# Ram Bahore & Anr v. The State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 688
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-14
- **Case number:** Writ A No. 17061 of 2010
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bahore-anr-v-the-state-of-u-p-ors-45497
- **Pages:** 6

## Headnote

A. Service Law - U.P. Retirement Benefits
Rules, 1961 - Rule 3(8) - Regularisation
and Payment of Salary After regularization
the entire period of service shall be
counted
for
purpose
of
fixation
of
pensionary benefits. Services rendered in the
work-charged establishment shall be treated as
qualifying service for grant of pension. (Para 9,
10, 11, 12)

In the present case, services of the petitioners
have already been regularised and they were
12 All. Ram Bahore & Anr. Vs. The State of U.P. & Ors.
689
getting their salary of regular employee from
the date of their regularisation w.e.f. 2.9.2003
and prior to their regularisation they were
getting payment as admissible to the daily
wager employees.

It was held that the petitioners are entitled to
get all the pensionary benefits after taking into
the consideration the services rendered by them
as daily wagers, prior to their regularisation, as
also the seniority from the date of engagements
as daily wagers; but they shall not be entitled
for the arrears of balance from the date of their
appointments on daily wage posts since they
have already been paid wages of such period.
(Para 15, 16, 17)

Writ Petition disposed off. (E-4)

Precedent followed: -

## Text

688 INDIAN LAW REPORTS ALLAHABAD SERIES

32. In, Navjyoti Coop. Group
Housing Society v. Union of India -
(1992) 4 SCC 477, the new criteria for
allotment of land was challenged. In the
original policy, the seniority with regards to
allotment was decided on the basis of date
of registration. Subsequently, a change in
policy was made in 1990, changing the
criteria for deciding seniority based on the
date of approval of the final list.

The
Hon'ble
Supreme
Court
in
Navjyoti Coop. Group Housing Society's
case (supra) held that the Housing Societies
were entitled to ''legitimate expectation'
owing to the continuous and consistent
practice in the past in matters of allotment.
The Court further elucidated on the
principle
stating
that
presence
of
''legitimate expectations' can have different
outcomes and one such outcome is that the
authority
should
not
fail
''legitimate
expectation' unless there is some justifiable
public policy reason for the same.

It
is
further
emphasized
that
availability of reasonable opportunity to
those likely being affected by the change in
a policy which was consistent in nature is
well within the ambit of acting fairly. The
Hon'ble Court held that such an opportunity
should have been given to the Housing
Societies by way of a public notice.

33. In view of the foregoing
discussion, all the above-mentioned three
petitions are allowed.

Impugned
Order
No.2188/96AYUSH-2-2020-10/2015
T.C.-I
dated
14.08.2020 and Order/Letter No.1561/96AYUSH-2-2020-10/2015
T.C.-I
dated
14.08.2020 are hereby quashed.

The petitioners are allowed to work on
their respective posts in their respective
colleges as per Government Orders dated
28.05.2015 & 27.10.2017.

However, in case, any complaint is
made/receipt, the State shall be at liberty to
examine/inquire the said complaint in
respect of each candidate as per law and
pass order on each case separately.

The State or the respondent/authorities
shall also be at liberty to examine
performance of each petitioner on their
respective posts before renewing their
services after expiry of their contract period
and pass appropriate order in accordance
with law.
----------
(2020)12ILR A688
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ A No. 17061 of 2010

Ram Bahore & Anr. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Swarn Kumar Srivastava, Sri Anil Kumar
Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Retirement Benefits
Rules, 1961 - Rule 3(8) - Regularisation
and Payment of Salary After regularization
the entire period of service shall be
counted
for
purpose
of
fixation
of
pensionary benefits. Services rendered in the
work-charged establishment shall be treated as
qualifying service for grant of pension. (Para 9,
10, 11, 12)

In the present case, services of the petitioners
have already been regularised and they were
12 All. Ram Bahore & Anr. Vs. The State of U.P. & Ors.
689
getting their salary of regular employee from
the date of their regularisation w.e.f. 2.9.2003
and prior to their regularisation they were
getting payment as admissible to the daily
wager employees.

