# PREM SINGH v. STATE OF UTTAR PRADESH & ORS

- **Citation:** [2019] 11 S.C.R. 1075
- **Court:** Supreme Court of India
- **Decided:** 2019-09-02
- **Case number:** Civil Appeal No. 6798 of 2019
- **Bench:** Arun Mishra, S. Abdul Nazeer, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prem-singh-v-state-of-uttar-pradesh-ors-33024
- **Pages:** 33

## Headnote

Service Law:
Pension - Computation of qualifying service for grant of
pension - Period of work-charged services - Whether can be
included in the qualifying service - Employee's service in workcharged establishment for a period of about 37 years - Thereafter
regularized in the establishment - On superannuation, claim of the
employee for grant of pension by counting the period spent in the
work-charged establishment - Claim denied - Writ petition dismissed
- Special appeal also dismissed - Appeal to Supreme Court - Held:
In view of r.3(8) of Retirement Benefits Rules and Regulations, 361,
368 and 370 of Civil Services Regulations and Para 669 of
Financial Handbook Vol. VI relating to engagement of employees
in the work-charged establishment, employees in work-charged
establishment are not entitled to pension - In the present case
appointment of work-charged employee was on monthly salary and
the employee was also required to cross the efficiency bar - There
was nothing to indicate qualitative difference of the employee from
the regular employees - Rather, the employer had misused the very
concept of work-charged employment on exploitative terms for the
work which was regular and perennial in nature - Note to r. 3(8)
of 1961 Rules provides for counting the period of work-charged
employment if that period is between two temporary employments
or in between temporary and permanent employment - The Note is
irrational and discriminatory and makes impermissible classification
in not counting the work-charged employment if it is rendered
before regularization - In order to make the rule valid and nondiscriminatory, Note to r.3(8) is read down that work-charged
services rendered even prior to regularization, contingency paid
fund employees or non-pensionable establishment shall also be
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counted towards the qualifying service even if such service is not
preceded by temporary or regular appointment in a pensionable
establishment - The provision contained in Regulation 370 and the
instructions contained in Para 669 of the Financial Handbook is
struck down - Services of some other work-charged employees, who
superannuated without being regularized even after rendering
service of 30-40 years ought to have been regularized under the
Government instructions and also as per the decision in *Uma
Devi case - Services of such employees be treated regular and
hence be treated entitled to receive pension - Uttar Pradesh
Retirement Benefits Rules, 1961 - r. 3(8) - Uttar Pradesh Civil
Services Regulations - Regulation 370 - Financial Handbook Vol.
VI - Para 669.
Allowing the appeals filed by the employees and dismissing
those filed by the State/employer, the Court
HELD: 1.1 The qualifying service is the one which is in
accordance with the provisions of Regulation 368 of Uttar
Pradesh Civil Services Regulations i.e. holding a substantive
post on a permanent establishment. The proviso to Rule 3(8)
of Uttar Pradesh Retirement Benefits Rules, 1961 clarify that
continuous, temporary or officiating service followed without
interruption by confirmation in the same or any other post is also
included in the qualifying service except in the case of periods
of temporary and officiating service in a non-pensionable
establishment. The service in work-charged establishment and
period of service in a post, paid from contingencies shall also
not count as qualifying service. The Note appended to Rule 3(8)
contains a clear provision to count the qualifying service
rendered in work-charged, contingency paid and nonpensionable establishment to be counted towards pensionable
service, in the exigencies provided therein. [Paras 10 and 11]
[1085-F-H; 1086-B]
1.2 The provisions contained in Regulation 370 of the Civil
Services Regulations excludes service in a non-pensionable
establishment, work-charged establishment and in a post, paid
from contingencies from the purview of qualifyi

## Text

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PREM SINGH
v.
STATE OF UTTAR PRADESH & ORS.
(Civil Appeal No. 6798 of 2019)
