# Jai Prakash Tripathi v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 1127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Writ-A No. 890 of 2022
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-tripathi-v-state-of-u-p-ors-49806
- **Pages:** 8

## Headnote

Law
-
U.P.
Development
Authorities
Non-Centralized
Services
retirement of Rules, 2011 - Rule 2(h), (i) -
Constitution of India, 1950 - Article 14 -
Pension - Petitioner was appointed as
work charge employee on 07.12.1987 - He
continued to serve on Class III Post as
Clerk - Treated as regular employee,
regularized by order dated 24.12.2010, he
retired
on
30.09.2016
-
Respondent
authority
has
refused
to
grant
him
pension, other benefits on retirement -
Held, Rules of 2011 are parallel to Rules of
St. Government, read down by Supreme
Court, being held in violation of Article 14,
as they create an artificial categorization
of similarly situated employees - In the
present case, an artificial classification is
created as admitted, as the work charge
employees perform the same duties as the
regular employees, throughout treated as
regular employee - They were regularized
in continuation of their work charge
services - Hence, direction to Respondent
authority to ensure regular payment of
pensionary, other benefits to petitioner,
treating
their
entire
service
to
be
performed
as
regular
employee
of
Development Authority within a period of
three months, back pension shall be paid
for the last three years only. (Para 2, 3, 8,
10)
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ petition allowed. (E-13)

List of Cases cited:

## Text

4 All. Jai Prakash Tripathi Vs. State of U.P. & Ors.
1127
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

20. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

21. In view of the above, sentence
undergone by accused-appellant, Aziz,
would be sufficient as the incident is of the
year 1988 and appeal is of the year 1991.
The accused-appellant, Aziz, in fact be set
free forthwith if he is not wanted in any
other case.

22. In view of the above, the appeal is
partly allowed. Judgment and order dated
14.02.1991
passed
by
the
learned
Additional Sessions Judge, Meerut shall
stand modified to the aforesaid extent.
Record be sent back to the Court below
forthwith.

23. A sum of Rs.15,000/- be paid to
Sri Sukhbir Singh, learned amicus curiae
appearing in this matter for Aziz by the
High Court Legal Services Committee.
----------
(2023) 4 ILRA 1127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 890 of 2022

Jai Prakash Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhagwan Dutt Pandey

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar, Sri K.R. Singh

Service
Law
-
U.P.
Development
Authorities
Non-Centralized
Services
retirement of Rules, 2011 - Rule 2(h), (i) -
Constitution of India, 1950 - Article 14 -
Pension - Petitioner was appointed as
work charge employee on 07.12.1987 - He
continued to serve on Class III Post as
Clerk - Treated as regular employee,
regularized by order dated 24.12.2010, he
retired
on
30.09.2016
-
Respondent
authority
has
refused
to
grant
him
pension, other benefits on retirement -
Held, Rules of 2011 are parallel to Rules of
St. Government, read down by Supreme
Court, being held in violation of Article 14,
as they create an artificial categorization
of similarly situated employees - In the
present case, an artificial classification is
created as admitted, as the work charge
employees perform the same duties as the
regular employees, throughout treated as
regular employee - They were regularized
in continuation of their work charge
services - Hence, direction to Respondent
authority to ensure regular payment of
pensionary, other benefits to petitioner,
treating
their
entire
service
to
be
performed
as
regular
employee
of
Development Authority within a period of
three months, back pension shall be paid
for the last three years only. (Para 2, 3, 8,
10)
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ petition allowed. (E-13)

List of Cases cited:

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

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

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

1. Heard Shri Bhagwan Dutt Pandey,
learned counsel for petitioner, Shri K.R.
Singh, Advocate appearing for respondent
no.3 and 4 and learned Standing Counsel
for the State.

2. Petitioner has approached this Court
challenging the order dated 16.10.2021
whereby the respondent authority has refused
to grant him pension and other benefits on
retirement which he claim to be entitled. The
facts of the case are that the petitioner was
appointed as work charge employee on
07.12.1987. He continued to serve on Class
III Post as Clerk. He was treated as regular
employee and was regularized by order dated
24.12.2010 and thereafter, he retired on
30.09.2016.

