# State of U.P. & Ors v. Shiv Jag Sharma & Ors

- **Citation:** (2023) 8 ILRA 256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-03
- **Case number:** Special Appeal No. 1013 of 2018
- **Bench:** Saumitra Dayal Singh, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-shiv-jag-sharma-ors-50604
- **Pages:** 18

## Headnote

Civil Law - Civil Service Regulations,1986 -
Regulation 361 - Industrial Employment
(Standing
Orders)
Act,
1946
-
U.P.
8 All. State of U.P. & Ors. Vs. Shiv Jag Sharma & Ors.
257
Absorption
of
Retrenched
Employees
Rules, 1991 - Constitution of India,1950 -
Article 14 - Article 226 - Governed
absorption of UPCCL employees into other
government departments post-liquidation
-

The St. appealed against a Single Judge's order
(12.03.2018) granting pensionary benefits to
workmen of the Churk and Dala Cement
Factories, owned by the St., under Regulation
361 of the Civil Service Regulations, for service
rendered up to 31.03.1981. The core question
was whether these workmen, governed by the
Industrial Employment (Standing Orders) Act,
1946, could be treated as civil servants eligible
for pension, given their status as industrial
employees and subsequent absorption into the
U.P.
Cement
Corporation
Limited
from
01.04.1981. The court affirmed the respondents'
entitlement to pensionary benefits, rejecting the
St.'s argument that workmen were not civil
servants. The decision rested on the St.'s own
policy
(02.08.2005
Order),
the
equitable
principle of equal treatment under Article 14,
and the factual identity with Gorakh Nath
Pandey.

The appeal was dismissed.

List of Cases cited:

## Text

_Characters 0–39,767 of 61,982. This is a partial read: ask again with offset=39767 for what follows._

256 INDIAN LAW REPORTS ALLAHABAD SERIES
she is eligible and entitle to claim
reservation available to O.B.C. category
candidate. "

24. Upon reading of the aforesaid
paragraph of the judgment, it is clear that a
candidate is required to furnish certificate
evidencing him to be belonging to OBC
category as recognized and identified by
the State so the ratio behind the answer by
the full bench appears to be very clear that
a candidate is required to furnish certificate
which certifies him belonging to the caste
of particular category under which he/ she
claims reservation benefit.

25. I would also observe here that the
object behind reservation being to bring
into mainstream of the nation the most
oppressed
class
both
socially
and
financially and castes in the state and at the
nation level are identified and notified of
such category to offer them reservation in
government service, so if there is no
quarrel about the cast of a person as
notified by the state deserving benefit of
regularization in that state, it should not
matter on which format certificate has been
issued. Both the posts under Union of India
and the State if are reserved for such
category and the state is issuing certificates
one
meant
for
posts
under
Central
Government and other for post under State
Government, if requisite information is
available,
it
would
be
hypothetical
approach to reject a certificate just for it
being on a format prescribed for the posts
under Central Government. To this extent
the relevant clause in the advertisement
should be construed liberally.

26. In the present case whether it is
upon format meant for the posts under
Government of India or upon format meant
for posts the State Government both the
certificates having been issued by the State
Government certifying the petitioner to be
belonging to Ahir cast , the OBC caste and
also
not
belong
to
creamy
layer,
respondents are not justified in rejecting
candidature of the petitioner as far as his
eligibility for OBC category is concerned.

27. In view of above, writ petition
succeeds and is allowed. The respondents
are directed to consider the candidature of
the petitioner as candidate of other
backward caste, in the selection held for the
recruitment against the post of Sub
Inspector under the advertisement PRPB-
nsk-2 (3 fo /2020) dated 25.2.2021. The
petitioner shall be placed in the merit list of
OBC category as per marks obtained and if
is at par or above the last cut off, shall be
offered appointment.
----------
(2023) 8 ILRA 256
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J
THE HON'BLE VINOD DIWAKAR, J.

Special Appeal No. 1013 of 2018
with other connected cases

State of U.P. & Ors. ...Appellants
Versus
Shiv Jag Sharma & Ors. ...Respondents

Counsel for the Appellants:
Sri Yogendra Kumar Singh

Counsel for the Respondents:
A.A.G., A.S.G.I., Sri Yogesh Kumar Saxena,
Sri Yogesh Kumar Saxena

Civil Law - Civil Service Regulations,1986 -
Regulation 361 - Industrial Employment
(Standing
Orders)
Act,
1946
-
U.P.
8 All. State of U.P. & Ors. Vs. Shiv Jag Sharma & Ors.
257
Absorption
of
Retrenched
Employees
Rules, 1991 - Constitution of India,1950 -
Article 14 - Article 226 - Governed
absorption of UPCCL employees into other
government departments post-liquidation
-