SEPTEMBER 02, 2019
[ARUN MISHRA, S. ABDUL NAZEER AND
M. R. SHAH, JJ.]
Service Law:
Pension - Computation of qualifying service for grant of
pension - Period of work-charged services - Whether can be
included in the qualifying service - Employee's service in workcharged establishment for a period of about 37 years - Thereafter
regularized in the establishment - On superannuation, claim of the
employee for grant of pension by counting the period spent in the
work-charged establishment - Claim denied - Writ petition dismissed
- Special appeal also dismissed - Appeal to Supreme Court - Held:
In view of r.3(8) of Retirement Benefits Rules and Regulations, 361,
368 and 370 of Civil Services Regulations and Para 669 of
Financial Handbook Vol. VI relating to engagement of employees
in the work-charged establishment, employees in work-charged
establishment are not entitled to pension - In the present case
appointment of work-charged employee was on monthly salary and
the employee was also required to cross the efficiency bar - There
was nothing to indicate qualitative difference of the employee from
the regular employees - Rather, the employer had misused the very
concept of work-charged employment on exploitative terms for the
work which was regular and perennial in nature - Note to r. 3(8)
of 1961 Rules provides for counting the period of work-charged
employment if that period is between two temporary employments
or in between temporary and permanent employment - The Note is
irrational and discriminatory and makes impermissible classification
in not counting the work-charged employment if it is rendered
before regularization - In order to make the rule valid and nondiscriminatory, Note to r.3(8) is read down that work-charged
services rendered even prior to regularization, contingency paid
fund employees or non-pensionable establishment shall also be
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counted towards the qualifying service even if such service is not
preceded by temporary or regular appointment in a pensionable
establishment - The provision contained in Regulation 370 and the
instructions contained in Para 669 of the Financial Handbook is
struck down - Services of some other work-charged employees, who
superannuated without being regularized even after rendering
service of 30-40 years ought to have been regularized under the
Government instructions and also as per the decision in *Uma
Devi case - Services of such employees be treated regular and
hence be treated entitled to receive pension - Uttar Pradesh
Retirement Benefits Rules, 1961 - r. 3(8) - Uttar Pradesh Civil
Services Regulations - Regulation 370 - Financial Handbook Vol.
VI - Para 669.
Allowing the appeals filed by the employees and dismissing
those filed by the State/employer, the Court
HELD: 1.1 The qualifying service is the one which is in
accordance with the provisions of Regulation 368 of Uttar
Pradesh Civil Services Regulations i.e. holding a substantive
post on a permanent establishment. The proviso to Rule 3(8)
of Uttar Pradesh Retirement Benefits Rules, 1961 clarify that
continuous, temporary or officiating service followed without
interruption by confirmation in the same or any other post is also
included in the qualifying service except in the case of periods
of temporary and officiating service in a non-pensionable
establishment. The service in work-charged establishment and
period of service in a post, paid from contingencies shall also
not count as qualifying service. The Note appended to Rule 3(8)
contains a clear provision to count the qualifying service
rendered in work-charged, contingency paid and nonpensionable establishment to be counted towards pensionable
service, in the exigencies provided therein. [Paras 10 and 11]
[1085-F-H; 1086-B]
1.2 The provisions contained in Regulation 370 of the Civil
Services Regulations excludes service in a non-pensionable
establishment, work-charged establishment and in a post, paid
from contingencies from the purview of qualifying service. Under
Regulation 361 of the Civil Services Regulations, the services
must be under the Government and the employment must be
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substantive and permanent basis. Para 669 of the Financial
Handbook Vol. VI relating to engagement of employees in the
work charged establishment provides that except in the case as
mentioned thereunder the members of work-charged
establishment are not entitled to any pension or to leave salary
or allowances. [Paras 12, 13 and 14] [1086-C-D; 1088-C]
1.3 The appointment of the work-charged employee in the
present case had been made on monthly salary and they were
required to cross the efficiency bar also. No material indicating
qualitative difference from regular employees has been pointed
out except making bald statement. The appointment was not
made for a particular project which is the basic concept of the
work charged employees. Rather, the very concept of workcharged 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. [Para
29] [1104-E-G]
1.4 It was unfair on the part of the State Government and
its officials to take work from the employees on the workcharged basis. They ought to have resorted to an appointment
on regular basis. The taking of work on the work-charged basis
for long amounts to adopting the exploitative device. Later on,
though their services have been regularized, 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. [Para 30] [1105-C-E]
1.5 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
PREM SINGH v. STATE OF UTTAR PRADESH & ORS.
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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. [Para 31] [1105-F]
1.6 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 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. [Para 32] [1105-G-H; 1106-AB]
1.7 An impermissible classification has been made under
Rule 3(8). It would be highly unjust, impermissible and irrational
to deprive such employees benefit of the qualifying service.
