# Sinchai Mazdoor Sangh Uttar Pradesh, Lucknow & Ors v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-14
- **Case number:** Civil Misc. Writ Petition No. 12780 of 2018
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sinchai-mazdoor-sangh-uttar-pradesh-lucknow-ors-v-state-of-u-p-ors-45792
- **Pages:** 19

## Headnote

A. Constitution of India - Article 14 -
Equal right of pensionary benefit - Protection
against arbitrariness - Held - Once the
services
of
the
petitioners
have
been
acknowledged, then there is hardly any scope
to deprive them the pensionary benefits, as
are available to other public servants - Equal
protection of laws must mean the protection
of equal laws for all persons similarly - Article
14 strikes at arbitrariness because an arbitrary
provision involves negation equality. The law
is never been stagnated - An artificial
classification
has
to
be
made
by
the
respondent authorities while passing the order
impugned amongst the Government servants,
who are eligible for pension. The distinction
6 All. Sinchai Mazdoor Sangh Uttar Pradesh, Lucknow & Ors. Vs. State of U.P. & Ors. 731
has
been
tried
to
be
carved
out
is
unsustainable in law. (Para 19 and 22)
Writ Petition allowed (E-1)
Cases relied on :-

## Text

_Characters 0–39,941 of 58,796. This is a partial read: ask again with offset=39941 for what follows._

730 INDIAN LAW REPORTS ALLAHABAD SERIES
of natural justice are furthermore not
required to be complied with when it will
lead to an empty formality. What is
needed for the employer in a case of this
nature is to apply the objective criteria
for arriving at the subjective satisfaction.
If the criteria required for arriving at an
objective satisfaction stands fulfilled, the
principles of natural justice may not have
to be complied with, in view of the fact
that the same stood complied with before
imposing
punishments
upon
the
respondents on each occasion and, thus,
the respondents, therefore, could not have
improved their stand even if a further
opportunity was given."

12. In the case of Punjab National
Bank and Others v. Manjeet Singh and
Another reported at [(2006) 8 SCC 647)],
this Court has held as under:-

"The principles of natural justice
were also not required to be complied
with as the same would have been an
empty formality. The court will not insist
on compliance with the principles of
natural justice in view of the binding
nature of the award. Their application
would be limited to a situation where the
factual position or legal implication
arising thereunder is disputed and not
where it is not in dispute or cannot be
disputed. If only one conclusion is
possible, a writ would not issue only
because there was a violation of the
principle of natural justice."

13. Hence, under the undisputed
facts of the present case in any manner
render the impugned order invalid on
account of providing any opportunity
prior to passing of impugned order. In
these circumstances providing of an
opportunity of hearing would merely be
an empty formality and would be of no
avail and a futile exercise.

14. Under these circumstances and
reasons and law discussed hereinabove, I
do not find any illegality or irregularity in
the impugned order dated 15.02.2020
passed by Opposite Party No.3 there is no
merit in the case and hence, the writ
petition is dismissed.
----------
(2020)06ILR A730
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.01.2020

BEFORE
THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.

Civil Misc. Writ Petition No. 12780 of 2018

Sinchai Mazdoor Sangh Uttar Pradesh,
Lucknow & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjay Kumar Mishra.

