# Ram Naresh v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 662
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-09
- **Case number:** Writ A. No. 6262 of 2008
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naresh-v-state-of-u-p-ors-45489
- **Pages:** 10

## Headnote

A. Service Law - Regularisation, Payment
of Salary and other benefits - U.P.
Retirement Benefits Rules, 1961: Rule
3(8); Civil Services Regulation of Uttar
Pradesh:
Regulation
370;
U.P.
Regularisation
of
Daily
Wages
Appointment on Group D Post Rules,
2001:
Clause
4(1),
4(b),
4(3)
-
A
temporary employee appointed on the
regular establishment of the Government
is entitled to pension under Fundamental
Rule 56.

This is an admitted fact that the petitioner is
continuously working since 23.1.1995 in Rural
Engineering Services Department, Sumerpur
Store
as
daily
wager
on
the
post
of
Chaukidar/Peon and getting salary on the basis
of interim order dated 19.3.2010 passed by this
Court. The GO dated 13.8.2015 issued by State
Government to all the Government Department,
Corporation as well as Local Bodies, directed
regularization of all the employees, whose
cutoff-date is 31.3.1996. At the time of filing of
the present writ petition, Rules, 2001 fixed the
cutoff-date as 29.6.1991 for regularization of
daily wager, but during the pendency of the writ
petition, subsequently, the GO was amended
vide G.O. dated 13.8.2015 fixing cutoff-date for
regularization as 31.3.1996. (Para 11, 12, 13)
12 All. Ram Naresh Vs. State of U.P. & Ors.
663
B.
A
temporary
employee
who
has
rendered 20 years of service is entitled to
pension - Substantive Capacity - The
substantive capacity refers to capacity in
which person holds the post and not
necessarily to the nature and character of
the post. In the expression 'substantive
capacity'
the
emphasis
imparted
by
the
adjective 'substantive' is that a thing is
substantive if it is essential part of the
constituent or relating to what is essential.
Therefore, when a post is vacant, however,
designated in officilase, the capacity in which
the person holds the post has to be ascertained
by the State. A person is said to hold a post in a
substantive capacity when he holds it for an
indefinite period especially for a long duration in
contradistinction to a person who holds it for a
definite or a temporary period or holds it on
probation subject to confirmation. (Para 17)

SC has held that services rendered in the workcharged establishment shall be treated as
qualifying service for grant of pension. The
arrears of pension shall be confined to three
years only before the date of the order.
Therefore, in the light of G.O. dated 13.8.2015
as well as decisions of the Apex Court, the
petitioner was held entitled to get regularization
of his service from the date of issuance of G.O.
dated 13.8.2015 wherein the cut-off-date for
regularization is mentioned as 31.1.1996. (Para
21, 22)

Writ Petition allowed. (E-4)

Precedent followed:

## Text

662 INDIAN LAW REPORTS ALLAHABAD SERIES
views, then the court must bow down to the
opinion of the experts. Judges are not and
cannot be experts in all fields and,
therefore, they must exercise great restraint
and should not overstep their jurisdiction to
upset the opinion of the experts."

10. The width of judicial review as
explained in the aforesaid decision has
been reaffirmed by the Supreme Court in
Ran Vijay Singh Vs. State of U.P. and
more recently in Bihar Staff Selection
Commission Vs. Arun Kumar.

11. The principles which emerge from
the aforesaid decisions clearly establish that
this Court while exercising its powers of
judicial review can neither assume the
function nor taken on the mantle of
academic
experts.
The
Courts
while
venturing into this field must exercise due
caution and restraint before upsetting the
opinion
of
experts.
Additionally,
interference would be warranted only in
case it is established that the correct answer
chosen by academicians is beset by a
palpable and manifest error or mistake.
Further, the error must be one which can be
established without undertaking what the
Supreme Court chose to describe as an
"inferential process of reasoning or by a
process of rationalisation". The error must
be stark and apparent. Lastly, even where
two views can possibly be taken or there be
doubt, benefit must be extended to the
examining body.

12. The petitioner in the present case has
not only failed to establish a patent or palpable
error nor has the challenge crossed the threshold
as propounded in the decisions noticed above so
as to warrant interference.

