# Bandhu Prasad v. State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1261
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-13
- **Case number:** C.M.W.P. No. 14756 of 2009
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bandhu-prasad-v-state-of-u-p-ors-43383
- **Pages:** 5

## Headnote

C.S.C.
Civil Services Regulation 378 (ii)-qualifying
period of Service-for pension purpose-work
charge employes-whether period of work
charge can be considered for pension after
regularization?-held-'No'-in view of Division
Bench case of Jai Prakash as well as of Apex
Court-in Punjab State Electricity Vs. Narata
Singh-in absence of any rule or policyfunctioning of work charge can not be
taken into consideration-petition dismissed.
Held: Para-13
In view of the aforesaid decision of the
Division Bench in the case of Jai Prakash
(Supra) wherein it has been categorically
held that the work- charge employees
are not entitled to the benefit which are
permissible to regular employee under
the Rules, which was further affirmed by
Hon'ble the Apex Court holding that
there is nothing on record to suggest any
rule or scheme framed by the State to
count the work charge period for the
purpose in the regular establishment. In
absence of any such Rules or Scheme the
Hon'ble Apex Court did not find any
merit to interfere with the impugned
judgement
and
the
Special
Leave
Petition was dismissed. In the present
case also there are no Rules or Scheme
providing for grant of pension in work
charge establishment.
Case Law discussed:
Writ-A No. 17150 of 2015; Special Appeal
Defective No. 264 of 2013; Special Leave
Petition-C No. 22271 of 2013; (2010) 4 SCC
317; (ADJ) 382 (DB).

## Text

3 All] Bandhu Prasad Vs. State of U.P. & Ors.
1261
refuses back wages for the period between
30.8.2001 till date of reinstatement cannot
be legal and is hereby quashed. The order
of the Tribunal dated 11.12.2002 to that
extent is set aside.
23. It is held that the petitioner
would be entitled to back wages for the
period commencing from 30.8.2001, till
the date of reinstatement with all
consequentil benefits The amount in that
regard may be computed within two
months and be paid to the petitioner
within a further period of two months.
24. The writ petition is disposed of
accordingly.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2015
BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.
C.M.W.P. No. 14756 of 2009
Bandhu Prasad
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Nasiruddin Warsi, Sri R.P.L. Srivastava,
Sri S.C. Srivastava
Counsel for the Respondents:
C.S.C.
Civil Services Regulation 378 (ii)-qualifying
period of Service-for pension purpose-work
charge employes-whether period of work
charge can be considered for pension after
regularization?-held-'No'-in view of Division
Bench case of Jai Prakash as well as of Apex
Court-in Punjab State Electricity Vs. Narata
Singh-in absence of any rule or policyfunctioning of work charge can not be
taken into consideration-petition dismissed.
Held: Para-13
In view of the aforesaid decision of the
Division Bench in the case of Jai Prakash
(Supra) wherein it has been categorically
held that the work- charge employees
are not entitled to the benefit which are
permissible to regular employee under
the Rules, which was further affirmed by
Hon'ble the Apex Court holding that
there is nothing on record to suggest any
rule or scheme framed by the State to
count the work charge period for the
purpose in the regular establishment. In
absence of any such Rules or Scheme the
Hon'ble Apex Court did not find any
merit to interfere with the impugned
judgement
and
the
Special
Leave
Petition was dismissed. In the present
case also there are no Rules or Scheme
providing for grant of pension in work
charge establishment.
Case Law discussed:
Writ-A No. 17150 of 2015; Special Appeal
Defective No. 264 of 2013; Special Leave
Petition-C No. 22271 of 2013; (2010) 4 SCC
317; (ADJ) 382 (DB).
(Delivered by Hon'ble Vivek Kumar
Birla, J.)
1. Heard learned counsel for the
petitioner and learned Standing Counsel.
2. The present petition has been filed
for order or direction in the nature of
mandamus directing the respondents to
release the pension of the petitioner due
from the date of his retirement forthwith.
3. According to the petition, the
petitioner was initially appointed on the
post Beldar on 1.12.1969. Thereafter he
was appointed as Telephone Operator
from 1.10.1982 and worked till 1.7.1996.
