# Adarsh Kumar v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 1253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-18
- **Case number:** Writ-A No. 17720 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/adarsh-kumar-v-state-of-u-p-ors-50861
- **Pages:** 12

## Headnote

A. Service Law - Constitution of India -
Article 14 - UP Qualifying Service for
Pension Validation Act, 2021 - Prem
Singh's decision - Overruling the decision
through the legislation - Competence of
legislature - Held, once the highest Court
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
of the land has declared a provision to be
illegal
to
make
pensionary
benefits
available to the employees, the legislature
may not enjoy that authority to reverse
the legal preposition and resultant effect
and that too retrospectively - 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. (Para 11
and 12)

B.
Service
law
-
Regularization
-
Pensionary beneficiary - Entitlement -
Principle of legitimate expectation -
Applicability - Held, St. has to set an
example of a model employer for other
private entrepreneurs - 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. (Para 13
and 15)

C. Service law - UP Qualifying Service for
Pension Validation Act, 2021 - Pensionary
beneficiary - Qualifying service - Not
counting the service rendered as daily
wage employee in the qualifying service -
Validity
challenged
-
Held,
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, adhoc 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. (Para 20)

Writ petition allowed. (E-1)

List of cases cited:

## Text

_Characters 0–39,375 of 40,049. This is a partial read: ask again with offset=39375 for what follows._

1 All. Adarsh Kumar Vs. State of U.P. & Ors.
1253
posts.
The
Commission
thereupon
shortlisted the candidates to be called for
interview on the basis of 4 years'
experience or more. As a result, 20
candidates were called for interview.
Respondent No. 1 did not qualify for
shortlisting and hence he was not called for
interview.

4. The Tribunal has clearly erred
in doing so. Note 21 to the advertisement
expressly provides that if a large number of
applications are received the Commission
may shortlist candidates for interview on
the basis of higher qualifications although
all applicants may possess the requisite
minimum qualifications. In the case of M.P.
Public Service Commission Vs. Navnit
Kumar Potdar this Court has upheld
shortlisting of candidates on some rational
and reasonable basis. In that case, for the
purpose of shortlisting, a longer period of
experience than the minimum prescribed
was used as a criterion by the Public
Service Commission for calling candidates
for an interview. This was upheld by this
Court. In the case of Govt. of A.P. Vs. P.
Dilip Kumar also this Court said that it is
always open to the recruiting agency to
screen candidates due for consideration at
the threshold of the process of selection by
prescribing higher eligibility qualification
so that the field of selection can be
narrowed down with the ultimate objective
of promoting candidates with higher
qualifications
to
enter
the
zone
of
consideration. The procedure, therefore,
adopted in the present case by the
Commission was legitimate. The decision
of the Tribunal is, therefore, set aside and
the appeal is allowed. There will, however,
be no order as to costs."

22. More so, the interpretation so
sought to be suggested by the learned
counsel for the writ petitioner that it is not
permissible for the respondents to have
changed the rules of the game once the
game has commenced is preposterous as
the said principle is not applicable in the
cases of shortlisting. Nonetheless, nothing
has been brought on record to substantiate
that even otherwise the criteria adopted for
shortlisting is arbitrary or illegal or not
backed by any provision. Insofar as the
judgment in the case of K. Manjusree
(supra) and K. S. Govindan Nair (supra)
are not applicable in the facts of the case.

23. Resultantly, this Court does not
find any good ground to interfere with the
communications/orders impugned.

24. The writ petition is, accordingly,
dismissed.
----------
(2024) 1 ILRA 1253
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 17720 of 2023

Adarsh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amitabh Patel, Sri Raj Kumar Yadav

Counsel for the Respondents:
C.S.C.

A. Service Law - Constitution of India -
Article 14 - UP Qualifying Service for
Pension Validation Act, 2021 - Prem
Singh's decision - Overruling the decision
through the legislation - Competence of
legislature - Held, once the highest Court
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
of the land has declared a provision to be
illegal
to
make
pensionary
benefits
available to the employees, the legislature
may not enjoy that authority to reverse
the legal preposition and resultant effect
and that too retrospectively - 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. (Para 11
and 12)

B.
Service
law
-
Regularization
-
Pensionary beneficiary - Entitlement -
Principle of legitimate expectation -
Applicability - Held, St. has to set an
example of a model employer for other
private entrepreneurs - 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. (Para 13
and 15)

