2023 Supreme(All) 1427

IN THE HIGH COURT OF ALLAHABAD
SARAL SRIVASTAVA, J.
Awadhesh Kumar Srivastava – Appellant
Versus
State Of U.P. And Others – Respondents
Writ A. No.746 of 2023
Decided on : 03-07-2023

The exclusion of service rendered by an employee on the work-charged establishment or daily wager from Section 2 of the U.P. Act No.1 of 2021 is hit by Article 14 of the Constitution of India for the reason that the Apex Court has held that the exclusion of service rendered by an employee on the work-charged establishment from the regular service would amount to treating equals as unequal.

Headnote:

PENSION - QUALIFYING SERVICE - U.P. ACT NO.1 OF 2021 - VALIDITY - SECTION 2 OF ACT NO.1 OF 2021 - ARBITRARY AND DISCRIMINATORY - VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA - JUDGMENT OF APEX COURT IN PREM SINGH'S CASE (2019) 10 SCC 516 - BINDING ON STATE GOVERNMENT - SERVICES RENDERED BY PETITIONER AS DAILY WAGER AND WORK-CHARGED EMPLOYEE TO BE COUNTED FOR DETERMINING QUALIFYING SERVICE FOR PENSION - PETITIONER ENTITLED TO OLD PENSION SCHEME.

Fact of the Case:

Petitioner, engaged as a daily wager on the post of Gaze Reader on 01.05.1989, was subsequently appointed to the work-charged establishment on 25.07.1997. His service was regularized on 29.09.2011. Petitioner received a letter dated 31.05.2022 from the office of respondent no.5 informing him that he is retiring on 30.06.2022 and papers relating to the benefit of the New Pension Scheme in respect of the petitioner were forwarded to the concerned department. Petitioner challenged the said letter, praying that the services rendered by him as a daily-wager and work-charged employee be counted in his regular service for pension.

Finding of the Court:

1. Section 2 of U.P. Act No.1 of 2021, defining 'qualifying service' arbitrarily excludes from the term 'qualifying service' the service rendered as a daily wager or under work-charged establishment by an employee before regularization. 2. The U.P. Act No.1 of 2021 does not satisfy the three tests laid down by the Apex Court in various pronouncements to override a judgment. 3. The action of the respondents in taking the work from the petitioner as a daily wager, and thereafter work-charged employee for about 21 years by paying him low wages is nothing but an arbitrary exercise of powers by the respondents and is an unfair labour practice. 4. The petitioner's service since the date of his engagement as daily wager i.e. on 01.05.1989 shall be counted along with regular service for the grant of pensionary benefit to the petitioner. 5. The petitioner cannot be said to have entered into service after 01.04.2005, inasmuch as it is undisputed that he was engaged as a daily wager on the post of Gaze Reader on 01.05.1989. 6. The State cannot take shelter of the New Pension Scheme notified in the year 2005 to contend that as the service of the petitioner has been regularized after the introduction of the New Pension Scheme, therefore, the petitioner is not entitled to Old Pension Scheme.

Issues: 1. Whether Section 2 of U.P. Act No.1 of 2021, defining 'qualifying service' arbitrarily excludes from the term 'qualifying service' the service rendered as a daily wager or under work-charged establishment by an employee before regularization? 2. Whether the U.P. Act No.1 of 2021 satisfies the three tests laid down by the Apex Court in various pronouncements to override a judgment? 3. Whether the action of the respondents in taking the work from the petitioner as a daily wager, and thereafter work-charged employee for about 21 years by paying him low wages is nothing but an arbitrary exercise of powers by the respondents and is an unfair labour practice? 4. Whether the petitioner's service since the date of his engagement as daily wager i.e. on 01.05.1989 shall be counted along with regular service for the grant of pensionary benefit to the petitioner? 5. Whether the petitioner can be said to have entered into service after 01.04.2005, inasmuch as it is undisputed that he was engaged as a daily wager on the post of Gaze Reader on 01.05.1989? 6. Whether the State can take shelter of the New Pension Scheme notified in the year 2005 to contend that as the service of the petitioner has been regularized after the introduction of the New Pension Scheme, therefore, the petitioner is not entitled to Old Pension Scheme?

Ratio Decidendi: 1. The Apex Court in Prem Singh's case (2019) 10 SCC 516 held that the exclusion of service rendered by an employee on the work-charged establishment from the regular service would amount to treating equals as unequal. Further, there is no rationale in excluding the service of an employee as work-charged or daily-wager from regular service for determining the qualifying service for pension whereas the period of service rendered by an employee as temporary or permanent post is liable to be counted for the purpose of qualifying service when the nature of duties performed by a person appointed as daily wager or on work-charged establishment or temporary or permanent post are similar and identical. 2. The action of the State in excluding the service rendered by an employee on the work-charged establishment or daily wager from Section 2 of the U.P. Act No.1 of 2021 is hit by Article 14 of the Constitution of India for the reason that the Apex Court has held that the exclusion of service rendered by an employee on the work-charged establishment from the regular service would amount to treating equals as unequal. Further, there is no rationale in excluding the service of an employee as work-charged or daily-wager from regular service for determining the qualifying service for pension whereas the period of service rendered by an employee as temporary or permanent post is liable to be counted for the purpose of qualifying service when the nature of duties performed by such employees are akin and similar to the nature of duties performed by the employee appointed on a temporary and permanent post in accordance with the provisions of service rules framed by the State Government and their services are liable to be counted for determining qualifying service. 3. The accrued or vested right cannot be taken away by an amendment. The right of work charge employee or daily wager to include their service rendered under work charge establishment or daily-wager with regular service for determining qualifying service for pension has been recognized by the Apex Court in Prem Singh's case, therefore, such a right of an employee cannot be taken away by enacting a law which is hit by Article 14 of the Constitution of India.

Final Decision: The order dated 31.05.2022 passed by respondent no.5-Executive Engineer, Investigation & Planning (Water Resources), Division Mirzapur (Fatehi Irrigation Colony), Mirzapur to the extent it grants the benefit of New Pension Scheme to the petitioner is set aside. Consequently, the writ petition is allowed without any order to as to cost. The respondent concerned is directed to place the petitioner in Old Pension Scheme and calculate his pension by adding the service w.e.f. 01.05.1989 with regular service. The petitioner is further directed to deposit the amount of the Employee's Contributory Fund which he had received from the respondents before the pension is released to him. The aforesaid exercise shall be completed by the respondents within three months from the date of production of a certified copy of this order.