Shankar Lal Saini Vs State of U.P. Thru. Prin. Secy. (Cooperative ) Up Civil Secrtt. Lko. and 2 Others

Neutral Citation No. - 2025:AHC-LKO:42368

Court No. - 5

Case :- WRIT - A No. - 2968 of 2022 Petitioner :- Shankar Lal Saini Respondent :- State Of U.P. Thru. Prin. Secy. (Cooperative ) Up Civil Secrtt. Lko. And 2 Others Counsel for Petitioner :- Nirankar Singh Counsel for Respondent :- C.S.C.

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the petitioner and learned Counsel for the respondents.

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2. Under challenge is the order dated 22.03.2022, a copy of which is annexure 2 to the writ petition (wrongly indicated as annexure 1 in the writ petition) by which the claim of the petitioner for payment of gratuity and pension has not been found to be tenable without indicating the reasons thereof. Further prayer is for a writ of mandamus commanding the respondents to release gratuity of petitioner pursuant to his services of 34 years six months and considering the entire period of service rendered by the petitioner.

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3. Bereft of unnecessary details the facts set forth by learned counsel for the petitioner are that the petitioner was appointed on the post of Driver in the pay scale of Rs 330-7-365-8-381EB-9 revised scale 405-950-EB-9-995 by means of order issued by Additional Registrar, Cooperative Societies, Lucknow and the directions issued by the Registrar, Cooperative Societies, Uttar Pradesh. The said appointment order indicated that service of the petitioner was only temporary and he could be removed from service at any stretch of time. The petitioner continued in service and retired on 30.09.2021 on attaining the age of superannuation. The petitioner was not paid pension and gratuity consequently he raised a claim before competent authority which has been rejected vide order impugned dated

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22.03.2022 but no reasons emerge as to what has prevailed on the respondents in rejecting the claim of the petitioner for payment of gratuity.

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4. Placing reliance on averments contained in paragraphs 10, 14, 16 and 18 of the writ petition the contention of learned counsel for the petitioner is that all along the petitioner has been paid salary and other allowance which were admissible to State Government employee. He has also been given allowances like dearness allowance, city allowance, house rent allowance, travelling allowance and earned leave at par with government employees. The benefit of house and vehicle loans have also been extended to the petitioner and ACP benefit have also been granted to the petitioner, a copy of which is annexure 8 to the writ petition.

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5. Placing reliance on aforesaid averments which are made in writ petition the argument of learned counsel for the petitioner is that all along the petitioner has been treated to be regular employee by the respondents and having rendered service for more than 37 years his appointment being of 31.03.1984 and he having retired on 30.09.2021, there cannot be any occasion for the respondent to have summarily rejected the claim of the petitioner for payment of pension and gratuity as have been done by the respondents.

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6. On the other hand, learned Standing Counsel for the State on the basis of averments contained in the counter affidavit argues that in pursuance of order dated 21.03.1984 issued by the Additional Registrar, Cooperative Societies, Lucknow the petitioner had been appointed under Election Fund as categorically stated in his appointment order dated 21.03.1984 and that his appointment is purely temporary and the petitioner may be removed from service at any time on one months notice.

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Further, the admissible pay alongwith other allowances in accordance with arrangements provided in 8-d of the income / expenditure directory dated 04.04.1983 of the amount of Sahkari Nirwachan Mukhyala Khata 1978 was extended to the petitioner.

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7. Placing reliance on clause 13 of the letter dated 04.04.1983, a copy of which is annexure 4 to the writ petition, the contention of learned counsel for the petitioner is that it was categorically stated that the employees working on election fund would not fall within the ambit of government employees and their services would be temporary. As regards extension of the aforesaid benefits i.e. salary and other allowance including the dearness allowance, city allowance, house rent allowance, traveling allowance and the benefit of ACP, learned Standing Counsel states that the said benefits were extended to the petitioner in terms of orders issued in this regard by the Registrar, Cooperative Societies, Uttar Pradesh but mere extension of said benefits would not mean that the petitioner is an employee of State Government so as to be entitled for payment of pension, gratuity and other dues. He also states that there are no service rules governing the service conditions of the petitioner.

