Himachal Pradesh High Court
Ram Singh vs State Of H.P. & Ors on 1 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWP No.10009 of 2023
Decided on: 01st January, 2024
.
___________________________________________________________
Ram Singh ....Petitioner
Versus
State of H.P. & ors. ....Respondents
Coram
of
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting?
For the petitionerrt : Mr. Kul Bhushan Khajuria,
Advocate.
For the respondents : Mr. Vishal Panwar, Additional
Advocate General.
Ranjan Sharma, Judge (Oral)
Notice. Mr. Vishal Panwar, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents.
2. With the consent of the parties, the instant writ petition, is taken up for disposal, at this stage, in view of the order(s) intended to be passed herein.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 04/01/2024 20:32:23 :::CIS -2-
3. The petitioner, a retired Pump Operator, has filed the instant writ petition, with the following prayer:-
.
i) "That the impugned order dated 11.09.2023 contained in Annexure P-3 may kindly be quashed and set aside.
ii) That the respondent department may be directed to count the period of 05 years of daily wage service equal to one year for the purpose of of pension in view of the judgment passed by Hon'ble Apex Court in Sunder Singh's case."
4. rt In the background of the relief(s), prayed for above, the case of the petitioner as submitted by the learned counsel is that, the petitioner was engaged as Pump Operator, Class-III on daily wage basis, in Irrigation and Public Health Division Dehra, Distt.
Kangra, H.P. w.e.f. 1992. He further submits that he was conferred work and was then regularized, as Pump Operator in terms of the mandate of the Hon'ble Apex Court in the case of Mool Raj Upadhyaya w.e.f.
1.1.2000. The petitioner retired from the service of respondents on 30.04.2012 after rendering more than ::: Downloaded on - 04/01/2024 20:32:23 :::CIS -3- nine years of service
5. The case of the petitioner is that initially the respondents have not granted the benefit of pension to .
the petitioner on the plea that he had "not rendered the requisite "qualifying service of ten years" by counting the nine years and seven months of regular service in lieu of ten years of daily wage service, in terms of the law laid of down by the Hon'ble Apex Court, in case of Sunder Singh. rt
6. Now, the grievance of the petitioner is that the judgment passed by the Hon'ble Apex Court in the case of Sunder Singh versus State of Himachal Pradesh [Civil Appeal No.6309 of 2017, dated 8.3.2017] has been clarified by the Hon'ble Apex Court in the case of Balo Devi Versus State of HP [2022 HP(2) 817], which mandates that in case, the regular service and regular service after giving proportional weightage in lieu of daily wage service comes to eight years then also the service of eight years is to be treated as ten years service and such ::: Downloaded on - 04/01/2024 20:32:23 :::CIS -4- an employee is entitled for pension. Even the Division bench of this Court in the case of Roop Lal Versus State of Himachal Pradesh [LPA 196 of 2022, decided on .
11.10.2023] has mandated the respondents to grant pension, even to Class-III employees by treating the eight years of service actually rendered [regular service and regular service after giving proportional weightage of daily of wage service as above] by treating it as ten years of qualifying service for pension. In this background, the rt said period of service of eight years rendered by the petitioner be treated as ten years of qualifying service, therefore, despite the eligibility and entitlement, in terms of the mandate of law; the denial of pension to the petitioners w.e.f. 1.1.2018 till day was illegal, arbitrary and violative of Articles 14 and 16 and Article 300-A of the Constitution of India.
7. Learned counsel for the petitioner has placed reliance upon the mandate of Hon'ble Apex Court, in case, of Sunder Singh Versus State of Himachal Pradesh, ::: Downloaded on - 04/01/2024 20:32:23 :::CIS -5- in Civil Appeal No.6309 of 2017, decided on 8.3.2018, the operative part thereof, read as under:-
"6. Some of the petitioners whose writ petitions .
were disposed of vide the Division Bench's Judgment dated 31.05.2012 chose to assail the said judgment before the Hon'ble Apex Court by filing Special Leave Petitions. The SLPs were connected and decided on
08.03.2018 under the lead case Civil Appeal of No. 6309 of 2017, titled as Sunder Singh vs. State of H.P. and others. It would be pertinent rt to mention herein that the appellant in the aforesaid case were all retired regular Class-IV employees seeking to count the daily wage service, rendered by them prior to their regularization, towards qualifying service for pension. The Hon'ble Apex Court disposed of the petition with the following order:
"1. Heard learned counsel for the parties.
2. The appellants represent class of Class-IV employees who were recruited initially as daily wagers such as Peon/ Chowkidar/ Sweeper/ Farrash/ Malis/Rasoia etc. Their services, thereafter, were regularized pursuant to the decision of this Court in Mool Raj Upadhyaya Vs. State of H.P. and Ors. 1994 Supp(2) SCC 316 under a Scheme. Regularization was ::: Downloaded on - 04/01/2024 20:32:23 :::CIS -6- after 10 years of service.
