# Ram Sewak Yadav (Retired Pump Attendant) v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 828
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-01
- **Case number:** Writ - A No. 9872 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sewak-yadav-retired-pump-attendant-v-state-of-u-p-ors-51490
- **Pages:** 12

## Headnote

C.S.C., Sri Saurabh Tiwari

A. U.P. Nagar Palika Non-Centralized
Services Retirement Benefits Regulations,
1984 - Reg. 2(m), 3 & 13(2) - U.P.
Qualifying
Service
for
Pension
and
Validation
Act,
2021
-
Applicability.
Employees of Nagar Palika Parishad (NonCentralized Services) are governed exclusively
by Regulations of 1984, framed under Ss.
297(2) & 300(2) of U.P. Municipalities Act, 1916
- Act of 2021 has no application.

B. Pension - Qualifying Service - Ad hoc/Dailywage service followed by Regularization -
Whether
reckonable.
Regulation
2(m)
of
1984
Regulations
substantially pari materia with Rule 3(8) of U.P.
Retirement Benefit Rules, 1961 - Supreme
Court in Prem Singh Vs St. of U.P., (2019) 10
SCC 516 read down restrictive provisions and
held continuous service in work-charged/nonpensionable
establishment
followed
by
regularization to be "qualifying service" -
Principle extended to daily wagers/ad hoc
employees later regularized (Kallu Ali Vs St. of
U.P., 2022 (4) AWC 3840).
Held : Para 17 - Petitioner's services from
02.09.1988 (ad hoc appointment) till 25.03.2006
(date of regularization) must be reckoned as
qualifying service along with regular service for
determining pension, gratuity and other post
retiral benefits. Non-consideration of such
service is manifest error.
Mandamus issued - Respondents directed to
revise
and
re-determine
pensionary
dues
including arrears, within 2 months; arrears to be
paid within 1 month thereafter, failing which
interest @ 6% p.a. payable.

Writ Petition Allowed with costs.

List of Cases cited:

## Text

_Characters 0–39,794 of 41,584. This is a partial read: ask again with offset=39794 for what follows._

828 INDIAN LAW REPORTS ALLAHABAD SERIES
India, Lucknow and the District Manager,
Food Corporation of India, Allahabad by
the Registrar (Compliance).
----------
(2024) 2 ILRA 828
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 9872 of 2023

Ram
Sewak
Yadav
(Retired
Pump
Attendant) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Puneet Bhadauria

Counsel for the Respondents:
C.S.C., Sri Saurabh Tiwari

A. U.P. Nagar Palika Non-Centralized
Services Retirement Benefits Regulations,
1984 - Reg. 2(m), 3 & 13(2) - U.P.
Qualifying
Service
for
Pension
and
Validation
Act,
2021
-
Applicability.
Employees of Nagar Palika Parishad (NonCentralized Services) are governed exclusively
by Regulations of 1984, framed under Ss.
297(2) & 300(2) of U.P. Municipalities Act, 1916
- Act of 2021 has no application.

B. Pension - Qualifying Service - Ad hoc/Dailywage service followed by Regularization -
Whether
reckonable.
Regulation
2(m)
of
1984
Regulations
substantially pari materia with Rule 3(8) of U.P.
Retirement Benefit Rules, 1961 - Supreme
Court in Prem Singh Vs St. of U.P., (2019) 10
SCC 516 read down restrictive provisions and
held continuous service in work-charged/nonpensionable
establishment
followed
by
regularization to be "qualifying service" -
Principle extended to daily wagers/ad hoc
employees later regularized (Kallu Ali Vs St. of
U.P., 2022 (4) AWC 3840).
Held : Para 17 - Petitioner's services from
02.09.1988 (ad hoc appointment) till 25.03.2006
(date of regularization) must be reckoned as
qualifying service along with regular service for
determining pension, gratuity and other post
retiral benefits. Non-consideration of such
service is manifest error.
Mandamus issued - Respondents directed to
revise
and
re-determine
pensionary
dues
including arrears, within 2 months; arrears to be
paid within 1 month thereafter, failing which
interest @ 6% p.a. payable.

Writ Petition Allowed with costs.