3. Learned counsel for petitioner
submits that he is entitled for pension under
U.P.
Development
Authorities
NonCentralized Services retirement of Rules,
2011(Rules of 2011). Reference is made to
Rule 2(h) to (i) which reads as follows:

"(h) "Pensionable post" means a
post which fulfills the following three
conditions, namely-

(i)the post is in any cadre of the
Uttar Pradesh Development Authorities NonCentralized Services

(ii)the employment is substantive
and permanent, and

(iii) the service is paid by any
Authority.

(i)"Qualifying service" means the
service of a member of service which
conforms to the following conditions :-

(i) The service must be under an
Authority.

(ii) The employment must be
substantive /regular / permanent.

(iii) The service must be paid by
an Authority excluding the following
periods of:

(i)
temporary
or
officiating
service in a non-pensionable establishment
under any Authority.

(ii) service in a work charged
establishment, and

(iii) service in a post paid from
contingencles:

Provided that the service of a
member of service does not qualify for
pension and gratuity, except compensation
gratuity, until he has completed twenty
years of age.

Provided further that period of
continued, temporary or officiating service
under any Improvement Trust, Authority,
Palika Board, Nigam, Central or State
Government 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 but shall
not count towards qualifying service.

4. Further submission is that similar
rules prevailed with regard to employees of
4 All. Jai Prakash Tripathi Vs. State of U.P. & Ors.
1129
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
non-pensionable
establishment
workcharged 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.

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 workcharged 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
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
4 All. Jai Prakash Tripathi Vs. State of U.P. & Ors.
1131
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
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
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

5. 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
be extended the benefit of the law settled in
the case of Prem Singh (Supra).

6.

Learned
counsel
for
the
Development
Authority
and
learned
standing counsel strongly opposed the
submissions of the petitioner. Reliance is
placed upon the judgment of this court
dated 08.11.2021 in writ petition SS
no.259155 of 2017 (Ram Das Yadav Vs.
State of U.P.); Judgment dated 27.01.2022
passed in Special Appeal No.21 of 2022
(State of U.P. and Others Vs. Raj Bahadur
Bhaskar);
judgment
and order
dated
28.01.2003 passed in Special Appeal
defective No.31 of 2023 (State of U.P. Vs.
Mohd. Sarif Khan and another); and
judgment and order dated 14.02.2013
passed in Special Appeal No.89 of 2022
(State of U.P. and 3 others Vs. Lalan).

7. All the four judgments relied upon
by the counsel for respondents pertains to
Ordinance of 2020 followed by Act of
2021. 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 Development Authority.
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
4 All. Jai Prakash Tripathi Vs. State of U.P. & Ors.
1133
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
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
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
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'."

8. Therefore, none of the aforesaid
judgment is applicable to the facts of the
present case. The present Rules of 2011 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 work charge
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
work charge 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 16.10.2021 is set
aside.

10. Respondent no.3-Vice Chairman,
Gorakhpur
Development
Authority,
Gorakhpur is directed to ensure regular
payment of pensionary and other benefits
to the petitioner under the Rules of 2011,
treating their entire service to be performed
as regular employee of the Development
Authority within a period of three months.
However, back pension shall be paid for
the last three years only.
----------
(2023) 4 ILRA 1134
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2013

BEFORE
THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 9143 of 2013

Constable No. 405 Anjani Kumar Pandey
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Raj Najth Pandey, Sri I.K. Singh, Sri Vinod
Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Indresh Kumar Singh

Civil Law - Service Matter - Disciplinary
Proceeding - When the enquiry report is
submitted,
any
recommendation
of
punishment is not permissible - Such a
recommendation directly interferes with
the power of the disciplinary authority
(Para 4, 5)
Allowed. (E-5)
List of Cases cited:
1. Shiv Raj Singh Vs St. of U.P. & ors. CMWP
No. 2230 of 2014 dt 28.3.2018

2. Yashpal Singh Vs St. of U.P. & ors. Writ-A No.
23402 of 2014 dt 23.4.2014

3. Himachal Pradesh St. Electricity Board Ltd.Vs
Mahesh Dahiya, (2017) 1 SCC 768

4. Allahabad Bank Vs Prem Narain Pande & ors.
(1995) 6 SCC 634

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

1. Heard Shri Vinod Kumar Singh,
learned counsel for the petitioner and Shri
Girijesh Tripathi, learned standing counsel
for respondents.

2. The case of the petitioner is that
while submitting the Enquiry report which