It was held that the petitioners are entitled to
get all the pensionary benefits after taking into
the consideration the services rendered by them
as daily wagers, prior to their regularisation, as
also the seniority from the date of engagements
as daily wagers; but they shall not be entitled
for the arrears of balance from the date of their
appointments on daily wage posts since they
have already been paid wages of such period.
(Para 15, 16, 17)

Writ Petition disposed off. (E-4)

Precedent followed: -

1. Dr. Ramkant Tiwari Vs St. of U.P. & ors., W.P. No.
11630 of 2018, decided on 14.05.2018 (Para 3)

2. Muneshwear Dutt Mishra Vs St. of U.P. & 4
ors., Writ-A No. 18117 of 2018, decided on
06.09.2018 (Para 3)

3. Gulaichi Devi Vs St. of U.P. & ors., 2019 (12)
ADJ 547 (Para 3)

4. Habib Khan Vs St.of U.P. & ors., Civil Appeal
No. (5) 10806 of 2017, decided on 23.08.2017
(Para 3)

5. Secretary, Minor Irrigation Deptt & RES Vs
Narendra Kumar Tripathi, Civil Appeal No. 3348
of 2015, decided on 07.04.2015 (Para 3, 13)

6. Naval Kishore Rai Vs St. of U.P. & 3 ors.,
Writ-A No.
25623 of 2018, decided on
30.09.2020 (Para 7)

7. Netram Sahu Vs St.of Chhatt., 2018 (2) PLJR
284 SC (Para 9)

8. Prem Singh Vs St. of U.P. & ors., Civil Appeal
No. 6798 of 2019, passed on 02.09.2019 (Para
10, 17)

9. Punjab State Electricity Board & anr. Vs
Narata Singh & anr., (2010) (Para 11)
10. Secretary, Minor Irrigation Deptt. and RES
Vs Narendra Kumar Tripathi, Civil Appeal No.
3348 of 2015, decided on 07.04.2015 (Para 13)

(Delivered by Hon'ble Shekhar Kumar Yadav, J.)

1. The present writ petition has been
filed seeking following reliefs:-

i) Issue a writ, order or direction in the
nature of mandamus commanding the
respondents to pay to the petitioners the
arrears of salary treating their appointment
in the year 1981 and 1990 respectively
which was approved by the then Chief
Development Officer after re-fixing their
salary on the basis of 6th Pay Commission
and also to pay the arrears of salary for the
period from 1995 till the year 2003 after refixing their salary on the basis of 6th Pay
Commission;

(ii) Issue any other and further writ,
order or direction as this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case.

2. Briefly stated facts of the case are
that
petitioners
were
appointed
as
Chowkidar on daily wages (Class IV post)
in the year 1981 and 1990 respectively.
Their services were orally terminated in the
year 1995. Against the said order of
termination, petitioners preferred Civil
Misc Writ Petition No. 22522 of 1995,
which was finally disposed off vide order
dated 29.4.1999 with the direction to the
respondents to regularise the services of the
petitioners on Class IV post. Petitioners
accordingly, made their representation for
their regularisation and also for payment of
balance salary. It is further alleged that the
respondents
against
the
order
dated
29.4.1999 preferred Special Leave to
Appeal (civil) No. 336 of 2000, which was
dismissed as withdrawn vide order dated
690 INDIAN LAW REPORTS ALLAHABAD SERIES
31.1.2000. Thereafter, respondents is said
to have preferred Special Appeal against
the judgement and order dated 29.4.1999,
which was also dismissed vide order dated
2.4.2003.
Thereafter,
an
order
for
regularisation of the services of the
petitioners was passed by the respondents
on 2.9.2003. After regularisation of their
services, petitioners demanded salary as
well as seniority since 1981 to 1990
respectively. It is further submitted that the
petitioner no. 1 has been superannuated
from service on 30.4.2017 and petitioner
no. 2 has died during pendency of the writ
petition. Hence this writ petition.

