JUDGMENT :

VIVEK CHAUDHARY, J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.

2. Present writ petition is filed by the petitioner challenging the orders dated 22.11.2022 and 17.1.2023 whereby the respondents have rejected the claim of the petitioner for payment of gratuity and pension of late husband of the petitioner on the ground that husband of the petitioner was not working against the sanctioned post.

3. The husband of the petitioner was appointed on the post of Assistant Cost Accountant on probation basis on 18.06.1988 and he continued to work regularly. The husband of the petitioner expired on 11.06.2019. The husband of the petitioner was working regularly and regular service benefits including the revised pay scale and allowances and benefit of ACP were given by the respondents from time to time.

4. It is sad to note that petitioner's husband services were never regularized despite his having spent the entire working life with the department. During his service period, petitioner was also provided all the service benefits as provided to the regular employees. Thus, for all practical purposes, petitioner was treated as regular employee.

5. The Supreme Court has repeatedly held that the State Government cannot be involved in exploitative labour practice. It cannot engage persons on temporary basis for long periods refusing to grant them benefits of regular employees. Suffice would be to refer to the judgment in case of Prem Singh vs. State of U.P. and Others, (2019) 10 SCC 516. The Supreme Court in the said judgment, held:

“31. In the aforesaid facts and circumstances, 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 regularised. However, 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 benefited by the services rendered by them in the heydays of their life on less salary in work-charged establishment.

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36. There are some of the employees who have not been regularised in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in State of Karnataka vs. Umadevi, (2006) 4 SCC 1 : 2006 SCC (L&S) 753. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one-time measure, the services be regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.”

6. Therefore, in view of the law settled by the Supreme Court settled by the Supreme C