The Supreme Court on Wednesday issued notice on a plea to examine the challenge to the validity of the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance of 2020 which was passed on October 21 last year.
The bench of Justices Abdul Nazeer and K. M. Joseph was hearing the petition by the UP Ground Water Department Non Gazetted Employees' Association, which submits that the Ordinance is passed without curing the exploitative discrimination against the work-charged employees which has been disapproved by the Supreme Court.
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. This judgement was accepted and pension was granted to the affected thousands of employees in the state.
"However, after Justice Arun Mishra demitted office in September 2020 the state of UP brought an Ordinance to nullify the above judgement and is now seeking recovery of the pension granted from these poor employees of class lll & lV...this Ordinance is a challenge to majesty of the honourable Supreme Court and the timing (October,2020) appears as if they were waiting for the event to happen i.e. retirement of Justice Arun Mishra", it is advanced.
Senior Advocate Pallav Shishodia submitted that that the Ordinance is ultra vires in view of the fact that the enacting Ordinance is made effective retrospectively and nullifies the law declared by the Supreme Court, which would amount to encroaching upon the domain of the judiciary. When any law has been declared by the Supreme Court, the same cannot be set at naught but the legislature, by enacting an amendment which would nullify the effect of the judgement of the court. It is mentioned that the aforesaid Ordinance has been issued by the state government of UP to nullify the effect of the judgement rendered by the Supreme Court in the matter of Prem Singh v. State of UP.
"The overreach of legislative act of the respondent state which has been enacted to apply retrospectively is nothing but an attempt to overshadow the effect of the judgement rendered by the three judges of the Supreme Court and is bad in law", avers the plea.
The plea, through advocates Rajiv Dubey and Shilpa Liza George, alleges that 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. It is submitted that the Ordinance also nullifies the judgement, degree or order of the court by providing a non-obstante clause.
"Therefore, by means of the Ordinance, the judgement in Prem Singh has been tried to be diluted 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. Hence, such services shall not form part of 'qualifying services'", it is pressed.
