Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2395 (ALL)

Adarsh Kumar v. State of U. P.

2023-10-18

AJIT KUMAR

body2023
JUDGMENT : Ajit Kumar, J. Heard learned counsel for the parties and perused the records. 2. It is submitted on behalf of the petitioner that petitioner was initially appointed as a Seasonal Collection Peon on 1.7.1976 in Tehsil-Sorawn, District-Allahabad. The petitioner approached this Court by filing Writ Petition No. 51899 of 2004 seeking regularization, in which an interim order was passed on 2.2.2009 directing the respondents to permit the petitioner to continue to work and for payment of regular salary. The petitioner continued to work thereafter. Subsequently, when the claim of the petitioner for regularization was not being considered, petitioner filed Contempt Petition No. 1036 of 2010 and so in terms of the order of writ Court, the petitioner was regularized. 3. It is claimed by the petitioner that he deserves to be given Old Pension Scheme by counting his period of work rendered previously as ad-hoc/daily wage with respondents towards qualifying service so as to make Old Pension Scheme admissible and in support of his argument, learned Advocate has placed reliance upon a number of decisions of this Court and of Supreme Court in the case of Habib Khan v. State of Uttrakhand passed in Civil Appeal No. 10806 of 2017 decided on 23rd August, 2017. The judgment of the Supreme Court in the case of Prem Singh v. State of U.P., 2019(3) ESC 801 (SC) and Kallu Ali v. State of U.P. and others 2022(9) ADJ 474 and most importantly the judgment of the Supreme Court in the case of State of Gujarat and others v. Talsibhai Dhanjibhai Patel passed in Special Leave to Appeal (C) No. 1109 of 2022. 4. Besides above, he submits that considering the issue of applicability of the Old Pension Scheme despite the amending Act, 202 coming into force, a division Bench of this Court in the case of State of U.P. Through Secretary Lok Nirman Vibhag and others v. Bhanu Pratap in Special Appeal No. 152 of 2021 vide order dated 14.7.2021 held that unless and until the initial appointment is disputed to be not being in accordance with law, a person regularised in service subsequently, cannot be held disentitled to pension. He submits that this judgment of Special Appellate Bench was appealed against before the Supreme Court in Special Leave to Appeal (C) No. 10381 of 2022, which also came to be dismissed and, therefore, State of Uttar Pradesh on its request had been granted eight weeks' time to comply with the order of the High Court. He also relies upon a judgment of a coordinate bench in Awadhesh Kumar Srivastava v. State of U.P. and others, Writ - A No. 746 of 2023 delivered on 3.7.2023. 5. A counter-affidavit has been filed by the State opposing the claim of the petitioner in light of the provisions of the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020, which has been subsequently enacted as an Act being Act No. 1 of 2021. According to counter-affidavit petitioner would not be entitled to payment of any pension in view of the fact that the services of the petitioner were regularized in the year 2010 and the petitioner has not rendered service for more than 10 years in substantive capacity. 6. This above issue, in reply it is submitted is no more res integra, as this Court, while interpreting the provision of Section 2 of the Ordinance, 2020, now an Act, provided that the services rendered by a workman even on temporary basis shall be considered and counted as a qualifying service while determining the eligibility for payment of pension. 7. Rival submissions fall for consideration. 8. Supreme Court in the case of Prem Singh v. State of U.P. and others, (2014) 1 UPLBEC 760, has dealt with the Section 3(8) of U.P. Government Servant Retirement Rules, 1961 in question and held relevant provision to be discriminatory, unjust and bad for impermissible classification vide para 31, 32, 33, 36 and 37 thus: ''31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment. 32. In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies. 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. 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. 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. 36. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka and others v. Uma Devi, 2006 (4) SCC 1 . This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. 37. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. 37. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed.'' (emphasis added) 9. It transpires that after the judgment of Supreme Court an ordinance came to be issued by the State Government in the year 2020 which later on came to be converted into a legislative enactment being Act No. 1 of 2021 namely UP. Qualifying Service for Pension Validation Act, 2021, wherein, the previous services rendered were not made admissible towards qualifying service, if not upon temporary or permanent post. The amendment was made with retrospective effect defining the words 'qualifying service'. Thus, vide a new definition a person appointed on a temporary or permanent post was held to be entitled to get his such service period to count towards qualifying service. The legislative intendment behind the amendment became an issue both before Division Bench in State of U.P. Through Secretary Lok Nirman Vibhag and others v. Bhanu Pratap in Special Appeal No. 152 of 2021 decided vide order dated 14.7.2021 and a coordinate bench in Awadhesh Kumar Srivastava v. State of U.P. and others, Writ - A No. 746 of 2023 delivered on 3.7.2023. In the case of Bhanu Pratap (supra) in the concluding part of the judgment where the Court dealt with status of that petitioner/respondent to be of a work charge employee only, held him entitled to pensionary benefits by counting the period spent as workcharge employee towards qualifying service. The Supreme Court held thus: ''It is clear from the perusal of Section 2 of the Act of 2021 that it would have effect notwithstanding anything contained in U.P. Retirement Benefit Rules, 1961 or Regulation 361 and 370 of the Civil Service Regulation. The Supreme Court held thus: ''It is clear from the perusal of Section 2 of the Act of 2021 that it would have effect notwithstanding anything contained in U.P. Retirement Benefit Rules, 1961 or Regulation 361 and 370 of the Civil Service Regulation. Careful reading thereof, however, reveals that ''Qualifying Service'' has been defined to mean the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post. Admittedly, the petitioner was appointed on 10.5.1989 as work charge employee at Azamgarh. His services were however regularised on 15.6.2011. The regularisation of service was against the permanent post and it is not that his initial appointment was not in accordance to service Rules. In light of the aforesaid, period spent in service may be on temporary basis while working as a work charge employee, proceeded with regularisation, benefit of past services cannot be denied.'' 