# Jaidev Singh v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1570
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-04
- **Case number:** Writ-A No. 5635 of 2023
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaidev-singh-v-state-of-u-p-ors-50141
- **Pages:** 8

## Headnote

Civil Law - Civil Services Regulation,
Article 368 - U.P. Palika (Centralized)
Services Retirement Benefit Rules, 1981
- Rule 2(10) - Uttar Pradesh Qualifying
Services for Pension and Validation Act,

## Text

1570 INDIAN LAW REPORTS ALLAHABAD SERIES
reasons given by the Director while passing
the order dated 17.08.2015 are not tenable.

31. The learned Single Judge has also
agreed with the interpretation of the
Government Order in question as was
sought to be given by the State Government
in the Department of Medical Education.
Hence, we do not find ourselves persuaded
to be in agreement with the judgment
rendered by learned Single Judge which is
under appeal before us.

32. The Special Appeal is thus
allowed.

33. The order dated 17.02.2022
passed by learned Single Judge in Writ-A
No. 2001877 of 2015 is hereby set aside.
The order dated 17.08.2015 passed by the
Director,
RML
Institute
and
the
Government Order dated 29.08.2014 issued
by
the
Stated
Government
in
the
Department of Medical Education are also
hereby quashed.

34. We further direct that the
appellant-petitioner shall be entitled to the
benefits of the Old Pension Scheme while
serving the RML Institute as well.

35. There will be no order as to costs.
----------
(2023) 5 ILRA 1570
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 5635 of 2023

Jaidev Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Gyan Prakash Ojha, Sri Santosh Yadav

Counsel for the Respondents:
C.S.C., Sri Shyam Mani Shukla

Civil Law - Civil Services Regulation,
Article 368 - U.P. Palika (Centralized)
Services Retirement Benefit Rules, 1981
- Rule 2(10) - Uttar Pradesh Qualifying
Services for Pension and Validation Act,
2021. Post-Retiral Benefits - Petitioner
was appointed as a daily wager on a
class III post as Clerk on 25.09.1990 in
Nagar Nigam. He was regularized on
03.01.2006 and retired on 30.06.2022.
Petitioner prayed for the grant of all
retiral benefits, including gratuity and
regular pension, by counting his past
services
rendered
before
his
regularization.
Matter
squarely
covered by the law settled in case of
Prem Singh and Dr. Shyam Kumar.
Court
directed
the
Mukhya
Nagar
Adhikari,
Nagar
Nigam,
to
ensure
regular payment of pensionary and
other retiral benefits to the petitioner
under the Rules of 1981, counting his
entire
service,
including
the
duty
performed as a daily wager employee
of the Nagar Nigam, within a period of
three months. (Para 9)

Allowed. (E-5)

List of Cases cited:

1. St. of U.P. & ors. Vs Bhanu Pratap Sharma,
Special Appeal No. 97 of 2021

2. Dr. Shyam Kumar Vs St. of U.P., Writ-A No.
8968 of 2022

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

4. The Nagar Ayukt Nagar Nigam Vs Devdatt
and 2 Others, Special Appeal Defective No. 482
of 2022

5. Shree Chamundi Mopeds Ltd. Vs Church of
South India Trust Association CSI Cinod
Secretariat, Madras, 1992 (3) SCC 1
5 All. Jaidev Singh Vs. State of U.P. & Ors.
1571
(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Petitioner has approached this
Court praying for writ of Mandamus
commanding the respondents to give all the
retiral benefits including gratuity and
regular
pension
under
U.P.
Palika
(Centralized) Services Retirement Benefit
Rules, 1981 (herein after referred to as
Rules of 1981) by counting his past
services rendered before his regularization.
Petitioner was appointed as a daily wager
on class III post as Clerk on 25.09.1990. He
got regularized on 03.01.2006 and retired
on 30.06.2022.

2. Learned counsel for the petitioner
submits that the petitioner is entitled for
post retiral benefits as per Rule 2(10) of the
Rules of 1981 which provides retiral
benefits as per Article 368 of Civil Services
Regulation. Rule 2(10) of Rules of 1981
reads as:

"(10) "Qualifying service" means
service which qualifies 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
any
Municipal
Corporation or Municipal Council;

(ii) periods of service in workcharted establishment; and

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

Provided that period of continued
temporary or officiating service under any
Municipal
corporation
or
Municipal
Council shall count as qualifying service if
it is followed by confirmation of 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 period of
temporary service and permanent service
in a pensionable establishment, it will not
constitute an interruption of service."

3. Learned counsel for the petitioner
places reliance upon the judgment of Division
Bench of this Court in Special Appeal No.97
of 2021 (State of U.P. and Others Vs. Bhanu
Pratap Sharma), judgment of a Single Judge
bench in the case of Writ-A No.8968 of 2022
(Dr. Shyam Kumar Vs. State Of U.P.) and a
judgment of three Judges Bench of Supreme
Court in case of Prem Singh vs. State of U.P.
and others, (2019) 10 SCC 516 which
considered entitlement for pension and read
down provisions of Uttar Pradesh Retirement
Benefits Rules, 1961 and the Civil Services
Regulation. The relevant paragraphs of the
judgment in case of Prem Singh (Supra)
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
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
5 All. Jaidev Singh Vs. State of U.P. & Ors.
1573
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 regularized. 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
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
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
5 All. Jaidev Singh Vs. State of U.P. & Ors.
1575
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."