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Article 14 -
Equal right of pensionary benefit - Protection
against arbitrariness - Held - Once the
services
of
the
petitioners
have
been
acknowledged, then there is hardly any scope
to deprive them the pensionary benefits, as
are available to other public servants - Equal
protection of laws must mean the protection
of equal laws for all persons similarly - Article
14 strikes at arbitrariness because an arbitrary
provision involves negation equality. The law
is never been stagnated - An artificial
classification
has
to
be
made
by
the
respondent authorities while passing the order
impugned amongst the Government servants,
who are eligible for pension. The distinction
6 All. Sinchai Mazdoor Sangh Uttar Pradesh, Lucknow & Ors. Vs. State of U.P. & Ors. 731
has
been
tried
to
be
carved
out
is
unsustainable in law. (Para 19 and 22)
Writ Petition allowed (E-1)
Cases relied on :-
1. Writ A no. 61107 of 2013; Gorakh Nath
Pandey & ors. Vs St. of U.P. & ors. decided on
12.04.2016
2. Suresh Chandra Vs St. of U.P. & ors. (2014)
7 ADJ 721
3. St. of U.P. Vs Gorakh Nath Pandey 2018 (1)
UPLBEC 362
4. Civil Appeal no. 6798/2019; Prem Singh Vs
St. of U.P. & ors. decided on 02.09.2019
5. Secretary, St. of Karnataka & ors. Vs Uma
Devi (2006) 4 SCC 1
6. Kesar Chand Vs the St. of Punjab AIR
(1988) Punjab & Haryana 265
7. Punjab State Electricity Board Vs Natara
Singh (2010) 4 SCC 317
8. Civil Appeal No.10806 of 2017; Habib Khan
Vs the St. of Uttarakhand

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Shri Sanjay Kumar Mishra,
learned counsel for the petitioners and
Shri Apurva Hajela, learned Standing
Counsel for the State respondents.

2. The present writ petition is being
filed under Article 226 of Constitution of
India by Sinchai Mazdoor Sangh Uttar
Pradesh through its General Secretary and
16 other employees working and retired
employees of Workshop of Irrigation
Department assailing the validity of order
dated 07/17.03.2018 passed by Deputy
Secretary (Yantrik), State of U.P., Civil
Secretariat,
Lucknow
and
further
commanding the respondents to sanction
the regular pension of the petitioner nos.2
to 171 at par with the Government
Employees from the date of their
respective retirement.

3. The description of petitioners are
as follows:-

Sl
No.
Nam
e of
Empl
oyee
Last
post
hold
by the
emplo
yee
Departm
ent
Date
of
appo
intm
ent
Date
of
retire
ment
(if
attaine
d the
age of
supern
nuatio
n)
1.
Satve
er
Sing
h s/o
Late
Diwa
n
Sing
h
(Petit
ioner
no.2)
Senior
Fitter

Okhla
Irrigatio
n
Worksh
op

01.0
5.19
81

31.12.
2012
2.
Isha
m
Sing
h s/o
Late
Kull
u
Ram
(Petit
ioner
no.3)
Senior
Fitter
Erection
Worksh
op,
Meerut

12.1
0.19
73

31.01.
2014
3.
Kam
al
Sing
h s/o
Late
Shiv
Giri
(Petit
ioner
no.4)
Maste
r
Fitter
Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut

01.1
2.19
72

31.07.
2012
4.
Ram
Pal
Senior
Mould
Irrigatio
n
11.1
1.19
30.11.
2008
732 INDIAN LAW REPORTS ALLAHABAD SERIES
s/o
Late
Fake
era
(Petit
ioner
no.5)

er
Worksh
op,
Mawana
Road,
Meerut

67

5.
Sarje
et
Sing
h s/o
Late
Man
gat
Ram
(Petit
ioner
no.6)

Maste
r
Turner

Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut

02.1
1.19
72

30.09.
2011

6.
Indra
Pal
singh
s/o
Late
Beer
bal
Sing
h
(Petit
ioner
no.7)

Maste
r
Turner
Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut

09.0
8.19
72

31.12.
2012

7.
Sama
r Pal
Sing
h s/o
Late
Vire
ndra
Sing
h
(Petit
ioner
no.8)
Turner
Okhla
Irrigatio
n
Worksh
op

30.0
1.19
82
31.01.
2014

8.
Jagp
al
Sing
h s/o
Late
Khai
rati
Lal
Sing
h
Mould
er

Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut

23.1
1.19
67

21.11.
2009
(Petit
ioner
no.9)