10. In Awadhesh Kumar Srivastava v. State of U.P. and others, Writ - A No. 746 of 2023 a coordinate bench of this Court dealing with amended provision under Act No. 1 of 2021 and its scope to neutralize the effect of the judgment in Prem Singh's case, it held that such an amendment cannot do so. In a very unequivocal terms the Court held that U.P. Act No. 1 of 2021 does not qualify the three tests laid down by the Supreme Court previously in the judgments referred to, and dismissed by his Lordships to negate the benefits of the judgment of Supreme Court in Prem Singh's case (supra). The relevant paragraph No. 46 of the judgment is reproduced hereunder: ''46. In such view of the fact, this Court finds that U.P. Act No. 1 of 2021 does not qualify the three tests laid down by the Apex Court in the judgements referred above to negate the benefit of the judgement of the Apex Court in Prem Singh's case (supra).'' (emphasis added) 11. I am also of the view that once the highest Court of the land has declared a provision to be illegal to make pensionary benefits available to such employees, the legislature may not enjoy that authority to reverse the legal preposition and resultant effect and that too retrospectively. I am also of the view that once the highest Court of the land has declared a provision to be illegal to make pensionary benefits available to such employees, the legislature may not enjoy that authority to reverse the legal preposition and resultant effect and that too retrospectively. This is so because the validity of a legislative Act is also to be judged on the test as to whether the enactment is consistent with the provisions of Chapter III of the Constitution that contains Article 14 of the Constitution. Citing various previous authorities of the Court in the case of A. Manjula Bhashini and others v. Managing Director, Andhra Pradesh Women's Cooperative Finance Corporation Ltd. and another, (2009) 8 SCC 431 , it was observed ''that the legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the judiciary to decide it with reference to the law in force. The legislature also is incompetent to overrule the decision of a Court without properly removing the base on which the judgment is founded.'' 12. The principles enunciated in the said judgment and various other judgments are to the effect that the legislature cannot blindly validate a procedure which has been held to be invalid by a judicial pronouncement, nor the legislature by bringing in a provision with retrospective effect, can validate a provision which is contrary to the principles enshrined under Article 14 of the Constitution. Whatever is arbitrary, discriminatory and begets an impermissible classification, stands hit by Article 14 of Chapter III of the Constitution. 13. The concept of regularization of daily wage employees/casual labourers/temporary and ad-hoc employees is to give them substantive appointment by offering vacant position in a cadre or creating vacancies to increase cadre strength to accommodate such employees. The very idea behind regularization is to bring certainty in employment and to reward them for their continued working with the establishment as they have spent their heydays in service and are rendered overaged for any new employment. This is also important for an employer to give such an employee a financial security when it is State. State has to set an example of a model employer for other private entrepreneurs. This is also important for an employer to give such an employee a financial security when it is State. State has to set an example of a model employer for other private entrepreneurs. I may quote here the observations made by the Division Bench of this Court in the case of State of U.P. and others v. Putti Lal, (1998) 1 UPLBEC 313, vide its para 11 and 12 that runs as under: ''11. In this connection reference may also be made to the Industrial Disputes Act, 1947 (herein after referred to as 'the Act'), Section 2(ra) of which has defined ''unfair labour practice'' as under : ''2 (ra), ''unfair labour practice'' means any of the practices specified in the Fifth Schedule;'' Serial No. 10 of ''unfair labour practice'' contained in Fifth Schedule appended to the Act, being relevant, in this connection, is reproduced below: ''10. To employ workmen as ''bad lies'', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.'' By the said provision employment of persons as bad lies, casual or temporary for years has been declared to be ''unfair labour practice''. Almost similar definition of ''unfair labour practice'', contained in Maharashtra Act came up for consideration in Chief Conservator of Forest v. Jagannath Maniti Kondhare (MANU/SC/0750/1996) wherein the Supreme Court affirmed the decision of Industrial Court holding that employment of the employees on casual or temporary basis for several years (5 to 6 years is that case) amounts to unfair labour practice. The Supreme Court also rejected the Government's plea about its inability to regularise the service of Daily Wagers on account of paucity of funds holding as under : ''28. In so far as the financial strain on state exchequer is concerned, which submissions sought to be buttressed by Shri Dholakia by stating that in the Forests Department itself the casual employees are about 1.4 lacs and if all of them were to be regularised and paid at the rate applicable to permanent workmen, the financial involvement would be in the neighbourhood of Rs. 300 crores a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. 