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)

WITH

Civil Appeal No. 3155 of 2023

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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.

2.1The 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.

2.2A 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.

2.3The 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.

2.4One 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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2.5Though 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.

2.6There 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.

3.1It 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.

3.2It 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.

3.3It 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.

4.1It 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.

4.2It 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.

4.3It 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.

4.4It 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.

4.5It 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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6.1Rule 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

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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.

6.2Insofar 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

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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.

6.3Now, 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

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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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