Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3155 OF 2023
(@ SLP (C) NO. 10653 OF 2018)
Uday Pratap Thakur and Anr. …Appellant(s)
Versus
The State of Bihar and Ors. …Respondent(s)
WITH
CIVIL APPEAL NO. 3156 OF 2023
(@ SLP (C) NO. 26340 OF 2018)
Binod Kumar and Ors. …Appellant(s)
Versus
The State of Bihar and Ors. …Respondent(s)
Signature Not Verified
Digitally signed by
Neetu Sachdeva
Date: 2023.04.28
16:27:27 IST
Reason:
WITH
Civil Appeal No. 3155 of 2023
Page 1 of 16
CIVIL APPEAL NO. 3157 OF 2023
(@ SLP (C) NO. 7215 OF 2019)
Ganga Prasad Singh and Ors. …Appellant(s)
Versus
State of Bihar and Ors. …Respondent(s)
AND
CIVIL APPEAL NOS. 3158-3159 OF 2023
(@ SLP (C) NOS. 8734-8735 OF 2023)
(@ DIARY NO. 28954 OF 2020)
Maheshwar Pandey …Appellant(s)
Versus
State of Bihar and Ors. …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
Civil Appeal No. 3155 of 2023
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1. Feeling aggrieved and dissatisfied with the
impugned judgment(s) and order(s) passed by the High
Court of judicature at Patna in respective letters patent
appeals, the respective original writ petitioners – work
charged employees, whose services were subsequently
regularized as per the Work Charged Establishment
Revised Service Conditions (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 of 2023 (Maheshwar Pandey Vs. State of
Bihar and Ors.) is being treated as the lead matter.
2.1 The issue involved in the present appeals is with
respect to the counting of the period of work charged
services for the purpose of computing pensionary benefits
and the length of pensionable service.
2.2 A Larger Bench of the High Court by the impugned
judgment and order while upholding Rule 5(v) of the
Rules, 2013 has held that the period spent in the work
charged establishment would be counted only to the
extent of the shortfall in the qualifying period of service for
Civil Appeal No. 3155 of 2023
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grant of pension, which shall be made up by adding that
period spent under the work charged establishment and
that the entire period spent under the work charged
establishment would not be taken into account.
2.3 The respective original writ petitioners were initially
appointed and working under the work charged
establishment as work charged. The State Government
came out with the Rules from time to time to regularize
the services of the work charged employees and also how
the work charged services to be counted / considered.
Lastly, the State Government framed the Rules, 2013,
under which the services of the original writ petitioners
came to be regularized.
2.4 One of the clauses, namely, Clause 5(v) provided
that old pension scheme will be applicable on these
personnel. It further provided that granting the pension
and gratuity benefits will be calculated with the recognition
of regular service of one year for the work charged service
of every five years and in spite of this, if the minimum
pension paid service is not completed for pension
acceptance under the old pension, the benefit of the
pension will be given by adding minimum service to that
extent.
Civil Appeal No. 3155 of 2023
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2.5 Though the original writ petitioners were held to be
entitled to the pension by taking into account the services
rendered as work charged for the purpose of qualifying
period of service for grant of pension, they challenged
Rule 5(v) of the Rules, 2013 to the extent it provided that
for the purpose of counting of pension, regular service of
one year for the work charged service of every five years
shall be taken into consideration. According to the
original writ petitioners, the entire service rendered as
work charged in the work charged establishment is
required to be counted and/or considered for the purpose
of pension.
2.6 There were differences of opinion in the two Division
Bench judgments with respect to the counting of the
period of work charged services for the purpose of
computing pensionary benefits and the length of
pensionable service, therefore, the matter was referred to
the Larger Bench. The Larger Bench by the impugned
judgment and order has answered the reference in
following terms:-
“(a) With respect to addition of the number of
years of service rendered in a work charged
tenure to the service under regular
Civil Appeal No. 3155 of 2023
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establishment, for the purposes of making the
service of such regular employees
pensionable, there is practically no
substantial difference in the pronouncements
of the two Division Benches in the case of
Sheela Devi (supra) and Binod Kumar
(supra). (b) For the purposes of pension, only
such period from the work-charged tenure
would be added for making the service of an
employee which has been regularized to
qualify him for pension. (c) While adding such
period of work-charged tenure, the modus
would be of granting / counting one year for
every five years of service rendered under
work-charged establishment. If that also
leaves some shortfall, then further number of
years of work-charged tenure can be taken /
added for making the service of the employee
pensionable. (d) For the purposes of giving
benefit to an employee for promotion on the
selection grade and timebound promotion,
the entire period of service rendered as work-
charged employee can be counted. (e) The
Rules and Circular of 2013 are valid as has
been held in Binod Kumar (supra). (f) The
Rules and Circular of 2013 are applicable to
such work-charged employees who have
been appointed after 22.10.1984 and prior to
11.12.1990.”