List of Cases cited:

1. Prem Singh Vs St. of U.P., (2019) 10 SCC 516

2. Dr. Shyam Kumar Vs St. of U.P., 2023 (3)
ADJ 138 (LB)

3. Kallu Ali Vs St. of U.P., 2022 (4) AWC 3840

4. Hari Shankar Asopa Vs St. of U.P., 1989 (1)
UPLBEC 501

5. Yashwant Hari Katakkar Vs U.O.I., (1996) 7
SCC 113

6. VS Sukumaran Vs St. of Kerala, (2020) 8 SCC
106

7. Indian Aluminium Co. Vs St. of Kerala, (1996)
7 SCC 637

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition has been
instituted, praying that a mandamus be
issued to the respondents to grant post
retiral benefits to the petitioner, a Pump
Attendant in the Water Supply Division of
the Nagar Palika Parishad, District Etawah,
after taking into consideration his ad hoc
services.

2. According to the petitioner's case,
he was 'appointed' as a Pump Attendant in
the Water Supply Division of the Nagar
2 All. Ram Sewak Yadav (Retired Pump Attendant) Vs. State of U.P. & Ors.
829
Palika Parishad, Etawah on ad hoc basis
w.e.f. 02.09.1988. His services were
regularized on 26.03.2006. He retired from
service on 31.07.2022, upon attaining the
age of superannuation. It is the petitioner's
case that upon retirement, he claimed his
post retiral dues, which were verified by
the Deputy Director, Local Fund Audit
Department, U.P., Kanpur on 13.02.2023.

3. The grievance of the petitioner is
that despite the said verification and his
entitlement, he has not been paid his post
retiral benefits. It is averred in Paragraph
No.7 of the writ petition that the
respondents have reckoned the petitioner's
entitlement to post retiral benefits from the
date of his regularization and not the date
of his appointment. It is the petitioner's
case that though he is entitled to receive
pension
and
other
retiral
benefits,
reckoning his entire length of service from
the date of his initial appointment, the
respondents have declined to grant him
pension and other commensurate benefits,
taking into consideration the entire length
of his service; not just the period of service
post regularization.

4. Respondent No.4, that is to say, the
Executive Officer, Nagar Palika Parishad,
Etawah has filed a counter affidavit and the
stand taken is that the petitioner's right to
receive pension would be governed by the
Uttar
Pradesh
Nagar
Palika
Non
Centralized Services Retirement Benefits
Regulations,
1984
(for
short,
'the
Regulations of 1984'). It is averred that the
petitioner was initially engaged as a dailywager on 02.09.1988, which was not a
pensionable
post.
His
services
were
regularized on 26.03.2006 i.e. after 1st
April, 2005. As such, the petitioner is not
entitled to receive any retirement pension
in accordance with Regulations 3 and 4 of
the Regulations of 1984. It is also urged
that the petitioner did not hold a
'pensionable post' as defined in Regulation
2(k) of the Regulations of 1984 nor has he
rendered
'qualifying
service'
under
Regulation 2(m) of the Regulations last
mentioned.

5.

The
thrust
of
the
fourth
respondent's case, set up in the counter
affidavit, is that the petitioner did not hold
any substantive or pensionable post prior to
26.03.2006,
when
his
services
were
regularized. His services rendered earlier
were ad hoc in nature and not services
rendered against any pensionable post. The
petitioner's appointment to a post came
after 01.04.2005, and, therefore, under
Regulation 3(4) of the Regulations of 1984,
the petitioner is not entitled to pension and
gratuity by virtue of Regulation 13(2). It is
also pleaded that by an order dated
13.02.2023 passed by the Deputy Director,
Local Fund Audit Department, U.P.,
Kanpur, the petitioner has been rightly
denied sanction of pension and gratuity in
accordance
with
the
provisions
of
Regulation 13(2) of the Regulations of
1984, an order that the petitioner has not
challenged. The said order has become
final and in the absence of a challenge to
the said order, no mandamus can be issued
to pay the petitioner his pension and
gratuity.

6. Heard Mr. Puneet Bhadauria,
learned Counsel for the petitioner and Mr.
Saurabh Tiwari, learned Counsel appearing
on behalf of the Nagar Palika Parishad,
respondent Nos.3 and 4.

7. The relief in this writ petition,
though rather vaguely worded as one
seeking grant of post retiral benefits, after
computing ad hoc services rendered by the
830 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, is one that seeks the grant of
pension and gratuity upon reckoning the
petitioner's period of engagement as an ad
hoc employee together with the period of
service post regularization. It is common
ground between parties that the petitioner's
entitlement to receive his pension and
gratuity, in fact, all retirement benefits, are
governed by the Regulations of 1984. This
commonality of stand is evident upon a
conjoint perusal of Paragraph No.15 of the
writ petition and Paragraph No.9 of the
counter affidavit. The respondent-Nagar
Palika Parishad, go as far as saying that the
Uttar Pradesh Qualifying Service for
Pension and Validation Act, 2021 (for
short, 'the Act of 2021') will not apply to
employees of the Nagar Palika Parishad,
belonging to the Non-Centralized Services,
for whom the Regulations of 1984 have
been framed by the Nagar Palika Parishad
in exercise of powers conferred by Section
297(2) and sub-Section (2) of Section 300
of the U.P. Municipalities Act, 1916 (for
short, 'the Act of 1916').

