Roop Singh Negi And Others vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

Since all these petitions are identical in nature, therefore, all these petitions are clubbed together and are being decided by a common judgment. Writ

Petition No.2271 of 2019 shall be the leading petition.

These Writ Petitions are heard through Video Conferencing.

The nature of litigation and the dispute, as has been agitated in the present bunch of writ petitions, has been a consistent issue of debate before the

different courts both in State of U.P., as well as, State of Uttarakhand before their respective High Courts, ultimately the issue after a series of judicial

deliberations, had culminated and laid to rest, by the Hon’ble Apex Court judgment dated 02.09.2019, as rendered in Civil Appeal No.6798 of

2019, Prem Singh vs. State of Uttar Pradesh and others, by the Larger Bench of Hon’ble Apex Court, on a reference made in Habib Khan’s

case, wherein in the said judgment in paragraphs 33, 34, 35 and 36 the following prepositions have been laid down, which are quoted hereunder:-

“33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to

read down the provisions of Rule 3(8) and hold that services rendered even prior to regularization in the capacity of work-charged employees,

contingency paid fund employees or no 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.

In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations

has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they

have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have

been regularized under the Government instructions and even as per the decision of this Court in Secretary, 45 State of Karnataka & Ors. v. Uma

Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the

cover of the Court’s order, as one time measure, the services be regularized of such employees. In that facts of the case, those employees who

have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularization as others

have been regularized; we direct that their services be treated as a regular one. However, it is made clear that they shall be entitled to claiming any

dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive

the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged

establishment shall be counted as qualifying service for purpose of pension.

In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-

charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall

be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months.

Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed.â€​

The consequential effect of the judgment dated 02.09.2019, as quoted above; would be that the Hon’ble Apex Court judgment; as rendered in

Civil Appeal No.10806 of 2017, Habib Khan vs. State of Uttarakhand and others, whereby the Civil Appeal was allowed by the judgment of

Hon’ble Apex Court dated 23.08.2017, and as a consequence thereto the Hon’ble Apex Court had passed the judgment to the following

effect:-

“7. As already observed, the provisions of Rule 370 of the Civil Service Regulations applicable to the State of Uttarakhand arep ari materia with

the provisions of Rule 3.17(ii) of the Punjab Civil Services Rules, discussed above. If that is so, we do not see as to why the period of service

rendered on work-charged basis by the appellants should not be counted for purposes of computation of ‘qualifying service’ for grant of

pension. The pari material provisions of Rule 3.17(ii) of the Punjab Civil Services Rules having been interpreted and understood in the above manner

by this court in Narata Singh (supra) we do not find any room fro taking any other view except to hold that the appellants are entitled to reckon the

period of work-charged service for purposes of computation of ‘qualifying service’ for grant of pension. We order accordingly; allow these

appeals and set aside the impugned orders passed by the High Court.â€​

The same stands affirmed by the dictum of Larger Bench of Hon’ble Apex Court dated 02.09.2019 rendered in Civil Appeal No.6798 of 2019.

The judgment of the Hon’ble Apex Court dated 23.08.2017, referred above was later sought to be reviewed by filing a review petition before

Hon’ble Apex Court, being Review Petition No.09 of 2018. Ultimately the review petition was also dismissed by the Hon’ble Apex Court on

16.01.2018, thereby affirming the judgment of Habib Khan’s case dated 23.08.2017 (Supra). The issue had crept in for consideration, in pursuance

to the judgment of an identical nature rendered by the High Court of Judicature at Allahabad, Lucknow Bench in the matters of Ramdev Tiwari. The

said judgment rendered by Allahabad High Court dated 22.01.2016; was made as a subject matter of Civil Appeal No.2896 of 2018, which was arising

out of SLP (C) No.9070/16 before the Hon’ble Apex Court, the Hon’ble Apex Court, yet again by the judgment dated16.03.2018, had

reiterated the ratio propounded by the judgment of Habib Khan dated 23.08.2017 and had directed that the period of services rendered in the work

charge establishment, the services rendered by the petitioners in the work charge establishment would be included for the purposes of computing

pension, the said period would be included as qualifying period for the services for the determination of pension. The relevant part para 3 of the said

judgment dated 16.03.2018 is quoted hereunder:-

“3. Learned counsel for the appellant has brought to our notice the judgment and order of this Court in the case of Habib Khan vs. State of

Uttarakhand and Ors. (C.A. No.10806 of 2017) and connected matters, where this Court hash eld that the period of work-charged service must

be reckoned for the purpose of computation of ‘qualifying service’ for grant of pension. We are in respectful agreement with the

aforementioned decision.â€​

The issue yet again came up for determination before the Division Bench of this Court in Special Appeal No.108 of 2014, Satpal Singh vs. State of

Uttarakhand and others, this Court too while referring to the Habib Khan’s judgment following the ratio laid therein by the Hon’ble Apex

Court, vide its judgment dated 23.10.2017 had allowed the appeal and set aside the judgment of the learned Single Judge dated 12.11.2013; as

rendered in Writ Petition No.1428 of 2012, Satpal Singh vs. State of Uttarakhand and Others and issued a direction to the State directing them to

count the period of services rendered as in the work charge services of the petitioners for the purposes of computation of the qualifying services of

the petitioners, limited for the grant of pension to the appellant. The relevant part of Division Bench is quoted hereunder:-

