5/21/2020 Shri Rama Shankar Pandey ... vs State Of U.P.

And Others on 31 July, 2013

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Shri Rama Shankar Pandey ... vs State Of U.P. And Others on 31 July, 2013

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8. In the rejoinder affidavit also, there is nothing to show as to how, why and in what manner Article
370 is ultra vires and of what. In fact, in a long paragraph 5 of the rejoinder affidavit, the petitioner has
referred to various judgments and then says that Article 370 of CSR is ultra vires.

9. During the course of argument, Sri Saxena, learned counsel for the petitioner was repeatedly asked
by this Court as to how he has pleaded that Article 370 of CSR, as applicable in U.P. is ultra vires.

12. In the present case, in absence of any factual foundation and pleadings in writ petition, to
demonstrate as to how Article 370 CSR is ultra vires or violative of any provision of the Constitution
or is otherwise bad, I find nothing but a bare and naked reference to the judgment of Apex Court in
Punjab Electricity Board Vs. Narata Singh and another 2010(4) SCC, 317, on the basis whereof Sri
Saxena has claimed that Article 370, CSR itself should be struck down. The submission is thoroughly
misconceived. My reasons are as under:

13. Article 370 of CSR, as applicable in U.P. reads as under:

"370. 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 form contingencies."

14. Validity of this entire provision has been challenged without any factual foundation or pleading. If
this entire provision goes, even the temporary official's service shall not be liable to count as qualifying
service. Moreover, in absence of any factual averment to demonstrate, how a work charge
establishment and service rendered therein, can be treated at par with service in regular establishment
and service rendered therein, it cannot be said that there is any discrimination or arbitrariness on the
part of rule framing authority so as to create a distinction between the two. It is not that Article 370(ii),
CSR has been challenged in the present writ petition but the petitioner has prayed that Article 370
should be struck down and that too, without demonstrating as to how and in what manner the aforesaid
provision is bad or is ultra vires.

28. Lastly a recent decision of Division Bench of this Court at Lucknow in State of U.P. Vs. Prem
Chandra and others [Special Appeal No. 264 of 2013 (Defective) decided on 13.05.2013] has been
cited to contend that therein this Court has read down Article 370 of CSR so as to grant benefit of
service rendered in workcharge establishment for the purpose of pension. I find that the Division

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5/21/2020 Shri Rama Shankar Pandey ... vs State Of U.P. And Others on 31 July, 2013

Bench has dismissed the appeal holding that in fact, learned Single Judge has granted parity with
similarly situated employee and Article 370 has to be read down in the light of judgment of Apex
Court in Punjab Electricity Board Vs. Narata Singh (supra). I asked learned counsel for the petitioner
to show as to in what manner, he can claim that Article 370 CSR can be read down, particularly when,
the finding recorded by learned Single Judge in the instant case, vis a vis Article 370, has been
confirmed and while remanding the matter, the Court specifically said that only the question of vires
shall be considered by learned Single Judge and nothing more than that. Moreover the Apex Court in
Narata Singh (supra) itself has not considered the question of validity of any provision. As I have
already discussed above, in my view, in the present case, no benefit can be extended to the petitioner
unless the question whether Article 370 CSR is valid or not, is decided in his favour.

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