The St. appealed against a Single Judge's order
(12.03.2018) granting pensionary benefits to
workmen of the Churk and Dala Cement
Factories, owned by the St., under Regulation
361 of the Civil Service Regulations, for service
rendered up to 31.03.1981. The core question
was whether these workmen, governed by the
Industrial Employment (Standing Orders) Act,
1946, could be treated as civil servants eligible
for pension, given their status as industrial
employees and subsequent absorption into the
U.P.
Cement
Corporation
Limited
from
01.04.1981. The court affirmed the respondents'
entitlement to pensionary benefits, rejecting the
St.'s argument that workmen were not civil
servants. The decision rested on the St.'s own
policy
(02.08.2005
Order),
the
equitable
principle of equal treatment under Article 14,
and the factual identity with Gorakh Nath
Pandey.

The appeal was dismissed.

List of Cases cited:

1. Ajit Kumar Nag Vs General Manager (PJ),
Indian Oil Corp. Ltd. (2005) 7 SCC 764:

2. Gorakh Nath Pandey Vs St. of U.P. (Special
Appeal (Defective) No. 773 of 2016)

3. St. of U.P. Vs Gorakh Nath Pandey (SLP
(Civil) Diary No. 11199 of 2018, 01.05.2018)

4. Kamla Neti Vs Special Land Acquisition Officer
(2023) 3 SCC 528; B. Premanand Vs Mohan
Koikal (2011) 4 SCC 266; P.M. Latha Vs St. of
Kerala (2003) 3 SCC 541:

5. St. of U.P. Vs Arvind Kumar Srivastava (2015)
1 SCC 347:

6. Azam Jahi Mill Workers Association Vs
National Textile Corp. Ltd. [2021 (4) ESC 880
(SC)]:

7. VSM. Salgaocar & Bros. Vs CIT (2000) 5 SCC
373;

8. Kunhayammed Vs St. of Ker. (2000) 6 SCC
359:

9. Wander Ltd. Vs Antox India Pvt. Ltd. (1990
(Supp) SCC 727);

10. Roma Sonkar Vs M.P. St. Public Service
Commission (2018) 17 SCC 106

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Vinod Diwakar, J.)

1. Heard Sri Ajeet Kumar Singh,
learned
Additional
Advocate
General
assisted by Sri Pankaj Kumar Rai, learned
Additional Chief Standing Counsel and Sri
Amit Verma, learned Standing Counsel for
the respondents-appellants and Sri Yogesh
Kumar Saxena, learned counsel for the
respondents-petitioners.

2. Present intra-court appeal has been
filed against the order of the learned single
judge dated 12.03.2018 passed in Writ-A
No. 33526 of 2016 (Shiv Jag Sharma and
9 others Vs. State of U.P. and others).

3. By that order, the learned single
judge has allowed the writ petition,
following the earlier decision of a Division
Bench of this Court in Special Appeal
(Defective) No. 773 of 2016 (State of U.P.
and 4 others Vs. Gorakh Nath Pandey
and 15 others), arising from an order of
the another learned single judge dated
12.04.2016 in Writ-A No. 61107 of 2013
(Gorakh Nath Pandey and 15 others Vs.
State of U.P. and 4 others).

4. In short, petitioners-respondents
who had been engaged as workmen at the
258 INDIAN LAW REPORTS ALLAHABAD SERIES
Churk
and
Dala
Cement
Factories
established by the Government of U.P.,
have been directed to be paid pension,
commensurate to the years of service
rendered at those cement factories of the
State Government, up to the cut off date i.e.
31.03.1981. They having rendered 10 years
qualifying service on that date, were found
eligible to that benefit, under Regulation
361 of the Civil Service Regulation.

5.

Submissions
of
the
learned
Additional Advocate General are, all the
petitioners-respondents were appointed as
workmen at the Churk and Dala Cement
Factories
established
by
the
State
Government. Though, they may have served
continuously for a period of 10 years in that
capacity, they could never claim to be Civil
Servants within the meaning of Regulation
361 of the Civil Service Regulation. The
petitioners-respondents
had
only
been
appointed as workmen under the Industrial
Employment (Standing Orders) Act, 1946
(hereinafter referred to as the "Act, 1946")
and the Standing Order issued thereunder.
Referring to the Government Order No.
1355, dated 18.04.1972, it has been
submitted, the distinction between the
workmen who may have worked at the
above described cement factories and the
other employees and officers of the State
Government, who may have worked at
those establishment of the government
and who were governed by the Industrial
Standing Orders, may never have been
equalised.

