# Sajeevan Lal & Ors v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-23
- **Case number:** Writ A No. 22586 of 2019
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sajeevan-lal-ors-v-state-of-u-p-ors-49697
- **Pages:** 36

## Headnote

Civil Law - Pension - Part time Tube well
operators - Irrigation Department Tube
Well Operators Service Rules 1953 - UP
Irrigation department regularization of
part time tube well operators on the posts
of tube well operators rules, 1996 -
computation of "qualifying service' for
grant of pensionary benefits - Petitioners
appointed
as
"Part
time
Tube
well
operators" during the year 1987 to 1994 -
their services were regularized during the
year 2008 to 2009 - Petitioners prayed to
reckon the services from the date of their
initial appointment as "Part time tube well
operators"
for
the
purposes
of
consequential services benefits including
pensionary benefits i.e. all the service
benefits be reckoned from their date of
respective appointment and not from their
date of regularization - Held - "Part time
tube
well
operators"
were
initially
appointed under 'executive instructions',
without
following
the
procedure
prescribed under 1953 Rules - part time
tube well operators neither held nor were
appointed on a temporary or a permanent
post prior to their regularization - They
came to be appointed on a substantive
post only after their regularization and as
such there service cannot be reckoned
from the date of their appointment as part
time tube well operators, but it has to be
from
their
respective
date
of
regularization - "qualifying service" for
the purpose of pension shall be reckoned
from the date, when they had been
regularized in the regular post as Tube
well operator - Even, the services of the
petitioners cannot be reckoned from the
date of 17.12.1996 i.e. the date of
promulgation
of
"U.P
Irrigation
Department Regularization of Part-time
Tube well operators on the posts of Tube
well operators Rules, 1996" as the rules of
regularization clearly postulates that the
said rules applied to only those part time
tube well operators who were appointed
prior to 01.10.1986 - regularisation can be
prospective and not retrospective - As,
petitioners
were
appointed
after
01.10.1986 & came to be regularized only
in 2008-2009, when the new pension
scheme was in vogue in view of the "U.P.
Retirement Benefits (Amendment) Rules,
2005" w.e.f 01.04.2005, therefore writ
petitioners not entitled to the Old pension
scheme (Para 75, 80, 81)

Allowed. (E-5)
108 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

_Characters 0–39,169 of 127,430. This is a partial read: ask again with offset=39169 for what follows._

2 All. Sajeevan Lal & Ors. Vs. State of U.P. & Ors.
107
except for the back wages, the petitioner
shall be entitled to get all the other benefits
consequent to quashing of the removal
order, including seniority etc.

66. So far as the petitioner's challenge
to the adverse remarks awarded for the year
2011-12 is concerned, the same had not
been awarded by way of punishment and
the same are based on the appraisal of the
petitioner's work by the District Judge and
the Administrative Judge had rejected the
petitioner's
representation
against
the
adverse remarks. We do not find any good
ground to interfere with the adverse
remarks and the prayer made by the
petitioner in this regard is rejected.
----------
(2023) 2 ILRA 107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 22586 of 2019
&
other connected cases

Sajeevan Lal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Subhas Chandra Pandey

Counsel for the Respondents:
C.S.C.

Civil Law - Pension - Part time Tube well
operators - Irrigation Department Tube
Well Operators Service Rules 1953 - UP
Irrigation department regularization of
part time tube well operators on the posts
of tube well operators rules, 1996 -
computation of "qualifying service' for
grant of pensionary benefits - Petitioners
appointed
as
"Part
time
Tube
well
operators" during the year 1987 to 1994 -
their services were regularized during the
year 2008 to 2009 - Petitioners prayed to
reckon the services from the date of their
initial appointment as "Part time tube well
operators"
for
the
purposes
of
consequential services benefits including
pensionary benefits i.e. all the service
benefits be reckoned from their date of
respective appointment and not from their
date of regularization - Held - "Part time
tube
well
operators"
were
initially
appointed under 'executive instructions',
without
following
the
procedure
prescribed under 1953 Rules - part time
tube well operators neither held nor were
appointed on a temporary or a permanent
post prior to their regularization - They
came to be appointed on a substantive
post only after their regularization and as
such there service cannot be reckoned
from the date of their appointment as part
time tube well operators, but it has to be
from
their
respective
date
of
regularization - "qualifying service" for
the purpose of pension shall be reckoned
from the date, when they had been
regularized in the regular post as Tube
well operator - Even, the services of the
petitioners cannot be reckoned from the
date of 17.12.1996 i.e. the date of
promulgation
of
"U.P
Irrigation
Department Regularization of Part-time
Tube well operators on the posts of Tube
well operators Rules, 1996" as the rules of
regularization clearly postulates that the
said rules applied to only those part time
tube well operators who were appointed
prior to 01.10.1986 - regularisation can be
prospective and not retrospective - As,
petitioners
were
appointed
after
01.10.1986 & came to be regularized only
in 2008-2009, when the new pension
scheme was in vogue in view of the "U.P.
Retirement Benefits (Amendment) Rules,
2005" w.e.f 01.04.2005, therefore writ
petitioners not entitled to the Old pension
scheme (Para 75, 80, 81)