8. It is the submission of Mr. Puneet
Bhadauria,
learned
Counsel
for
the
petitioner that the petitioner is entitled to
reckon his services on ad hoc basis
rendered in the establishment of the Nagar
Palika Parishad together with his services
rendered post regularization. To support the
aforesaid submission of his, Mr. Bhadauria
relies upon the interpretation of Section 2
of the Act of 2021, which he submits, has
been read down by a learned Single Judge
of this Court in Dr. Shyam Kumar v.
State of U.P. and another, 2023 (3) ADJ
138 (LB). The issue before the learned
Single Judge in Dr. Shyam Kumar (supra)
arose in the context of different categories
of employees, such as work-charged
employees,
daily-wagers,
ad
hoc
employees and seasonal collection peon/
amin. All these various categories of
employees were not regular employees in
their various establishments, appointed on
either temporary or permanent posts. All of
them were engaged on one or the other
kind of terms of employment, such as
work-charged employees or daily-wagers
or ad hoc with the common genre being
that the appointment was dehors the Rules
and not an appointment temporary or
permanent on a sanctioned post in the
establishment. They were regularized in
service later on, but wanted their services
for the period that they were not part of the
establishment, in one capacity or the other,
to be counted for the purpose of granting
them post retiral benefits, treating it as
qualifying
service.
Their
claim
was
inspired by the decision of the Supreme
Court in Prem Singh v. State of Uttar
Pradesh and others, (2019) 10 SCC 516.

9. Now, Prem Singh (supra) was a
case, where their Lordships of the Supreme
Court were confronted with the validity of
the Uttar Pradesh Retirement Benefit
Rules, 1961 (for short, 'the Rules of 1961')
and the Civil Services Regulations, which
did not entitle payment of pension to such
employees, who had been part of the workcharged establishment, but not temporary
or permanent employees, appointed against
a post in accordance with Rules. It was in
the context of the said Rules that the
Supreme Court held in Prem Singh, of
which note has been taken by the learned
Single Judge in Dr. Shyam Kumar:

"30. We are not impressed by the
aforesaid submissions. The appointment of
the work-charged employee in question had
been made on monthly salary and they
were required to cross the efficiency bar
also. How their services are qualitatively
different from regular employees? No
2 All. Ram Sewak Yadav (Retired Pump Attendant) Vs. State of U.P. & Ors.
831
material indicating qualitative difference
has been pointed out except making bald
statement. The appointment was not made
for a particular project which is the basic
concept of the work-charged employees.
Rather, the very concept of work-charged
employment has been misused by offering
the employment on exploitative terms for
the work which is regular and perennial in
nature. The work-charged employees had
been subjected to transfer from one place to
another like regular employees as apparent
from documents placed on record. In
Narain Dutt Sharma v. State of U.P. [CA
No. ______2019 arising out of SLP (C) No.
5775 of 2018] the appellants were allowed
to cross efficiency bar, after '8' years of
continuous service, even during the period
of work-charged services. Narain Dutt
Sharma, the appellant, was appointed as a
work-charged employee as Gej Mapak with
effect from 15-9-1978. Payment used to be
made monthly but the appointment was
made in the pay scale of Rs 200-320.
Initially, he was appointed in the year 1978
on a fixed monthly salary of Rs 205 per
month. They were allowed to cross
efficiency bar also as the benefit of pay
scale was granted to them during the period
they served as work-charged employees
they served for three to four decades and
later on services have been regularised time
to time by different orders. However, the
services of some of the appellants in few
petitions/appeals have not been regularised
even though they had served for several
decades and ultimately reached the age of
superannuation.

31. In the aforesaid facts and
circumstances, it was unfair on the part of
the State Government and its officials to
take work from the employees on the workcharged basis. They ought to have resorted
to an appointment on regular basis. The
taking of work on the work-charged basis
for
long
amounts
to
adopting
the
exploitative device. Later on, though their
services have been regularised. 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 workcharged establishment.
 32. In view of the Note appended
to Rule 3(8) of the 1961 Rules, there is a
provision to count service spent on workcharged, contingencies or non-pensionable
service, in case, a person has rendered such
service in a given between period of two
temporary appointments in the pensionable
establishment or has rendered such service
in
the
interregnum
two
periods
of
temporary and permanent employment. The
work-charged service can be counted as
qualifying service for pension in the
aforesaid exigencies.

