UDAY PRATAP THAKUR AND ANR. versus THE STATE OF BIHAR AND ORS. on 28 April 2023

1. Feeling aggrieved and dissatisfied with the impugnedjudgment(s) and order(s)passed by the High Court of judicature at Patnain respective letters patent appeals, the respective original writ petitioners– work charged employees, whose services were subsequentlyregularized as per the Work Charged Establishment Revised ServiceConditions (Repealing) Rules, 2013 (hereinafter referred to as “Rules,2013”), have preferred the present appeals.

2. For the sake of convenience, Civil Appeal Nos. 3158-3159 of2023 (Maheshwar Pandey Vs. State of Bihar and Ors.) is being treatedas the lead matter.

2.1 The issue involved in the present appeals is with respect tothe counting of the period of work charged services for the purpose ofcomputing pensionary benefits and the length of pensionable service.

2.2 A Larger Bench of the High Court by the impugned judgmentand order while upholding Rule 5(v) of the Rules, 2013 has held that theperiod spent in the work charged establishment would be counted onlyto the extent of the shortfall in the qualifying period of service for grantof pension, which shall be made up by adding that period spent under thework charged establishment and that the entire period spent under thework charged establishment would not be taken into account.

2.3 The respective original writ petitioners were initially appointedand working under the work charged establishment as work charged.The State Government came out with the Rules from time to time toregularize the services of the work charged employees and also how thework charged services to be counted/considered. Lastly, the StateGovernment framed the Rules, 2013, under which the services of theoriginal writ petitioners came to be regularized.

2.4 One of the clauses, namely, Clause 5(v) provided that oldpension scheme will be applicable on these personnel. It further providedthat granting the pension and gratuity benefits will be calculated with therecognition of regular service of one year for the work charged serviceof every five years and in spite of this, if the minimum pension paidservice is not completed for pension acceptance under the old pension,the benefit of the pension will be given by adding minimum service tothat extent.

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A2.5 Though the original writ petitioners were held to be entitled tothe pension by taking into account the services rendered as work chargedfor the purpose of qualifying period of service for grant of pension, theychallenged Rule 5(v) of the Rules, 2013 to the extent it provided that forthe purpose of counting of pension, regular service of one year for thework charged service of every five years shall be taken into consideration.BAccording to the original writ petitioners, the entire service rendered aswork charged in the work charged establishment is required to be countedand/or considered for the purpose of pension.

2.6 There were differences of opinion in the two Division Benchjudgments with respect to the counting of the period of work chargedCservices for the purpose of computing pensionary benefits and the lengthof pensionable service, therefore, the matter was referred to the LargerBench. The Larger Bench by the impugned judgment and order hasanswered the reference in following terms:- “(a) With respect to addition of the number of years of serviceDrendered in a work charged tenure to the service under regularestablishment, for the purposes of making the service of suchregular employees pensionable, there is practically no substantialdifference in the pronouncements of the two Division Benches inthe case of Sheela Devi (supra) and Binod Kumar (supra). (b)EFor the purposes of pension, only such period from the work-charged tenure would be added for making the service of anemployee which has been regularized to qualify him for pension.(c) While adding such period of work-charged tenure, the moduswould be of granting/counting one year for every five years ofservice rendered under work-charged establishment. If that alsoFleaves some shortfall, then further number of years of work-charged tenure can be taken/added for making the service of theemployee pensionable. (d) For the purposes of giving benefit toan employee for promotion on the selection grade and timeboundpromotion, the entire period of service rendered as work-chargedGemployee can be counted. (e) The Rules and Circular of 2013 arevalid as has been held in Binod Kumar (supra). (f) The Rules andCircular of 2013 are applicable to such work-charged employeeswho have been appointed after 22.10.1984 and prior to 11.12.1990.”

3. The learned counsel appearing on behalf of the appellants hasHvehemently submitted that in fact the respective appellants rendered

services as work charged for approximately more than 30 to 35 years. Itis submitted that they were also granted other benefits like MACP etc.while working as work charged under the work charged establishment.It is submitted that therefore, their earlier services rendered as workcharged employees shall not be wiped out and/or at-least cannot beignored for the purpose of pension.