Service of work-charged period remains the same for all the
employees, once it is to be counted for one class, it has to be
counted for all to prevent discrimination. The classification
cannot be done on the irrational basis and when respondents are
themselves counting period spent in such service, it would be
highly discriminatory not to count the service on the basis of
flimsy classification. The rider put on that work-charged service
should have preceded by temporary capacity is discriminatory
and irrational and creates an impermissible classification. [Para
32] [1106-B-D]
1.8 As it would be unjust, illegal and impermissible to
make aforesaid classification to make Rule 3(8) valid and non
discriminatory, the provisions of Rule 3(8) has to be read down
and held that services rendered even prior to regularisation in
the capacity of work-charged employees, contingency paid fund
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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. [Para 33] [1106-D-E]
1.9 In view of the Note appended to Rule 3(8), which has
been 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.
[Para 34] [1106-F]
1.10 In view of reading down Rule 3(8) of the U.P.
Retirement Benefits Rules, 1961, the services rendered in the
work-charged establishment shall be treated as qualifying
service under the aforesaid rule for grant of pension. [Para 36]
[1107-C]
Punjab State Electricity Board & Anr. v. Narata Singh
and Anr. (2010) 4 SCC 317 : [ 2010] 3 SCR 27 ;
Punjab State Electricity Board v. Narata Singh (2010)
4 SCC 317: [2010] 3 SCR 27 - relied on.
Jaswant Singh & Ors. v. Union of India & Ors. (1979)
4 SCC 440 : [1980] 1 SCR 420; State of Rajasthan v.
Kunji Raman (1997) 2 SCC 517 : [1996] 10 Suppl.
SCR255; Punjab State Electricity Board v. Jagjiwan
Ram (2009) 3 SCC 661 : [2009] 3 SCR 209 -
distinguished.
Kesar Singh v. the State of Punjab AIR 1988 Punjab
and Haryana 265 - approved.
2. 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 *Uma Devi case, wherein it was 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. Those
employees who have worked for ten years or more should have
been regularized. It would not be proper to regulate them for
PREM SINGH v. STATE OF UTTAR PRADESH & ORS.
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consideration of regularisation as others have been regularised.
It is directed 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 the purpose of pension. [Para 35] [1106-G-H; 1107A-B]
*Secretary, State of Karnataka & Ors. v. Uma Devi
(2006) 4 SCC 1 : [2006] 3 SCR 953 - followed.
Case Law Reference
AIR 1988 P & H 265
approved
Para 1
[2010] 3 SCR 27
relied on
Para 4
[1980] 1 SCR 420
distinguished
Para 22
[1996] 10 Suppl. SCR 255
distinguished
Para 25
[2009] 3 SCR 209
distinguished
Para 26
[2006] 3 SCR 953
followed
Para 35
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6798
of 2019.
From the Judgment and Order dated 21.07.2009 of the High
Court of Judicature at Allahabad in Special Appeal No. 811 of 2009.
With
Civil Appeal Nos. 6804, 6799-6803, 6938-6942, 6805, 6806, 6937,
6943, 6810, 6944, 6945, 6808 6809, 6946, 6825, 6947, 6948, 6949, 6811,
6812, 6807, 6950, 6813, 6951, 6952, 6953, 6954, 6955, 6956, 6957, 6826,
6958, 6959, 6960, 6961, 6962, 6963, 6964, 6965, 6827, 6819, 6828, 6816,
6817, 6815, 6824, 6818, 6814, 6834, 6823. 6822, 6821, 6820, 6833, 6838,
6832, 6829, 6831, 6830, 6844, 6835, 6839, 6840, 6837, 6836, 6843, 6853,
6846, 6841, 6842, 6845, 6856, 6855, 6858, 6852, 6847, 6850, 6857, 6859,
6848, 6849, 6860, 6851, 6864, 6861, 6862, 6854, 6863, 6866, 6869, 6877,
6870, 6868, 6876, 6874, 6879, 6865, 6875, 6871, 6878, 6867, 6873, 6872,
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6882, 6881, 6884, 6880, 6883, 6900, 6885, 6887, 6886, 6888, 6889, 6890,
6891, 6895, 6892, 6896, 6897, 6893, 6898, 6894, 6901, 6899, 6904, 6903,
6905, 6902, 6927-6929, 6906, 6907, 6908, 6909, 6910, 6911, 6912, 6930,
6913, 6914, 6915, 6916, 6917, 6918, 6919, 6921, 6923, 6925, 6920, 6924,
6922, 6931, 6932, 6926 of 2019, MA 1541/2018 in SLP(C) 19310/2017,
MA 1542/2018 in SLP(C) 19234/2017, MA 1544/2018 in SLP(C)
19346/2017, MA 1545/2018 in SLP(C) 19350/2017, MA 1546/2018 in
SLP(C) 19740/2017, MA 1543/2018 in SLP(C) 19297/2017.
