- (1.) The State is in appeal assailing the judgment rendered by a learned Single Judge of this Court of 5 December 2014. The learned Single Judge allowed the writ petition preferred by the sole respondent against an order of 25 November 2014 which had turned down his claim for grant of pension and gratuity. The order of 25 November 2014 records that the respondent had worked as a muster roll employee between the period 3 June 1989 to 28 February 2011. He was subsequently absorbed in the permanent establishment on 1 March 2011 whereafter he retired on 30 June 2014. The claim for pension and other benefits came to be turned down on account of the respondent not acquiring the requisite qualifying service essential for grant of the above benefit. The learned Single Judge relying upon earlier judgments rendered by the Court came to the conclusion that the period of service spent by the respondent as a work charged employee was liable to be included in computing qualifying service and accordingly set aside the order impugned and remitted the matter to the fourth appellant for reconsideration of the claim of the respondent. The issue canvassed before us was whether the period of service spent by the respondent in a work charged establishment was liable to be included for the purposes of computation of qualifying service. The State has urged that the period spent by an employee on a work charged establishment is not liable to be included for the purposes of computation of qualifying service bearing in mind the provisions of Rule 3 of the U.P. Retirement Benefits Rules, 1961, Rules and Article 368 of the Civil Service Regulations, (Regulations) as applicable in the State of U.P. Apart from the above, the appellants have contended that the various judgments relied upon by the learned Single Judge were themselves based upon an incorrect appreciation of the law laid down by the Supreme Court in Punjab State Electricity Board And Others Vs. Naratha Singh,2010 4 SCC 417 . It has been contended that subsequent Division Benches of this Court have upon a review of the earlier judgments and the relevant provisions of the statute applicable in the State of U.P. have come to hold that the period of service rendered by an employee in a work charged establishment stands on a completely different and distinct footing and consequently cannot be added for the purposes of computing qualifying service.
(2.) This Court in State of U.P. Thru. Prin. Secretary Irrigation And 3 Others Vs. Ram Nagina Lal Srivastava, Special Appeal Defective No. 497 of 2015; decided on 27 August 2015had an occasion to review the various judgments rendered by the Court on the above subject and upon an exhaustive review of the earlier precedents held: "Insofar as the State of U.P. is concerned, the provision which governs the field is Regulation 370 of the Civil Services Regulations3 which in unambiguous terms excludes the period of service rendered by an employee in a work charged establishment while computing continuous, temporary or officiating service. The issue was dealt with in a judgment rendered by the Supreme Court in Punjab State Electricity Board and Ors. Vs. Naratha Singh. In Naratha Singh , the Supreme Court dealt with a claim claim for pension consequent to the striking down of Rule 3.17(ii) of the Punjab Civil Services Rules by a Full Bench of the Punjab & Haryana High Court, which excluded the period of service rendered in a work charged establishment for the purposes of determining qualifying service. A Full Bench of the Punjab and Haryana High Court in Kesar Chand Vs. State of Punjab & Ors, 1988 AIR(P&H) 265 had struck down rule 3.17(ii) of the Rules aforementioned5. The Special Leave Petition preferred against the aforesaid judgement of the Full Bench came to be dismissed by the Supreme Court. It was in the above backdrop and the situation as prevailing insofar as the State of Punjab and Haryana was concerned that the service rendered by an employee in a work charged establishment was held to be added for the purposes of computing qualifying service. These distinguishing features and the factual backdrop in which Naratha Singh was decided appear to have escaped the attention of earlier Benches of this Court which purported to follow Naratha Singh to hold that the period of service rendered in a work charged establishment was liable to be included for the purposes of computing qualifying service. Following the above dictum, this Court in Thakur Prasad Vs. State of U.P. Through Principal Secretary Food & Others, Writ-A No. 36803 of 2008 decided on 24 August 2009Jawahar Prasad Tripathi Vs. State of U.P. and others, Writ-A No. 68515 of 2006 decided on 29.11.2011 Board of Revenue, Lucknow & Ors. Vs. Prasidh Narain Upadhyay, 2006 2 AllLJ 66 Chedi Ram Maurya Vs. Uttar Pradesh Basic Education Board, Allahabad and others, 2008 4 AWC 3546 State of U.P. and Ors. Vs. Panchu, Special Appeal Defective No. 842 of 2013 and Raj Dularey Dubey Vs. Public Service Tribunal Lucknow & Ors, SB 316 of 2011, decided on 18.04.2013 proceeded to hold that the period of service spent in a work charged establishment was liable to be included." "Significantly, the Supreme Court in Punjab State Electricity Board and others Vs. Jagjiwan Ram and others, 2009 3 SCC 661 Jaswant Singh & Ors. Vs. Union of India & Ors, 1979 4 SCC 440 and State of Rajasthan Vs. Kunji Raman, 1997 2 SCC 517 considered the issue again in the context of a claim of work charged employees for grant of time bound promotional scale and promotional increments. Following what was held in Jaswant Singh and Kunji Raman , the Supreme Court in Jagjiwan Ram laid down the law in the following terms: "9. We have considered the respective submissions. Generally speaking, a work charged establishment is an establishment of which the expenses are chargeable to works. The pay and allowances of the employees who are engaged on a work charged establishment are usually shown under a specified sub-head of the estimated cost of works. The work charged employees are engaged for execution of a specified work or project and their engagement comes to an end on completion of the work or project. The source and mode of engagement/recruitment of work charged employees, their pay and conditions of employment are altogether different from the persons appointed in the regular establishment against sanctioned posts after following the procedure prescribed under the relevant Act or rules and their duties and responsibilities are also substantially different than those of regular employees. 10. The work charged employees can claim protection under the Industrial Disputes Act or the rights flowing from any particular statute but they cannot be treated at par with the employees of regular establishment. They can neither claim regularization of service as of right nor they can claim pay scales and other financial benefits at par with regular employees. If the service of a work charged employee is regularized under any statute or a scheme framed by the employer, then he becomes member of regular establishment from the date of regularization. His service in the work charged establishment cannot be clubbed with service in a regular establishment unless a specific provision to that effect is made either in the relevant statute or the scheme of regularization. In other words, if the statute or scheme under which service of work charged employee is regularized does not provide for counting of past service, the work charged employee cannot claim benefit of such service for the purpose of fixation of seniority in the regular cadre, promotion to the higher posts, fixation of pay in the higher scales, grant of increments etc. ................... .................. 21. For the reasons mentioned above, we hold that the respondents were not entitled to the benefit of time bound promotional scales / promotional increments on a date prior to completion of 9/16/23 years regular service and the High Court committed serious error by directing the appellants to give them benefit of the scheme by counting their work charged service."" ""Noticing the law as laid down by the Full Bench of this Court in Pavan Kumar Yadav and the subsequent judgements of the Supreme Court in Jagjiwan Ram , Jaswant Singh and Kunji Raman , a Division Bench of this Court in Jai Prakash held as follows: "It, therefore, follows from the aforesaid judgments of the Supreme Court that the work charged employees constitute a distinct class and they cannot be equated with regular employees and that the work charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant rules. We are conscious that in Special Appeal Defective No.842 of 2013 (State of U.P. & Ors. Vs. Panchu) that was decided on 2 December 2013, a Division Bench, after taking notice of the judgment of the Supreme Court in Narata Singh , observed that the rationale which weighed with the Supreme Court should also govern the provisions of the Civil Service Regulations, but what we find from a perusal of the aforesaid judgment of the Division Bench is that the decisions of the Supreme Court in Jagjiwan Ram , Jaswant Singh and Kunji Raman as also the Full Bench judgment of this Court in Pavan Kumar Yadav had not been placed before the Court. These decisions of the Supreme Court and the Full Bench of this Court leave no manner of doubt that in view of the material difference between an employee working in a work charged establishment and an employee working in a regular establishment, the service rendered in a work charged establishment cannot be clubbed with service in a regular establishment unless there is a specific provision to that effect in the relevant Statutes. Article 370(ii) of the Civil Service Regulations specifically, on the contrary, excludes the period of service rendered in a work charged establishment for the purposes of payment of pension and we have in the earlier part of this judgment held that the decision of the Supreme Court in Narata Singh , which relates to Rule 3.17(i) of the Punjab Electricity Rules, does not advance the case of the appellant. In this view of the matter, the appellant is not justified in contending that the period of service rendered from 1 October 1982 to 5 January 1996 as a work charged employee should be added for the purpose of computing the qualifying service for payment of pension."
(3.) More recently a Division Bench of this Court in Navrang Lal Srivastava tracing the various judgments rendered from time to time on this issue, explained the position in law as under: "Thus, there is no manner of doubt that the service rendered by an employee in a work charged establishment cannot be counted for the purpose of computing the qualifying service of ten years for payment of pension. The submission of learned counsel for the petitioner that Article 370(ii) of the Regulations should be read down to include the service rendered in a work charged establishment for payment of pension, therefore, cannot be accepted."" ""It would not be out of place to note here that against the judgment rendered in Raj Dularey Dubey , a Special Leave Petition was carried to the Supreme Court in Engineer in Chief, Lok Nirman Vibhag & Ors. Vs. Raj Dularey Dubey, Special Leave Petition No. 36919 of 2013 and the same came to be dismissed on 19 January 2015 in the following terms: "Having heard the parties, we are not inclined to interfere with the impugned order. The special leave petition is dismissed. However, petitioners are directed to pay the respondent consequential benefit including arrears of salary, post retirement benefits including pension with statutory interest to which the respondent is entitled pursuant to the High Court's order within two months.";