3.1 It is submitted that the respective appellants were as suchappointed not on a particular project but the appointment was for a work,which was regular and periodical in nature for a monthly salary and theywere working in the Government department. It is submitted thattherefore, their services were not qualitatively different from regularemployees.

3.2 It is submitted that it was unfair on the part of the StateGovernment to take work from them for periods depriving them of theirdue emoluments. It is submitted that all the appellants were appointedafter their names were called from the Employment Exchange.

3.3 It is submitted that as observed and held by this Court in thecase of Prem Singh Vs. State of Uttar Pradesh and Ors., (2019) 10SCC 516, the services rendered as work charged is to be counted forpensionary benefits. Learned counsel appearing on behalf of the appellantshas heavily relied upon the paragraphs 29, 30, 31, 32 and 36 of the saiddecision.

4. Learned counsel appearing on behalf of the State while opposingthe present appeals has vehemently submitted that in fact taking intoconsideration the fact that despite having worked for a longer period aswork charged, thereafter when they were regularized and they werefound short of qualifying service for pension and on that ground, theymay not be denied the pension solely on the ground that they have notcompleted the qualifying service for pension, a conscious decision hasbeen taken by the State in favour of such employees providing that forthe purpose of qualifying service, the services rendered as work chargedis to be counted to make them eligible for pension.

4.1 It is submitted that their services rendered as work chargedcannot be counted for the purpose of actual pension, otherwise, thereshall not be any difference between a regular employee and a workcharged employee. It is submitted that till the work charged employee isregularized, he continues to be work charged employee. It is submitted A

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Athat therefore, the Larger Bench of the High Court has rightly observedand held that for the purpose of pension, only such period from the workcharged tenure would be added for making the service of an employeeto qualify him for pension and while adding such period of work chargedtenure, the modus operandi for counting would be one year for everyfive years of service rendered under work charged establishment and ifBthat also leaves some shortfall, then further number of years of workcharged tenure can be taken / added for making the service of theemployee pensionable. It is submitted that therefore, the High Court hasrightly upheld the vires of Rules, 2013.

4.2 It is submitted that insofar as the reliance placed upon theCdecision of this Court in the case of Prem Singh (supra) relied upon onbehalf of the appellants is concerned, it is submitted that the said decisionshall not be applicable at all as the reliance placed upon the said decisionis absolutely misplaced.

4.3 It is submitted that in the said decision, this Hon’ble CourtDwas considering Rule 3(8) of the U.P. Retirement Benefit Rules, 1961,which specifically provided that the period of servicein a work chargedestablishment shall not be counted for qualifying service for pension. Itis submitted that to that this Hon’ble Court read down the said provisionand has observed and held that service rendered as a work chargedEshall have to be counted as qualifying service for pension.

4.4 It is submitted that while considering the validity of Rule 3(8)of the said Rules, this Hon’ble Court observed that after rendering theservice for number of years, they cannot be denied the pension on theground that they have not rendered the qualifying service for pensionFand that the work charged service can be counted as qualifying servicefor pension. It is submitted that while considering the validity of Rule3(8) of the aforesaid Rules, and denying total work charged service tobe counted as qualifying service for pension, this Hon’ble Court hasobserved and held that it will be unfair, unjust and impermissible to denythem the pension and to that it is observed and held that the work chargedGservice can be counted as qualifying service for pension.

4.5 It is submitted that in the said decision, this Hon’ble Court hasnot observed and held that their entire service rendered as a work chargedshall be considered for the purpose of counting of the pension. It issubmitted that the said decision shall be restricted to the period of serviceHrendered as work charged to be counted as qualifying service for pension.

UDAY PRATAP THAKUR AND ANR. v. THE STATE OF BIHAR[M. R. SHAH, J.]

5. The short question, which is posed for consideration of thisCourt is:

“Whether the entire service rendered as work charged under thework charged establishment shall have to be counted and/orconsidered for the determination of the amount of pension afterthe work charged employees are regularized under the Rules,2013?

6. It is required to be noted that the respective appellants wereworking as work charged under the work charged establishment in theState. Their services have been regularized under the Rules, 2013 andthe follow up notification of the Finance Department vide Circular No.10710 dated 17.10.2013. Rule 5(v) of the Circular reads as under:- “5(v} Old pension rules shall be applied on these employees. Thebenefit pension & gratuity shall be counted by giving one yearadvantage against the five years services as work-chargedemployee. Even then if the minimum requirement of 10 years ofservice for pension is not met under the old rules, then minimumservice shall be added to give advantage thereof.”

