# Dr. Shyam Kumar v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-17
- **Case number:** Writ A No. 8968 of 2022
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-shyam-kumar-v-state-of-u-p-anr-49741
- **Pages:** 13

## Headnote

A. Civil Law - U.P. Qualifying Service for
Pension and Validation Act, 2021 - Section
2 - qualifying service for pension -
interpretation & application of Section 2
of the Act of 2021 for counting qualifying
service for the purpose of pension with
regard to work charge employees, daily
wager
employees,
adhoc
appointees
against the post as well as Seasonal
Collection Amin - Held - 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 - same would be an exploitative
device and labour malpractice, as by this,
the St. Government is 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. - to save Section 2
of
the
Act
of
2021
from
the
vice/arbitrariness, 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' (Para 10, 21)

B. U.P. Qualifying Service for Pension and
Validation Act, 2021, S. 2 - Daily-wager -
pensionary benefits - regularisation after
the old pension scheme was abolished - It
is well settled that daily wager employees
are
entitled
to
pensionary
benefits
counting their services from the date of
their initial appointment and not from the
date of their regularization - Daily wagers
entitled for counting of their services
rendered as daily wagers for pensionary
benefits (Para 17)

C. U.P. Qualifying Service for Pension and
Validation Act, 2021 - Section 2 - Adhoc
Employees
-
pensionary
benefits
-
Employees appointed against substantive
posts on adhoc basis - such employees are
entitled for counting of services rendered
by
them
as
ad-hoc
employees
for
pensionary purposes (Para 18)

D. U.P. Qualifying Service for Pension and
Validation Act, 2021 - Section 2 - Pension
-
Seasonal
Collection
Peon/Collection
Amin - since, appointment of Seasonal
Collection
Peon/Collection
Amin,
is
against a post, hence, they are entitled for
pension by counting in services rendered
by them as non-regular employees. (Para
21)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,320 of 44,325. This is a partial read: ask again with offset=39320 for what follows._

78 INDIAN LAW REPORTS ALLAHABAD SERIES
engaged by different employers. Thus, on
that count also, the petitioners have been
discriminated.

39. This Court cannot lose sight of the
fact that the State has to act fairly being a
welfare State and cannot take any decision
which has the tendency to violate the
fundamental values of our democracy
which has to ensure dignity and equality of
all human beings and good governance. In
the
present
case
by
providing
the
honorarium of Rs.1,000/- per month, the
Central and the State both have failed in
ensuring the dignity of these Cooks cum
Helpers and the said action certainly cannot
be termed as good governance.

40. Thus, for all the reasons recorded
above, the writ petition deserves to be
allowed and ordered accordingly.

41. A mandamus is issued to the Central
Government and the State Government to
make
necessary
amendments
in
their
circulars and to ensure payment of minimum
wages to the Cooks cum Helpers employed
and preparing the Mid Day Meal across the
State of Uttar Pradesh in terms of the various
circulars issued from time to time and the
mandate of the Code of Wages (Central)
Rules, 2019.

42. Although, there is no prayer made
in the writ petition with regard to payment of
arrears, this Court deems it fit and feels that it
is the duty of the Court to extend the relief
even if the same is not prayed for, particularly
in respect of disadvantage section of the
society namely Cooks who are working in
pitiable conditions and for paltry amounts, as
such, this Court deems it appropriate to issue
directions to the respondents Union of India
and the State Government to ensure payment
of minimum wages fixed from time to time to
the persons employed as Cooks cum Helpers
for preparation of Mid Day Meals from the
year 2014, the date on which a decision was
taken by the State Government to hold that
the Cooks preparing the meals in the
institution would be classified as semi skilled
and would be entitled to minimum wages
w.e.f. 28.01.2014. The arrears of wages shall
be paid to all the persons employed as cook
cum helper individually after deducting the
honorarium already paid to them within a
period of four months from today. The
Central
Government
and
the
State
Government shall bear the burden in the ratio
in which the honorariums were being paid by
them. It is clarified that with effect from the
date of delivery of this judgment, the Cooks
cum helpers shall be paid remuneration at the
rate of minimum wages fixed and modified
from time to time,the burden shall be shared
by the Central Government and the State
Government in the Ratio in which they are
bearing the financial burden under the
scheme.
----------
(2023) 2 ILRA 78
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ A No. 8968 of 2022
along with
Writ A No. 6343 of 2020
and other connected cases

Dr. Shyam Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Vivek Sirswal, B.N. Sirswal