3. Submission of learned counsel for
the petitioners is that at the time of
regularisation i.e. 2.9.2003, they have
completed 22 and 13 years of their services
respectively and as such their seniority may
be counted from the date of their initial
appointment
i.e.
1981
and
1990
respectively. They also demanded the
arrears of salary of balance from the above
respective dates of their appointments.
Further submission is that due to the non
actions of respondents, the petitioners are
made to suffer recurring financial loss for
no fault on the part of the petitioners. In
support of his arguments, petitioners relied
upon the various judgements of this Court
as well as of Apex Court, viz. Writ
Petition
No.
11630
of
2018,
(Dr
Ramakant Tiwari Vs State of UP and
others) decided on 14.05.2018; Writ A
No. 18117 of 2018, (Muneshwer Dutt
Mishra Vs State of UP and 4 others)
decided on 6.9.2018; 2019(12) ADJ, 547
(Gulaichi Devi Vs State of UP and
others); Civil Appeal No. (5) 10806 of
2017 (Habib Khan Vs State of UP and
others) decided on 23.08.2017; and Civil
Appeal No. 3348 of 2015, Secretary,
Minor Irrigation Deptt and RES Vs
Narendra Kumar Tripathi decided on
7.4.2015.

4. Learned Standing Counsel for the
State on the other hand submitted that in
pursuance of the order passed by this
Court, services of the petitioners were
regularised w.e.f. 2.9.2003 on the class IV
posts and they were made payment
admissible to the regular employees and
thereafter they were also made payment of
revised pay scales and also the payment of
arrears of Rs. 48650/- and Rs. 49033/-
respectively, vide Annexure CA-6 & 7 filed
by the State in regard to the payment of
arrears made vide letter dated 13.01.2009
passed by Chief Development Officer,
Basti.

5. The petitioners have submitted that
they are entitled for payment from their
initial appointments as daily wagers i.e.
from 1981 and 1990 respectively, thereafter
they are entitled for regular pay scales since
1981 and 1990.

6. Heard learned counsel for the
parties and perused the material on record.

7. It is admitted fact that the
petitioners were appointed as daily wagers
and their services were regularised on
2.9.2003 and since then they were getting
regular pay-scales as admissible to a
regular employee and also they have
received their arrears of the balance from
the date of their regularisation. In support
of their claim, petitioners have relied on
various judgements as noted above in
preceding paragraphs and also contended
that their case is squarely covered with the
judgement of this Court passed in Writ A
No. no. 25623 of 2018 Naval Kishore Rai
Vs State of UP and 3 others, decided on
30.9.2020, in which this Court having
12 All. Ram Bahore & Anr. Vs. The State of U.P. & Ors.
691
relied upon the decision of Prem Sing Vs
State of UP and others decided on 2.9.2019
allowed the writ petition in the following
terms:-

"Heard
learned
counsel
for
the
petitioner and learned Standing Counsel for
the respondents.

The petitioner by means of the present
writ petition has prayed for the following
main relief:-

"(i) Issue a writ, order or direction in the
nature
of
mandamus
commanding
the
respondents to consider and decide the
petitioner's representation dated 06.02.2018
(Annexure-1 to the writ petition) and pay
entire retiral dues including his pension and
other consequential benefits after calculating
his services rendered by him on work charge
basis i.e. 01.04.1978, in the light of the
judgment of Hon'ble Supreme Court in the
case of Habib Khan Vs. State of Uttaranchal"

As per the pleadings in the petition,
the petitioner was initially appointed as
Helper on 01.04.1978 on work charge basis
in the Irrigation Department, Varanasi and
his services was regularized with effect
from 01.05.2006. The petitioner has retired
on 01.06.2018. The petitioner is not being
paid retiral dues and in the aforesaid
backdrop, the petitioner has prayed for the
relief inserted above.

