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2024 DIGILAW 1870 (ALL)

Ram Jatan Tiwari v. U. P. Power Corporation Ltd.

2024-08-09

PRAKASH PADIA

body2024
JUDGMENT : Hon'ble Prakash Padia, J. - Heard Sri Anand Tiwari, learned counsel for the petitioner(s), Sri Devesh Vikram, learned counsel for the respondent No. 2, Sri Shrawan Kumar Tripathi, learned counsel for the contesting respondents and Sri Adarsh Bhushan, learned counsel for the respondent Nos. 5 and 6 in both the writ petitions. 2. In both the writ petitions, the facts are similar and the relief prayed for is also identical, as such, both the writ petitions are being decided by common judgment. 3. The facts as stated in writ petition No. 66755 of 2013 are that the writ petitioners who are five in numbers, were initially appointed in Electricity Department of State of Uttar Pradesh in the year 1977 on daily rate basis, but subsequently, they were illegally retrenched and finally, they were appointed in muster roll, vide order dated 5.8.1988. 4. The petitioner Nos. 2 and 3, namely, 1Bankey Lal Chaudhary & Suresh Yadav filed writ petition No. 38466 of 1994 and petitioner Nos. 1, 4 and 5, namely, 1Ram Jatan Tiwari, Ram Ker Sharma & Ram Bharos filed writ petition No. 35012 of 1994, praying for a writ of mandamus to the Electricity department to regularize their services and pay salary, as is being paid to the similarly situated regular employee. In the aforesaid writ petition No. 35012 of 1994, an order dated 2.11.1994 was passed, directing the U.P. State Electricity Board to continue the petitioners in service and pay same salary, which is being paid to the regular employee, provided the petitioners discharge the duty allotted to them. The similar interim order was passed in writ petition No. 38466 of 1994 on 30.11.1994. 5. It is further stated that the petitioner of writ petition No. 66723 of 2013, namely Vijay Bahadur Singh was also appointed in 1977, but was subsequently illegally retrenched, however, he was appointed and permitted to work on muster roll, vide order dated 5.8.1988. The petitioner Vijay Bahadur Singh of writ petition No. 66723 of 2013 has also filed writ petition No. 38466 of 1994, in which similar interim order, as mentioned above, was also passed. 6. In pursuance of the interim order, mentioned above, the petitioners of both the writ petitions were paid salary as was being paid to regular employee of the Electricity Board. 7. 6. In pursuance of the interim order, mentioned above, the petitioners of both the writ petitions were paid salary as was being paid to regular employee of the Electricity Board. 7. The petitioners of both the writ petitions have further stated that since their appointment from 5.8.1988 under muster roll, they have been continuously working till they have been superannuated on attaining the age of superannuation. It is further stated that by an order dated 25.7.2001, the petitioner/Ram Jatan Tiwari, Bankey Lal Chauhan, Ram Pher Singh & Ram Bharose Lal were given regular appointment on temporary basis. The petitioner No. 3. namely Suresh Yadav was given regular appointment on temporary basis by an order dated 19.3.2002. The petitioner of writ petition No. 66723 of 2013, namely Vijay Bahadur Singh was also given regular appointment on temporary basis by an order dated 25.7.2001. It is further stated that subsequently, by an order dated 1.4.2005, the petitioners of both the writ petitions have been regularized as Shramik. These facts have not been denied by the respondents in their counter-affidavit. 8. From the facts stated above, this much is established that the petitioners were given appointment under muster roll by an order dated 5.8.1988. They were being paid regular salary, as was being paid to the regular employee from the year 1994. It is also admitted that initially the petitioners were given regular appointment on temporary basis in 2001 & 2002 and they were made permanent in the year 2005. 9. The appointment/engagement of the petitioners on muster roll was made by the Electricity Board and the provisions of General Provident Fund scheme, U.P. Retirement Benefit Rules, 1961 and New Family Pension Scheme, 1965 was applicable on employee of Electricity Board and the employees of Electricity Board were entitled for benefit of General Provident Fund scheme, U.P. Retirement Benefit Rules, 1961 and New Family Pension Scheme, 1965. 10. Subsequently, U.P. Power Corporation Limited was incorporated under the provisions of Companies Act. The U.P. Power Corporation Limited is fully owned and controlled by the State Government. Since the U.P. Power Corporation Limited is a company, though incorporated under the provisions of the Companies Act, but its function, finance & administration is controlled by the State Government, as such, the said Corporation is State under Article 12 of the Constitution of India. 11. The U.P. Power Corporation Limited is fully owned and controlled by the State Government. Since the U.P. Power Corporation Limited is a company, though incorporated under the provisions of the Companies Act, but its function, finance & administration is controlled by the State Government, as such, the said Corporation is State under Article 12 of the Constitution of India. 11. After incorporation of U.P. Power Corporation Limited, the services of the petitioners were transferred to U.P. Power Corporation Limited. The petitioners of both the writ petitions have retired on attaining the age of superannuation between 2018 to 2020, and as such, the only dispute remaining in the present writ petition is with regard to the payment of pension and other retiral dues to the petitioners. 12. In the counter-affidavit it is stated that U.P. Power Corporation Limited in meeting of Board of Director dated 1.12.2001, has passed a resolution, to the effect that the persons who have been appointed on or after 14.1.2000, the provisions of Contributory Provident Fund Rules will apply and the provisions of General Provident Fund scheme, U.P. Retirement Benefit Rules, 1961 and New Family Pension Scheme, 1965 will not apply. The U.P. Power Corporation Limited has also framed its rules for Contributory Provident Fund, known as U.P. Power Corporation Limited Contributory Provident Fund Rules, 2004. 