# Jai Prakash Retired (Kar Samaharta) v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 619
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Writ-A No. 10405 of 2022
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-retired-kar-samaharta-v-state-of-u-p-ors-49986
- **Pages:** 7

## Headnote

A. Service Law - Pension - Retirement
Benefits
-
U.P.
Nagarpalika
NonCentralized Services Retirement Benefits
Regulation, 1984 (Rules of 1984) - U.P.
Qualifying
Service
for
Pension
and
Validation Act, 2021 - 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. (Para 7)

The facts of the case are that the petitioner was
appointed
as
daily
wage
employee
on
01.01.1989. He continued to serve on Class IV
Post as Clerk. He was treated as regular
employee and was regularized on 03.05.2011
and thereafter, he retired on 31.01.2020. (Para
2)

B. Words and Phrases - 'post' - Section 2 of
the Act of 2021 is 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'. (Para 7)

The present Rules of 1984 are parallel to the
Rules of St. 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 wage 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 services. Thus, the matter
is squarely covered by the law settled in case of
Prem Singh (Infra). (Para 8)

Respondent
no.3-Commissioner,
Gorakhpur
Mandal, Gorakhpur is directed to ensure regular
payment of pensionary and other benefits to the
petitioner under/Rules of 1984 by counting past
services rendered by petitioner before his
regularization for the purpose of calculating post
retiral benefits within a period of three months.
(Para 10)

Writ petition allowed and impugned order
dated 09.07.2020 is set aside. (E-4)

Precedent followed:

Dr. Shyam Kumar Vs St. of U.P. & ors., Writ-A
No. 8968 of 2022 (Para 7)

Present petition challenges the order
dated
09.07.2020,
whereby
the
respondent authority has refused to grant
him
pension
and
other
benefits
on
retirement which he claims to be entitled
of.

## Text

4 All. Jai Prakash Retired (Kar Samaharta) Vs. State of U.P. & Ors.
619
of the two appeals, are set aside. The
Contempt Applications pending before the
learned Single Judge are consigned to
records.
----------
(2023) 4 ILRA 619
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 10405 of 2022

Jai Prakash Retired (Kar Samaharta)
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pradip Kumar Srivastava

Counsel for the Respondents:
C.S.C., Sri Jai Prakash Gupta

A. Service Law - Pension - Retirement
Benefits
-
U.P.
Nagarpalika
NonCentralized Services Retirement Benefits
Regulation, 1984 (Rules of 1984) - U.P.
Qualifying
Service
for
Pension
and
Validation Act, 2021 - 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. (Para 7)

The facts of the case are that the petitioner was
appointed
as
daily
wage
employee
on
01.01.1989. He continued to serve on Class IV
Post as Clerk. He was treated as regular
employee and was regularized on 03.05.2011
and thereafter, he retired on 31.01.2020. (Para
2)

B. Words and Phrases - 'post' - Section 2 of
the Act of 2021 is 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'. (Para 7)

The present Rules of 1984 are parallel to the
Rules of St. 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 wage 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 services. Thus, the matter
is squarely covered by the law settled in case of
Prem Singh (Infra). (Para 8)

Respondent
no.3-Commissioner,
Gorakhpur
Mandal, Gorakhpur is directed to ensure regular
payment of pensionary and other benefits to the
petitioner under/Rules of 1984 by counting past
services rendered by petitioner before his
regularization for the purpose of calculating post
retiral benefits within a period of three months.
(Para 10)

Writ petition allowed and impugned order
dated 09.07.2020 is set aside. (E-4)

Precedent followed:

Dr. Shyam Kumar Vs St. of U.P. & ors., Writ-A
No. 8968 of 2022 (Para 7)

Present petition challenges the order
dated
09.07.2020,
whereby
the
respondent authority has refused to grant
him
pension
and
other
benefits
on
retirement which he claims to be entitled
of.

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

1. Heard counsel for the parties.

2. Petitioner has approached this
Court
challenging
the
order
dated
09.07.2020
whereby
the
respondent
authority has refused to grant him pension
620 INDIAN LAW REPORTS ALLAHABAD SERIES
and other benefits on retirement which he
claim to be entitled. The facts of the case
are that the petitioner was appointed as
daily wage employee on 01.01.1989. He
continued to serve on Class IV Post as
Clerk. He was treated as regular employee
and was regularized on 03.05.2011 and
thereafter, he retired on 31.01.2020.