Raghavendra Singh, AG, Ms. Aishwarya Bhati, AAG, Kuldeep
Singh Parihar, DAG, Sanat Kumar, AAG, Amarendra Sharan, Anand
Grover, Mahabir Singh, Ms. Sukriti Bhatnagar, Sanchit Guru, Samarth
Khanna, Shourya Bari, Mrs. Rachna Gupta, Ms. Rachana Srivastava,
Ashutosh Sharma, Ms. Umme Salma, Aviral Saxena, Anurag Pandey,
Ms. Priyam Lizmary Cherian, Ms. Preeti Singh, Gagan Deep Sharma,
Dr. Swati Jindal Garg, Shivam Jaiswal, Rajeev Kumar Dubey, Abhishek
Singh Tomar, Nitin, Ashiwan Mishra, Kamlendra Mishra, Ajay Vikram
Singh, Ms. Priyanka Singh, Kamlesh Anand, Ms. Rachana Srivastava
Ashutosh Kumar Sharma, Harish Chandra Pant, Sandeep Garausa, Anis
Ahmed Khan, S. S. Rawat, Ms. Namita Chaudhary, Ms. Rachna
Gandhi, Ajay Vikram Singh, Mukesh Kumar Sharma, Ms. Shweta
Shukla, Ms. Vanshaja Shukla, Anurag Pandey, Dinesh Kumar Garg,
Abhishek Garg, Dhananjay Garg, Deepak Mishra, Sudarshan Singh
Rawat, Nachiketa Joshi, Jaswant Singh Rawat, Vikas Negi, Virendra
S. Rawat, Atul Sharma, Ms. Manju Jetley, S. R. Setia, Mithilesh Kumar
Singh, Himanshu Tyagi, Abhishek Singh, Farrukh Rasheed, Khalid Israr,
Anand Mishra, Amrendra Kumar Singh, Ms. Vandana Kumar, Ms.
Anisha Upadhyay, Surender Kumar, Pawan Upadhyay, Nishant Kumar,
B. K. Pal, Ajit Singh Pundir, Arijeet Singh, D.V. Singh, R. Karrupiah,
Aditya Giri, Abhishek Singh, Manohar Pratap, Sanpreet Singh Ajmani,
Ayush Negi, Ms. Vishakha Upadhyay, Ms. Vanshaja Shukla, M.P. Pant,
Ankur Yadav, Aakash Kumar, Rajesh Pathak, Abhishek Chakraborty,
Pramod Kumar, Rajesh Pathak, Sumit Kumar, Nishant Ramakantrao
Katneshwarkar, Anoop Kandari, Ravindra S. Garia, Harshit Sanwal,
Janmejay Verma, Ms. Akansha Verma, S. K. Verma, Pradeep Kr.
Yadav, Ms. Sheenu Chauhan, Sanjeev Malhotra, Ms. Vijay Laxmi,
Anand Vardhan Maitreya, Satish Kumar, Ardhendumauli Kumar Prasad,
Ankur Yadav, Mithilesh Kr. Singh, Tarun Verma, Ms. Manju Singh,
Advs. for the appearing parties.
PREM SINGH v. STATE OF UTTAR PRADESH & ORS.
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The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The question involved in the present matters is whether Rule
3(8) of the U.P. Retirement Benefit Rules, 1961 (in short "Rules of
1961") and Regulation 370 of the Civil Services Regulation of Uttar
Pradesh should be struck down having regard to the fact that this Court
has upheld the decision regarding pari materia provision enacted in
the State of Punjab which excluded computation of the period of workcharged services from qualifying service for pension. This Court has
affirmed the decision of the High Court of State of Punjab and Haryana
rendered in Kesar Singh v. the State of Punjab, AIR 1988 Punjab
and Haryana 265.
2. A Division Bench of this Court has referred the matter to be
considered by a larger bench. Hence the matter is before us.
3. The facts are being narrated from Prem Singh v. State of
Uttar Pradesh (Special Leave Petition (Civil) No.4371 of 2011). The
appelant was appointed as a Welder in the year 1965 in a work-charged
establishment (Ram Ganga River Valley Project, Kalagarh). He was
transferred from one place to another and thereafter ultimately the
Selection Committee recommended for regularization of his services.
His services were regularized on 13.3.2002 and was posted as Pump
Operator in the pay scale of Rs.3050-4590 in the regular establishment.
