# Awadhesh Kumar Srivastava v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 1356
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-03
- **Case number:** Writ-A No. 746 of 2023
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-kumar-srivastava-v-state-of-u-p-ors-50538
- **Pages:** 21

## Headnote

Civil Law - Constitution of India, 1950 -
Article 14 - Pension - Old Pension Scheme
- Qualifying Service - Daily Wager and
Work-Charged Service - U.P. Act No. 1 of
2021 -- Petitioner challenged the order dated
31.05.2022 converting his pension to New
Pension Scheme and sought inclusion of
services rendered as daily wager and workcharged employee with regular service for Old
Pension Scheme benefits - Petitioner engaged
as daily wager (Gaze Reader) from 01.05.1989,
appointed
as
work-charged
employee
on
25.07.1997, and regularized on 29.09.2011 -
New
Pension
Scheme
introduced
w.e.f.
01.04.2005 for new entrants - Respondents
argued petitioner's regularization in 2011 made
him subject to New Pension Scheme and U.P.
Act No. 1 of 2021 excluded daily wager/workcharged service from qualifying service - Held:
U.P. Act No. 1 of 2021 does not satisfy tests to
override Prem Singh Vs St. of U.P., (2019) 10
SCC 516, as it fails to address arbitrariness in
excluding daily wager/work-charged service and
violates Article 14 by treating equals unequally -
Service from 01.05.1989 counts as qualifying
service - Petitioner not a new entrant post01.04.2005, entitled to Old Pension Scheme -
Order
dated
31.05.2022
set
aside
-
Respondents directed to place petitioner in Old
Pension Scheme and calculate pension including
daily wager/work-charged service - Petitioner to
deposit
contributory
fund
received.
Writ
petition allowed; respondents directed to
grant Old Pension Scheme benefits.
Writ petition allowed.

Case Law Discussed:

## Text

_Characters 0–39,984 of 69,280. This is a partial read: ask again with offset=39984 for what follows._

1356 INDIAN LAW REPORTS ALLAHABAD SERIES
the child and the father of each other's love
and affection to which they are entitled and
with the passage of time, the child may
develop more bonding with the father and
if the custody is denied, then later on, the
child may be reluctant to go to his/her
father, in which case, the father will be
completely deprived of the child's love and
affection. Relevant para 36 of Tejaswini
Gaud's case is extracted here-below :

"36.The appellants submit that
handing over of the child to the first
respondent would adversely affect her and
that the custody can be handed over after a
few years. The child is only 1 years old and
the child was with the father for about four
months after her birth. If no custody is
granted to the first respondent, the court
would be depriving both the child and the
father of each other?s love and affection to
which they are entitled. As the child is in
tender age i.e. 1 years, her choice
cannot be ascertained at this stage. With
the passage of time, she might develop
more bonding with the appellants and
after some time, she may be reluctant to
go to her father in which case, the first
respondent might be completely deprived
of her child?s love and affection.
Keeping in view the welfare of the child
and the right of the father to have her
custody and after consideration of all
the facts and circumstances of the case,
we find that the High Court was right in
holding that the welfare of the child will
be best served by handing over the
custody of
the child
to the
first
respondent."

14. In the present case, presently the
detenu is 2 1/2 years old and his choice also
cannot be ascertained at this stage. It is not
disputed that baby Kanika Gupta is residing
with the deponent who is nicely taking her
care. In case the custody of the detenu is
denied to the deponent, the court will be
depriving both the father and the elder
sister the company of the detenu and vice
versa. Therefore, in peculiar facts of this
case, the reasoning given in para 36 of
Tejaswini Gaud's case (supra) applies in
this case also.

15. Hence, in view of the law settled
by the Supreme Court and keeping in view
the overall welfare and upbringing of the
child, the petition is allowed. Respondents
3 to 5 are directed to hand over custody of
the child to the deponent forthwith.

At this stage, learned counsel for
respondents 3, 4 and 5 submits that they
may be permitted to visit the detenu, to
which, learned counsel for the petitioner
has no objection.

16. Keeping in view the interest of the
child as also the undertaking given on
behalf of the petitioner, it is provided that
respondents 3 to 5 will have visiting rights
to the detenu.

