Citation Codes

Equivalent Citations

citation codes

Case Number

Writ Petition (S/S) No. 722 of 2014, Writ Petition (S/S) No. 895 of 2013, Writ Petition (S/S) No. 894 of 2013, Writ Petition (S/S) No. 716 of 2014, Writ Petition (S/S) No. 717 of 2014, Writ Petition (S/S) No. 720 of 2014, Writ Petition (S/S) No. 721 of 2014, Writ Petition (S/S) No. 723 of 2014, Writ Petition (S/S) No. 722 of 2014; Writ Petition (S/S) No. 895 of 2013; Writ Petition (S/S) No. 894 of 2013; Writ Petition (S/S) No. 716 of 2014; Writ Petition (S/S) No. 717 of 2014; Writ Petition (S/S) No. 720 of 2014; Writ Petition (S/S) No. 721 of 2014; and Writ Petition (S/S) No. 723 of 2014

Attorney(S)

Mr. U.S Bhakuni, Advocate present for the petitioners.
Mr. B.P.S Mer, learned Brief Holder present for the State of Uttarakhand/respondent Nos. 1 to 3.

Judges

Sudhanshu Dhulia, J.

Acts

Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961
provisions of Article 368

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Smart Summary

Structured Summary of the Opinion (Sudhanshu Dhulia, J.)

Factual and Procedural Background

The petitioners in connected writ petitions were engaged as daily-rated employees in the Forest Department of the erstwhile State of Uttar Pradesh and continued in that capacity when the State of Uttarakhand was created on 09.11.2000. Each petitioner was later regularized in 2003 or 2004, and all have since retired between 2012 and 2014. The opinion lists, for each petitioner, the date of initial engagement as a daily-wager, the date of regularization, the date of superannuation and the period of regular service after regularization.

After retirement, the petitioners claimed pensionary benefits which were denied by the respondents on the ground that the petitioners had not completed the required qualifying service as per the respondents' calculation. The petitioners therefore filed the present writ petitions seeking pensionary benefits.

Legal Issues Presented

Whether the petitioners' service rendered prior to their formal regularization as daily-rated employees can be treated as qualifying service for pension under Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961 and the Civil Service Regulations (notably Regulations 361, 368 and 369).
Given that Government Order dated 01.07.1989 reduced qualifying service from 20 years to 10 years, whether the petitioners (who, after regularization, have periods of regular service ranging around nine to nearly ten years) can be treated as having ten years' qualifying service by counting appropriate pre-regularization service.
Whether any of the statutory exceptions in Rule 3(8) — service in a non-pensionable establishment, work-charged establishment, or a post paid from contingencies — apply so as to exclude the petitioners' pre-regularization service from counting as qualifying service.

Arguments of the Parties

Petitioners' Arguments

The petitioners relied on Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961, which defines “qualifying service” in terms of Article 368 of the Civil Service Regulations and provides that continuous temporary service followed by confirmation in the same or any other post shall count as qualifying service except where specific exceptions apply.
The petitioners also relied on Regulations 361, 368 and 369 of the Civil Service Regulations which set out the conditions under which service qualifies for pension (service under Government; substantive and permanent employment; salary paid by Government; and requirement of a substantive office on a permanent establishment).
By reason of prior litigation and directions to frame rules for regularization of daily-wagers, the petitioners contend they were regularized on existing substantive vacancies and therefore their prior temporary/daily-rated service should be treated as qualifying service for pension purposes.

Respondents' Position

The respondents' main contention (as reflected in the record) is that none of the petitioners completed the requisite 10 years of regular service and therefore are not entitled to pensionary benefits.
Respondents did not dispute that (a) the post of Forest Guard is a pensionable post, and (b) the service was under Government and salary was paid by Government. Their objection focused on the contention that the employment was not substantive and permanent for the requisite qualifying period.
In the counter-affidavit(s) filed, the State did not demonstrate that the petitioners had served in a non-pensionable establishment, a work-charged establishment, or in posts paid from contingencies — i.e., the respondents did not establish the applicability of the exceptions in Rule 3(8).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of U.P. v. Putti Lal, (2006) 9 SCC 337	The principle that daily-wagers performing duties similar to regular government employees are entitled to the minimum of the pay scale (equal pay for equal work); and that qualification for regularization should be judged by the qualifications relevant on the date the employee was taken on as a daily-wager. The judgment also addresses treatment of regularization schemes and sympathetic consideration for long-serving daily-wagers.	The Court treated the petitioners as similarly placed to the employees considered in Putti Lal, noting that those cases supported regularization and entitlement to benefits. The judgment was cited to support the conclusion that the petitioners, who were regularized following judicial intervention, can be presumed to have been working on substantive vacancies and to justify treating their service as qualifying for pension.

