# Munna v. State Of U.P. & Ors

- **Citation:** (2016) 4 ILRA 726
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-04
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-v-state-of-u-p-ors-43681
- **Pages:** 6

## Headnote

Qualifying service - Pension - Article 14 - Classification between regular recruitment and daily wagers -
Regularisation - Backdoor entry - Condition of service - Recruitment dehors rules - Distinction between
substantive appointment and daily wage employment - No equivalence - Challenge to Regulation 370 - Not
maintainable.

This writ petition has come to be filed after about two years from the date of petitioner's retirement and that
too under the garb of challenging the validity of Regulation 370, which is clearly an afterthought.The
petitioner once having accepted his regularisation by means of order dated 19.6.2007, cannot now turnaround
and claim any benefit which he otherwise may not be entitled to under the statutory rules.Testing of an
argument against the validity of Regulation 370 in the present case is more or less academic, yet it cannot be
ignored for the reason that the petitioner has raised a challenge on the anvil of Article 14 of the Constitution
of India.(para 5)

The benefit of pension is a condition of service.It is well settled that the conditions of recruitment cannot be
relaxed and recruitment resorted to dehors the statutory rules is a nullity.A daily wage employee, in our
considered opinion, cannot be equated with a regularly selected person.Once the classification in the matter
of recruitment is recognised distinguishably, any challenge to a provision which grants protection of pension
to the requisite length of substantive service alone, would be misconceived and contrary to the spirit of Article
16 of the Constitution of India. For achieving the goal of Article 16 of the Constitution of India, it is essential
to draw such a distinction and the same would not impinge upon any fundamental right available to the
petitioner under Article 14 of the Constitution of India, as such, challenge to the validity of Regulation 370
fails.(para 6)

Held: (Para 7-9) The petitioner in the instant case has not offered any justification as to how a daily wage
employee can be equated with the employees who are recruited in service by following the stringent process
of recruitment. The services rendered by a regular employee for that matter can neither be equalised in terms
of financial implications nor treated at par with the services of a daily wage employee unless the rules so
4 All. Munna Vs State Of U.P. & Ors.

727
permit. Now coming to the judgement placed reliance upon by the petitioner, suffice it to say that the case of
the petitioner is governed under a different set of rules. The petitioner has also not laid any foundation for
establishing equivalence of his daily wage services to be at par with the services of a regularly recruited
confirmed employee. Even the right to hold the post prior to the date of his regularisation in a substantive
capacity is not established or construed in the light of any statutory rule; and it is also not made out as to
how payment made to the petitioner out of contingencies may be treated as regular salary. In the facts and
circumstances of the case, we would not like to go into the aspect of drawing equivalence between the
services rendered by the petitioner as daily wage employee to be taken at par with the services of a regular
employee, and the authority of granting any such equivalence lies purely within the domain of the employer
alone. The petitioner may be well advised to take up the matter with the employer for any such benevolent
benefit which we do not find to be within the scope of existing rules. It is well settled that a plea which is
unfounded deserves to be rejected, however, we leave it open to the employer to come out with any such
beneficial scheme as may govern the cases of the like nature. In view of above, the writ petition fails and is
hereby dismissed.

Case Law discussed:

## Text

726 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No.- 6116 Of 2016

Munna ...Petitioner
 Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Arvind Kumar Vishwakarma, Raj Kumar Singh

Counsel for the Respondents:
C.S.C, Shailendra Singh Chauhan

U.P. Civil Service Regulations - Regulation 370 - Daily wage service - Work-charged establishment -
Qualifying service - Pension - Article 14 - Classification between regular recruitment and daily wagers -
Regularisation - Backdoor entry - Condition of service - Recruitment dehors rules - Distinction between
substantive appointment and daily wage employment - No equivalence - Challenge to Regulation 370 - Not
maintainable.

This writ petition has come to be filed after about two years from the date of petitioner's retirement and that
too under the garb of challenging the validity of Regulation 370, which is clearly an afterthought.The
petitioner once having accepted his regularisation by means of order dated 19.6.2007, cannot now turnaround
and claim any benefit which he otherwise may not be entitled to under the statutory rules.Testing of an
argument against the validity of Regulation 370 in the present case is more or less academic, yet it cannot be
ignored for the reason that the petitioner has raised a challenge on the anvil of Article 14 of the Constitution
of India.(para 5)