4. 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 petitioner herein should also
be extended the benefit of the law settled in
the case of Prem Singh (Supra).

5. Shri Shyam Mani Shukla, learned
counsel for respondent Nigam opposes the
submissions made by counsel for petitioner.
He submits that the pensionary benefits are
now regulated as per the Uttar Pradesh
Qualifying Services for Pension and
Validation Ordinance, 2020 (later replaced
by Uttar Pradesh Qualifying Services for
Pension and Validation Act, 2021), which
excludes
services
rendered
before
regularization from the definition of
'Qualifying Services' for pension. He has
placed reliance on interim order dated
21.12.2022 of this Court in Special Appeal
Defective No.482 of 2022 (The Nagar
Ayukt Nagar Nigam Vs. Devdatt and 2
others) arising out of judgment and order
dated 20.04.2022 passed in Writ A No.5082
of 2022. The relevant portion of the
aforesaid judgment reads as:

"In Re:- Appeal

The contention of the learned
counsel for the appellant is that the learned
Single Judge by the impugned judgment
and order dated 20.04.2022 has directed
consideration of the claim of the petitionerrespondent in light of the decisions of the
Apex Court in Prem Singh's case and
Division Bench decision in the case of
Chetram. It has been submitted that there
are several subsequent developments which
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
could non suit the claim of the petitionerrespondent and even the matter is engaging
attention of the Apex Court in Special
Leave to Appeal (C) No.5859 of 2022,
arising out of judgment of this Court dated
24.08.2021 in Writ-A No.4224 of 2021,
wherein an interim order has been passed
thereby staying the contempt proceedings.

The
matter
requires
consideration.

Learned
counsel
for
the
petitioner-respondent prays for and is
allowed three weeks time to file counter
affidavit.

List this matter on 18th January,
2023.

Till the next date of listing, the
effect and operation of the impugned
judgment and order dated 20.04.2022 in
Writ-A No.5082 of 2022, shall remain
stayed."

6. The aforesaid order passed by
Division Bench does not in any manner
disturbs any settled law or settles a new
law. Suffice would be to refer to the
judgment of the Supreme Court in case of
Shree Chamundi Mopeds Ltd. Vs.
Church of South India Trust Association
CSI Cinod Secretariat, Madras 1992 (3)
SCC 1 which clarifies that an interim order
does not in any manner impact the law
settled by a Court.

7. Judgment in the case of Bhanu
Pratap (supra) relied upon by the counsel
for the petitioner does not consider the
interpretation of 'qualifying services' for the
purpose of pension as per the U.P.
Qualifying Services for Pension and
Validation Ordinance, 2020 (now Act of
2021) are not interpreted.

8. In Writ-A No.8968 of 2022 (Dr.
Shyam Kumar Vs. State Of U.P.) this
Court has interpreted the word 'post' used
in Section 2 of the Act of 2021, be it
temporary or permanent, and read it down
as 'services rendered by an employee, be it
of
temporary
or
permanent
nature'.
Relevant
paragraph
of
the
aforesaid
judgment reads:

"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'.
5 All. Chairman & Managing Director, Central Bank of India, Mumbai Vs. Vijay Agarwal
1577

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."

9. The present Rules of 1981 are
parallel to the Rules of State Government
which have been read down by the
Supreme Court in the case of Prem Singh
(supra), being held violative of Article 14
of the Constitution of India, as they create
an artificial categorization of similarly
situated employees. In the present case also
an artificial classification is created as
admittedly, as the daily wager employees
perform the same duties as the regular
employees and are throughout treated as
the regular employee. They were also
regularized in continuation of their daily
wage services. Thus, the matter is squarely
covered by the law settled in case of Prem
Singh (Supra) and Dr. Shyam Kumar
(supra).

10. Hence, the writ petition is
allowed.

11. Respondent no.2-Mukhya Nagar
Adhikari, Nagar Nigam, Bareilly is directed
to ensure regular payment of pensionary
and other retiral benefits to the petitioner
under the Rules of 1981, counting their
entire service including the duty performed
as daily wager employee of the Nagar
Nigam within a period of three months.
----------
(2023) 5 ILRA 1577
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

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

Special Appeal No. 344 of 2021

Chairman & Managing Director, Central
Bank Of India, Mumbai ....Appellant
Versus
Vijay Agarwal ...Respondent

Counsel for the Appellant:
Sri Vishnu Pratap, Sri Vijay Kumar

Counsel for the Respondent:
Sri Ajay Rajendra

Civil Law - Service Matter - Back wages -
When dismissal order quashed on ground
of quantum of punishment and not on
merit - In the instant case the employee
was out of service pursuant to order of
dismissal
dated
04.08.2006
until
his
reinstatement on 24.08.2013. Aggrieved
by the dismissal order, the employee filed
a writ petition, which came to be allowed
only on the quantum of punishment. Writ
Court was of the opinion that the
punishment
imposed
was
not
commensurate with the guilt. Termination
of the employee was not held to be
wrongful by the writ Court. Rather, the
writ Court was of the opinion that a lesser
punishment would suffice, having regard
to
the
guilt
of
the
employee.
The
employee nowhere pleaded that he was
not gainfully employed or employed on
lower
wages
during
the
period
of
dismissal of service. Held: It cannot be
said that the guilt of the employee stood
wiped off; rather, reinstatement was
directed
as
a
consequence
of
the
imposition of a lesser punishment. The
employee would not be entitled to back
wages for the period he has not performed