal appeal was heard by the Division Bench of the High Court, the judgment was signed by both of them but it was delivered in court by one of them after the death of the other. It was held that there was no valid judgment is the final decision of the court intimated to the parties and the world at large.” 7. We notice that the said case essentially related to a question as to whether a judgment could be changed prior to a judgment being signed. It was held that there was no valid judgment is the final decision of the court intimated to the parties and the world at large.” 7. We notice that the said case essentially related to a question as to whether a judgment could be changed prior to a judgment being signed. No doubt, the court, inter alia, held that it is not a judgment and it can be changed or altered at any time before signed and sealed. 8. The learned counsel for the respondents would also draw our attention to the fact as noted by this Court while allowing the review petition that there is yet another development in the form of decision of Full Bench of the Punjab & Haryana High Court taking the view that service in the work-charged establishment can be counted for calculation of pension and it received approval at the hands of the Hon’ble Apex Court. In this connection, our attention was drawn to the judgment, reported in (2010)4 SCC, 317, (Punjab State Electricity Board and another v. Narata Singh and another.) Therein, we notice paragraphs 24, 25 and 26, which read as follows:- “24. Rule 3.17(ii) of the Punjab Civil Services Rules reads as under: “3.17. If an 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 service except in respect of : (i) * * * (ii) periods of service in work-charged establishment; and” A bare reading of the above-quoted Rule makes it clear that periods of service in work-charged establishments were not counted as qualifying service. Therefore, the work-charged employees had challenged the validity of the said Rule. The matter was considered by the Full Bench of Punjab and Haryana High Court. “25. In Kesar Chand vs. State of Punjab & Ors. [(1988) 5 SLR 27, (P & H)] the Full Bench held that Rule 3.17(ii) of the Punjab Civil Services Rules was violative of Article 14 of the Constitution of India. The Full Bench decision was challenged before this Court by filing a special leave petition which was dismissed. “25. In Kesar Chand vs. State of Punjab & Ors. [(1988) 5 SLR 27, (P & H)] the Full Bench held that Rule 3.17(ii) of the Punjab Civil Services Rules was violative of Article 14 of the Constitution of India. The Full Bench decision was challenged before this Court by filing a special leave petition which was dismissed. Thus, the ratio laid down by the Full Bench judgment that any rule which excludes the counting of work-charged service of an employee whose services have been regularized subsequently, must be held to be bad in law was not disturbed by this Court. The distinction made between an employee who was in temporary or officiating service and who was in work-charged service as mentioned in Rule 3.17(ii) of the Punjab Civil Services Rules disappeared when the said rule was struck down by the Full Bench. The effect was that an employee holding substantively a permanent post on the date of his retirement was entitled to count in full as qualifying service the periods of service in work-charged establishments. 26. In view of this settled position, there is no manner of doubt that the work-charged service rendered by the Respondent 1 under the Government of Punjab was qualified for grant of pension under the rules of Government of Punjab and, therefore, the Board was not correct in rejecting the claim of the respondent for inclusion of period of work -charged service rendered by him with the State Government for grant of pension, on the ground that service rendered by him in the work-charged capacity outside PSEB and in the Departments of the State Government was a non-pensionable service.” 9. Therefore, that is a case where the similar rule which stood in the way of service in work-charged establishment being counted for pensionary benefits was interfered with by the Full Bench as violative of Article 14 of the Constitution of India. The said judgment can have sway in regards to the post in the State of Punjab. It is noteworthy that in the petition before the Tribunal there was no challenge to the statutory rule, which we have referred to at the beginning of our judgment. It is settled law that without challenge to a law even if it be void, the Court cannot ignore it. It is noteworthy that in the petition before the Tribunal there was no challenge to the statutory rule, which we have referred to at the beginning of our judgment. It is settled law that without challenge to a law even if it be void, the Court cannot ignore it. The Tribunal has granted relief in the teeth of statute and without there being a challenge to the same. Even though the rule may be pari materia, the fact remains that the rule has not been challenged. We stand informed that, in fact, in the earlier Division Bench judgment which was the basis for the dismissal of the present writ petitions, the rule was not challenged. We feel that the writ petition filed by the State is to be allowed on this ground alone. Accordingly, the writ petitions are allowed and the impugned orders will stand set aside. CLMA No. 2536 of 2015 filed by respondent 6 in Writ Petition (S/B) No. 24 of 2007 for constituting a larger Bench will stand dismissed. However, we leave it open to the respondents, if they are so advised, to constitute a proper challenge to the rule and also to seek pension on the basis if the rule is declared unconstitutional, in which case we also leave open the right to the petitioners to raise all contentions open to them.