Allowed. (E-5)
108 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Suresh Chandra Tiwari & ors. Vs St. of U.P. &
ors. W.P. No. 3558 of 1992

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

3. Dukh Haran Singh Vs St. of U.P. ( SLP No.
27713 of 2009)

4. St. of U.P. & ors. Vs Dukh Haran Singh & ors.
(special Appeal No. 240 of 2009),

5. C.N. Rudramurthy Vs K. Barkathulla Khan &
ors. (1998) 8 SCC 275

6. Namo Narayan Rai Vs St. of U.P (Writ Petition
No. 13626 of 2017)

7. Subhash Chandra Mishra & ors. Vs St. of U.
P. & ors. Writ Petition No.- A 52397/2009

8. Shitala Prasad Shukla Vs St. of U.P. AIR 1986
SC 1859

9. U.P. Panchayat Adhikari Sangh & ors. Vs
Daya Ram Saroj & ors., (2007) 2 SCC 138

10. Murari Lal Vs St. of U.P. ( Writ A No.
35425/1997)

11. Direct Recruits Direct Recruit Class-II
Engineering Officers' Association Vs St. of Mah.
AIR 1990 SC 1607

12. Sichai Majdoor Sangh Vs St. of U.P. & ors.:
1996 (1) UPLBEC 9

13. St. of Bihar Vs Rajmati Devi

14. The St. of U.P. & ors. Vs Uttam Singh Civil
Appeal No. 4575/2021

15. St. of Orissa Vs Sudhansu Sekhar Misra,
(1968) 2 SCR 154

16. Registrar General of India & anr. Vs V.
Thippa Setty & ors. 1998 Vol. 8 SCC 690

17. U.O.I. & ors. Vs Sheela Rani (2007) 15 SCC 230)

18. St. of Har. Vs Jasmer Singh (1996) 11 SCC
77
(Delivered by Hon'ble Om Prakash Shukla, J.)

1. The conundrum relating to the
reckoning of dates for the purpose of
computation of "qualifying service' for
grant of pensionary benefits to an employee
having being regularized to a post has been
a subject matter of adjudication in several
judgments in the past and although this
court has in several precedents has carved a
niche leading to the development of service
jurisprudence on the said issue, but
unfortunately the controversy has refused
to die down and yet, the present bunch of
matters have come for consideration before
this court.

2. Since, common issue is raised in all
these writ petitions, the bunch is being
taken for final disposal together.

3. Apparently, there are two class of
petitioners in these bunch of petitions, the
first being those petitioners who had as per
the direction of this court given a detailed
representation to the authority and their
representation
having
been
decided
unfavourably against them vide various
orders including order dated 05.11.2020,
10.07.2018 etc., have again approached this
court challenging the said impugned orders
and the second class of petitioner belonging
to those category, who have approached
this court for the first time highlighting the
self-same issue, which had been raised by
the first set of petitioners in the earlier
round of litigation. The similarity, however,
lies in the entry in service, therefore, the
above classification in the pursuit of an
identical right is immaterial. Suffice it to
say that entry in service at par with a
member of service is either by regular
appointment according to service rules or
by
regularization
according
to
regularization rules.
2 All. Sajeevan Lal & Ors. Vs. State of U.P. & Ors.
109

4. Heard Shri Sudeep Seth, learned
Senior Advocate assisted by Shri Kunj
Bihari Pandey, Advocate for the petitioner
and Additional Advocate General Shri
Ramesh Kumar Singh, Senior Advocate
assisted by Shri Sanjay Sarin, Shri Pratyush
Tripathi, learned Additional Chief Standing
Counsel's for the State and Shri Tushar
Verma, learned Special Counsel for the
opposite parties.

5. It is the common case of the
petitioners that, they had been appointed as
"Part time Tube well operators" during the
year 1987 to 1994 and their services were
regularized during the year 2008 to 2009. It
is their case that although they had been
regularized in the year 2008-2009, however
in view of the judgment of this court passed
in writ petition No. 3558 of 1992 (Suresh
Chandra Tiwari and others Vs. State of
U.P. and others) by a Single Bench on
18.05.1994,
which
was
subsequently
upheld by the Hon'ble Apex Court vide
order dated 22.03.1995, wherein these "Part
time tube well operators" have been
granted the same emoluments i.e. in the
same scale of pay which were given to the
regular Tube well operators, they have now
claimed
pensionary
benefits
etc.
by
including
past
services
from
initial
engagement for the purpose.