13. The petition is dismissed.
----------
(2020)12ILR A662
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ A. No. 6262 of 2008

Ram Naresh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Srivastava, Sri S.M. Ali

Counsel for the Respondents:
C.S.C., A.G.

A. Service Law - Regularisation, Payment
of Salary and other benefits - U.P.
Retirement Benefits Rules, 1961: Rule
3(8); Civil Services Regulation of Uttar
Pradesh:
Regulation
370;
U.P.
Regularisation
of
Daily
Wages
Appointment on Group D Post Rules,
2001:
Clause
4(1),
4(b),
4(3)
-
A
temporary employee appointed on the
regular establishment of the Government
is entitled to pension under Fundamental
Rule 56.

This is an admitted fact that the petitioner is
continuously working since 23.1.1995 in Rural
Engineering Services Department, Sumerpur
Store
as
daily
wager
on
the
post
of
Chaukidar/Peon and getting salary on the basis
of interim order dated 19.3.2010 passed by this
Court. The GO dated 13.8.2015 issued by State
Government to all the Government Department,
Corporation as well as Local Bodies, directed
regularization of all the employees, whose
cutoff-date is 31.3.1996. At the time of filing of
the present writ petition, Rules, 2001 fixed the
cutoff-date as 29.6.1991 for regularization of
daily wager, but during the pendency of the writ
petition, subsequently, the GO was amended
vide G.O. dated 13.8.2015 fixing cutoff-date for
regularization as 31.3.1996. (Para 11, 12, 13)
12 All. Ram Naresh Vs. State of U.P. & Ors.
663
B.
A
temporary
employee
who
has
rendered 20 years of service is entitled to
pension - Substantive Capacity - The
substantive capacity refers to capacity in
which person holds the post and not
necessarily to the nature and character of
the post. In the expression 'substantive
capacity'
the
emphasis
imparted
by
the
adjective 'substantive' is that a thing is
substantive if it is essential part of the
constituent or relating to what is essential.
Therefore, when a post is vacant, however,
designated in officilase, the capacity in which
the person holds the post has to be ascertained
by the State. A person is said to hold a post in a
substantive capacity when he holds it for an
indefinite period especially for a long duration in
contradistinction to a person who holds it for a
definite or a temporary period or holds it on
probation subject to confirmation. (Para 17)

SC has held that services rendered in the workcharged establishment shall be treated as
qualifying service for grant of pension. The
arrears of pension shall be confined to three
years only before the date of the order.
Therefore, in the light of G.O. dated 13.8.2015
as well as decisions of the Apex Court, the
petitioner was held entitled to get regularization
of his service from the date of issuance of G.O.
dated 13.8.2015 wherein the cut-off-date for
regularization is mentioned as 31.1.1996. (Para
21, 22)

Writ Petition allowed. (E-4)

Precedent followed:

1. St. of U.P. Vs Putti Lal, Supreme Court, Civil
Appeal No. 3634 of 1998 (Para 6)

2. Sheo Narain Nagar & ors. Vs St. of U.P. &
ors. Civil Appeal No. 18510 of 2017, decided on
13.11.2017 (Para 15)

3. Yashwant Hari Katakkar Vs U.O.I. & ors.
(1996)7 SCC 113 (Para 16)

4. A.P. Srivastava Vs U.O.I & ors. (1995) 3
UPLBEC 1842 (supplement) (Para 17)

5. Ram Pratap Vs St. of U.P., 2006 (4) ADJ 709
(Para 17)
6. Babu Singh Vs St. of U.P., 2006 (8) ADJ 371
(Para 17)

7. Kedar Ram-1 Vs St. of U.P., 2008 ILR (All)
659 (Para 17)

8. Ram Sajiwan Maurya Vs St. of U.P. & ors.,
W.P. No. 30301 (S/S) of 2004, decided on
12.08.2009 (Para 17)

9. Kanti Devi Vs St. of U.P., 2009 (9) ADJ 516
(Para 17)

10. Awadh Bihari Shukla Vs St. of U.P., 2015 (6)
ADJ 186) (Para 17)

11. St. of U.P. & ors. Vs Mahendra Chaubey,
2018 (9) ADJ 829 (Para 18)

12. Prem Singh Vs St. of U. P., 2019 LawSuit
(SC) 1557 (Para 20)

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

1. The instant writ petition under
Article 226 of the Constitution has been
filed, inter-alia, praying for the following
reliefs:

