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Allahabad High Court · body

2022 DIGILAW 781 (ALL)

Kallu Ali v. State Of Uttar Pradesh

2022-05-18

AJIT KUMAR

body2022
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Ajay Singh, learned counsel for the contesting respondent nos. 2 & 3 and learned Standing Counsel for the State respondent. 2. Amendment application is allowed, let the amendment be carried out forthwith. 3. By means of this petition filed under Article 226 of the Constitution, the petitioner has prayed for calling the records and quashing the order dated 18.11.2020 passed by respondent no. 2, impugned herein this petition. 4. Instructions obtained by Sri Ajay Singh, learned counsel for the contesting respondent nos. 2 & 3 placed before the Court, are taken on record. Since the instructions are complete and learned counsel for the respondent submits that those were the ultimate instructions and the matter may be decided, the Court proceeds to decide the matter finally. 5. Learned counsel for the petitioner submits that petitioner has retired from Allahabad Development Authority on 28.02.2019 on attaining the age of superannuation and claims that even though he was initially engaged by the respondent Development Authority as a daily wage Supervisor but he is entitled for pensionary benefits on the ground that once his services came to be regularized by respondent Local Authority on 01.02.2011, his past services rendered as a daily-wager in the establishment w.e.f. 01.06.1989 were liable to be taken into account towards pensionable service for the purpose of making him entitled for pension. 6. It is pleaded in the writ petition that the factual position with regard to his continuance in the establishment on daily wage basis until his regularization in the year 2011, is not disputed and even if he is taken by the respondents to be in service as Supervisor on daily wage basis prior to his regularization as per order impugned passed by the respondent no. 2, the respondent has manifestly erred in rejecting the claim of the petitioner for pension by taking a stand contrary to the settled legal position emerging out from the various authorities of this Court and Supreme Court. 7. 2, the respondent has manifestly erred in rejecting the claim of the petitioner for pension by taking a stand contrary to the settled legal position emerging out from the various authorities of this Court and Supreme Court. 7. Learned counsel for the petitioner has relied upon the judgment of Supreme Court in Prem Singh v. State of U.P. (2019) 10 SCC 516 , The State of Gujarat and others v. Talsibhai Dhanjibhai Patel (Special Leave to Appeal (C) No.-1109 of 2022) decided on 18th February, 2022 and the judgment of this Court in Special Appeal (Def.) No. 1278 of 2020, Chetram v. State of U.P. and 2 Others and that of a coordinate bench of this Court in Kaushal Kishore Chaubey and 4 Others v. State of U.P. and 2 Others (Writ-A No. 5817 of 2020) decided on 08.10.2021 and also a judgment of this very bench in Awadhesh Kumar Dubey v. State of U.P. and 4 others in Writ A No. 2449 of 2022 (decided on 04.03.2022). 8. Sri Ajay Singh, learned counsel for the contesting respondents submits that as per the instructions obtained by him, the period during which the petitioner was working as work charge/ daily wage employee that could not have been taken into account for determination of pensionable service. Sri Singh argues that factual and legal position in the local development authority differs and cannot be equated with local bodies created and constituted under the Act of 1916 and 1959 and so those judgments relied upon by learned counsel for the petitioner would not be applicable. 9. Having heard learned counsel for the respective parties and having gone through the authorities cited before this court, I find that the issue is no more res integra. The temporary service, service spent as work charge employee, service spent on fixed pay or on day to day basis by employees, if they continued in service on the date of regularization, for the purposes of pension such period deserves to be counted to make service pensionable if otherwise pension is admissible to the employees of the establishment in question. 10. In this case, there is no dispute that petitioner has retired from establishment to which pension is admissible. However, in order to meet the arguments advanced by learned counsel for the respondent Mr. 10. In this case, there is no dispute that petitioner has retired from establishment to which pension is admissible. However, in order to meet the arguments advanced by learned counsel for the respondent Mr. Ajay Singh, it is necessary to have a comparative study of the relevant provisions of the U.P. Urban Planning and Development Act, 1973, U.P. Municipalities Act, 1916 and U.P. Municipal Corporation Act, 1959 under which these separate bodies like Urban Development Authority, Municipal Board and Municipal Corporation are created. 11. In order to provide organized and planned development in urban areas of the Districts in the State, the State Legislature enacted U.P. Urban Planning and Development Act, 1973 creating a local statutory authority at District level called as Urban Development Authority in the name of the district concerned. 12. This above Act has universal application to carry out planned development in the State but subject to the notification of an area of a District as ‘Development Area’. By virtue of notification as envisaged under Section 3 of the Act it is the municipal area already notified under the Municipalities Act, 1916 and the Municipal Corporation Act, 1959, a Local Body, is taken over by such a Local Authority created under the Act, 1973 for limited purpose of organized and planned urban development by such an authority (hereinafter called as ‘Local Development Authority’). 