6. Reference has also been made to
another
Government
Order
dated
01.07.1989, to submit that the same was
applicable only to Temporary Government
Servants but not to workmen, who may
have
been
engaged
by
the
State
Government.

7. Referring to another Office Order
No. 3047-51, dated 02.08.2005, it has been
submitted, the benefit of the pension
scheme was applicable only to Officers and
Temporary Government Servants of the
above described cement factories, who
were not governed by the Industrial
Standing Orders, excluding the workmen
who remained governed by the terms of the
extant Industrial Standing Orders.

8. Relying on a decision of the
Supreme Court in Ajit Kumar Nag Vs.
General Manager (PJ), Indian Oil
Corporation Limited; (2005) 7 SCC 764,
it has been strenuously urged, workmen
engaged at an industrial establishment
owned by the State Government may never
acquire the status of a government servant.
Since the petitioners-respondents continued
to be workmen of the State Government, up
to the date of their absorption in the U.P.
Cement Corporation incorporated by the
State Government w.e.f. 1.4.1981, they
never
acquired
the
status
of
a
government/civil
servant,
either
while
working as a workman at a factory
establishment
owned
by
the
State
Government or at the factory of the
corporation
owned
by
the
State
Government.

9. That status of government servant
may have been acquired by some of the
petitioners-respondents who later came to
be
absorbed
in
other
government
departments under the U.P. Absorption of
Retrenched
Employees
Rules,
1991,
occasioned by the winding of the U.P.
Cement Corporation Limited, vide order of
the
learned
Company
Judge,
dated
8.12.1989.
None
of
the
petitionersrespondents have set up their claim of
having completed qualifying service after
8 All. State of U.P. & Ors. Vs. Shiv Jag Sharma & Ors.
259
the date of such absorption, as government
servants.

10. In that factual premise, it has been
submitted, the earlier order of the learned
single judge in Gorakh Nath Pandey
(supra) was based on a wrong assumption
in law. It did not take note of the correct
status of the petitioners in that case and
proceeded to treat the workmen of the State
Government
to
be
government
employees/civil servants. That mistake
committed by the learned single judge was
not corrected in the intra court appeal being
Special Appeal (Defective) No. 773 of
2016 (State of U.P. and 4 others Vs.
Gorakh Nath Pandey and 15 others)
(hereinafter referred to as the "Gorakh
Nath Pandey (supra)".

11. Upon further challenge raised by
the State before the Supreme Court, that
view of the co-ordinate bench of this Court
was not affirmed. Thus, the Special Leave
Petition (Civil) Diary No. 11199 of 2018
(State of Uttar Pradesh & Ors. Vs.
Gorakh Nath Pandey & Ors.) came to be
decided by the following order dated
01.05.2018 :

"Delay condoned.

Application for exemption from
filing official translation is allowed.

In the peculiar facts of this case,
we are not inclined to exercise our
jurisdiction under Article 136 of the
Constitution of India. Hence, this special
leave petition is dismissed, leaving the
question of law open.

Needless to say that the impugned
judgment may not be treated as precedent."

12. Thus, it was only in the peculiar
facts of that case found by the Supreme
Court that SLP came to be dismissed. At
the same time, the question of law raised in
that appeal, whether a workman at a
government factory could be equated as a
government servant and be eligible to
pension, was specifically left open. Any
doubt in that regard was clarified further by
the Supreme Court by observing that the
said decision of the division bench of this
Court would not be treated as a precedent.

13. In view of that order passed by the
Supreme Court, the learned Additional
Advocate General would further contend,
the issue has to be examined de novo and,
in any case, referred to a larger bench of the
Court.

14. Since the equities are pitted
directly against the law, it is not for this
Court to rule in favour of equities. Here,
reliance has been placed on decisions of the
Supreme Court in Kamla Neti Vs. The
Special Land Acquisition Officer and
others; (2023) 3 SCC 528, B. Premanand
and others Vs. Mohan Koikal and
others; (2011) 4 SCC 266 and P.M. Latha
and another Vs. State of Kerala and
others; (2003) 3 SCC 541.

