Hari Om Narain Awasthi vs State of U.P. and Others

Rajes Kumar, J.—Heard learned counsel for the petitioner and Sri Anoop Kumar Srivastava, learned Additional Chief Standing Counsel, appearing on behalf of the respondents.

The petitioner was appointed on 11.5.1984 as a Sample Collector on work charge establishment in the department of respondent No. 3. In paragraph 9 of the writ petition, it is stated that the services of the petitioner have been regularised on 15.6.2011. The petitioner attained age of superannuation on 31st December, 2011. Now the petitioner is seeking the direction to the respondents to pay the post retiral benefits including the pension. However, learned counsel for the petitioner has not pressed relief No. (A) and has submitted that the period during which the petitioner has served as a work charge employee may be considered for the purposes of pension and other post retiral benefits.

Learned Additional Chief Standing Counsel submitted that the period during which the petitioner served as a work charged employee cannot be calculated for the purposes of pension in view of Regulation 370 of Civil Services Regulation. In support of contention, he relied upon the decisions of the Division Bench of this Court in the case of Bansh Gopal Vs. State of U.P., and in the case of State of U.P. and Samagri Prabandh Prakasht, Executive Engineer, Tubewell and Works Manager, Irrigation Work Shop Division Vs. Ram Pratap Shukla, , which has been followed by the learned Single Judge in a recent judgment in the case of Shri Rama Shankar Pandey (Seenchpal) Vs. State of U.P. and Others, and other connected writ petitions.

I have considered rival submissions, perused the record as well as the decisions on the point.

The issue, whether the services rendered as the work charge employee may be included for the purposes of computation of the pension, is no more res integra.

Regulation 370 of Civil Service Regulation reads as under:

Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except--

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

(ii) periods of service in work charged establishment; and

(iii) periods of service in a post paid form contingencies.

The Division Bench of this Court in the case of Bansh Gopal v. State of U.P. and others (Supra) has held that Regulation 370 of Civil Service Regulation has expressly excluded the services rendered in the work charge establishment for the purposes of computation of the pension. Paragraphs 17 & 18 of the Judgment are being reproduced below:

The Regulation 370 as quoted above expressly excluded the services rendered in work-charge establishment for purposes of pension. Fundamental Rule 56(e) on which reliance has been placed by counsel for the appellant does not help the appellant in the present case. Rule 56(e) requires retiring pension to be paid in accordance with and subject to the provisions of the relevant rules. Fundamental Rule 56(e) is quoted as below:

56(e) A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule.

The relevant rules for payment of pension are contained in Civil Services Regulation. There is nothing inconsistent between Fundamental Rule 56 and Regulation 370 so as to not follow Regulation 370. According to Regulation 370, the services rendered by appellant in work-charge establishment does not qualify for purposes of pension.

The appellant''s case is also not covered by the Government Order dated 1.7.1989. The Government Order required that pension shall be payable also to temporary employee who have rendered at least 10 years of regular service. The appellant cannot be said to have rendered 10 years regular service since he was taken into regular service from work-charge establishment only by order dated 12.10.1999 and he retired on 31.5.2005.

An unreported Judgment of Hon''ble Single Judge delivered on 22.2.2005 in civil Misc. Writ Petition No. 53568 of 1999 (Shri Gangoo v. Executive Engineer) is relied upon by the appellant also. No doubt there his Lordship allowed pension to the writ petitioner on the basis of temporary service and the reading of the Judgment shows that his Lordship drew no distinction between the temporary self-vice and work-charge service. To this extent, we are in respectful disagreement with the opinion given by the Hon''ble Single Judge.

The aforesaid decision in the case of Bansh Gopal v. State of U.P. (Supra) has also been followed in the case of State of U.P. and Samagri Prabandh Prakasht, Executive Engineer, Tubewell and Works Manager, Irrigation Work Shop Division Vs. Ram Pratap Shukla, . The Division Bench observed as follows:

However, the work-charged establishment being a non-pensionable establishment, the services rendered thereunder was clearly excluded from pensionary benefit under Regulation 370 of the Civil Services Regulations. Said Government Order does not entitle the respondents-petitioners for grant of pension, contrary to said Regulation.

The Division Bench Judgment of this Court in the case of Bansh Gopal (supra) fully covers the issue raised in these two special appeals.

Learned Single Judge has considered the Judgment of this Court and also the Judgment of the Apex Court and upheld the validity of Regulation/Article 370 of Civil Service Regulation.

