Allowed

Ganga Prasad v. State of Uttarakhand through Secretary

Uttarakhand HC4 Aug 2022WPSS/3821/2018

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, holding that pre-regularization work-charge service must count toward pension and gratuity. The court directed respondents to redetermine retiral benefits and pay unpaid gratuity with interest up to superannuation.

What did the court decide?

Writ of mandamus issued to redirect respondents to re-determine peti t ioner's retiral benefits including pre-regularization service and pay unpaid gratuity with interest.

Ganga Prasad Vs State of Uttarakhand… — Pension and Retirement Benefits | Uttarakhand HC (2022)

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HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (S/S) No. 3821 of 2018

Ganga Prasad

… Petitioner

Vs.

State of Uttarakhand through Secretary and others

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… Respondents

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Advocate: Mr. Umesh K. Pahwa, Advocate, for the petitioner Mrs. Anjali Bhargava, Addl. CSC, for the State of Uttarakhand Mr. I.D. Paliwal, Standing Counsel, for the State of U.P.

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Hon’ble Sharad Kumar Sharma, J.

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Few undisputed facts, which are on record, are that the petitioner was appointed as a work-charged (Supervisor) on a temporary basis in the Irrigation Department of the undivided State of Uttar Pradesh and ever since his induction on 29th October 1979, he had continuously discharged his services, and during this tenure of his services in his status as that of work-charged supervisor, he was given all the service benefits of increments, which was added and made admissible to him from time to time, and he was also given leave and other service benefits, as it was being extended to a regular employee.

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2. Learned counsel for the petitioner submits, that the 1^st increment in the salary of the petitioner, was accorded to him after his induction as a work-charge supervisor on 29th October 1979, though by an order of 9th October 1980, where the pay-scale of the petitioner was made admissible revised and was raised w.e.f. 29th October 1979.

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3. As and when the salary of the regular employees of the respondent/department, were increased, with the revision of pay-scale, the petitioner’s counsel contended, that petitioner’s pay-scale too was simultaneously revised from time to time, for example, that the benefit of revision of pay-scale was extended to the petitioner on 30th July 2009 w.e.f. 1st January 1986, and thereafter, on 23rd August 1993 w.e.f. 1st January 1986. However, on completion of 10 years of satisfactory service, on the said post, an additional increment was also sanctioned to be made payable in favour of the petitioner, which was released w.e.f. 29th October 1989. Meaning thereby, during all his tenure of service, all the service benefits, which had accrued as a consequence of the enforcement of the recommendation of the Pay Commission or the Office Memorandum, which was issued and made applicable from time to time, for example, on 15th December 2020, the pay-scale of the petitioner was revised w.e.f. 29th October 1987 also.

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4. The petitioner, after his induction into the services, and owing to his service records, he was given a regular status in the services on 21st January 2004, and on completion of three years of service, the services of the petitioner was also confirmed on the said post w.e.f. 21st January 2007, by virtue of an Office Order No. 3438/E-6 (Confirmation) dated 16th November 2007, which was

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issued by the competent Superintending Engineer of Upper Ganga Canal Modernization Division-1, Roorkee, district Haridwar.

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5. The petitioner, being aggrieved against the regularization, and the benefits accruing there from, which was partially extended to him, and due to the late regularization, despite of having continued to serve with the respondents for the last 24 years, a writ petition being Writ Petition No. 36398 of 2007, Ram Nath Singh and Another Vs. State was preferred, where, he was impleaded as petitioner No. 2. But, however, having worked with the said capacity after being placed, under the work-charge establishment, the petitioner contends, that even after his regularization of services, till the date he attained his age of superannuation, he had not been paid with the gratuity amount for the period of regular services, which had been rendered by him, rather the respondents have paid him the gratuity amount w.e.f. 1979, till his services were regularized i.e. w.e.f. on 21st January 2004.

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6. The second limb of grievance of the petitioner is that all his retiral dues, which would be otherwise admissible to be made payable to the him after attaining of his age of superannuation on 31st January 2009, it ought to have been determined to be made payable to him from the date of his initial induction into the services i.e. on 29th October 1979,

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when he was brought into a work-charge establishment as a supervisor; with the Irrigation Department.

