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Supreme Court Dismisses New Plea Challenging 2020 UP Qualifying Service For Pension And Validation Ordinance, With Liberty Approach Alternative Forum
Mehal Jain
7 Jan 2021 9:16 AM GMT
Another bench of Justices Abdul Nazeer and K. M. Joseph on Wednesday issued notice on a petition filed by the UP Ground Water Department Non Gazetted Employees' Association to examine the challenge to the validity of the Ordinance of 2020
The Supreme Court on Thursday dismissed a petition challenging the passing of the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020, with liberty to the petitioners to approach the appropriate alternative forum.The bench of Justices Vineet Saran and Ajay Rastogi was hearing a plea by 159 petitioners appointed as work- charged employees on various dates from 1978 to...
The Supreme Court on Thursday dismissed a petition challenging the passing of the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020, with liberty to the petitioners to approach the appropriate alternative forum.
The bench of Justices Vineet Saran and Ajay Rastogi was hearing a plea by 159 petitioners appointed as work- charged employees on various dates from 1978 to 1986 in the Irrigation, Groundwater Department, P.W.D. etc. in Government of U.P., which urged that the impugned Ordinance has been passed without curing the exploitative discrimination against the work-charged employees that has been disapproved by the Supreme Court in 2019 in Prem Singh's case.
"You have challenged the 2020 Ordinance? Can you not challenge the Ordinance in the High Court?", asked Justice Rastogi.
Advocate Mukesh Kumar Sharma, for the petitioners, pressed that after judgment dated September 2, 2019 in Prem Singh, a contempt petition has been moved before the top court by some of the petitioners on which notice has also come to be issued. Mr. Sharma also pointed out that on Wednesday, another bench of Justices Abdul Nazeer and K. M. Joseph has issued notice on the petition by the UP Ground Water Department Non Gazetted Employees' Association to examine the challenge to the validity of the Ordinance of 2020 which was passed on October 21 last year.
"What is the proof that you were recruited as work-charged employees between this and this date?", asked Justice Saran from Mr. Sharma.
In another matter of a 72-year old petitioner seeking his pension, though without challenging the Ordinance, which was heard simultaneously (Mohd. Sayeed v. State of UP), Justice Saran said , "Whether the service record is manufactured or not, we can't see under 32. You may go to the High Court, the Labour Court or the Civil Court. We can't take evidence under 32"
Ultimately, the bench dismissed the plea of the 159 petitioners challenging the Ordinance, with liberty to approach the appropriate alternative forum.
Advocate Sanpreet Singh appeared in this matter.
Dealing with right to pension for thousands of work charged employees regularised at fag end of their services, the Supreme Court, in a judgement of three judges bench delivered by Justice Arun Misra with Justice Nazeer and Justice MR Shah (Prem Singh v. State of UP; 2019), set aside the relevant rules and read down the provisions for computation of qualifying service for pension and held that the period of service by the work charged employees in state of UP must be counted towards qualifying service for pension.
However, by means of the impugned Ordinance, the government has provided that "qualifying service" shall include service rendered on a temporary or permanent post in accordance with the provisions of the service rules prescribed by the government for the post. The Ordinance also nullifies any judgement, degree or order of the court by providing a non-obstante clause. Consequently, because the work charge employees are not employed against any temporary or permanent post in accordance with the provisions of the service rules prescribed by the government for the post, such services shall not form part of 'qualifying services'.
The plea by the 159 petitioners also challenged the constitutional validity of Rule 3(8) of the Uttar Pradesh Retirement Benefit Rules 1961, which was read down by the three-judge bench on 2019 in Prem Singh. 'Qualifying Services', for the purpose of the said Rule, meant service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations. The Proviso to the Rule stipulated that "continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except--
(i) periods of temporary or officiating service in non- pensionable establishment;
(ii) periods of service in work charged establishment; and
(iii) periods of service in a post paid from contingencies, shall also count as qualifying service"
The operative portion of the 2019 Judgment provides: "36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed"
The 159 petitioners submitted that the Rules was framed for the benefit of the Uttar Pradesh government service employees after retirement, to get pension, and that the Ordinance has been enacted only for the purpose to curtail the rights of the employees which have been confirmed by the Supreme court.
The petitioned dismissed on Thursday enumerated the following legal question for examination by the court:
(i).Whether the Respondents / State government, can over rule / struck down the Judgment of this Hon'ble court by passing framing of Ordinance or made amendment of the Act ?.
(ii). Whether the Respondents / State government , not compliance , over rule / struck down of the Judgment of this Hon'ble court by passing framing of Ordinance or amendment of the Act is not attack on the Basic Structure" of the Constitution of India as law laid down by this Hon'ble court in Kesavananda Bharati Sripadagalvaru and ors vs. State of Kerala and Anr reported in 1973 (3) SCC 225 , ?.
(iii). Whether the Respondents/State government / Executive, is having power to amend the "BASIC STRUCTRUE" of the Constitution of India by passing framing of Ordinance or amendment of the Act ?.
(iv). Whether the Respondents/State government / Executive, is having power to amend / curtail the "FUNDAMENTAL RIGHTS" of the citizen / employees enshrine in PART-III of the Constitution of India by passing framing of Ordinance or amendment of the Act ?.
(v). Whether the act of the Respondents is to be null and void in the light of Article 141 of the Constitution of India by passing framing of Ordinance or amendment of the Act ?.
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