On 1.7.1996 he was promoted to the post
of Seench Pal and worked till 31.1.2006
and he has thus completed 37 years of
continue work without any break
1262
 INDIAN LAW REPORTS ALLAHABAD SERIES
4. The averments made in paragraphs
6,7 and 8 of the counter affidavit is quoted as
under:-
''6. That it is stated that the petitioner
Bandhu Prasad was employed in the office of
the answering respondent as Daily-wages
employee from 1.12.1996 to 31.12.1974, and
thereafter, the petitioner worked for the post
of Beldar in the Work Charge Establishment
from 1.1.1975 to 30.6.1996. it is further
stated that the petitioner's services have been
regularized in the regular establishment by
an order dated 29.6.1996 issued by ther
Executive Engineer, Irrigation Divison, Ist,
Deoria and in pursuance thereof, the
petitioner joined his duties on 1.7.1996 and
continued to work as Sinchpal and
superannuated from the said post of Sinchpal
on 31.1.2006. A true copy of the order dated
29.6.1996 issued by the Executive Engineer,
Irrigation Divison, Ist, Doria, is being filed
herewith and marked as Annexure No.CA.1
to this counter affidavit.
7. That the answering respondent
further submits that as per the Civil
Services Regulation, 370, as applicable in
U.P./Services, rendered by the employee
in the Work Charge Establishment, shall
not be counted for the purpose of pension
. The petitioner has worked in the regular
establishment for the post of Sinchpal
from
1.7.1996
to
31.12.2006,
and
therefore, he has served the department
for 9 years and 7 months, as such, he is
not qualified to be granted regular
pension, because the petitioner has not
completed 10 years of regular services in
the department, which is condition
precedent. It is further stated that as per
the Government Order dated 1.7.1989,
the petitioner is not entitled for the
pension, because before his service have
been
regularized
in
the
regular
establishment, the petitioner was working
in the Work Charge Establishment, as
Beldar from 1.1.1975 to 30.6.1996. The
answering respondent further submits that
the gratuity for the period of services
rendered by the petitioner in Work
Charge Establishment has already been
paid by an order dated 21.6.2007 and the
amount of Rs.32,907/- has been paid to
the petitioner. A true copy of the
Government Order dated 1.7.1989, and a
true copy of the order dated 21.6.2007,
are being filed herewith and marked as
Annexure Nos. CA.2 and CA.3 to this
Counter affidavit.''
8. That it is relevant to mention here
that the gratuity amount of Rs. 38,190/-
relating to the services rendered by the
petitioner in the regular establishment has
also been paid on 12.7.2006. A true copy of
the forwarding letter by Joint Director,
Treasury and Pension, Gorakhpur Divison
to the Treasury Officer, Kushinagar is being
filed herewith and marked as Annexure
No.CA.4 to this counter affidavit.
5. Thus, the case of respondent is
that the petitioner has served in the
department for 9 years and 7 months and
as such, he could not be granted regular
pension because the petitioner has not
completed 10 years in regular service
therefore has not been given any pension.
6. Learned counsel for the petitioner has
placed various judgement of this Court to
contend that the petitioner is entitled for
pension. He has referred various decision of
this Court rendered in Writ -A No.17150 of
2015, Kedar Ram Vs. State of U.P. and 4
others and Special Appeal (Defective) No.264
of 2013, State of U.P Vs. Prem Chandra
decided on 13.5.2013 against which Special
Leave Petition- C No.22271 of 2013, State of
U.P. Vs. Prem Chandra was dismissed on
17.1.2014 with the following orders.
3 All] Bandhu Prasad Vs. State of U.P. & Ors.
1263
" Delay condoned.
Special leave petition is dismissed."
7.
He further placed reliance on
decision of Hon'ble Division Bench in Special
Appeal No.1891 of 2013, Parmatma Ram Vs.
State of U.P. and other against which Special
Leave Petition (C) No.2255 of 2015, State of
U.P. Vs. Parmatma Ram, was dismissed on
30.2.2015 with the following order:-
"Delay condoned.
The
special
leave
petition
is
dismissed.
