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2023 DIGILAW 2151 (ALL)

Ishwar Chand Sharma v. State of U. P.

2023-09-18

SARAL SRIVASTAVA

body2023
JUDGMENT : (Saral Srivastava, J.) 1. Heard Sri Syed Wajid Ali, learned counsel for the petitioners and learned Standing Counsel for the respondents. 2. Since the controversy involved in the aforesaid writ petitions are identical, therefore, all writ petitions are being decided together with this common judgement. 3. For convenience, the facts are being delineated from Writ-A No.4344 of 2023. 4. The petitioners through the present writ petition have assailed the order dated 28.01.2023 passed by respondent no.2-District Magistrate, Bulandshahar rejecting the representation of the petitioners for giving them the benefit of the old pension scheme. 5. The petitioners are five in number and were engaged as Seasonal Collection Amin in different tehsils in district Bulandshahar. Their services were regularised and all of them have retired. The details of all the petitioners in respect of their engagement, regularisation and retirement are given in the table below:- Sl. No. Name of Petitioners Date of Engagement as Seasonal Collection Amin Date of Regularisation Date of Retirement 1. Ishwa Chand Sharma 20.01.1984 20.04.2010 31.12.2021 2. Ved Ram Singh 23.06.1984 05.06.2009 31.12.2018 3. Than Singh 01.02.1992 05.06.2009 31.07.2017 4. Pooran Singh-Ist 01.08.1990 05.06.2009 31.12.2015 5. Jayanti Prasad Sharma 01.07.1989 27.07.2010 30.11.2019. 6. All the petitioners since the date of their respective engagement had worked as Seasonal Collection Amin continuously till the date of their regularisation. The petitioners were paid regular pay scales which were given to regular Collection Amins and their pay scales were also revised from time to time till their appointment on the post of regular Collection Amin. 7. The petitioners after retirement submitted representation before respondent no.2 for the grant of the old pension scheme. When respondent no.2 did not pay any heed to the representation of the petitioners, petitioner no.1 preferred Writ-A No.17394 of 2022 while petitioner no. 2 to 5 preferred Writ-A No.17470 of 2022. Both the aforesaid writ petitions were disposed off by this Court by order dated 02.12.2022 directing respondent no.2 to consider and decide the representation of the petitioners. 8. In compliance with the order passed by this Court, respondent no.2 considered the representation of each petitioner and rejected the same by order dated 28.01.2023. 9. Both the aforesaid writ petitions were disposed off by this Court by order dated 02.12.2022 directing respondent no.2 to consider and decide the representation of the petitioners. 8. In compliance with the order passed by this Court, respondent no.2 considered the representation of each petitioner and rejected the same by order dated 28.01.2023. 9. A counter affidavit has been filed on behalf of respondent no.2 stating therein that petitioners before the date of their regularisation have been engaged as Seasonal Collection Amin and their engagement was only for 89 days after which their engagement came to an end and in case of further need, the Commissioner, Meerut Division, Meerut engaged them further for a limited period, therefore, in view of Uttar Pradesh Qualifying Services for Pension and Validation Act, 2021 (U.P. Act No.1 of 2021) and sub-Rule 2 of Government Order dated 05.03.2021 and Government Order dated 14.06.2017, the services rendered by the petitioners as Seasonal Collection Amin cannot be reckoned as qualifying service for grant of Old Pension Scheme. 10. The further case is that a New Pension Scheme was introduced w.e.f. 01.04.2005 and any appointment made on or after 01.04.2005 is governed by the New Pension Scheme and therefore, petitioners are not entitled to the benefit of the Old Pension Scheme. 11. Challenging the aforesaid order, learned counsel for the petitioners has contended that the action of respondent no.2 in rejecting the claim of the petitioners is arbitrary and illegal. It is contended that U.P. Act No.1 of 2021 is not applicable since the services of the petitioners have been regularised in accordance with Rule 5 and Rule 17A of Uttar Pradesh Collection Amins Service Rules, 1974 (hereinafter referred to as 'Rules, 1974'). 12. It is further contended that petitioners have rendered more than 26 years as Seasonal Collection Amin and had discharged the same duty as was discharged by regular Collection Amins and have been extended all the benefits i.e. regular pay scales and revision of pay scales which were given to regular Collection Amin, therefore, ignoring the said period for grant of old pension scheme is arbitrary and discriminatory and violates Article 14 of Constitution of India. It is further contended that the rejection of the claim of petitioners based on various government orders referred in the impugned order and U.P. Retirement Benefit (Amendment) Rules 2005 (hereinafter referred to as 'Rules, 2005') is incorrect. 