# Ram Nagina Lal Srivastava v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 369
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-11
- **Case number:** Writ -A No. 37358 of 2012
- **Bench:** Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-nagina-lal-srivastava-v-state-of-u-p-ors-43158
- **Pages:** 8

## Headnote

C.S.C.
Civil
Services
Regulation-Regulation370-Post retiral benefits-work charge
employee-working on post of helper
01.08.79-regularized
on
04.12.2008retired on 31.01.2012 whether entitled
for
pension?-held-'yes'-considering
verdict
of
Apex
Court
in
Principal
Secretary PWD in which judgment of
Single Judge affirmed in special appealSLP dismissed period of work charge is
to be counted for qualifying period of
pension.
Held: Para-22
For the discussion made above, answer
to question arisen before the court for
consideration is in the affirmative, i.e.,
despite the provisions of Regulation 370
of Civil Services Regulations, services
rendered by the petitioner as work
charge employee will be counted in his
regular services for determination of
minimum period of 10 years qualifying
services, for grant of pension and other
retiral benefits.
Case Law discussed:
Writ-A No. 36803 of 2008; Writ-A 68515 of
2006; 2006 (2) ALJ 66; 2008 (4) AWC 3546
(LB); 2006(6) ADJ 384(DB); 2008(119) FLR
492; (2010) 4 Supreme Court Cases 317; SLP
No. 2770 of 2014; 2009 (27) LCD 1163.

## Text

1 All]
 Ram Nagina Lal Srivastava Vs. State of U.P. & Ors.
369
submitted and had been given an ample
opportunity to state his defence when he
appeared before the
Committee. The
petitioner gave his statement before the
Committee which constituted of three senior
teachers of the Institute. The Committee also
recorded the statements of the complainant
and the other persons to whom the
complainant had narrated the incident soon
after it happened. The witnesses included Dr.
Rajesh Kumar, Associate Professor and Dr.
P.R. Maiti to whom the complainant had
narrated the whole incident soon after it
happened. The complaint was also filed by
the complainant on the same day i.e. 18 April
2014.
24.
In Hira Nath Mishra (supra), the
Supreme
Court
observed
that
the
responsibility of an Institution towards its girl
students was very great and it was not
necessary to hold a detailed enquiry in
matters relating to a complaint made by girl
students regarding sexual misconduct. The
Enquiry Committee that had been constituted
by the Principal of the Institute also consisted
of three teachers of the College which had
recorded the statements and thereafter had
submitted its report to the Principal who
passed the order expelling the male students.
The Supreme Court observed that in cases
where girl students are involved, it is not
necessary to hold a detailed enquiry or
provide an opportunity to cross examine the
witnesses. The Supreme Court also observed
that in such circumstances it was not
necessary to serve a copy of the enquiry
report to the male students against whom the
allegations had been made by the girl
students. This is also what was observed
subsequently by the Supreme Court in
Avinash Nagra (supra). It is, therefore, not
possible to accept the contention of the
petitioner that the principles of natural justice
have been violated in any manner.
25.
The contention of the petitioner
that the Institute did not have the authority
to discontinue the re-employment of the
petitioner and the University alone could
have dispensed with his services cannot also
be accepted. As noticed above, the erstwhile
Institute of Technology of the University
became the Indian Institute of Technology
(Banaras Hindu University) with effect
from 29 June 2012 under the provisions of
the Institutes of Technology (Amendment)
Act, 2012. It was the Institute that granted
him re-employment by letter dated 10/11
December 2013 for a further period of one
year with effect from 30 July 2013. The
Institute alone and not the University,
therefore, could have dispensed with his
services, which it did.
26.
Thus, for all the reasons stated
above, the order passed by the Chairperson of
the Board of Directors of the Institute to
discontinue the re-employment of the
petitioner as a Professor in the Department of
Civil Engineering of the Institute does not
suffer from any illegality so as to call for
interference of the Court under Article 226 of
the Constitution.
27. The writ petition is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2015
BEFORE
THE HON'BLE SHASHI KANT, J.
Writ -A No. 37358 of 2012
Ram Nagina Lal Srivastava
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
370
 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Vivek Kumar Singh
Counsel for the Respondents:
C.S.C.
