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Allahabad High Court · body

2023 DIGILAW 2064 (ALL)

Mohd. Ismail v. State of U. P.

2023-08-28

AJIT KUMAR

body2023
JUDGMENT : 1. Heard Sri Syed Wazid Ali, learned counsel for the petitioner and Sri R.S. Umrao, learned Standing Counsel for the State respondents. 2. The petitioners who were initially appointed as Seasonal Collection Amin in the revenue department on temporary basis, their services came to be regularized under U.P. Collection Amin Service Rules, 1974 between the years 1992 to 1995 and they all attained the age of superannuation between 2013 to 2022. Upon attaining the age of superannuation they have been conferred upon the benefit of pension as admissible under the old pension scheme and petitioners are individually getting the pension. Now they have approached this Court for direction to the authority to count period spent in service by petitioners prior to their regularization, towards qualifying period of pension. 3. Per contra, learned Standing Counsel submits that U.P. Collection Amin Service Rules, 1974 rules provide regular appointment against substantive vacancies and for this purpose there is a quota fixed for those who are working on temporary basis in the department as Seasonal Collection Amin. He submits that rule do not contemplate regularization being offered from the date when the vacancies were not in existence. A confirm/regular appointment offered to the Seasonal Collection Amin against available substantive vacancies . He submits that relevant provisions of rule have never been challenged rather petitioners have availed the benefit of the same. He has also placed the reliance upon the judgment of the Supreme Court in the case of Uday Pratap Thakur & Another v. State of Bihar: AIR 2023 SC 2971 in which principle laid down in the judgment of Prem Singh v. State of U.P.: (2019) 10 SCC 516 has been further explained and clarified whereby observations are made to the effect that Prem Singh's judgment (supra) which offers benefit to those employees who have rendered their services on dailywage basis/temporary basis/work charge basis only for the purposes of giving them benefit of pension under the old pension scheme. The reason being that they were being offered appointment on regular basis for the service rendered by them on ad hoc basis/temporary basis/work charge basis. 4. The reason being that they were being offered appointment on regular basis for the service rendered by them on ad hoc basis/temporary basis/work charge basis. 4. Having heard learned counsel for the respective parties and having perused the records and having gone through the relevant service rules, I find that rules do contemplate confirmed appointment of the Seasonal Collection Amins only on the basis of availability of vacancy applying 35 per cent quota under the rules. It is not disputed by the petitioners that they were offered confirmed/permanent appointment in the regular cadre of the Collection Amin upon availability of vacancy as per rules as they fell within 35 per cent quota as has been fixed under the service rules. They have never questioned regular appointment from the date they were offered the same upon availability of substantive vacancies. Now, thereafter they continued in service and they also availed benefit under the old pension scheme taking, therefore, period from the date of initial ad hoc/temporary towards qualifying service period for pension. So, now they have approached this Court with this request that their period already rendered as Seasonal Collection Amin should be taken into consideration for the purpose of computing qualifying period for pension. 5. In a nutshell the argument is if the period in question, is taken into account towards qualifying period for pension , their pension will get increased. 6. In my considered view, this argument of the petitioner is misplaced for the simple reason that no Collection Amin can avail the benefit of regular appointment from the date of initial appointment as the regular appointment is done under the rules against available vacancies and rules have never been challenged. Once the petitioner has availed the benefit of relevant provisions of the Rules that contemplate regular appointment/regularization against the available substantive vacancy only, such persons cannot be treated to be regularized from the date they entered into service on temporary basis, therefore, for want of vacancy. A person can have berth in cadre upon the condition that berth is available. 7. I have also considered the judgment of Supreme Court in the case of Prem Singh (supra), in which it has been categorically held that those persons who have rendered their service on ad hoc/work charge basis cannot be denied the benefit of pension. A person can have berth in cadre upon the condition that berth is available. 