6.1 Rule 5(v) of the Rules, 2013 as such can be said to be beneficialto such work charged employees, whose services have been regularizedsubsequently. As per Rule 5(v), even if the minimum requirement of 10years of service (qualifying service) for pension is not met, in that casealso, the service rendered as a work charged to be added for qualifyingservice for pension. Therefore, the efforts have been made by the StateGovernment to see that after rendering services for number of years aswork charged, and thereafter, their services have been regularized, theymay not be denied the pension on the ground that they have not completedthe qualifying service for pension. It also further provides that the benefitslike pension & gratuity shall be counted by giving one year advantageagainst the five years services as work-charged employee. Therefore,Rule 5(v) as observed hereinabove, is beneficial also in favour of suchwork charged employees, whose services have been regularizedsubsequently, and they may not be deprived of the pension on the groundthat they have not completed the qualifying service for pension. Thedenying of pension after rendering service as work charged for numberof years on the ground that they have not completed the qualifying servicecan be said to be unfair and illegal and can be said to be exploitation.

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ATherefore, to make such work charged employees eligible for pension,Rule 5(v) provides that if any work charged employee, whose serviceshave been regularized under the Rules, 2013, is short of qualifying service,to the extent of such shortage of qualifying service, the services renderedas work charged to be counted for the purpose of qualifying service forpension. Under the circumstances, the Larger Bench of the High CourtBhas rightly observed and held that for the purpose of pension, only suchperiod from the work charged tenure would be added for making theservice of an employee, who has been regularized to qualify him forpension.

6.2 Insofar as the submission on behalf of the appellants that theirCentire services rendered as work charged should be considered and/orcounted for the purpose of pension/quantum of pension is concerned,the same cannot be accepted. If the same is accepted, in that case, itwould tantamount to regularizing their services from the initialappointment as work charged. As per the catena of decisionsof this DCourt, there is always adifference and distinction between a regularemployee appointed on a substantive post and a work charged employeeworking under work charged establishment. The work charged employeesare not appointed on a substantive post. They are not appointed afterdue process of selection and as per the recruitment rules. Therefore, theservices rendered as work charged cannot be counted for the purposeEof pension / quantum of pension. However, at the same time, afterrendering of service as work charged for number of years and thereafterwhen their services have been regularized, they cannot be denied thepension on the ground that they have not completed the qualifying servicefor pension. That is why, the service rendered as work charged is to beFcounted and/or considered for the purpose of qualifying service forpension, which is provided under Rule 5(v) of the Rules, 2013.

6.3 Now, insofar as the reliance placed upon the decision of thisCourtin the case of Prem Singh (supra) by the learned counsel appearingon behalf of the appellants is concerned, the reliance placed upon theGsaid decision is absolutely misplaced. In the said case, this Court wasconsidering the validity of Rule 3(8) of the U.P. Retirement Benefit Rules,1961, under which the entire service rendered as work charged was notto be counted for qualifying service for pension. To that, this Court hasobserved and held that after rendering service as work charged fornumber of years in the Government establishment / department, denyingH

them the pension on the ground that they have not completed the qualifyingAservice for pension would be unjust, arbitrary and illegal. Therefore, thisCourt has observed and held that their services rendered as work chargedshall be considered/counted for qualifying service. This Court has notobserved and held that the entire service rendered as work chargedshall be considered/counted for the quantum of pension/pension. TheBdecision of this Court in the case of Prem Singh (supra), therefore,would be restricted to the counting of service rendered as work chargedfor qualifying service for pension.

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7. In view of the above and for the reasons stated above, presentappeals lack merits and the same deserve to be dismissed and areCaccordingly dismissed. It is observed and held that the service renderedas work charged after their services have been regularized under theregularization scheme, namely, the Rules, 2013 and the Circular shall becounted for the purpose of qualifying service for pension only as perRule 5(v) of the Rules, 2013.

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Present appeals, thus, deserve to be dismissed and are accordinglydismissed. No costs.

Pending applications, if any, also stand disposed of.

Nidhi Jain

(Assisted by : Abhishek Agnihotri and Tamana, LCRAs)

Appeals dismissed.

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