“Accordingly, the present appeal is allowed. The judgment rendered by learned Single Judge in WPSS No.1428 of 2012, on 12.11.2013, is quashed

and set aside. The respondent-State is directed to count the work-charge services for the purposes of computation of ‘qualifying service’ for

grant of pension to the appellant as well as the similarly situate persons, within a period of two months from the production of a certified copy of this

order.â€​

As against the Division Bench judgment dated 23.10.2017, (referred above) the State preferred an SLP being SLP No.507 of 2018, the same was

taken up for consideration before the Hon’ble Apex Court; on 09.01.2018 and the same was yet again disposed of in the light of the Habib

Khan’s judgment dated 23.08.2017, rendered in Civil Appeal No.10806 of 2017. Since there had been a contradictory stand taken by the State and

its authorities and further also because the Hon’ble Apex Court had made a reference of the question for consideration of the judgment rendered

in Habib Khan’s case (Supra) by its Larger Bench, the matter was referred to the larger Bench of the Hon’ble Apex Court in Civil Appeal

No.6798 of 2019, Prem Singh vs. State of Uttar Pradesh and Others; in which the Hon’ble Apex Court has decided the matter by the judgment

dated 02.09.2019; finally in the light of the directions already quoted above given in paragraphs 33, 34, 35 and 36 of the said judgment. Wherein it had

been specifically held that for all those daily wagers employee, who had been ultimately called up and rendered the services in the work charge

establishment and their services which later on stood regularized by specific orders passed in relation to them, the said tenure of period for the work

charge establishment, would be included and taken into consideration for the purposes of determination of their pensionary benefits only. Since there

was a deprivation of pensionary benefits, in that regard, the petitioners of the present bunch of writ petitions contended that despite of there being

series of judgments rendered consistently by the Division Benches of the Court, as well as, by the Hon’ble Apex Court and ultimately when the

issue stood settled by the judgment dated 02.09.2019 of the Larger Bench of the Hon’ble Apex Court, in such an eventuality the issue does not

remain to be res-integra for the reason being that it has already been settled down and the said issue has attained finality, that as far as the period of

services rendered in the work charge establishment employees are concerned, whose services are ultimately regularized later, in an event of there

superannuation, their period of services rendered in the work charge establishment has to be included for the purposes of determination of the

qualifying period of services for the purpose of computing the pensionary benefits. Since, it was not being done by the respondents, the present writ

petition for the relief claimed therein.

Mr. Anurag Bisaria, the learned Standing Counsel for the State of Uttarakhand though in principle had admitted that the issue pertaining to inclusion

of the period of services rendered in the work charge establishment for the purposes of determination of pensionary benefits stands settled as of now,

in pursuance to the judgments rendered by the Hon’ble Apex Court as well as that by the Division Bench of this Court. He further submits that

since the claim for determination of pensionary benefits are after including the period of services rendered in a work charge establishment has also

been finally adjudicated by the Hon’ble Apex Court in a judgment dated 02.09.2019, hence, on the said issue he does not have any debate as such

to oppose the petition. But, he submits that as far as the reliefs claimed and modulated by the petitioners in their writ petitions pertaining to the arrears

of salary on that basis and for determination of other service benefits that would be falling outside the purview of the directives issued by the

Hon’ble Apex Court as settled by the judgment dated 02.09.2019. In principle this Court is also in agreement with the tenacity of the argument

extended by Mr. Anurag Bisaria, Standing Counsel and the Court observes that the relief claimed in the writ petition would only be limited to the

extent of the directives issued by the Supreme Court for including the period of work charge establishment for determining the pensionary benefits of

the petitioners.

There are multifacets of the writ petition but since the petitioners themselves have only claimed the derivation of benefit of the parity of the

judgment of the Hon’ble Apex Court, as finally adjudicated by it on 02.09.2019 in Civil Appeal No.6798 of 2019, Prem Singh vs. State of Uttar

Pradesh, this writ petition would too stand disposed of strictly in terms and parameters as laid down by the Hon’ble Apex Court in the judgment

dated 02.09.2019 in Civil Appeal No.6798 of 2019; to be read with in Habib Khan’s judgment as rendered in Civil Appeal No.10806 of 2017 dated

23.08.2017. On this limited count itself, these writ petitions are being disposed of with a writ of mandamus being issued to the respondents to

determine and grant the pensionary benefits of the petitioners after including their services of the work charge establishment, for including in the total

period of services rendered by them, strictly in the light of the guidelines or directions issued by the Hon’ble Apex Court in Habib Khan’s case

(supra) as well as in Prem Singh’s case as referred above for the computation of their pensionary benefits.

Subject to the aforesaid directions, the writ petitions stand disposed of accordingly.

As far as Writ Petition No.2227 of 2019 (S/S), Chandan Singh vs. State of Uttarakhand is concerned, since the issue involved is slightly distinct to

the one already decided above, the said writ petition is de-linked from the bunch to be listed and considered independently.

Let a photocopy of this judgment be kept in all the connected petitions.