9.
Babu
Ram
s/o
Late
Sona
r
Sing
h(Pet
ition
er
no.1
0)
Welde
r
Okhla
Irrigatio
n
Worksh
op
11.0
3.19
81
14.09.
2009

10.
Sule
man
Ansa
ri s/o
Late
Akba
r
Ansa
ri
(Petit
ioner
no.1
1)

Helper
Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut

03.0
9.19
80

31.05.
2013

11.
Gord
han
Sing
h s/o
Late
Ghan
shya
m
(Petit
ioner
no.1
2)
Hamm
erman
Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut
05.0
9.19
80
31.03.
2013

12.
Lax
mi
Chan
d s/o
Late
Phoo
l
Sing
h
(Petit
ioner
no.1
3)
Welde
r

Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut

24.0
4.19
71

30.04.
2013
6 All. Ramesh Chandra Verma Vs. Director of Education (Secondary) U.P. Prayagraj & Ors.
733

13.
Sard
ar
Moh
d.
Khan
s/o
Late
Khija
r
Moh
d.
Khan
(Petit
ioner
no.1
4)
Machi
nist
Okhla
Irrigatio
n
Worksh
op
04.0
4.19
81

28.02.
2014

14.
Man
Sing
h s/o
Late
Govi
nd
Sing
h
(Petit
ioner
no.1
5)
Mould
er
Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut

20.1
0.19
72
31.12.
2013
15.
Har
Gulal
Sing
h s/o
Late
Ram
Phal
Sing
h
(Petit
ioner
no.1
6)

Senior
Electri
cian

Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut

13.0
3.19
78
31.09.
2012

16.
Raj
Kum
ar
Shar
ma
s/o
Late
Asha
Ram
Shar
ma
(Petit
Turner
Irrigatio
n
Worksh
op,
Mawana
Road,
Meerut
10.0
6.19
80
31.07.
2017
ioner
no.1
7)

4. The terms and conditions of
services of petitioners are governed under
the Sinchai Karyashala Circle Service
Rules, 19842. Admittedly, the petitioners
are receiving the admissible salary and
other
allowances
at
par
with
the
Government employees as has been paid
to the regular employees of the Irrigation
Department. Vide Government Orders
dated 13.11.2007 and 27.02.2009, the
employees working in the Irrigation
Department
under
Industrial
Establishment have been treated as
Government Servants (Annexure no.2 and
3 to the writ petition). Accordingly,
contribution towards provident fund had
been deducted from the salary of the
petitioners and other similarly situated
employees and as such, it is alleged that
since the very beginning they were in
bona-fide belief/impression that they are
receiving the regular salary and other
allowances at par with the Government
Employees, whereas, the same has not
been ensured in favour of the petitioners.
It has also been alleged that the
Department had also discriminated some
other employees, whose details are
mentioned in paragraphs 26 and 27 of the
writ petition, and they are getting pension
like Government employees. Once this
discrimination has been surfaced, the
petitioners have agitated their claim and
accordingly,
wrote
letters
dated
04.03.2013 and 08.11.2013 to the second
respondent for grant of pension to the
employees who are working in Industrial
Establishment of Irrigation Department3.
Similarly,
the
Chief
Engineer
(Mechanical), Irrigation Department U.P.
Lucknow,
on
his
turn,
has
also
recommended
regarding
payment
of
734 INDIAN LAW REPORTS ALLAHABAD SERIES
pension to employees working in the
Industrial Establishment vide letter dated
30.05.2013 addressed to the respondent
no.2 as the issues have already been
clarified in Government Order dated
13.11.2007, whereby, the employees of
the Irrigation Department, who are
working in Irrigation Workshop Divisions
under Industrial Establishment, have been
treated as Government Servants and
accordingly, they are also entitled for
pension and family pension at par with
the Government Employees. Meanwhile,
some inability had been shown regarding
difficulty in payment of pension to
petitioners
and
similarly
situated
employees
through
letter
dated
25.06.2013
sent
by
Up-Sachiv,
Government of U.P. to the Chief Engineer
(Mechanical), Irrigation Department U.P.
at Lucknow but subsequently through
letter
dated
03.07.2013,
the
Superintending
Engineer,
Irrigation
Department Lucknow again reiterated and
requested for ensuring the pension and
another benefits as admissible to the
Government Employees working in the
Department.

