# Chaman Khan v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 641
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-11
- **Case number:** Writ-A No. 19575 of 2022
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chaman-khan-v-state-of-u-p-ors-50339
- **Pages:** 7

## Headnote

A. Service Law - Pension - Retirement
Benefits - Uttar Pradesh Nagar Panchayat
Non
Centralized
Services
Retirement
Benefits
Regulations,
1992
-
U.P.
Qualifying
Service
for
Pension
and
Validation Act, 2021 - The pensionary
provisions
must
be
given
a
liberal
construction as a social welfare measure.
This does not imply that something can be
given contrary to rules, but the very basis
for grant of such pension must be kept in
mind i.e. to facilitate a retired government
employee to live with dignity in his winter
of life and, thus, such benefit should not
be unreasonably denied to an employee,
more so on technicalities. (Para 8)

Rule 3(8) of the U.P. Retirement Benefits Rules,
1961 was read down to 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. (Para 5)

The word 'post' used in S.2 of the Act of 2021
was diluted to save it from arbitrariness and
hence, the word 'post', be it temporary or
permanent,
was
read
down
as
'services
rendered by a government employee, be it of
temporary or permanent nature'. (Para 8)

The present Regulations of 1992 are
parallel to the Rules of State Government
which have been read down by the
Supreme Court, being held in violation of
Article 14 of the Constitution of India, as
they create an artificial categorization of
similarly situated employees.

In
the
present
case
also
an
artificial
classification is created as admittedly, as the
daily wager employees perform the same duties
as the regular employees and are throughout
treated as the regular employee. They were also
regularized in continuation of their daily wage
services. (Para 9)

Thus, the impugned order dated 28.08.2020 is
set aside and respondents are directed to
ensure regular payment of pensionary and other
benefits to the petitioner under the Regulations
of 1992, treating their entire service to be
performed as regular employee of the Nagar
Panchayat within a period of three months.
However, back pension shall be paid for the last
three years only. (Para 10, 11)

Writ petition allowed. (E-4)

Precedent followed:

## Text

6 All. Chaman Khan Vs. State of U.P. & Ors.
641

12. The arguments as raised by
learned Standing Counsel seems to be
forceful, having agreement with the same,
the instant petition is hereby dismissed.

13. However, it is made clear that the
petitioner is at liberty to approach the
appropriate forum of law, if so desires.
----------
(2023) 6 ILRA 641
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 19575 of 2022

Chaman Khan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Indal Singh

Counsel for the Respondents:
C.S.C., Sri Jamwant Maurya

A. Service Law - Pension - Retirement
Benefits - Uttar Pradesh Nagar Panchayat
Non
Centralized
Services
Retirement
Benefits
Regulations,
1992
-
U.P.
Qualifying
Service
for
Pension
and
Validation Act, 2021 - The pensionary
provisions
must
be
given
a
liberal
construction as a social welfare measure.
This does not imply that something can be
given contrary to rules, but the very basis
for grant of such pension must be kept in
mind i.e. to facilitate a retired government
employee to live with dignity in his winter
of life and, thus, such benefit should not
be unreasonably denied to an employee,
more so on technicalities. (Para 8)

Rule 3(8) of the U.P. Retirement Benefits Rules,
1961 was read down to 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. (Para 5)

The word 'post' used in S.2 of the Act of 2021
was diluted to save it from arbitrariness and
hence, the word 'post', be it temporary or
permanent,
was
read
down
as
'services
rendered by a government employee, be it of
temporary or permanent nature'. (Para 8)

The present Regulations of 1992 are
parallel to the Rules of State Government
which have been read down by the
Supreme Court, being held in violation of
Article 14 of the Constitution of India, as
they create an artificial categorization of
similarly situated employees.

In
the
present
case
also
an
artificial
classification is created as admittedly, as the
daily wager employees perform the same duties
as the regular employees and are throughout
treated as the regular employee. They were also
regularized in continuation of their daily wage
services. (Para 9)

Thus, the impugned order dated 28.08.2020 is
set aside and respondents are directed to
ensure regular payment of pensionary and other
benefits to the petitioner under the Regulations
of 1992, treating their entire service to be
performed as regular employee of the Nagar
Panchayat within a period of three months.
However, back pension shall be paid for the last
three years only. (Para 10, 11)

Writ petition allowed. (E-4)

Precedent followed:

1. Prem Singh Vs St. of U.P. & ors., (2019) 10
SCC 516 (Para 5)

2. Dr. Shyam Kumar Vs St. of U.P. & ors.,
Judgment dated 17.02.2023, Writ-A No. 8968 of
2022 (Para 8)

Present
petition
assails
order
dated
28.08.2020,
whereby
the
respondent
authority
has
refused
to
grant
him
pension and other benefits on retirement
which he claims to be entitled.
642 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Vivek Chaudhary, J.)