13. Unlike the Local Body such as Municipal Board or Municipal Corporation, the State Government has deep pervasive administrative and financial control over and above such authority. Under Section 4 of the Act, 1973 the State Government creates and constitutes the Local Authority. Further the Secretary and Chief Accounts Officer to the Local Development Authority are also appointed by the State Government under Section 5 of the Act, 1973. Under Section 5 of the Act the State Government has the authority to create Centralized Services for such employees provided for under sub Section 4 of Section 59 of the Act, 1973. Under Section 6 the State Government has the power to constitute an Advisory Council to advice the Local Development Authority in preparing Master Plan for development of notified area. Development Plan is submitted to the State Government under Section 10 of the Act and comes into force only after the approval of the State Government. Under Section 6 the State Government has the power to constitute an Advisory Council to advice the Local Development Authority in preparing Master Plan for development of notified area. Development Plan is submitted to the State Government under Section 10 of the Act and comes into force only after the approval of the State Government. Every such land as the Authority may require shall vest in it after its compulsory acquisition by the State Government under the Land Acquisition Act, vide Section 17 of the Act, 1973 and further also such Nazul Lands as the State Government so decides may by notification shall stand transferred to the Local Development Authority and then if Government wants it back, the Local Development Authority shall replace the same at the disposal of the State Government by issuing necessary notification vide Section 19 of the Act, 1973. Section 20 of the Act, 1973 provides for creation of fund for Local Development Authority which consists of grants, advances, loan from the State Government, money received by disposal of property by Local Development Authority and rents, profits, loan, advance or debentures from other sources. Under Section 21 of the Act, 1973 budget is prepared at the time when State Government specifies and every year annual report of the activities of Local Development Authority is to be submitted to the State Government under Section 23 of the Act, 1973. Section 24 of the Act, 1973 provides for creation of pension and provident fund by the Local Development Authority for the benefit of its members and employees but of course, subject to such conditions as State Government may specify and further State Government reserves the right to declare that Provident Fund Act, 1925 shall apply to such funds as if it were of Government Provident Fund. Section 29 of the Act, 1973 further empowers the Local Development Authority or its Vice Chairman to exercise such powers of a Local Body concerned or its Chief Executive Officer as the State Government may specify after notification. The Master Plan and Zonal Development Plan has been made operational under Section 12 of the Act, 1973 with the approval of the State Government. The Master Plan and Zonal Development Plan has been made operational under Section 12 of the Act, 1973 with the approval of the State Government. Under Section 34 of the Act, 1973, the State Government is empowered to reframe, to provide the consensual terms and conditions between the Local Authority and Local Development Authority for maintenance of the amenities provided by the Local Development Authority, falling in the area of Local Authority / Body. Section 41 of the Act, 1973 provides for general control upon the Local Development Authority by the State Government in following terms: 41. Control by State Government.- (1) The [Authority),the Chairman or the (Vice-Chairman] shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act. (2) If in, or in connection with, the exercise of its powers and discharge of its functions by the [Authority, the Chairman or the Vice-Chairman) under this Act any dispute arises between the (Authority, the Chairman or the Vice-Chairman) and the State Government the decision of the State Government on such dispute shall be final. (3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the [Authority or the Chairman) for the purpose of satisfying itself as to the legalitv or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard. (4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any court.] 14. From bare reading of the aforesaid provisions, it becomes clear that the State Government has absolute supervisory and superintending control over the Local Development Authority. The power can be exercised both by suo moto and/ or on the application by a party in the matter of dispute and the provisions attache finality to the decisions taken by the State Government. 15. The power can be exercised both by suo moto and/ or on the application by a party in the matter of dispute and the provisions attache finality to the decisions taken by the State Government. 