6. Rule of law is the hall mark of a
democractic society. In the pursuit of this
object public services play a vital role. The
appoitment of personnel to public services
play a vital role. The appointment of
personnel to public services at the grassroot
level has throughout posed vexatious
problems in the matter of appointment and
regulation of service condition. Article 14
of the Constitution of India has withstood
the
temperts
of
classification
and
discrimination but the emerging disparity to
regulate the condition of pension as an end
result of service ought not to obliterate the
object of equality in a level playing field. In
other words, the application of pension
rules
knows
of
no
exception
or
discrimintion once it is a firmly provided
that the marriage of resentment with the
post (temporary or permanent) ought to be
qualified with the appointment of personnel
by strict application of service rules for
recognising a person to be a member of
service. It is for this reason that a backdoor
entry
in
service
does
not
confer
membership in service till an incumbent is
duly
regularised
and
the
date
of
regularization in this manner assumes the
decisive
basis
for
determination
of
seniority.

7. Thus, these "Part time tube well
operators" have claimed that as and from
18.05.1994, since the government had
given them the same scale of pay as that of
the regular tube well operators, however
the other service benefits like calculation
of ACP, pension, GPF, Gratuity etc. has
not been given from the said date and thus
they are entitled for the same. There is
also a further relief being claimed,
wherein some of the petitioners have
sought the same relief of calculation of
ACP, Pension, GPF, gratuity from the date
of their appointment in view of the
judgment passed by the Hon'ble Apex
Court in Prem Singh V. State of Uttar
Pradesh, 2019 (10) SCC 516. Further,
some petitioners have also prayed to relate
back
the
date
of
regularization
to
17.12.1996 i.e the date of issuance of the
government order whereby the cadre of
part-time tube well operators/ tube well
assistants was abolished under the UP
irrigation department regularization of part
time tube well operators on the posts of
tube well operators rules, 1996.
110 INDIAN LAW REPORTS ALLAHABAD SERIES

Contention of the Petitioners:

8. Mr. Sudeep Seth, Ld. Senior
Counsel led the argument along with Mr.
Kunj Bihari Pandey, learned Advocate from
the side of the petitioners. Mr. Seth also field
his written submission and in his crisp
manner, distilled the issue to the point that
the judgment of the Hon'ble Apex Court
passed in Prem Singh Vs State of Uttar
Pradesh, 2019 (10) SCC 516, is squarely
applicable to the facts of the present case.
According to him, the Hon'ble Apex Court
while holding that services rendered in work
charge establishment be treated as qualifying
services for pensions, has not only read
down rule 3(8) of Pension Rules, 1961 but
has also struck down regulation 370 of the
Civil Services Regulations. Mr. Seth has
authoritatively argued that the services in
regular establishment like the "Part time
tube well operators" are on better footing as
compared to services in the work charge
establishment,
which
are
essentially
temporary in nature. He submits that the
work charge employees are engaged on a
temporary basis and their appointments are
made for the execution of a specified work
and their services automatically come to an
end on completion of work. However,
regular establishment is permanent in nature
and hence regular establishment is on a
much better footing as compared to work
charge establishment. As to the notification
dated 07.04.2005 relating to applicability of
1961 rules to only those persons, who were
appointed/regularized prior to 01.04.2005,
the Ld. Sr. Counsel submits that said
notification losses significance the moment
past services of the petitioners, for the date
of
their
respective
appointments,
are
reckoned for the purposes of pensionary
benefits in terms of the judgment passed by
the Hon'ble Apex Court in Prem Singh's
case.

9. Further, as to the U.P qualifying
service for pension & Validation Act, 2021
applicable since 05.03.2021 is concerned,
the Ld. Sr. Counsel submits that the said
amendment Act has been dealt by a
Division bench of this court in (i) Judgment
dated 04.02.2021 passed in Special Appeal
Defective No. 1003 of 2020, (ii) Judgment
dated 09.06.2021 passed in Special Appeal
No. 97 of 2021 and (iii) Judgment dated
14.07.2021 passed in Special Appeal No.
152 of 2021, wherein the Division bench
has held that the said Act enures to the
benefit of the petitioners and not to the
State and according to him each time the
division bench had granted the benefit of
past services of temporary post/ in work
charge establishments for the purposes of
pensioner benefits in terms of the Prem
Singh case. He further submits that even
the SLP filed by the state against one of the
order's of the Division Bench has been
dismissed by the Hon'be Apex Court.