i) Issue writ order or direction in the
nature
of
mandamus
directing
the
respondents
to
strictly
comply
the
judgement and order dated 21.02.2002
passed by Hon'ble Supreme Court in Civil
Appeal No.3624 of 1998 (State of U.P. vs.
Putti Lal) and extend the benefit of the
same in the case of the petitioner;

ii) Issue a writ order or direction for
declaring Clause 4(1), 4(b), 4(3) of the
U.P. Regularization of Daily Wages
Appointment on Group D Post Rules, 2001
to be ultra virus and frame a scheme for the
regularization of the employees who have
rendered 10 years of service as per
undertaking given before this Court in the
case of State of U.P. vs. Putti Lal;

iii) Issue a writ order or direction in
the nature of mandamus directing the
664 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents to regularize the services of
the petitioner on the post of Chaukidar and
pay the minimum of regular pay scale
pending writ petition on Group D Post;

iv) Issue a writ order or direction in
the nature of mandamus directing the
respondents not to orally remove the
petitioner and permit him to work on the
post of Chaukidar pending writ petition.

2. The facts, in brief, are that the
petitioner is working in Rural Engineering
Services Department, Sumerpur Store as a
Chaukidar/Peon on 23.01.1995. The Rural
Engineering Services Department (hereinafter
referred to as the 'Department') is a permanent
department having permanent officials, site, but
still the petition is being paid the minimum
daily wages of Rs.58 per day to be paid
monthly. In the Department of Sumerpur Store,
the petitioner and one Jai Ram are working as
daily wager Chaukidar/Peon and there is no
other permanent Chaukidar/Peon. Both are
performing their duty day and night. They have
completed more than 18 years of their services
on 22.01.2013, but the respondent-department
deliberately neither regularized their service nor
provided the minimum wages as per Rules in
spite of the order of this Court dated
19.03.2010.

3. On 23.05.2008, this Court passed the
interim order and directed that as an interim
measure, the respondents are restrained from
dispensing with the services of the petitioner
and petitioner will also be permitted to continue
in service and shall be paid his salary till the
next date of listing.

4. On 19.03.2010, this Court passed
the following orders:

Heard Sri Pankaj Srivastava, learned
counsel for the petitioner and learned
Standing Counsel.

In an identical matter in writ petition
no. 61128 of 2009 this court has passed
interim order dated 19.11.2009 as under :-

"Heard Sri Pankaj Srivastava, learned
counsel for the petitioner and learned
Standing counsel.

The petitioners are Daily Wages
Employees (Group - D) working in the
Forest Department. Their services have not
been regularised for want of vacancy.
However, as they have completed ten years
of continuous service as Daily Wagers they
are entitle to minimum of the pay scale of
6th pay commission which is admissible to
class - IV employees.

It is submitted that in view of the
decision of the Apex Court in State of U.P.
and others Vs. Putti Lal (2002)2 UPLBEC
1597 this Court has disposed of various
petitions directing the Forest Department
to pay minimum of the pay scale admissible
to Class - IV employees. Reliance has been
placed upon a judgment and order dated
17.2.2009 passed in Civil Misc. Writ
Petition No.63684 of 2005 (Sada Ali Vs.
Division Forest Officer). It has further been
submitted that a similar order was passed
on 23.10.2008 in Civil Misc. Writ Petition
No.43443 of 2004 (Lakshmi Chandra Vs.
State of U.P. and others). When the said
order was not complied with proceedings
for contempt were initiated by means of
Contempt Application (Civil) of 2009
(Lakshmi Chandra Vs. Sri N.K. Janu). In
the said contempt petition on behalf of
Forest Department an undertaking was
given that the minimum of the pay scale
admissible to Class - IV employees i.e.
Rs.2550/- per month, which has now been
increased to Rs.6050/- per month as per the
report of the VI Pay Commission shall be
paid to Class - IV employees who have
completed 10 years service.