The benefit of pension is a condition of service.It is well settled that the conditions of recruitment cannot be
relaxed and recruitment resorted to dehors the statutory rules is a nullity.A daily wage employee, in our
considered opinion, cannot be equated with a regularly selected person.Once the classification in the matter
of recruitment is recognised distinguishably, any challenge to a provision which grants protection of pension
to the requisite length of substantive service alone, would be misconceived and contrary to the spirit of Article
16 of the Constitution of India. For achieving the goal of Article 16 of the Constitution of India, it is essential
to draw such a distinction and the same would not impinge upon any fundamental right available to the
petitioner under Article 14 of the Constitution of India, as such, challenge to the validity of Regulation 370
fails.(para 6)

Held: (Para 7-9) The petitioner in the instant case has not offered any justification as to how a daily wage
employee can be equated with the employees who are recruited in service by following the stringent process
of recruitment. The services rendered by a regular employee for that matter can neither be equalised in terms
of financial implications nor treated at par with the services of a daily wage employee unless the rules so
4 All. Munna Vs State Of U.P. & Ors.

727
permit. Now coming to the judgement placed reliance upon by the petitioner, suffice it to say that the case of
the petitioner is governed under a different set of rules. The petitioner has also not laid any foundation for
establishing equivalence of his daily wage services to be at par with the services of a regularly recruited
confirmed employee. Even the right to hold the post prior to the date of his regularisation in a substantive
capacity is not established or construed in the light of any statutory rule; and it is also not made out as to
how payment made to the petitioner out of contingencies may be treated as regular salary. In the facts and
circumstances of the case, we would not like to go into the aspect of drawing equivalence between the
services rendered by the petitioner as daily wage employee to be taken at par with the services of a regular
employee, and the authority of granting any such equivalence lies purely within the domain of the employer
alone. The petitioner may be well advised to take up the matter with the employer for any such benevolent
benefit which we do not find to be within the scope of existing rules. It is well settled that a plea which is
unfounded deserves to be rejected, however, we leave it open to the employer to come out with any such
beneficial scheme as may govern the cases of the like nature. In view of above, the writ petition fails and is
hereby dismissed.

Case Law discussed:

1. Narata Singh - Distinguished; statutory background different and not applicable. (Para 2)
2. Jai Prakash - Declared as laying down the correct position in law regarding exclusion of work-charged
service. (Para 2)
3. Navrang Lal Srivastava - Followed as correct declaration of law. (Para 2)
4. Ram Nagina - Affirmed as correct view on qualifying service. (Para 2)
5. Panchu - Overruled by the Full Bench. (Para 2)
6. Dakshin Haryana Bijli Vitran Nigam & Others v. Bachan Singh - Cited but held inapplicable as it arose from
Punjab & Haryana High Court judgment based on Kesar Chand. (Para 2)
7. Amarkant Rai v. State of Bihar & Others - Concerned regularisation; held to have no relevance to the
issue. (Para 2)
8. Secretary, Minor Irrigation Deptt. & R.E.S. v. Narendra Kumar Tripathi - Concerned counting of ad hoc
service for seniority; held irrelevant. (Para 2)
9. State of Karnataka v. Uma Devi (2006) 4 SCC 1(para 6)

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Attau Rahman Masoodi, J.)

1. This writ petition seeks to challenge the validity of Regulation 370 (I) and (II) of the
U.P. Civil Service Regulations and a further claim for the computation of past daily wage services
has been made so as to qualify the minimum requirement of 10 years' service for the purpose of
payment of pension. In so far as the validity of Regulation 370 is concerned, it is to be noted that
the same has been questioned on the touchstone of Article 14 of the Constitution of India, however,
the plea has not been dealt with in the writ petition on the strength of any cogent reasoning or
justification except by making a reference to the Full Bench judgement rendered by Punjab &
Haryana High Court, reported in AIR 1988 P&H 265.

2. At the outset we may note the position of law and the view expressed in a Full Bench
judgement of this Court rendered in Writ-A No. 60352 of 2015 as regards the computation of past
728 INDIAN LAW REPORTS ALLAHABAD SERIES
services rendered by an employee in a work charge establishment and the opinion so expressed for
ready reference may be extracted as under:

"We accordingly conclude that the judgments of this Court which proceeded to
follow Narata Singh failed to bear in mind the distinguishing features of the statutory regime in the
backdrop of which it came to be delivered. As noted above, Rule 3.17(ii) of the Punjab Civil
Service Rules had been struck down. The absence of Rule 3.17(ii) from the statute book formed the
bedrock upon which Narata Singh was decided. Significantly,

Regulation 370 continues to govern the field and in clear and unambiguous terms
provides that the period of service rendered in a work charged establishment is liable to be
excluded while computing qualifying service.