Paragraph Nos. 12, 13, 14, 16, and 17 of the judgment rendered by the learned Single Judge in Shri Rama Shankar Pandey (Seenchpal) Vs. State of U.P. and Others, ; Nisar Ahmad and others v. State of U.P. and others and Writ Petition No. 25757 of 2009, Ram Lakhan v. State of U.P. and others, decided on 31.7.2013, are being quoted below:

In the present case, in absence of any factual foundation and pleadings in writ petition, to demonstrate as to how Article 370 CSR is ultra vires or violative of any provision of the Constitution or is otherwise bad, I find nothing but a bare and naked reference to the judgment of Apex Court in Punjab State Electricity Board and Another Vs. Narata Singh and Another, , on the basis whereof Sri Saxena has claimed that Article 370, CSR itself should be struck down. The submission is thoroughly misconceived. My reasons are as under:

Article 370 of CSR, as applicable in U.P. reads as under:

Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except--

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

(ii) periods of service in work charged establishment; and

(iii) periods of service in a post paid form contingencies.

Validity of this entire provision has been challenged without any factual foundation or pleading. If this entire provision goes, even the temporary official''s service shall not be liable to count as qualifying service. Moreover, in absence of any factual averment to demonstrate, how a work charge establishment and service rendered therein, can be treated at par with service in regular establishment and service rendered therein, it cannot be said that there is any discrimination or arbitrariness on the part of rule framing authority so as to create a distinction between the two. It is not that Article 370(ii), CSR has been challenged in the present writ petition but the petitioner has prayed that Article 370 should be struck down and that too, without demonstrating as to how and in what manner the aforesaid provision is bad or is ultra vires.

Now coming to the decisions in Punjab Electricity Board v. Narata Singh (supra), I find that vide this judgment the Apex Court has not declared any provision bad or ultra vires. It appears that similar to Article 370(ii), there was Rule 3.17(ii) in Punjab Civil Services Rules, the validity whereof was challenged before Punjab and Haryana High Court in Kesar Chand Vs. State of Punjab and Others, . A Full Bench declared Rule 3.17(ii) of Punjab Civil Services Rules ultra vires and violative of Article 14 of Constitution and consequently, struck it down. SLP was preferred by the State Government before the Apex Court but the same was dismissed rendering the Judgment of Punjab and Haryana High Court final. Mere dismissal of a SLP does not make a Judgment of High Court to be that of Supreme Court. It shall result in rendering the High Court Judgment final and does not raise the status of High Court Judgment to be that of Supreme Court, so as to be a binding law on all other Courts. (See Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, ; State of Manipur Vs. Thingujam Brojen Meetei, ; Kunhayammed and Others Vs. State of Kerala and Another, ; S. Shanmugavel Nadar Vs. State of Tamil Nadu and Another, ; U.P. State Road Transport Corporation through its Chairman Vs. Omaditya Verma and Others, ; National Housing Cooperative Society Ltd. v. State of Rajasthan and others, (2005) 12 SCC 149; Pernod Ricard India (P.) Ltd. Vs. Commissioner of Customs, ICD Tughlakabad, ; Meghmala and Others Vs. G. Narasimha Reddy and Others, and Gangadhara Palo Vs. The Revenue Divisional Officer and Another, .

Judgment of another High Court may have a persuasive value but shall not be binding like that of a law, laid down by the Apex Court. Here also, what is binding, is ratio laid down by the Apex Court in a judgment and not a an order, where no issue has been considered and adjudicated by the Apex Court. Learned counsel for the petitioner could not show anything in the aforesaid judgment i.e., Narata Singh (Supra), whereby the Apex Court considered the vires of Rule 3.17(ii) itself and has decided the issue. Since it was already struck down by the High Court and that judgment attained finality after dismissal of Special Leave Petition, and for the employees of State of Punjab, that Rule becomes non est. In that view of the matter, the natural consequence thereof will have to be applied to the concerned persons only. It is not so, so far as this Court is concerned.

In the above case, an employee of Punjab State Electricity Board was denied benefit of service rendered by him in work charge in the Punjab State Government. He challenged the same on the ground that Punjab State Electricity Board has decided vide memo. dated 25.11.1985 to adopt letter dated 20.5.1982 of Department of Finance, Government of Punjab, in order to allocate liability of pension in respect of temporary service rendered under the State Government. Looking to these facts, the Apex Court noticed that the Board had already resolved to give due credit to the temporary service rendered in the State Government for the purpose of computing qualifying service for pension and the provision which excluded service rendered in work charge as qualifying serve having already been struck down by a Full Bench of High Court, there was no provision existing in Punjab Civil Services Rules authorising the Board or the State Government, not to give due credit to the service rendered in work charge. Hence denial otherwise was bad. It is in these circumstances, the Division Bench decision of Punjab High Court was upheld.

In view of above decisions, it is settled that the period of service rendered by the petitioner as the work charge employee shall not be included for the purposes of pension and other post retiral benefits.

In view of what has been discussed above, the writ petition, being devoid of merits, fails and is, accordingly, dismissed.