13. It is further contended that the rejection of the claim of petitioners based on various government orders referred in the impugned order and U.P. Retirement Benefit (Amendment) Rules 2005 (hereinafter referred to as 'Rules, 2005') is incorrect. 13. Per contra, learned Standing Counsel would contend that engagement of petitioners as Seasonal Collection Amin was purely temporary, and therefore, they are not entitled to the benefit of the old pension scheme. It is contended that the engagement of petitioners as Seasonal Collection Amin is only for 89 days after which their engagement came to an end and thereafter, they were engaged as per the need and thus, services rendered by them are not liable to be added for grant of old pension scheme. It is further submitted that in view of U.P. Act No.1 of 2021 and Rule 2005, petitioners cannot be extended the benefit of the old pension scheme. 14. I have considered the rival submissions of the parties and perused the record. 15. The facts that emanate from the record are that petitioners were engaged as Seasonal Collection Amin between the year 1984 to 1992. The petitioners in paragraph 8 of the writ petition have stated that since their date of engagement till their regularisation they worked as Seasonal Collection Amin and were extended regular pay scales and were extended the benefit of revised pay scales as were given to regular Collection Amins. The averments contained in paragraph 8 of the writ petition have been replied to by the respondent in paragraph 5 of the counter affidavit, but respondents have not denied the averments of paragraph 8 of the writ petition. 16. Now the question that arises for consideration is whether respondents are justified in not counting the service period rendered by the petitioners as Seasonal Collection Amin before their regularisation for grant of benefit of old pension scheme. 17. In the case of Suresh Chandra Pandey Vs. State of U.P. and Others passed in Writ-A No.10116 of 2018, this Court while considering the identical question involved in the instant writ petition has held that the action of the State in not granting the benefit of pension to the petitioner is arbitrary. Paragraphs 12, 13, 14 and 18 of the said judgement are reproduced herein below:- “12. State of U.P. and Others passed in Writ-A No.10116 of 2018, this Court while considering the identical question involved in the instant writ petition has held that the action of the State in not granting the benefit of pension to the petitioner is arbitrary. Paragraphs 12, 13, 14 and 18 of the said judgement are reproduced herein below:- “12. In A.P. Srivastava v. Union of India and Ors.5, the Supreme Court has clearly taken a view that in case of a temporary employee who has rendered 20 years of service is entitled to pension. In the expression 'substantive capacity' the emphasis imparted by the adjective 'substantive' is that a thing is substantive if it is essential part of the constituent or relating to what is essential. Therefore, when a post is vacant, however, designated in officilase, the capacity in which the person holds the post has to be ascertained by the State. The substantive capacity refers to capacity in which person holds the post and not necessarily to the nature and character of the post. Thus, a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially for a long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation. ((Refer Ram Pratap V. State of U.P., Babu Singh V. State of U.P., Kedar Ram-I v. State of U.P., Ram Sajiwan Maurya v. State of U.P. and others, Kanti Devi v. State of U.P., Kishan Singh v. State of U.P., Awadh Bihari Shukla v. State of U.P.). 13. The Division Bench of this Court in State of U.P. and others v. Mahendra Chaubey, allowed the claim of pension of a seasonal collection amin whose temporary service was followed by substantive appointment despite the petitioner therein having not rendered 10 years substantive service after regularization. 14. The principle that emerges from the spectrum of decisions is that a temporary employee appointed on the regular establishment of the Government is entitled to pension under Fundamental Rule 56. 18. In the facts and circumstances of the instant case, the petitioner admittedly came to be appointed Seasonal Collection Amin in regular pay scale admissible to the post. The revised pay was paid from time to time. Income tax was deducted from the salary of the petitioner. 