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7. The act of the respondents of non-inclusion of the period of services from 29th October 1979, till his services were regularized on 21st January 2004, for the purposes of determination of retiral benefits to the petitioner, would be arbitrary and would be in contravention to the principles, which have been laid down by the Division Bench of this Court, in its judgment rendered in a bunch of Special Appeals, with leading Special Appeal, being Special Appeal No. 494 of 2017, State of Uttarakhand and Another Vs. Brahm Pal Singh, which was yet again based upon the ratio laid down by the Hon’ble Apex Court in the matters of Habib Khan, Umakant Joshi and Kesar Chand’s case, as it was decided by the different High Courts of the country, as well as the Hon’ble Apex Court, wherein it has been consistently laid down, that the period of services which had been rendered in the work-charge establishment, has to be included and taken into consideration, for the purposes of total determination of period of services, for the purposes of computation of the retiral benefits.

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8. On the basis of the aforesaid ratio and based upon the wider principles of the Hon’ble Apex Court, as laid down in the case of Marbury Vs. Madison and that of the decision of the Hon’ble Apex Court in the case of Robert D’Souza Vs.

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Executive Engineer, Southern Railway and another, as reported in AIR 1982 SC 854, and considering the implications of the earlier judgement of the Full Bench of Allahabad High Court, as it was rendered in the matters of Pawan Kumar Yadav Vs. State of U.P. & Ors. as reported in 2010 (8) ADJ 664, though it was in relation to the Dying-inharness Rules, but yet it had provided that the period of services rendered in the work-charge establishment was determined to be included while calculating total period of services for the purposes of remittance of the retiral benefits included the pension therein.

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9. Based on the aforesaid principles, the Division Bench of this Court, had ultimately concluded in its para 52, that the final determination, which hinges upon few vital aspects having a wider bearing of extension of the benefit to a retired employee, it has had to be rationally considered, because the tenure of services which has been rendered prior to regularization in a work-charge establishment, the reliance, which was placed by this Court, in the judgement of Habib Khan's case, was proceeded with, following the judgement of the Hon’ble Apex Court, wherein it has laid down, that the choice available for the purposes of extension of the benefit of the service Rules, which was then under consideration, the Division Bench of this Court has ultimately made the following observations, which are extracted hereunder:-

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“55. Ordinarily, when a challenge is made to a statutory provision, it is to be made where it stands as an obstacle for obtaining a relief, which is denied under the said statute. It is after giving proper opportunity of pleading to the parties that the Court can be requested to sit in judgment over the vires of the statute. It is for this purpose, we did think that the matter should be remitted back for that purpose.

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However, in these cases, we are confronted with the decision in Habib Khan’s case. In Habib Khan’s case, we have already noticed, the statements, which have been made in paragraph nos. 6 & 7. We again further notice that the matter reached the Hon’ble Apex Court in the form of an appeal from judgment of the Division Bench of this Court, apart from the judgment of the Full Bench. The judgment of the Division Bench was premised on the reasoning that the claimant had not sought to declare Article 370 as bad in law. It is without challenge to Article 370 that the Hon’ble Apex Court has made a comparison between Article 370 and the corresponding provision in the Punjab’s case. The Hon’ble Apex Court has taken the view that the decision is pari materia. It refers to the decision of the Hon’ble Apex Court in the subsequent judgment in Narata Singh’s case and found no reason to take a different view.

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In such circumstances, particularly, after the rejection of the review petition, we would take the judgment as it is and come to the following conclusion:

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The Court granted the relief based on its reasoning, even when there is no challenge to the 1961 Rules or Article 370. This was despite the fact that in the body of the judgment of the Division Bench, it was specifically the case of the State, which was accepted by the Division Bench, that there was no challenge to the Rules. We would, in such circumstances think that, particularly in the case where the Article 370 itself is challenged and when the review is also rejected, it may not be appropriate for us to take a different view even if we were inclined to. We would think that the challenge as far as to Article 370, which was successfully prosecuted by the writ petitioners before the learned Single Judge, should not meet with a different fate at our hands, having regard to what is laid down in Habib Khan’s case. There can be no doubt that the provision is absolutely pari materia with the provision contained in the Punjab’s Case.