He superannuated on 31.1.2007. Then he filed a writ petition in the
High Court on 31.7.2008 to count period spent in the work-charged
establishment as qualifying service under the Rules of 1965. The High
Court directed to submit a representation, accordingly it was filed which
met with rejection on 12.12.2008. Yet another representation filed also
met with the same fate vide order dated 23.3.2009. The writ petition
and special appeal had been dismissed.
 4. The appellant has placed reliance upon the decision of this
Court in Habib Khan vs. State of Uttarakhand (Civil Appeal
No.10805-10807 of 2017) in which a Division Bench of this Court
considering Regulation 370 of the Civil Service Regulations which has
been approved in the State of Uttarakhand after its bifurcation from
the State of Uttar Pradesh, held that Regulation 370 is pari materia
provision to the one as contained in Rule 3.17 (ii) of the Punjab Civil
Services Rules which had been struck down by a Full Bench decision
of Punjab and Haryana High Court in Kesar Chand vs. State of
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Punjab and Ors. (supra). The challenge to the same was rejected by
this Court. The Court has further relied on Punjab State Electricity
Board & Anr. v. Narata Singh and Anr., (2010) 4 SCC 317 in which
it has been observed that the High Court of Punjab and Haryana was
perfectly justified in striking down Rule 3.17(ii) of Punjab Civil Services
Rules resulting in obliteration of the distinction made in said rule between
temporary and officiating service and work-charged service. This Court
held that period of work-charged service should be counted for
computation of qualifying service for grant of pension.
5. This Court in other cases has followed the aforesaid decision
in Habib Khan v. State of Uttarakhand (supra) giving relief to the
employees. In Ram Deo Tiwari v. State of Uttar Pradesh & Ors.
(Civil Appeal No.2896 of 2018) decided on 16.3.2018, the decision of
Habib Khan (supra) has been followed. This Court has dismissed the
Review application filed in the case of Habib Khan (supra).
6. It is submitted by Shri Raghuvendra Singh, learned Advocate
General appearing for the State of Uttar Pradesh that there is a
difference in the Rules and Regulations in Uttar Pradesh and Punjab.
The rule of Punjab was struck down by the High Court in Kesar Chand
vs. State of Punjab (supra). In Punjab, there was deemed regularization
whereas in State of Uttar Pradesh services have been regularized on
a particular date; as such that date has to be taken as the
commencement of the services for the qualifying period for a pension
under Rule 3(8) of the Rules. He has also pointed out the conceptual
difference between regular and work-charged employees. Workcharged employees are not appointed by following the same procedure
as that of regular employees. Work pressure and accountability also
differ. He has further submitted that work-charged services cannot be
treated as regular service even for Assured Career Progression (ACP).
The Government has the power to frame different rules for different
classes of employees as such Rule 3(8) of the Rules and Regulation
370 cannot be said to be arbitrary and discriminatory. Though, workcharged employees can claim protection under the Industrial Disputes
Act, 1947 but cannot be treated at par with employees of regular
establishment. Treating them similarly would be like giving similar
treatment to unequal classes which would be against the Right to
Equality provided under Article 14 of the Constitution of India. Workcharged employee forms a separate and distinct class. They cannot be
treated at par with regular, temporary or ad-hoc employees. The work
PREM SINGH v. STATE OF UTTAR PRADESH & ORS.
[ARUN MISHRA, J.]
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is qualitatively different as such services in the work-charged
establishment cannot be clubbed with the services of a regular
establishment unless a specific provision to that effect is made. Giving
the benefit of pension to work-charged employees is against the basic
concept of pension which is admissible to a regular employee. The
pension cannot be claimed as of right.
7. He further submitted that the decision in Kesar Chand (supra)
is per incuriam. Hence relied on the Secretary, State of Karnataka
v. Uma Devi & Ors. 2006 (4) SCC 1. It is further submitted that
economy of the State would collapse in case pension is paid treating
the work charged period as qualifying service. It is practically difficult
and financial burden would be cast upon the State in case these petitions
are allowed. The pension can be paid only under the rules. In Narata
Singh (supra) validity of Punjab Regulations has not been examined.
Since there is a reference made by the Division Bench doubting the
correctness of Habib Khan (supra), the same deserves to be held per
incuriam and cannot be said to be laying down a good law.
8. We first consider the provisions contained in the Uttar Pradesh
Retirement Benefits Rules 1961 (for short, "the 1961 Rules"). Rule 3(8)
of Rules of 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 nonpensionable establishment.
(ii) periods of service in a work-charged establishment and
(iii) periods of service in a post paid from contingencies shall
also count as qualifying service.