Counsel for the Respondents:
C.S.C.
2 All. Dr. Shyam Kumar Vs. State of U.P. & Anr.
79
A. Civil Law - U.P. Qualifying Service for
Pension and Validation Act, 2021 - Section
2 - qualifying service for pension -
interpretation & application of Section 2
of the Act of 2021 for counting qualifying
service for the purpose of pension with
regard to work charge employees, daily
wager
employees,
adhoc
appointees
against the post as well as Seasonal
Collection Amin - Held - 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 - same would be an exploitative
device and labour malpractice, as by this,
the St. Government is 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. - to save Section 2
of
the
Act
of
2021
from
the
vice/arbitrariness, 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' (Para 10, 21)

B. U.P. Qualifying Service for Pension and
Validation Act, 2021, S. 2 - Daily-wager -
pensionary benefits - regularisation after
the old pension scheme was abolished - It
is well settled that daily wager employees
are
entitled
to
pensionary
benefits
counting their services from the date of
their initial appointment and not from the
date of their regularization - Daily wagers
entitled for counting of their services
rendered as daily wagers for pensionary
benefits (Para 17)

C. U.P. Qualifying Service for Pension and
Validation Act, 2021 - Section 2 - Adhoc
Employees
-
pensionary
benefits
-
Employees appointed against substantive
posts on adhoc basis - such employees are
entitled for counting of services rendered
by
them
as
ad-hoc
employees
for
pensionary purposes (Para 18)

D. U.P. Qualifying Service for Pension and
Validation Act, 2021 - Section 2 - Pension
-
Seasonal
Collection
Peon/Collection
Amin - since, appointment of Seasonal
Collection
Peon/Collection
Amin,
is
against a post, hence, they are entitled for
pension by counting in services rendered
by them as non-regular employees. (Para
21)

Allowed. (E-5)

List of Cases cited:

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

2. St. of U.P. & ors. Vs Mahendra Singh (S.A.D.
No.1003 of 2020), dt 4.2.2021

3. St. of U.P. & ors. Vs Bhanu Pratap Sharma
(S.A. No.97 of 2021) dt 9.6.2021

4. St. of U.P. & ors. Vs Bhanu Pratap (S.A. No.
152 of 2021) dt 14.7.2021

5. St. of U.P. & ors. Vs Bhanu Pratap (Special
Leave to Appeal (c) No.10381 of 2022, dt
11.7.2022

6. Ram Das Yadav Vs St. of U.P. & ors. (W.P.
No.25955 of 2017)

7. Jang Pal Vs St. of U.P. & ors. (S.A. No.240 of
2021) dt 16.5.2022

8. St. of U.P. & ors. Vs Gulam Sarver (Special
Appeal No.165 of 2022)

9. St. of U.P. & ors. Vs Raj Bahadur Pastor,
2022(3) ADJ 5 (DB)

10. Kishun Dev Ram Vs St. of U.P. & ors. (WritA No.38221 of 2011)

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Heard learned counsel for the
petitioners Sri Vivek Sirswal, Sri Rakesh
Kumar Singh, Sri Angrej Nath Shukla, Km.
Pratima Devi, Sri Vivek Kumar Rai, Sri
Jitendra Kumar Pandey, Sri Lalji Yadav, Sri
Manendra Nath Rai, Sri Fahmid Ahmad,
80 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Mohd. Ateeq Khan, Sri Suneel Kumar
Singh Kalhans, Sri Shobh Nath Pandey, Sri
Sudeep
Kumar,
Sri
Ramesh
Kumar
Srivastava, Sri Mohd. Tauseef Siddiqui, Sri
Pradeep
Kumar
Shukla,
Sri
Yogesh
Chandra Srivastava, Sri Jai Bahadur Singh,
Sri Mrinal Tripathi, Sri Nirankar Singh, Sri
Ashok Kumar Mishra, Sri Vimal Kumar,
Km. Vishwa Mohini, Sri Ashwani Kumar,
Sri Arvind Pratap Singh, Sri V.K. Shukla,
Sri Aditya Vikram Shahi, Sri Vinod Kumar
Singh, Sri Mukesh Kumar, Sri Digvijay
Singh Yadav, Sri Pradip Kumar Srivastava,
Sri Lalendra Pratap Singh, Sri A.P. Singh,
Sri Satish Kumar Sharma and Sri Praful
Yadav, learned Standing Counsel for the
State.