3. It is undisputed that the post-
regularization an employee who had served for 10 years is entitled to .
pension for which work charge service is counted. Earlier, in terms of O.M. dated 14.05.1998, 50% of daily-wage service was also counted for pension after regularization but the rules have undergone change.
of
4. Since the appellants have not rendered the requisite 10 years of rt service they have been denied pension.
5. Even though strictly construing the Rules, the appellants may not be entitled to pension. However, reading the rules consistent with Articles 14, 38 and 39 of the Constitution of India and applying the doctrine of proportionate equality, we are of the view that they are entitled to weightage of service rendered as daily wagers towards regular service for the purpose of pension.
6. Accordingly, we direct that w.e.f 01.01.2018, the appellants or other similarly placed Class-IV employees will be entitled to pension if they have been duly regularized and have been ::: Downloaded on - 04/01/2024 20:32:23 :::CIS -7- completed total eligible service for more than 10 years. Daily wage service of 5 years will be treated equal to one year of regular service for .
pension. If on that basis, their services are more than 8 years but less than 10 years, their service will be reckoned as ten years.
7. The appeal as well as special leave petitions are disposed of in above of terms."
8. Learned counsel for the petitioner has also rt relied upon the judgment passed by the Hon'ble Apex Court in case of Balo Devi vs. State of Himachal Pradesh and others reported in Latest HLJ 2022(HP)(2) (817), whereby the judgment in the case of Sunder Singh's case has been clarified as under:-
"The intent of this Court was quite clear that:-
(a) The services rendered as a regular employee may first be computed.
(b) To the service as rendered to above, the component at the rate of one year of regular service for every five years of service as daily wager, be added.
(c) If both the components as detailed in Paras a & b herein above, take the length of service to a level of more than eight years but less ::: Downloaded on - 04/01/2024 20:32:23 :::CIS -8- than ten years, in terms of last sentence of paragraph 6 of the Order, the services shall be reckoned as ten years."
[
9. The claim of the petitioner draws strength from .
the judgment passed by Division Bench of this Court in LPA No.196 of 2022, tilted as Roop Lal versus State of Himachal Pradesh & Others, decided on 11.10.2023 of and the operative part of the judgment granting benefit of pension to Class-III retirees reads as under:-
rt "18. When it comes to granting the benefit of counting service rendered on daily wage for the purpose of pension to class III employees there is no significant respect in which persons concerned are distinguishable from class IV employees. As has already been stated supra in the case of Class IV employees Articles 14,38,39 and the Concept of "proportional equality" (egalitarian equality) have been read into the relevant pension rules and only thereafter a benefit of counting service rendered on daily wage for the purpose of pension has been accorded to the Class IV employees. Non grant / non extension of benefit of counting service rendered on daily wage for the purpose of pension to Class III employees by not ::: Downloaded on - 04/01/2024 20:32:23 :::CIS -9- reading Articles 14, 38, 39, the Concept of "proportional equality" (egalitarian equality) into the relevant pension rules would lead to a differential treatment to .
persons who are in no manner significantly different hence in the facts and attending circumstances would be unjustified. The extension of the same benefit in our considered view cannot be denied. Moreso, especially in view of Rafiq Masih's case 2015 of (8) 334 wherein, Class III and Class IV employees on equitable considerations have rt been treated at par with respect to the right of the State (employer) to recover from them amounts paid de-hors the applicable service rules.
19. The claim herein is with respect to counting of service as rendered on daily wage basis before Regularization/ grant of work charge status towards qualifying service for grant of pension. For the said adjudication what is relevant is the period rendered towards daily wage by the concerned employee irrespective of the status of the employee, Class-III/ Class IV.
20. The claim for pension is a recurring cause of action. The petitioner is an employee who belongs to a lower hierarchy in service. Delay in filing the present petition would disentitle the petitioner for grant of interest but he ::: Downloaded on - 04/01/2024 20:32:23 :::CIS
- 10 -
would definitely be entitled for monetary benefits prospectively. Further on account of delay in filing the present petition monetary benefits can be restricted to three years prior .
to the filing of the petition. In this respect it would be appropriate to refer to (2008) 8 Supreme Court Cases 648, titled as Union of India and others vs. Tarsem Singh, wherein it has been held that non-grant of pension is a continuing wrong which in spite of delay may of be granted as it does not effect the rights of third-parties. In so far as the consequential rt relief of recovery of arrears for past service is concerned, it has been held therein that principle relating to recurring/successive wrongs would apply. However, the consequential relief relating to arrears shall normally be restricted to a period of three years prior to the date of filing of the writ petition.