C. Service law - UP Qualifying Service for
Pension Validation Act, 2021 - Pensionary
beneficiary - Qualifying service - Not
counting the service rendered as daily
wage employee in the qualifying service -
Validity
challenged
-
Held,
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, adhoc 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. (Para 20)

Writ petition allowed. (E-1)

List of cases cited:
1. Civil Appeal No. 10806 of 2017; Habib Khan
Vs St. of Uttrakhand decided on 23.08.2017

2. Prem Singh Vs St. of U.P.; (2019) 10 SCC 516

3. Writ A No.- 5483 of 2022; Kallu Ali Vs St. of
U.P. & ors. decided on 18.08.2022

4. Special Leave to Appeal (C) No. 1109 of
2022; St. of Gujarat & ors. Vs Talsibhai
Dhanjibhai Patel decided on 18.02.2022

5. Special Appeal No. 152 of 2021; St. of UP
through Secretary Lok Nirman Vibhag & ors. Vs
Bhanu Pratap decided on 14.07.2021

6. Writ A No. 746 of 2023; Awadhesh Kumar
Srivastava Vs St. of U.P. & ors. decided on
03.07.2023

7. Prem Singh Vs St. of U.P. & ors.; (2014) 1
UPLBEC 760

8. A. Manjula Bhashini & ors. Vs Managing
Director, Andhra Pradesh Women's Cooperative
Finance Corporation Ltd. & anr.; (2009) 8 SCC
431

9. St. of U.P. & ors. Vs Putti Lal; (1998) 1
UPLBEC 313

10. St. of U.P. & ors. Vs Putti Lal; (2006) 9 SCC
337

11.
U.O.I.
Vs
Hindustan
Development
Corporation; (1993) 3 SCC 499

(Delivered by Hon'ble Ajit Kumar, J.)

1. 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
01.07.1976 in Tehsil-Sorawn, DistrictAllahabad. The petitioner approached this
Court by filing Writ Petition No. 51899 of
2004 seeking regularization, in which an
interim order was passed on 02.02.2009
1 All. Adarsh Kumar Vs. State of U.P. & Ors.
1255
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) 10 SCC 516 and
Kallu Ali v. State of U.P. and others
passed in Writ - A No.- 5483 of 2022
decided on 18th August, 2022 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
UP Through Secretary Lok Nirman
Vibhag & ors vs. Bhanu Pratap in Special
Appeal No.152 of 2021 vide order dated
14.07.2021 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. & 4 Ors., Writ - A No. 746 of 2023
delivered on 03.07.2023.

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 Vs. State of U.P. and others,
reported in (2014) 1 UPLBEC 760 has
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
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 & 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. 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 workcharged 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 inbetween
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 workcharged 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.
1 All. Adarsh Kumar Vs. State of U.P. & Ors.
1257

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 & Ors. 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. 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 UP Through
Secretary Lok Nirman Vibhag & ors vs.
Bhanu Pratap in Special Appeal No.152
of
2021
decided
vide
order
dated
14.07.2021 and a coordinate bench in
Awadhesh Kumar Srivastava v. State of
U.P. & 4 Ors., Writ - A No. 746 of 2023
delivered on 03.07.2023. 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
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
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 10.05.1989 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. & 4 Ors., 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 2021does
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.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 & Ors v. Managing
Director,
Andhra
Pradesh
Women's
Cooperative Finance Corporation Ltd. &
Anr, (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
1 All. Adarsh Kumar Vs. State of U.P. & Ors.
1259
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. I may quote here the
observations made by the Division Bench
of this Court in the case of State of U.P.
& Ors 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. 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
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
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
respondentsworkmen 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. 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
1 All. Adarsh Kumar Vs. State of U.P. & Ors.
1261
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.
& 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. 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 dailywagers 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:
1262 INDIAN LAW REPORTS ALLAHABAD SERIES

"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. 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 &
Ors
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.
1 All. Adarsh Kumar Vs. State of U.P. & Ors.
1263

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 & Anr. 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. 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 /
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
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, adhoc 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. 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 01.07.1976
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.
----------
(2024) 1 ILRA 1264
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 19191 of 2023

Hemant Kumar Rai ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri Samarth Singh, Sri Hritudhwaj Pratap
Sahi, Sri V.K. Singh (Sr. Adv.)

Counsel for the Respondent
C.S.C.

A.