17. The respondents 1 and 2 shall
ensure compliance of this order.
----------
(2023) 8 ILRA 1356
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 746 of 2023

Awadhesh Kumar Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
8 All. Awadhesh Kumar Srivastava Vs. State of U.P. & Ors.
1357
Sri Pankaj Kumar Srivastava, Sri Astitva
Srivastava

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India, 1950 -
Article 14 - Pension - Old Pension Scheme
- Qualifying Service - Daily Wager and
Work-Charged Service - U.P. Act No. 1 of
2021 -- Petitioner challenged the order dated
31.05.2022 converting his pension to New
Pension Scheme and sought inclusion of
services rendered as daily wager and workcharged employee with regular service for Old
Pension Scheme benefits - Petitioner engaged
as daily wager (Gaze Reader) from 01.05.1989,
appointed
as
work-charged
employee
on
25.07.1997, and regularized on 29.09.2011 -
New
Pension
Scheme
introduced
w.e.f.
01.04.2005 for new entrants - Respondents
argued petitioner's regularization in 2011 made
him subject to New Pension Scheme and U.P.
Act No. 1 of 2021 excluded daily wager/workcharged service from qualifying service - Held:
U.P. Act No. 1 of 2021 does not satisfy tests to
override Prem Singh Vs St. of U.P., (2019) 10
SCC 516, as it fails to address arbitrariness in
excluding daily wager/work-charged service and
violates Article 14 by treating equals unequally -
Service from 01.05.1989 counts as qualifying
service - Petitioner not a new entrant post01.04.2005, entitled to Old Pension Scheme -
Order
dated
31.05.2022
set
aside
-
Respondents directed to place petitioner in Old
Pension Scheme and calculate pension including
daily wager/work-charged service - Petitioner to
deposit
contributory
fund
received.
Writ
petition allowed; respondents directed to
grant Old Pension Scheme benefits.
Writ petition allowed.

Case Law Discussed:

1. Prem Singh Vs St. of U.P., (2019) 10 SCC 516

2. Dakshin Haryana Bijli Vitran Nigam Vs Bachan
Singh, (2009) 14 SCC 793

3. Kesar Chand Vs St. of Pun., AIR 1988 P & H
265
4. A. Manjula Bhashini Vs Managing Director,
Andhra Pradesh Women's Cooperative Finance
Corporation Ltd., (2009) 8 SCC 431

5. St. of Gujarat Vs Raman Lal Keshav Lal Soni,
(1983) 2 SCC 33

6.
Chairman,
Railway
Board
Vs
C.R.
Rangadhamaiah, (1997) 6 SCC 623

7. St. of Karnataka Vs Uma Devi, (2006) 4 SCC
1

8. Board of Revenue Vs Prasidh Narain
Upadhyay, 2006 (62) ALR 839

9. Rana Pratap Singh Vs St. of U.P., (1996) All
LJ 301

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
petitioner and Sri Vikram Bahadur Yadav,
learned
Standing
Counsel
for
the
respondents.

2. The petitioner by means of the
present writ petition has assailed the order
dated 31.05.2022 passed by the respondent
no.5-Executive Engineer, Investigation &
Planning
(Water
Resources),
Division
Mirzapur
(Fatehi
Irrigation
Colony),
Mirzapur to the extent the benefit of
pension
to
the
petitioner
has
been
converted into new pension and further
prayed for a writ of mandamus directing
the respondents to include the service
rendered by him as daily-wager and in
work-charged establishment with regular
service and grant benefit of Old Pension
Scheme to the petitioner.

