Service rendered in the work-charged establishment should be counted as qualifying service for retirement benefits, and any classification to the contrary would be discriminatory and irrational.

ORDER :

(Sanjaya Kumar Mishra, J.)

By filing this Letters Patent Appeal, the petitioner in W.P.(S) No.5323 of 2022, has assailed order passed by learned Single Judge on 21.12.2022, disposing his writ application on the ground that the entire retirement benefits have already been paid to the petitioner and the petitioner is at liberty to opt for Old Pension Scheme in terms of Notification dated 21.09.2022 issued by the Finance Department, Government of Jharkhand.

2. Counsel for the appellant-petitioner submits that in this case, the appellant-petitioner is entitled to the retirement benefits since the date he was engaged in the work-charged establishment.

3. The facts of the case are not in dispute. Petitioner had filed the writ petition with a prayer to issue a writ of mandamus directing the respondents to pay pensionary benefits to the petitioner, counting his initial date of joining from 01.12.1981. It is needless to go into the pleadings raised by the petitioners, suffice it would be to take into consideration the Counter Affidavit filed by the Executive Engineer, Drinking Water & Sanitation Division, Pakur. He has categorically admitted that the petitioner was initially appointed in work-charged establishment on 01.12.1981 and on the same day he took over the charge. Petitioner was regularized by Office Order No. 30 contained in Memo No.702 dated 23.07.2005, which is Annexure 2 to the writ petition, with effect from the date of issuance of the office order. Thereafter the petitioner continued to work till 2022 and on 31.01.2022 petitioner was retired on superannuation. The General Provident Fund, Group Insurance and Leave Encashment were calculated taking into consideration his regular appointment with effect from 23.07.2005 and the amounts have already been disbursed in favour of the petitioner. He has also been paid pension calculating his date of service from the date of regular appointment.

4. The question of law involved is not any more res-integra and it has been settled in various judgments by the Supreme Court including one in the case of Prem Singh versus State of Uttar Pradesh and Others, reported in (2019) 10 SCC 516, wherein the Supreme Court has held that the imposition of rider that such service, i.e., service in the work-charged establishment, to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. The Supreme Court has further held that 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. The Supreme Court further held that it would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 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 the opinion of the Supreme Court impermissible classification has been made under Rule 3(8) of the Uttar Pradesh Retirement Benefit Rules, 1961. The Supreme Court held that such classification is 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 tem