7. I have also considered the judgment of Supreme Court in the case of Prem Singh (supra), in which it has been categorically held that those persons who have rendered their service on ad hoc/work charge basis cannot be denied the benefit of pension. This judgment discusses the provisions as was then existing under the Civil Service Regulations for denying benefit of old pension scheme to those who have earlier rendered service as work charge employee though such employees subsequently got placement under regular cadre. The principle and ratio for awarding pensionary benefits has been discussed in the case of Uday Pratap Thakur (supra) in which vide paragraph 6 it has been categorically held that ratio of the judgment is to be considered for giving benefit of old pension scheme by taking into account such period of ad hoc/workcharge service which will make good the short fall towards qualifying period for making pension admissible. If the argument as is advanced that earlier period rendered as work charge temporary basis is to be reckoned with for the purpose of qualifying service in its entirety is accepted, the effect would be that regular appointment stands offered to such person/employee from the date of his initial temporary/ad hoc/work charge appointment in service. This is neither the object of the rules, nor spirit of the judgment in Prem Singh's case. 8. For appreciating the above Rules 4 and 5 of U.P. Collection Amin Service Rules, 1974 are reproduced hereunder: “Strength of the service-(1) The strength of the service shall be such as may be determined by the Governor from time to time. (2) The permanent strength of the service shall, until orders varying the same have been passed under sub-rule (1), be as given below: Collection Amins (Ordinary grade) 5341. Collection Amins (Selection grade) 593: provided that- (a) that Collector may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation; and (b) the Governor create such additional permanent or temporary posts as may be considered necessary. Part III- RECRUITMENT 5. Collection Amins (Selection grade) 593: provided that- (a) that Collector may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation; and (b) the Governor create such additional permanent or temporary posts as may be considered necessary. Part III- RECRUITMENT 5. Source of recruitment-(i) Recruitment to posts in the ordinary grade of the service shall be made on the result of a competitive examination as provided in part V of these rules: Provided that subject to availability of suitable candidates, up to fifteen peer cent of the vacancies shall be filled by promotion from amongst such substantively appointed collection peoons:- (a) who have passed at least High School Examination of the Board of High Schools and Intermediate Education, Uttar Pradesh or an Examination recognized by the Government as equivalent thereto, and (b) who have worked in the Collection Organization of the Revenue Department for a period of at least six Fasals: Provided further that thirty-five per cent vacancies shall be filled by selection from amongst such Seasonal Collection Amins- (a) who have worked satisfactorily for at least four Fasals: (b) Whose age on the first day of July of the year in which selection is made does not exceed 45 years: Provided also that if suitable candidates are not available, remaining vacancies shall be filled by general candidates through direct recruitment. Explanation-Satisfactory work shall mean at least seventy per cent realisation as per prescribed standard during the last four Fasals including good conduct throughout." 9. Upon bare reading of the aforesaid rules, I find that the rules do talk of regular appointment upon vacant posts. Posts are created in the cadre as peer rule 4 and it refers to only a duly sanctioned post. Rules do not contemplate ad hoc or temporary appointment on substantive vacancies duly created under Rule 4. Thus it is clear that substantive appointments are given/made only against substantive vacancies either by promotion or by selection. Fifteen per cent posts are to be filled up by way of promotion from Seasonal Collection Peons and thirty five percent from amongst Seasonal Collection Amins working on temporary/casual/ad hoc basis subjection to conditions given under the proviso to Section 5. So the very selection and appointment is referably to the existing substantive vacancy in the recruitment year. Fifteen per cent posts are to be filled up by way of promotion from Seasonal Collection Peons and thirty five percent from amongst Seasonal Collection Amins working on temporary/casual/ad hoc basis subjection to conditions given under the proviso to Section 5. So the very selection and appointment is referably to the existing substantive vacancy in the recruitment year. The very selection and appointment means, such appointment is done in real time by initiation of proceeding but one must meat the requirements as on 1st July of the year of selection. Thus, there is no concept of regularization back date. As a matter of fact there is no regularization as such. It is rather a selection against available vacancies in the year of recruitment by adopting a procedure prescribed for merit list to be prepared on the basis of work performance and period of working. Seniority list of Seasonal Collection Amin may not be adopted as a merit list to give substantive appointment to Seasonal Collection Amins/Peons as merit list would involve those persons only who fulfil the criteria laid down/prescribed for. Thus there is no automatic regularization. 10. In Prem Singh's case (supra) the rules as were the existing since did not include work charge period of service for qualifying service for pension the same was set aside. The ratio has been that one should not be denied pension for period falling short even though such an employee has been in service, may be temporarily or on work charge basis, for a longer period. In the case of Uday Pratap Thakur (supra) vide paragraph 6, it has been held thus: "6. It is required to be noted that the respective Appellants were working as work charged under the work charged establishment in the State. Their services have been regularized under the Rules, 2013 and the follow up notification of the Finance Department vide Circular No. 10710 dated 17.10.2013. Rule 5(v) of the Circular reads as under: 5(v} Old pension Rules shall be applied on these employees. The benefit pension & gratuity shall be counted by giving one year advantage against the five years services as work-charged employee. Even then if the minimum requirement of 10 years of service for pension is not met under the old rules, then minimum service shall be added to give advantage thereof. 