Civil
Services
Regulation-Regulation370-Post retiral benefits-work charge
employee-working on post of helper
01.08.79-regularized
on
04.12.2008retired on 31.01.2012 whether entitled
for
pension?-held-'yes'-considering
verdict
of
Apex
Court
in
Principal
Secretary PWD in which judgment of
Single Judge affirmed in special appealSLP dismissed period of work charge is
to be counted for qualifying period of
pension.
Held: Para-22
For the discussion made above, answer
to question arisen before the court for
consideration is in the affirmative, i.e.,
despite the provisions of Regulation 370
of Civil Services Regulations, services
rendered by the petitioner as work
charge employee will be counted in his
regular services for determination of
minimum period of 10 years qualifying
services, for grant of pension and other
retiral benefits.
Case Law discussed:
Writ-A No. 36803 of 2008; Writ-A 68515 of
2006; 2006 (2) ALJ 66; 2008 (4) AWC 3546
(LB); 2006(6) ADJ 384(DB); 2008(119) FLR
492; (2010) 4 Supreme Court Cases 317; SLP
No. 2770 of 2014; 2009 (27) LCD 1163.
(Delivered by Hon'ble Shashi Kant, J.)
1. Heard Sri Vivek Kumar Singh,
learned counsel for the petitioner and Sri
Brajesh Kumar Yadav, learned Standing
Counsel for the State of U.P.
2.
By means of the present writ
petition
under
article
226
of
the
Constitution of India, the petitioner seeks
following reliefs:-
"(i) To issue a writ, order or
direction in the nature of mandamus
directing the respondent authorities to
grant all post retiral benefits including
the pension to the petitioner forthwith.
(ii) To issue any other writ order or
direction as this Hon'ble Court may deem
fit in the circumstances of the case.
(iii) To award cost of the petition to
the petitioner."
3. Brief facts according to the writ
petition are that :
3.1. The petitioner had initially
appointed as a work charge employee
being a helper in the Tube-well Division,
Azamgarh of Irrigation Department vide
appointment
order
dated
01.08.1979
(Annexure-1 to the writ petition) and
joined the services on 02.08.1979.
3.2. The petitioner was continuously
worked on his post as work charge
employee to the entire satisfaction of his
superior officers and there was no
complaint against him during his entire
service period. As such, his entire service
period was unblemished. His services
were regularized by the order dated
04.12.2008, (Annexure-2 to the writ
petition), he was appointed as Mate in the
Laghu Dal Canal Division, Mirzapur. The
petitioner worked there till attaining the
age of superannuation on 31.01.2012.
3.3. After retirement he has made a
representation
before
the
Executive
Engineer, i.e., respondent no. 4 on
03.03.2012 (Annexure-3 to the writ
petition) requesting therein to release the
post retiral benefits as well as pension to
the petitioner at the earliest.
3.4.
After
receiving
the
above
representation, Executive Engineer issued a
letter dated 19.03.2012, (Annexure -4 to the
writ petition) to the petitioner to provide
him his signature as well as joint
1 All]
 Ram Nagina Lal Srivastava Vs. State of U.P. & Ors.
371
photograph along with his wife for payment
of gratuity. But there was nothing in the
letter regarding payment of pension to the
petitioner.
3.5. Despite completion of directions
given in the letter dated 19.03.2012,
payment of gratuity is not made to the
petitioner.
3.6. The petitioner has sent a reminder
on 26.04.2012 requesting therein to give
pension to the petitioner and payment of
gratuity.
3.7.
The
petitioner
met
the
respondent no. 4 several times personally
and requested him to pass the order for
pension to the petitioner.
3.8. The respondents-authorities are
sitting tight over the matter and are not
deciding the claim of the petitioner for
retiral benefit which caused irreparable loss
to the petitioner.
3.9. Therefore, the petitioner has
filed the present writ petition.
4. Learned counsel for the petitioner
submits that it is well settled law that
person, who had worked for such a long
period as temporary employee and
subsequently regularised on the said post
then for the purposes of retiral benefits,
services rendered by him on temporary
basis, may also be counted for grant of
pension. But the respondent no. 4 fails to
consider this aspect of the matter. He is
arbitrarily not passing any order on the
application/ representation to release the
pension
or
refuse
the
same.