A counter affidavit has been filed by
respondent nos. 2 to 4, wherein, it is stated that the
petitioner had worked since 01.04.1978 to
30.04.2006 in work charge establishment and
thereafter since 01.05.2006 to 31.01.2018 in
regular department. The petitioner has retired on
31.01.2018, but in view of the letter dated
01.08.2005 which provides that the services
rendered in work charge establishment shall not
be included for the purposes of pension and
gratuity as has been provided in Civil Services
Regulation 370.

Learned counsel for the petitioner has
contended that the Apex Court in the case
of Prem Singh vs. State of U.P. & Ors.
decided on 02.09.2019 has held that the
work charge period rendered by an
employee shall be included for the
purposes of pension and, therefore, the
ground on which the pension of the
petitioner
has
been
denied
is
not
sustainable.

Learned Standing Counsel submits
that the letter dated 01.08.2005 provides
that the period rendered as work charge
employee shall not be counted for the
purposes
of
service,
therefore,
the
petitioner is not entitled for the same.

I have heard the rival submissions of
the parties and perused the record.

It is admitted by the respondents the
the petitioner was initially appointed as
Helper employee on 01.04.1978 and had
continued
to work
as
work
charge
employee till 03.04.2006. The services of
the
petitioner
was
regularized
on
01.05.2006 and he retired on 01.06.2018.

In view of the aforesaid fact that the
petitioner has worked as work charge
employee since 01.04.1978, the judgment
of the Apex Court in the case of Prem Sing
(supra) is applicable and the controversy as
in the present case is concluded by the
judgment of Apex Court in the case of
Prem Singh (supra). Consequently, the
services rendered by the petitioner in work
charge employee are liable to be counted
for the purposes of pension.

Considering
the
facts
and
circumstances of the case, the writ petition
is allowed and a mandamus is issued to the
respondent no.4-The Executive Engineer,
Tube-well Construction Division, Irrigation
Department Varanasi to add the service
rendered as work charge employee in the
services rendered by the petitioner as
regular employee and pay the pension and
other retiral dues to the petitioner which the
petitioner is entitled as per law.
692 INDIAN LAW REPORTS ALLAHABAD SERIES

For the reasons given above, the writ
petition is allowed. No order as to costs.".

8. The issue as to whether the
petitioners are entitled to any benefits of
the period rendered by them as a daily
wagers till his regularisation has been set at
rest by the Supreme Court.

9. Hon'ble the Apex Court in the case
of
Netram
Sahu
Versus
State
of
Chhattisgarh reported in 2018 (2) PLJR
284 SC has already decided that after
regularisation the entire period of service
shall be counted for purpose of fixation of
pensionary benefits.

10. Hon'ble the Apex Court in the
case of Prem Singh Versus State of Uttar
Pradesh & Ors. passed on 2 September,
2019 in Civil Appeal No. 6798 of 2019 and
other analogous appeals has also reiterated
the same principle as laid down in the case
of Netram Sahu (supra). The Apex Court in
paragraph 36 has held as under:-

"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."

11. In Punjab State Electricity Board
& Anr. v. Narata Singh and Anr., (2010),
the apex court had held that the period of
work-charged service should be counted for
computation of qualifying service for grant
of pension.

12. Thus, it is obvious from the
decisions cited on behalf of the petitioners
that the Hon'ble Apex court has already set
at rest the above stated dispute holding that
the services rendered in work charged
establishment shall be counted for purpose
of pension and gratuity after regularisation
of the service.

13. Further, Hon'ble Apex Court in
the case of Civil Appeal No. 3348 of 2015,
Secretary, Minor Irrigation Deptt. and RES
Vs Narendra Kumar Tripathi, decided on
07.04.2015, has allowed all the benefits of
ad-hoc services rendered for the purposes
of reckoning his seniority and other
consequential benefits.