10. The Ld. Sr. Counsel also drew
attention of this court to a Government
Order dated 11.08.2020 passed by the state
of Uttarakhand, granting benefit of the
Prem Singh's case to "Part time tube well
operators" in the state of Uttrakhand.
According to him, since in the bunch of
matters decided by the Hon'ble Apex Court,
one of the petitions was that of a "Part time
tube well operators" from the state of
Uttarakhand, the issue relating to the part
time tube well operator in the state of Uttar
Pradesh has to be decided in similar
manner. Further, he sought to draw an
analogy with the matter of seasonal
collection amin, who have been granted
benefit of the judgment of Prem Singh case
by a division bench of this court in Special
Appeal No. 438 of 2017 (Brahamanand
Singh V/s State of U.P). He has also
referred to observation made by the
2 All. Sajeevan Lal & Ors. Vs. State of U.P. & Ors.
111
Hon'ble Supreme Court in a compassionate
appointment of a dependent of deceased
"Part time tube well operators," to buttress
his point that the petitioner in that case was
treated as regular employee by the conduct
of the state government even though they
were labelled as a "Part time tube well
operators". (State of Uttar Pradesh V/s
Uttam Singh vide Civil Appeal No. 4575 of
2021).

11. The Ld. Senior Counsel to further
bolster his argument, submits that the issue
relating to admissibility of regular pay
scales being applicable to "Part time tube
well operators" were a subject matter of
confusion, wherein the Hon'ble Apex Court
had to intervene and vide its judgment
dated 04.01.2016 passed in Rakesh Kumar
V/s State of UP (SLP (civil) No.
34861/2015) had made it clear that the part
time tube well operators would be entitled
to regular pay scale in the light of the
decision of High Court in Suresh Chandra
Tiwari Case (mentioned supra). He further
explained
that
the
judgment
dated
25.09.2013 being relied upon by the state
government passed in the case of Dukh
Haran Singh V/s State of U.P ( SLP No.
27713 of 2009) by the Hon'ble Apex Court
was neither considering the issue of
reckoning past services as "Part time tube
well
operators"
for
computation
of
pensionary benefits nor such an issue was
raised in the said petition and thus
according to him the judgment passed by
the Division Bench of the supreme court in
the said case was impliedly overruled and
was in per incuriam to the judgment passed
by three judge bench of the supreme court
in Prem Singh Case.

12. In any case, he argues that
although there are several judgments relied
upon by the state government in the two
compilation filed by them, but according to
him most of these conflicting judgment of
coordinate benches of the Single bench or
the Division Bench of this court relating to
computation of past services as "Part time
tube well operators" for the purposes of
pensionary benefits are either based on the
judgment of Division Bench passed in
Dukh Haran Singh Case or are prior to the
date of judgment in the case of Prem Singh
Case. Thus, it has been argued by the ld.
Senior counsel that with the delivery of the
judgment dated 02.09.2019 in the Prem
Singh Case by the Hon'ble apex court, all
the earlier judgments relating to the issue of
computation of past
services,
stands
impliedly overruled. In order to fortify the
said proposition of law, the Ld. Sr. counsel
relied on the judgment passed by the
Hon'ble Apex Court in the case of C.N.
Rudramurthy V/s K. Barkathulla Khan
& Others (1998) 8 SCC 275. Further, as
relating to the reliance of the state
government on the full bench judgment
dated 26.11.2021 passed in the case of
Namo Narayan Rai V/s State of U.P
(Writ Petition No. 13626 of 2017) is
concerned,
the
ld.
Counsel
has
emphatically tried to drive home the point
that the said judgment does not have a
binding effect upon the entire cadre of "Part
time tube well operators", since the said
judgment was based upon a compromise
affected between the parties to the said
case. According to him, the reference made
by the Single Bench of the court has not
been answered by the full bench and as
such the judgment is not binding and the
same theory apply for the order of review
dated 22.04.2022 passed by the full bench
in that said matter.

13. Thus, it has been submitted by the
ld. Sr. counsel that directions may be issued
to the state government to reckon the services
of the petitioners from the date of their initial
112 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment as "Part time tube well
operators" till their regularization, for the
purposes of consequential services benefits
including pensionary benefits. The other
argument relating to reckoning the date for
service benefits to these "Part time tube well
operators" from the date of 18.05.1994 i.e
when they were granted pay-parity with
regular tube well operator, or from the date of
17.12.1996 i.e the date of promulgation of
"U.P Irrigation Department Regularization of
Part-time Tube well operators on the posts of
Tube well operators Rules, 1996 had been
either not been argued or has been impliedly
waived. Thus, the crux of the issue raised and
argued by the counsel for the parties is that all
the service benefits given by the state to the
petitioners ought to have been reckoned from
their date of respective appointment and not
from their date of regularization. The Ld. Sr.
Counsel in a very emphatical manner tried to
drive home his argument by submitting that
once the service of these "Part time tube well
operators" are reckoned from their date of
appointment as is being prayed for, the other
consequential relief of other service benefit,
including applicability of old pension scheme
would follow, as then these "Part time tube
well operators" would not be termed as new
entrant after 01.04.2005, so as to fall within
the mischief of the New Pension scheme.