2. This Bunch of writ petitions relates
to interpretation and application of Section
2 of the Act of 2021 for counting qualifying
service for the purpose of pension with
regard to work charge employees, daily
wager employees, adhoc appointees against
the post as well as Seasonal Collection
Amin. Since common issue is involved in
all the writ petitions with regard to
interpretation of Section 2 of Section 2021,
therefore, the same are being decided by
this common judgment.

Work-Charge Employees:

3. The petitioners are work charge
employees appointed between 1979 to 1988
and regularized in different departments
between 1994 to 2013. All the petitioners
are now retired. They claim entitlement of
pension after taking into account the
services rendered by them as work charge
employee.

In Writ-A No.6343 of 2020, claim
of the petitioner was rejected by impugned
order dated 28.1.2020 on the ground that
judgment in case of Prem Singh vs. State
of U.P. and others, (2019) 10 SCC 516 has
not attained finality;

In Writ-A No.7877 of 2022, the
petitioner has challenged the order passed
in the year 2022 without any specific date,
rejecting his claim on the ground that as per
the Ordinance issued on 5.3.2021, case of
the petitioner is not covered;

In Writ-A No.9 of 2023, under
challenge is the impugned order dated
11.11.2022 whereby claim of the petitioner
was rejected on the ground that his initial
appointment was on work charge post;

In Writ-A No.18054 of 2021,
challenge is made to the impugned order
dated 29.12.2020 by means of which claim
of the petitioners was rejected on the
ground that they are not a party to the case
of Prem Singh (supra); and

In Writ-A No.3662 of 2019,
petitioners have challenged the order dated
10.7.2018 whereby claim of the petitioners
was rejected on the ground that their services
were regularized on 21.1.2013 i.e. after old
pension scheme was abolished.

4. Learned counsels for the petitioners
have relied upon the case of Prem Singh
(supra) as well as judgment of this Court in
the cases of State of U.P. and others vs.
Mahendra Singh (Special Appeal Defective
No.1003 of 2020), decided on 4.2.2021; State
of U.P. and others vs. Bhanu Pratap
Sharma (Special Appeal No.97 of 2021)
decided on 9.6.2021; State of U.P. and others
vs. Bhanu Pratap (Special Appeal No.152 of
2021) decided on 14.7.2021 and the order
dated 11.7.2022 passed in the case of State of
U.P. and others vs. Bhanu Pratap (Special
Leave to Appeal (c) No.10381 of 2022,
which is rejected by the Supreme Court.

5. On the other hand, learned
Standing Counsel opposing the same,
2 All. Dr. Shyam Kumar Vs. State of U.P. & Anr.
81
submits that the judgment in case of Prem
Singh (supra) is passed on the basis of
Civil
Services
Regulations
(CSR
Regulations) as existed at that time. The
same stand superseded by the U.P.
Ordinance No.19 of 2020 (The U.P.
Qualifying Services for Pension and
Validation Ordinance, 2020) published in
extraordinary gazette of Government of
U.P. on 21.10.2020 followed by the U.P.
Qualifying
Service
for
Pension
and
Validation Act, 2021 (for short 'the Act of
2021'). As per Section 2 of the Act of 2021,
the term 'qualifying service' means services
rendered by an officer appointed on
temporary or permanent post in accordance
with the service Rules prescribed for the
post. Since the petitioners were not
appointed on any post, but were work
charge employees, hence, the said services
cannot be counted and, thus, they are not
entitled for pensionary benefits. Learned
Standing Counsel has placed reliance upon
a judgment and order dated 8.11.2021
passed by a Full Bench of this Court in the
case of Ram Das Yadav vs. State of U.P.
and others (Writ Petition No.25955 of
2017); as well as judgment of this Court in
case of Jang Pal vs. State of U.P. and
others (Specia Appeal No.240 of 2021)
decided on 16.5.2022; interim order dated
26.4.2022 in case of State of U.P. and
others vs. Gulam Sarver (Special Appeal
No.165 of 2022); State of U.P. and others
vs. Raj Bahadur Pastor, 2022(3) ADJ 5
(DB); and judgment and order dated
7.5.2022 passed in case of Kishun Dev
Ram vs. State of U.P. and others (Writ-A
No.38221 of 2011).

6. The Supreme Court in Prem Singh
case (supra) considered the applicability
and validity of U.P. Retirement Benefit
Rules, 1961 and CSR Regulations, which
barred payment of pension to persons
working in work charge establishment and
held:

"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
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
82 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
2 All. Dr. Shyam Kumar Vs. State of U.P. & Anr.
83
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
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."