5. Once the required benefits have
not been ensured, the petitioners have
preferred Civil Misc. Writ Petition
no.668(S/S) of 2014. The same was
disposed of according leave to the
petitioners to move fresh representation
before the Deputy Secretary (Yantrik),
State of U.P., Civil Secretariat, Lucknow
and the Authorities were also directed to
decide the same within three months
period. In response thereof, the petitioners
have
moved
representation
dated
22.12.2017, which was decided by the
order impugned, whereby, the claim of
the petitioners for pensionary benefits has
been negated by treating them employees
of Industrial Establishment as their
services
are
governed
under
the
provisions of Industrial Employment
(Standing Orders) Act 1946 and Model
Standing Orders, 1992 as well as other
Labour Laws like Payment of Wages Act
1936 and Industrial Disputes Act 19474.

6.

Learned
counsel
for
the
petitioners has drawn the attention of the
Court to the fact that earlier the State
Government
has
discriminated
the
petitioners while
fixing a date of
retirement as 58 years, whereas, the
superannuation of State employees are 60
years. The same was assailed before this
Court
by
preferring
Writ
Petition
no.7641(S/S) of 2003 (Beni Madhav
Pandey and another vs. State of U.P. and
others). Vide order dated 11.10.2011, the
said writ petition was allowed. For ready
reference, the order dated 11.10.2011 is
extracted as under:-

"Heard learned counsel for the
petitioner. Learned Standing Counsel
appears for the respondents.

According to the petitioners' counsel,
the petitioners have attained the age of
superannuation while working in the
workshop
of
Irrigation
Department.
According to him, all those persons
working in the Irrigation Department are
entitled to continue up to the age of 60
years but a notice was served on the
petitioners with regard to superannuation
at the age of 58 years. The submission is
that merely because the petitioners have
been discharging duty in the workshop
does not mean that they shall not be
entitled for service benefits at par with
other employees. In spite of categorical
pleading on record, nothing has been
brought on record to rebut the argument
advanced by the petitioners' counsel that
6 All. Ramesh Chandra Verma Vs. Director of Education (Secondary) U.P. Prayagraj & Ors.
735
the employees working in the workshop
are part and partial of the irrigation
department; rather in paragraph 5 of the
counter affidavit, it has been stated that
the petitioners belong to irrigation
department. Once the petitioners are the
employees of the State Government and
also
they
have
been
admitted
as
employees of the Irrigation Department,
only because they are discharging duty in
the workshop shall not disentitle them to
avail the service benefit at par with other
employees of the irrigation department.
Attention of this Court has not been
invited to any rules, regulations or
statutory provisions to make out a case
that the service condition of the workshop
employees are governed by different set of
rules or regulations. In view of above,
there appears to be no justification on the
part of the respondents to treat the
petitioners
differently
than
other
employees of the irrigation department.
The impugned notice suffers from vice of
arbitrariness and is discriminatory in
nature.

Accordingly, the writ petition is
allowed. A writ of certiorari is issued
quashing the impugned notice dated
1.11.2003(Annexure-1)
with
consequential benefits."

7. In this backdrop, learned counsel
for the petitioners submits that petitioners
have also been discharging duties in the
workshop but the same does not mean
that they shall not be entitled to the
service benefits at par with other
employees of Irrigation Department, who
have
been
accorded
pension.
The
aforesaid order dated 11.10.2011 has been
passed after exchange of affidavits. While
passing the said order, the Court has
specifically held that nothing has been
brought on record to rebut the argument
of petitioners that employees working in
the workshop are not the part and partial
of the Irrigation Department; rather in
paragraph 5 of the counter affidavit, it has
been stated that the petitioners belong to
Irrigation
Department.
Once
the
petitioners are employees of the State
Government and the same had also been
admitted by the respondents while filing
counter in the said case, then there shall
not be any dis-entitlement of petitioners
to avail the service benefits at par with the
other employees of the Department. He
informed to the Court that in the light of
the observations made by this Court, the
benefits have been extended to the
petitioners in the said writ petition and
age of their superannuation has been refixed to 60 years, as such, at this stage,
the discrimination is being carved out in
the case of petitioners and the same is in
violation of Articles 14 and 16 of the
Constitution of India.