Contention of the Respondents:

14. On the other hand, the arguments
for the state of Uttar Pradesh has been ably
led by Sr. Advocate Ramesh Kumar Singh,
Ld. Addl. Advocate General, assisted by Shri
Sanjay Sarin, Pratyush Tripathi, Ld. Addl.
Chief Standing Counsels and Tushar Verma,
Ld. Special Counsel.

15. The Ld. Addl. Advocate General
has taken this court to the history &
background of appointment of these "Part
time tube well operators" and has submitted
that although the state of Uttar Pradesh had
framed the Irrigation Department Tube Well
Operators Service Rules 1953 in view of
powers conferred by proviso to Article 309 of
the Constitution of India, which was notified
on 5.10.1953, however, these "Part time tube
well
operators"
were
appointed under
''executive instructions' vide order dated
22.12.1981 issued by Sinchai Anubhag,
Government of U.P, wherein it was provided
that 2300 regular posts of Full Time Tube
Well Operators cum Mechanics are being
created in the pay scale of Rs. 354-514 to run
Tube Wells of State of Uttar Pradesh. A
mention was also made in the said executive
order that another 2147 posts of Part Time
Tube Well Operators are being created at a
fixed pay of Rs. 150/- per months till
20.02.1982 in case they are not abolished
before such date. Thus, the first point being
made by the Ld. AAG is that these "Part time
tube well operators" were not appointed as
per scheme of the Rules and apparently the
appointment
was
made by
virtue
of
Government Orders and without following
the procedure prescribed under 1953 Rules.
Mr. Singh argued that the petitioners since the
very date of their appointment knew that they
were part time appointees and no service
benefits would accrue to them. In order to
vindicate this stand, the Ld. Sr. Counsel has
relied on an office memorandum issued by
the Engineer -in-Chief, Irrigation Department
on 18.2.1982, by which the conditions
governing the appointment and services of
such posts of Part Time Tube Well Operators
were prescribed.

16. The Ld. Sr. Counsel thereafter
developed the second limb of his argument
by stating that, the state of U.P issued a
Government
Order
dated
20.2.1992
whereby the nomenclature of "Part Time
Tube Well Operator" was changed to "Tube
2 All. Sajeevan Lal & Ors. Vs. State of U.P. & Ors.
113
Well Assistant" and their honorarium was
enhanced from Rs. 299 per month to 550
per month. The said G.O provided that
appointment letter may be issued to all
working Part Time Tube Well Operator and
they may also be provided the appreciation
allowance,
on
the
basis
of
their
performances. The Ld. Sr. counsel submits
that pursuant to the aforesaid G.O all the
working Part Time Tube Well Operators
were issued appointment letters. However,
in the intervening period, two cases being
Case No. 256/1988 and case no. 20/1989
came to be filed by eight and fifty "Part
time tube well operators" respectively,
before the Labour court claiming pay parity
with regular Tube Well operators under the
provisions of U.P. Industrial Disputes Act
1947. Both the cases were decided in
favour of the "Part time tube well
operators" vide Award dated 15.7.1989 and
1.2.1991 respectively, wherein the Labour
court returned a finding that since "Part
time tube well operators" worked just as
hard as Regular Tube Well Operator, they
are entitled to pay parity with Regular Tube
Well Operators. Obviously, the state of
Uttar Pradesh was not happy with the said
award of the labour court and as such they
challenged the said award vide a Writ
Petition. No. 1502 of 1992. Simultaneously,
another writ petition No. 3558 of 1992
(Suresh Chandra Tiwari and others Vs.
State of U.P. and others) was filed before
this court challenging the aforesaid G.O
dated 20.2.1992. The Ld. Sr. Counsel to
give a glimpse of the said matter sought to
rely on the prayer/ relief sought by the
petitioners in the said petition, and thus
argued that the relief sought in the said writ
petition was relating to direction to
regularize the petitioners in service on the
post of Tube Well Operators and to pay
regular pay scale to them as is admissible
to the Full Time Tube Well Operators.

