1. Mr. U.S. Bhakuni, Advocate present for the petitioners.
2. Mr. B.P.S. Mer, learned Brief Holder present for the State of Uttarakhand/ respondent Nos.1 to 3.
3. All the petitioners in the connected writ petitions before this Court were appointed on daily rated basis in the Forest Department in the erstwhile State of Uttar Pradesh and continued to remain on daily rated basis in the Forest Department, even after the appointed date, when State of Uttarakhand was created i.e. on 09.11.2000. Each of the petitioner who is before this Court was working earlier on daily rated basis and subsequently regularized in service in the year 2003 and 2004 (as the case might be in each case). By now, all the petitioners have reached the age of superannuation and retired from service between the years 2012 to 2014. Three dates i.e. the date of their first engagement, date of their regularization and date of their superannuation, are given below:- 3 Sl. Writ Petition Date of engagement as daily wager Date of regularization Date of superannuation Period of regular service
1. Writ Petition No. 722(S/S) of 2014 Laxman Dutt Joshi Vs. State 01.12.1975 15.09.2003 01.12.2012
09 years
02 months
14 days
2. Writ Petition No. 717(S/S) of 2014 Thakur Singh Dosad Vs. State 19.03.1975 15.09.2003 01.12.2012
09 years
02 months
14 days
3. Writ Petition No. 716(S/S) of 2014 Harish Singh Bora Vs. State January,1974 24.01.2004 01.12.2014
09 years
11 months
07 days
4. Writ Petition No. 897(S/S) of 2013 Bhupal Singh Vs. State 22.07.1973 15.09.2003 31.07.2012
08 years
10 months
16 days
5. Writ Petition No. 894(S/S) of 2013 Narayan Singh Bisht Vs. State 04.07.1973 27.01.2004 30.04.2013
09 years
03 months
03 days
6. Writ Petition No. 720(S/S) of 2014 Dayanand Pandey Vs. State 01.08.1975 15.09.2003 01.12.2012
09 years
02 months
14 days
7. Writ Petition No. 721(S/S) of 2014 Janardan Pandey Vs. State March,1976 21.01.2004 01.12.2014
09 years
11 months
20 days
8. Writ Petition No. 723(S/S) of 2014 Mohan Chandra Joshi Vs. State 16.07.1973 16.12.2003 31.01.2013
09 years
11 months
15 days
4. The petitioners after retiring from their service claim pensionery benefits which was denied to them by the respondents authorities. Hence, present writ petitions before this Court.
5. It is an admitted position that earlier a Government employee had to complete 20 years of qualifying service in order to get pension. Vide Government Order dated 01.07.1989, this period of qualifying service has been reduced from 20 years to 10 years. All the same, since none of the petitioners had completed 10 years of regular service according to the respondents, they have been denied their pension. The petitioners on the other hand contend that qualifying service is defined under Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961 4 (from hereinafter referred to as the Rules, 1961) which read as under :- Definitions 3 (1) (2) (3) (4) (5) (6) (7) (8) Qualifying service means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations: Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except-
(i) periods of temporary or officiating service in a non-pensionable establishment,
(ii) periods of service in a work-charged establishment, and
(iii) periods of service in a post paid from contingencies, shall also count as qualifying service. NOTE :- If service rendered in a non-pensionable establishment, work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service.
6. Learned counsel for the petitioners relied upon the other relevant provisions of law namely Regulations of 361, 368 and 369 of Civil Service Regulations which are necessary for our purposes which read as under:- Conditions of qualifications-
361. The service of an officer does not qualify for pension unless it conforms to the following three conditions:-- First The service must under Government. Second The employment must be substantive and permanent. 5 Third The service must be paid by Government.
368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.
369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was not on actual duty on the first day on which the establishment was again re-employed.
7. The factual position as placed by the petitioners before this Court regarding their initial date of their appointment on daily rated basis, date of regularization and date of superannuation from the service etc., are not being denied by the respondents.
8. A bare perusal of the aforesaid provisions, make it clear that primarily a Government employee who seeks pensionery benefits, must establish that the post on which he is working (which is in the present case would be of a Forest Guard) is a pensionable post. This fact is not denied by the respondents that the post of Forest Guard in the Forest Department is a pensionable post. Apart from the above, one has to fulfill the condition in order to qualify for pension which is given under Regulations 361 of Civil Service Regulations which is already referred above. Firstly the service must be under Government, secondly the employment must be 6 substantive and permanent and thirdly, the salary must be paid by Government.
9. According to the respondents, there is no dispute as regarding condition Nos. 1 & 3, i.e. the service was under Government and salary was being paid by the Government. The only objection is that the employment was not substantive and permanent. The petitioners have relied upon Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961 which has already been referred above. It is also an admitted fact that from the date of their regularization which in each case is more than 8 years 10 months and more is not in doubt. In some cases petitioners are short of 10 years by barely a few days. The question is what is the status of the petitioners for the services rendered by them prior to their regularization?