13. The stand of the respondents in their counter-affidavit is that since the petitioners have been appointed after 14.1.2000, as such, their services are not pensionable and they are not entitled for pension and other retiral dues, as the provisions of Contributory Provident Fund, the provisions of U.P. Retirement Benefit Rules, 1961 and New Family Pension Scheme 1965 are applicable. 14. Heard learned counsel for the parties. 15. The learned counsel for the petitioner has argued that the petitioners were initially appointed as daily wage worker, however, w.e.f. 5.8.1988, all the petitioners were given appointment as muster roll employee and since 5.8.1988 till regular appointment on temporary basis they have worked as muster roll employee. They were given regular appointment though on temporary basis in 2001 & 2002 and were made permanent in the year 2005. They were given regular appointment though on temporary basis in 2001 & 2002 and were made permanent in the year 2005. It is further argued that the name of the petitioners was duly mentioned in the seniority list of muster roll and accordingly, they were granted benefit of regular pay scale w.e.f. 1994, as such they are entitled for the benefit of General Provident Fund scheme, U.P. Retirement Benefit Rules, 1961 and New Family Pension Scheme, 1965 and also entitled for payment of pension under old pension scheme. 16. As per contra, the argument of learned counsel for the respondent Corporation is that the Board of Management of the Corporation by its resolution dated 1.12.2001 had decided that the General Provident Fund scheme, U.P. Retirement Benefit Rules, 1961 and New Family Pension Scheme, 1965 will not applicable to the persons appointed after 14.1.2000 and the services rendered by the persons appointed after 14.1.2000 will be not pensionable service and the provisions contained in U.P. Power Corporation Limited Contributory Provident Fund Rules, 2004 will be applicable. Thus the petitioners are not entitled for pension. 17. The learned counsel for the petitioners has argued that the services rendered by the petitioners as muster roll employee are worthy to be counted for the purposes of payment of pension. In view of the services rendered as muster roll, the benefit of General Provident Fund scheme. U.P. Retirement Benefit Rules, 1961 and New Family Pension Scheme, 1965 is applicable upon the petitioner, and as such, they are entitled for payment of pension under old pension scheme. 18. For the above proposition, the learned counsel for the petitioner has relied upon judgment rendered by Apex Court in Prem Singh v. State of U.P. and others, 2019 (10) SCC 516 and Awadhesh Kumar Srivastava v. State of U.P. and others, 2023(7) ADJ 144 . 19. Learned counsel for the respondents has relied upon a judgment rendered by Coordinate Bench of this Court in Sanjeev Kumar v. State of U.P. and others, 2019 ADJ Online 0197 and has argued that since the Corporation has been incorporated under the provisions of Companies Act, as such, the decision taken by the Board of Management is applicable upon the employee of the Corporation. 20. 20. After hearing the counsel for the parties and perused the record, it is clear that the petitioners of both the writ petitions were given appointment under muster roll w.e.f. 5.8.1988. They were also paid salary in regular grade, as was being paid to the regular employee. The petitioners of both the writ petitions were regular appointment though on temporary basis in the year 2001 & 2002 and the said appointment was made permanent/regular in the year 2005. 21. Board of Management, for the first time in its meeting held on 1.12.2001 has taken a decision for implementation of provisions of Contributory Provident Fund in the Corporation upon the employees who have been appointed after 14.1.2000. Thus on the date of passing resolution dated 1.12.2001, out of 5 petitioners, 4 petitioners of writ petition No. 66755 of 2013 were given regular appointment on temporary basis by an order dated 25.1.2001 and the petitioners of writ petition No. 66723 of 2013 were also given regular appointment though on temporary basis by an order dated 25.7.2001. Thus, it is clear that even before the date of passing of the resolution by the Board of Management of the Corporation on 1.12.2001, out of 6 petitioners, 5 petitioners were given regular appointment though on temporary basis. 22. By subsequent resolution of Board of Management dated 1.12.2001, the decision was taken to implement the provisions of Contributory Provident Fund to the employees, who have been appointed after 14.1.2000 and benefit of Pension Rules, 1961 were seized to be operative upon the employee appointed after 14.1.2000. Prior to passing of the aforesaid resolution, the provisions of General Provident Fund Scheme, U.P. Retirement Benefit Rules, 1961 and New Family Pension Scheme, 1965 were applicable upon the employees of the Corporation and even in the Office-Memorandum dated 22.2.2002, which has been annexed at page 23 of the supplementary counter-affidavit it is made clear that the provisions of U.P. Retirement Benefit Rules, 1961 will be applicable upon the employees who have been appointed on or before 14.1.2000. Thus, it is clear that the provisions of U.P. Retirement Benefit Rules, 1961 were applicable in the Corporation and the applicability of the aforesaid pension rules have been seized on the employees appointed after 14.1.2000. 23. Thus, it is clear that the provisions of U.P. Retirement Benefit Rules, 1961 were applicable in the Corporation and the applicability of the aforesaid pension rules have been seized on the employees appointed after 14.1.2000. 