300 crores a very high figure indeed. We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second, inasmuch as we do not intend that the view to be taken by us in these appeals should apply, proprio vigore, to all casual labourers of the Forest Department or any other Department of the Government. 29. We wish to say further that if Shri Bhandare's submission is taken to its logical end, the justification for paying even minimum wages could wither away, leaving any employer, not to speak of model employer like the State, to exploit unemployed persons. To be fair to Shri Bhandare it may, however, be stated that the learned counsel did not extend his submission this far, but we find it difficult to limit the submission of Shri Bhandare to payment of, any fair wages, as distinguished from minimum wages. We have said so because if a pay scale has been provided for permanent workmen that has been done by the State Government keeping in view its legal obligation and must be due which had been recommended by the State Pay Commission and accepted by the Government. We cannot deny this relief of permanency to the respondents-workmen only because in that case they would be required to be paid wages meant for permanent workers. This right flows automatically from the relief of regularisation to which no objection can reasonably be taken, as already pointed out, We would, however, observe that the relief made available to the respondents is not one which would be available ipso facto to all the casual employees either of the Forest Department or any other Department of the State. Claim of casual employees for permanency or for higher pay shall have to be decided on the merits of their own cases.'' In the aforesaid case the Supreme Court held that Forest Department is an industry and casual/daily wagers are workmen under the Act. 12. In pursuance of the directions issued by this Court pending these cases the Government of U. P. has submitted more than one scheme for regularisation of the petitioners, but those Schemes hardly contain any hope for their regularisation. 12. In pursuance of the directions issued by this Court pending these cases the Government of U. P. has submitted more than one scheme for regularisation of the petitioners, but those Schemes hardly contain any hope for their regularisation. It has been stated therein that the petitioners can be considered for regularisation against available; vacancies after amending service rules. Available vacancies being few no substantial help can be expected from them. That apart, the Government while framing those Schemes has not applied its mind to the questions dealt with hereinabove. These are aspects which are to be considered by the Government before framing Scheme for absorption of the petitioners. In the present case the appropriate pleadings are also not there, so as to declare the employment of the petitioners as daily wager for considerably long period as ''unfair labour practice''. We, are, therefore, not expressing any final opinion on this question also. The questions dealt with hereinabove are to be considered and decided by the Government before framing the Scheme for regularisation/absorption of the petitioners and other similarly placed employees.'' 14. It is in the above background that the Supreme Court on appeal required State of Uttar Pradesh to frame rules for regularization and it is for that reason that regularization Rules 2001 namely Uttar Pradesh Regularisation of Daily Wagers (Appointment on Group 'D' Posts) Rules, 2001 were framed by the State Government and the Court expressed its view that in that case those who are working on daily wage basis or casual employees will be regularized and till their regularization was considered, they would be paid minimum of pay scales as admissible to regular group 'D' employees. vide paras 24 and 25 Supreme Court in the case of State of U.P. and others v. Putti Lal, (2006) 9 SCC 337 : ''3. On behalf of the employees an IA had been filed claiming that they should at least be allowed their regular wages during the pendency of the appeals, but by order dated 27-9-1999 that prayer was rejected and it was held that the persons working will be paid only the amount payable to a daily-wager. On behalf of the employees an IA had been filed claiming that they should at least be allowed their regular wages during the pendency of the appeals, but by order dated 27-9-1999 that prayer was rejected and it was held that the persons working will be paid only the amount payable to a daily-wager. When these matters had been posted for hearing before the Court on 1-5-2001, after hearing the parties for a considerable length of time, the Court felt that the impugned direction of the High Court for providing a scheme for regularisation of all the daily-wage workers/muster-roll employees under the Forest Department who have rendered 10 years of service or more, should be regularised by making appropriate scheme. The Court directed that the scheme should be framed within three months from the date of the order. As the State of U.P. was bifurcated into two States and the State of Uttaranchal had come into existence, by a subsequent order the State of Uttaranchal was also impleaded as a party and it had been granted time to file its response. Pursuant to the aforesaid direction of the Court dated 1-5-2001 the State of U.P. has framed a set of rules in exercise of power conferred under the proviso to Article 309 of the Constitution called ''the Uttar Pradesh Regularisation of Daily Wagers (Appointment on Group 'D' Posts) Rules, 2001''. It appears that a similar rule has been framed for regularisation of Group 'C' daily-wage employees. Both these statutory rules would govern the case of all daily-wagers appointed in any department including the Forest Department, which Department was before us pursuant to the direction of the Division Bench of the Allahabad High Court. Since a statutory rule has been framed indicating the manner in which the daily-wagers can be regularised, question of framing any further scheme by the State of Uttar Pradesh does not arise. 