33. The question arises whether
the imposition of rider that such service to
be counted has to be rendered in-between
two spells of temporary or temporary and
permanent service is legal and proper. We
find that once regularisation had been made
on vacant posts, though the employee had
not served prior to that on temporary basis,
considering the nature of appointment,
though it was not a regular appointment it
was made on monthly salary and thereafter
in
the
pay
scale
of
work-charged
establishment the efficiency bar was
permitted to be crossed. It would be highly
discriminatory and irrational because of the
rider contained in the Note to Rule 3(8) of
832 INDIAN LAW REPORTS ALLAHABAD SERIES
the 1961 Rules, not to count such service
particularly, when it can be counted, in case
such service is sandwiched between two
temporary or in-between temporary and
permanent services. There is no rhyme or
reason not to count the service of workcharged period in case it has been rendered
before regularisation. In our opinion, an
impermissible classification has been made
under Rule 3(8). It would be highly unjust,
impermissible and irrational to deprive
such employees benefit of the qualifying
service. Service of work-charged period
remains the same for all the employees,
once it is to be counted for one class, it has
to
be
counted
for
all
to
prevent
discrimination. The classification cannot be
done on the irrational basis and when
respondents are themselves counting period
spent in such service, it would be highly
discriminatory not to count the service on
the basis of flimsy classification. The rider
put on that work-charged service should
have preceded by temporary capacity is
discriminatory and irrational and creates an
impermissible classification.

34. As it would be unjust, illegal
and impermissible to make aforesaid
classification to make Rule 3(8) valid and
non-discriminatory, we have to read down
the provisions of Rule 3(8) and hold that
services
rendered
even
prior
to
regularisation in the capacity of workcharged employees, contingency paid fund
employees
or
non-pensionable
establishment shall also be counted towards
the qualifying service even if such service
is not preceded by temporary or regular
appointment
in
a
pensionable
establishment.

35. In view of the Note appended
to Rule 3(8), which we have read down, the
provision contained in Regulation 370 of
the Civil Services Regulations has to be
struck down as also the instructions
contained in Para 669 of the Financial
Handbook.

36. There are some of the
employees who have not been regularised
in spite of having rendered the services for
30-40 or more years whereas they have
been superannuated. As they have worked
in the work-charged establishment, not
against any particular project, their services
ought to have been regularised under the
Government instructions and even as per
the decision of this Court in State of
Karnataka v. Umadevi (3) [State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1
: 2006 SCC (L&S) 753] . This Court in the
said decision has laid down that in case
services have been rendered for more than
ten years without the cover of the Court's
order, as one-time measure, the services be
regularised of such employees. In the facts
of the case, those employees who have
worked for ten years or more should have
been regularised. It would not be proper to
regulate
them
for
consideration
of
regularisation
as
others
have
been
regularised, we direct that their services be
treated as a regular one. However, it is
made clear that they shall not be entitled to
claiming any dues of difference in wages
had they been continued in service
regularly before attaining the age of
superannuation. They shall be entitled to
receive the pension as if they have retired
from the regular establishment and the
services rendered by them right from the
day
they
entered
the
work-charged
establishment
shall
be
counted
as
qualifying service for purpose of pension.

37. In view of reading down Rule
3(8) of the U.P. Retirement Benefits Rules,
1961, we hold that services rendered in the
work-charged
establishment
shall
be
treated as qualifying service under the
aforesaid rule for grant of pension. The
arrears of pension shall be confined to three
2 All. Ram Sewak Yadav (Retired Pump Attendant) Vs. State of U.P. & Ors.
833
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."

10. After the decision of the Supreme
Court in Prem Singh, the State Legislature
of Uttar Pradesh enacted the Act of 2021,
which is castigated to have attempted a
brazen
legislative
overruling
of
the
Supreme Court's judgment in Prem Singh,
without removing the defect or the vices
that were read down by the Supreme Court
in Prem Singh to save the Rules of 1961
and the Civil Services Regulations from
being struck down as ultra vires. It was in
the context of the aforesaid fact that
Section 2 of the Act of 2021 was read down
by my esteemed Brother Vivek Chaudhary
in Dr. Shyam Kumar in terms of the
following remarks:

"6. ..........