Thus, the Supreme Court held
that since the State Government has
proceeded to take work on long term basis
from the work charge employees, without
there being a rational classification between
the work performed by such work charge
employees and the regular employees of
the State Government, the Rules are
required to be read down, as otherwise they
would be arbitrary and, thus, gave benefit
of the services rendered as work charge
employees in counting the period of
qualifying service for pensionary benefits.

7. Now, by the Act of 2021, the effect
of the aforesaid judgment of the Supreme
Court is attempted to be undone by the
State Government. It has come up with
Section 2, which provides:

"2.
Notwithstanding
anything
contained in any rule, regulation or
Government order for the purposes of
entitlement of pension to all officer,
"Qualifying Service" means the services
rendered by an officer appointed on a
temporary
or
permanent
post
in
84 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the provisions of the
service rules prescribed by the Government
for the post."

Thus, as per section 2 of the Act of
2021, if a person was not appointed on a
temporary or permanent post as per service
Rules, his services would not be qualifying
service for the purposes of pension. Law
with regard to the manner in which the
Legislature can nullify or modify the
impact of a judgment is settled since long.
Suffice is to refer to the case of Indian
Aluminium Co. and others vs. State of
Kerala and others (1996) 7 SCC 637. In
the said case, after considering the entire
law on subject, the Supreme Court in Para
56 of the judgment enumerates the
principles, which read:

"56. From a resume of the above
decisions the following principles would
emerge:

(1) The adjudication of the rights
of the parties is the essential judicial
function. Legislature has to lay down the
norms of conduct or rules which will
govern the parties and the transactions and
require the court to give effect to them;

(2) The Constitution delineated
delicate balance in the exercise of the
sovereign
power
by
the
legislature,
executive and judiciary;

(3) In a democracy governed by
rule of law, the legislature exercises the
power under Articles 245 and 246 and
other companion articles read with the
entries in the respective lists in the Seventh
Schedule to make the law which includes
power to amend the law.

(4) Courts in their concern and
endeavour to preserve judicial power
equally must be guarded to maintain the
delicate
balance
devised
by
the
Constitution between the three sovereign
functionaries. In order that rule of law
permeates to fulfil constitutional objectives
of establishing an egalitarian social order,
the respective sovereign functionaries need
free play in their joints so that the march of
social
progress
and
order
remains
unimpeded. The smooth balance built with
delicacy must always be maintained;

(5) In its anxiety to safeguard
judicial power, it is unnecessary to be
overzealous and conjure up incursion into
the judicial preserve invalidating the valid
law competently made;

(6) The court, therefore, needs to
carefully scan the law to find out: (a)
whether the vice pointed out by the court
and invalidity suffered by previous law is
cured complying with the legal and
constitutional requirements; (b) whether
the legislature has competence to validate
the law; (c) whether such validation is
consistent with the rights guaranteed in
Part III of the Constitution.

(7) The court does not have the
power to validate an invalid law or to
legalise impost oftax 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.

(8)
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 are 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
2 All. Dr. Shyam Kumar Vs. State of U.P. & Anr.
85
effect to retrospective legislation with a
deeming date or with effect from a
particular date. The legislature can change
the character of the tax or duty from
impermissible to permissible tax but the tax
or levy should answer such character and
the legislature is competent to recover the
invalid tax validating such a tax on
removing the invalid base for recovery from
the subject or render the recovery from the
State ineffectual. It is competent for the
legislature
to
enact
the
law
with
retrospective effect and authorise its
agencies to levy and collect the tax on that
basis, make the imposition of levy collected
and recovery of the tax made valid,
notwithstanding the declaration by the
court or the direction given for recovery
thereof.

(9) The consistent thread that
runs through all the decisions of this Court
is that the legislature cannot directly
overrule the decision or make a direction
as not binding on it but has power to make
the decision ineffective by removing the
base on which the decision was rendered,
consistent with the law of the Constitution
and the legislature must have competence
to do the same."

8. The law long settled is that the
Legislature can render judicial decision
ineffective by enacting valid law on the
topic within its legislative field by
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.

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
86 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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'.

11. The other case laws cited by
learned counsel for the petitioners as well
as by learned Standing Counsel, as noted
above, are not applicable in the facts and
circumstances of the present cases, as in
none of the above cited cases, interpretation
of Section 2 of the Act of 2021 is
considered.