15. Further, I find that Section 42 provides Local Development Authority to furnish reports, returns and information as the State Government may require from time to time. Under Section 51 of the Act, 1973, the State Government may delegate any of its powers to the Local Development Authority except its rule making power, prescribed for under Section 55 of the Act, 1973. The State Government also enjoys extraordinary power under Section 53 of the Act, 1973 to accept any land or building or class of lands or buildings from operation of the provisions of the Act, 1973 by issuing notification. Under Section 56 of the Act, 1973 the Local Development Authority may frame regulations/ rules only with the previous approval of the State Government and so also byelaws are to be framed by Local Development Authority with the previous approval of the State Government. Under Section 58 of the Act, the State Government also enjoys the power to dissolve the Local Development Authority, if to its satisfaction, purpose for which such an authority was constituted, has stood satisfied. Section 59 is a very important provision that strikes balance between the power of a newly created Local Development Authority under the Act, 1973 in respect of the notified area under the said Act and the powers of the Local Body that enjoyed the authority for carrying out development activity in such area notified earlier under the Municipalities Act, 1916 and Municipal Corporation Act, 1959 respectively. While the operation of Municipalities Act, 1916 or Municipal Corporation Act, 1959, as the case may be, is suspended in respect of notified development area under the new Act, all the liabilities and responsibilities stand transferred to the newly created Local Development Authority and the provisions under the Municipalities Act, 1916, U.P. (Regulation of Building Operations) Act, 1958 and the U.P. Municipal Corporation Act, 1959, as the case may be, in so far as they are not inconsistent with the New Act, 1973, their enforcement/ application has been made to continue. Vide Section 59(3) employees of the U.P. Pradesh Palika (Centralized) Service Rules, 1956 stand transferred to the Local Development Authority, even the employees outside the centralized services cadre also stand transferred if their number would not exceed the number of posts. 16. The appreciation of various sections of the Act, 1973, thus clearly establishes that Local Development Authority called by the name of district, is a Governmental Authority to undertake planned development of a notified development area by framing zonal and Master Development Plans for such areas. State Government enjoys absolute administrative powers over and above the Authority in every of its spheres in discharge of functions. It is also funded by means of grant and state also advances, loans etc. even though it may have its own sources of revenue. Its employees are also both of centralized and non centralized services and it has its own byelaws governing the services of non centralized services cadre employees. 17. Now if we go through various provisions of the Municipalities Act, 1916 and the U.P. Municipal Corporation Act, 1959, we would find that the Municipalities were conceptualized with an idea of local self government of city areas of the districts to be notified as such. Municipalities have larger area of governance looking to the objects with which they are created. Chapter VII of the Municipalities Act, 1916 that deals with the powers of a Municipality within which buildings, public drains, streets, scavenging and water supply and under Chapter VIII dealing with markets, slaughter houses etc. are the areas to be governed under the Act, 1973 while preparing zonal development plan and Master Plan. Rest of the area of operation under the Act, 1916 and Act, 1959 are still covered under the respective Acts. 18. Municipal Board is provided for by virtue of Section 5 of the Act, 1916 and Section 9 of the said Act provides for constitution of Board of elected Corporators. Section 10 confers power upon the State Government to vary normal composition of Board. Section 30 empowers further the Government to dissolve/ supersede the Board. Section 31-A empowers the State Government to appoint person or persons on Municipal Board. Section 10 confers power upon the State Government to vary normal composition of Board. Section 30 empowers further the Government to dissolve/ supersede the Board. Section 31-A empowers the State Government to appoint person or persons on Municipal Board. Section 31-B provides for appointment of Director of Local Bodies in the State who is to exercise powers in matters of affairs of Municipalities in the State as State Government may prescribed for and under Section 33 of the Act, 1916 government officers are empowered to do inspection of municipal wards and institutions run by it. Under Section 34 the State Government has been vested with a power to override the resolution of the municipal board and so also further administrative power under Section 35 on any representation being made or even suo moto. Further the District Magistrate is vested with the extraordinary power in case of emergency under Section 36 of the Act, 1916, a power to remove elected President of the Municipal Board. Section 69-B of the Act, 1916 provides for centralized services of Municipal officers and servants by framing rules by the State Government. Section 65 empowers the Government to appoint executive officers. Section 70 empowers a Municipal Board to appoint temporary servants to meet emergency. Under Section 71 the power of Municipalities to determine permanent staff is subject to directions by the state government. Further under Section 73 the appointment to the educational institution run by a Municipality, is governed under the rules to be framed by the State Government. Section 78 deals with provision of pension and dismissal of employees of government whose services are lent to the Municipality or transferred by Municipality to the government or who are partly employed by the government and partly by the Municipality. Under Section 79 while Municipality has the power to pay leave allowances, provident