15. Last, it has been submitted, the
petitioners did not approach this Court
within time and therefore they are entitled
to get any relief. The learned single judge
has erred in allowing their writ petitions.
Here, reliance has been placed on three coordinate bench decisions of this Court, in
State of U.P. and 3 others Vs. Mohd.
Israr Khan and 40 others; Neutral
Citation
No.
2023:AHC:105865-DB,
State of U.P. and 2 others Vs. Gautam
Das and 46 others; Neutral Citation No.
2023:AHC:105868-DB and State of U.P.
and 2 others Vs. Sant Lal Vishwakarma
and 50 others; Neutral Citation No.
2023:AHC:116438-DB.
260 INDIAN LAW REPORTS ALLAHABAD SERIES

16. On the other hand, Sri Yogesh
Kumar
Saxena
would
submit,
the
petitioners-respondents
have
not
been
given any benefit of service rendered by
them to the U.P. Cement Corporation
Limited w.e.f. 1.4.1981. Undoubtedly,
those services have to be treated to have
been rendered to a corporation established
by the State Government. That corporation
was a distinct and different entity from that
of the State Government. Therefore, the
dictum of the Supreme Court in Ajit
Kumar Nag (supra) is wholly inapplicable
to the present facts, inasmuch as that ratio
had arisen in the context of employees of a
State owned corporation only. In that case,
it was never in dispute, if a workman under
the industrial establishment owned by the
State Government may stand on the same
footing as a government servant or a civil
servant.

17. The precise issue that had arisen
in the present case was dealt with by the
State
Government
by
first
issuing
Government
Order
No.
1355,
dated
18.04.1972 dealing with the nomenclature
of employees of the State Government.
Then, vide further Government Order dated
01.07.1989, it was specifically provided
that the retiral benefits due to Government
Servants would extend to Temporary
Government Servants as well. In any case,
on 02.08.2005, the State Government being
cognizant of the fact situation applicable to
the present case namely workmen of the
industrial establishment owned by it had
been
permanently
absorbed
by
a
corporation
established
by
it,
w.e.f
1.4.1981. In that context, the workmen of
the State Government were described as
employees
with
reference
to
whom
provision was being made by means of the
said Office Order. Paragraph-3 of the said
order clearly refers to the workmen of the
Cement Factories, Churk and Dala of the
State Government. The State Government
then announced its decision to extend the
pensionary benefits to such workmen
treating/equating them to be Temporary
Government Servants to whom such benefit
had
been
extended
by
the
earlier
Government Order dated 01.07.1989.

18. That decision having been made
by the State Government itself and
implemented, the petitioners were clearly
entitled to its benefits. The distinction, if
any that was being drawn, was dealt with
by the learned single judge in Gorakh
Nath Pandey (supra). Thereupon, it was
found, having worked for more than 10
years in the cement factory established by
the State Government, those workmen were
entitled to pensionary benefits under the
self-same Government Order (discussed
above).

19. Upon challenge laid to the said
order of the learned single judge, a division
bench of this Court dealt with the self-same
issue and repelled the submission as is now
being advanced on behalf of the State
Government. After a detailed discussion of
the provisions of the Civil Service
Regulation, the co-ordinate Bench reached
a conclusion that the workmen of the
industrial establishment owned by the State
Government would remain entitled to
pensionary
benefits
as
government
servants.

20. While the Supreme Court may not
have fully approved and thus affirmed the
order of the co-ordinate Bench, it did not
reverse the same and in any case, it did not
lay down any contrary law. The later
observation made in that order leaving the
question of law open and not for that
reason allowing that decision of the co-
8 All. State of U.P. & Ors. Vs. Shiv Jag Sharma & Ors.
261
ordinate bench to be made precedent, only
indicates that the same is not to be applied
by way of reasoning if facts are different.

21. Insofar as the same facts are
shown to exist in the present case as existed
in
Gorakh
Nath
Pandey
(supra),
peculiarity of facts noted by the Supreme
Court in the third paragraph of its order
dated 1.5.2018 obtains in the present case,
as well. It is not the case of the Staterespondents
that
the
present
set
of
respondents stand on a different footing
than the petitioners in Gorak Nath Pandey
(supra). Therefore, while no law may have
arisen as may bind the Court in future
decisions, at the same time, the rule of
consistency and principles of equity would
dictate, the Court may not draw any
distinction as may itself lead to equals
being treated unequally. Relying on a
decision of the Supreme Court in Modified
Voluntary Retirement Scheme of 2002 of
Azam Jahi Mill Workers Association Vs.
National Textile Corporation Limited
and others; [2021 (4) ESC 880 (SC), it
has been strenuously urged that the Court
itself may not pass any order as may result
in equals being treated unequally. As to
delay, it has been submitted, neither such
ground was raised before the learned single
judge nor there is any inordinate delay on
the part of the petitioner in the present case.
These petitions were filed immediately
after pronouncement by the learned single
judge in Gorakh Nath Pandey (supra).