10. The only exception which would debar the petitioners from pensionable benefit is Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961 which is that the petitioners would be working in a non- pensionable establishment, which is not a case here. Secondly, whether the petitioners were working in a work-charge establishment is not a case at hand and thirdly whether the petitioners period of service is on the post, which is paid by contingency is also not the case as nothing has been shown to this Court by the State counsel in the counter affidavit. For the remaining service i.e. the service which precedes the date of regularization, it will be presumed that the petitioners were working though in a temporary capacity but on a substantive vacancy, as they could only be regularized on a substantive post. In order to elaborate this aspect, one needs to go to the background of the case which is 7 related to the daily rated employees in the Forest Department.
11. According to the petitioners, the bulk of the Forest Department work is being done by the daily rated employees but since they were neither regularized nor paid regular salary, they filed writ petitions before the Honble Allahabad High Court which ultimately went in a Special Appeal which was allowed by the Division Bench of the Honble Allahabad High Court with the directions to the Government of U.P. to frame Rules and regularize such daily rated employees. The State of U.P meanwhile went before the Honble Apex Court wherein a statement was given by the State of U.P that they have now framed the Rules of Regularization, in view of the statement, the writ petition was disposed of by the Honble Apex Court. The case under reference is State of U.P. and others Vs. Putti Lal reported in (2006) 9 SCC 337, the relevant paragraph nos. 5 and 6 of the aforesaid judgment read as under:-
5. In several cases this Court applying the principle of equal pay for equal work has held that a daily-wager, if he is discharging the similar duties as those in the regular employment of the Government, should at least be entitled to receive the minimum of the pay scale though he might not be entitled to any increment or any other allowance that is permissible to his counterpart in the Government. In our opinion that would be the correct position and we, therefore, direct that these daily-wagers would be entitled to draw at the minimum of the pay scale being received by their counterparts in the Government and would not be entitled to any other allowances or increment so long as they continue as daily-wagers. The question of their regular absorption will obviously be dealt with in accordance with the statutory rules already referred to. 8
6. So far as the State of Uttaranchal is concerned, a scheme for regularization of daily workers has been produced before us which prima facie does not appear to be objectionable excepting the provision regarding qualification for regularization. Be it stated that the qualification essential for being regularized would be the qualification as was relevant on the date a particular employee was taken in as a daily-wager and not the qualification which is being fixed under the scheme. The fact that the employees have been allowed to continue for so many years indicates the existence or the necessity for having such posts. But still it would not be open for the Court to indicate as to how many posts would be created for the absorption of these daily-wage workers. Needless to mention that the appropriate authority will consider the case of these daily-wagers sympathetically who have discharged the duties for all these years to the satisfaction of their authority concerned. So far as the salary is concerned, as we have stated in the case of the State of Uttar Pradesh, a daily-wager in the State of Uttaranchal would be also entitled to the minimum of the pay scale as is available to his counterpart in the Government until his services are regularized and he is given regular scale of pay.
12. The petitioners are such daily rated employees who are absolutely similarly placed as those referred above, meaning thereby they have continued on a daily rated basis since long and were only regularized by the intervention of the Honble High Court as well as the Honble Apex Court and were ultimately regularized in the year 2003-04.
13. It is again an admitted fact that the petitioners have been regularized on already existing substantive vacancies though neither the petitioners nor the respondents have been able to place before this Court the exact date on which the substantive vacancy arose on which petitioners were ultimately regularized but the 9 presumption would always fall in favour of the petitioners that a vacancy was already existing on the date when the petitioners services were regularized. For example, the petitioner in Writ Petition No. 716 of 2014 (Harish Singh Bora Vs. Principal Secretary Forest Department & others) who was engaged as a daily rated employee in January, 1974, was regularized on 24.01.2004 and has put in nine years eleven months and seven days of service as a regular employee. It will be presumed that prior to the date of his regularization, the vacancy was already existing on which undeniably he was working, meaning thereby the petitioners were regularized on an existing substantive vacancy and therefore minimum cut off years by which they fall short of qualifying service i.e. 10 years must be granted to them and it has to be presumed that each of the petitioners has done at least 10 years of qualifying service in the department. Under the peculiar facts and circumstances of the case, this Court also notices that a special equity also lies in favour of the petitioners.
14. In view of the above, the writ petitions succeed and a mandamus is hereby issued to the respondent authorities to give pensionery benefits to the petitioners, treating that each of the petitioner has put in 10 years of qualifying service. (Sudhanshu Dhulia, J.) 10.12.2015 Ankit