We therefore hold that the period of service spent in a work charged establishment
is not liable to be countenanced for the purposes of computing qualifying service. The law in this
regard stands correctly declared and elucidated in Jai Prakash, Navrang Lal Srivastava and Ram
Nagina. The decision in Panchu and the other judgments of this Court which have followed the line
of reasoning adopted therein shall accordingly stand overruled.

Before concluding, we may only refer to three judgments cited before us in support
of the contention that the period of service rendered in a work-charged establishment was liable to
be counted while computing qualifying service. These were (a) Dakshin Haryana Bijli Vitran
Nigam & Others Vs. Bachan Singh 25; (b) Amarkant Rai Vs. State of Bihar & Others 26; and (c)
Secretary, Minor Irrigation Deptt. & R.E.S. Vs. Narendra Kumar Tripathi 27. Dakshin Haryana
Bijli Vitran Nigam was a matter which arose from a judgment rendered by the Punjab & Haryana
High Court and was again based upon the judgment rendered by the Full Bench of that High Court
in Kesar Chand. Amarkant Rai dealt with the regularization of the appellant who was working on
daily wages. It obviously has no relevance to the issue which falls for our consideration. Similarly,
Narendra Kumar Tripathi was dealing with an issue as to whether the period of service as
rendered on ad hoc basis was liable to be counted for the purposes of seniority. This judgment too
has no application to the issue which stands referred to this Full Bench. We accordingly answer the
reference by holding that the period of service spent by a person in a work charged establishment
is not liable to be counted for the purposes of computing qualifying service. Regulation 370 of the
Civil Service Regulations continues to govern and hold the field. The factual backdrop in which
Narata Singh came to be rendered escaped the attention of the various Division Benches which
followed it despite the existence of the unambiguous command of Regulation 370. Jai Prakash and
the subsequent pronouncements following it and referred to above represent the correct position in
law. The matter shall now be placed before the learned Single Judge for a decision on the writ
petition in the light of what has been held above."

3. Once the services rendered in a work charge establishment do not inure to the advantage
of an employee for its computation towards pensionery benefits, the present case of the petitioner
who was initially employed as a daily wage employee and came to be regularised by order dated
4 All. Munna Vs State Of U.P. & Ors.

729
19.6.2007, in our view, cannot claim the benefit of daily wage services contrary to what has been
opined in the Full Bench decision mentioned above. To understand the controversy we may refer to
the relevant regulations i.e. Regulation 361, 368 and 370 of the U.P.Civil Service Regulations and
the same are reproduced below:

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

(A) The service must be under Government

(B) The employment must be substantive and permanent.

(C) The service must be paid by Government."

"368 - The 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 interruptions 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 form contingencies."

4. In the context of statutory rules noted above, firstly, it is to be understood as to what is
the true import of the rules having regard to the various modes in which appointments are made and
secondly, as to which mode of appointment would entitle an employee for the payment of pension
within the scope of Regulation 370. Thirdly, whether classification set out in Regulation 370 is
violative of Article 14 of the Constitution of India or not requires to be dealt with by reading the
entire scheme of the relevant rules and regulations.

5. The petitioner was initially engaged on daily wages on 7.11.1988. The petitioner, as per
the government orders issued on 17.2.1999 and 19.2.1990, which provided for 3 years experience
as daily wager coupled with 240 days service in each preceding year as on 11.10.1989, was not
eligible to be considered for regularisation. He has also not laid any such claim for being
considered to be regularised until the year 2007 when his services came to be regularised by order
dated 19.6.2007. After regularisation in service by means of the order dated 19.6.2007, the
petitioner having accepted the same has served the Lucknow Nagar Nigam in the said capacity till
attaining the age of superannuation on 23.11.2014. This writ petition has come to be filed after
about two years from the date of petitioner's retirement and that too under the garb of challenging
730 INDIAN LAW REPORTS ALLAHABAD SERIES
the validity of Regulation 370, which is clearly an afterthought and law may also not support the
contention raised by the petitioner for the reason that the petitioner once having accepted his
regularisation by means of order dated 19.6.2007, cannot now turnaround and claim any benefit
which he otherwise may not be entitled to under the statutory rules. Testing of an argument against
the validity of Regulation 370 in the present case is more or less academic, yet it cannot be ignored
for the reason that the petitioner has raised a challenge on the anvil of Article 14 of the Constitution
of India.