12. In the light of aforesaid, since
Section 2 of the Act of 2021 also suffers
from the vice pointed out by the Supreme
Court in the case of Prem Singh (supra),
hence, to be brought out of arbitrariness, it
is read down and services rendered on
temporary or permanent post is read as
services
rendered
by
a
government
employee, be it of temporary or permanent
nature. Therefore, it is held that the
petitioners are also entitled for the benefit
of the judgment of Prem Singh (supra). All
the impugned orders are set aside.

Daily-wager:

13. The petitioners are appointed
between 1978 to 1992 as daily wagers in
different departments in State of U.P. They
all were later regularized between 2005 to
2012 on different posts.

In Writ-A No.32317 of 2019, the
petitioner has challenged the order dated
30.9.2019 by means of which claim of the
petitioner was rejected on the ground that
since his regularisation is after the old
pension scheme was abolished, therefore,
he is not entitled for any post-retiral
benefits;

In Writ-A Nos.5274 of 2019, 493
of 2023, 14750 of 2021 and 1020 of 2023,
2 All. Dr. Shyam Kumar Vs. State of U.P. & Anr.
87
the petitioners have prayed for mandamus
commanding the opposite parties to grant
them retiral benefits by counting their
services as a daily wager prior to their
regularization;

In Writ-A No.126 of 2023, the
petitioner has challenged the order dated
1.12.2022 by means of which claim of the
petitioner was rejected on the ground that
since his regularisation is after the old
pension scheme was abolished, therefore,
he is not entitled for any post-retiral
benefits;

In Writ-A No.21878 of 2020, the
petitioner has challenged the order dated
12.5.2020 by means of which claim of the
petitioner was rejected on the ground that
since his regularisation is after the old
pension scheme was abolished, therefore,
he is not entitled for any post-retiral
benefits;

In Writ-A No.2122 of 2022,
learned counsel for petitioner prays to
withdraw the writ petition on behalf of
petitioners no.8, 10, 12, 13 and 14 with
liberty to file fresh writ petition on their
behalf.

The permission is granted.

The writ petition is dismissed as
not pressed with regard to petitioner nos. 8,
10, 12, 13 and 14 only with the liberty as
prayed aforesaid.

Now the writ petition survives
only on behalf of petitioners no.1 to7, 9 and
11, who have challenged the impugned
order dated 17.12.2019 on the ground that
since
the
petitioners
were
initially
appointed as daily wagers, therefore, their
past services before regularization cannot
be counted for the purpose of post retiral
benefits;

In Writ-A No.5685 of 2022, is
filed by the petitioner challenging the
impugned order dated 18.01.2016, by
means of which petitioner was regularized
with immediate effect, while he claimed
that he may be regularized form the date of
his initial appointment.

In Writ-A No.8059 of 2019, the
petitioner has challenged the order dated
28.2.2019 by means of which claim of the
petitioner was rejected on the ground that
since his regularisation is after the old
pension scheme was abolished, therefore,
he is not entitled for any post-retiral
benefits;

In Writ-A No.1592 of 2021, claim
of the petitioner was rejected by impugned
order dated 27.5.2020 on the ground that
judgment in case of Prem Singh vs. State
of U.P. and others,
 (2019) 10 SCC 516 has not attained
finality; and

In Writ-A No.25891 of 2021, the
petitioner has challenged the order dated
23.9.2021 by means of which claim of the
petitioner was rejected on the ground that
since his regularisation is after the old
pension scheme was abolished, therefore,
he is not entitled for any post-retiral
benefits.

14. It is settled since long that daily
wager employees are entitled to pensionary
benefits counting their services from the
date of their initial appointment and not
from the date of their regularization.
Suffice would be to refer to the judgment in
cases of Hari Shankar Asopa vs. State of
U.P. and another, 1989(1) UPLBEC 501;
Yashwant Hari Katakkar vs. Union of
India and others, 1996 (7) SCC 113; and
Prem Singh (supra). In fact earlier they
were covered by Rule 2 of U.P. Retirement
Benefit Rules, 1961 and other Civil
Services Regulations.

15. Now learned Standing Counsel
submits that in view of Section 2 of the Act
of 2021, since petitioners were not
88 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed on a temporary or permanent
post initially, therefore, benefit of said
services cannot be granted to them.

16. The said aspect of the matter is
already discussed above at length. Section
2 of the Act of 2021 is already read down
and it is held that 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'.

17. In view thereof, the petitioners are
also covered by the aforesaid interpretation
of Section 2 of the Act of 2021 as given in
the present judgment. Orders impugned in
different writ petitions on the grounds
stated above are covered by the earlier
judgments as well as by findings given
above in this judgment and, hence,
petitioners are held to be entitled for
counting of their services rendered as daily
wagers
for
pensionary
benefits.
All
impugned orders are set aside.