8.

Learned
counsel
for
the
petitioners has placed reliance on Section
2(d)(ii) of the Industrial Employment
(Standing Orders) Act 1946, wherein, the
employer has been defined as "in any
Industrial
Establishment
under
the
Control of any department of any
Government in India, the authority
appointed by such Government in this
behalf, or where no authority is so
appointed, the head of the department."
Thus, it is apparent that a Government
may own industrial undertaking and in
that circumstance, an employee working
in such an industrial undertaking has to be
held in service of Government and if the
appointment is substantive and his service
is to be paid by the Government, in such a
situation, the employees would come
under the purview of Regulation 361 of
the
Civil
Services
Regulation
and
736 INDIAN LAW REPORTS ALLAHABAD SERIES
accordingly, the petitioners are entitled
for pension. The same view has been laid
down in Gorakh Nath Pandey and others
vs. State of U.P. and others5, wherein, the
plight of the incumbents those were
working in the U.P. Government Cement
Factory Churk, Mirzapur and they had
been devoid the pension and other retiral
benefits
has
been
considered
and
accorded relief in the light of observations
made in Suresh Chandra vs. State of U.P.
and others6. Relevant extract of the said
judgement is reproduced as under:-

"12. The Court has perused the
order dated 12.3.2013 passed in Writ
Petition No.47974 of 2008 wherein this
Court had quashed the order passed by
the General Manager, District Industries
Centre, Sonebhadra and the direction was
issued for according fresh consideration
to the representation of the petitioner in
the light of the order dated 2.8.2005 as
indicated above. A perusal of the order
dated
2.8.2005
issued
by
the
Commissioner and Director of Industries,
U.P. shows that the aforesaid order takes
into account the fact that the employees
appointed in U.P. Cement Factory at the
time when it was run and managed by the
Industries Department, were government
employees.
It
further
takes
into
consideration that from 1.4.1972 till
31.3.1981, such government servants
were treated to be on deputation with
U.P. State Cement Corporation and stood
absorbed w.e.f. 1.4.1981 to the service of
the U.P. State Cement Corporation Ltd.
The order further indicates that the
services rendered by such employees
prior to 1.4.1981 were the services
rendered as government servants.

13. This much is also reflected that
the
office
order
referred
to
the
Government order dated 1.7.1981, by
which retiral benefits have also been
sanctioned to the temporary employees,
and as such, the order dated 2.8.2005 had
fastened the liability upon the General
Manager, District Industries Centre to
scrutinize the relevant pension papers
and to forward the same to the State
Government and the office of Accountant
General so that the relevant papers for
pension could be processed. Surprisingly,
in derogation to the office order dated
2.8.2005 the present impugned order has
been passed by the General Manager,
District Industries Centre, Sonebhadra.

14. It is not disputed by the
respondents while responding to the
present writ petition regarding their
absorption prior to 1.4.1981 and as such,
all the petitioners fulfilled the stipulation
contained in the Government order dated
1.7.1989 and the office order dated
2.8.2005 and consequently they are
entitled for the pension. It is relevant to
indicate that by the Government order
dated 1.7.1989 the State Government had
proceeded to issue an order providing
pension
to
temporary
Government
servants, who have completed minimum
10 years of regular service. Admittedly,
services rendered by the petitioners since
1.4.1971 till 31.3.1981 were treated as on
deputation with U.P. State Cement
Corporation and their services stood
absorbed w.e.f. 1.4.1981 to the services of
U.P. State Cement Corporation Limited
and finally they have attained the age of
superannuation between the years 1994
to 2004. Even otherwise as per the
Government
order
dated
1.7.1989,
admittedly the petitioners have completed
10 years' of regular service and as such,
they are entitled for the pensionary
benefits.