3. The brief facts of the case are that
the petitioner was initially engaged as a
daily wager on the post of Gaze Reader on
01.05.1989. Due to the promotion of
employees, some posts fell vacant. The
Superintending Engineer issued a letter
1358 INDIAN LAW REPORTS ALLAHABAD SERIES
dated
24.07.1997,
addressed
to
the
Executive Engineer, forwarding the names
of the daily wage employees who have
completed 240 days in service and were
found eligible by the Selection Committee
for being appointed on said vacant posts.
The name of the petitioner appeared at Sl.
No.1 in the list enclosed with the said
letter.
In
compliance
whereof,
the
Executive Engineer issued an appointment
letter dated 25.07.1997 to the petitioner
appointing him as a work-charge employee
on the post of Gaze Reader. Later on, the
service of the petitioner was regularized on
the post of Gaze Reader by the order dated
29.09.2011. The petitioner received a letter
dated 31.05.2022 from the office of
respondent no.5 informing him that he is
retiring on 30.06.2022 and papers relating
to the benefit of the New Pension Scheme
in respect of the petitioner were forwarded
to the concerned department.

4. The petitioner being aggrieved by
the said letter, has preferred the present
writ petition praying that the services
rendered by him as a daily-wager and
work-charged employee be counted in his
regular service for pension.

5. A counter affidavit has been filed
by
the
respondents
stating
that
the
petitioner was engaged as a daily wager
due to exigency. The petitioner was
engaged as Gaze Reader by the order dated
25.07.1997
in
the
work
charge
establishment.
The
services
of
the
petitioner was regularised by the order
dated 15.07.2011.

6. The respondents further pleaded that
the State of U.P. introduced the New
Contributory
Pension
Scheme
w.e.f.
01.04.2005 by the Government Order No.G33-379/X-2005-301(9)
2003
dated
28.03.2005. The said Scheme as per the
Government Order dated 28.03.2005 has
been mandatorily made applicable to all new
recruits
to
the
service
of
the
State
Government and of all State controlled
autonomous institutions and State aided
private educational institutions.

7. It is further pleaded that by means of
another Notification dated 07.04.2005, the
Uttar
Pradesh
Retirement
Benefit
(Amendment) Rules, 2005 was notified,
whereby sub-clause (3) was added to Rule (2)
of the Uttar Pradesh Retirement Benefit
Rules, 1961 (hereinafter referred to as 'Rules,
1961'), which provides that nothing in the
said Rules would apply to the persons
entering service on or after 01.04.2005. On
07.04.2005, State Government issued another
Notification notifying the General Provident
Fund (U.P.) (Amendment) Rules, 2005. The
State Government thereafter on 14.08.2008
issued an office order notifying the New
Pension Scheme which applies to the persons
joining service on or after 01.04.2005.

8. Further case of the respondents is that
since the service of the petitioner was
regularized in the year 2011, therefore, he
entered into the service after 01.04.2005, and
as such, the provisions of Rules, 1961 do not
apply to the petitioner, hence, he is not
covered by Old Pension Scheme. It is further
submitted that the petitioner was allotted
PRAN
No.110052567014
under
New
Pension Scheme. The contribution of the
petitioner as well as the State Government
were deposited in the said PRAN number,
and after the retirement of the petitioner on
30.06.2022, all admissible benefits have
already been paid.

9. Further case of the respondents is
that after the judgment of the Apex Court
in Prem Singh Vs. State of U.P. and
8 All. Awadhesh Kumar Srivastava Vs. State of U.P. & Ors.
1359
Others (2019) 10 SCC 516, the State of
U.P. has promulgated U.P. Act No.1 of
2021 defining 'qualifying service' which
means the services rendered on a temporary
or permanent post in accordance with the
provisions of Service Rules prescribed by
the Government for the post. Section 4 of
the U.P. Act No.1 of 2021 provides that the
provisions of this Act shall have the effect,
notwithstanding
anything
inconsistent
therewith contained in any other law for the
time in force in any instrument other than
this Act. Therefore, the 'qualifying service'
has to be determined in accordance with the
provisions of Section 2 of Act No.1 of 2021
and not in accordance with previous
judgements.

10. Learned counsel for the petitioner
has contended that the service rendered by
the petitioner as a daily wager and under
work-charged establishment cannot be
excluded
from
computing
qualifying
service for grant of the Old Pension
Scheme. It is contended that the petitioner
is entitled to the benefit of the judgement of
the Apex Court in the case of Prem Singh
(supra) and the right of the petitioner for
adding the services rendered by him as a
daily wager and in the work-charged
establishment cannot be negated on the
strength of the amendment. It is submitted
that Section 2 of the U.P. Act No.1 of 2021
defining 'qualifying service' arbitrarily
excludes from the term 'qualifying service'
the service rendered as a daily wager or
under work-charged establishment by an
employee before regularization.