Adhoc Employees:

18. In Writ-A Nos.8968 of 2022, 1127
of 2023, 816 of 2023, 2740 of 2022, 4859
of 2022, 6074 of 2020, 2581 of 2022, 5071
of 2022, 93 of 2023 and 1931 of 2022,
petitioner
has
prayed
for
mandamus
commanding the opposite parties to grant
him retiral benefits by counting his services
rendered on adhoc basis prior to his
regularisation;

In Writ-A Nos.3234 of 2022,
24316 of 2021, 22080 of 2021, 27977 of
2021, 26309 of 2021, 19227 of 2021,
29184 of 2019, 10079 of 2021, 26130 of
2021, 23027 of 2021, 43 of 2023, 20 of
2023, 6421 of 2020, 1360 of 2022, 20119
of 2021, 19931 of 2021, 27 of 2023 and 30
of 2023, petitioners have challenged the
impugned orders as in all of them, claims
of the petitioners were rejected on the
ground that their appointment is on adhoc
basis, therefore, they are not entitled for
any post-retiral benefits;

19. The very initial appointment
letters show that petitioners were appointed
against substantive posts on adhoc basis.
Since their appointment is against a
substantive post, hence, they are squarely
covered even by Section 2 of the Act of
2021 as it stands. Further, in view of
interpretation as given above to Section 2
of the Act of 2021 and it is held that the
services
performed
in
temporary
or
permanent nature need to be counted for
pensionary purposes, otherwise, it again
would be hit by the judgment of the
Supreme Court in case of Prem Singh
(supra), thus, there can be no dispute that
all the petitioners are are entitled for
counting of services rendered by them as
ad-hoc employees for pensionary purposes.

In view of above, all the
impugned orders are set aside.

Seasonal Collection Peon/ Amin.

20. The petitioners are appointed
between 1978 to 1988 against substantive
posts of seasonal collection peon and
seasonal collection amin . They all were
later regularized between 2007 to 2019 on
the
posts
of
Collection
Peons
and
Collection Amins.

In Writ-A No.9665 of 2019,
Learned counsel for the petitioner submits
that petitioner no.2 is not retired as yet.
Hence, his case is different from the present
bunch. Learned counsel for petitioner prays
to withdraw the present writ petition on
2 All. Dr. Shyam Kumar Vs. State of U.P. & Anr.
89
behalf of petitioner no.2 with liberty to file
fresh petition, as and when if required. The
prayer is allowed. The writ petition is
dismissed as not pressed on behalf of
petitioner no.2 with the aforesaid liberty.
Now the writ petition survives only on
behalf of petitioner no.1.

Claim of the petitioner no. 1 was
rejected
by
impugned
order
dated
11.02.2019
on
the
ground
that
his
appointment
was
for
seasonal
work
therefore he can not claim post retiral
benefits as being provided to regular
employees;

In Writ-A No.23115 of 2020 and
394 of 2023, the petitioner has prayed for
mandamus
commanding
the
opposite
parties to grant him retiral benefits by
counting
his
services
prior
to
his
regularisation on the post of seasonal
collection peon;

In Writ-A No.17032 of 2020,
challenge is made to the impugned order
dated 29.06.2020 by means of which claim
of the petitioners was rejected on the
ground that since his regularisation is after
the old pension scheme was abolished,
therefore, he is not entitled for any postretiral benefits; and

In Writ-A No.1089 of 2022,
petitioners have challenged the order dated
18.01.2022
whereby
claim
of
the
petitioners was rejected on the ground that
their appointment was for seasonal work
and not on a substantive regular post.

In Writ-A No. 945 of 2023, Claim
of the petitioner is rejected by impugned
order dated 26.11.2022 on the ground that
since his regularisation he has worked for
less than 10 years therefore he is not
entitled for any retiral benefits.

21. Law regarding counting of the
period of services rendered earlier as
Seasonal Collection Peon/Collection Amin
for calculation of post-retiral benefits is long
settled by a large number of judgments.
Suffice would be to refer to the judgment a
Division Bench judgment of this Court in the
case of Board of Revenue through its
Chairman: The District Magistrate and
UP-Zila Adhikari vs. Prasidh Narain
Upadhyay, 2006 (5) AWC 5194 (DB). The
said
judgment
is
followed
till
date.
Furthermore, Fundamental Rule 56 as it
stood amended by the U.P. Amendment Act
No.