6.1. The benefit pension & gratuity shall be counted by giving one year advantage against the five years services as work-charged employee. Even then if the minimum requirement of 10 years of service for pension is not met under the old rules, then minimum service shall be added to give advantage thereof. 6.1. Rule 5(v) of the Rules, 2013 as such can be said to be beneficial to such work charged employees, whose services have been regularized subsequently. As per Rule 5(v), even if the minimum requirement of 10 years of service (qualifying service) for pension is not met, in that case also, the service rendered as a work charged to be added for qualifying service for pension. Therefore, the efforts have been made by the State Government to see that after rendering services for number of years as work charged, and thereafter, their services have been regularized, they may not be denied the pension on the ground that they have not completed the qualifying service for pension. It also further provides that the benefits like pension & gratuity shall be counted by giving one year advantage against the five years services as work-charged employee. Therefore, Rule 5(v) as observed hereinabove, is beneficial also in favour of such work charged employees, whose services have been regularized subsequently, and they may not be deprived of the pension on the ground that they have not completed the qualifying service for pension. The denying of pension after rendering service as work charged for number of years on the ground that they have not completed the qualifying service can be said to be unfair and illegal and can be said to be exploitation. Therefore, to make such work charged employees eligible for pension, Rule 5(v) provides that if any work charged employee, whose services have been regularized under the Rules, 2013, is short of qualifying service, to the extent of such shortage of qualifying service, the services rendered as work charged to be counted for the purpose of qualifying service for pension. Under the circumstances, the Larger Bench of the High Court has rightly observed and held that for the purpose of pension, only such period from the work charged tenure would be added for making the service of an employee, who has been regularized to qualify him for pension. Under the circumstances, the Larger Bench of the High Court has rightly observed and held that for the purpose of pension, only such period from the work charged tenure would be added for making the service of an employee, who has been regularized to qualify him for pension. 6.2 Insofar as the submission on behalf of the Appellants that their entire services rendered as work charged should be considered and/or counted for the purpose of pension/quantum of pension is concerned, the same cannot be accepted. If the same is accepted, in that case, it would tantamount to regularizing their services from the initial appointment as work charged. As per the catena of decisions of this Court, there is always a difference and distinction between a regular employee appointed on a substantive post and a work charged employee working under work charged establishment. The work charged employees are not appointed on a substantive post. They are not appointed after due process of selection and as per the recruitment rules. Therefore, the services rendered as work charged cannot be counted for the purpose of pension/quantum of pension. However, at the same time, after rendering of service as work charged for number of years and thereafter when their services have been regularized, they cannot be denied the pension on the ground that they have not completed the qualifying service for pension. That is why, the service rendered as work charged is to be counted and/or considered for the purpose of qualifying service for pension, which is provided Under Rule 5(v) of the Rules, 2013. 6.3. Now, insofar as the reliance placed upon the decision of this Court in the case of Prem Singh (supra) by the learned Counsel appearing on behalf of the Appellants is concerned, the reliance placed upon the said decision is absolutely misplaced. In the said case, this Court was considering the validity of Rule 3(8) of the U.P. Retirement Benefit Rules, 1961, under which the entire service rendered as work charged was not to be counted for qualifying service for pension. To that, this Court has observed and held that after rendering service as work charged for number of years in the Government establishment/department, denying them the pension on the ground that they have not completed the qualifying service for pension would be unjust, arbitrary and illegal. To that, this Court has observed and held that after rendering service as work charged for number of years in the Government establishment/department, denying them the pension on the ground that they have not completed the qualifying service for pension would be unjust, arbitrary and illegal. Therefore, this Court has observed and held that their services rendered as work charged shall be considered/counted for qualifying service. This Court has not observed and held that the entire service rendered as work charged shall be considered/counted for the quantum of pension/pension. The decision of this Court in the case of Prem Singh (supra), therefore, would be restricted to the counting of service rendered as work charged for qualifying service for pension." (emphasis added) 11. In view of above, I do not find force in the argument advanced by learned counsel for the petitioner. The petition lacks merit and is accordingly dismissed.