Court's Reasoning and Analysis

The court proceeded by first identifying the statutory and regulatory framework governing pensionary qualification:

Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961 defines “qualifying service” by reference to Article 368 of the Civil Service Regulations and provides that continuous temporary or officiating service followed without interruption by confirmation in the same or any other post shall count as qualifying service except where specified exceptions (non-pensionable establishments, work-charged establishments, posts paid from contingencies) apply.
Regulations 361, 368 and 369 of the Civil Service Regulations set out cumulative conditions for qualifying service: the service must be under Government, employment must be substantive and permanent, and the service must be paid by Government; additionally, service qualifies only if the officer holds a substantive office on a permanent establishment.

Applying these provisions to the facts before it, the court made the following analytical steps (as set out in the opinion):

The court accepted as undisputed that the post of Forest Guard is a pensionable post and that conditions “service under Government” and “salary paid by Government” were satisfied for the petitioners; thus only the second condition — whether the employment was substantive and permanent for qualifying purposes — remained in dispute.
The court examined Rule 3(8)'s exceptions (non-pensionable establishment, work-charge establishment, posts paid from contingencies) and observed that the respondents had not shown that any of these exceptions applied to the petitioners' pre-regularization service.
Given the absence of proof of any exception, the court reasoned that the petitioners' pre-regularization service should be presumed to have been temporary service on a substantive vacancy, since the petitioners were ultimately regularized on substantive posts.
The court referenced the background of prior litigation concerning daily-rated employees: writ petitions before the Allahabad High Court and the Special Appeal which resulted in State of U.P. v. Putti Lal (2006) 9 SCC 337, where the Supreme Court directed that daily-wagers performing similar duties should be entitled to the minimum of the pay scale and discussed regularization principles. The court considered the petitioners to be in a position analogous to those in Putti Lal, having been regularized after judicial intervention.
On these factual and legal bases, and noting the absence of contrary material from the State (including no evidence that the petitioners served in excluded categories), the court concluded that it must presume an existing substantive vacancy prior to each petitioner's regularization and that the petitioners' overall service suffices to permit treating them as having completed 10 years of qualifying service under the post-1989 reduced requirement.
The court also noted that special equity lay in favour of the petitioners under the peculiar facts and circumstances of the case, reinforcing the conclusion that the petitioners should be treated as having 10 years of qualifying service.

Holding and Implications

Holding:

The writ petitions succeed. A mandamus is issued to the respondent authorities to grant pensionary benefits to the petitioners, treating that each petitioner has put in ten years of qualifying service.

Direct implications for the parties:

The respondents are directed to grant pensionary benefits to the petitioners on the basis that each has completed 10 years of qualifying service.
The decision operates to require the respondent authorities to compute and provide pensionary entitlements taking the petitioners' qualifying service as ten years (for the purpose of pension eligibility), in light of their regularization and the presumption of prior substantive vacancies.

Broader implications:

This opinion applies the existing statutory/regulatory definitions and the cited Supreme Court authority to the specific factual matrix of the petitioners. The opinion does not elaborate any broader legal doctrine beyond its application to these facts; its immediate effect is to direct relief for the petitioners named in the connected writ petitions.

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Laxmi Dutt Joshi Petitioner v. Principal Secretary Forest Department, Uttarakhand Dehradun And Others S

Sudhanshu Dhulia, J. (Oral):— 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:

Sl. No. 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 v. 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 v. 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 v. 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 v. 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 v. 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 v. 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 v. 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 v. State 16.07.1973 16.12.2003 31.01.2013 09 years 11 months 15 days

2. 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.

3. 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 (from hereinafter referred to as “the Rules, 1961”) which read as under:

“Definitions

(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”.

4. 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.

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.”

5. 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.

6. 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 substantive and permanent and thirdly, the salary must be paid by Government.

7. 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?

8. 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 nonpensionable 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 related to the daily rated employees in the Forest Department.

9. 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 Hon'ble Allahabad High Court which ultimately went in a Special Appeal which was allowed by the Division Bench of the Hon'ble 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 Hon'ble 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 Hon'ble Apex Court. The case under reference is State of U.P v. 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.

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.”

10. 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 Hon'ble High Court as well as the Hon'ble Apex Court and were ultimately regularized in the year 2003-04.

11. 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 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 v. Principal Secretary Forest Department) 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.

12. 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.

Laxmi Dutt Joshi Pet... v. Principal Secretary ...