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8. It is also contented that an amount of Rs 7,28,320/- has been paid to the petitioner towards leave encashment.

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9. Having heard learned counsel for the parties and having perused the record it emerges that the petitioner was appointed on 21.03.1984 on the post of Driver under the orders issued by the Registrar, Cooperative Societies, Uttar Pradesh on a post governed by election fund. Admittedly the petitioner has rendered more than 37 years of service having retired on 30.09.2021 and in the interregnum, has drawn regular salary

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and has also been paid various allowances admissible to regular government servants including dearness allowance, city allowance, house rent allowance, traveling allowance and has also been extended the benefit of ACP. Upon his retirement he having staked his claim for being paid pension, gratuity etc, the same has been rejected by means of the order impugned dated 22.03.2022 which is a cryptic order and only indicates that the petitioner would not be entitled for being paid pension and gratuity and it has been decided not to pay the same to him.

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11. The writ petition deserves to be allowed solely on the ground that the order passed by the respondents is cryptic and non speaking. However the reasons which have led the passing of the order impugned have been detailed in the counter affidavit which has been filed by the State per which it has been indicated that as per clause 13 of the guidelines of the Cooperative Elections (Headquarters) Khata Guidelines 1978 clause 10 specifically provides that services of the petitioner would be temporary and that the said employees would not be considered to be government employees.

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12. The contention on the part of the respondents that no service rules have been framed with respect to the employees working under election fund may not detain the Court in as much as the petitioner has got no role in framing of service rules and in case competent authority responsible for framing service rules has failed to do so, the same the same cannot be held against the petitioner.

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13. Be that as it may the facts of the matter remains that the petitioner has retired on attaining the age of superannuation after having rendered more than 37 years of service and thus describing the service of the petitioner as purely temporary and not being entitled for the benefit of any pension and gratuity

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runs contrary to the recent judgement of Hon'ble Supreme Court in the case of Rajkaran Singh & others vs Union of India & others, 2024 INSC 621.

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14. In the aforesaid case Hon'ble Supreme Court was considering the claim of the persons who were working on various posts such as Junior Accountant, Accountant, Upper Divisional Clerk, Lower Divisional Clerk and managing the compulsory saving scheme deposits (SSD) fund of the special frontier forces. They retired after having rendered almost 31 years to 37 years of service but pension was denied to them. All along the said persons were given the benefit of traveling allowance, dearness allowance, house rent allowance, special security allowance, gratuity, bonus, winter allowance etc alongwith the salary as per the 4th and 5th central pay commission.

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15. The benefit of pension was not extended to them on the ground that they are only temporary and are not government employees and have not been appointed by following any recruitment rules and therefore the Central Civil Services (Pension) Rules, 1972 would not apply to them.

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16. Hon'ble Supreme Court considering the long period of service rendered by them including the plea as taken by the State of their long service only being temporary, rejected the same and held as under:

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" 22. The core issue presented for adjudication by the Court is whether the appellants herein, despite being classified as temporary employees of a scheme managed by contributory pooling of funds, can claim entitlement to pensionary benefits in accordance with the 6th CPC.

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27. Applying these principles to the case at hand, we find compelling evidence on record which establishes that the appellants meet the characteristics of regular government servants. Admittedly, the appellants were appointed on a regular pay scale. This factor strongly indicates a formalised employee- employer relationship akin to permanent government employees. In Ajay Hasia (supra), this Court observed that the nature of financial arrangements can indicate governmental character. The use of government pay scales for the appellants suggests a level of integration into the government's financial structure that goes beyond typical temporary employment. During the course of their service, the appellants received increments and promotions comparable to those of other government employees. This pattern of career progression mirrors that of regular government servants and suggests a deep and pervasive governmental control over their employment terms. In Ajay Hasia (supra), the degree of state control was highlighted as a key factor for identifying State instrumentalities. The chart(supra) provides positive evidence to show that the appellants' career paths were managed like permanent employees indicating a level of governmental oversight and control consistent with regular government service. Furthermore, the office order dated 12th March 2003, issued by the Deputy Director (AG), which transferred the SSD Funds Accounts to HQ SFF under the overall control of the Inspector General of SFF, along with the associated documents and clerical staff, demonstrates that administrative recognition of the appellants’ services was made which is integral to the governmental structure. This transfer of the entire cadre of SSD Fund to the HQ SFF aimed at ensuring better utilization and monitoring of the fund, fortifies the concept that the appellants possessed the characteristics of regular government servants.