11. Learned counsel for the petitioner
further contends that it is evident from
Notification
No.G-3-379/X-2005-301(9)-
2003, dated 28.05.2005 that the New
Pension Scheme as introduced by the State
Government shall apply to the new entrants
to the service of the State Government and
of
all
State
controlled
autonomous
institutions
and
State
aided
private
educational institutions. It is submitted that
plain reading of the sub-rule (3) of Rule 2
introduced
by
the
Uttar
Pradesh
Retirement
Benefits
(Amendment)
Rules,
2005
in
the
Uttar
Pradesh
Retirement Benefits Rules, 1961 implies
that the New Pension Scheme shall apply to
the employees entering in services on or
after April 1, 2005, in connection with the
affairs of the state borne on pensionable
establishment
whether
temporary
or
permanent.

12. 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 the post of
Gaze Reader and continued thereafter as
Gaze reader till his retirement. Thus, it is
contended that the New Pension Scheme as
introduced by the State Government by
Notification dated 28.03.2005 does not
apply to the petitioner. Accordingly, it is
submitted that the petitioner is entitled to
the benefit of the Old Pension Scheme

13. Per contra, learned Standing
Counsel for the respondents 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
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
service' means the service rendered by an
officer 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 service rendered by the petitioner as
daily-wager
and
in
work
charged
establishment cannot be added in his
regular service for determining 'qualifying
service' for pension.

14. He further contends that the State
of U.P. has issued a Notification dated
28.03.2005 introducing a New Contribution
Pension System in place of the existing
Pension Scheme for new entrants to the
service of the State Government and of all
State controlled autonomous institutions
and
State
aided
private
educational
institutions, and accordingly, it amended
Rules 1961 by U.P. Retirement Benefit
Rules 2005 by inserting sub-rule (3) in
Rule 2 of Rule, 1961 which states that Rule
1961 shall not apply to the employees
entering into service on or after 1st April,
2005 in connection with the affairs of the
state borne on pensionable establishment,
whether temporary or permanent.

15. On the strength of the said
amendment in Rule, 1961, he submits that
as admittedly the service of the petitioner
has been regularized by order dated
29.09.2011, therefore, his entry into the
service of the State Government is after
April 1, 2005, and therefore, he shall be
governed by New Pension Scheme as
introduced by the State Government by
Notification
dated
28.03.2005
and
therefore, the petitioner has rightly been
placed under New Pension Scheme.

16. Learned Standing Counsel placed
reliance upon the three judgements of this
Court in Special Appeal No.398 of 2021
(Shri Chandra Singh Vs. State of U.P. and
others), decided on 22.04.2022, Special
Appeal Defective No.17 of 2023 (State of
U.P.
through
Principal
Secretary,
Department of Irrigation & Others Vs.
Sadananad), decided on 16.01.2023 &
Special Appeal No.80 of 2019 (U.P. Avas
Evam Vikas Parishad Lucknow and others
Vs. Syed Jalal Haider Rizvi and others),
decided on 24.01.2023.

17. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
record.

18. The undisputed facts as emerges
from the record are that the petitioner was
engaged as a daily wager on the post of
Gaze Reader on 01.05.1989. Subsequently,
the post in the department fell vacant on
account of the promotion of the employees,
the Superintending Engineer by a letter
dated 24.07.1997 forwarded the names of
the daily wage employees screened by the
Selection Committee, who have completed
more than 240 days as daily-wager, for
being
appointed
as
work-charged
employee. In the said list, the name of the
petitioner appeared at Sl. No.1. Pursuant to
the letter dated 24.07.1997, Executive
Engineer issued an appointment letter to
the petitioner on 25.07.1997 as Gaze
Reader in the pay scale of Rs.775-12-955द0 रो0-14-1025.