fund and pay gratuity only with previous sanction of the State Government, it also requires sanction to arrange for purchase of annuity. It is also entitled to grant city compensatory allowance to an officer or servant or the family of such officer or servant but all these powers are subject to the condition and special sanction of the State Government. It is also entitled to grant city compensatory allowance to an officer or servant or the family of such officer or servant but all these powers are subject to the condition and special sanction of the State Government. Annual budget to be prepared by the Municipality is to be submitted to the State Government under Section 99 of the Act, 1916 and the government is further authorized under Section 107 to prescribe the limit of minimum closing balance at its discretion. Section 102 provides that in the condition of indebtedness of a Municipality the State Government has been vested with absolute power over the budget and so can make it subject to its sanctions. Under Section 114 the Municipal fund includes grant from the consolidated fund of the State. The power of a Municipality to borrow money, receive loans from the open market or from any financial institution but all this is subject to previous sanction of the State Government. Vide Section 114-A of the Act, 1916 the Municipal fund is kept in the government treasury or sub treasury or in the State Bank of India or with the previous sanction of the Government in the State Corporation bank or any other scheduled bank vide Section 115 of the Act, 1916. Under Section 116 of the Act, 1916 the property that vests with the Municipality is subject to such restrictions as may be prescribed by the State Government. Municipality is vested with the power to acquire land under Section 117 through compulsory acquisition by the State Government. Section 127-C of the Act, 1916 provides for Finance Commission to study and review the financial position of the Municipality and the recommendations to the Governor as to grant. The provisions run as under:: 27C. Finance Commission. Municipality is vested with the power to acquire land under Section 117 through compulsory acquisition by the State Government. Section 127-C of the Act, 1916 provides for Finance Commission to study and review the financial position of the Municipality and the recommendations to the Governor as to grant. The provisions run as under:: 27C. Finance Commission. -(1) The Finance Commission shall also review the financial position of the Municipalities and make recommendations to the Governor as to, - (a) the principles which should govern - (i) the distribution between the State and the Municipalities of the net proceeds of the taxes, duties, tolls and fees leviable by the State which may be divided between them and the allocation of shares of such proceeds to the Municipalities; (ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Municipalities; (iii) the grants-in-aid to the Municipalities from the Consolidated Fund of the State; (b) the measures needed to improve the financial position of the Municipalities; (c) any other matter referred to the finance commission by the Governor in the interests of sound finance of the Municipalities. (2) Every recommendation of the finance commission made under sub-section (1) shall, together with an explanatory memorandum as to the action taken thereon, be laid before both the houses of the State Legislature. 19. Now this Section stands superseded by Article 243 (I) read with Article 243 (Y) of the Constitution. Article 243 (I) and 243 (Y) of the Constitution are reproduced hereunder: “243-I. Constitution of finance Commissions to review financial position. 19. Now this Section stands superseded by Article 243 (I) read with Article 243 (Y) of the Constitution. Article 243 (I) and 243 (Y) of the Constitution are reproduced hereunder: “243-I. Constitution of finance Commissions to review financial position. (1) The Governor of a State shall, as soon as may be within one year from the commencement of the Constitution (Seventy third Amendment) Act, 1992 , and thereafter at the expiration of every fifth year, constitute a Finance Commission to review the financial position of the Panchayats and to make recommendations to the Governor as to— (a) the principles which should govern (i) the distribution between the State and the Panchayats of the net proceeds of the taxes, duties, tolls and fees leviable by the State, which may be divided between them under this Part and the allocation between the Panchayats at all levels of their respective shares of such proceeds; (ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Panchayats; (iii) the grants in aid to the Panchayats from the Consolidated Fund of the State; (b) the measures needed to improve the financial position of the Panchayats; (c) any other matter referred to the Finance Commission by the Governor in the interests of sound finance of the Panchayats. (2) The Legislature of a State may, by law, provide for the composition of the Commission, the qualifications which shall be requisite for appointment as members thereof and the manner in which they shall be selected (3) The Commission shall determine their procedure and shall have such powers in the performance of their functions as the Legislature of the State may, by law, confer on them, (4) The Governor shall cause every recommendation made by the Commission under this article together with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of the State 243Y. Finance Commission. Finance Commission. (1) The Finance Commission constituted under article 243 I shall also review the financial position of the Municipalities and make