1.

Heard
learned
counsel
for
petitioner, Shri Jamwant Maurya, learned
counsel for respondent no.5 and learned
Standing Counsel for the State.

2. Petitioner has approached this
Court
challenging
the
order
dated
28.08.2020
whereby
the
respondent
authority has refused to grant him pension
and other benefits on retirement which he
claim to be entitled.

3. The facts of the case are that the
petitioner was appointed as daily wager on
class IV post as Pump Operator on
07.12.1987.
He
was
regularized
on
05.07.2011 and he retired on 31.08.2019.

4. Learned counsel for petitioner submits
that he is entitled for pension under Uttar
Pradesh Nagar Panchayat Non-Centralized
Services Retirement Benefits Regultions, 1992
(hereinafter referred to as Regulations of
1992). Reference is made to Rule 2(da) which
reads as follows:-

2(ड) "सहकारी सेवा "का तात्पयथ भनम्नभलभखत को छोड़कर समय
समय पर यथा संशोभधत भसभवल सभवथसेज रेगुलेशन्स के अनुच्छेद 368, के
उपबन्धों के अनुसार पेंशन के भलए अहथता प्रदान करती है :

एक सम्बद्ध कमेटी के अधीन पेंशन रभहत अभधष्ठान में अस्थाई या
स्थानापन्न सेवा की अवभध,

(दो) भकसी कायथ प्रिाररत अभधष्ठान में सेवा की अवभध, और

(तीन) भकसी ऐसे पद पर भजसके भलये आकभस्मता भनभध से िुगतान
भकया जाता है, सेवा की अवभध:

परन्तु भकसी कमेटी के अधीन भनरंतर अस्थाई या स्थानापन्न सेवा की
अवभध की गणना सहकारी सेवा के रूप में की जायेगी यभद उसी या भकसी
अन्य पद पर सेवा के भकसी व्यवधान के भबना बाद में उसे स्थाई कर भदया जाय l

भटप्पणी-- यभद भकसी पेंशन रभहत अभधष्ठान, कायथ प्रिाररत
अभधष्ठान में या आकभस्मता भनभध से िुगतान भकये जाने वाले भकसी पद
पर की गयी सेवा भकसी पेंशन योग्य अभधष्ठान में अस्थाई सेवा और स्थाई
सेवा की अवभध के बीच पड़ती हो तो वह सेवा का व्यवधान नहीं होगा l

5. Further submission is that similar
rules prevailed with regard to employees of
the State Government which also provide
non-counting of services performed on
work charge basis. A three Judge's Bench
of Supreme Court on reference in case of
Prem Singh vs. State of U.P. and others,
(2019) 10 SCC 516 considered their
entitlement for pension. The relevant
paragraphs of the said judgment reads:

"8. We first consider the provisions
contained in the Uttar Pradesh Retirement
Benefits Rules, 1961 (for short ?the 1961
Rules?). Rule 3(8) of the 1961 Rules which
contains the provisions in respect of
qualifying service is extracted hereunder:

?3. In these rules, unless is anything
repugnant in the subject or context

(1)-(7) * * *

(8)
?Qualifying
service?
means
service which qualifies for pension in
accordance with the provisions of Article
368 of the Civil Services Regulations:

Provided that continuous temporary or
officiating service under the Government of
Uttar
Pradesh
followed
without
interruption by confirmation in the same or
any other post except:

(i) periods of temporary or officiating
service
in
a
non-pensionable
establishment;
(ii) periods of service in
a work-charged establishment; and

(iii) periods of service in a post paid
from contingencies shall also count as
qualifying service.

Note. If service rendered in a nonpensionable establishment work-charged
establishment or in a post paid from
contingencies falls between two periods of
temporary
service
in
a
pensionable
establishment or between a period of
temporary service and permanent service
in a pensionable establishment, it will not
constitute an interruption of service.
6 All. Chaman Khan Vs. State of U.P. & Ors.
643

9. Regulations 361, 368 and 370 of the
Uttar Pradesh Civil Services Regulations
are also relevant. They are extracted
hereunder:

"361. The service of an officer does
not qualify for pension unless it conforms
to the following three conditions:

First: The service must be under
Government.

Second: The employment must be
substantive and permanent.

These conditions are fully explained in
the following Regulations.

"368. Service does not qualify unless
the officer holds a substantive office on a
permanent establishment.

370.
Continuous
temporary
or
officiating service under the Government of
Uttar
Pradesh
followed
without
interruption by confirmation in the same or
any other post shall qualify, except:

(i) periods of temporary or officiating
service in non-pensionable establishment;

(ii) periods of service in work-charged
establishment; and

(iii) periods of service in a post paid
from contingencies.?

