Allahabad High Court: In a bunch of petitions filed relating to the reckoning of dates for the purpose of computation of ‘qualifying service’ for grant of pensionary benefits to an employee having being regularised to a post, Om Prakash Shukla, J. held that ‘qualifying service’ for the purpose of pension shall be reckoned of the writ petitioners’ from the date, when they had been regularised in the regular post as tube well operator. Further, they shall not be entitled to the old pension scheme, as the pension scheme in vogue at the time of their respective regularisation was the New Pension Scheme.
Further, it directed the State to take all steps as per the rules for granting all service benefits as may be applicable to the writ petitioners on being regularised, taking cue from the judgment in Namo Narain Rai v. State of Uttar Pradesh, Writ No. 1326 of 2017. It also held that as far as the return and/or consideration of GPF is concerned, the petitioners are granted the same relief as has been granted in Namo Narain Rai (supra).
The petitioners had been appointed as part time tube well operators during the year 1987 to 1994 and their services were regularised during the year 2008 to 2009. The petitioners have claimed that as and from 18-05-1994, since the government had given them the same scale of pay as that of the regular tube well operators, however the other service benefits like calculation of Assured Career Progression (‘ACP’), pension, GPF, Gratuity etc. have not been given from the said date, thus they are entitled for the same. There is also a further relief being claimed, wherein some of the petitioners have sought the same relief of calculation of ACP, pension, gratuity from the date of their appointment in view of the judgment in Prem Singh v. State of U.P., (2019) 10 SCC 516. Further, some petitioners have also prayed to relate back the date of regularisation to 17-12-1996 i.e the date of issuance of the government order, whereby the cadre of part-time tube well operators/ tube well assistants were abolished under the “UP irrigation department regularisation of part time tube well operators on the posts of tube well operators rules, 1996” (‘Rules 1996’).
It is their case that although they had been regularised in the year 2008 to 2009, however in view of the judgment in Suresh Chandra Tewari v. State of U.P., Civil Misc. Writ Petition No. 30507 of 1994 by a Single Bench, which was subsequently upheld by the Supreme Court, wherein these part time tube well operators have been granted the same emoluments i.e. in the same scale of pay which were given to the regular tube well operators, they have now claimed pensionary benefits etc. by including past services from initial engagement for the purpose.
Issues:
Whether pensionary benefit from the date of granting “part time tube well operators” pay parity with regular tube well operators can be granted?
The Court said that in the instant case, none of the procedure was followed by the Executive Engineer viz. no advertisement was issued; no requisition was made to the Employment Exchange; no selection committee was constituted; and no select list as required under Rule 12 of the U.P. Irrigation Department Tube Well Operators Service Rules, 1953, (‘Rules, 1953’) was published. Thus, the appointment of the petitioners as “part time tube well operators” was a stop-gap arrangement and made by virtue of Government Orders and without following the due procedure prescribed under 1953 Rules.
The Court noted that the writ petitioners were working as “part time tube well operators” (working for less than three hours a day) and were not appointed on any substantive post. Further, it is not in dispute and cannot be disputed that they were not appointed in any sanctioned posts of tube well operators, regular or temporary. Even, it is not the case on behalf of the writ petitioners that their appointment was done after following due procedure of selection. Thus, their appointments remained always irregular.
The Court said that the issue in the said proceedings was not related to regularisation, but was concerned to the question of grant of pay-parity to the part time tube well operators equal to the regular operators on the principle of equal pay for equal work.
Further, it reiterated that appointments of these “part time tube well operators” were not made as per the service rules but under an executive order. The memorandum issued from time to time also clearly mentioned that pension and the like benefits would not accrue in favour of these “part time tube well operators”. They were predominantly engaged with different purposes, mechanisms and conditions of service. Any attempts to treat the persons like petitioners as regularly appointed tube well operators on a par with all respects, would amount to treating unequals as equal and would be discriminatory.
The Court also said that in Suresh Chand (supra) it was clarified that the issue was relating to pay parity only and not relating to regularisation etc. Thus, to now argue that the service of these petitioners be treated and reckoned from the date, they were given the benefits of pay-parity i.e 18-05-1994 would be not only overreaching the clarification given by the Supreme Court but would also be not as per law.
Thus, it was held that pensionary benefit from the date of granting “part time tube well operators” pay parity with regular tube well operators cannot be granted, and the same stands rejected.
Whether the service of these part time tube well operators can be reckoned from the date of promulgation of “U.P Irrigation Department Regularization of Part-time Tube well operators on the posts of Tube well operators Rules, 1996”?
The Court noted that the said rules were framed and made applicable to those part time tube well operators who were appointed prior to 01-10-1986 and continued to work in the said capacity as on the date of promulgation of the said rules. The cut of date mentioned above was amended in the year 2008 and the same was made 13-06-1998.
The Court noted that the entire Government Order (‘GO’) relating to extension of service benefit, dealt with the issue relating to pay parity and is concerning the judgment in Suresh Chandra Tewari (supra), which was based on the principle of equal pay for equal work. Thus, the phrase other service benefits, mentioned in the said GO cannot be stretched to mean pension or similar other benefits, as these benefits are to be found in the rules and not in government order. Further, the State has already amended/ deleted the said phrase in 2003.
The Court said that merely because the part time tube well operators were allowed to work under an interim order by this court, does not make them entitled for other benefits from the said date as it is this part time tube well operators, who have filed the litigation. Thus, continuity by litigation cannot come to the rescue of the petitioners, while determining their pensionary benefits.
The Court said that writ petitioners, therefore, constitute a different cadre then regularly appointed tube well operators, to whom statutory provisions extending benefit in respect to pension, gratuity, leave encashment etc. are not applicable from the initial date of appointment, but from the date they were absorbed in regular services as per the regularisation policy.
The Court said that the services of the petitioners cannot be reckoned from the date of promulgation of Rules, 1996, as the rules of regularisation clearly postulates that the said rules applied to only those part time tube well operators who were appointed prior to 01-10-1986, which is not in this case. Even the challenge to the said rules stands repelled in view of State of Karnataka v. Umadevi (3), (2006) 4 SCC 1
The Court relied on Namo Narain Rai (supra) and reiterated that those services rendered by the “Part time tube well operators” prior to their regularisation, would not be counted for payment of pension, and the pensionary benefit would be given only from the date of their respective regularisation.
Moreover, in view of Registrar General of India v. V. Thippa Setty, (1998) 8 SCC 690 and Union of India v. Sheela Rani, (2007) 15 SCC 230 and State of Haryana v. Jasmer Singh, (1996) 11 SCC 77, it was held that regularisation can be prospective and not retrospective.
Further, in view of the judgment in State of Bihar v. Rajmati Devi, 2022 SCC OnLine SC 669 the new pension scheme would be made applicable to the petitioners after they were regularised.
[Sajeevan Lal v. State of U.P., 2023 SCC OnLine All 23, decided on 23-01-2023]
Judgment by: Justice Om Prakash Shukla.
*Apoorva Goel, Editorial Assistant has reported this brief.