18. In the facts and circumstances of the instant case, the petitioner admittedly came to be appointed Seasonal Collection Amin in regular pay scale admissible to the post. The revised pay was paid from time to time. Income tax was deducted from the salary of the petitioner. In the circumstances, the law declared in Prem Singh (supra) entitles the petitioner to pension and retiral dues.” 18. Against the judgement of this Court in the case of Suresh Chandra Pandey (supra), the State preferred Special Appeal Defective No.564 of 2020 which was dismissed by this Court by judgement dated 29.09.2020. Relevant extract of the said judgement is reproduced herein below:- "A perusal of the facts averred in the counter affidavit, we find that it is an admitted fact that on being appointed a Seasonal Collection Amin, regular pay scale admissible to the post was given to the respondent-petitioner and that was also revised from time to time. The appellants-respondents also deducted the income tax from the salary of the respondent-petitioner. The grant of regular pay scale itself is sufficient to arrive at a conclusion that the appointment of the Respondent-Petitioner was on a regular basis and as such he is entitled for post retiral benefits.” 19. The State preferred Special Leave to Appeal (C) No.12588 of 2021 against the judgement of the Special Appeal Court dated 29.09.2020 which was also dismissed by the Apex Court by order dated 23.8.2021. The order of the Apex Court dated 23.08.2021 reads as under:- “Heard learned counsel for the petitioners. We do not find any ground to interfere with the impugned order, as much as the petitioner was initially appointed in the year 1978 as a Seasonal Collection Amiin, and was extended regular pay scales from 1988 onwards and his pay was also revised from time to time till he attained the age of superannuation. In that view of the matter, the Special Leave Petition is dismissed.” 20. This Court in Special Appeal No.475 of 2020 (State of U.P. and Others Vs. Prabhat Kamal) preferred by the State of U.P. refused to quash the order passed by the learned Single Judge, who allowed the writ petition of the petitioner, by judgement dated 12.07.2021 for granting the benefit of the old pension scheme. This Court in Special Appeal No.475 of 2020 (State of U.P. and Others Vs. Prabhat Kamal) preferred by the State of U.P. refused to quash the order passed by the learned Single Judge, who allowed the writ petition of the petitioner, by judgement dated 12.07.2021 for granting the benefit of the old pension scheme. The relevant extract of the order dated 12.07.2021 is reproduced herein below:- “It is not in dispute that petitioner/non-appellant was engaged as Seasonal Collection Peon on 20th February, 1976. He continued to work with the respondents till his regularisation on 31st July, 2010. Petitioner/non-appellant then retired from service on 31st March, 2012. Since he was regularised in service prior to retirement, he became entitled for the retiral benefits in view of the judgment of this Court in the case of Board of Revenue and others Vs. Prasidh Narain Upadhyay, 2006 (62) ALR 839 decided the same controversy. It was held that once an employee is regularised in service his entire past services would be counted for the determination of necessary benefits. It is irrespective of initial appointment on temporary basis. Taking into consideration the judgment of this Court in Prasidh Narayan (supra) and relied upon by the learned Single Judge, we find no reason to cause interference in the appeal. More so, the same issue was decided by this Court in the appeal bearing Special Appeal Defective No. 156 of 2021 (State of U.P. and 4 others Vs. Narayan Singh Sharma) dated 19th February, 2021. In light of the aforesaid, this appeal fails and is dismissed.” 21. The State of U.P. preferred Special Leave to Appeal (C) Nos.9883-9884 of 2022 which was also dismissed by the Apex Court by order dated 11.07.2022 granting time to the State of U.P. to comply with the order of this Court within three months. The order of the Apex Court dated 11.07.2022 reads as under:- “In the facts and circumstances of the case, we are not inclined to entertain the present petitions. The special leave petitions are, accordingly, dismissed. Pending application(s), if any, shall stand disposed of. Learned counsel for the petitioners seeks eight weeks' time to comply with the order passed by the High Court and granted as prayed for. It is made clear that no further extension will be granted.” 22. The special leave petitions are, accordingly, dismissed. Pending application(s), if any, shall stand disposed of. Learned counsel for the petitioners seeks eight weeks' time to comply with the order passed by the High Court and granted as prayed for. It is made clear that no further extension will be granted.” 