Thus, the Supreme Court held
that since the State Government has
proceeded to take work on long term basis
from the work charge employees, without
there being a rational classification between
the work performed by such work charge
employees and the regular employees of
the State Government, the Rules are
required to be read down, as otherwise they
would be arbitrary and, thus, gave benefit
of the services rendered as work charge
employees in counting the period of
qualifying service for pensionary benefits.
 7. Now, by the Act of 2021, the
effect of the aforesaid judgment of the
Supreme Court is attempted to be undone
by the State Government. It has come up
with Section 2, which provides:

"2.
Notwithstanding
anything
contained in any rule, regulation or
Government order for the purposes of
entitlement of pension to all officer,
"Qualifying Service" means the services
rendered by an officer appointed on a
temporary
or
permanent
post
in
accordance with the provisions of the
service rules prescribed by the Government
for the post."

Thus, as per section 2 of the Act
of 2021, if a person was not appointed on a
temporary or permanent post as per service
Rules, his services would not be qualifying
service for the purposes of pension. Law
with regard to the manner in which the
Legislature can nullify or modify the
impact of a judgment is settled since long.
Suffice is to refer to the case of Indian
Aluminium Co. and others vs. State of
Kerala and others (1996) 7 SCC 637. In
the said case, after considering the entire
law on subject, the Supreme Court in Para
56 of the judgment enumerates the
principles, which read:
 "56. From a resume of the above
decisions the following principles would
emerge:
 (1) The adjudication of the rights
of the parties is the essential judicial
function. Legislature has to lay down the
norms of conduct or rules which will
govern the parties and the transactions and
require the court to give effect to them;

(2) The Constitution delineated
delicate balance in the exercise of the
sovereign
power
by
the
legislature,
executive and judiciary;
 (3) In a democracy governed by
rule of law, the legislature exercises the
power under Articles 245 and 246 and
other companion articles read with the
entries in the respective lists in the Seventh
Schedule to make the law which includes
power to amend the law.

(4) Courts in their concern and
endeavour to preserve judicial power
equally must be guarded to maintain the
834 INDIAN LAW REPORTS ALLAHABAD SERIES
delicate
balance
devised
by
the
Constitution between the three sovereign
functionaries. In order that rule of law
permeates to fulfil constitutional objectives
of establishing an egalitarian social order,
the respective sovereign functionaries need
free play in their joints so that the march of
social
progress
and
order
remains
unimpeded. The smooth balance built with
delicacy must always be maintained;

(5) In its anxiety to safeguard
judicial power, it is unnecessary to be
overzealous and conjure up incursion into
the judicial preserve invalidating the valid
law competently made;

(6) The court, therefore, needs to
carefully scan the law to find out: (a)
whether the vice pointed out by the court
and invalidity suffered by previous law is
cured complying with the legal and
constitutional requirements; (b) whether
the legislature has competence to validate
the law; (c) whether such validation is
consistent with the rights guaranteed in
Part III of the Constitution.

(7) The court does not have the
power to validate an invalid law or to
legalise impost of tax illegally made and
collected or to remove the norm of
invalidation or provide a remedy. These
are not judicial functions but the exclusive
province of the legislature. Therefore, they
are not encroachment on judicial power.

(8)
In
exercising
legislative
power, the legislature by mere declaration,
without anything more, cannot directly
overrule, revise or override a judicial
decision. It can render judicial decision
ineffective by enacting valid law on the
topic
within
its
legislative
field
fundamentally altering or changing its
character retrospectively. The changed or
altered conditions are such that the
previous decision would not have been
rendered by the court, if those conditions
had existed at the time of declaring the law
as invalid. It is also empowered to give
effect to retrospective legislation with a
deeming date or with effect from a
particular date. The legislature can change
the character of the tax or duty from
impermissible to permissible tax but the tax
or levy should answer such character and
the legislature is competent to recover the
invalid tax validating such a tax on
removing the invalid base for recovery
from the subject or render the recovery
from the State ineffectual. It is competent
for the legislature to enact the law with
retrospective effect and authorise its
agencies to levy and collect the tax on that
basis, make the imposition of levy collected
and recovery of the tax made valid,
notwithstanding the declaration by the
court or the direction given for recovery
thereof.

(9) The consistent thread that
runs through all the decisions of this Court
is that the legislature cannot directly
overrule the decision or make a direction
as not binding on it but has power to make
the decision ineffective by removing the
base on which the decision was rendered,
consistent with the law of the Constitution
and the legislature must have competence
to do the same."