In
view
of
above
facts
and
circumstances, an interim mandamus is
12 All. Ram Naresh Vs. State of U.P. & Ors.
665
issued to the respondents either to pay the
petitioners monthly salary as per the
minimum of the pay scale admissible to
Class - IV employees in the pay band of Rs.
6050/- or show cause within a period of
one month from today."

Learned counsel for the petitioner has
pointed out that the aforesaid order passed
by this court has also been complied with
by the respondents.

In
view
of
above
facts
and
circumstances, an interim mandamus is
issued to the respondents either to pay the
petitioner's monthly salary as per the
minimum of the pay scale admissible to
Class - IV employees in the pay band of Rs.
6050/- or show cause within a period of
one month from today.

List after four weeks.

5. The petitioner is getting salary on
the basis of above said interim order dated
19.03.2010 passed by this Court.

6. Learned counsel for the petitioner
submits that petitioner is continuously
working on the post of Chaukidar on daily
wage basis w.e.f. 23.01.1995 and has
completed
18
years
of
service
on
22.1.2013. He further submits that neither
any complaint nor any enquiry is pending
against the petitioner, but the respondentdepartment deliberately neither regularized
his services nor provided the minimum
wages as per Rules in spite of the interim
order of this Court dated 19.03.2010.
Learned counsel for the petitioner further
submits that in the forest department
identically situated persons, who are
working on daily wages in the department,
the Division Bench of this Court directed to
regularize their service and the order of this
Court was affirmed by the Hon'ble
Supreme Court in Civil Appeal No.3634 of
1998 (State of U.P. vs. Putti Lal) with
slight modification and in the pending
S.L.P. before the Hon'ble Supreme Court,
the U.P. Regularization of Daily Wage
Appointment on Group-D Post Rules,
2001, has been framed. Further submission
is that these Rules are also applicable in all
the Department of State of U.P. including
the
Rural
Engineering
Services
Department. The Hon'ble Supreme Court
has clearly observed that those candidates,
who had rendered 10 years or more
services, should be regularized and should
be paid minimum of regular pay scale till
they are regularized while interpreting the
Rules, 2001. He further submits that on
11.01.2010, the respondent-Director Chief
Engineer, Gramin Ahiyantram Sewa, U.P.
Lucknow has prepared the seniority list of
work charge/daily wager employees as per
Rules in which the name of the petitioner
was find place at Serial No.206-A. Copy of
Senior List has been annexed as Annexure
No. RA-3 to the rejoinder affidavit.

7. Learned counsel for the petitioner
further submits that on 13.08.2015, G.O.
has been issued by the State Government
directing all the Government Department,
Corporation as well as Local Bodies to
regularize all the employees, whose cutoff-date is 31.03.1996, they have to be
regularized, hence, the petitioner is entitled
for regularization in the light of the interim
order dated 23.05.208 passed by this Court
as well as G.O. dated 13.08.2015. He
further submits that since the above said
prayer no.ii has already been granted by the
State
vide
G.O.
dated
13.08.2015,
therefore, the present writ petition may be
decided in light of the G.O. dated
13.08.2015.

8. Countering the above said
submissions, on the other hand, learned
Standing Counsel has vehemently opposed
666 INDIAN LAW REPORTS ALLAHABAD SERIES
the writ petition and submitted that the
petitioner was engaged on the basis of
availability of work and he was never
engaged prior to cut-off-date, therefore, the
petitioner is not entitled for the benefit of
regularization as claimed by him as he
himself has stated that he is working since
23.01.1995 i.e. much after the prescribed
cut-off-date i.e. 26.06.1991. He further
submits that under the U.P. Regularization
of Daily Wages Appointment on Group-D
Post Rules, 2001 (hereinafter referred to as
the 'Rules, 2001'), the prescribed cut-offdate
is
29.06.1991
and
further
the
employee, who is continuously in service
on the date of commencement, is eligible to
be considered for regularization. He further
submits that the petitioner has never been
engaged by due process of law after
obtaining sanction post, therefore, the relief
claimed by the petitioner cannot be granted
by this Court, hence, this writ petition may
be dismissed.