15. The Court has perused the order
impugned and find that the respondents
6 All. Ramesh Chandra Verma Vs. Director of Education (Secondary) U.P. Prayagraj & Ors.
737
had taken objection precisely on the
ground that the case of petitioners is
unsustainable in the light of provisions
contained under Article 361 of Civil
Services Regulation. The same cannot be
sustained and is accordingly rejected.
Once the respondent authorities had
accorded certain benefits to the similarly
situated employees, then the same cannot
be denied to the petitioners.

The Court has also perused the
Government order dated 1.7.1989 and the
judgement of this Court in Suresh
Chandra's case (supra) and find that the
same is not applicable in the present facts
and circumstances of the case.

16. In view of above, the impugned
order cannot be sustained and is set
aside.

17. The writ petition is allowed and
the respondents are directed to calculate
and pay the entire retiral dues of the
petitioners within three months from the
date of production of certified copy of this
order."

9. Suffice to indicate that the said
judgement has been approved/affirmed by
the Division Bench of this Court in State
of U.P. vs. Gorakh Nath Pandey7
reported in. Relevant paragraphs of the
said judgement is quoted as under:-

"State of U.P. not being satisfied
with the judgment and order of the
learned Single Judge has filed this intracourt appeal.

Learned Advocate General of the
State of Uttar Pradesh, Sri Raghvendra
Singh challenges the correctness of the
conclusions so drawn by the learned
Single Judge. He would contend that the
principle
issue
which
requires
consideration is as to whether the
employees/workmen
appointed
in
government
cement
factory,
whose
service conditions are governed by the
Standing Orders certified under the Act,
1946 would be entitled to the benefits of
pension under Civil Service Regulations
or not.

He would submit that in terms of the
Rule 7-B of the U.P. Fundamental Rules,
the term Government Servant has been
defined as a person appointed to a civil
post or a civil service under the State
Government, and serving in connection
with affairs of Uttar Pradesh whose
conditions of service have been or may be
prescribed by the Governor under Section
241 (2) (b) of the Act.

Under Section 241 (2) (b) of the
Government of India Act, 1935, the
conditions of service of persons serving in
a civil capacity in India could be
prescribed, in the case of persons service
in connection with the affairs of the
Province, by rules made by the Governor
or by a person authorized by the
Governor to make rules for the purpose.

The
Civil
Service
Regulations
(Relating to Pension), in terms of
Regulation 1 (a), are intended to define
the conditions under which pension is
earned by service in a Civil Department.

Therefore, the provisions of the U.P.
Fundamental Rules as also the Civil
Service Regulations would be applicable
only to persons appointed to a civil post
or a civil service under the State
Government and serving in connection
with the affairs of the State Government,
or in other words to a Government
Servant only.

In the facts of the present case the
petitioners were industrial workmen with
the meaning to be assigned as per the
Standing Orders certified under the Act of
1946. Their conditions of service were
governed by the Certified Standing
738 INDIAN LAW REPORTS ALLAHABAD SERIES
Orders. The petitioners were thereof
clearly not civil servant or holders of civil
post under the definition of the term
Government Servant contemplates the
U.P. Fundamental Rules. They were not
appointed to a civil post or to a civil
service under the State Government so as
to entitle them for pension which is
earned by service in a Civil Department
as required under the Civil Service
Regulations.

Crux of the submission of the
learned Advocate General therefore, is
what once the petitioners are found to
answer
the
description
of
workmen/industrial employees within the
meaning of to be assigned under the
Standing Orders Act, they stand excluded
from the definition of a person appointed
to a civil post or in civil service within the
meaning of U.P. Fundamental Rules/Civil
Service Regulations and therefore they
are not entitled to pension.

