Madan Mohan Chaudhary vs State of Uttaranchal and others

Prafulla C. Pant (on behalf of himself and Dharam Veer), JJ.—A Division Bench of this Court, in Writ Petition No. 284 (S/B) of 2004, Madan Mohan Chaudhary v. State of Uttarakhand and others, has referred following question to the larger Bench, constituted by Hon''ble the Chief Justice :

"Whether, the Government order dated 1st July, 1989, referred in the judgment of the Division Bench (in Special Appeal No. 225 of 2008, State of U. P. and another v. Pitamber Dutt Sanwal, arisen out of Writ Petition No. 843 (S/S) of 2003) applies to workcharge employees, or not?

Brief facts of the case in Writ Petition No. 843 (S/S) of 2003, Pitamber Dutt Sanwal v. State of U. P. and another, decided on 24.7.2008 by this Court, were that the writ petitioner of said case was appointed as Driver on workcharge basis on 4.10.1977, in Jamrani Bandh Project under Irrigation Department of State of Uttar Pradesh. He rendered his service as such till 27.5.1995, where after he was regularized and brought under regular establishment. He retired on attaining age of superannuation on 31.5.2000. He filed Writ Petition No. 843 (S/S) of 2003, directing respondent No. 2 Executive Engineer, Ban Sagar Nahar, Nirman Khand6, Mirzapur to pay amount of provident fund, insurance, pension and other pensionary benefits with interest. Learned single Judge of this Court uide his judgment and order dated 24.7.2008, following the judgment and order dated 3.3.2006, passed in Special Appeal No. 93 of 2004, State of U. P., through EngineerInChief, Public Works Department, Lucknow and another v. Anand Singh, allowed the writ petition and directed the respondent No. 2 of said writ petition to release the pensionary benefits. Aggrieved by said judgment and order dated 24.7.2008, State of U. P., and Executive Engineer of Irrigation Department of said State filed Special Appeal No. 225 of 2008. A Division Bench of this Court decided said appeal vide its order dated 27.4.2010, whereby it dismissed the appeal holding that Government order dated 1.7.1989, issued by State of U.P., shall be applicable to the writ petitioner of said case (Pitamber Dutt Sanwal), as he stood to have rendered ten years service on temporary basis. The 1292 Madan Mohan Chaudhary v. State of Uttaranchal (UttF.B.) [2011 (2) contention of the appellants that only the period from 27.5.1995 (date of regularization) to 31.5.2000 (date of superannuation) was the period to be considered as regular service (which was less than ten years) was not accepted by the Division Ben9h of this Court. When said judgment and order dated 27.4.2010, passed in Special Appeal No. 225 of 2008, was referred by present writ petitioner Madan Mohan Chaudhary in Writ Petition No. 284 (S/B) of 2004 before the Division Bench, the Division Bench hearing the writ petition felt that it was not in a position to follow the aforesaid judgment, and referred the matter to the larger Bench for answering the question, quoted above.

Since, the answer to the question involves interpretation of the Government order dated 1st July, 1989, we think it just and proper to quote the Government order. The same reads as under :

The language of Para 1 of the Government order quoted above, makes it clear that the Government order is being issued to clarify Article 368 of Civil Service Regulations. For the purposes of this case we are particularly concerned what has been contained in Para 2 of the Government order quoted above, which provides that on completion of minimum of ten years regular service, on superannuation, a temporary employee would be entitled to pensionary benefits including gratuity, family pension etc. as payable to a permanent employee.

Before further discussion we think it just and proper to quote here Article 358 (a) of the Civil Service Regulations (for short C.S.R.), which reads as under :

"358 (a) Except for Compensation gratuity, an officer''s service does not in the case of Superior and Inferior services qualify till he has completed, twenty years of service."

Article 361 of C.S.R. provides 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.

[These three conditions are fully explained in the following Section.]"

The condition indicated in Article 361 of the C.S.R. has been explained in the following Articles.

Articles 362 to 367 elucidates the condition No. 1 of Article 361 of the C.S.R. Similarly, Articles 368 to 384 of the C.S.R. elucidates the second condition of Articles 361 and Articles 385 to 394 relates to condition No. 3 of Article 361 of the C.S.R.

Next relevant provision is contained in Article 368 of C.S.R. The same reads as under :

"368. Service does not qualify unless the officer holds a substantive office on a permanent establishment."

1294 Modem Mohan Chaudhary v. State of Uttaranchal (Utt.RB.) [2011 (2)

Now we come to other relevant Articles of C.S.R. Article 370 of C.S.R. reads as under :

"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

(1) periods of temporary or officiating service in a nonpensionable establishment;

(ii) periods of service in a workcharged establishment; and

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

As such, Clause (ii) of Article 370 of C.S.R. clearly provides that no period of service rendered in workcharge establishment is to be counted towards service to qualify the period of service for the purpose of pensionary benefits.

A perusal of Article 361 read with Articles 368 and 370 of the C.S.R. clearly indicates that the service does not qualify unless the officer holds a substantive office on a permanent establishment and that the period of service in a workcharged establishment will not qualify service for the purpose of pension. The underlying reason is that a workcharged employee is not holding a substantive post on a permanent establishment.

Another relevant Article of C.S.R. is Article 465. This Article reads as under :

"465. (1) A retiring pension is granted to a Government servant who is permitted to retire after completing qualifying service for twentyfive years or on attaining the age of fifty years.

(2) A retiring pension is also granted to a Government servant who is required by Government to retire after completing twentyfive years or more of qualifying service."