3. The learned counsel appearing on behalf of the
appellants has vehemently submitted that in fact the
respective appellants rendered services as work charged
for approximately more than 30 to 35 years. It is
Civil Appeal No. 3155 of 2023
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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 work charged employees
shall not be wiped out and/or at-least cannot be ignored
for the purpose of pension.
3.1 It is submitted that the respective appellants were as
such appointed not on a particular project but the
appointment was for a work, which was regular and
periodical in nature for a monthly salary and they were
working in the Government department. It is submitted
that therefore, their services were not qualitatively
different from regular employees.
3.2 It is submitted that it was unfair on the part of the
State Government to take work from them for periods
depriving them of their due emoluments. It is submitted
that all the appellants were appointed after their names
were called from the Employment Exchange.
3.3 It is submitted that as observed and held by this
Court in the case of Prem Singh Vs. State of Uttar
Pradesh and Ors., (2019) 10 SCC 516 , the services
rendered as work charged is to be counted for pensionary
Civil Appeal No. 3155 of 2023
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benefits. Learned counsel appearing on behalf of the
appellants has heavily relied upon the paragraphs 29, 30,
31, 32 and 36 of the said decision.
4. Learned counsel appearing on behalf of the State
while opposing the present appeals has vehemently
submitted that in fact taking into consideration the fact that
despite having worked for a longer period as work
charged, thereafter when they were regularized and they
were found short of qualifying service for pension and on
that ground, they may not be denied the pension solely on
the ground that they have not completed the qualifying
service for pension, a conscious decision has been taken
by the State in favour of such employees providing that for
the purpose of qualifying service, the services rendered
as work charged is to be counted to make them eligible
for pension.
4.1 It is submitted that their services rendered as work
charged cannot be counted for the purpose of actual
pension, otherwise, there shall not be any difference
between a regular employee and a work charged
employee. It is submitted that till the work charged
employee is regularized, he continues to be work charged
employee. It is submitted that therefore, the Larger Bench
Civil Appeal No. 3155 of 2023
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of the High Court has rightly observed and held that for
the purpose of pension, only such period from the work
charged tenure would be added for making the service of
an employee to qualify him for pension and while adding
such period of work charged tenure, the modus operandi
for counting would be one year for every five years of
service rendered under work charged establishment and if
that also leaves some shortfall, then further number of
years of work charged tenure can be taken / added for
making the service of the employee pensionable. It is
submitted that therefore, the High Court has rightly upheld
the vires of Rules, 2013.
4.2 It is submitted that insofar as the reliance placed
upon the decision of this Court in the case of Prem Singh
(supra) relied upon on behalf of the appellants is
concerned, it is submitted that the said decision shall not
be applicable at all as the reliance placed upon the said
decision is absolutely misplaced.
4.3 It is submitted that in the said decision, this Hon’ble
Court was considering Rule 3(8) of the U.P. Retirement
Benefit Rules, 1961, which specifically provided that the
period of service in a work charged establishment shall
not be counted for qualifying service for pension. It is
Civil Appeal No. 3155 of 2023
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submitted that to that this Hon’ble Court read down the
said provision and has observed and held that service
rendered as a work charged shall 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 the service for number of years, they
cannot be denied the pension on the ground that they
have not rendered the qualifying service for pension and
that the work charged service can be counted as
qualifying service for pension. It is submitted that while
considering the validity of Rule 3(8) of the aforesaid
Rules, and denying total work charged service to be
counted as qualifying service for pension, this Hon’ble
Court has observed and held that it will be unfair, unjust
and impermissible to deny them the pension and to that it
is observed and held that the work charged service can
be counted as qualifying service for pension.
4.5 It is submitted that in the said decision, this Hon’ble
Court has not observed and held that their entire service
rendered as a work charged shall be considered for the
purpose of counting of the pension. It is submitted that
the said decision shall be restricted to the period of
Civil Appeal No. 3155 of 2023
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service rendered as work charged to be counted as
qualifying service for pension.
5. The short question, which is posed for consideration
of this Court is:
“Whether the entire service rendered as work
charged under the work charged establishment shall
have to be counted and/or considered for the
determination of the amount of pension after the
work charged employees are regularized under the
Rules, 2013?