3. Learned counsel for petitioner
submits that he is entitled for pension under
U.P. Nagarpalika Non-Centralized Services
Retirement
Benefits
Regulation,
1984
(Rules of 1984). Reference is made to Rule
2(m), which reads as follows:

"(m)"Qualifying service" means the
service which qualified for pension in
accordance with the provisions of Article
368 of the Civil Service Regulations, as
amended from time to time, excepting the
following:

(i) periods of temporary or officiating
service in a non-pensionable establishment
under the Municipal Board concerned;

(ii) periods of service in a workcharged establishment; and

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

Provided that period of continued,
temporary or officiating service under the
Municipal Board concerned shall count as
qualifying service if it is followed by
confirmation on the same post or any other
post without any interruption of 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."

4. 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 workcharged 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
4 All. Jai Prakash Retired (Kar Samaharta) Vs. State of U.P. & Ors.
621
in a pensionable establishment, it will not
constitute an interruption of service.

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 three 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
622 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
4 All. Jai Prakash Retired (Kar Samaharta) Vs. State of U.P. & Ors.
623
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
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."

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

6. 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).

7. 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
Nagarpalika.
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:

"....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
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.

......

22. In the aforesaid facts and
circumstances of the case, all the orders
impugned in the writ petitions are passed
either on the ground that they are covered
by the Ordinance/Act of 2021 or they were
not party in case of Prem Singh (supra) or
without considering the judgment of Prem
Singh (supra) and hence, the same are
squarely covered by the finding given
above. Therefore, the impugned orders
cannot stand and are set aside. However,
petitioners shall be entitled to past
pensionary benefits for last three years
only.

23. All the writ petitions are allowed."

8. The present Rules of 1984 are
parallel to the Rules of State Government
which have been read down by the
Supreme Court, being held in violation of
4 All. Kapil Kumar Dixit & Ors. Vs. State of U.P. & Ors.
625
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 wage 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 services. Thus, the
matter is squarely covered by the law settled
in case of Prem Singh (Supra).

9. Thus, the writ petition is allowed
and impugned order dated 09.07.2020 is set
aside.

10. Respondent no.3-Commissioner,
Gorakhpur Mandal, Gorakhpur is directed
to ensure regular payment of pensionary
and other benefits to the petitioner under
the Rules of 1984 by counting past services
rendered
by
petitioner
before
his
regularization for the purpose of calculating
post retiral benefits within a period of three
months.
----------
(2023) 4 ILRA 625
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 20960 of 2022
alongwith
Writ A No. 635 of 2023

Kapil Kumar Dixit & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri PrabhakarAwasthi, Sri Durvesh Kumar, Sri
Shikher Trivedi, Sri Vijai Shanker Tripathi, Sri
Vinod Shankar Tripathi
Counsel for the Respondents:
C.S.C.

Service Law- Constitution of India, 1950 -
Article 14, 16 & 226 - U.P. Police SubInspector and Inspector (Civil Police),
Rules, 2015-Rule 15(f)) -Writ Petition
seek to declare Rule 15(f) ultra vires of
Articles 14 and 16 of the Constitution of
India further direction has been sought to
the
St.-respondents
to
invite
the
petitioners for medical test against the
vacancy which could not be filled up as
some of the candidates were declared
medically unfit, and/ or, were absent-The
employer is at liberty to legislate and
provide the conditions of recruitment and
selection-Court would not substitute the
discretion of the employer until it is shown
that the Rule itself is inherently arbitrary to
be violative of Article 14-Mere absence of a
provision providing for waiting list would
not render the rule manifestly arbitrary to
make it contrary to the Constitution-HeldRule 15(f) of Rules, 2015 constitutionally
valid. (Para 2, 3, 37, 38, 44)

Petition dismissed. (E-15)

List of Cases cited:

1. Ajay Prakash Mishra & ors. Vs St. of U.P. &
ors. Special Appeal Defective No. 416 of 2021,
decided on 10.08.2021

2. St. of T.N. Vs P. Krishnamurthy (2006) 4 SCC
517

3. Cellular Operators Association of India & ors.
Vs Telecom Regulatory Authority Of India & ors.
(2016) 7 SCC 703

4. Indian Express Newspapers (Bombay) (P)
Ltd. Vs U.O.I. (1985) 1 SCC 641

5. Khoday Distilleries Ltd. & ors. Vs St. of
Karnataka & ors. (1996) 10 SCC 304

6. Sharma Transport Vs Government of A.P. &
ors. (2002) 2 SCC 188

7. Reeta Singh & ors. Vs St. of U.P. & ors. Writ-C
No. - 1715 of 2017, dated 02 February, 2018.