5. In several cases this Court applying the principle of equal pay for equal work has held that a daily-wager, if he is discharging the similar duties as those in the regular employment of the Government, should at least be entitled to receive the minimum of the pay scale though he might not be entitled to any increment or any other allowance that is permissible to his counterpart in the Government. In our opinion that would be the correct position and we, therefore, direct that these daily-wagers would be entitled to draw at the minimum of the pay scale being received by their counterparts in the Government and would not be entitled to any other allowances or increment so long as they continue as daily-wagers. The question of their regular absorption will obviously be dealt with in accordance with the statutory rules already referred to.'' 15. In the matters like the present one, I find that the petitioner was entitled to regularization on account of his previous service so rendered and therefore, it is legitimately expected from the Government that it will not deny claim for pensionary benefits to such employees. In Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499 , defining the concept of legitimate expectation the Court vide para 35 observed thus: ''If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory unfair or based, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim biased on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the ground to consider but the Court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the Courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is ''not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the Court out of review on the merits,'' particularly when the element of speculation and uncertainty is inherent in that very concept.'' 16. Now if such employees who have rendered 10 to 20 years of service and are being regularized, it would be equally unfair, immoral and unethical to ignore past services rendered to deny them claim for retirement dues. Now if such employees who have rendered 10 to 20 years of service and are being regularized, it would be equally unfair, immoral and unethical to ignore past services rendered to deny them claim for retirement dues. In any ecosystem of public employment, where financial security and social justice factor framing up of a policy to attach permanency to workforce, it would be quite unethical to deny them such retirement benefits to which they would have been otherwise entitled to, had they been appointed substantively at initial stage. One must not forget that regularization, as a concept in service jurisprudence, is an acknowledgement of past services rendered for the reason that there was work available permanently and that was why employment was offered, may be on daily wage basis or fixed pay to meet the requirement in the establishment. So in my considered view, such period rendered in the service of an establishment should be taken into account towards qualifying service in respect of those employees whose period of such service has been since prior to the abolition of old pension rules, as such period of service and availability of work has factored their regularization. 17. In the case of 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.'' (emphasis added) 18. 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.'' (emphasis added) 18. Further, Supreme Court in the case of Uday Pratap Thakur and another v. State of Bihar decided on 28th April 2023, vide para 6 has also dealt that the judgment of Prem Singh (supra) and has observed that minimum period that may be required to make a regularized employee entitled for pension can be taken into account towards qualifying service. Para 6.2 and 6.3 of the judgment relevant for the purpose of this case runs as under: 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. Civil Appeal No. 3155 of 2023. 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. 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 Civil Appeal No. 3155 of 2023 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) 19. Although above judgment discusses the principle to interpret the relevant rules framed by State of Bihar but principle that govern the law, remains the same in so far as entitlement to pension is concerned and interpretation of rule 3(8) of the amended Rules, 1961. 20. In view of the above, therefore, for the purposes of benefit of pension under the Old Pension Scheme, to the extent period falls short of qualifying service for pension in those cases where regularization was done prior to 2005, period of service rendered as daily wage/casual labour, ad-hoc employee or work charge employee counted towards qualifying period for pension and those who have been regularized after 2005, in their respect that much period rendered as daily wager/casual/ad-hoc capacity as it makes them qualify for pension, should be taken into account. 21. 21. In view of the aforesaid, this writ petition deserves to be allowed with a direction in the nature of mandamus to the respondents to count the services rendered by the petitioner from the year 1.7.1976 up to 2010 (the date and year of regularization) as qualifying service for pension and steps shall be taken for calculation and payment of pension in light of the directions issued above. The respondents shall also consider other claims of the petitioner for leave encashment as well as benefit of 7th Pay Commission while determining the quantum of amount payable to the petitioner, as directed above. A writ of mandamus is accordingly issued to the competent respondent to do needful in the matter accordingly within a period of three months of production of certified copy of this order. 22. This petition thus stands allowed as above with no order as to cost.