9. I have heard the learned counsel for
the petitioner, the learned Standing Counsel
for the State and perused the material
available on record.

10. Now the questions is whether the
petitioner is entitled to regularize and get
the benefit or not?

11. This is an admitted fact that the
petitioner is continuously working since
1995
in
Rural
Engineering
Services
Department, Sumerpur Store as daily wager
on the post of Chaukidar/Peon and there is
no other permanent Chaukidar/Peon except
the petitioner and one another Jai Ram,
who is also working in Sumerpur Store as
daily wager.

12. The Government order dated
13.08.2015 issued by State Government to
all
the
Government
Department,
Corporation as well as Local Bodies to
regularize all the employees, whose cutoff-date is 31.03.1996, they have to be
regularized.

13. It is true that at the time of filing
of the present writ petition, Rules, 2001
fixed the cut-off-date as 29.06.1991 for
regularization of daily wager, but during
the
pendency
of
the
writ
petition,
subsequently, the Government order was
amended vide G.O. dated 13.08.2015 fixing
cut-off-date
for
regularization
as
31.03.1996.

14. Undisputedly, the petitioner was
appointed and is continuously working
since 23.01.1995 and getting salary on the
basis of interim order dated 19.03.2010
passed by this Court, as such, apart from
the G.O. dated 13.08.2015, the claim of the
petitioner to regularize his services, be
required to be taken in to consideration.

15. In the case of Sheo Narain Nagar
and others vs. State of U.P. and others in
Civil Appeal No.18510 of 2017 decided on
13.11.2017, the Hon'ble Supreme Court
while distinguishing the case of Secretary,
State of Karnataka and others s.
Umadevi and others,(2006) 4 SCC 1, held
as under:

"8. When we consider the prevailing
scenario, it is painful to note that the
decision in Uma Devi (Supra) has not been
properly understood and rather wrongly
applied by various State Governments. We
have called for the data in the instant case
to ensure as to how many employees were
working on contract basis or ad-hoc basis
or daily-wage basis in different State
departments. We can take judicial notice
that widely aforesaid practice is being
12 All. Ram Naresh Vs. State of U.P. & Ors.
667
continued.
Though
this
Court
has
emphasised that incumbents should be
appointed on regular basis as per rules but
new devise of making appointment on
contract
basis
has
been
adopted,
employment is offered on daily wage basis
etc. in exploitative forms. This situation
was not envisaged by Uma Devi (supra).
The prime intendment of the decision was
that the employment process should be by
fair means and not by back door entry and
in the available pay scale. That spirit of the
Uma Devi (supra) has been ignored and
conveniently over looked by various State
Governments/ authorities. We regretfully
make the observation that Uma Devi
(supra) has not be implemented in its true
spirit and has not been followed in its pith
and substance. It is being used only as a
tool for not regularizing the services of
incumbents. They are being continued in
service without payment of due salary for
which they are entitled on the basis of
Article 14, 16 read with Article 34 (1) (d)
of the Constitution of India as if they have
no constitutional protection as envisaged in
D.S. Akara vs. Union of India, AIR 1983
SC 130 from cradle to grave. In heydays of
life they are serving on exploitative terms
with no guarantee of livelihood to be
continued and in old age they are going to
be destituted, there being no provision for
pension, retiral benefits etc. There is clear
contravention of constitutional provisions
and aspiration of down trodden class. They
do have equal rights and to make them
equals they require protection and cannot
be dealt with arbitrarily. The kind of
treatment meted out is not only bad but
equally unconstitutional and is denial of
rights. We have to strike a balance to really
implement the ideology of Uma Devi
(supra). Thus, the time has come to stop the
situation where Uma Devi (supra) can be
permitted to be flouted, whereas, this Court
has interdicted such employment way back
in the year 2006. The employment cannot
be on exploitative terms, whereas Uma
Devi (supra) laid down that there should
not be back door entry and every post
should be filled by regular employment, but
a new device has been adopted for making
appointment on payment of paltry system
on contract/adhoc basis or otherwise. This
kind of action is not permissible, when we
consider the pith and substance of true
spirit in Uma Devi (supra).