22. It may also be relevant to reproduce paragraphs 21 to 24 of the judgement of this Court in the case of Kaushal Kishore Chaubey and Others Vs. State of U.P. and Others 2021 (10) ADJ 628 :- “21. Undisputedly, the fact in the instant case is that the petitioners have been engaged as Seasonal Collection Amin between the year 1976 to 1990 and their services have been regularized between the years 2011 to 2016 and they have been extended all the benefits like the revision of pay with the approval of the competent authority as paid to the regular Collection Amin. The duties which have been discharged by the petitioners while working as Seasonal Collection Amin was similar to the duties discharged by regular Collection Amin, and on continuance and satisfactory services rendered by them as Seasonal Collection Amin , they have been regularized in service as per Rules. Thus, from the facts narrated above, it is evident that though the nomenclature and nature of appointment to the petitioners were Seasonal Collection Amin , but as a matter of fact, they meet all the requirements to be treated as temporary employees as held by the Apex Court in the case of A.P. Srivastava Vs. Union of India and others, (1995) 3 UPLBEC 1842 (Supplement), [See also Ram Pratap Vs. State of U.P., 2006 (4) ADJ 709 , Babu Singh Vs. State of U.P., 2006 (8) ADJ 371 , Kedar Ra-I Vs. State of U.P., 2008 ILR (All) 659, Ram Sajiwan Maurya Vs. State of U.P. and others, Writ Petition No.3031 (S/S) of 2004 (decided on 12 August 2009), Kanti Devi Vs. State of U.P., 2009 (10) AJD 18, Kishan Singh Vs. State of U.P., 2009 (9) ADJ 516 & Awadh Bihari Shukla Vs. State of U.P., 2015 (6) ADJ 186 ]. 22. State of U.P. and others, Writ Petition No.3031 (S/S) of 2004 (decided on 12 August 2009), Kanti Devi Vs. State of U.P., 2009 (10) AJD 18, Kishan Singh Vs. State of U.P., 2009 (9) ADJ 516 & Awadh Bihari Shukla Vs. State of U.P., 2015 (6) ADJ 186 ]. 22. From the judgments referred to above, it is clear that the Courts have 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 the 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.” 23. The judgements, referred to above, lays down that action of the respondent in ignoring the period of services rendered by the employees as Seasonal Collection Amin for pension is arbitrary. 24. At this stage, it would be relevant to have a glance at Rule 5 of Rules, 1974 which deals with the source of recruitment and Rule 17A which talks about the preparation of select list. Rules 5 and 17A reads as under:- “5. 24. At this stage, it would be relevant to have a glance at Rule 5 of Rules, 1974 which deals with the source of recruitment and Rule 17A which talks about the preparation of select list. Rules 5 and 17A reads as under:- “5. Source of recruitment.-(1) 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 per cent of the vacancies shall be filled by promotion from amongst such substantively appointed collection peons:- (a) who have passed at least High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto; and (b) Who have worked in the Collection Organisation 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. 17A. Procedure for selection of Seasonal Collection Amins.-The Collector shall prepare a list of seasonal Collection Amins who are eligible for selection under the first proviso of sub-rule (1) of Rule 5 and select from amongst them, the required number of candidates on the basis of seniority or the length of their service on the post of Seasonal Collection Amin in the district subject to satisfactory work.” 25. It is also contended by the learned counsel for the petitioners that the source of recruitment is provided under Rule 5 of Rules, 1974 and under the second proviso to Rule 5(1), 35% vacancy of Collection Amin is to be filled from Seasonal Collection Amin whose performance has been satisfactory in at least four Fasals. It is also contended by the learned counsel for the petitioners that the source of recruitment is provided under Rule 5 of Rules, 1974 and under the second proviso to Rule 5(1), 35% vacancy of Collection Amin is to be filled from Seasonal Collection Amin whose performance has been satisfactory in at least four Fasals. He submits that Satisfactory Service has been defined in the Explanation which states that Satisfactory Service means that the conduct of Seasonal Collection Amin is good and his recovery in the four Fasals should not be less than 70%. 26. It is further submitted that Rule 17A of the Rules 1974 provides for the selection procedure of Seasonal Collection Amins and as per the said rule, the Collector shall prepare a list of Seasonal Collection Amins under the first proviso to Rule 5(1) of the Collection Amin based on their satisfactory service and recovery. It is also contended that once Rules provides that 35% vacancy of Seasonal Collection Amin is to be filled from Seasonal Collection Amin and their past performance is a relevant consideration in placing their name in the list of Seasonal Collection Amin for the purpose of regularisation, the past service rendered by such an employee cannot be ignored. 