14. In the aforesaid facts and
circumstances of the case, admittedly,
services of the petitioners have already
been regularised on 2.9.2003 and they were
getting their salary of regular employee
from the date of their regularisation w.e.f.
2.9.2003 and prior to their regularisation
they were getting payment as admissible to
the daily wager employees.

15. Claim of the petitioners for arrears
of balance as regular employees from the
date of their initial appointments could not
be accepted because they have already been
made payment as daily wagers and now
they have been regularised and after that
they were getting regular pay scales,
therefore, services of the petitioners as
daily wagers could only be counted as
qualified service only for the benefit of
pension
because
prior
to
their
regularisations they were working in the
capacity of work-charge employees.

16. Having considered the facts and
circumstances of the case, and also keeping
in view the mandate of the judgements in
12 All. Dr. Syed Akhtar Mehdi Rizvi Vs. State of U.P. & Ors.
693
preceding
paragraphs,
I
am
of
the
considered opinion that the petitioners are
entitled to get all the pensionary benefits after
taking into the consideration the services
rendered by them as daily wagers, prior to their
regularisation, as also the seniority from the
date of engagements as daily wagers; but they
shall not be entitled for the arrears of balance
from the date of their appointments on daily
wage posts since they have already been paid
wages of such period.

17. In the circumstances, the writ
petition is finally disposed off with the
direction to the respondents to make
pensionary benefits to the petitioners after
taking into the consideration the services
rendered by the petitioners as daily wagers,
prior to regularisation, in the light of the
judgements of Prem Singh (Supra) and and
shall also count the services rendered by
the petitioners as daily wagers for the
purpose of seniority. Respondents are
further directed to ensure the payments of
arrears of pension, if any, within three
months from the date of receipt/production
of a copy of this judgment.
----------
(2020)12ILR A693
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.11.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 18508 of 2020

Dr. Syed Akhtar Mehdi Rizvi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sanjay Kumar Srivastava, Akshat Kumar.

Counsel for the Respondents:
C.S.C.

A. Practice & Procedure - Maintainability -
U.P. Fundamental Second Amendment
Rules, 2010: Rule 56 (a-1) read with Rule
56 (a-2) -The issuance of writ of quo warrant
is upon discretion of the Court. In the instant
case the Court did not find any substantial
reason against the opposite part no. 3 to grant
the writ of quo-warranto. (Para 26, 27)

Writ Petition rejected. (E-10)

List of Cases cited:-

1. Nand Lal Jaiswal Vs The Secretary, Government of
U.P. & ors. Writ Petition No. 1428 (MB) of 2011

2. Gadde Venkateshwara Rao Vs Govt. of
Andhra Pradesh AIR 1966 SCC 828

3. Hamid Hasan Nomani Vs Banwarilal Roy &
ors. AIR (34) 1947 Privy Council 90

4. The University of Mysore Vs C.D. Govinda
Rao & anr. AIR 1965 Sc 491

5. J.A. Samaj Vs D. Ram AIR 1954 Pat 297

6. Mohammad Tafiuddin & ors. Vs St. of W.B. &
ors. 1979 (2) CLJ 494

7. Arun Kumar Vs U.O.I. AIR 1982 Raj 67

8. Dr. S. Mahadevan Vs Dr. S. Balasundaram &
ors. (1986) 1 Mad LJ 31

9. Devi Prasad Shukla & anr. St. of U.P. & anr.
1989 Lab IC 1086

10. R. Vs Speyer (1916)1 K.B. 595

11. Rex Vs Stacey 99 English Reports 938 (2)

12. Fredric Guilder Julius Vs The Right Rev. The
Lord Bishop of Oxford: The Rev. Thomas
Thellusson Carter 5 Appeal Cases 214 (3)

13. The King exrel Boudret Vs Johnston (1923)
2 Deminion Law Reports 278 (4)

(Delivered by Hon'ble Chandra Dhari Singh, J.)