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Note:-If service rendered in a non-pensionable establishment
work-charged establishment or in a post paid from contingencies
falls between two periods of temporary service in a pensionable
establishment or between a period of temporary service and
permanent service in a pensionable establishment, it will not
constitute an interruption of service."
 (emphasis supplied)
9. 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.
These three conditions are fully explained in the following
Section.
368. Service does not qualify unless the officer holds a
substantive office on a permanent establishment.
370. Continuous temporary or officiating service under the
Government of Uttar Pradesh followed without interruption by
confirmation in the same or any other post shall qualify, except-
(i) periods of temporary or officiating service in nonpensionable establishment;
(ii) periods of service in work charged establishment; and
(iii) periods of service in a post paid from contingencies."
10. The qualifying service is the one which is in accordance with
the provisions of Regulation 368 i.e. holding a substantive post on a
permanent establishment. The proviso to Rule 3(8) clarify that
continuous, temporary or officiating service followed without interruption
by confirmation in the same or any other post is also included in the
qualifying service except in the case of periods of temporary and
officiating service in a non-pensionable establishment. The service in
work-charged establishment and period of service in a post paid from
contingencies shall also not count as qualifying service.
PREM SINGH v. STATE OF UTTAR PRADESH & ORS.
[ARUN MISHRA, J.]
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11. The Note appended to Rule 3(8) contains a provision that if
the service is rendered in a non-pensionable establishment, work-charged
establishment or in a post paid from contingencies, falls between two
periods of temporary service in a pensionable establishment or between
a period of temporary service and permanent service in a pensionable
establishment, it will not constitute an interruption of service. Thus, note
contains a clear provision to count the qualifying service rendered in
work-charged, contingency paid and non-pensionable establishment to
be counted towards pensionable service, in the exigencies provided
therein.
12. The provisions contained in Regulation 370 of the Civil
Services Regulations excludes service in a non-pensionable
establishment, work-charged establishment and in a post paid from
contingencies from the purview of qualifying service. Under Regulation
361 of the Civil Services Regulations, the services must be under the
Government and the employment must be substantive and permanent
basis.
13. The provisions contained in the Financial Handbook Vol. VI
relating to engagement of employees in the work charged establishment
in Paras 667, 668 and 669, are extracted hereunder:
"667. Work-charged establishment will include such establishment
as is employed upon the actual execution, as distinct from the
general supervision, of a specific work or sub-works of a specific
project or upon the subordinate supervision of departmental
labour, stores, and machinery in connection with such work or
sub-works. When employees borne on the temporary
establishment are employed on work of this nature their pay
should, for the time being, be charged direct to the work.
Notes - (1) Persons who actually do the work with their hands,
such as, beldars, masons, carpenters, fitters, mechanics, drivers,
etc., should be engaged only when works are carried out
departmentally, and charged to works. In cases in which it is
considered necessary, as a safeguard against damage to the
Government Tools and Plant, such as road-rollers, concretemixture, pumping-sets, and other machinery, mechanics, drivers,
etc., may be engaged by the Department or alternatively, if
engaged by the contractor must be subject to approval by the
department, whether the work is done departmentally or by
contract.
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(2) Mistries and work agent should, in all circumstances, whether
they are employed on works executed departmentally or on
contract, be charged to "works".
(3) Subject to the general principles stated in Paras 665 to 667
being observed, the classes of establishment not covered by these
definitions may be classified as "work-charged, or temporary",
as the case may be, and the rule which prescribes that workcharged establishment must be employed upon a specific work
waived, with the previous sanction of the Government and
concurrence of the Accountant General. In such cases, the
Government shall also determine in consultation with the
Accountant General, the proportions in which the cost of such
establishment shall be allocated between the works concerned.
668. In all the cases previous sanction of the competent authority
as laid down in Vol. I of the Handbook or in the departmental
manuals of orders is necessary, which should specify in respect
of each appointment (1) the consolidated rate of pay, (2) the
period of sanction, and (3) the full name (as given in the estimate)
of the work and the nature of the duties on which the person
engaged would be employed.
669. Members of the work-charged establishment are not entitled
to any pension or to leave salary or allowances except in the
following cases:
(a) Wound and other extraordinary pensions and gratuities are
in certain cases admissible in accordance with the rules in Part
VI of the Civil Service Regulations.