19. Subsequently, the service of the
petitioner was regularized by order of the
Executive Engineer dated 29.09.2011 on
8 All. Awadhesh Kumar Srivastava Vs. State of U.P. & Ors.
1361
the post of Gaze Reder. The petitioner
asserts that he has been engaged as Gaze
Reader on 01.05.1989 and continued to
work in the office of respondent No. 5 till
his retirement as Gaze Reader, therefore,
his past service as a daily-wager and under
work-charged establishment are liable to be
counted for pension.

20. Now, in light of the aforesaid
facts, this Court proceeds to analyse the
arguments advanced by the respective
counsels.

21. The first question that arises for
consideration before this Court is whether
the State can negate or override the
judgement of the Apex Court in the case of
Prem Singh (supra) and deny the benefit
of service spent by an employee as a daily
wager
and
under
work-charged
establishment in not adding the said period
with regular service for determining the
qualifying
service
for
pension
by
promulgating U.P. Act No.1 of 2021.

22. To appreciate the said question, it
would be apposite to consider the background
in which the Apex Court has given the
judgment in the case of Prem Singh (supra).
The issue before the Apex Court in the said
case was whether Rule 3 (8) of the
Rules,1961 and Regulation 370 of the Civil
Services Regulation of Uttar Pradesh be
declared ultra virus in view of the fact that the
Apex Court in the case of Dakshin Haryana
Bijli Vitran Nigam Vs. Bachan Singh,
(2009) 14 SCC 793 has upheld the Punjab
and Haryana High Court's judgement in the
case of Kesar Chand Vs. State of Punjab,
AIR 1988 P & H 265 declaring pari materia
provision enacted in the State of Punjab
which excluded the computation of the period
of work charge services from the qualifying
service for pension ultra-vires.

23. The Apex Court in paragraph
no.16 in the case of Prem Singh (supra)
noted paragraph 19 of Kesar Chand's
judgement of the Punjab and Haryana High
Court wherein the Punjab and Haryana
High Court detailed the reasons in
concluding
the
action
of
the
State
Government arbitrary in excluding the
service rendered by an employee on the
work-charged
establishment
from
the
regular service for pension. The Punjab and
Haryana High Court held that "Equal
protection
of
laws
must
mean
the
protection of equal laws for all persons
similarly situated. Article 14 strikes at
arbitrariness because the provision which
is arbitrary involves negation of equality.
Even the temporary or officiating service
under the State Government has to be
reckoned for determining the qualifying
service. It looks to be illogical that the
period of service spent by an employee in
a work-charged establishment before his
regularization has not been taken into
consideration
for
determining
his
qualifying
service.
The
classification
which is sought to be made among
Government servants who are eligible for
pension and those who started as workcharged employees and their services
regularize subsequently, and the others is
not based on any intelligible criteria and,
therefore, is not sustainable at law. After
the services of a work-charged employee
have been regularized, he is a public
servant like any other servant. To deprive
him of the pension is not only unjust and
inequitable but is hit by the vice of
arbitrariness, and for these reasons, the
provisions of sub-rule (ii) of Rule 3.17 of
the Rules have to be struck down being
violative of Article 14 of the Constitution."

24. The law enunciated by the Punjab
and Haryana High Court in the case of
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
Keasr Chand (supra) was approved by the
Apex Court in the case of Bachan Singh
(supra) and also in the case of Punjab
SEB Vs. Narata Singh case (SCC pg.530
paragraph no.18 of the judgement of Prem
Singh).

25. In the context of the present case,
it would be apt to reproduce paragraph
no.20 of the judgement of the Apex Court
in the case of Prem Singh (supra), which
reads as under:-

"20. This Court in Narata Singh's
case ( SCC pp. 324-25 & 328, paras 25-27
& 40) relied upon Kesar Chand (supra)
and has observed:-

"25. In Kesar Chand v. State of
Punjab, the Full Bench held that Rule
3.17(ii) of the Punjab Civil Services Rules
was violative of Article 14 of the Constitution
of India. The Full Bench decision was
challenged before this Court by filing a
special leave petition which was dismissed.
Thus, the ratio laid down by the Full Bench
judgment that any rule which excludes the
counting of work-charged service of an
employee
whose
services
have
been
regularised subsequently, must be held to be
bad in law was not disturbed by this Court.
The distinction made between an employee
who was in temporary or officiating service
and who was in work-charged service as
mentioned in Rule 3.17(ii) of the Punjab Civil
Services Rules disappeared when the said
Rule was struck down by the Full Bench. The
effect was that an employee holding
substantively a permanent post on the date of
his retirement was entitled to count in full as
qualifying service the periods of service in
work-charged estab- lishments.