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The next hurdle, as we have already noticed, is the Rules of 1961 not being challenged. We would again notice that the

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Bench decision, which was before the Hon’ble Apex Court, involved a case where there was no challenge to Article 370 and yet the Hon’ble Apex Court has granted the benefit. The review petition filed by the State was also rejected. In the review petition filed by the State, one of the grounds taken is about the 1961 Rules in the manner it was taken.

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We may further notice the most important aspect. The Rule 3(8) contains provisions, which are, in turn, pari materia with Article 370. Article 370, in turn, as we have found, is pari materia with the provision in the Punjab’s Case.

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We also notice that there are Division Bench rulings of this Court, which have been rendered, we may in fact notice that even without challenge various provisions have been made; we may notice in this regard also that in Satpal Singh’s case SLP was dismissed.

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In this regard, we may notice the following developments also as contained in the judgment in State of Uttarakhand & ors. Vs. Ramswarup & another passed in Special Appeal No. 70 of 2018 (hereinafter referred to as ‘Ram Swarup’s case). It is brought to our notice, in fact, that in the judgment in Ram Swarup’s case, the writ petitioners had challenged the 1961 Rules and that is allowed in terms of the Habib Khan’s case and Special Leave Petition No. 2210 of 2017 has been dismissed. It is true that there is no discussion in the judgment relating to the Rule as such. It is brought to our notice, in fact, that in the judgment in the case of Satpal Singh Vs. State of Uttarakhand passed in Special Appeal No. 108 of 2014, which is referred to in Ramswarup’s case, there is no challenge to the 1961 Rules or Article 370 and still the case was decided in terms of the Habib Khan’s case and the Special Leave Petition was rejected.

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One of the arguments raised by the learned Advocate General for the State of Uttar Pradesh is that the writ petition is without any authorization. We notice that the argument is that apart from the writ petitioner several other persons are sought to be roped in as beneficiaries, as their names have been taken in the writ petition. But, we scanned the order sheet of the writ petition. We, in fact, find that in this case though they were not made parties as writ petitioners, the Learned Single Judge directed that they will pay court fees on behalf of those persons also and what is more, the Court fees has been paid by them. At this juncture, we may notice the judgment of the Hon’ble Apex Court in the case of State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others reported in (2015) 1 SCC 347. Therein, though the issue

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was relating to effect of latches, the Hon’ble Apex Court inter alia held as follows:

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“22.1 The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.”

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In fact, the relief, we notice, is to give to the petitioners.

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In such circumstances, the upshot of the above discussion is that the appeals fail; they are dismissed without any orders as to cost.”

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10. In fact, the ratio, which has been determined to be made applicable by the Division Bench of this Court, if para 56, as referred thereto, it was based upon the wider principles of the interpretation which was given to Article 370 of the Civil Services Regulations, and accordingly, the judgement of the Hon’ble Apex Court reported in the matter of State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others, as reported in 2015 (1) SCC 347, where the reliance was made to the ratios which were laid down in para 22.1 of the aforesaid judgment.

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11. It had carved out, that no artificial distinction, as such, could not be carved out to deny a relief to a particular set of employees, who had been similarly placed in the work-

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charge establishment, while determining their retiral benefits, because the principal ratio, which is to be applied in the service jurisprudence, is to be more emphatically considered; based upon the principles, that if the workcharge establishment period of services is excluded from the total tenure of services, for the purposes of extension of retiral benefits, it would be in violation of the basic principles of Article 14 of the Constitution of India would normally lead to arbitrariness. However, in para 56 of the judgment of Habib Khan’s case, which has been referred to therein, which had postulated, that the period of workcharge establishment, is has to be taken into consideration for the purposes of determination of the total pensionary benefits and other retiral dues was, later on, on account of a debate raised before the Hon’ble Apex Court, was referred to a larger Bench, to be decided in bunch of Civil Appeals, with leading Civil Appeal No. 6798 of 2019, Prem Singh Vs. State of Uttar Pradesh & Ors., and the Hon’ble Apex Court, in the said case, by the judgement as decided on 2nd September 2019, had rather upheld the principles which had been laid down in Habib Khan's case, but with a slight elaboration while interpreting the implications of regularization of Article 370 of the Civil Services Regulation and it has been observed therein that the employees, whose services has not been regularized in spite of having been rendered a sufficient long tenure of service and having attained the age of superannuation, as they had worked in a