6. It is required to be noted that the respective
appellants were working as work charged under the work
charged establishment in the State. Their services have
been regularized under the Rules, 2013 and the 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. The benefit pension &
gratuity shall be counted by giving one year
advantage against the five years services as
work-charged employee. Even then if the
minimum requirement of 10 years of service
for pension is not met under the old rules,
then minimum service shall be added to give
advantage thereof.”
Civil Appeal No. 3155 of 2023
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6.1 Rule 5(v) of the Rules, 2013 as such can be said to
be beneficial to such work charged employees, whose
services have been regularized subsequently. As per
Rule 5(v), even if the minimum requirement of 10 years of
service (qualifying service) for pension is not met, in that
case also, the service rendered as a work charged to be
added for qualifying service for pension. Therefore, the
efforts have been made by the State Government to see
that after rendering services for number of years as work
charged, and thereafter, their services have been
regularized, they may not be denied the pension on the
ground that they have not completed the qualifying
service for pension. It also further provides that the
benefits like pension & gratuity shall be counted by giving
one year advantage against the five years services as
work-charged employee. Therefore, Rule 5(v) as
observed hereinabove, is beneficial also in favour of such
work charged employees, whose services have been
regularized subsequently, and they may not be deprived
of the pension on the ground that they have not
completed the qualifying service for pension. The
denying of pension after rendering service as work
charged for number of years on the ground that they have
not completed the qualifying service can be said to be
Civil Appeal No. 3155 of 2023
Page 12 of 16
unfair and illegal and can be said to be exploitation.
Therefore, to make such work charged employees eligible
for pension, Rule 5(v) provides that if any work charged
employee, whose services have been regularized under
the Rules, 2013, is short of qualifying service, to the
extent of such shortage of qualifying service, the services
rendered as work charged to be counted for the purpose
of qualifying service for pension. Under the
circumstances, the Larger Bench of the High Court has
rightly observed and held that for the purpose of pension,
only such period from the work charged tenure would be
added for making the service of an employee, who has
been regularized to qualify him for pension.
6.2 Insofar as the submission on behalf of the
appellants that their entire services rendered as work
charged should be considered and/or counted for the
purpose of pension / quantum of pension is concerned,
the same cannot be accepted. If the same is accepted, in
that case, it would tantamount to regularizing their
services from the initial appointment as work charged. As
per the catena of decisions of this Court, there is always a
difference and distinction between a regular employee
appointed on a substantive post and a work charged
employee working under work charged establishment.
Civil Appeal No. 3155 of 2023
Page 13 of 16
The work charged employees are not appointed on a
substantive post. They are not appointed after due
process of selection and as per the recruitment rules.
Therefore, the services rendered as work charged cannot
be counted for the purpose of pension / quantum of
pension. However, at the same time, after rendering of
service as work charged for number of years and
thereafter when their services have been regularized, they
cannot be denied the pension on the ground that they
have not completed the qualifying service for pension.
That is why, the service rendered as work charged is to
be counted and/or considered for the purpose of
qualifying service for pension, which is provided under
Rule 5(v) of the Rules, 2013.
6.3 Now, insofar as the reliance placed upon the
decision of this Court in the case of Prem Singh (supra)
by the learned counsel appearing on behalf of the
appellants is concerned, the reliance placed upon the said
decision is absolutely misplaced. In the said case, this
Court was considering the validity of Rule 3(8) of the U.P.
Retirement Benefit Rules, 1961, under which the entire
service rendered as work charged was not to be counted
for qualifying service for pension. To that, this Court has
observed and held that after rendering service as work
Civil Appeal No. 3155 of 2023
Page 14 of 16
charged for number of years in the Government
establishment / department, denying them the pension on
the ground that they have not completed the qualifying
service for pension would be unjust, arbitrary and illegal.
Therefore, this Court has observed and held that their
services rendered as work charged shall be considered /
counted for qualifying service. This Court has not
observed and held that the entire service rendered as
work charged shall be considered / counted for the
quantum of pension / pension. The decision of this Court
in the case of Prem Singh (supra) , therefore, would be
restricted to the counting of service rendered as work
charged for qualifying service for pension.
7. In view of the above and for the reasons stated
above, present appeals lack merits and the same deserve
to be dismissed and are accordingly dismissed. It is
observed and held that the service rendered as work
charged after their services have been regularized under
the regularization scheme, namely, the Rules, 2013 and
the Circular shall be counted for the purpose of qualifying
service for pension only as per Rule 5(v) of the Rules,
2013.
Present appeals, thus, deserve to be dismissed and
are accordingly dismissed. No costs.
Civil Appeal No. 3155 of 2023
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Pending applications, if any, also stand disposed of.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
APRIL 28, 2023. [C.T. RAVIKUMAR]
Civil Appeal No. 3155 of 2023
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