26. In view of this settled
position, there is no manner of doubt that
the work-charged service rendered by
Respondent 1 under the Government of
Punjab was qualified for grant of pension
under the rules of the Government of
Punjab and therefore, the Board was not
correct in rejecting the claim of the
respondent for inclusion of period of workcharged service rendered by him with the
State Government for grant of pension, on
the ground that service rendered by him in
the work-charged capacity outside PSEB
and in the Departments of the State
Government
was
a
non-pensionable
service.

27.
The
apprehension
that
acceptance of the case of Respondent 1
would result into conferring a status on
them as that of employees of the State of
Punjab has no factual basis. It is true that
the State Government has power to frame
rules governing services of its employees
under Article 309 of the Constitution
whereas the Board has power to prescribe
conditions
of
service
by
framing
regulations under Section 79 (c) of the
Electricity (Supply) Act, 1948. However,
governance of a particular institution and
issuance of instructions to fill up the gap in
the fields where statutory provisions do not
operate, is recognised as a valid mode of
administration in modern times.

40. So far as this argument is
concerned, it is true that the Division
Bench of the High Court has expressed the
above opinion in the impugned judgment.
However, the reference to Rule 3.17(ii) of
the Punjab Civil Services Rules as well as
the Full Bench decision of the Punjab and
Haryana High Court in Kesar Chand v.
State of Punjab (supra) and the speaking
order dated 16-11-2005 passed by the
Board rejecting the claim of Respondent 1
makes it abundantly clear that the High
8 All. Awadhesh Kumar Srivastava Vs. State of U.P. & Ors.
1363
Court has directed the appellants to count
the
period
of
service
rendered
by
Respondent 1 in work-charged capacity
with the State Government for determining
qualifying service for the purpose of
pension. Further, Respondent 1 has been
directed
to
deposit
the
amount
of
Employee's Contributory Fund which he
had received from the appellants along
with interest as per the directions of the
Board before the pension is released to
him."

26. The Apex Court in paragraph
no.29 of the judgement in the case of Prem
Singh (supra) noted the submission of the
counsel for the State of Uttar Pradesh
whereby the distinction between the workcharged employees and regular employees
was sought to be made on the ground that
the due procedure is not followed in
engaging work-charged employees whereas
regular employees are appointed as per
rules and further work-charge employees
do not have that much work pressure and
their work is materially and qualitatively
different from regular employees. The
contention advanced by the State of Uttar
Pradesh was repelled by the Apex Court in
paragraphs no.30 to 34 in Prem Singh
(supra) case.

27. Paragraph nos. 29 to 34 of the
judgement is reproduced herein-below:-

"29. The submission has been
urged on behalf of the State of Uttar
Pradesh to differentiate the case between
work-charged
employees
and
regular
employees
on
the
ground
that
due
procedure is not followed for appointment
of work-charged employees, they do not
have that much work pressure, they are
unequal and cannot be treated equally,
work-charged employees form a totally
different class, their work is materially and
qualitatively different, there cannot be any
clubbing of the services of the workcharged employees with the regular service
and vice versa, if a work-charged employee
is treated as in the regular service it will
dilute the basic concept of giving incentive
and reward to a permanent and responsible
regular employee.

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
workcharged employment has been misused by
offering the employment on exploitative
terms for the work which is regular and
perennial in nature.........

.............

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 workcharged 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 workcharged
establishment
has
not
been
counted towards the qualifying service.
Thus, they have not only been deprived of
their due emoluments during the period
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
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 workcharged, 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 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 the 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 workcharged 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."