10. The qualifying service is the one
which is in accordance with the provisions
of Regulation 368 i.e. holding a substantive
post on a permanent establishment. The
proviso to Rule 3(8) clarify that continuous,
temporary or officiating service followed
without interruption by confirmation in the
same or any other post is also included in
the qualifying service except in the case of
periods of temporary and officiating
service in a non-pensionable establishment.
The service in work-charged establishment
and period of service in a post paid from
contingencies shall also not count as
qualifying service.

11. The Note appended to Rule 3(8)
contains a provision that if the service is
rendered
in
a
non-pensionable
establishment, work-charged establishment
or in a post paid from contingencies, falls
between two periods of temporary service
in a pensionable establishment or between
a period of
temporary
service
and
permanent
service
in
a
pensionable
establishment, it will not constitute an
interruption of service. Thus, the Note
contains a clear provision to count the
qualifying service rendered in workcharged,
contingency
paid
and
nonpensionable establishment to be counted
towards
pensionable
service,
in
the
exigencies provided therein.

12. The provisions contained in
Regulation 370 of the Civil Services
Regulations excludes service in a nonpensionable establishment, work-charged
establishment and in a post paid from
contingencies
from
the
purview
of
qualifying service. Under Regulation 361
of the Civil Services Regulations, the
services must be under the Government and
the employment must be substantive and
permanent basis.

.........

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 work-charged
employment has been misused by offering
the employment on exploitative terms for
the work which is regular and perennial in
nature. The work-charged employees had
been subjected to transfer from one place to
another like regular employees as apparent
644 INDIAN LAW REPORTS ALLAHABAD SERIES
from documents placed on record. In
Narain Dutt Sharma v. State of U.P. [CA
No. ______2019 arising out of SLP (C) No.
5775 of 2018] the appellants were allowed
to cross efficiency bar, after ''8' years of
continuous service, even during the period
of work-charged services. Narain Dutt
Sharma, the appellant, was appointed as a
work-charged employee as Gej Mapak with
effect from 15-9-1978. Payment used to be
made monthly but the appointment was
made in the pay scale of Rs 200-320.
Initially, he was appointed in the year 1978
on a fixed monthly salary of Rs 205 per
month. They were allowed to cross
efficiency bar also as the benefit of pay
scale was granted to them during the
period
they
served
as
work-charged
employees they served for three to four
decades and later on services have been
regularised time to time by different orders.
However, the services of some of the
appellants in few petitions/appeals have not
been regularised even though they had
served for several decades and ultimately
reached the age of superannuation.

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 regularised. 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
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 workcharged 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 regularisation 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 the Note
to Rule 3(8) of the 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
6 All. Chaman Khan Vs. State of U.P. & Ors.
645
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 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.

35. In view of the Note appended to
Rule 3(8), which we have read down, the
provision contained in Regulation 370 of
the Civil Services Regulations has to be
struck down as also the instructions
contained in Para 669 of the Financial
Handbook.

36. There are some of the employees
who have not been regularised 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 regularised under the
Government instructions and even as per
the decision of this Court in State of
Karnataka v. Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1
: 2006 SCC (L&S) 753] . 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
regularised of such employees. In the facts
of the case, those employees who have
worked for ten years or more should have
been regularised. 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 workcharged 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."

6. He further submits that since
similar rules for pensionary benefits exist
in the respondent authority, therefore, the
matter is squarely covered by the said
judgment and petitioners herein should also
646 INDIAN LAW REPORTS ALLAHABAD SERIES
be extended the benefit of the law settled in
the case of Prem Singh (Supra).

7. Learned counsel for the respondent
Nagarpalika submits that in light of U.P.
Qualifying
Service
for
Pension
and
Validation Act, 2021 (for short 'the Act of
2021') the effect of Prem Singh (supra)
judgment has been nullified and, therefore,
petitioner cannot claim benefits of the law
settled in the case of Prem Singh (supra).

8. So far as Act of 2021 is concerned,
the same is applicable only upon the
employees of State Government. There is
no similar Act which is applicable with
regard to employees of the Non-Centralized
Services of the Nagar Panchayat. Even
otherwise Act of 2021 is already read down
by
this
Court
by
judgment
dated
17.02.2023 passed in Writ-A No.8968 of
2022 (Dr. Shyam Kumar Vs. State of U.P.
and others). Relevant paragraphs of the
same reads as:

"9. Therefore, the question now before
this Court is whether by bringing Act of
2021, the State Government has done away
with the vice pointed out by the Supreme
Court in case of Prem Singh (supra). In the
said judgment, the Supreme Court found
that the State Government has adopted
exploitative labour practice by taking work
of regular employees from work charge
employees on long term basis without any
rationale classification while refusing them
benefits available to regular employees.
Supreme Court specifically held that the
State Government can not get involved in
corrupt labour practices. On the aforesaid
grounds, the Supreme Court read down the
provisions of Rule 3(8) of the Rules of 1961
and struck down Regulation 370 of Civil
Services Regulations and Para 669 of the
Financial Handbook.