The
representation moved by the petitioner for
payment of post retiral benefits is still
pending with the respondent authorities
even the petitioner had not been paid the
gratuity, despite completions of all
formalities required in the letter dated
19.03.2012.
5. In support of his arguments,
learned counsel for the petitioner has
placed his reliance on the decisions of
Thakur Prasad vs. State of U.P. Through
Principal Secretary Food & Others (WritA No. 36803 of 2008) decided on
24.08.2009, Jawahar Prasad Tripathi vs.
State of U.P. and others (Writ-A No.
68515 of 2006) decided on 29.11.2011,
Board of Revenue, Lucknow & Ors. Vs.
Prasidh Narain Upadhyay, reported in
2006 (2) ALJ 66 and Chedi Ram Maurya
Vs. Uttar Pradesh Basic Education Board,
Allahabad and others, reported in 2008
(4) AWC 3546 (LB).
6. Per contra, Sri Brajesh Kumar
Yadav, learned Standing Counsel has
vehemently opposed the submissions
made by the learned counsel for the
petitioner on the ground that the services
of the petitioner were regularized on
04.12.2008 and he has served till
31.01.2012, i.e., date of his retirement.
7. In this way, the petitioner
performed only about four years of his
regular
services.
According
to
Government Order No. Sa-3-1152/Dus915/89 dated 01.07.1989 only those
incumbents are entitled for post retiral
pension benefit, who have completed 10
years regular services. As such petitioner
is not entitled for the pension beng made
to the petitioner. He also submitted that
payment of gratuity has been issued vide
letter No.948/Ko.Mi. dated 24.8.2012
(Annexure- C.A. 2 to the writ petition)
issued by Treasury Officer, Mirzapur.
8. He has placed his reliance in the
cases of Bansh Gopal vs. State of U.P.,
reported in 2006 (6) ADJ 384 (DB) and
State of U.P. Through Its Secretary,
Irrigation Department, Vs. Ram Pratap
372
 INDIAN LAW REPORTS ALLAHABAD SERIES
Shukla Son of Late Kewla Prasad Shukla,
reported in 2008 (119) FLR 492.
9. In reply to above arguments, learned
counsel for the petitioner submits that the
Government
Order
dated
01.7.1989
(Annexure C.A.-1) provides about the
pension and pensionary benefits to those
Government employees who, were retired or
died as a temporary employee and their
services could not be regularized, and by
perusal of the same, it is manifestly clear that
the pension is provided to those government
employees also who were not regularized in
their department but they had continued for a
minimum period of 10 years in the respective
departments. In the present case, admittedly,
the petitioner had worked for more than 10
years from his initial appointment dated
01.08.1979 till he reached at the age of
superannuation
on
31.01.2012.
The
respondents also admit that the petitioner had
continuously
worked
from
his
initial
appointment and there is no break in service
and he had regularised on the post of Mate
vide order dated 04.12.2008. As such, the
petitioner is also eligible and entitled for
pensionary benefits as per the Government
Order dated 01.07.1989.
10. I have considered the rival
submissions made by the learned counsel
for the parties and perused the record.
11. In the facts and circumstances of
the
case,
the
question
arises
for
consideration before this Court is as to
whether the petitioner on the basis of
services rendered after his regularization
coupled with services rendered by him
prior to his regularisation is entitled for
pension and other retiral benefits or not ?
12. There is no factual dispute that
on 02.08.1979 the petitioner had joined
the services, as work charge employee (as
helper)
in
the
Tube-well
division
Azamgarh. His services were regularized
on 4.12.2008 and he was retired on
31.01.2012 on attaining the age of
superannuation and payment of gratuity
was made to the petitioner vide order
dated 24.08.2012 (Annexure C.A.-2)
13. Petitioner was denied benefits of
pension on the ground that he has not
completed minimum period of 10 years
regular qualifying service as permanent or
temporary
Government
Servant
as
required by Government Order dated
01.07.1989 (Annexure- C.A.-1).
14. Regulation 370 of Civil Services
Regulation and Government Order dated
01.07.1989 are being reproduced herein
below :
"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 workcharged establishment; and
(iii) periods of service in a post paid
form contingencies."