22. Having heard learned counsel for
the parties and having perused the record,
we find the coordinate Bench in Gorakh
Nath Pandey (supra) had the occasion to
deal with the exact same submissions being
advanced in the present appeal. There also,
an issue had been raised that exactly
similarly situated workmen of a cement
factory
established
by
the
State
Government may not have been equated to
civil servants and, therefore, they may not
be found entitled to pensionary benefits
under Regulation 361 of the Civil Service
Regulations. Pertinent to the dispute before
us, the co-ordinate bench had observed as
under:

"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
262 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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.
8 All. State of U.P. & Ors. Vs. Shiv Jag Sharma & Ors.
263

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."

23. Thus, we find, exact same
submission had been raised before the
coordinate Bench. It had been dealt with
and repelled on the reasoning that the
petitioners (in that case), were specifically
included for the purpose of grant of
pensionary benefit upon the decision made
by the State Government dated 02.08.2005.
Even today, it is no one's case that the
above
Office
Order
issued
by
the
Commissioner and Director, Industries,
Government of U.P., was later withdrawn
or amended, at any subsequent date. That
decision of the State Government has not
only remained in existence, but it was also
enforced against the State Government in
Gorakh Nath Pandey (supra).

24. Therefore, the mere reference to
the Standing Order containing the terms
and conditions of engagement of the
petitioners-respondents
as
workmen
establishes that technically it is true that the
workmen of the industrial establishment
may stand on a different footing than an
employee
of
the
State
Government
enjoying status of an employee engaged
under separate Rules. That technical
deficiency of status though may always be
recognized by the Courts, yet, it is always
open to the State-government/employer to
still treat its workmen equal to its other
employees, for grant of pensionary benefit.
In the context of a welfare State, that exact
decision does appear to have been made by
the State Government in favour of the
present
petitioners-respondents
on
02.08.2005 when it decided, despite being
conscious of the above distinction of the
status of the petitioners-respondents, to
grant them pensionary benefits by equating
them with other government employees.
Relevant extract of the Office Order dated
02.08.2005 reads as below:

"िायादलय आदेश

उत्तर प्रदेश राज्य सीमेण्ट कनगम कलकमटेड िी
चुिद/चुनाव एवां अन्य ईिाईयों से सेवाकनवृत्त िुछ िमदचाररयों
द्वारा माननीय उच्च न्यायालय में पेन्शन एवां अन्य पररणामी
लाभ कदये जाने हेतु याकचिाये योकजत िी गई। इन याकचिाओां
में मा० उच्च न्यायालय द्वारा पाररत कनणदय िे पररप्रेष्य में समय
समय पर शासन द्वारा याचीगणों िो पेन्शन उच्चीिृत किये
जाने हेतु िकतपय शतों िे अांतगदत अनुमन्यता प्रदान िी गई।
याचीगणों िो पेन्शन अनुमन्य किये जाने पर अन्य अकििाररयों
/ िमदचाररयों द्वारा भी पेन्शन स्वीिृत किये जाने हेतु शासन से
माांग िी गई। अकििाररयों / िमदचाररयों िी माांगों पर सम्यि
रूप से कवचारोपरान्त शासन स्तर पर कदनाांि 24-7-2003
िो कवशेर् सकचव, औद्योकगि कविास अनुभाग- 1 िी
अध्यक्षता में हुई बैठि में कनणदय कलया गया कि मा० उच्च
न्यायालय िे आदेशों िे अनुश्रवण में याचीगण अथवा अन्य
पूवद िमदचाररयों िे पेन्शन िी स्वीिृकत सांबांिी जो आवेदन पत्र
प्राप्त हुए उिने सांबांि में उद्योग कनदेशालय द्वारा िायदवाही िी
जायेगी, पेन्शनरी लाभ कदये जाने हेतु कनगम िे पूवद िमदचाररयों
िे सेल अकभलेख शासिीय समापि इलाहाबाद से व्यकक्तगत
प्रयास िरिे प्राप्त िर कलये जाये इसिे कलये उद्योग कनदेशालय
िे स्थानीय अकििाररयों िा सहायोग कलया जाये एवां जो
अकभलेख पयादप्त प्रयासों िे बावजूद उपलब्ि नहीं हो पतो है
उनिे सांबांि में कनयमानुसार शपथपत्र प्राप्त िरिे िायदवाही िी
जाये ।