8. The law long settled is that the
Legislature can render judicial decision
ineffective by enacting valid law on the
topic within its legislative field by
fundamentally altering or changing its
character retrospectively. The changed or
altered conditions should be such that the
previous decision would not have been
rendered by the court, if those conditions
had existed at the time of declaring the law
as invalid.

9. Therefore, the question now
before this Court is whether by bringing
Act of 2021, the State Government has
2 All. Ram Sewak Yadav (Retired Pump Attendant) Vs. State of U.P. & Ors.
835
done away with the vice pointed out by the
Supreme Court in case of Prem Singh
(supra). In the said judgment, the Supreme
Court found that the State Government has
adopted exploitative labour practice by
taking work of regular employees from
work charge employees on long term basis
without any rationale classification while
refusing them benefits available to regular
employees. Supreme Court specifically
held that the State Government can not get
involved in corrupt labour practices. On the
aforesaid grounds, the Supreme Court read
down the provisions of Rule 3(8) of the
Rules of 1961 and struck down Regulation
370 of Civil Services Regulations and Para
669 of the Financial Handbook.

10. It is the duty of State to create
new temporary or permanent posts as per
its needs and make appointments on the
same. Law also permits State to appoint
daily wagers or work charge employees,
but only when the work is for short period
or is in a work charge establishment for
fixed duration. Law does not permit the
State to take work for long period,
extending even for the entire working life
of a person, on temporary or work charge
basis. In such cases, it is the duty of State
to
create
new
posts
and
make
appointments, giving all benefits of regular
employees. Otherwise, State would be
found to be adopting exploitative labour
practice. This is the vice pointed out by the
Supreme Court in Prem Singh's case
(supra), and instead of removing the same,
the State by Section 2 of the Act of 2021
has extended the sphere of its illegality. By
Section 2 of the Act of 2021, it desires to
take benefit of its own failure of creating
posts in time and making appointments on
the same, by not counting the said period of
such service for pensionary benefits. State
still fails to explain the rationale on the
basis of which it has created this new
classification and the manner in which, by
the amended provision, it has removed the
irrationality.

In case Section 2 of the Act of
2021 is given a literal meaning it would
mean that services rendered by a person on
a temporary or permanent post alone can be
counted for pension. The same would again
be an exploitative device and labour
malpractice,
as
by
this,
the
State
Government is again attempting to use
persons to work for it on long term basis,
just like regular employees, without giving
them benefits they are entitled to as regular
employees. The very vice pointed by the
Supreme Court in the judgment of Prem
Singh (supra) with regard to work charge
employees is, in fact, now made applicable
to even larger number of employees and
extended to daily wagers and other persons
not working on a temporary or a permanent
post including, work charge employees.

In case of V. Sukumaran vs.
State of Kerala (2020) 8 SCC 106, the
Supreme Court held:

"22. We begin by, once again,
emphasising that the pensionary provisions
must be given a liberal construction as a
social welfare measure. This does not imply
that something can be given contrary to
rules, but the very basis for grant of such
pension must be kept in mind i.e. to
facilitate a retired government employee to
live with dignity in his winter of life and,
thus,
such
benefit
should
not
be
unreasonably denied to an employee, more
so on technicalities."

Thus, again to save Section 2 of
the Act of 2021 from the vice/arbitrariness,
in the spirit of the judgment of Prem Singh
(supra), the word 'post'

is required to be diluted to save it
from arbitrariness and hence, the word
'post' used in Section 2 of the Act of 2021,
be it temporary or permanent, has to be
836 INDIAN LAW REPORTS ALLAHABAD SERIES
read down as 'services rendered by a
government employee, be it of temporary
or permanent nature'.

11. The other case laws cited by
learned counsel for the petitioners as well
as by learned Standing Counsel, as noted
above, are not applicable in the facts and
circumstances of the present cases, as in
none of the above cited cases, interpretation
of Section 2 of the Act of 2021 is
considered.

12. In the light of aforesaid, since
Section 2 of the Act of 2021 also suffers
from the vice pointed out by the Supreme
Court in the case of Prem Singh (supra),
hence, to be brought out of arbitrariness, it
is read down and services rendered on
temporary or permanent post is read as
services
rendered
by
a
government
employee, be it of temporary or permanent
nature. Therefore, it is held that the
petitioners are also entitled for the benefit
of the judgment of Prem Singh (supra). All
the impugned orders are set aside."