17. The Ld. Sr. Counsel submits that
both the appeal filed by the state of Uttar
Pradesh against the labour court award as
well as the writ filed by Suresh Chand
Tewari & others were decided by a
common
judgment
dated
18.5.1994,
wherein a Single Bench of this court found
the claim of pay parity of "Part time tube
well operators" just and therefore granted
the relief of same emoluments to them as
that of a regular Tube well operators.
Further, a special leave petition filed by the
State of U. P. against the said judgment was
also dismissed by the Hon'ble Supreme
Court on 22.3.1995 observing therein that
the duties, qualifications, and hours of
working of the "Part time tube well
operators" are similar to that of regular
Tube Well Operators and thus based on the
principal of equal pay for equal work, the
Apex Court dismissed the SLP of the state.
Thus, the Hon'ble Apex court held the "Part
time tube well operators" to be entitled for
payment of salary (prospectively) as was
being drawn by the regular Tube Well
Operators. The Ld. Sr. Counsel in order to
complete the complete chain of events
submits that even the Review Petition filed
by the state was dismissed on 18.10.1995.
Thus, in compliance of the order of the
Hon'ble Apex Court, the State issued an
order on 27.10.1995, followed by an order
dated 10.11.1995 providing the same
emoluments of pay, which were given to
the regular Tube well operators to "Part
time tube well operators," who were
covered by the said judgment dated
18.5.1994 and other similarly situated
petitioners.

18. After narrating the events, the ld.
Sr. Counsel submitted that in terms of the
aforesaid judgment of Suresh Chand
Tewari case, the only issue decided by this
Court or the Hon'ble Apex Court was
114 INDIAN LAW REPORTS ALLAHABAD SERIES
relating to the pay-parity between the part
time tube well operator and the full time
tube well operator, which was decided on
the Principal of equal pay for equal work
and no other issue was decided and as such
reading or interpreting the said judgement
to hold that since pay-parity was granted to
the part time tube well operator, they ought
to be also given other service benefits like
pensions etc. would be overreaching the
judgment and not as per law.

19. The Sr. Counsel in order to further
fortify his stand that, the "Part time tube
well operators" cannot be equated to full
time tube well operator on the strength of
Suresh Chandra Tewari case, took this
court to the third limb of his argument
relating to the regularization of these "Part
time tube well operators". The Ld. AAG
submitted that the State enacted the "U.P.
Irrigation Department Part Time Tube Well
Operators Regularization Rules 1996" for
regularization of "Part time tube well
operators" and as per the rules made it
applicable only to those candidates whose
appointment were made prior to 1.10.1986
and
who
worked
continuously
till
16.12.1996. The rules also mentioned that
there was no distinction between candidates
appointed
as
"Part
time
tube
well
operators" or Tube Well Assistant and the
said rules were equally applicable to them,
provided they met the cut-off dates. The
state also issued G.O dated 17.12.1996
whereby the Cadre of "Part time tube well
operators" was abolished and further
provided that against the vacant posts of
Tube Well Operators the proceedings for
regularization shall be initiated under the
provisions of aforesaid Regulation Rules
1996
only.
Hence,
the
process
of
regularization of "Part time tube well
operators" started and vacant posts were
filled up based on seniority and as per the
Ld. Sr. Counsel, about 6735 Part Time
Tube Well operators were regularized
during the period 1997 till 2001 and given
the benefit of the Old Pension Scheme as
was applicable prior at the time of their
regularization.

20. It was further submitted that the
state, in order to give full effect to the
principles of ''equal pay for equal work'
propounded in the judgment passed by the
Hon'ble Apex Court as well as this court in
Suresh Chand Tewari case, issued G.O
dated 3.3.1998 directing all "Part time tube
well operators" to be entitled for increment
and allowance like the regular Tube Well
Operators along with rural house rent
allowances, bonus etc. However, the said
G.O was subsequently clarified & modified
by another G.O dated 28.5.2003, whereby
the
phrase
"other
service
benefits"
mentioned in G.O order dated 03.03.1998
was deleted, however by the subsequent
G.O dated 28.5.2003, the benefits of pay
increment, rural house rent and bonus
continued in the light of the judgment in
the Suresh Chandra Tiwari case.

21. Thus, the Ld. Sr. counsel has
submitted that the status of the "Part time
tube well operators" was not of a temporary
government servant but remained as of
"Part time tube well operators" and the
terms and conditions of the "Part time tube
well operators" were governed by the
government order dated 18.2.1982 which
remained same till their regularization,
except for the fact that they were granted
the benefit of ''equal pay for equal work' in
terms of the judgment and order dated
18.5.1994 passed in the Suresh Chandra
Tiwari case. Thus, it has been argued that
the mere grant of pay parity to the part time
tube well operators cannot confer them a
status of a temporary government servant
2 All. Sajeevan Lal & Ors. Vs. State of U.P. & Ors.
115
or else he vehemently argues that a
situation would be created whereby, "every
contractual, daily wager / ad-hoc /
temporary / part time engagement would
result into a status of regular government
servant.