10. It is the duty of State to create new
temporary or permanent posts as per its
needs and make appointments on the same.
Law also permits State to appoint daily
wagers or work charge employees, but only
when the work is for short period or is in a
work
charge
establishment
for
fixed
duration. Law does not permit the State to
take work for long period, extending even
for the entire working life of a person, on
temporary or work charge basis. In such
cases, it is the duty of State to create new
posts and make appointments, giving all
benefits of regular employees. Otherwise,
State would be found to be adopting
exploitative labour practice. This is the vice
pointed out by the Supreme Court in Prem
Singh's case (supra), and instead of
removing the same, the State by Section 2
of the Act of 2021 has extended the sphere
of its illegality. By Section 2 of the Act of
2021, it desires to take benefit of its own
failure of creating posts in time and making
appointments on the same, by not counting
the said period of such service for
pensionary benefits. State still fails to
explain the rationale on the basis of which
it has created this new classification and
the manner in which, by the amended
provision, it has removed the irrationality.

In case Section 2 of the Act of 2021 is
given a literal meaning it would mean that
services rendered by a person on a
temporary or permanent post alone can be
counted for pension. The same would again
be an exploitative device and labour
malpractice,
as
by
this,
the
State
Government is again attempting to use
persons to work for it on long term basis,
just like regular employees, without giving
them benefits they are entitled to as regular
employees. The very vice pointed by the
Supreme Court in the judgment of Prem
Singh (supra) with regard to work charge
employees is, in fact, now made applicable
6 All. Dr. Rakshapal Singh Vs. Prof. Chandra Shekhar & Ors.
647
to even larger number of employees and
extended to daily wagers and other persons
not working on a temporary or a
permanent post including, work charge
employees.

In case of V. Sukumaran vs. State of
Kerala (2020) 8 SCC 106, the Supreme
Court held:

"22. We begin by, once again,
emphasising that the pensionary provisions
must be given a liberal construction as a
social welfare measure. This does not imply
that something can be given contrary to
rules, but the very basis for grant of such
pension must be kept in mind i.e. to
facilitate a retired government employee to
live with dignity in his winter of life and,
thus,
such
benefit
should
not
be
unreasonably denied to an employee, more
so on technicalities."

Thus, again to save Section 2 of the
Act of 2021 from the vice/arbitrariness, in
the spirit of the judgment of Prem Singh
(supra), the word 'post' is required to be
diluted to save it from arbitrariness and
hence, the word 'post' used in Section 2 of
the Act of 2021, be it temporary or
permanent, has to be read down as
'services
rendered
by
a
government
employee, be it of temporary or permanent
nature'."

9. The present Regulations of 1992 are
parallel to the Rules of State Government
which have been read down by the
Supreme Court, being held in violation of
Article 14 of the Constitution of India, as
they create an artificial categorization of
similarly situated employees. In the present
case also an artificial classification is
created as admittedly, as the daily wager
employees perform the same duties as the
regular employees and are throughout
treated as the regular employee. They were
also regularized in continuation of their
daily wage services. Thus, the matter is
squarely covered by the law settled in case
of Prem Singh (Supra).

10. Thus, the writ petition is allowed
and impugned order dated 28.08.2020 is set
aside.

11. Respondents are directed to
ensure regular payment of pensionary and
other benefits to the petitioner under the
Regulations of 1992, treating their entire
service
to
be performed
as
regular
employee of the Nagar Panchayat within a
period of three months. However, back
pension shall be paid for the last three years
only.
----------
(2023) 6 ILRA 647
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ-C No. 3848 of 2023

Dr. Rakshapal Singh ...Petitioner
Versus
Prof. Chandra Shekhar & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Mohammad Aon, Sri Mohd. Parvez, Sri Gopal
Krishna

Counsel for the Respondents:
C.S.C., Sri Rizwan Ali Akhtar, Sri Shashi Prakash
Rai, Sri Shivendu Ojha, Sri R.K. Ojha (Sr.
Advocate), Sri A.K. Singh(Sr. Advocate)

The
University
Grants
Commission
Regulations,
2018
-
Uttar
Pradesh
Universities (111th Amendment) 2019
(U.P. Act No.20 of 2019) -writ of Quo