Article 465 applies to those who are seeking voluntary retirement or compulsory retirement, and similar provision is contained in Fundamental Rule 56.

The next relevant Article of C.S.R. is Article 468, which reads as under :

"468. The amount of pension that may be granted is determined by length of service. In calculating the length of qualifying service, fractions of a half year equal to three months and above shall be treated as a completed onehalf year and reckoned as qualifying service."

Clause (b) of Article 474 of C.S.R., requires ten years service for calculation of the superannuation pensions. The said provision if read with Article 368 of C.S.R., means twenty years of service in a permanent establishment.

Learned counsel for the writ petitioner/respondent placed reliance on Writ Petition (C) No. 500 of 2000, Prabhu Narain and others v. State of U. P. and others, decided on 13.3.2003 : 2003 LN1 607 (SO, decided by the Apex Court. Having gone through the judgment of said writ petition filed before the Apex. Court under Article 32 of the Constitution of India, we do not find anything which helps the writ petitioner/respondent in answering the question referred to this Bench. Rather, in the last sentence in Para 5, the Apex Court has observed "If the petitioners had any grievance for nonregularisation of their services, as already observed, it was/is open for them to claim the appropriate relief, but, one thing is clear that unless petitioners'' services are regularised in the first place, we find it difficult as to how they can claim pension."

The genesis of receiving a pension is indicated in Article 361 of the C.S.R. One such condition is that the employment must be substantive and permanent which is reiterated in Article 368 of the C.S.R. Article 370

(ii) excludes periods of service spent in a workcharged establishment for the purpose of calculating the qualifying service.

The Government order dated 1.7.1989 talks about temporary employees in a Government service retiring without being made permanent, and are therefore not getting pensionary benefits in view of Article 368 of the C.S.R., which requires an employee to hold a permanent post. Para 2 of the aforesaid G.O. indicates that such Government employee, namely, temporary employees, who have worked for a minimum period of 10 years in a regular service, would be given pensionary benefits in the same manner as given to a permanent employee. A temporary employee, even though temporary is working on a substantive post, though not permanent. In this light, the Government thought fit to include temporary employees for the purpose of receiving pensionary benefits. A workcharged employee is not working on a substantive post and is specifically excluded under Clause (U) of Article 370 of the C.S.R. Consequently, the period rendered in a workcharged establishment cannot be included for claiming pension. Subrule (8) of Rule 3 of the U. P. Retirement Benefit Rules, 1961, supports this view. Said subrule defines qualifying service with the note that if a person serves in a pensionable job, then in workcharge establishment, and again thereafter in regular service, such interruption would not be disqualification. Similar provision is contained in Article 422 of the C.S.R.

On behalf of the writ petitioner/respondent reference is made to Rule 2 of Temporary Government Servant (Termination of Service) Rules, 1975, which defines ''temporary service''. According to said Rule 2, ''temporary service'' means officiating or substantive service on a temporary post or officiating service on a permanent post under the Uttar Pradesh Government. These Rules of 1975, are not applicable to the workcharged employees. Clause (d) of Rule 4 of Temporary Government Servant (Termination of Service) Rules 1975, provides that these rules are not applicable to the employees serving in a workcharge establishment. In our opinion, service rendered in workcharge establishment, before regularization is not a temporary service for the purposes of regular service. It is relevant to mention here that without there being a post, a person cannot hold it either as a temporary employee or permanent employee. In Para 4 of State of Himachal Pradesh v. Suresh Kumar, (1996) 8 SCC 562, it is observed by the Apex Court that workcharge employees perform the duties of transitory and urgent nature so long as the work exists (in a particular project). In our opinion, only because a workcharge employee was engaged in one after another projects does not make his services regular without there being a permanent post.

In State of Mysore v. S. V. Narayanappa, AIR 1967 SC 1071 : (1967) 1 SCR 128, the Apex Court has held that the word ''Regular'' or ''Regularization'' does not mean ''permanence''. Even after regularization, confirmation may be needed in the service. This view was again reiterated by the Apex Court in B. N. Nagrajan v. State of Kamataka, AIR 1979 SC 1676 : (1979) 4 SCC 507. That being so, in our opinion, word NIYAMIT (regular) used in the Government order dated 1.7.1989 only refers to the temporary employees in regular service, yet to be confirmed.

Para 669 of Financial Hand'' Book, Volume VI, provides that members of workcharged establishment are not entitled to pension except the conditions mentioned therein like in the case of getting injured in the accidents etc.

In our considered opinion, the Government order dated 1.7.1989 recognizes only status of a temporary employee on regular post as that of a confirmed employee, for the purposes of pensionary benefits, as is apparent from Para 1 of the Government order quoted above, in which it is mentioned that many temporary Government employees get retired without their services getting confirmed, and they get deprived of pension due to nonconfirmation on account of condition mentioned in Article 368 of C.S.R. To remove the difficulty of such temporary employees they are treated as a confirmed employees by the Government for the purposes of pension. The Government order nowhere says that it is applicable to workcharged employees who are neither temporary Government servants, nor permanent employees. The Government order dated 1st July, 1989, nowhere interferes with Clause (ii) of Article 370 of C.S.R., quoted above.

For the reasons as discussed above, we answer the question referred by the Division Bench, in negative, and the view taken by the Division Bench of this Court in Special Appeal No. 225 of 2010. State of U. P. and another v. Pitamber Dutt Sanwal, (arisen out of Writ Petition ''No. 843 (S/S) of 2OO3), in our opinion, is not based on correct interpretation of law.

Tarun Agarwala J.I agree