22. The Ld. Sr. Counsel has tried to
draw a distinction between a conscious
decision and a wrong decision. According
to him, the argument of some of the
counsel that GPF have been deducted from
their account after the government order
dated 03.03.1998 and as such they are
entitled for the old pension scheme would
not be correct and not as per law as the said
deduction of funds was made under some
misconception.
He
submits
that
the
petitioners were not legally entitled to
subscribe to the fund and the nature of their
appointment was contractual and they
would
only
acquire
the
status
of
Government servant only after their due
regularization. Thus, according to him, the
nature of appointment of "Part time tube
well operators" cannot vary in reference to
different service benefits i.e., for achieving
pension
their
services
prior
to
regularization cannot be held to be
substantive
or
permanent
or
even
temporary.

23. Continuing further, the Ld. Sr.
Counsel addressing this court on the
regularization of the petitioners, next
submitted
that
for
the
purposes
of
regularization of services of "Part time tube
well operators", whose services were not
covered by Regularization Rules 1996, the
State
enacted
the
U.P.
Irrigation
Department Regularization of Part Time
Tube Well Operators on the Post of Tube
Well Operators (First Amendment) Rules
2008, which were made applicable to those
candidates who were appointed prior to
30.6.1998 and worked continuously till
05.05.2008. Thus, it has been contended by
the Ld. Sr. counsel that the present writ
petitioners have been regularized in view of
this amendment and thus these petitioners
having taken the benefit of regularization
are now trying to rake the issue of
reckoning the date for grant of service
benefits from their respective date of
appointment cannot be permitted as per
law, in view of the scheme of regularization
and a series of consistent judgments passed
by this court as well as the Hon'ble Apex
Court.

24. The first judgement relied by the
state is the case of State of U.P. and others
Vs. Dukh Haran Singh and others
(special Appeal No. 240 of 2009), wherein
large number of incumbents similarly
placed as the present writ petitioners,
whose cases were covered under the
Service Rules 1996 and Amended Rules
2008, challenged the validity of the said
Rules before a single bench of this Court
and were granted relief, in as much as the
"Part time tube well operators" were
granted pensionary benefits by reckoning
their date of
appointment. However,
interestingly, the said order of the Single
Bench was overruled vide judgment dated
21.7.2009 of a Division Bench of this
court, which held that service rendered
prior to regularisation does not qualify for
grant of pension in terms of Regulations
361 and 370 of the Regulations as services
rendered,
prior
to
that
are
neither
substantive, permanent nor temporary.
Further, in the SLP filed in the said Dukh
haran Singh ( Special Leave Petition (C)
no. 27713 of 2009, Dukh Haran Singh vs.
State of U.P & Ors), the Hon'ble Apex
Court vide its judgment dated 25.09.20113
dismissed the said SLP of the petitioner
("Part time tube well operators") by
116 INDIAN LAW REPORTS ALLAHABAD SERIES
reiterating the judgment of the Division
Bench of this court and further observing
that since as per the relevant rules
minimum qualifying service for pension is
10 years, the petitioner having not fulfilled
that minimum requirement, they could not
be held to be eligible for pension though he
would be entitled to gratuity and other
benefits subject to applicable rules.

25. The Ld. AAG also referred to a
judgment dated 10.05.2011, passed in Writ
Petition No.- A 52397/2009, Subhash
Chandra Mishra and others V/s State of
U. P. and others, of this court to show that
mere providing parity in the matter of pay
scale, other conditions of service of part
time Tube Well Operators does not become
suo moto at par with regularly appointed
Tube Well Operators from the date of initial
appointment. According to the State, the
two sets constitute two different streams
and they were not interchangeable and they
were engaged with different concepts,
different status, conditions of service etc.
Thus, it is their submission that any
attempts to treat the persons like petitioners
and
regularly
appointed
Tube
Well
Operators at par in all respects would
amount to treating unequals as equal.

26. Further, Judgment dated 30.07.2014
passed by a Division Bench of this court in
Special Appeal No. 146 of 2008, (State of
U.P. and others Vs. Ram Niwas) and
connected appeal, was referred wherein the
Division Bench after recording the various
clauses of the 1953 rules relating to
appointment of tube well operators in UP,
repelled the plea of the "Part time tube well
operators" for grant of arrears of salary for
the period from their date of appointment to
the date of passing of the Suresh Chandra
Tewari Case on the ground that none of the
procedure, as indicated as per Rules, 1953,
has been followed in the appointment of these
"Part time tube well operators".

27. The Ld. Sr. Counsel referred to
various judgments to show that similar
petitions in sum & substance have been
rejected earlier by this court, wherein the
regularization from the date of initial
engagement has been rejected by this court of
these "Part time tube well operators". These
judgments being:

(i) Judgment dated 08.11.2012,
passed in Writ Petition No. 8722 of 2009,
(Istgar Ahamad V/s State of U.P. and others),
wherein the court repelled the contention of
the petitioners to count their services from the
date of their initial engagements as "Part time
tube well operators" for other service benefits
and accordingly found the other prayer
regarding deduction of GPF as also not
tenable as regularization of services of the
petitioners was made on 7.1.2009 and they
were covered by the notification dated
21.3.2005.