We specifically inquired from the
learned Advocate General as to under
which provision of the U.P. Fundamental
Rules/Civil Service Regulations/Standing
Orders Act, any such exclusion in respect
of the persons who are workmen are not
being a person appointed to a civil post.
No response could be given. It is more or
less an admitted position that there is no
specific provision for excluding the
workmen/industrial employees in the
matter of payment of pension/retiral dues,
who otherwise satisfy all the conditions as
contemplates by Regulation 361 of the
Civil Service Regulations.

The Standing Orders Act has been
enforced with an object to law down the
condition of service like disciplinary
action, leave, allowances etc. so as to
minimize
the
fraction
between
the
workmen and employer in Industrial
Undertaking.
Such
Industrial
Undertaking can be private undertaking
or Government Undertaking or Public
Private Undertaking. It is useful to refer
to the definition of employer contained in
Section 2 (d) (ii) of the Act, 1946, which
reads as follows: "2. Interpretation.

(d) "employer".......

(ii) in any industrial establishment
under the control of any department of
any Government in India, the authority
appointed by such Government in this
behalf, or where no authority is so
appointed, the head of the department;"

Thus, it will be seen that a
Government
may
own
industrial
undertaking and in that circumstance, a
employee working in such an industrial
undertaking has to be held to be in
service of Government and if
the
appointment is substantive and his service
is to be paid by the Government, he
stands covered by the provisions of
Regulation 361 of the Civil Service
Regulations,
which
entitles
him
to
pension.

For ready reference, Regulation 361
of the Civil Service Regulations reads as
under:

"361. The service of an officer does
not qualify for pension unless it conforms
to the following three conditions:---

First-The service must be under
Government.

Second-The employment must be
substantive and permanent.

Third-The service must be paid by
Government."

We may explain that use of the word
"civil
service"
under
Civil
Service
Regulations has to be read to include all
nature of employment in the Government,
except those which are in relation to
defence service or service connected with
defence.
6 All. Ramesh Chandra Verma Vs. Director of Education (Secondary) U.P. Prayagraj & Ors.
739

Civil Service as defined in The New
Dictionary of Cultural Literacy, Third
Edition by Houghton Mifflin Company
reads as under:

"The nonmilitary personnel who
work for a government, applying its laws
and regulations."

In our opinion the service conditions
laid down as per the Certified Standing
Orders, the Act, 1946 do not in any way
impinge upon the right of a employee
working in a Government Industrial
Undertaking to be entitled to pension and
other retiral dues under Regulation 361
of Civil Service Regulations. Provisions
of Regulation 361 of the Civil Service
Regulations are a beneficial piece of
legislation and we do not find any reason
for the persons who are covered by the
Certified Standing Orders to be excluded
from the benefits of Regulation 361 of the
Civil Service Regulations, if they satisfy
the other requirements of Regulation 361
of the Civil Service Regulations.

In
our
opinion
even
a
workman/industrial
employee
of
Government Industrial Undertaking has
to be held to be a civil servant/holder of a
civil post under the Government so as to
be covered within the meaning of
Regulation 361 of the Civil Service
Regulations.

There is no issue with regard to
other employees appointed in Factory at
Churk and subsequently absorbed in the
Corporation being paid pension in terms
of the Government Order dated 2nd
August, 2005.

We for the reasons recorded above
see
no
reason
as
to
why
the
workmen/industrial employees similarly
appointed and absorbed be denied the
same benefit. It is held that petitioners
who answer the description of industrial
employees/workmen shall also be covered
by the Government Order dated 2nd
August, 2005 and would be entitled to all
benefits following therefrom.

In the totality of the circumstances
on record we do not find any substance in
the contentions raised by the learned
Advocate General for the State to
interfere with the judgment and order of
the learned Single Judge dated 12th
April, 2016.

All these appeals lack merit and are
accordingly dismissed."