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28. The provisions of leave and other benefits, including grant of Assured Career Progression (ACP), further reinforces the similarity between the appellants' employment conditions and those of regular government employees. These benefits are typically associated with formalized, long-term employment relationships within the government sector. The proceedings of the Board of Officers dated 23rd June, 2006 unequivocally acknowledged that the terms and conditions, including the pay and allowances payable to SSD Fund staff, were fixed in March 1978 in accordance with those applicable to the ministerial staff employed in the Accounts Section of SSF HQ Estt. No. 22. The extension of Assured Carrer Progression (ACP) and alignment of terms and conditions with regular government employees, in particular, is an affirmative action indicating that the government viewed and treated these employees as long-

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term assets, despite their ostensibly temporary status. Substantially, the appellants' charter of duties involving the maintenance of accounts for the SSD Fund, can be considered as an assignment of public importance closely related to governmental functions. This aligns with another test laid down in Ajay Hasia (supra), which considers the public importance and governmental nature of the functions performed. The management of funds generated from the personal provident fund contributions of the entire SFF cadre is a critical function that has a direct bearing on the public interest and the effective operation of government services.

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29. Indisputably, the appellants have served SFF HQ Estt. No. 22 for over three decades. While the duration of service alone may not be determinative, it is a significant factor when considered in conjunction with the other aspects of their employment. Such long-term service suggests a level of permanence and integration into the governmental structure that belies their classification as temporary employees. The appellants performed duties similar to those of regular employees in the Accounts Section of SFF HQ Estt. No.22. This similarity in job functions further blurs the line between the appellants' status and that of regular government employees, suggesting that the distinction may be more formal than substantive. The extension of significant elements from the 4th and 5th CPC to the appellants further cements their plea of being employed in governmental functions.

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30. Learned ASG appearing for the respondents has argued that the recruitment, selection, and promotion processes for SSD Fund employees did not follow the procedures used for regular employees and that the appellants were not subjected to probation or given confirmation letters as permanent employees. However, this Court finds such argument to be untenable as it fails to account for the substantive nature of the appellants' employment over an extended period running into three decades. In this regard, reference may be made to the judgment of this Court in the case of Vinod Kumar and Others v. Union of India, wherein this Court noted;

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“5. Having heard the arguments of both the sides, this Court believes that the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. The continuous service of the appellants in the capacities of regular employees, performing duties indistinguishable from those in permanent posts, and their selection through a process that mirrors that of regular recruitment, constitute a substantive departure from the

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temporary and scheme- specific nature of their initial engagement. Moreover, the appellants' promotion process was conducted and overseen by a Departmental Promotional Committee and their sustained 2024 SCC OnLine SC 1533 service for more than 25 years without any indication of the temporary nature of their roles being reaffirmed or the duration of such temporary engagement being specified, merits a reconsideration of their employment status.

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6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra).

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7. The judgment in the case Uma Devi (supra) also distinguished between “irregular” and “illegal” appointments underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case. Paragraph 53 of the Uma Devi (supra) case is reproduced hereunder:

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“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128], R.N. Nanjundappa [(1972) 1 SCC 409] and B.N. Nagarajan [(1979) 4 SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular

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recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”

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8. In light of the reasons recorded above, this Court finds merit in the appellants' arguments and holds that their service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The failure to recognize the substantive nature of their roles and their continuous service akin to permanent employees runs counter to the principles of equity, fairness, and the intent behind employment regulations.” (emphasis supplied)

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31. As held in Vinod Kumar (supra), "the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time."

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32. This Court fully associates with this principle and finds it wholly applicable in the present case, especially in light of the administrative orders and Board proceedings referred to supra that have consistently treated the appellants as equivalent to regular government employees. The mere classification of employees as 'temporary' or 'permanent' is not merely a matter of nomenclature but carries significant legal implications, particularly in terms of service benefits and protections.