The question of law is kept open."
8. He further relied on a decision of
Hon'be Apex Court in Punjab State
Electricity Board Vs. Narata Singh (2010)
4 SCC 317.
9. The submission is that the service
rendered as work charge employee is liable
to be counted for the purpose of completing
10 years service and granting pension.
10.
However, in the judgement
rendered by Hon'ble Division Bench of this
Court in Jai Prakash Vs. State of U.P, 2014
(ADJ) 382 (DB), wherein the judgement of
Hon'ble Single Bench, whereby the writ
petition which was filed for quashing the
order denying the benefit of service rendered
by the appellant in a work charge
establishment for computing the qualifying
service for grant of pension was dismissed,
was under challenge. While dismissing the
special appeal the Hon'ble Division Bench
observed as under:-
'' It, therefore, follows from the
aforesaid judgements of the Supreme
Court that the work charged employees
constitute a distinct class and they cannot
be equated with regular employees and
that the work charged employees are not
entitled to the services benefits which are
admissible to regular employees under
the relevant rules. .''
(Emphasis supplied)
11. In this case decision of Punjab
State Electricity Vs. Narata Singh (Supra)
was also considered by Hon'ble Division
Bench.
''We are conscious that in Special
Appeal Defective No.842 of 2013 (State of
U.P. & Ors. Vs. Panchu) that was decided
on 2 December 2013, a Division Bench,
after taking notice of the judgment of the
Supreme Court in Narata Singh (supra),
observed
that
the
rationale
which
weighed with the Supreme Court should
also govern the provisions of the Civil
Service Regulations, but what we find
from a perusal of the aforesaid judgment
of the Division Bench is that the decisions
of the Supreme Court in Jagjiwan Ram
(supra), Jaswant Singh (supra) and Kunji
Raman (supra) as also the Full Bench
judgment of this Court in Pavan Kumar
Yadav (supra) had not been placed before
the Court. These decisions of the Supreme
Court and the Full Bench of this Court
leave no manner of doubt that in view of
the material difference between
an
employee working in a work charged
establishment and an employee working
in a regular establishment, the service
rendered in a work charged establishment
cannot be clubbed with service in a
regular establishment unless there is a
specific provision to that effect in the
relevant Statutes. Article 370(ii) of the
Civil Service Regulations specifically, on
the contrary, excludes the period of
service rendered in a work charged
establishment for the purposes of payment
of pension and we have in the earlier part
1264
 INDIAN LAW REPORTS ALLAHABAD SERIES
of this judgment held that the decision of
the Supreme Court in Narata Singh
(supra), which relates to Rule 3.17(i) of
the Punjab Electricity Rules, does not
advance the case of the appellant. In this
view of the matter, the appellant is not
justified in contending that the period of
service rendered from 1 October 1982 to
5 January 1996 as a work charged
employee should be added for the purpose
of computing the qualifying service for
payment of pension."
12. The aforesaid judgement was
challenged by the appellant Jai Prakash
before Hon'ble the Apex Court by means
of filing Special Leave to Appeal (C)
No.12648 of 2014, Jay Prakash Vs. State
of U.P and others which was dismissed
with the following order dated 5.9.2014.
'There is nothing on the record to
suggest that any Rule or Scheme framed
by the State to count the work-charge
period for the purpose of pension in the
regular establishment. In absence of any
such Rule or Scheme, we find no merit to
interfere with the impugned judgement.
The
special
leave
petition
is
dismissed.'
(Emphasis supplied)
13. In view of the aforesaid decision
of the Division Bench in the case of Jai
Prakash (Supra) wherein it has been
categorically held that the work- charge
employees are not entitled to the benefit
which
are
permissible
to
regular
employee under the Rules, which was
further affirmed by Hon'ble the Apex
Court holding that there is nothing on
record to suggest any rule or scheme
framed by the State to count the work
charge period for the purpose in the
regular establishment. In absence of any
such Rules or Scheme the Hon'ble Apex
Court did not find any merit to interfere
with the impugned judgement and the
Special Leave Petition was dismissed. In
the present case also there are no Rules or
Scheme providing for grant of pension in
work charge establishment.