28. The Apex Court read down the
provisions of Rule 3(8) of Rule 1961 in the
case
of
Prem
Singh
(supra).
Consequently,
it
struck
down
the
provisions contained in Regulation 370 of
the
Civil
Service
Regulations
and
Paragraph 669 of the Financial Hand Book
on two counts; the action of the State in
8 All. Awadhesh Kumar Srivastava Vs. State of U.P. & Ors.
1365
excluding the service spent by an employee
in the work-charged establishment before
his regularization for determining his
qualifying service is not based on any
intelligible criteria because he becomes a
public
servant
after
his
service
is
regularized, therefore, to deprive him of
pension is not only unjust and inequitable
but is hit by Article 14 of the Constitution
of India because such a provision involves
negation of equality; secondly, the Apex
Court noted in paragraph nos. 30 & 31 of
the judgement that the work-charged
employees were allowed to continue for
years, and the State had misused the very
concept of work-charged establishment on
exploitative terms by taking work which in
fact was regular and perennial in nature
from such employee. It further noted that
the
State
had
acted
arbitrarily
and
employed unfair labour practice in taking
work of permanent and perpetual nature
from these work-charged employees for
years on low wages.

29. It also observed that the State has
been benefited by the service rendered by
the work-charged employee on low wages,
therefore, it would be unjust to deny the
inclusion of service rendered as the workcharged employee with regular service for
determining the qualifying service for
pension.

30. At this point, It would be apt to
refer few judgements of the Apex Court
laying
down
the
principle
that
the
validating Act has to comply to overrule a
judicial decision.

31. In the case of A. Manjula
Bhashini
&
others
Vs.
Managing
Director, Andhra Pradesh Women's
Cooperative Finance Corporation Ltd.
and Another, (2009) 8 SCC 431, it has
been
succinctly
explained
when
the
legislature can directly overrule, reverse
and
override
the
judicial
decision.
Paragraphs No. 67,68 and 72 of the
judgement are reproduced herein below:

67.
The
distinction
between
legislative and judicial functions is well
known. Within the scope of its legislative
competence
and
subject
to
other
constitutional limitations, the power of the
legislature to enact laws is plenary. In
exercise of that power, the legislature can
enact
law
prospectively
as
well
retrospectively. The adjudication of the
rights of the parties according to law
enacted by the legislature is a judicial
function. In the performance of that
function, the court interprets and gives
effect to the intent and mandate of the
legislature as embodied in the statute. If the
court finds that the particular statute is
ultra vires the power of legislature or any
provision of the Constitution, then the same
can be struck down.

68. It is also well settled that the
legislature cannot by bare declaration,
without anything more, directly overrule,
reverse or override a judicial decision.
However it can, in exercise of the plenary
powers conferred upon it by Articles 245
and 246 of the Constitution, render a
judicial decision ineffective by enacting a
valid
law
fundamentally
altering
or
changing the conditions on which such a
decision is based. Such law can also be
given retrospective effect with a deeming
date or with effect from a particular date.
The question whether the legislature
possesses
the
power
to
enact
law
apparently affecting pre-existing judgment
or amend the existing law which has
already been interpreted by the Court in a
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
particular manner, has been considered in
several cases.

.....................................

72. The Court in referred to the
earlier judgments in Shri Prithvi Cotton
Mills Ltd. v. Broach Borough Municipality,
Patel
Gordhandas
Hargovindas
v.
Municipal Commr., Ahmedabad, Orient
Paper Mills Ltd. v. State of Orissa, Misrilal
Jain v. State of Orissa, Tirath Ram
Rajindra Nath v. State of U.P., Govt. of
A.P. v. Hindustan Machine Tools Ltd, I.N.
Saksena v. State of M.P. and some other
judgments and held: (Indian Aluminium
case, SCC pp. 638-39)

"The validity of the validating Act
is to be judged by the following tests: (i)
whether
the
legislature
enacting
the
validating Act has competence over the
subject-matter; (ii) whether by validation,
the legislature has removed the defect
which the court had found in the previous
law; (iii) whether the validating law is
consistent with the provisions of Chapter
III of the Constitution. If these tests are
satisfied, the Act can validate the past
transactions which were declared by the
court
to
be
unconstitutional.
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.

The court does not have the
power to validate an invalid law or to
legalise impost of tax illegally made and
collected or to remove the norm of
invalidation or provide a remedy. These
are not judicial functions but the exclusive
province of the legislature. Therefore, they
are not encroachment on judicial power.