23. The argument of the learned counsel for the petitioners is that the services rendered by the petitioners as muster roll employees are worthy to be counted for the purposes of payment of pension under Rules of 1961. The Apex Court in case of Prem Singh (supra) has held that series of muster roll are counted for purposes of pension. The Apex Court has held: 30. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work-charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma v. State of U.P. [CA No. - of 2019arising out of SLP (C) No. 5775 of 2018] the appellants were allowed to cross efficiency bar, after 8' years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak with effect from 15-9-1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs 200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs 205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularised time to time by different orders. However, the services of some of the appellants in few petitions/appeals have not been regularised even though they had served for several decades and ultimately reached the age of superannuation. 31. However, the services of some of the appellants in few petitions/appeals have not been regularised even though they had served for several decades and ultimately reached the age of superannuation. 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 regularised. 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 regularisation 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 the Note to Rule 3(8) of the 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. It would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 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 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. 36. There are some of the employees who have not been regularised 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 regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi, (2006) 4 SCC 1 . As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi, (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 regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. 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. 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. 24. The Coordinate bench of this Court in Awadhesh Kumar Srivastawa v. State of U.P. and others, 2023(7) ADJ 144 , has considered various judgments of Apex Court and has held as under: 70. Even in Prem Singh's case (supra), the Apex Court did not appreciate the action of the respondent State in not regularizing the services of the employees rendering service for thirty, forty years or more and they have been superannuated. The Apex Court following the dictum of the State of Karnataka v. Uma Devi, (2006) 4 SCC 1 , issued a direction to regularize the service of those employees who have worked and completed more than 10 years or more. The Apex Court following the dictum of the State of Karnataka v. Uma Devi, (2006) 4 SCC 1 , issued a direction to regularize the service of those employees who have worked and completed more than 10 years or more. Para-36 of the judgement of Prem Singh (Supra) is reproduced herein-below: ''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 State of Karnataka and others v. Umadevi, 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.'' 71. This Court may note that the services of the petitioner should have been regularized earlier, but on account of the apathetic and insensitive approach of the respondents, the service of the petitioner was not regularized earlier, and after rendering about 21 years of service as daily-wager and work-charged establishment, his service was regularized. 72. In such factual backdrop, the State cannot take shelter of the New Pension Scheme notified in the year 2005 to contend that as the service of the petitioner has been regularized after the introduction of the New Pension Scheme by Notification/Government Order G-33-379/X-2005-301(9)-2003, dated 1.4.2005, therefore, the petitioner is not entitled to Old Pension Scheme. 25. 72. In such factual backdrop, the State cannot take shelter of the New Pension Scheme notified in the year 2005 to contend that as the service of the petitioner has been regularized after the introduction of the New Pension Scheme by Notification/Government Order G-33-379/X-2005-301(9)-2003, dated 1.4.2005, therefore, the petitioner is not entitled to Old Pension Scheme. 25. Apex Court in case of Udai Pratap Thakur and another v. State of Bihar and others, AIR 2023 SC 2971 , has affirmed the view, earlier taken in case of Prem Singh (supra). 26. Considering the aforesaid law laid down by the Apex Court it is clear that the petitioners were appointed under muster roll in 19881 and their name was also mentioned in the seniority list. They were being paid salary at par with regular employee from the year 1994, as such, simply because, the order of regular appointment was issued in 2001 & 2002 and regularization was made in 2005, they cannot be denied Payment of pension under Rules of 1961, as the services rendered as muster roll employees and payment of salary on regular basis, made it clear that they are entitled for inclusion of the services rendered as muster roll employee for the purposes of enabling them eligible for payment of pension. The Office Memorandum dated 22.2.2002 issued on the basis of Board of Director meeting dated 14.1.2000 will not come in way for payment of pension to the petitioners, as by giving benefit of services rendered as muster roll employees and payment of regular salary to the petitioners, there appointment be treated to be prior to 14.1.2000 for the purpose of payment of pension, they are covered under General Provident Fund scheme, U.P. Retirement Benefit Rules, 1961 and New Family Pension Scheme, 1965. 27. In view of the above, in both the writ petitions the respondents are directed to make payment of pension to the petitioners, including arrears of pension in accordance with U.P. Retirement Benefit Rules, 1961, within a period of three months from the date of production of a certified copy of the order. 28. With the aforesaid observations, both the writ petitions are allowed.