9. Coming to the facts of the instant
case, there was a direction issued way back
in the year 1999, to consider the
regularization of the appellants. However,
regularization
was
not
done.
The
respondents chose to give minimum of the
pay scale, which was available to the
regular employees, way back in the year
2000 and by passing an order, the
appellants were also conferred temporary
status in the year 2006, with retrospective
effect on 2.10.2002. As the respondents
have themselves chosen to confer a
temporary status to the employees, as such
there was requirement at work and posts
were also available at the particular point
of time when order was passed. Thus, the
submission raised by learned counsel for
the respondent that posts were not
available, is belied by their own action.
Obviously,
the
order
was
passed
considering the long period of services
rendered by the appellants, which were
taken on exploitative terms.

10. The High Court dismissed the writ
application relying on the decision in Uma
Devi (supra). But the appellants were
employed basically in the year 1993; they
had rendered service for three years, when
they were offered the service on contract
basis; it was not the case of back door
entry; and there were no Rules in place for
offering such kind of appointment. Thus,
668 INDIAN LAW REPORTS ALLAHABAD SERIES
the appointment could not be said to be
illegal and in contravention of Rules, as
there were no such Rules available at the
relevant
point
of
time,
when
their
temporary status was conferred w.e.f.
2.10.2002. The appellants were required to
be appointed on regular basis as a onetime measure, as laid down in paragraph
53 of Uma Devi (supra). Since the
appellants had completed 10 years of
service and temporary status had been
given by the respondents with retrospective
effect in the 2.10.2002, we direct that the
services of the appellants be regularized
from
the
said
date
i.e.
2.10.2002,
consequential benefits and the arrears of
pay also to be paid to the appellants within
a period of three months from today."

16. In Yashwant Hari Katakkar v.
Union of India and others, 1996 (7) SCC
113, it was held that an employee who has
served more than 20 years is entitled to
pension and denial of retiring pension to
the petitioner on the ground of not being
permanent on any post clearly is violation
of Clause (e) of Fundamental Rules, 56.
The department cannot keep a person
temporary or on daily wages indefinitely.

17. In A.P. Srivastava v. Union of
India and others, (1995) 3 UPLBEC 1842
(supplement), the Supreme Court has
clearly taken a view that in case of a
temporary employee who has rendered 20
years of service is entitled to pension. In
the expression 'substantive capacity' the
emphasis
imparted
by
the
adjective
'substantive' is that a thing is substantive if
it is essential part of the constituent or
relating to what is essential. Therefore,
when a post is vacant, however, designated
in officilase, the capacity in which the
person holds the post has to be ascertained
by the State. The substantive capacity
refers to capacity in which person holds the
post and not necessarily to the nature and
character of the post. Thus, a person is said
to hold a post in a substantive capacity
when he holds it for an indefinite period
especially
for
a
long
duration
in
contradistinction to a person who holds it
for a definite or a temporary period or
holds
it
on
probation
subject
to
confirmation. (Refer:Ram Pratap V. State
of U.P., 2006 (4) ADJ 709, Babu Singh V.
State of U.P., 2006 (8) ADJ 371, Kedar
Ram-I v. State of U.P., 2008 ILR (All)
659, Ram Sajiwan Maurya v. State of
U.P. and others passed in W.P. No.30301
(S/S) of 2004 decided on 12.08.2009,
Kanti Devi v. State of U.P., 2009 (10)
ADJ 18, Kishan Singh v. State of U.P.,
2009 (9) ADJ 516, Awadh Bihari Shukla
v. State of U.P., 2015 (6) ADJ 186).

18. The Division Bench of this Court
in State of U.P. and others v. Mahendra
Chaubey, 2018 (9) ADJ 829, allowed the
claim of pension of a seasonal collection
amin,
whose
temporary
service
was
followed
by
substantive
appointment
despite the petitioner therein having not
rendered 10 years substantive service after
regularization.

19. The principle, that emerges from
the spectrum of the decisions, is that a
temporary employee appointed on the
regular establishment of the Government is
entitled to pension under Fundamental Rule
56.