recommendations to the Governor as to— (a) the principles which should govern (i) the distribution between the State and the Municipalities of the net proceeds of the taxes, duties, tolls and fees leviable by the State, which may be divided between them under this Part and the allocation between the Municipalities at all levels of their respective shares of such proceeds; (ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Municipalities; (iii) the grants in aid to the Municipalities from the Consolidated Fund of the State; (b) the measures needed to improve the financial position of the Municipalities; (c) any other matter referred to the Finance Commission by the Governor in the interests of sound finance of the Municipalities (2) The Governor shall cause every recommendation made by the Commission under this article together with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of the State.” 20. Under Section 128 of the Act, 1916 Municipality's power to impose tax is subject to general rules or special orders of the State Government. Under Section 130-A Government can ask a Municipality to impose any tax and is vested with the power to vary such taxes. Under Section 133 of the Act the State Government enjoys power to reject or vary proposals of the Municipality in respect of taxes under Section 128. Chapter VII and VIII of the Act, 1916 largely deal in the areas covering an urban scheme based planned development which now vests with the Local Development Authority if such an area is notified under the Act, 1973. Under Section 296 of the Act, 1916 State Government is the rule making authority that includes a very important field i.e. providing for the layout of the public streets, residential and non residential areas. This is what zonal development plan and Master Plan are meant for in respect of a notified area under the Act, 1973. Section 297 of the Act, 1916 empowers Municipality to make regulations consistent with the Act and the rules framed under section 296 by the State Government. This is what zonal development plan and Master Plan are meant for in respect of a notified area under the Act, 1973. Section 297 of the Act, 1916 empowers Municipality to make regulations consistent with the Act and the rules framed under section 296 by the State Government. Under Section 298 Municipality has the power to frame byelaws and where State Government so requires it is must for it to frame byelaws. General power of appeal against the order of a Municipality lies in the person appointed by the State Government or the District Magistrate if no such appointment is made. 21. Municipal Corporations are constituted under the U.P. Municipal Corporation Act, 1959 and it has an elected Mayor who heads the body. Section 58 provides for appointment of Municipal Commissioner and such Addl. Municipal Commissioners as it may consider necessary. Under Section 106 Municipal Corporation can create certain posts. State Government is entitled to get any particular post created if it so directs and such a post can not abolished without prior sanction of the Government. Appointment on posts mentioned under these sections shall have to be by the Mayor in consultation with the State Public Service Commission, however, officiating and temporary appointments for a tenure less than one year, can be made on certain posts without having consultation with State Public Service Commission. Section 111 empowers State Government to make appointments in consultation with the State Public Service Commission if authority specified under Section 107 fails to make appointments. Section 112-A empowers government to provide for centralized services by making rules in that behalf and creation of one or more services of such officers and servants common to the Corporations (Nagar Panchayat, Municipal Council and Jal Sansthans of the State) and may also provide methods for recruitment and other conditions of service. Section 112-C provides that no member of essential services created under Section 112-B can resign without the permission of Municipal Commissioner. Section 112-D empowers the State Government to declare emergency so that there is no stoppage or creation of performance of any essential services. Section 112-E confers overriding power upon Municipal Commissioner to ensure services by any regular, ad hoc or centralized services employee of the Corporation who goes or remains on strike. Section 112-D empowers the State Government to declare emergency so that there is no stoppage or creation of performance of any essential services. Section 112-E confers overriding power upon Municipal Commissioner to ensure services by any regular, ad hoc or centralized services employee of the Corporation who goes or remains on strike. State Government has been vested further with the rule making power under Section 113 of the Act, 1959, for the purposes of bringing into effect the provisions of this chapter. Section 139 provides for composition and other funds and vide section 140 firstly expenditure to be incurred on such fund will be for payment of salary and allowances to the Safai Mazdoors. It is thereafter, the expenditure will be incurred towards salary, pension, gratuity of other employees and officers. Section 140-A imposes restrictions upon expenditure from corporation for litigation etc. as permission/ sanction of Director, Local Bodies, Uttar Pradesh is a must. Borrowing power under Section 154 are subject to sanction of State Government. Chapter XII and Chapter XIII are the same areas of operation as concerned under the Act, 1973 in respect of a notified development area. Other chapters envisage some area of operation as prescribed under the Municipal Corporation