शासन
िे
उपरोक्त
आदेशानुसार
उक्त
अकििाररयों / िमदचाररयों से प्राप्त पेंन्शन प्रपत्रों पर िायदवाही
िरते हुए महालेखािार िे माध्यम से पेन्शन अनुमन्य िराई
जाती है उक्त सीमेण्ट फैकक्ट्रया उद्योग कवभाग िे अन्तगदत
सांचाकलत थी एवां इन फैकक्ट्रयों में जो िमदचारी थे वे राजिीय
सेवि थे िालान्तर में उ० प्र० राज्य सीमेण्ट कनगम कल० िी
स्थापना होने पर उक्त फैकक्ट्रयाां कनगम िे कनयांत्रणािीन चली गई
264 INDIAN LAW REPORTS ALLAHABAD SERIES
एवां उनमें िायदरत िमदचाररयों िी सेवायें 1.4.1972 से
सीमेण्ट कनगम में स्थानान्तररत हो गई । इन िमदचाररयों िी यह
सेवायें कनगम में 1.4.1972 से प्रकतकनयुकक्त पर मानी गई एवां
यह प्रकतकनयुकक्त अवकि कदनाांि 31.3.1981 ति बढाई गई
एवां 1.4.1981 से इन अकििाररयों / िमदचाररयों िी सेवायें
उ० प्र० राज्य सीमेण्ट कनगम कल० में सांकवहीन हो गई इस प्रिार
उ० प्र० राजय सीमेण्ट कनगम कल० िी सेवाओां में आमेलन िी
कतकथ (1.4.1981) से ठीि पूवद इन िमदचाररयों द्वारा िी
गई सेवायें राजिीय सेवायें हैं।

उक्त िमदचाररयों िे अस्थाई होने िे िारण उन्हें
सेवा नैवृकत्ति लाभो िी स्वीिृकत प्रदान नहीं िी जा सिी थी
चूांकि तत्समय राज्य सरिार िे अस्थाई िमदचाररयों िो पेन्शन
सुकविा अनुमन्य नहीं थी। िालान्तर में कवत्त कवभाग (सामान्य
अनुभाग-3) िे िायादलय ज्ञाप सांख्या सा०-3-1152 / दस915 - 89 कदनाांि 1.7.1989 द्वारा अस्थाई िमदचाररयों
िो भी सेवा नैवृकत्ति लाभों िी सुकविा अनुमन्य िर दी गई।
तदनुसर सीमेण्ट कनगम िे उक्त िमदचारी कनगम िी सेवा में
आमेलन िी कतकथ से पूवद िी राजिीय सूचनाओां िे कलये
पेन्शनरी सुकविा हेतु अहद हो गये।

चूांकि उ०प्र० राज्य सीमेण्ट कनगम कल० िे
कलक्वीडेशन िी प्रकक्रया चल रही है यहाां पर िोई भी
अकििारी शेर् नहीं बचा है जो इन अकििाररयों / िमदचाररयों
िे पेन्शन प्रपत्रों िा परीक्षा िरिे पेन्शन स्वीिृकत हेतु उद्योग
कनदेशालय अग्रसाररत िर सिें अतः इस सांबांि में शासन स्तर
पर सम्यि कवचारोपरान्त कलये गये कनणदय िे अनुसार उपरोक्त
तीनों ईिाईयाां कजिने अकििाररयों 2 िमदचाररयों िे व्यकक्तगत
अकभलेख सीमेण्ट कनगम िे चुिद कस्थकत िायादलय में शासिीय
सहायि िी अकभरक्षा में उपलब्ि है िो प्राप्त िरिे तद्नुसार
पेन्शन प्रपत्रों व जाांच िरिे उन्हें उद्योग कनदेशालय अग्रसाररत
किये जाने हेतु महा प्रबन्िि कजला उद्योग िेन्र सोनभर िो
अकििृत किया जाता है। महाप्रबन्िि, कजला उद्योग िेन्र
सोनभर शासिीय समापि से प्राप्त िमदचाररयों िे अकभलेखों
िे आिार पर उिने पेन्शन प्रपत्रों िी जाांच िरिे पेन्शन
स्वीिृकत हेतु कनदेशालय िो अग्रसाररत िरें ताकि तद्नुसार
पेन्शन स्वीिृकत हेतु कनदेशालय स्तर पर वाांकछत
औपचाररितायें पूणद िराने िे उपरान्त उन्हें महा लेखािार
िायादलय िो भेजा जा सिे। महा प्रबन्िि कजला उद्योग िेन्र
तत्िाल िायदवाही सुकनकित िरेंगें।"

25. It was never for this Court to
question
the
wisdom
of
the
State
Government in taking that administrative
decision. Insofar as that decision was
permissible to be taken by the State
Government, apparently while pursuing the
welfarist objectives under the Constitution
of India, we do not find that decision to be
per se illegal or contrary to law. Having
failed to specifically exclude the workmen
from the scope of application of that order,
it was not fair for the respondentappellant/State, to now set up this plea.

