Ganesh Prasad Shukla Vs State of U.P. and Others

Court No. - 81

Case :- WRIT - A No. - 54671 of 2012

Petitioner :- Ganesh Prasad Shukla Respondent :- State of U.P. and Others Counsel for Petitioner :- Vijay Kumar Tripathi,Ashok Khare Counsel for Respondent :- C.S.C.

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Hon'ble Yashwant Varma,J.

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Civil Misc. Substitution Application No.03 of 2020

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The application is allowed.

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Let appropriate amendment be carried out in the cause title forthwith.

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Heard learned counsel for parties.

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Learned Standing Counsel fairly concedes that the impugned order would not sustain in light of the decision rendered by three learned Judges of the Supreme Court in Prem Singh Vs. State of U.P. & Others, (2019) 10 SCC 516 . Construing the provisions of qualifying service and the right to pension as inhering in employees of a work charged establishment, the Supreme Court held thus:-

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" 33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that 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. In our opinion, 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

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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.

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34. 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 regularisation in the capacity of work-charged employees, contingency paid fund 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.

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35. 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."

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In that view of the matter, learned Standing Counsel submits that the matter may be remitted to the respondent no.6 for consideration afresh and for taking a further decision with regard to the entitlement of the petitioner bearing in mind the law as declared in Prem Singh .

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Accordingly and with the consent of parties, this petition is allowed . The impugned order dated 30 March 2012 is hereby quashed. The matter shall stand remitted to the respondent no.6 who shall take a fresh decision with respect to the entitlement of the petitioner to pensionery and retiral benefits in light of the law as laid down in Prem Singh . The decision shall be taken with expedition and preferably within a period of three months from the date of presentation of a certified copy of this order.

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Order Date :- 22.1.2020 Vivek Kr.

Ganesh Prasad Shukla v. State of U.P. and Others

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Ganesh Prasad Shukla v. State of U.P. and Others

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