Medhavi Gupta and 3 Others v. State of U.P. and 3 Others

Court No. - 34 Case :- WRIT - A No. - 17731 of 2023 Petitioner :- Medhavi Gupta And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Satya Prakash Pandey Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.

¶1Heard learned counsel for the parties.

¶2Petitioners who were working as Registration Clerk on ad hoc/temporary basis came to be regularised in service by respondents on 25.02.2011 and later on came to be confirmed on

01.03.2013. However their previous service on ad hoc basis have not been taken into account towards the qualifying service of pension and that is how they have been ousted from the zone of consideration of Old Pension Scheme. Petitioners claim to have retired on 31.07.2022, 30.06.2020, 30.06.2022 and 28.02.2023 respectively.

¶3Learned counsel for the petitioner submits that in view of the judgment of the Supreme Court in the case of Prem Singh vs. State of U.P. and others: (2019) 10 SCC 516 and State of Gujrat and others Vs. Talsibhai Dhanjibhai Patel (Petition for special leave to Appeal (C) No.1109 of 2022 decided on

18.02.2022) followed by this Court in a large number of decisions in various cases including the last one in Awadhesh Kumar Srivastava vs. State of U.P. and 4 others vide Writ A No.746 of 2023 delivered on 03.07.2023, petitioners; services are liable to be considered for old pension scheme by taking into account the previous service rendered by them on ad hoc/temporary basis prior to 2011. Learned counsel has also relied upon a judgment of the Supreme Court in the case of Udai Pratap Thakur and others vs. State of Bihar in SLP (C) No.10653 of 2018 decided on

28.04.2023 explaining away the whims of the case vide paragraph 6 has held thus: "6. It is required to be noted that the respective appellants were working as work charged under the work charged establishment in the State. Their services have been regularized under the Rules, 2013 and the follow up notification of the Finance Department vide Circular No. 10710 dated

17.10.2013. Rule 5(v) of the Circular reads as under:- "5(v} Old pension rules shall be applied on these employees. The benefit pension & gratuity shall be counted by giving one year advantage against the five years services as work-charged employee. Even then if the minimum requirement of 10 years of service for pension is not met under the old rules, then minimum service shall be added to give advantage thereof." Civil Appeal No. 3155 of 2023 6.1 Rule 5(v) of the Rules, 2013 as such can be said to be beneficial to such work charged employees, whose services have been regularized subsequently. As per Rule 5(v), even if the minimum requirement of 10 years of service (qualifying service) for pension is not met, in that case also, the service rendered as a work charged to be added for qualifying service for pension. Therefore, the efforts have been made by the State Government to see that after rendering services for number of years as work charged, and thereafter, their services have been regularized, they may not be denied the pension on the ground that they have not completed the qualifying service for pension. It also further provides that the benefits like pension & gratuity shall be counted by giving one year advantage against the five years services as work-charged employee. Therefore, Rule 5(v) as observed hereinabove, is beneficial also in favour of such work charged employees, whose services have been regularized subsequently, and they may not be deprived of the pension on the ground that they have not completed the qualifying service for pension. The denying of pension after rendering service as work charged for number of years on the ground that they have not completed the qualifying service can be said to be Civil Appeal No. 3155 of 2023 unfair and illegal and can be said to be exploitation. Therefore, to make such work charged employees eligible for pension, Rule 5(v) provides that if any work charged employee, whose services have been regularized under the Rules, 2013, is short of qualifying service, to the extent of such shortage of qualifying service, the services rendered as work charged to be counted for the purpose of qualifying service for pension. Under the circumstances, the Larger Bench of the High Court has rightly observed and held that for the purpose of pension, only such period from the work charged tenure would be added for making the service of an employee, who has been regularized to qualify him for pension.

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. 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."

¶4Learned Standing Counsel submits that since it is all a question of fact to be determined regarding previous service etc. and so it would be more appropriate that the competent authority takes decision in the first instance.

¶5In view of the above, petitioners are permitted to raise their grievance by means of representation in the light of relevant provisions of law as well as judgments discussed above within a period of three weeks from today and in the event any such representation is filed, the same shall be disposed of within a further period of thirty days taking into consideration the relevant laws.

¶6With the aforesaid observations and directions, this petition stands disposed of. Order Date :- 18.10.2023 IrfanUddin High Court of Judicature at Allahabad