Government Order dated 01.07.1989
:
mRrj izns'k ljdkj
foRr 1⁄4lkekU;1⁄2 vuqHkkx&3
la0 % lk0&3&1152 @ nl & 915 @ 89
y[kuÅ % fnukad 1 tqykbZ] 1989
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egksn;]
1 All]
 Ram Nagina Lal Srivastava Vs. State of U.P. & Ors.
373
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15. There is no factual dispute that
the petitioner had started the service on
02.08.1979 as work charge employee and
he was regularised 04.12.2008 and retired
31.01.2012 on attaining the age of
superannuation and he was denied the
benefit of pension on the ground that he
has not completed 10 years regular
qualifying services as permanent or
temporary Government servant, as such,
he is not entitled for the pension, to the
pension under Government Order dated
01.07.1989.
374
 INDIAN LAW REPORTS ALLAHABAD SERIES
16. Cases of Thakur Prasad, Board
of Revenue and Chedi Ram Maurya (All
Supra), relied upon by the learned counsel
for the petitioner, are not related to work
charge employees, therefore, they are not
applicable to the facts of the present case.
17. In the Case of Jawahar Prasad
Tripathi (Supra), the petitioner was
appointed as Store Munshi on 1.12.1966
in the work charge establishment of
respondent no. 2 Executive Engineer
Irrigation Division-II, Maharajganj. After
putting long service, he was regularized in
service
in
the
establishment
w.e.f.
1.8.1996.
The
petitioner
was
superannuated on 31.12.2005. He was
denied the benefit of pension on the basis
of Government Order No. 3/1168/Da. S935-87 dated 22.6.1987, on the ground
that employee, who does not complete his
10
years
regular
service
in
the
establishment, would not be entitled to
pension. The petitioner has challenged
that order by means of Writ-A 68515 of
2006, which was allowed by Hon'ble
learned Single Judge in terms of the
following order :
"For the reasons discussed above,
the
writ
petition
is
allowed
and
respondents are directed to provide
pensionary benefit to the petitioner as is
admissible under the rules. Let this
process be completed within a period of
two months from the date a certified copy
of this order is produced before the
respondent no. 2."
18. Though, in the cases of Bansh
Gopal vs. State of U.P.and State of U.P.
Through
Its
Secretary,
Irrigation
Department, Vs. Ram Pratap Shukla Son
of Late Kewla Prasad Shukla, petitioners
of those cases were denied the benefits of
pension on the ground that they have not
completed regular service of 10 years and
their services rendered as work charge
employees prior to their regularisation
could not be counted in their regular
service as per provisions of Regulation
370 of Civil Services Regulations referred
above. But now these cases are not good
law in the light of subsequent judgements
of Hon'ble The Apex Court as well as of
this Court, which are being discussed
herein after.
19. While deciding civil appeal
against the order passed by Pubjab &
Haryana High Court regarding counting
of
work
charge
employees
for
determining qualifying services for the
purposes of pension, Hon'ble Apex Court
in the case of Punjab Electricity Board
and another v. Narata Singh and another,
reported in (2010) 4 Supreme Court
Cases, 317 has held in paras 39, 40, 41
and 42 as follows :
"39. The learned counsel for the
appellants
pointed
out
the
finding
recorded by the Division Bench in the
impugned judgment to the effect that "we
are, therefore, clearly of the opinion that
the work charged service of the appellant
with the Board must be counted for
determining qualifying service for the
purpose of pension" and argued that the
judgment of the High Court should not be
construed to mean as giving direction to
the appellant to include previous service
rendered by the respondent No.1 as work
charged
employee
of
the
State
Government for pension purposes.
40.So far as this argument is
concerned, it is true that the Division
Bench of the High Court has expressed
the above opinion in the impugned
judgment. However, the reference to Rule
1 All]
 Ram Nagina Lal Srivastava Vs. State of U.P. & Ors.