11. It must be observed that the above
remarks, though on principle ones that
cover the case of all kind of employees,
who were not part of the regular
establishment, selected in accordance with
the Rules, were made in the context of
work-charged employees. But, the case of
the daily-wager was also considered on the
same touchstone by his Lordship and in
regard to them it was observed:

"14. It is settled since long that
daily wager employees are entitled to
pensionary benefits counting their services
from the date of their initial appointment
and
not
from
the
date
of
their
regularization. Suffice would be to refer to
the judgment in cases of Hari Shankar
Asopa vs. State of U.P. and another,
1989(1) UPLBEC 501; Yashwant Hari
Katakkar vs. Union of India and others,
1996 (7) SCC 113; and Prem Singh
(supra). In fact earlier they were covered by
Rule 2 of U.P. Retirement Benefit Rules,
1961 and other Civil Services Regulations.

15.
Now
learned
Standing
Counsel submits that in view of Section 2
of the Act of 2021, since petitioners were
not appointed on a temporary or permanent
post initially, therefore, benefit of said
services cannot be granted to them.

16. The said aspect of the matter
is already discussed above at length.
Section 2 of the Act of 2021 is already read
down and it is held that the word 'post' used
in Section 2 of the Act of 2021, be it
temporary or permanent, has to be read
down
as
'services
rendered
by
a
government employee, be it of temporary
or permanent nature'."

12. This Court would think that the
doctrine of reading down may not be
attracted at all in a case where the vires of
the
statute
is
not
under
challenge.
Apparently, in Dr. Shyam Kumar, there
was no challenge raised to the vires of the
Act of 2021. This Court would think that
the doctrine of reading down is a principle
devised to save a statute, otherwise ultra
vires and fit to be struck down. And, that
too can be done if the words of the
legislature are not so clear as not to admit
of any ambiguity. If the legislative intent is
unmistakable
by
its
words,
the
constitutionality thereof upon a challenge
raised has either to be upheld or the
challenge sustained with a striking down of
the offending portion. However, in cases
where the statute is capable of being
ascribed two or more meanings, reading
down affords a less intrusive alternative to
the striking down of a statute, which the
Court finds otherwise must be. A statute in
order to be struck down requires the person
2 All. Ram Sewak Yadav (Retired Pump Attendant) Vs. State of U.P. & Ors.
837
challenging its vires to specifically plead
that case and come up with a prayer for the
purpose. It is only in a case where that kind
of a prayer is there, which the Court on
hearing finds fit to be granted that the
milder alternative to remedy the legislative
flaw, may be resorted to by reading it
down. If there is no prayer to strike down a
statute or a provision thereof, we do not
think that it can be resorted as a principle of
statutory interpretation or construction,
while judging rights of parties affected by
the statute.

13. Nevertheless, this Court leaves
this issue open in the matter, inasmuch as
this case may be decided effectively on a
different point altogether. The principle
laid down by the Supreme Court in Prem
Singh can be said to be negated by the Act
of 2021, in cases where the said Act
applies. In the present case, it is common
ground between parties that the Act of 2021
does not apply; rather, the entitlement of
the
petitioner
is
governed
by
the
Regulations of 1984. It is true that the Act
of 2021 would not affect the petitioner's
rights, but the decision in Prem Singh was
rendered in the context of Rule 3(8) of the
Rules of 1961 and Regulation 370 of the
Civil Services Regulations of U.P. in case
of work-charged employees, who had
worked for a long period of time, holding
that non-consideration of long service in
the work-charged establishment would be
discriminatory
in
view
of the
note
appended to Rule 3(8) of the Rules of 1961,
which says that 'If service rendered in a
non-pensionable
establishment,
workcharged establish-ment or in a post paid
from contingencies falls between two
periods
of
temporary
service
in
a
pensionable establishment or between a
period of temporary service and permanent
service in a pensionable establishment, it
will not constitute an interruption of
service'. This note appended to Rule 3(8)
(supra) was regarded as creating a class
without an intelligible differentia bearing
nexus with the object of classification, and,
therefore, discriminatory when compared to
a
case
of
continuous
work-charged
establishment. It was in the context of Rule
3(8) of the Rules of 1961 and Regulation
370 of the Civil Services Regulations of
U.P. that continuous service in the workcharged establishment was held by their
Lordships of the Supreme Court to entitle
the employee to a reckoning of the workcharged period with service rendered in the
regular establishment.

14. Regulation 2(m) of the Rules of
1984 reads:

"2. Definition.- .....