21. In view of the aforesaid proposition of law, we are of the considered view that the purpose of pension, the Constitutional mandate contained in Articles 14, 38, 39 of the Constitution of India and the doctrine of proportionate equality would be required to be read into the Rules as has been held by the Apex Court in Sunder Singh's case supra in order to give weightage of service rendered as daily wager towards regular service for the ::: Downloaded on - 04/01/2024 20:32:23 :::CIS
- 11 -
purpose of pension even to Class-III employees.
22. In view of the above discussion, respondent-
State is directed to extend benefit of Daily .
Wage service to the petitioner, in terms of Sunder Singh's case, as explained in Balo Devi's case, for calculating qualifying service for the purpose of pension, and to extend all benefits of pension to the petitioner within one month from today. However, the petitioner of shall be entitled for monetary benefits three years prior to the date of filing of the petition.
rt Benefits accruing beyond three years prior to filling of the petition, if any, shall be only on notional basis.
22-A. With respect to the cut-off date from which actual monetary benefits are to be extended, keeping in view the law laid down by Supreme Court in Sunder Singh's and Balo Devi's cases, it is further clarified that the petitioner shall be entitled for actual monetary benefits w.e.f. 1.1.2018 and the monetary benefits, if any, prior to 1.1.2018 shall only be on notional basis, but if the three years period, prior to filing of the petition, is subsequent to 1.1.2018, then the actual benefits shall be granted from such subsequent date."
::: Downloaded on - 04/01/2024 20:32:23 :::CIS- 12 -
10. Per contra, Mr. Vishal Panwar, learned Additional Advocate General submits that the judgment in case of Roop Lal (supra) granting pension to Class-III .
category employees, has not attained finality as yet.
However he submits that once the petitioner has approached this Court belatedly in the year, 2023, therefore, the petitioner's case for pension w.e.f. 1.1.2018 of as per the mandate of the law referred to above needs to be looked into but the actual monetary benefits can only rt be considered, if otherwise admissible, for a period of three years preceding the filing of the writ petition (30.10.2023) and not beyond that. The submission of learned State Counsel appears to genuine. The submission of the learned Additional Advocate General appears to be genuine and in accordance with the mandate of law whereby, the petitioner can only claim actual monetary benefits-arrears for a period of three years preceding the filing of the writ petition (30.10.2023).
::: Downloaded on - 04/01/2024 20:32:23 :::CIS- 13 -
11. In the entirety of the facts stated above and the mandate of the law, laid down by the Hon'ble Apex Court in the case of Sunder Singh's and Balo Devi .
(supra), and the Division Bench of this Court in case of Roop Lal (supra), once the petitioner has completed eight years service [based on actual regular service rendered and regular service so arrived at after giving proportional of weightage in lieu of daily wages service i.e. one year regular service for the years of daily wages service and rt two years regular service for ten years of daily wages service] then, this eight years service shall be reckoned as ten years service and this service shall qualify for pension. Accordingly, based on the regular service, so arrived at, in terms of the mandate of law in case of Sunder Singh, Balo Devi and Roop Lal (supra), once the petitioner has completed-rendered eight years of regular service, therefore, he is eligible and entitled to pension under the CCS (Pension) Rules, 1972, w.e.f. 1.1.2018 notionally; except the past arrears, which shall be ::: Downloaded on - 04/01/2024 20:32:23 :::CIS
- 14 -
restricted for a period of three years prior to the filing of writ petition [on 30.10.2023], in terms of the settled law.
12. In view of the above, the respondents are .
directed to consider the case of the petitioner (Class-III retiree) for grant of pension, in terms of the mandate of the Hon'ble Apex Court in the case of Sunder Singh, Balo Devi and by the Division Bench of this Court in the of case of Roop Lal (supra) notionally w.e.f. 1.1.2018; and upon consideration, in case, the petitioner is held entitled rt to pension then, the actual monetary benefits/arrears shall be confined for a period of three years preceding the filing of this writ petition, in terms of the mandate of law, in the case of Union of India versus Tarsem Singh (2008) 8 SCC 648; Shiv Dass versus Union of India and Others; (2007) 9 SCC 274; State of Madya Pradesh and Others versus Yogendra Shrivastava (2010) 12 SCC 538; Asger Ibrahim Amin Versus Life Insurance Corporation of India (2016) 13 SCC 797, followed in Rushibhai Jagdishchandra Pathak versus ::: Downloaded on - 04/01/2024 20:32:23 :::CIS
- 15 -
Bhavnagar Municipal Corporation CA No.4134 of 2022 [2022 SCC online SC 641] decided on 18.5.2022, and arrears beyond three years cannot be .
claimed/granted. The consequential action be taken by the respondents within three months from today.
In the aforesaid terms, the instant writ petition, as well as, pending miscellaneous application(s), of if any, shall also stand disposed of, accordingly.
rt (Ranjan Sharma)
Judge
January 01, 2024
(Shivender)
::: Downloaded on - 04/01/2024 20:32:23 :::CIS