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2023 DIGILAW 2923 (ALL)

Shambhu Lal v. State Of U. P.

2023-12-22

SARAL SRIVASTAVA

body2023
JUDGMENT : Saral Srivastava, J. 1. Heard Sri Adarsh Singh, Advocate holding brief of Sri Ramesh Kumar Tiwari, learned counsel for the petitioner and Sri Shrawan Kumar Dubey, learned Additional Chief Standing Counsel for the State-respondents. 2. The petitioner by means of the present writ petition has assailed the order dated 27.01.2023 passed by respondent no.2-Director, Printing and Stationary Department, U.P. Government Press, Allahabad whereby he has rejected the representation of the petitioner for including the services rendered by him as daily-wager with regular service and grant the benefit of Old Pension Scheme. 3. The brief facts of the case are that the petitioner was initially engaged as a daily wager on the post of Group-D in the department in August, 1987 and since then he continuously discharged his duties without any break. The petitioner through their union filed Writ Petition No.7034 of 1992 (Pradeshik Rajkiya Mudralaya Karamchari Samanwaya Samiti, U.P. Lucknow through its Secretary Vs. State of U.P. and Others) seeking regularisation of their services which was disposed off by this Court by judgement dated 02.12.1993. The said judgement was challenged before the Apex Court by way of Civil Appeal No.6326 of 1994. However, during the pendency of said appeal, State Government took a decision on 12.11.1997 proposing to regularise them in service. The Apex Court disposed off the aforesaid appeal by order dated 26.11.1997 in terms of decision of State Government to regularise daily wagers. 4. The further case of the petitioner is that despite direction of the Apex Court in the civil appeal, the respondent instead of regularising the daily wage workers started appointing Gateman in the department. In such view of the fact, the petitioner through their union again approached Apex Court by filing Civil Appeal Nos.3339-3340 of 2014 which was disposed off by the Apex Court by judgement dated 07.03.2014 with a direction to the department to regularise the daily wage workers. 5. In compliance of the order of Apex Court, the services of the petitioner was regularised on 16.01.2015 and he became permanent on 22.12.2018. The petitioner has retired on 31.12.2022. 6. The grievance of the petitioner is that the services rendered by him as daily wage employee has not been included for his pensionary benefits. The petitioner had approached this Court in Writ-A No.15236 of 2022 with a prayer to grant pension and other retiral benefits. The petitioner has retired on 31.12.2022. 6. The grievance of the petitioner is that the services rendered by him as daily wage employee has not been included for his pensionary benefits. The petitioner had approached this Court in Writ-A No.15236 of 2022 with a prayer to grant pension and other retiral benefits. This Court disposed off the said writ petition by judgement and order dated 19.10.2022 directing the respondent-State to decide the representation of the petitioner dated 17.05.2022 within a period of four weeks. 7. In compliance of the order of this Court, the respondent no.2 by order dated 27.01.2023 rejected the representation of the petitioner by giving reference to the various government orders that there is no provision for including the services rendered by an employee as daily wager for the purpose of pension, and as the petitioner was regularised in the year 2015, therefore, he would be given the benefit of new pension scheme and not the old pension scheme. 8. A counter affidavit has been filed by the respondent no.2 stating therein that petitioner was engaged as a daily wager in the department in the year 1987, and thereafter, he had worked 318 days from the year 1987 to 1997 as daily wager. It is further stated that from the year 1998 to 2015, he has not worked for a single day. It is further stated that in compliance of the order dated 07.03.2014 passed by the Apex Court, State Government has issued a circular dated 13.01.2015 by which, the services of the petitioner has been regularised in the department on Group-D post in the pay band of Rs.5200-20,200 (Grade Pay Rs.1800/-). Thereafter, the petitioner retired from service on 31.12.2022 after attaining the age of superannuation. It is further stated that new pension scheme has been introduced w.e.f. 01.04.2005 and services of the petitioner has been regularised in the year 2015, therefore, the petitioner is covered under the new pension scheme and he cannot be granted the benefit of old pension scheme. 9. Challenging the aforesaid order, learned counsel for the petitioner has contended that action of respondent no.2 in rejecting the claim of the petitioner is arbitrary and illegal. It is contended that the service rendered by the petitioner as a daily wager cannot be excluded from computing qualifying service for grant of the Old Pension Scheme. 