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33. In the present case, the totality of circumstances indicates that despite their formal classification as temporary employees, the appellants' employment bears substantial hallmarks of regular government service. The denial of pensionary benefits solely on the basis of their temporary status, without due consideration of these factors, appears to be an oversimplification of their employment relationship with the government. This approach runs the risk of creating a class of employees who, despite serving the government for decades in a manner indistinguishable from regular employees, are deprived of the benefits and protections typically accorded to government servants.

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34. Thus, we are of the opinion that the denial of pensionary benefits to the appellants is not tenable or justifiable in the eyes of law as the same is arbitrary and violates the fundamental

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rights as guaranteed by Article 14 and 16 of the Constitution of India. It is indeed relevant to note that the appellants’ batch seems to be the last in their genre of SSD Fund temporary employees and thus, manifestly, the direction to extend the benefits of the 6th CPC and the RP Rules to the appellants shall not form a precedent so as to have a detrimental effect on the financial health of the SSD Fund. "

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(emphasis supplied)

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17. When the facts of the instant case are tested on the touchstone of law laid down by Hon'ble Supreme Court in the case of Rajkaran Singh (supra) it clearly emerges that even in the instant case the petitioner rendered more than 37 years of service, has drawn regular salary, has been extended the benefit of the ACP and has also been given various allowances from time to time. The claim of the petitioner for pension and gratuity has only been rejected on the ground as emerges from perusal of counter affidavit that the service rendered by the petitioner is temporary and that there are no service rules governing his service conditions.

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18. All the grounds taken by the respondents merit to be rejected keeping in view the law laid down by Hon'ble Supreme Court in the case of Rajkaran Singh (supra). In the instant case also the petitioner has rendered more than 37 years of service under respondents no. 2 and 3 which receive financial support from the government and there is deep and pervasive control of the government, functions performed are of public importance and closely related to governmental functions and the services performed by the petitioner meets the characteristics of a regular government service. The petitioner was appointed in a regualr pay scale which strongly indicates a formalized employee and employer relationship akin to permanent government employees. He has also been granted various allowance as admissible to State Government

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employees like dearness allowance, city allowance, house rent allowance, travelling allowance and earned leave at par with government employees and the benefit of house and vehicle loans have also been extended to the petitioner. Even the ACP benefits as admissible to government employees has been extended to the petitioner to which there is no dispute. While the duration of service alone may not be determinitive it is a significant factor when considered in convention with other aspects of his employment in as much as such long term service suggests a level of permanence and integration into governmental structure which belies his qualification as temporary employees. Merely because the respondents could not prepare service rules cannot be held against the petitioner when he had no role in preparation of service rules or recruitment rules and as such on account of lackadaisical, casual and cavalier attitude on the part of the respondents the petitioner cannot suffer.

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19. Thus, the ground as taken by the respondents that the service of petitioner has been only temporary despite having rendered more than 37 years of service is not found to be legal and tenable in the eyes of law considering the judgement of Hon'ble Supreme Court in the case of Rajkaran Singh (supra).

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20. Keeping in view the aforesaid discussion, the writ petition is allowed.

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21. A writ of certiorari is issued quashing the order impugned dated 22.03.2022, a copy of which is annexure 2 to the writ petition.

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22. Considering the facts of the case, a writ of mandamus is issued commanding the respondent no. 1 i.e. the Principal Secretary, Cooperative, Civil Secretariat, Lucknow to consider

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the claim of the petitioner for payment of pension and gratuity and other retiral dues keeping in view the law laid down by Hon'ble Supreme Court in the case of Rajkaran Singh (supra) and the discussions made above.

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23. Let such consideration be made within a period of 8 weeks from the date of receipt of a certified copy of this order.

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Order Date :- 23.7.2025 J. K. Dinkar

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Digitally signed by :- JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

Shankar Lal Saini v. State of U.P. Thru. Prin. Secy. (Cooperative ) Up Civil Secrtt. Lko. and 2 Others

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Shankar Lal Saini v. State of U.P. Thru. Prin. Secy. (Cooperative ) Up Civil Secrtt. Lko. and 2 Others

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