(ii) Order dated 13.06.2013 passed
by this court in Writ A No. 55344 of 2013,
(Madan Gopal Pandey Vs. State of U.P. and
others)

(iii) Order dated 31.03.2014 passed
by a Division Bench of this court in Special
Appeal No. 227 of 2014, (State of U.P. and
others Vs. Tube Well Operators Welfare
Association and others) and other connected
Appeals, wherein the Division Bench did not
find any substance in the contention that "Part
time tube well operators" are entitled to all
benefits of service, which is applicable to
employee either temporary or permanent
employees appointed on any substantive post
prior to the date of their regularization.

(iv) Judgment dated 21.11.2014
passed by this court in Writ A-35425 of
1997, (Murari Lal Vs. State of U.P. and
others) and other connected petition,
2 All. Sajeevan Lal & Ors. Vs. State of U.P. & Ors.
117
wherein this court did not find any valid
ground for declaring the regularization
Rules as Ultra vires of Articles 14 and 16 of
the constitution for not providing for
regularization
w.e.f.
initial
date
of
appointment.

(v) Judgment dated 19.9.2016
passed by a Single Bench of this court in
Writ Petition No. 22375 of 2016, (Brij Pal
Singh and others v/s State of U.P and
others), wherein this court repelled the
assertions of the petitioners that they were
entitled to get the benefit of Old Pension
Scheme as they were engaged sometimes
between 1987 and 1993. The court in that
case thus held that there was no substance
in the said argument of the petitioners, as
the date on which they were regularised in
the regular establishment was to be taken
into account for the purposes of the pension
and not the year when they were engaged
as "Part time tube well operators" and thus
dismissed the writ petition as being devoid
of any merits. Even, the appeal filed against
the said single Bench order was rejected by
the Division Bench of this court vide order
dated 15.02.2017 passed in Special Appeal
No. 70 of 2017, (Manmohan Satwal and
others Vs. State of U.P. and others)
connected with Special Appeal No. 65 of
2017, Rajesh Kumar Tiwari and others Vs.
State of U.P. and other.

(vi) Judgment dated 17.01.2017
passed in Writ Petition No. 122 of 2012,
(Shiv Shankar Lal and others Vs. State of
U.P. and others) and other connected writ
petitions, wherein identical issue stood
decided, wherein the Single Bench refused
to give similar reliefs to "Part time tube
well
operators",
who
were
engaged
sometime between 1987 to 1993 and their
services were regularized sometime in the
year 2008. The said judgment of the single
Bench was upheld vide order dated
15.02.2017 passed in Special Appeal No.
65 of 2017, Rajesh Kumar Tiwari and
others Vs. State of U.P. and other connected
appeals, wherein the Division Bench
refused to accept the contention of the "Part
time tube well operators" that the word
''New Recruits' does not include those who
were appointed earlier even though they
have not been regularized later on. The
Hon'ble Division bench in that case
observed that if such an interpretation is
given then any form of engagement or
appointment prior to 28.3.2005 would
obviously be recruitment, but at the same
time such recruits not being regular, the
said engagement would not be entitled to
the pensionary scheme either old or new
unless they are regularized in their services.
A new recruit in this context would mean a
regular substantive appointee and not a
part-time or ad- hoc etc. appointee.

28. The Ld. AAG elaborating further
has drawn the attention of this court to the
fact that G.P.F. of certain "Part time tube
well
operators"
have
wrongly
been
deducted under old pension scheme due to
which they were also claiming the
pensionary benefits etc. whereas the
regularization of services of said "Part time
tube well operators" were made after
01.04.2005 under new pension scheme. In
this regard, the Ld. AAG submitted that
although
Government
Order
dated
15.9.2011 provides that in case due to
wrong deduction of G.P.F. has been made
under old pension scheme, the deducted
amount will be returned to the incumbents,
some 2152 "Part time tube well operators",
who were regularized after 01.04.2005 filed
writ petitions before this Court praying that
their GPF deductions maybe continued to
be done as before and in pursuance of the
aforesaid deductions they may be granted
the benefit of Old Pension Scheme and may
be paid the pension accordingly after their
118 INDIAN LAW REPORTS ALLAHABAD SERIES
superannuation. The Ld. AAG submitted
that in the aforesaid bunch of writ petition
in which the leading Writ Petition no.
13626 of 2017 (Namo Narain Rai &
Others Versus State of U.P.