26. As to reason, we find the learned
single judge did not find any occasion to
take a different view to that taken by the
coordinate bench, in Gorakh Nath Pandey
(supra). The learned single judge felt
inclined to follow the decision of the coordinate bench in Gorakh Nath Pandey
(supra). In the peculiar facts of the present
case namely, the State Government having
itself
chosen
to
treat
the
industrial
workmen appointed by it at its erstwhile
cement factories at Churk and Dala, to be
entitled to pensionary benefits and in view
of the exact identity of facts between
present
petitioners-respondents
and
in
Gorakh Nath Pandey (supra), and further,
in absence of any dispute to the continued
applicability of the Office Order dated
02.08.2005
issued
by
the
State
Government, read in conjunction with the
Government Orders dated 18.04.1972 and
01.07.1989, to such industrial workmen,
they having fulfilled the requirement of
qualifying service of 10 years on the cutoff
date i.e. 31.3.1981, we do not see any
wrong principle had been applied by the
learned single judge, in this case.

27. In Wander Ltd. Vs Antox India
P. Ltd. 1990 (Supp) SCC 727, in an appeal
arising from an interlocutory injunction, the
8 All. State of U.P. & Ors. Vs. Shiv Jag Sharma & Ors.
265
Supreme Court disapproved the approach
of the division bench of the High Court, in
interfering with the interlocutory order of
the learned single judge. In that, it was laid
down:

"14.The
appeals
before
the
Division Bench were against the exercise of
discretion by the Single Judge. In such
appeals, the appellate court will not
interfere with the exercise of discretion of
the court of first instance and substitute its
own discretion except where the discretion
has been shown to have been exercised
arbitrarily, or capriciously or perversely or
where the court had ignored the settled
principles of law regulating grant or
refusal of interlocutory injunctions. An
appeal against exercise of discretion is said
to be an appeal on principle. Appellate
court will not reassess the material and
seek to reach a conclusion different from
the one reached by the court below if the
one reached by that court was reasonably
possible on the material. The appellate
court would normally not be justified in
interfering with the exercise of discretion
under appeal solely on the ground that if it
had considered the matter at the trial stage
it would have come to a contrary
conclusion. If the discretion has been
exercised by the trial court reasonably and
in a judicial manner the fact that the
appellate court would have taken a
different view may not justify interference
with the trial court's exercise of discretion.
After
referring
to
these
principles
Gajendragadkar, J. inPrinters (Mysore)
Private Ltd.v.Pothan Joseph[(1960) 3 SCR
713 : AIR 1960 SC 1156] : (SCR 721)

"... These principles are well
established, but as has been observed by
Viscount Simon inCharles Osenton &
Co.v.Jhanaton[1942 AC 130] '...the law as
to the reversal by a court of appeal of an
order made by a judge below in the
exercise
of
his
discretion
is
well
established, and any difficulty that arises is
due only to the application of well settled
principles in an individual case'."

The appellate judgment does not
seem to defer to this principle".

28. That principle was then applied by
the Supreme Court to intra court appeals
arising in writ jurisdiction, in Roma
Sonkar v. M.P. State Public Service
Commission, (2018) 17 SCC 106. It was
observed:

"3.We
have
very
serious
reservations whether the Division Bench in
an intra-court appeal could have remitted a
writ petition in the matter of moulding the
relief. It is the exercise of jurisdiction of the
High Court under Article 226 of the
Constitution of India. The learned Single
Judge as well as the Division Bench
exercised the same jurisdiction. Only to
avoid inconvenience to the litigants,
another tier of screening by the Division
Bench is provided in terms of the power of
the High Court but that does not mean that
the Single Judge is subordinate to the
Division Bench. Being a writ proceeding,
the Division Bench was called upon, in the
intra-court appeal, primarily and mostly to
consider the correctness or otherwise of the
view taken by the learned Single Judge.
Hence, in our view, the Division Bench
needs to consider the appeal(s) on merits
by deciding on the correctness of the
judgment of the learned Single Judge,
instead of remitting the matter to the
learned Single Judge".

29. We thus prefer to look through the
filter of principle to be applied to the
undisputed rather, admitted facts. To the
extent, we find no fault in exactly similar
266 INDIAN LAW REPORTS ALLAHABAD SERIES
citizens being treated similarly (on the
force of an earlier division bench decision
of this Court, that was not upturned in the
challenge raised to it before the Supreme
Court), at the cost of the respondent-State,
that is otherwise sworn to pursue the
constitutional ideology of a welfarism. The
beneficiaries of that equality being affirmed
through the agency of equitable relief
granted, being individual workmen who
had
been
engaged
by
the
State
Government, we find no error of principle
applied by the learned single judge, in
granting them the relief, following the
earlier decision of the coordinate bench in
Gorakh Nath Pandey (supra).