27. This Court finds substance in the aforesaid argument of learned counsel for the petitioners inasmuch as for being eligible to be considered for appointment under 35% quota from Seasonal Collection Amin as provided in the second proviso to Rule 5(1) of Rules 1974, the performance of Seasonal Collection Amin has to be satisfactory in at least four Fasals. The satisfactory service has been explained in Explanation to Rule 5(1) which states that satisfactory service means good conduct and recovery of 70% by Seasonal Collection Amin in at least four fasals. 28. Once the rule provides one of the sources of recruitment to Collection Amin through Seasonal Collection Amin and procedure is contemplated which is to be followed in preparing the list of eligible Seasonal Collection Amins to be considered for appointment under 35% quota under the proviso to Rule 5, in such circumstances, it cannot be said that engagement of the Seasonal Collection Amin is de-hors the rules, more so when Rule 3(i) defines 'Seasonal Amin' which means that an Amin who has been appointed for Rabi and Kharif or both crops. For this reason, this Court is of the view that denial of counting of past service as Seasonal Collection Amin for the purpose of pension is arbitrary. 29. The respondent no.2 has placed reliance upon U.P. Act No.1 of 2021 and the judgement of this Court in Special Appeal No.398 of 2021 (Shri Chandra Singh Vs. State of U.P. & Others) to deny the benefit of Old Pension Scheme to the petitioners. 30. So far as the reliance placed by the learned Standing Counsel upon U.P. Act No.1 of 2021 is concerned, this Court in the case of Awadhesh Kumar Srivastava Vs. State of U.P. and Others passed in Writ-A No.746 of 2023 has held that the benefit of the judgement of the Apex Court in the case of Prem Singh Vs. State of U.P. and Others (2019) 10 SCC 516 cannot be negated by the State by placing reliance upon U.P. Act No.1 of 2021. 31. So far as the judgement of this Court in the case of Shri Chandra Singh (supra) relied upon by respondent no.2 in passing the impugned order is concerned, the said judgement has not considered the law as to when the judgement can be over-ruled by the legislature by enacting a validation law. The said judgement has also not considered the judgement of this Court in the case of Suresh Chandra Pandey (supra), wherein the identically placed employees have been extended the benefit of the Old Pension Scheme, and special leave petitions filed by the respondent-State were dismissed. The Apex Court did not find any merit in the Special Leave to Appeal against the judgement of the learned Single Judge and Special Appeal Court since the respondent was initially appointed as Seasonal Collection Amin and was extended pay scale from 1988 onwards, and also revised pay scale. Further, the said judgement has also not noticed the judgement of this court in Special Appeal No.475 of 2020 which was dismissed by this Court wherein challenge was laid by the State of U.P. against a judgement granting benefit of Old Pension Scheme to the Seasonal Collection Peon. In such view of the fact, the ratio of the judgement of this Court in the case of Shri Chandra Singh (supra) does not apply in the instant case and has wrongly been relied upon by respondent no.2 in rejecting the claim of the petitioners. 32. In such view of the fact, the ratio of the judgement of this Court in the case of Shri Chandra Singh (supra) does not apply in the instant case and has wrongly been relied upon by respondent no.2 in rejecting the claim of the petitioners. 32. So far as the contention of learned Standing Counsel that after the introduction of the New Pension Scheme w.e.f. 01.04.2005 by Notification dated 28.03.2005, any employee recruited on or after 01.04.2005 shall be governed by the New Pension Scheme and in the instant case, as the petitioners have been regularized after implementation of New Pension Scheme, they shall be governed by New Pension Scheme and are not entitled to the benefit of Old Pension Scheme. A similar contention was also advanced in the case of Awadhesh Kumar Srivastava (supra) wherein this Court did not find merit in the said submission, therefore, following the judgement of this Court in the case Awadhesh Kumar Srivastava (supra), the said contention being misconceived is rejected. 33. Thus, for the reasons given above, all the writ petitions are allowed and impugned orders in the present writ petition as well as in the connected writ petitions are set aside. The respondent state is directed to compute pensionary benefits 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 production of the certified copy of this order.