375
3.17(ii) of the Punjab Civil Services Rules
as well as the Full Bench decision of the
Punjab and Haryana High Court in Kesar
Chand vs. State of Punjab & Ors. [1988
(5) SLR 27] and speaking order dated
November 16, 2005 passed by the Board
rejecting the claim of respondent No.1
makes it abundantly clear that the High
Court has directed the appellants to count
the period of service rendered by the
respondent
No.1
in
work
charged
capacity with the State Government for
determining qualifying service for the
purpose
of
pension.
Further,
the
respondent No.1 has been directed to
deposit
the
amount
of
Employee's
Contributory Fund which he had received
from the appellants along with interest as
per the directions of the Board before the
pension is released to him.
41.All these directions indicate that
the High Court had come to the
conclusion that the period of service
rendered by the respondent No.1 in work
charged
capacity
under
the
State
Government
should
be
taken
into
consideration for determining qualifying
service for the purpose of pension. Nonmention of such direction in the impugned
judgment is merely a slip and the
appellants cannot derive any advantage
from this.
42. The net result of the above
discussion is that this Court does not find
substance in any of the arguments
advanced on behalf of the appellants. The
appeal lacks merit and therefore, deserves
to be dismissed. Therefore, the appeal
fails and is dismissed. There shall be no
order as to costs."
20. Hon'ble Apex Court has also
dismissed S.L.P. No. 2770 of 2014 (State
of U.P. Through Principal Secretary
Public Works Department Lucknow &
Others vs. Prem Chandra And Others vide
judgment and order dated 17.01.2014,
filed against the judgment and order dated
13.05.2013 passed in Special Appeal
(Defective) No. 264 of 2013 whereby a
Division Bench of this Court has affirmed
the judgment and order dated 9.5.2011
passed by Bench of a Single Judge of this
Court in the case of Mohd. Mustafa vs.
State of U.P., reported in 2009 (27) LCD
1163, relevant paras of that judgement
and order runs as follows :
"11. In the case of State of U.P. and
others v. Rajendra Nath Pandey (supra) a
Division Bench of this Court while
deciding the special appeal has granted
pension to a person who has rendered
regular service of only 7 months and 26
days. Their Lordships dismissed the
special appeal of the State and held that
the entire service of the petitioner shall be
counted for the purpose of pensionary
benefits and the employee was granted
pension without giving any benefit of
seniority.......
14. In view of what has been stated
above, the opposite parties are directed to
allow the pensionary benefits to the
petitioner
considering him
to
have
completed 10 years of regular service and
in total 23 years of service and pay him
pension regularly every month from the
date he has retired from service."
21. In the case of Parmatma Ram vs.
State of U.P and others, another Division
Bench of this Court while deciding the
appeal filed against the order granting
relief of pensionary benefits to the work
charged employee has held as follows :
"6. ...... Thus, the dispute has
attained finality to the extent that the
work charged employees are entitled for
376
 INDIAN LAW REPORTS ALLAHABAD SERIES
pensionary benefits and other retiral dues
as
they
have
otherwise
worked
continuously for the qualifying period of
10 years or more.
8.In view of the above, the matter is
no longer res-integra. The ratio has
already been propounded by the Hon'ble
Supreme
Court
that
work
charged
employees are entitled for pensionary and
other benefits if they have worked
continuously for the qualifying period.
9.Hence,
in
the
facts
and
circumstances aforesaid, the appeal is
allowed. The order dated 22.10.2013
passed by the writ Court is quashed. The
State Government is granted three months
time for processing the pension and other
retiral benefits, which may be permissible
to the petitioner."
22. For the discussion made above,
answer to question arisen before the court
for consideration is in the affirmative, i.e.,
despite the provisions of Regulation 370
of Civil Services Regulations, services
rendered by the petitioner as work charge
employee will be counted in his regular
services for determination of minimum
period of 10 years qualifying services, for
grant of pension and other retiral benefits.
23.
In the result, writ petition is
allowed and the respondents are directed by
issuing writ in the nature of mandamus to
complete the necessary formalities for grant
of pension and other retiral benefits to the
petitioner, by counting the services of the
petitioner rendered as work charge employee
in his regular service for the purposes of
determination of regular qualifying services
of the petitioner as required for pension,
within two months from the date of
production of a certified copy of this order.
24. The writ petition, is accordingly,
allowed.
25. No order is being passed for
payment of costs.
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