Act, 1959. Chapter XXII deals with the powers of the State Government qua proceedings of Corporation, inspection of records and further administrative powers including the power to meet emergency and even supersede the Corporation by dissolving it for its incompetency, default in action and/ or abuse of its power. Chapter XXIII confers power upon the State Government a rule making power. While Section 541 empowers Corporation to frame byelaws, section 547 empowers the State Government to modify or even repeal its byelaws. Still further, Section 549 of the Act, 1959 provides that if in case corporation fails to frame byelaws on any subject enumerated under Section 541 or in the opinion of State Government byelaws framed are not adequate, State Government may itself make byelaws. Section 580 confers power upon the State Government to remove difficulties if situation so arises. 22. Still further, Section 549 of the Act, 1959 provides that if in case corporation fails to frame byelaws on any subject enumerated under Section 541 or in the opinion of State Government byelaws framed are not adequate, State Government may itself make byelaws. Section 580 confers power upon the State Government to remove difficulties if situation so arises. 22. The reference, made above to various sections of U.P. Municipalities Act, 1916 and U.P. Municipal Corporation Act, 1959 and U.P. Urban Planning and Development Act, 1973 and their appreciation, lead to the conclusion that while Municipalities and Municipal Corporations deal with wider area of public services, the Local Development Authority only deals with the planned urban development activities of notified areas and to that extent the other two Acts give way. The nature and character of these three Bodies is the same except that Municipalities and Municipal Corporations consist of members elected by people, whereas, the Local Development Authority is constituted by State Government under the Act, 1973. However, in respect of all the three bodies, State Government has deep pervasive administrative and financial control. The Municipalities and Municipal Corporations as conceived of under Article 243-Q enjoy larger autonomy. So these are all Local Bodies created to serve people and upgrade living standard and public life in city/ urban areas. 23. Now, I proceed to refer and discuss the judgments relied upon by learned counsel for the petitioner. Supreme Court in the case of Prem Singh v. State of U.P. (2019) 10 SCC 516 , has held that merely because an employee has worked on month to month payment basis prior to his being absorbed in permanent establishment, he cannot be denied pension provided of course he has retired from an establishment where services are pensionable. Vide paragraph nos. 33, 34 & 35 the Court has held thus: “33. 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. 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. 34. 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. 35. 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.” 24. 35. 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.” 24. This Court in the case of Kaushal Kishore Chaubey and 4 Others v. State of U.P. and 2 Others (Writ-A No. 5817 of 2020) decided on 08.10.2021 has held that the employees working as Seasonal Collection Amin on different dates in the Tehsil department of the district who were regularized later on in service, the period so rendered by them prior to regularization, shall be considered for the purposes of pension. After discussing and referring to a number of decisions of this Court and Supreme Court vide paragraphs 22, 23, 24 and 25, the Court has finally held thus: "22. From the judgments referred above, it is clear that the Courts has consistently held that the services rendered by an employee either as work charged employee or Seasonal Collection Amin are to be counted for granting the pensionary benefit to them, and the nomenclature of their appointment, be a daily wager, temporary or whatever, is not material to consider their claim for grant of pensionary and retiral benefits. 23. Further, it is also pertinent to mention that the petitioners have worked for decades as Seasonal Collection Amin discharging the same duty which has been discharged by the regular Collection Amin and have been extended same benefits which have been extended to the regular Collection Amin, therefore, in such factual scenario denying the petitioners the benefit of pension and other benefits which have been extended to Regular Collection Amin would not only be arbitrary but against the concept of the right to equality as enshrined in Article 14 of the Constitution of India. 24. In view of the above discussion and given the law elucidated by the Apex Court as well as by this Court in various pronouncements referred above, the services rendered by the petitioners as Seasonal Collection Amin cannot be ignored for extending the benefits of pension and other retiral benefits to them on the pretext that their appointment is to be treated from the date of regularization and not from the date of their engagement as work charged employee. 25. Consequently, the writ petition is allowed. 