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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No.689 of 2019 a/w CWPOA No.
6478 of 2019, CWP Nos.5236, 5237 of
2020, CWPOA 37 of 2020, CWP Nos.2117,
5327 and 5426 of 2022
.
Date of Decision: September 16, 2023
1. CWPOA No.689 of 2019
Dile Ram ...Petitioner.
Versus
State of Himachal Pradesh & another ..Respondents.
2. CWPOA No.6478 of 2019
Pradeep Sharma ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
3. CWP No.5236 of 2020
Ajay Singh & others ...Petitioners.
Versus
State of Himachal Pradesh & another ..Respondents.
4. CWP No.5237 of 2020
Akash Deep Sharma & others ...Petitioners.
Versus
State of Himachal Pradesh & another ..Respondents.
5. CWPOA No.37 of 2020
Narender Paul ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
6. CWP No.2117 of 2022
Anu Bala ...Petitioner.
Versus
State of Himachal Pradesh & another ..Respondents.
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7. CWP No. 5327 of 2022
Rekha Kumari ...Petitioner.
Versus
.
State of Himachal Pradesh & others ..Respondents.
8. CWP No. 5426 of 2022
Aruna Kumari ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the Petitioner(s): M/s Adarsh K. Vashista & Vikas Rajput,
Advocates, for the respective petitioners, in
all respective petitions.
For the Respondents: Mr. Anup Rattan, Advocate General,
alongwith Mr.Rajesh Mandhotra, Additional
Advocate General, in all the petitions.
Vivek Singh Thakur, J (Oral)
These petitions, for involvement of common question of fact and law, required to be adjudicated in these petitions, are being decided by this common judgment.
2. In these petitions, issue involved is that as to whether a person appointed to a post temporarily, without having special qualification required for recruitment to the said post, but in due process completed for such appointment pursuant to Policy adopted by the State, is entitled for counting his temporary service for annual increments and pensionary 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 20/09/2023 20:34:38 :::CIS 3benefits on regularization of his service on the same post, without interruption.
3. Admittedly, petitioners, in sequel to Policy adopted .
by the State of Himachal Pradesh, having qualification to be appointed as Lecturer/D.P., as per Recruitment and Promotion Rules (in short 'R&P Rules), were appointed as Lecturer/D.P., on contract basis in the Department of Higher Education, Himachal Pradesh. After serving for quite considerable long period, their services were regularized as Lecturer/D.P. in the Education Department. r
4. Petitioners have approached this Court, seeking direction to the respondents to extend benefit of period of their services rendered by them on contract basis prior to their regularization, but from the date of initial appointment, for annual increments and counting for the purpose of pensionary benefits.
5. The aforesaid issue is no longer res integra, but stands settled in various pronouncements of this High Court, affirmed by the Supreme Court.
6. In Paras Ram vs. State of Himachal Pradesh and another, Latest HLJ 2009 (HP) 887, it was held by the Court as under:-
"4. In the present case petitioner has uninterruptedly worked against the post of Junior Basic Trained Teacher on ad hoc basis and has been awarded special certificate. He was regularized on 13.11.1997. In view of Annexure PB, the ad hoc services rendered by the petitioner before ::: Downloaded on - 20/09/2023 20:34:38 :::CIS 4 his regularization are to be counted towards annual increments. The petitioner has served the respondent- State as Junior Basic rained Teacher from 1987. He is entitled to get the entire services counted which has rendered on ad hoc basis with effect from 1987 for the .
purpose of annual increments. The petitioner has worked as a Junior Basic Trained Teacher for all intents and purposes and has been issued a certificate by the State as per notification dated 31.08.1995. There is no distinction visualized/contemplated in Annexure PB to which category the benefit of ad hoc services is to be granted for the purpose of annual increments. This notification will cover all the cases where the persons had worked on ad hoc basis and immediately thereafter they were regularized without any break in the Education Department. The services which the petitioner had similarly situate persons have rendered on ad hoc basis for a long period; cannot be permitted to be rendered otiose."
7. On the basis of aforesaid pronouncement, one Sita Ram was granted same benefit but without benefit of seniority and he had approached the Division Bench, by filing LPA No.36 of 2010, which was decided on 15.07.2010 denying him benefit of seniority on the basis of ad hoc service, but declaring him entitle for counting of ad hoc services followed by regular services for the purpose of increment and pension.