14. The other two decisions of
Hon'ble Apex Court, simply dismissing the
Special
Leave
Petition
against
the
judgements of this Court leaving this
question of law open, are of no help to the
petitioner in as much as this question as to
whether work charge period for the purpose
of pension in regular establishment as on
date stood affirmed by Hon'ble Division
Bench in the case of Jai Prakash ( Supra)
and S.L.P.-C No.12648 of 2014, Jai Prakash
Vs. State of U.P. as noted above.
15.
During course of arguments the
learned counsel for the petitioner has also
supplied a copy of this letter dated 7.1.2015
written by the Chief Engineer Irrigation
Department,Lucknow
to
Executive
Engineer Work Charge Establishment. The
same is taken on record. This letter indicates
only this much that this demand to count
work charge period for grant of pension is
under consideration. Moreover it also
establishes that on the date of retirement of
the petitioner i.e 31.1.2001 no such Rules or
Scheme framed by the State to count the
work charge period for the purpose of
pension in the regular establishment was in
existence. Perhaps the same is still not in
existence. Be that as it may, at present no
such relief can be granted to the petitioner.
16. The petition lacks merit and is
dismissed.
--------
3 All] Fahim Baig Vs. State of U.P. & Ors.
1265
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2015
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
C.M.W.P. No. 16982 of 2012
Fahim Baig
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Dinesh Kr. Yadav, Sri A.R. Nadiwal
Counsel for the Respondents:
C.S.C., Sri Amit Kumar Asthana, Sri Kripa
Shanker Yadav, Sri M.N. Singh, Sri
Yatindra, Sri R.J. Shahi
U.P.Z.A. & L.R Act-Section 123-B-Punishment
for occupation of Gaon Sabha land-no eviction
proceeding ever initiated-against petitionerno question of re occupies-provisions of
Section 123-B not applicable-order quashed.
Held: Para-9
In other words, the punishment and the
procedure prescribed under Section 123-B of
the Act is to be followed after the proceedings
for eviction under Section 122-B have been
completed.
Secondly,
the
provisions
of
Section 123-B of the Act are applicable only if
a person re-occupies the land of the Gaon
Sabha after his eviction therefrom. It is not
the provision for punishment or eviction of
unauthorized occupant in first instance.
(Delivered by Hon'ble Pankaj Mithal, J.)
1.
Heard learned counsel for the
petitioner and learned Standing Counsel
appearing for respondents No.1 to 4. Notice
on behalf of respondent No.6 has been
accepted by Sri M.N. Singh.
2. The petitioner by means of this
writ petition has challenged the order
dated 17.3.2012 passed by the Up-Ziladhikari,
Sadar, Azamgarh. The said order directs the
petitioner to vacate part of Arazi No.106
which is in his unauthorized occupation for
the last two months failing which he would be
dispossessed from the same and the expenses
for his dispossession shall be recovered from
him as arrears of revenue and a first
information will be lodged against him under
Section 3/5 of the Prevention of Damage to
Public Property Act, 1984.
3. On the basis of the pleadings
exchanged between the parties on record,
the aforesaid land is the land of Gaon
Sabha recorded as manure pit which
cannot be occupied by any person
otherwise than with the permission of the
Gaon Sabha. The said land is not allotted
to the petitioner and that he is in
unauthorized occupation of the same.
4. Learned Standing Counsel has filed
supplementary counter affidavit stating that
no proceedings under Section 122-B of the
U.P. Zaminari Abolition and Reformed Act,
1950 (hereinafter referred to as the 'Act')
were ever drawn against the petitioner for his
eviction from the said land. He also submits
that the petitioner was never evicted from the
said land earlier.
5. The impugned order is said to
have been passed by the authority concern
in purported exercise of power under
Section 123-B of the Act. The aforesaid
provision provides for punishment for
occupation of the Gaon Sabha land and
for summary eviction of person who has
re-occupied Gaon Sabha land after his
eviction. Section 123-B of the Act for the
sake of convenience is reproduced below:
"123-B. Punishment for occupation
of Gaon Sabha land. - (1) Where any