PREM SINGH v. STATE OF UTTAR PRADESH & Ors.

11 S.C.R. 1075 1075 PREM SINGH v. STATE OF UTTAR PRADESH & ORS. (Civil Appeal No. 6798 of 2019) SEPTEMBER 02, 2019 [ARUN MISHRA, S. ABDUL NAZEER AND M. R. SHAH, JJ.] Service Law: Pension - Computation of qualifying service for grant of pension - Period of work-charged services - Whether can be included in the qualifying service - Employee's service in work- charged establishment for a period of about 37 years - Thereafter regularized in the establishment - On superannuation, claim of the employee for grant of pension by counting the period spent in the work-charged establishment - Claim denied - Writ petition dismissed - Special appeal also dismissed - Appeal to Supreme Court - Held: In view of r.3(8) of Retirement Benefits Rules and Regulations, 361, 368 and 370 of Civil Services Regulations and Para 669 of Financial Handbook Vol. VI relating to engagement of employees in the work-charged establishment, employees in work-charged establishment are not entitled to pension - In the present case appointment of work-charged employee was on monthly salary and the employee was also required to cross the efficiency bar - There was nothing to indicate qualitative difference of the employee from the regular employees - Rather, the employer had misused the very concept of work-charged employment on exploitative terms for the work which was regular and perennial in nature - Note to r.

3(8) of 1961 Rules provides for counting the period of work-charged employment if that period is between two temporary employments or in between temporary and permanent employment - The Note is irrational and discriminatory and makes impermissible classification in not counting the work-charged employment if it is rendered before regularization - In order to make the rule valid and non- discriminatory, Note to r.3(8) is read down that work-charged services rendered even prior to regularization, contingency paid fund employees or non-pensionable establishment shall also be 1075 A B C D E F G H 1076 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment - The provision contained in Regulation 370 and the instructions contained in Para 669 of the Financial Handbook is struck down - Services of some other work-charged employees, who superannuated without being regularized even after rendering service of 30-40 years ought to have been regularized under the Government instructions and also as per the decision in *Uma Devi case - Services of such employees be treated regular and hence be treated entitled to receive pension - Uttar Pradesh Retirement Benefits Rules, 1961 - r.

3(8) - Uttar Pradesh Civil Services Regulations - Regulation 370 - Financial Handbook Vol. VI - Para 669. Allowing the appeals filed by the employees and dismissing those filed by the State/employer, the Court HELD: 1.1 The qualifying service is the one which is in accordance with the provisions of Regulation 368 of Uttar Pradesh Civil Services Regulations i.e. holding a substantive post on a permanent establishment. The proviso to Rule 3(8) of Uttar Pradesh Retirement Benefits Rules, 1961 clarify that continuous, temporary or officiating service followed without interruption by confirmation in the same or any other post is also included in the qualifying service except in the case of periods of temporary and officiating service in a non-pensionable establishment. The service in work-charged establishment and period of service in a post, paid from contingencies shall also not count as qualifying service. The Note appended to Rule 3(8) contains a clear provision to count the qualifying service rendered in work-charged, contingency paid and non- pensionable establishment to be counted towards pensionable service, in the exigencies provided therein. [Paras 10 and 11] [1085-F-H; 1086-B]

1.2 The provisions contained in Regulation 370 of the Civil Services Regulations excludes service in a non-pensionable establishment, work-charged establishment and in a post, paid from contingencies from the purview of qualifying service. Under Regulation 361 of the Civil Services Regulations, the services must be under the Government and the employment must be PREM SINGH v. STATE OF UTTAR PRADESH & ORS. 1077 substantive and permanent basis. Para 669 of the Financial Handbook Vol. VI relating to engagement of employees in the work charged establishment provides that except in the case as mentioned thereunder the members of work-charged establishment are not entitled to any pension or to leave salary or allowances. [Paras 12, 13 and 14] [1086-C-D; 1088-C]

1.3 The appointment of the work-charged employee in the present case had been made on monthly salary and they were required to cross the efficiency bar also. No material indicating qualitative difference from regular employees has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work- charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. [Para 29] [1104-E-G]

1.4 It was unfair on the part of the State Government and its officials to take work from the employees on the work- charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment. [Para 30] [1105-C-E]

1.5 In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a A B C D E F G H 1078 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies. [Para 31] [1105-F]

1.6 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. [Para 32] [1105-G-H; 1106-A- B]

1.7 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. [Para 32] [1106-B-D]

1.8 As it would be unjust, illegal and impermissible to make aforesaid classification to make Rule 3(8) valid and non discriminatory, the provisions of Rule 3(8) has to be read down and held that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund PREM SINGH v. STATE OF UTTAR PRADESH & ORS. 1079 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. [Para 33] [1106-D-E]

1.9 In view of the Note appended to Rule 3(8), which has been 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. [Para 34] [1106-F]

1.10 In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, the services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. [Para 36] [1107-C]