(b) Travelling and daily allowance may be allowed by divisional
officers for journeys performed within the State in the interest
of work on which the persons are employed on the following
conditions:
(i) The journey should be sanctioned by the divisional officer
or the sub-divisional officer/ assistant engineer specifically
authorized for the purpose by the divisional officer;
(ii) the concerned officer while sanctioning the journey should
also certify that the journey is actually necessary and
unavoidable in the interest of the work on which the person
is employed:
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(iii) for the journeys so performed the work-charged employee
may be allowed travelling and daily allowance at the same
rates and on the same conditions as are applicable to a
regular government servant of equivalent status.
4. All facilities and concessions admissible to workmen of factories registered under the Factories Act, 1948, are also admissible
to the employees of the registered State Workshops and Factories."
14. Para 669 of the manual provides that except in the case as
mentioned thereunder the members of work-charged establishment are
not entitled to any pension or to leave salary or allowances.
15. In Kesar Chand v. the State of Punjab, AIR 1988 Punjab
and Haryana (supra) has been rendered by Full Bench of Punjab and
Haryana High Court. The Rule 3.17 (ii) of the Punjab Rules came up
for consideration before the Full Bench which reads as under:
Rule 3.17. "if an employee was holding substantively a permanent
post on the date of his retirement, his temporary or officiating
service under the State Government, followed without interruption
by confirmation in the same or another post, shall count in Full
as qualifying service except in respect of -
(i) periods of temporary or officiating service in nonpensionable establishment;
(ii) periods of service in work-charged establishment; and
(iii) ......"
16. A Full Bench of the High Court in Kesar Chand (supra) has
discussed the matter thus:
"19. In the light of the above, let us examine the validity of rule
3.17(ii) of the Punjab Civil Services Rules, Vol. II. This rule says
that the period of service in a work-charged establishment shall
not be taken into account in calculating the qualifying service.
After the services of a work-charged employee have been
regularised he becomes a public servant. The service is under
the Government and is paid by it. This is what was precisely stated
in the Industrial Award dated June 1, 1972, between the workmen
and the Chief Engineer, P.W.D. (B. & R), Establishment Branch,
Punjab, Patiala, which was published in the Government Gazette
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dated July 14, 1972. Even otherwise. the matter was settled by
the Punjab Government Memo No.14095-BRI (3)-72/5383 dated
6th February 1973(Annexure P7) where it was stated that all
those work charged employees who had put in ten years of
service or more as on 15th August 1972, their services would
be deemed to have been regularised. Once the services of a
work-charged employee have been regularised, there appears to
be hardly any logic to deprive him of the pensionary benefits as
are available to other public servants under Rule 3.17 of the
Rules. Equal protection of laws must mean the protection of equal
laws for all persons similarly situated. Article 14 strikes at
arbitrariness because an arbitrary provision involves negation
equality. Even the temporary or officiating service under the State
Government has to be reckoned for determining the qualifying
service. It looks to be illogical that the period of service spent
by an employee in a work-charged establishment before his
regularisation has not been taken into consideration for
determining his qualifying service. The classification which is
sought to be made among Government servants who are eligible
for pension and those who started as work-charged employees
and their services regularised subsequently, and the others are
based on any intelligible criteria and, therefore, is not sustainable
at law. After the services of a work-charged employee have
been regularised, he is a public servant like other servant. To
deprive him of the pension is not only unjust and inequitable but
is hit by the vice of arbitrariness, and for these reasons, the
provisions of sub-rule (ii) of Rule 3.17 of the Rules have to be
struck down being violative of Article 14 of the Constitution.
20. In relaxation of Rule 3.17(ii) of Rules by the respondentauthorities, the service of sixteen work-charged employees was
counted for pensionary benefits and gratuity vide Government
of Punjab, Department of Irrigation and Power (Irrigation
Branch) Memo No. 2/5/81/- IB(6)/16411 dated 7th November,
1982(Annexure P2) which reads as under :--
"Sanction of the Government of Punjab is accorded in
relaxation of Rule 3.17 of Punjab Civil Services Rule, Vol. II
for counting of previous work-charged service towards
gratuity in respect of 16 work-charged employees of Nangal
Workshop mentioned in the enclosed statement subject to the
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Conditions that no terminal benefit is/has been given to these
work-charged employees at the time of regularisation of their
service.
Sanction of the Governor of Punjab is also accorded to the
counting of service of these 16 work-charged employees
towards pension as a special case provided no benefit has
already been drawn by them in lieu of pensionary benefits."
If respondent No. 1 has granted exemption from rules in
certain cases, we do not find any justifiable reason for
excluding others from the grant of pension and gratuity
benefits. For this reason, too, we find Rule 3.17(ii) is bad
at law, as it enables the Government to discriminate
between employees similarly situated.