9. Challenging the aforesaid order, learned counsel for the petitioner has contended that action of respondent no.2 in rejecting the claim of the petitioner is arbitrary and illegal. It is contended that the service rendered by the petitioner as a daily wager cannot be excluded from computing qualifying service for grant of the Old Pension Scheme. It is further contended that the services rendered by the petitioner as daily wager is liable to be included with the regular service for grant of pensionary benefits in view of the judgement of the Apex Court in the case of Prem Singh Vs. State of U.P. and Others (2019) 10 SCC 516 , and the right of the petitioner for adding the services rendered by him as a daily wager in the work-charged establishment cannot be negated on the strength of government orders. Accordingly, it is submitted that once the petitioner is entitled to the services rendered by him in the work-charged establishment along with regular service, it can by no stretch of imagination be said that the petitioner is the new entrant in the services of the State Government as the petitioner entered into the service of the State Government on the date of engagement as daily-wager on Group-D post and continued thereafter till his retirement. Thus, it is contended that the New Pension Scheme as introduced by the State Government does not apply to the petitioner. Accordingly, it is submitted that the services rendered by the petitioner as daily wager is liable to be included with the regular service for the purpose of grant of Old Pension Scheme. 10. Per contra, learned Additional Chief Standing Counsel would contend would contend that after the judgment of the Apex Court in the case of Prem Singh (supra), the State Government has promulgated Uttar Pradesh Qualifying Service For Pension Validation Act, 2021 (U.P. Act No.1 of 2021) defining 'qualifying service'. He submits that according to Section 2 of the U.P. Act No.1 of 2021, the 'qualifying service' means the service rendered by an employee appointed on a temporary or permanent post in accordance with the provisions of service rules prescribed by the Government for the post. He submits that according to Section 2 of the U.P. Act No.1 of 2021, the 'qualifying service' means the service rendered by an employee appointed on a temporary or permanent post in accordance with the provisions of service rules prescribed by the Government for the post. He further submits that the U.P. Act No.1 of 2021 has come into force with effect from 1st April 1961 which is evident from Section 3 of U.P. Act No.1 of 2021, therefore, the benefit of the judgement of the Apex Court in the case of Prem Singh (supra) is not available to the petitioner, consequently, the services rendered by the petitioner as daily-wager cannot be added with his regular service for determining 'qualifying service' for pension. 11. It is further submitted that respondent no.2 while rejecting the representation of the petitioner has given cogent reason that as the services of the petitioner has been regularised in the year 2015, therefore, the services rendered by him as daily wager is not liable to be included with the regular service for determining the pensionary benefits. In support of his aforesaid contention, he has placed reliance upon paragraph 18 of the judgement of Apex Court passed in Civil Appeal Nos.3339-3340 of 2014, which reads as under:- 12. I have considered the rival submissions of the parties and perused the record. 13. The facts as emanate from the records are that petitioner was engaged as daily wager on the post of Group-D in the department in August, 1987 and thereafter, his services was regularised on 16.01.2015 in compliance of the order of Apex Court dated 07.03.2014 and he became permanent on 22.12.2018. Thereafter, the petitioner has retired from service on 31.12.2022. 14. In facts of the present case, it would be apt to refer the paragraph 18 of the judgement of Apex Court passed in Civil Appeal Nos.3339-3340 of 2014, which reads as under:- “18. Be that as it may, in view of the position as explained above, we are of the view that the interest of justice would be met and complete justice can be done if an appropriate direction is issued to fill-up the posts in Group-D/Class-IV category in the Government Press in the State of Uttar Pradesh from amongst the daily-wage employees in service as on 12.11.1997. The Director of the Printing Press is directed to identify the vacancies between 1991 and 2003 in the Group-D/Class-IV posts other than “Gatemen”. This exercise shall be completed within four months. The vacancies thus identified shall be filled-up on regular basis from amongst the daily-wage Group-D/Class- IV employees in service in the Government Press as on 12.11.1997 and who can work at least for five years as on date, before their superannuation as per Rules. The qualification shall be determined as per the 1985 Rules. This exercise shall be completed within another one month. We make it clear that in the process, none of the existing regular employees including the selected gatemen shall be disturbed. In other words, it will be open to the State to appoint such employees and post them either in the vacancies if available in the Government Press or any other Group-D/Class-IV posts in the State. We further make it clear that without completing this exercise, there shall be no regular appointment in any Group-D/Class-IV posts in the State of Uttar Pradesh.” 15. Further, the controversy in hand is concluded by this Court in the case of Awadhesh Kumar Srivastava Vs. State of U.P. and Others passed in Writ-A No.746 of 2023. 16. In such view of the fact, the present writ petition is also allowed in terms of the judgement of Awadhesh Kumar Srivastava (supra) and impugned order dated 27.01.2023 passed by respondent no.2- Director, Printing and Stationary Department, U.P. Government Press, Allahabad is set aside. The respondent-State is directed to compute pensionary benefits payable to the petitioner after taking into account his entire service including the service rendered by him as daily wager in the department. The amount payable to the petitioner shall be computed within a period of three months from the date of production of certified copy of this order.