Allowed

Uma Charan Pandey and 2 Others v. State of U.P. and 2 Others

Allahabad HC29 Sept 2022WRIA/6541/2016

Case brief

AI extract

What is this about?

High Court allowed a writ petition regarding pension denial. The court held that Work Charge services count as qualifying service based on the Supreme Court's Prem Singh judgment. Relying on the UP Qualifying Service Validation Act 2021, the claim was referred back for fresh consideration.

What did the court decide?

Impugned order dated 4.4.2015 set aside. Writ petition allowed. Matter remanded to respondent No.4 to decide pension claim within three months.

Uma Charan Pandey and 2 Others Vs State of… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 32

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Case :- WRIT - A No. - 6541 of 2016

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Petitioner :- Uma Charan Pandey And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shailendra,Raghwendra Prasad Mishra

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Counsel for Respondent :- C.S.C.

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Hon'ble Vikram D. Chauhan,J.

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Heard Sri R.P. Mishra, learned counsel for the petitioners and learned Standing Counsel for the State.

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Learned Counsel for the petitioners is permitted to implead Principal Secretary, Government of U.P., Lucknow as respondent no.4.

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It is submitted by learned counsel for the petitioners that the petitioners were working on the post of Tubewell Operator and has retired on 31st July, 2005. Initially, the petitioners were appointed as a Work Charge employee on 1st October, 1982 and, thereafter, their services have been regularized by order dated 14th August, 1997. The claim for pension of the petitioners has been rejected by the respondents on the ground that the petitioners does not fulfill 10 years qualifying service.

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It is submitted on behalf of the petitioners that the respondents have calculated the qualifying service from the date of regularization and the same is in teeth of the judgment of the Apex Court in the case of Prem Singh Vs. State of Uttar Pradesh and others, AIR 2019 SC 4390 .

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It is further to be seen that after the judgment passed in the case of Prem Singh (supra) the U.P. Qualifying Service for Pension and Validation Act, 2021 has been promulgated. The provisions of the Act are quoted hereinbelow:-

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"1. ...

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2. Notwithstanding anything contained in any rule, regulation or Government Order for the purposes of entitlement of pension to an officer, "Qualifying Service" means the services rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the Government for the post.

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3. Notwithstanding any Judgement, decree or order of any Court, anything done or purporting to have been done and any action taken or purporting to have been taken under or in relation to sub-rule (8) of rule 3 of the Uttar Pradesh Retirement Benefit Rules, 1961 before the commencement

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of this Act, shall be deemed to be and always to have been done or taken under the provisions of this Act and to be and always to have been valid as if the provisions of this Act were in force at all material times with effect from April 1, 1961.

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4. Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this Act."

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The aforesaid Act has been made applicable w.e.f. 1961 and on the aforesaid basis, counsel for the petitioner submits that in view of the judgment of the Apex Court in Prem Singh (supra) specifically para 36 which is quoted hereunder:-

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"36. 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."

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The service rendered as a Work Charge employee is liable to be calculated as period for qualifying service.

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He further submits that the aforesaid Validation Act also recognizes the temporary and permanent service as the period of qualifying service on the strength of the same, the learned counsel for the petitioner submits that the impugned order is not sustainable in law.

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The Act has been promulgated with the following objects and reasons:

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"Pension and gratuity admissible to a retired Government servant are determined in relating to the length of qualifying service of the Government servant. Although the term "Qualifying Service" is described in the Uttar Pradesh Civil Service Regulation and the Uttar Pradesh Retirement Benefit Rules, 1961, however the definition of the said term is open to subjective interpretation which leads to administrative difficulties.

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It has, therefore, been decided to make a law defining the term "Qualifying Service" and to validate such definition with effect from April 1, 1961 which is the date of commencement of the Uttar Pradesh Retirement Benefit Rules, 1961.

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Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 (U.P. Ordinance no.19 of 2020) was promulgated by the Governor on October 21, 2020.

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The Bill is introduced to replace the aforesaid Ordinance."

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Learned counsel for the petitioner has also relied upon a judgment of this Court passed in Special Appeal No.152 of 2021, State of U.P. and others Vs. Bhanu Pratap decided on 14th July, 2021 and the aforesaid judgment has been confirmed in Special Leave to Appeal (C) No.10381 of 2022 and as such the impugned order is liable to be set aside.

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Learned Standing Counsel submits that he does not dispute the proposition of law laid down by the Apex Court in the case of Prem Singh (supra). However, he submits that Validation Act was subsequently been passed by the State Government which is applicable from 1961 and as such the services of the petitioners is to be reckoned as qualifying service in accordance with the Validation Act and as such he submits that the matter is required to be remanded back to the authority concerned for decision a fresh.

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Considering the facts and circumstances, the fact that in case the services of the petitioners as Work Charge employee is taken into consideration then services of the petitioners is more than 10 years and in view of the judgment of the Apex Court in Prem Singh (supra), the period of service as Work Charge employee is required to be taken into consideration.

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Further, the Validation Act also recognizes the appointment on a temporary or permanent post as a period of qualifying service.

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It is to be noted that as per the impugned order, it is not the case of the respondents that initial appointment as a Work Charge employee was not in accordance with the Rules and as such the impugned order dated 4th April, 2015 is set aside. The writ petition is allowed and the matter is remanded back to the respondent no.4. The respondent no.4 is expected to decide the claim of the petitioners for pension in accordance with law within a period of three months from the date of production of a certified copy of this order.

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Order Date :- 29.9.2022 Bhaskar

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Digitally signed by BHASKAR Date: 2022.10.12 11:42:00 IST Reason: Location: High Court of Judicature at Allahabad

Uma Charan Pandey and 2 Others v. State of U.P. and 2 Others

Case brief

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Uma Charan Pandey and 2 Others v. State of U.P. and 2 Others

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