30. Thus, in the present facts, we
decline
to
examine
if
an
industrial
workman (appointed with that status by the
State Government), would hold the status
equivalent to that of a Government Servant
or a Civil Servant. We are inclined to affirm
the decision of the learned single judge that
is found based on the decision of the coordinate Bench in Gorakh Nath Pandey
(supra). In the peculiar facts of the present
case namely noted above we find no error
of principle applied by the learned single
judge, in allowing the writ petition in terms
of Gorakh Nath Pandey (supra).

31. As noted above, that conscious
and beneficial decision was taken by the
State Government. It is not the case of the
State Government that the said Executive
Order was in conflict with any statutory or
other law, that Executive Order created the
force of law, to the extent the State
Government may not be permitted to either
ignore it or to exercise whims or to pick
and choose between exactly similarly
situated persons - to grant its benefit to
some to deny it to others. To that extent the
Executive Order remains enforceable, and
in any case lays down an administrative
principle that may be applied universally, to
all persons falling within its ambit, without
any element of arbitrariness.

32. Coming to the order of the
Supreme Court, we find, no exaggerated
intent may be drawn from the use of the
phraseology in that order, either to the
words "peculiar facts in this case" or
"leaving the question of law open" or
"impugned judgement may not be treated
as precedent". It is settled law that an order
of the Supreme Court dismissing Special
Leave Petition does not itself lay down any
law as was observed by the Supreme Court
in V.M. Salgaocar & Bros. (P) Ltd. v.
CIT, (2000) 5 SCC 373, observed as
under:

"8.Different considerations apply
when a special leave petition under Article
136 of the Constitution is simply dismissed
by saying "dismissed" and an appeal
provided under Article 133 is dismissed
also with the words "the appeal is
dismissed". In the former case it has been
laid by this Court that when a special leave
petition is dismissed this Court does not
comment on the correctness or otherwise of
the order from which leave to appeal is
sought. But what the Court means is that it
does not consider it to be a fit case for
exercise of its jurisdiction under Article
136 of the Constitution. That certainly
could not be so when an appeal is
dismissed though by a non-speaking order.
Here the doctrine of merger applies. In that
case, the Supreme Court upholds the
decision of the High Court or of the
Tribunal from which the appeal is provided
under clause (3) of Article 133. This
doctrine of merger does not apply in the
case of dismissal of a special leave petition
under Article 136. When an appeal is
8 All. State of U.P. & Ors. Vs. Shiv Jag Sharma & Ors.
267
dismissed the order of the High Court is
merged with that of the Supreme Court. We
quote the following paragraph from the
judgment of this Court in the case
ofSupreme
Court
Employees'
Welfare
Assn.v.Union of India[(1989) 4 SCC 187 :
1989 SCC (L&S) 569] : (SCC pp. 206-07,
para 22)

"22. It has been already noticed
that the special leave petitions filed on
behalf of the Union of India against the
said judgments of the Delhi High Court
were summarily dismissed by this Court. It
is now a well-settled principle of law that
when a special leave petition is summarily
dismissed under Article 136 of the
Constitution, by such dismissal this Court
does not lay down any law, as envisaged by
Article
141
of
the
Constitution,
as
contended by the learned Attorney General.
InIndian
Oil
Corpn.
Ltd.v.State
of
Bihar[(1986) 4 SCC 146 : 1986 SCC (L&S)
740] it has been held by this Court that the
dismissal of a special leave petition in
limine by a non-speaking order does not
justify any inference that, by necessary
implication, the contentions raised in the
special leave petition on the merits of the
case have been rejected by the Supreme
Court. It has been further held that the
effect of a non-speaking order of dismissal
of a special leave petition without anything
more indicating the grounds or reasons of
its
dismissal
must,
by
necessary
implication, be taken to be that the
Supreme Court had decided only that it was
not a fit case where special leave petition
should be granted. InUnion of Indiav.All
India Services Pensioners' Assn.[(1988) 2
SCC 580 : 1988 SCC (L&S) 651 : (1988) 7
ATC 449] this Court has given reasons for
dismissing the special leave petition. When
such reasons are given, the decision
becomes one which attracts Article 141 of
the Constitution which provides that the
law declared by the Supreme Court shall be
binding on all the courts within the
territory of India. It, therefore, follows that
when no reason is given, but a special leave
petition is dismissed simpliciter, it cannot
be said that there has been a declaration of
law by this Court under Article 141 of the
Constitution."

33. Then, in Kunhayammed v. State
of Kerala, (2000) 6 SCC 359,the Supreme
Court further explained the effect of
dismissal of a Special Leave to Appeal
petition, thus: