- (1.) Heard learned counsel for the petitioners and learned Standing Counsel.
(2.) The petitioners have approached this Court by filing the present writ petition with the following main prayers:- "Issue a writ, order or direction in the nature of mandamus thereby directing/commanding the opposite parties to count the entire length of services of the petitioners since the date of their initial appointment for the purposes of all service benefits with the arrears of their salary including consequential benefits after counting the same. Issue a writ, order or direction in the nature of mandamus thereby commanding/directing the opposite parties to comply with the judgment and orders of their Lordships of the Hon'ble Supreme Court in Habib Khan Versus State of Uttrakhand-Civil Appeal No. (S) 10806/2017 and Rame Deo Tiwari versus State of UP and others-Civil Appeal No. 2896 of 2018. That this Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate to set aside the Regulation 370 of the Civil Service Regulation (CSR) on account of being ultra vires."
(3.) Learned counsel for the petitioner submits that in an identical case, a Division Bench of this Court has passed an order on 12.09.2019, which reads as under : "Heard Shri Rakesh Kumar, learned counsel for the petitioners and Shri Manish Mishra learned Standing Counsel for the respondents-State. By this writ petition, the petitioners are praying for issuance of writ of mandamus directing the respondents to provide them pensionary and other post retiral benefits by counting their service rendered into the work charge establishment as qualifying service for the said purposes. The issue involved in this writ petition has been considered by the Apex Court in Civil Appeal No.6798 of 2019 (Prem Singh Vs. State of Uttar Pradesh and others). The Apex Court dismissed the appeal filed by the State. The relevant paras no.32 to 36 are reproduced hereinafter:- "32. 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 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. 33. 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. 34. 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. 35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka and Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. 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." In view of the aforesaid, the relief as claimed in the writ petition is granted in terms of the order passed by the Apex Court. The impugned order dated 15.04.2019 issued by the respondent no.22 (Annexure No.1) is quashed and the respondents are directed to consider the claim of the petitioners in light of order passed by the Apex Court in the case of Prem Singh (supra), within a period of 30 days from the date of filing of the certified copy of this order." ;