6. The benefit of pension is a condition of service. It is clear from the scheme of
regulations that an employee would qualify for pension provided he meets the requirements
envisaged under the Civil Service Regulations. It is well settled that the conditions of recruitment
cannot be relaxed and recruitment resorted to dehors the statutory rules is a nullity. The
authoritative decision in this regard rendered by the apex court in case of State of Karnataka v.
Uma Devi (2006) 4 SCC 1 lays down the law. When we analyze the petitioner's argument from this
standpoint, a daily wage employee, in our considered opinion, cannot be equated with a regularly
selected person. The apex court in a catena of judgements has spelt out the distinction, therefore,
the classification based on the recruitment by following due procedure under the rules and through
backdoor entry is well recognised. Once the classification in the matter of recruitment is recognised
distinguishably, any challenge to a provision which grants protection of pension to the requisite
length of substantive service alone, would be misconceived and contrary to the spirit of Article 16
of the Constitution of India. We may safely observe that any challenge to the validity of Regulation
370 which leads to diminish the distinction between the valid recruitment as per rules and backdoor
entry is clearly an attempt to equate two unequal and distinguishable situations which have rightly
been classified under Regulation 370. For achieving the goal of Article 16 of the Constitution of
India, it is essential to draw such a distinction and the same would not impinge upon any
fundamental right available to the petitioner under Article 14 of the Constitution of India, as such,
challenge to the validity of Regulation 370 fails.

7. The petitioner in the instant case has not offered any justification as to how a daily wage
employee can be equated with the employees who are recruited in service by following the
stringent process of recruitment. The services rendered by a regular employee for that matter can
neither be equalised in terms of financial implications nor treated at par with the services of a daily
wage employee unless the rules so permit. Now coming to the judgement placed reliance upon by
the petitioner, suffice it to say that the case of the petitioner is governed under a different set of
rules. The petitioner has also not laid any foundation for establishing equivalence of his daily wage
services to be at par with the services of a regularly recruited confirmed employee. Even the right
to hold the post prior to the date of his regularisation in a substantive capacity is not established or
construed in the light of any statutory rule; and it is also not made out as to how payment made to
the petitioner out of contingencies may be treated as regular salary.

8. In the facts and circumstances of the case, we would not like to go into the aspect of
drawing equivalence between the services rendered by the petitioner as daily wage employee to be
taken at par with the services of a regular employee, and the authority of granting any such
4 All. Lakshya Kumar Singh Vs Union Of India & Ors.

731
 equivalence lies purely within the domain of the employer alone. The petitioner may be
well advised to take up the matter with the employer for any such benevolent benefit which we do
not find to be within the scope of existing rules. It is well settled that a plea which is unfounded
deserves to be rejected, however, we leave it open to the employer to come out with any such
beneficial scheme as may govern the cases of the like nature.

9. In view of above, the writ petition fails and is hereby dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2016

BEFORE

THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.

Public Interest Litigation (PIL) No.- 6973 Of 2016

Lakshya Kumar Singh ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Shri Anand Mani Tripathi

Counsel for the Respondents:
C.S.C., A.S.G.I., Shri Neeraj Tiwari, Shri Rijwan Ali Akhtar

Facts and background - Factual matrix and origin of PIL- The Court records facts about petitioner's
daughter's UPSEE‐2015 rank, allotment, deposit of Rs.15,000/-, withdrawal before admission, complaint, UGC
letter, and University's stand about the confirmation fee and counselling mechanism.(Paras 1,2,3)

University's justification for non‐refund-- Counselling process and nature of confirmation fee- Held that
Rs.15,000/- is a non‐refundable confirmation fee, adjusted against annual fee, meant to ensure serious
participation in counselling and accurate calculation of vacant seats; amount is transmitted to colleges and
remaining balance is used for Government Engineering Colleges with State sanction.(Paras 4,5)

Limited scope of UGC/AICTE circulars- Limited field of operation of UGC/AICTE refund norms- Held that
the UGC and AICTE circulars relied upon by petitioner do not cover the present factual situation; they deal
with institutions taking full fee and retaining original certificates long before session, and prescribe refund
(after Rs.1,000/- deduction) when a student withdraws before course starts or leaves after joining and the
seat is refilled.(Paras 6,7)

Distinction between 'admission taken' and 'seat only blocked'- Held that UGC/AICTE guidelines apply
where a student has actually taken admission and then withdraws, enabling admission of a wait‐listed
candidate and refund of fee after permissible deductions; however, where a candidate only blocks a seat by
depositing Rs.15,000/- and does not turn up for admission, the seat cannot be included in the next round of