10. Learned counsel for the
petitioners
further
submits
that
the
petitioners
had
worked
against
substantive post since very beginning and
their appointment is not at all from
backdoor and time to time salary and
other allowances, which were admissible
to them, had been ensured in their favour
and at this stage, they cannot be
discriminated only on the ground that
their services are governed with the
Industrial Employment (Standing Orders)
Act 1946 and Model Standing Orders,
1992 as well as other Labour Laws. In
support of his submission, he has also
relied upon the recent judgement passed
by Hon'ble the Apex Court in the case of
Prem Singh vs. State of U.P. and others8.
The relevant extract of the said judgement
is quoted as under:-

"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
740 INDIAN LAW REPORTS ALLAHABAD SERIES
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 & Ors. v.
State of Uttar Pradesh & Ors. (CA
No.______2019 @ 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 w.e.f 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
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
work-charged 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 work-charged 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
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 work-charged establishment the
efficiency bar was permitted to be
crossed. It would be highly discriminatory
and irrational because of the rider
6 All. Ramesh Chandra Verma Vs. Director of Education (Secondary) U.P. Prayagraj & Ors.
741
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 workcharged 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 & Ors. v.
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 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.

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
742 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

37.
All
pending
interlocutory
applications
and
miscellaneous
applications, if any, are disposed of."

11. In this backdrop, he submits that
the case of the petitioners are on better
footing in comparison to the work
charged employee and as such, the benefit
of pension is liable to be extended to the
petitioners, as such, the order impugned is
unsustainable being in violation of Article
14 and 16 of the Constitution of India and
thus, this Court should come to the rescue
and reprieve of the petitioners.

12. Per contra, Shri Apurva Hajela,
learned Standing Counsel has vehemently
opposed the writ petition. On the basis of
averment mentioned in the Counter
Affidavit, he submits that the provisions
and service conditions of employees of
industrial workshop is different than the
service
conditions
of
regular
establishment and the same is governed
by the Industrial Employment (Standing
Orders) Act 1946 and Model Standing
Orders, 1992 issued by the Government.
For
the
employees
of
Industrial
Establishment under the provisions of
Employees Pension Scheme 1995, the
pension is payable by the Employee
Provident Fund office, whereas, for
getting the said benefit, the petitioners
have
not
submitted
the
prescribed
documents
with
signatures
to
the
workshop
officer
instead
they
are
claiming the pension as is admissible to
the regular establishment employees,
which is not admissible in law as the
same would create a separate and distinct
class and as such, this Court should not
interfere in the matter.

13. Heard rival submission and
perused the record.

14. In order to appreciate the
controversy in hand, it would be relevant
to have a glance of provisions contained
in Uttar Pradesh Retirement Benefits
Rules 19619 Rule 3(8) of the Rules 1961
which contains the provisions in respect
of
qualifying
service
is
extracted
hereunder:-

"Rule 3. In these rules, unless is
anything repugnant in the subject or
context-

(1) ........

(2) ........

(8)
"Qualifying
service"
means
service which qualifies for pension in
accordance with the provisions of Article
368 of the Civil Service Regulations.

Provided that continuous temporary
or
officiating
service
under
the
Government of Uttar Pradesh followed
without interruption by confirmation in
the same or any other post except-

(i)
periods
of
temporary
or
officiating service in a non-pensionable
establishment.

(ii) periods of service in a workcharged establishment and

(iii) periods of service in a post paid
from contingencies shall also count as
qualifying service.

Note:- If service rendered in a nonpensionable establishment work-charged
establishment or in a post paid from
6 All. Ramesh Chandra Verma Vs. Director of Education (Secondary) U.P. Prayagraj & Ors.
743
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."
(emphasis supplied)"

15. Regulations 361, 368 and 370 of
Uttar Pradesh Civil Services Regulations
are also relevant. They are extracted
hereunder:

"361. The service of an officer does
not qualify for pension unless it conforms
to the following three conditions: - First -
The service must be under Government.

Second - The employment must be
substantive and permanent.

Third--The service must be paid by
Government.

These three conditions are fully
explained in the following Section.

368.