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work-charge establishment and their services has not been taken as against any particular project, their services ought to have been considered for the purposes of extension of benefits, and the relevant observations made by the Hon’ble Apex Court, while answering the question decided in Habib Khan’s case was referred to in para 36 of the judgement of Prem Singh (supra), as decided on 2nd September 2019, which is extracted 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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12. In view of the aforesaid settled and now an undisputed principle, that the period of services rendered by an employee, in a work-charge establishment, would be treated, as to be a service in an establishment, which cannot be permitted to be placed to a disadvantages position to an employee, who has already worked with the respondent, after being inducted into the work-charge establishment. In that eventuality, the period of services rendered by an employee in the work-charge establishment, till the regularization of his services, which in the instant case, happens to be w.e.f. 29th October 1979, till the petitioner was regularized on 21st January 2004, would be a period,

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which ought to have been taken into consideration, for the purposes of determination of retiral benefits to the petitioner, in accordance with the Civil Services Regularization and the Retirement Benefit Rules of 1961 and particularly, based on the principles laid down by the Division Bench of this Court in Brahm Pal Singh’s case (supra) , and subsequently by the Hon’ble Apex Court in the case of Prem Singh (supra) .

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13. Accordingly, in view of the aforesaid undisputed fact of the nature of employment of the petitioner ever since 1979; till the time he attained his age of superannuation on 31st January 2009, it is not a fact, which is now disputed at all. That the petitioner’s entitlement, as prayed for in the writ petition, by way of a writ of mandamus for the grant of pay, and the amount of pension, gratuity and other retiral benefits, after including the period of services rendered by him in the work-charge establishment, till his services were regularized and later on till he had attained the age of superannuation. The entire period will be treated to be, a service rendered in continuity, for the purposes of payment of the pension and gratuity and other retiral benefits.

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14. Thus, the writ petition is allowed. A writ of mandamus is issued to respondent Nos. 4 and 5, to re-determine the pensionary benefits of the petitioner, after including the period of services from 29th October 1979 till 21st January

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2004, till his services were regularized as Junior Clerk, as to be a service which has been rendered by him with the establishment, which has to be included and taken into consideration to provide a continuity into the services, for the purposes of determination of the retiral benefits till he actually attained the age superannuation on 31st January 2009.

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15. In view of the aforesaid, the writ petition stands allowed.

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16. After culmination of the judgment, a very peculiar fact has been brought on record by the learned counsel for the petitioner, that though the petitioner has been remitted with the gratuity amount for the period from 29th October 1979 till his services were regularized on 21st January 2004, but, for the reasons best known to the respondents, it is contended by the petitioner, that even after the regularization of his services; till he attained the age of superannuation on 31st January 2009, the gratuity amount has not been paid to him. In fact, this Court doesn’t visualize any logic for non-payment of the gratuity amount for the period w.e.f. 21st January 2004 till the petitioner attained the age of superannuation on 31st January 2009.

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17. Hence, a writ of mandamus is issued to respondent Nos. 4 and 5, who are hereby directed to determine the

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gratuity amount payable to the petitioner for the aforesaid period including its arrears, as well as statuary interest, which would be payable on it under Section 7(3A) of the Payment of Gratuity Act.

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(Sharad Kumar Sharma, J.) 04.08.2022

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Mahinder/

Ganga Prasad v. State of Uttarakhand through Secretary

Case brief

What is this about?

What did the court decide?

Ganga Prasad v. State of Uttarakhand through Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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