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2024 DIGILAW 248 (UTT)

Kumaon Mandal Vikas Nigam Ltd. v. Chandra Chauhan

2024-04-09

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : Rakesh Thapliyal, J. 1. Appellants are aggrieved by the judgment dated 14.07.2020 passed by learned Single Judge in Writ Petition (M/S) Nos. 1891 of 2018 (Smt. Chandra Chauhan and another Vs. State of Uttarakhand and others) and Writ Petition (M/S) Nos. 1874 of 2018 (Devendra Singh Bisht and another Vs. State of Uttarakhand and others) whereby both the writ petitions were disposed of by directing the respondents to determine the reliefs sought for, for grant of pension and gratuity, as admissible to the petitioners, after including the period of services rendered by them from the date of their initial appointment i.e. 1989 and needful to be done by the concerned respondent within a period of six weeks from the date of production of certified copy of this order. 2. Brief facts of the present case are that petitioners were engaged as Class III and IV employees on daily wage basis with the respondent Department in the year 1989. They have filed Writ Petition No. 193 (SS) of 2002 before this Court and this Court by order dated 26.06.2004 directed the respondents Department to consider the case of the petitioners for regularization in terms of the Government Order dated 27.04.2001. Thereafter, the respondent Department granted the petitioners minimum of the pay scale. In the year 2011, the Government of Uttarakhand framed Regularization Rules, 2011 for regularization of services of the employees, who were working in different departments and engaged prior to 2000. In pursuance to the aforesaid Regularization Rules, 2011, petitioners services were regularized in the year 2013. There is one Government Order dated 01.07.1989 issued by the State of U.P. for counting the service rendered by the employee in temporary capacity for the purposes of granting pensionary benefits. Though petitioners have completed more than 22 years of service before their regularization, but respondent department did not count their past service for granting pensionary benefits. Feeling aggrieved, petitioners have approached this Court by way of filing present writ petitions and this Court by judgment dated 14.07.2020 was pleased to dispose of the writ petitions by directing the respondent department to determine the reliefs sought for, for grant of pension and gratuity as admissible to the petitioners, after including the period of service rendered by them from the date of their initial appointment. Thereafter, respondent Department filed a review application, which was also dismissed by the learned Single Judge by order dated 31.08.2021. 3. Feeling aggrieved with orders dated 14.07.2020 and 31.08.2021 passed by the learned Single Judge in writ petitions and review application, the present special appeals have been preferred. 4. The respondent department filed the present Special Appeals mainly on the ground that as per Section 2 (g) of the Uttarakhand Retirement Benefit Act, 2018, earlier service rendered by an employee in the Department cannot be counted for the purposes of grant of pension and Government Order dated 01.07.1989 issued by the State of Uttar Pradesh is not applicable to the petitioners – respondents, herein. 5. Learned Single Judge while dealing with the controversy has placed reliance on the judgment rendered by the Hon’ble Supreme Court in Civil Appeal No. 10806 of 2017 (Habib Khan Vs. State of Uttarakhand and others) and judgment rendered by the larger Bench of Hon’ble Supreme Court in Civil Appeal No. 6798 of 2019 (Prem Singh Vs. State of Uttar Pradesh) decided on 02.09.2019 wherein the Hon’ble Supreme Court has held that employees 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 and in view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, the Hon’ble Supreme Court hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. 6. The argument advanced by learned counsel for the appellant that as per Section 2 (g) of the Uttarakhand Retirement Benefit Act, 2018, earlier service rendered by an employee in the Department cannot be counted for the purposes of grant of pension, has already been dealt by the learned Single Judge in his judgment and we do not find any illegality in the impugned order. 7. So far as, second argument is concerned that Government Order dated 01.07.1989 is not applicable to the respondents / petitioners, we do not find any force in this argument because there is no whisper about this Government Order in the impugned judgment and the learned Single Judge has not dealt with it anywhere. 7. So far as, second argument is concerned that Government Order dated 01.07.1989 is not applicable to the respondents / petitioners, we do not find any force in this argument because there is no whisper about this Government Order in the impugned judgment and the learned Single Judge has not dealt with it anywhere. However, it is the admitted case of the appellants that services of the respondents – petitioners were regularized by the Department pursuant to the Regularization Rules, 2011 in the year 2013. 8. Learned counsel for the petitioners – respondents, herein, submits that Hon'ble Apex Court in the case of Netram Sahu Vs. State of Chhattisgarh (2018) 5 SCC 430 has held that continuous service rendered as daily wager shall be counted for granting retirel benefits. The Hon’ble Supreme Court in the case of Netram Sahu has considered the factors for computation of past service before regularization for the benefit of pension and gratuity. Para 14, 16 and 17 of the said judgment reads as under:- "14. We do not agree with this submission of learned counsel for the respondent-State for more than one reason. 14.1. First, the appellant has actually rendered the service for a period of 25 years; 14.2. Second, the State actually regularized his services by passing the order dated 06.05.2008; 14.3. Third, having regularized the services, the appellant became entitled to claim its benefit for counting the period of 22 years regardless of the post and the capacity on which he worked for 22 years; 14.4. Fourth, no provision under the Act was brought to our notice which disentitled the appellant from claiming the gratuity and nor any provision was brought to our notice which prohibits the appellant from taking benefit of his long and continuous period of 22 years of service, which he rendered prior to his regularization for calculating his continuous service of five years. 16. In our considered opinion, once the State regularized the services of the appellant while he was in State services, the appellant became entitled to count his total period of service for claiming the gratuity amount subject to his proving continuous service of 5 years as specified under Section 2A of the Act which, in this case, the appellant has duly proved. 17. 17. In the circumstances appearing in the case, it would be the travesty of justice, if the appellant is denied his legitimate claim of gratuity despite rendering "continuous service" for a period of 25 years which even, according to the State, were regularized. The question as to from which date such services were regularized was of no significance for calculating the total length of service for claiming gratuity amount once the services were regularized by the State." 9. Admittedly, petitioners – respondents were engaged, as daily wager by the respondent department in the year 1989 and thereafter, they were regularised in the year 2013, therefore, in our opinion they are entitled for counting of their past service for all the retirel benefits, in view of the judgment rendered by the Hon’ble Supreme Court in Civil Appeal No. 10806 of 2017 (Habib Khan Vs. State of Uttarakhand and others) and judgment rendered by the larger Bench of Hon’ble Supreme Court in Civil Appeal No. 6798 of 2019 (Prem Singh Vs. State of Uttar Pradesh) decided on 02.09.2019 wherein the Hon’ble Supreme Court has held that employees 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. Apart from this, the judgment passed by the Hon’ble Supreme Court in the case of Netram Sahu (supra) also supports the case of the respondents. 10. Since the learned Single Judge has disposed of the writ petitions in the light of aforesaid judgments, we do not find any illegality or perversity in the impugned judgment. Accordingly, both the special appeals fail and are dismissed.