20. A three Judge Bench of the
Supreme Court in Prem Singh vs. State of
Uttar Pradesh, 2019 LawSuit (SC) 1557,
was considering the question, as to
whether, Rule 3(8) of the U.P. Retirement
Benefits Rules, 1961 and Regulation 370 of
the Civil Services Regulation of Uttar
12 All. Ram Naresh Vs. State of U.P. & Ors.
669
Pradesh should be struck down having
regard to the fact that the Supreme Court
had upheld the pari materia provision
enacted in the State of Punjab, which
excluded computation of the period of
work-charged services from qualifying
service for pension.

21. The appellant before the Supreme
Court was a work-charged employee
having put in more than three decades of
service, pension was declined as the
appellant had not put in 10 years of regular
service after regularization. The question
posed was whether after regularization
employees are entitled to count their past
service. The Court made the following
observations:

"29. 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. 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 regularized time to time by
different orders. However, the services of
some of the appellants in few petitions/
appeals have not been regularized even
though they had served for several decades
and
ultimately
reached
the
age
of
superannuation.

30. 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
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 work-
charged establishment.

31. In view of the note appended to
Rule 3(8) of the 1961 Rules, there is a
provision to count service spent on work
charged, 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.

32. The question arises whether the
imposition of rider that such service to be
670 INDIAN LAW REPORTS ALLAHABAD SERIES
counted has to be rendered in-between two
spells of temporary or temporary and
permanent service is legal and proper. We
find that once regularization 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 Note to
Rule 3 (8) of 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.

33. As it would be unjust, illegal and
impermissible
to
make
aforesaid
classification to make the 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.

34. 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.

35. There are some of the employees
who have not been regularized 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 regularized under the
Government instructions and even as per
the decision of this Court in Secretary,
State of Karnataka and others vs. Uma
Devi, 2006 (4) SCC 1. 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
regularized of such employees. In the facts
of the case, those employees who have
worked for ten years or more should have
been regularized. It would not be proper to
relegate
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
12 All. Mohd. Haidar Vs. State of U.P. & Anr.
671
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.

36. 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."

22. In view of the aforesaid
discussions, in my opinion, the G.O. dated
13.08.2015 as well as decisions of the Apex
Court, the petitioner is entitled to get
regularization of his service from the date
of issuance of G.O. dated 13.08.2015
wherein the cut-off-date for regularization
is mentioned as 31.01.1996.

23. In view thereof, the writ petition
succeeds and the same is allowed. Since the
petitioner has completed 20 years of his service
and comes under the G.O. dated 13.08.2015,
this Court directed that the service of the
petitioner be regularized from the date i.e.
13.08.2015 and the consequential benefits as
well as arrears of pay also to be paid to the
petitioner within a period of two months from
today. The petitioner is also entitled to get
seniority and pension, if he has been retired
from his service.

24. It is made clear that petitioner
shall not be entitled to differences of
arrears
prior
to
the
period
of
his
regularization. The petitioner's services
would be counted as qualified service for
grant of retiral benefits including pension.

25. No order as to cost.
----------
(2020)12ILR A671
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.

Writ -A No. 8797 of 2020

Mohd. Haidar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Surendra Prasad Mishra

Counsel for the Respondents:
C.S.C., Sri Daya Ram Yadav

A.
Service
Law
-
Compassionate
Appointment - Uttar Pradesh Recruitment
of Dependants of Government Servant
Dying in Harness Rules, 1974: Rule 5 -
There is no statutory requirement under law for
seeking permission of Basic Shiksha Adhikari for
the purpose of re-marriage by an employee,
who has been appointed on compassionate
basis. The petitioner has unnecessarily invoked
the writ jurisdiction of this Court. (Para 6, 7)

Right to marry with person of choice is an
integral
part
of
Article
21
of
the
Constitution of India - Rule 5 only provides
that the person employed on compassionate
basis shall maintain other members of the family
of the deceased government servant and in case
he neglects or refuses to maintain them, his
services may be terminated. Merely because
petitioner has been appointed on compassionate
basis, he cannot be forced to sacrifice his/her
fundamental right of remarriage, after the death