25. Consequently, the writ petition is allowed. A writ of mandamus is issued to the respondent to compute pensionary benefit payable to the petitioners after taking into account their entire service including the service rendered by them as Seasonal Collection Amin. The amount payable to the petitioners shall be computed within three months from the date of presentation of a copy of this order downloaded from the official website of Allahabad High Court, and the same shall be paid within the next two months. The respondents shall also continue to pay current pensionary benefits as and when the same fell due." 25. A Division Bench of this Court in the Special Appeal (Def.) No. 1278 of 2020, Chetram v. State of U.P. and 2 Others, has directed that local body to award pension by holding thus: "In the light of the judgment of the Apex Court in the case of Prem Singh (supra), the judgment of learned Single Judge cannot stand as the aforesaid has been given mainly in reference to Article 370 of Civil Service Regulation where the period spent by employee a temporary, officiating basis or in non-pensionable establishment have been excluded apart from the period of service in work-charged establishment and post paid from contingencies. The judgment of the Apex Court in the case of Prem Singh (supra) clarifies that service rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non-pensionable establishment would also be counted towards the qualifying service. Rule 3(8) of Rules of 1961 has been given interpretation by applying doctrine of reading down. Taking aforesaid into consideration, judgment of learned Single Judge is interfered and is set aside. The writ petition is allowed to be governed it by the dictum of the Apex Court in case of Prem Singh (supra). The judgment dated 17.05.2017 is accordingly set aside." 26. In the case of The State of Gujarat and others v. Talsibhai Dhanjibhai Patel (Special Leave to Appeal (C) No.-1109 of 2022) decided on 18th February, 2022, Supreme Court while dismissing the special leave to appeal of the State of Gujarat, has observed thus: "It is unfortunate that the State continued to take the services of the respondent as an ad-hoc for 30 years and thereafter now to contend that as the services rendered by the respondent are ad-hoc, he is not entitled to pension/ pensionary benefit. The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continuous service shall be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand. In the present case, the High Court has not committed any error in directing the State to pay pensionary benefits to the respondent who has retired after rendering more than 30 yeas service. Hence, the Special Leave Petition stands dismissed. Pending application(s), if any, shall stand disposed of." 27. Following the judgment of Kaushal Kishore Chaubey (supra) I have also allowed writ petition on same terms of Awadhesh Kumar Dubey v. State of U.P. and 4 others in Writ -A No. 2449 of 2022 (decided on 04.03.2022). 28. The authorities referred to herein above and those of this Court clearly hold that if an employee has discharged duties whether temporarily or as a daily wager or on ad hoc basis on a post for which requirement was there and services of such an employee have come to be regularized on the said post or in the same capacity, the period spent before regularization should be considered and added to pensionable services. The courts have not approved the act and conduct of the employer to deny pension to its employee if he has rendered a number of substantial year of continuous service in an establishment leading to his / her regularization if such an establishment holds a pensionable service. The State Government has been taken to be a model employer and a State being a welfare State, the courts have shown serious concern in the event an employee who has spent all his life in the service of such establishment, stands denied pension on his attaining the age of superannuation and being retired as such. 29. The State Government has been taken to be a model employer and a State being a welfare State, the courts have shown serious concern in the event an employee who has spent all his life in the service of such establishment, stands denied pension on his attaining the age of superannuation and being retired as such. 29. The above discussions, and analysis lead me to conclude that rights and duties of employees of three different bodies working in the area of city development and public utility services are all alike in nature and if the employees of Municipalities and Municipal Corporations like local bodies, who had initially worked on daily wage basis, upon their regularization have been held entitled to get benefit of such period to be counted towards pension, why not such benefit be extended also to the employees of Local Development Authority created and constituted under the Act, 1973. 30. In my considered view, since the Local Development Authority is directly created by the State Government and is governed under the rule making power of the State Government and its byelaws and regulations are also subject to the approval of State Government, its employees stand on a better footing than the employees of the local self governing bodies for the purpose of counting period spent as daily wager by them for pensionable service, if such employees are retiring from establishment which is pensionable. 31. In view of the above, the argument advanced by learned counsel for the respondent does not hold merit and is hereby rejected. It is admitted to the respondent that petitioner has retired from the establishment which has retirement benefits such as pension etc. for its employees, and so the petitioner’s claim for pension is liable to be upheld in the light of judgments of Supreme Court and this Court referred hereinabove to in this judgment. 32. Accordingly, writ petition succeeds and is allowed, the order passed by the respondent authority dated 18.11.2020 is hereby quashed. The respondents are directed to calculate the pension of the petitioner within a period of three months from the date of receipt of certified copy of this order and to pay the same to the petitioner immediately thereafter. 33. Cost made easy.