8. In CWP No.4550 of 2010, titled as Ravi Kumar vs. State of H.P. and another, decided on 16.12.2010 alongwith connected matters, in case of tenure appointees, direction was given to grant annual increment during period of tenure services and to count the said period for the purpose of pension like ad hoc appointees in the Education Department. However, issue ::: Downloaded on - 20/09/2023 20:34:38 :::CIS 5 related to contract Teachers was kept open to be decided by the Authority.
9. In CWP No.5400 of 2014, titled as Veena Devi vs. .
Himachal Pradesh State Electricity Board Ltd & another, decided on 21.11.2014, contract service followed by regular appointment without interruption was directed to be considered for the purpose of qualifying service for pensionary benefits.
10. Special Leave to Appeal CC No(s) 18898 of 2015, titled as H.P. State Electricity Board Ltd. and another vs. Veena Devi, preferred against the said order was dismissed by the Supreme Court on 26.10.2015.
11. In CWP No.8953 of 2013, titled as Joga Singh and others vs. State of Himachal Pradesh and others, and connected matters, decided on 15.06.2015, petitioners therein were appointed as Vidya Upasaks against vacant posts of JBT following procedure laid down in Vidya Upasak Yojna 1998. They were not possessing JBT certificates. After undergoing 21 days initial training and one year condensed Teacher Training Course, they were regularized/absorbed against JBT posts in Education Department. The Division Bench of this Court had directed to extend benefits period of period of their service as Vidya Upasaks, which was followed by regular appointment, for annual increments as well as counting qualifying service for pension.
12. After dismissal of SLP(C) No.183 of 2016, titled as State of H.P. & others vs. Joga Singh and others, Review Petition ::: Downloaded on - 20/09/2023 20:34:38 :::CIS 6 (Civil) No.274 of 2017 in the said SLP(C) No.183 of 2016, was dismissed by the Supreme Court on 02.03.2017.
13. In similar case CWPOA No.195 of 2019, titled as .
Sheela Devi vs. State of H.P. & others, decided on 26.12.2019, after taking into consideration Rule 17 of Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as 'CCS Pension Rules), and other pronouncements of this High Court as well as Supreme Court, Division Bench of this Court had directed to count period of contract service followed by regular service as qualifying service for granting pension.
14. In Jagdish Chand vs. State of Himachal Pradesh & others, decided on 10.01.2020, alongwith connected matters, wherein petitioners, who were not JBT, but having qualification as TGT, O.T., Shastri etc. were appointed against sanctioned vacant post(s) of JBT as Vidya Upasak. Their services were regularized as JBTs in the year 2007 after awarding them special JBT certificates. In this matter, it was directed to count contract service followed by regularization against the post of JBT towards qualifying service for the purpose of pension under CCS Pension Rules as well as for annual increment, but restricting actual financial benefits to three years prior to filing of writ petitions.
15. It is also an admitted fact that SLP (Civil) No.10399 of 2020, titled as State of Himachal Pradesh & another vs. Sheela Devi, and SLP(C) Nos.8012-8013 of 2021, in State of Himachal Pradesh vs. Jagdish Chand, have been dismissed by the Supreme Court vide order dated 07.08.2023 with direction that past ::: Downloaded on - 20/09/2023 20:34:38 :::CIS 7 service of contractual employee on regularization is to be counted for the purpose of pension and thus judgments in Sheela Devi's and Jagdish Chand's cases, referred supra, have attained .
finality.
16. Learned Additional Advocate General, though not pleaded in the reply, has contended that in Sheela Devi's case benefits of counting contract service for annual increment has not been granted.