21. In fairness to Mr. Bedi, the learned Addl. Advocate-General,
the submission made by him may be adverted to. It was
contended that (i) a work-charged employee is engaged for a
particular purpose upon completion of which his services come
to an end, (ii) no order has been passed by the State Government
confirming the petitioner against the post on which his services
are regularised and resultantly he does not fulfil the conditions
entitling a Government servant for pension, as envisaged by Rule
3.12 of the Rules. The counsel also tried to justify the
Government action by placing reliance on Rule 1.4 of the Punjab
Civil Services Rules, Vol. I. It was further contended that P.W.D.
(B & R), Establishment Branch is not an industry and in support
of this submission he relied on State of Punjab v. Kuldip Singh,
ILR (1982) 2 Punj. and Har 544; (AIR 1983 NOC 94) (FB) and
Om Parkash v. The Management of M/s. Executive Engineer,
SYL Division, Kurukshetra, ILR (1984) 2 Punj. & Har. 215:
(1984 Lab IC 1165) (FB) .
22. His first submission is devoid of any merit. In para 3 of the
petition, it is specifically averred that the petitioner had regular
service, without any break of a single day, right from 1951 to
the date of his superannuation in the year 1977. In the
corresponding para of the written statement, this assertion has
not been denied but the only plea taken is that his qualifying
service for pension and gratuity starts from 15th August 1972,
i.e., the day from which he was brought on regular cadre; and
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that his service in the work-charged establishment does not count
for pension under R. 3.17(ii) of the Rules. The plea that he has
been in continuous service has not been denied. It appears that
on the completion of one project, the petitioners were engaged
in another project either with break in service or without any
break. Every plea raised in a petition has to be specifically denied
and in the absence of a specific denial, the assertions made in
the petition will normally be deemed to have been admitted or at
least the court can proceed on the basis that it is an
uncontroverted fact. Since there is no denial by the respondents
that the petitioner has been in continuous service since 1951, it
would be presumed that he has been in continuous service till
the date of superannuation. The second contention that no order
has been passed by the State Government confirming the
petitioner against the post on which his services were regularised,
and so on, is also without merit. The regularisation of services
must be against a particular post, and the petitioner will be deemed
to have been made permanent on the post against which his
services have been regularised. This precisely appears to be the
purport of the Punjab Government Memo (Annexure P7), and
the award of the Industrial Tribunal dated June 1, 1972, published
in the Government Gazette dated July 14, 1972, referred to
earlier. In the award, it was specifically held that the workcharged employees who had put in three years of continuous
service are entitled to be made permanent and to be confirmed
after having put in five years' service as demanded by the
workmen. The award may bind the workmen and the
management of the P.W.D. (B&R) Establishment Branch.
Technically speaking it may not be binding on other branches of
the P.W.D. Once the services of a work-charged employee are
regularised he will be deemed to be entitled to the benefit under
R. 3.17 of the Rules."
(emphasis supplied)
The services were deemed to have been regularized on the
completion of ten years of the service as per Punjab Government Memo
dated 6th February 1983. Even otherwise, the High Court has held that
once the employees have been regularized, there appears to be hardly
any logic to deprive them of their pensionary benefits as available to
them under the Rule 3.17 of the Punjab Civil Services Rules. It would
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be unjust and inequitable to deprive them of parity rendered under workcharged establishment.
17. It has also been held that the exemption was granted from
the rules in certain cases. Since the rule enables the Government to
discriminate between similarly situated employees the same deserved
to be struck down. There is no reason to exclude others from the grant
of pension and gratuity benefits. The aforesaid decision has not been
interfered by this Court.
18. In Punjab State Electricity Board v. Narata Singh (2010)
4 SCC 317, this Court once again considered the similar question of
determination of qualifying service for grant of pensionary benefits, in
particular, the benefit of the previous service in work-charged capacity
with the State Government and whether it can be included as
pensionable service. The Punjab State Electricity Board by Circular
dated 25.5.1985 adopted policy decision of State Government contained
in the letter dated 20.5.1982. The effect of the adoption of the policy
decision was that temporary employees who had been retrenched from
the services of Central/State Government and have succeeded in
obtaining employment in Punjab State Electricity Board are entitled to
count prior service rendered under Central/State Government, to the
extent, such service was qualified for grant of pension under the rule
of Central/ State Government. Relying upon Kesar Chand v. the State
of Punjab (supra) it has been held that employee holding substantively
a permanent post on the date of retirement is entitled to count in full
as qualifying service the period of service rendered in the work-charged
establishment.