In exercising legislative power,
the legislature by mere declaration, without
anything more, cannot directly overrule,
revise or override a judicial decision. It
can render judicial decision ineffective by
enacting valid law on the topic within its
legislative field fundamentally altering or
changing its character retrospectively. The
changed or altered conditions should be
such that the previous decision would not
have been rendered by the court, if those
conditions had existed at the time of
declaring the law as invalid. It is also
empowered to give effect to retrospective
legislation with a deeming date or with
effect from a particular date...

32. In State of Gujarat & Another
Vs. Raman Lal Keshav Lal Soni &
Other, (1983) 2 SCC 33, the Apex Court
declared the Gujarat Panchayats (Third
Amendment) Act, 1978 ultra vires, which
was enacted to nullify the basis of the
decision of the High Court, whereby the
High Court has granted certain relief to the
petitioners holding that the members of
panchayat service belonging to the lower
cadre were Government servants and issued
consequential directions for the equation of
posts, revision of pay scale and payment of
salaries. Paragraph no.52 of the judgement
is reproduced herein-below:

" 52. The legislation is pure and
simple, self-deceptive, if we may use such
an
expression
with
reference
to
a
legislature-made law. The legislature is
undoubtedly competent to legislate with
retrospective effect to take away or impair
any vested right acquired under existing
laws but since the laws are made under a
8 All. Awadhesh Kumar Srivastava Vs. State of U.P. & Ors.
1367
written Constitution, and have to conform
to the do's and don'ts of the Constitution,
neither prospective nor retrospective laws
can be made so as to contravene
Fundamental Rights. The law must satisfy
the requirements of the Constitution today
taking into account the accrued or
acquired rights of the parties today. The
law cannot say, twenty years ago the
parties had no rights, therefore, the
requirements of the Constitution will be
satisfied if the law is dated back by twenty
years. We are concerned with today's rights
and not yesterday's. A legislature cannot
legislate today with reference to a situation
that obtained twenty years ago and ignore
the march of events and the constitutional
rights accrued in the course of the twenty
years. That would be most arbitrary,
unreasonable and a negation of history. It
was pointed out by a Constitution Bench of
this Court in BS. Yadav. v. State of
Haryana. Chandrachud, C.J., speaking for
the Court held:

"Since the Governor exercises the
legislative power under the proviso to
Article 309 of the Constitution, it is open to
him to give retrospective operation to the
rules made under that provision. But the
date from which the rules are made to
operate must be shown to bear either from
the face of the rules or by extrinsic
evidence,
reasonable
nexus
with
the
provisions
contained
in
the
rules,
especially when the retrospective effect
extends over a long period as in this case."

Today's equals cannot be made
unequal by saying that they were unequal
twenty years ago and we will restore that
position by making a law today and making
it
retrospective.
Constitutional
rights,
constitutional
obligations
and
constitutional consequences cannot be
tempered with that way. A law which if
made today would be plainly invalid as
offending constitutional provisions in the
context of the existing situation cannot
become valid by being made retrospective.
Past virtue (constitutional) cannot be made
to wipe out present vice (constitutional) by
making
retrospective
laws.
We
are,
therefore, firmly of the view that the
Gujarat Panchayats (Third Amendment)
Act, 1978 is unconstitutional, as it offends
Articles 311 and 14 and is arbitrary and
unreasonable. We have considered the
question whether any provision of the
Gujarat Panchayats (Third Amendment)
Act, 1978 might be salvaged. We are afraid
that the provisions are so intertwined with
one another that it is well-nigh impossible
to consider any life saving surgery. The
whole of the Third Amendment Act must go.
In the result the Writ Petition Nos. 42664270 of 1978 are allowed with costs
quantified at Rs. 15,000. The directions
given by the High Court, which we have
confirmed, should be complied with before
June 30, 1983. In the meanwhile, the
employees of the Panchayats covered by
the appeal and the writ petitions will
receive a sum of Rs. 200 per month over
and above the emoluments they were
receiving before February 1, 1978. This
order will be effective from February 1,
1983.