17. In Sheela Devi's case (supra), the High Court has directed to count the contract service for the purpose of qualifying service towards pension. However, Apex Court, in its order dated 7.8.2023 has directed the respondents/State to count the contract service for the purpose of pension. Needless to say that for counting the service to extend the benefit thereof for pension, annual increment for the relevant period is an essential factor required to be considered for calculating pension. Observations by the Division Bench of this Court in this regard in CWP No.850 of 2010, titled Paras Ram vs. State of HP and others, Latest HLJ 2009 (HP) 887, as also referred in order dated 15.7.2010 passed by a Division Bench of this Court in LPA No.36 of 2010, titled Sita Ram vs. State of H.P., are relevant wherein it has been stated that service counted for the purpose of annual increment will be counted for pension also. There is direction for counting the contractual service for pension/pensionary benefits. Counting of service for pension includes, counting of length of service for qualifying service for ::: Downloaded on - 20/09/2023 20:34:38 :::CIS 8 pension, as well as for quantifying the amount of pension payable by calculating it on the basis of basic pay with addition of increment. Therefore, direction to count service for pension .
also mandates calculation of pension by granting annual increment for relevant period either actual or notional basis.
18. It is also apt to record that CWP No.850 of 2010, titled Paras Ram vs. State of HP and others was decided on 19.10.2010, which has attained finality. Order in Sita Ram's case has also attained finality.
19. Following the aforesaid judgments a Division Bench of this Court in CWPOA No.5187 of 2020, titled as Sunil Dutt & others vs. State of Himachal Pradesh & others and CWPOA No.5507 of 2020, titled as Oma Wati and another vs. State of Himachal Pradesh and others, has directed to extend benefit of annual increments and counting of period of contract service followed by regular appointment for the purpose of pensionary benefits by observing as under:-
"8. Despite repeated observations as well as directions of the Courts in numerous cases that State must behave like a Model Employer, State, irrespective of persons in power and change in Guard, successively keeps on to formulate, adopt and practise exploitative policies as a device to avoid extension of legitimate rights of the employees for which they are otherwise entitled. On intervention of the Courts directing the State to extend such benefits like pay scale, increment, leave and counting of service etc., State every time tries to deprive the employee from such benefit by changing nomenclature of post and scheme to continue with practice of temporary/ad-hoc appointments. Appointment ::: Downloaded on - 20/09/2023 20:34:38 :::CIS 9 of Voluntary Teachers, ad-hoc Teachers, Vidya Upasaks, Contract Teachers, PARA Teachers, PAT, PTA and SMC Teachers are examples of clever phraseology devised by State to overcome directions of the Courts in order to avoid permanent appointments by appointing ad-
.
hoc/Temporary Teachers depriving them of service benefits available to regular employees. When Courts upheld the entitlement of ad-hoc employees for service benefits, State came with Scheme for appointment of Voluntary Teachers. Again, on intervention of the Court, State continued changing the name of Policy but for appointment on exploitative terms. Therefore, we are of the opinion that all these terms are similar temporary appointments irrespective of their nomenclature. Therefore, verdict of the Court regarding extension of service benefits with respect to one kind of temporary appointment is equally applicable to similar temporary appointment with different nomenclature."
20. In view of aforesaid of judgments on the subject matter, I am of the considered view that present cases are squarely covered with aforesaid ratio propounded by this High Court affirmed by the Supreme Court. Therefore, aforesaid judgments shall be mutatis mutandi applicable in the present matters also and petitioners shall be entitled for counting their contract services for the purpose of pensionary benefits as well as annual increments for the said period with all consequential benefits, but restricting actual consequential financial benefits to three years prior to filing of writ petitions.
21. CWPOA Nos. 689, 6478 of 2019 were filed in May 2015. Petitioners in these petitions shall be entitled for actual financial benefits from 1st May 2012.
::: Downloaded on - 20/09/2023 20:34:38 :::CIS 1022. CWP Nos.5236 and 5237 of 2020 were filed in November 2020. Petitioners in these petitions shall be entitled for actual financial benefits from 1st November 2017.
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23. CWPOA No. 37 of 2020 was filed in July 2021.
Petitioner in this petition shall be entitled for actual financial benefits from 1st July 2018.
24. CWP No.2117 of 2022 was filed in March 2022.
Petitioner in this petition shall be entitled for actual financial benefits from 1st March 2019.
25. CWP Nos.5327 and 5426 of 2022 were filed in July 2022. Petitioners in these petitions shall be entitled for actual benefits from 1st July 2019.
26. Due and admissible benefits shall be released to the petitioners within a period of six months from today. Needless to say that benefits given three years prior to filing of writ petitions shall be extended to them on notional basis.
27. Present petitions stand allowed and disposed of in aforesaid terms, so also pending miscellaneous application(s), if any.
(Vivek Singh Thakur), Judge.
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