(m) "qualifying service" means
service which qualified for pension, in
accordance with the provisions of Article
368 of the Civil Service Regulations, as
amended from time to time, excepting the
following:

(i) periods of temporary or
officiating service in a non-pensionable
establishment under the Municipal Board
concerned;

(ii) periods of service in a workcharged establishment; and

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

Provided
that
period
of
continued, temporary or officiating service
under the Municipal Board concerned shall
count as qualifying service if it is followed
by confirmation on the same post or any
other post without any interruption of
service.

NOTE-If service rendered in a
non-pensionable
establishment,
workcharged establishment or in a post paid
838 INDIAN LAW REPORTS ALLAHABAD SERIES
from contingencies falls between two
periods
of
temporary
service
in
a
pensionable establishment or between a
period of temporary service and permanent
service in a pensionable establishment it
will not constitute an interruption of
service."

15. Now, the definition of 'qualifying
service'
in
Regulation
2(m)
of
the
Regulations of 1984 is almost cast in the
same terms as that in Rule 3(8) of the Rules
of 1961, that were read down by the
Supreme Court in Prem Singh to hold that
services rendered in the work-charged
establishment
would
be
treated
as
'qualifying
service'
under
the
last
mentioned Rules for the purpose of grant of
pension. The principle in Prem Singh, to
reckon continuous service in the workcharged
establishment
as
'qualifying
service' under Rule 3(8) of the Rules of
1961, has been extended in its application
to continuous service of any kind, such as
those rendered on daily-wages or ad hoc
basis, followed by regularization, on the
same post and in the same capacity. These
principles have been adopted, particularly,
in case of long retention in service on
daily-wages or ad hoc basis or workcharged establishment, followed by
regularization. Without reference to
much authority on this point, it would
suffice to refer to a decision of this
Court in Kallu Ali v. State of U.P. and
others, 2022 (4) AWC 3840, a case
relating
to
an
employee
of
a
Development
Authority,
who
had
worked for a long time on daily-wages
and then regularized in service. The
issue had arisen in Kallu Ali (supra) in
the context of his qualifying service for
the purpose of entitlement to pension.
After a copious review of authority on
the point in Kallu Ali, it was held:

"28. The authorities referred to
herein above and those of this Court clearly
hold that if an employee has discharged
duties whether temporarily or as a daily
wager or on ad hoc basis on a post for
which requirement was there and services
of such an employee have come to be
regularized on the said post or in the same
capacity,
the
period
spent
before
regularization should be considered and
added to pensionable services. The courts
have not approved the act and conduct of
the employer to deny pension to its
employee if he has rendered a number of
substantial year of continuous service in an
establishment
leading
to
his
/
her
regularization if such an establishment
holds a pensionable service. The State
Government has been taken to be a model
employer and a State being a welfare State,
the courts have shown serious concern in
the event an employee who has spent all his
life in the service of such establishment,
stands denied pension on his attaining the
age of superannuation and being retired as
such."

16. The line of decisions noticed in
Kallu Ali and the extension of the principle
to various classes of employees, who had
worked outside the regular establishment
followed by regularization, asking their
service rendered dehors the rules to be
reckoned for the purpose of their qualifying
service, entitling them to pension etc., are
all based on the principle in Prem Singh.
In the opinion of this Court, this line of
decisions would pose some difficulty in
cases of employees of establishments of the
State Government, to which the Act of
2021 applies and which, as said earlier,
virtually upturns the principles laid down
by the Supreme Court in Prem Singh. This
would, however, not be the case about
establishments, to which the Act of 2021
2 All. Rajendra Dhar Dwivedi Vs. State of U.P. & Ors.
839
does not apply. It has already been noticed
that there is no issue in this case that the
Act of 2021 does not apply to the
respondents. What, therefore, follows is
that the law laid down in Prem Singh
would govern the rights of employees in
the
respondents'
establishment.
The
decisions that have followed and extended
the principle in Prem Singh to classes of
employees functioning dehors the rules
followed by regularization for the purpose
of reckoning their qualifying service,
entitling them to pension, would squarely
apply to the petitioner's case.

17. In the opinion of this Court,
therefore, the petitioner is entitled to the
reckoning of his services rendered on ad
hoc basis w.e.f. 02.09.1988 until his
regularization in service on 26.03.2006 for
the purpose of determining his post retiral
benefits. The respondents have committed
a manifest error in not taking into account
the period of service rendered on ad hoc
basis prior to regularization for the purpose
of determining the petitioner's pension,
gratuity and other post retiral benefits.
These have to be determined taking into
account the entire period of service,
including that rendered on ad hoc basis
prior to regularization.

18. In the result, this petition succeeds
and is allowed with costs.