Punjab-Haryana High Court
Jagdev Singh vs State Of Punjab And Others on 9 April, 2024
Neutral Citation No:=2024:PHHC:048564
CWP-32726-2019 (O&M) 2024:PHHC:048564
-1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
294
WP-32726-2019 (O&M)
C
Date of decision: 09.04.2024
Jagdev Singh
....Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY ***** Present : Mr. J.P.S. Sidhu, Advocate for the petitioner (through VC) Mr. Gagneshwar Walia, Addl. A.G., Punjab. (hearing through hybrid mode) * **** AMAN CHAUDHARY, J. (Oral) 1. The prayer in the present petition is for quashing of the impugned order dated 12.10.2017 and directing respondents to count the entireserviceofthepetitionerfrom20.12.1987tilldateofregularizationfor entitling him to benefits under the Old Pension Scheme. 2. Learned counsel would contend that the petitioner was appointedoncontractbasison20.12.1987andhisserviceswereregularized on28.07.2011havingrenderedmorethan10yearsofservice,whereafterhe retired fromthepostofClerkon31.05.2014.However,hispreviousservice from1987tillregularizationhasnotbeencountedtowardsforqualifyingthe purposeofOldPensionScheme.RelianceisplacedonJeewanLatavs.The StateofPunjabandothers,2019(4)SCT271,againstwhichnoLPAwas filed by the State and the benefits as being claimed by the petitioner, were granted to her-a part time sweeper, the relevant portions thereof read thus: " The question of law as to whether an employee, whose serviceswereregularisedafter01-01-2004,willbegovernedby 1 of 5 ::: Downloaded on - 20-04-2024 05:13:10 ::: Neutral Citation No:=2024:PHHC:048564 CWP-32726-2019 (O&M) 2024:PHHC:048564 -2- the New Pension Scheme or the Old Pension Scheme is well settled and has already attained finality up to the Hon'ble SupremeCourtofIndia.TheDivisionBenchofthisCourtwhile deciding CWP No. 2371 of 2010 titled as Harbans Lal Vrs. State of Punjab&Ors.decidedon31-08-2010hasheldthatan employee who was in service as on 01-01-2004 though his servicesmighthavebeenregularisedafterthesaiddate,istobe governedundertheOldPensionScheme.Therelevantportionof the judgement is as under:- " From the above discussion, we have come tothe conclusion that the entire daily wage service of the petitioner from 1988 till the date of his regularization is to be counted as qualifying service for the purpose of pension.Hewillbedeemedtobeingovt.Servicepriorto 01.01.2004.ThenewRe-structuredDefinedContribution Pension Scheme (AnnexureP-1)hasbeenintroducedfor thenewentrantsinthePunjabGovernmentServicew.e.f. 01.01.2004, will not be applicable to the petitioner. The amendment made vide Annexure P-2 amending the PunjabCivilServiceRules,cannotbefurtheramendedby issuing clarification/instructions dated 30.05.2008 (Annexure P-3) The petitioner will continue to be governed by the GPF Scheme and is held entitled to receive pensionary benefits as applicable to the employeesrecruitedinthePunjabGovt.Servicespriorto 01.01.2004. In view of the above, the writ petition is allowed. Accordingly, respondents are directed to treat the whole period of work charge service as qualified service for pension because accordingly to clarification issued on 30.05.2008 (Annexure P-3), the new defined Contributory Pension Scheme would be applicabletoall those employees who have been working prior to 01.01.2004 but have been regularized thereafter. Let his pension and arrears be calculated and paid to him expeditiously, preferably withinaperiodofthreemonths from the date of receipt of copy of this order. No order as to costs." he above saidjudgementhasalreadyattainedfinalityupto T the Hon'ble Supreme Court of India as the Special Leave Petition filed againstthesaidjudgementbytheStateofPunjab hasalreadybeendismissed.Therefore,thefirstobjectionwhich the respondents havetakentodenythepetitionerthebenefitof pension on the ground that the petitioner will be governed by theNewContributoryProvidentFundsSchemeholdsnoground and is liable to be rejected. The second objection which has been taken by the respondentsisthateveniftheOldPensionSchemeisapplicable uponthepetitioner,keepinginviewprovisionsoftheRule3.17 A, the service rendered by the petitioner on part time basis cannot be counted as qualifying service for the grant of pensionary benefits.ThesaidRulehasalreadybeeninterpreted 2 of 5 ::: Downloaded on - 20-04-2024 05:13:11 ::: Neutral Citation No:=2024:PHHC:048564 CWP-32726-2019 (O&M) 2024:PHHC:048564 -3- by this Court while deciding CWP No. 626 of2015titledZile Singh Vs. State of Haryana and others on 17.03.2015 wherein also a similar question of law arose. In the said case also the employeesworkingonparttimebasis,wereseekingthebenefit of the parttimeservicetobetreatedasaqualifyingservicefor the grant of pensionary benefits. After relying upon the judgment in Kesar Chand Vs. State of Punjab and others, this Court while deciding CWP No. 626 of 2015, on 17.03.2015, held that once an employee has worked with the respondents though on part time basis, and the said part time service has been taken into account for regularisation of service of an employee, the benefit of said service, cannot be denied to be counted as a qualifying service for the grant of pensionary benefits. The relevant portion of the judgment is as under:- xx xx xx AgainstthesaidorderLPANo.426of2016wasfiledbythe Government of Haryana andvideorderdated18.03.2016,after noticing the provision of Rule 3.17A, the Division Benchheld thatonlyashorttermparttimeemploymentandthattooundera specific contingency, has to be ignored while computing the pensionary benefits. The Division Bench held that where an employeehasworkedforalongtimeandcontinuously,whichis more than a decade, the same cannot be treated as a part time engagement, and cannot be ignored while computing the pensionarybenefits.Therelevantportionofthejudgmentofthe Division Bench is as under:- xx xx xx Thequestionoflawastowhether,theparttimeserviceisto be counted for computing the pensionary benefits again came upforconsiderationbeforethisCourtinCWPNo.1048of2016 titled as Jai Bhagwan Vrs. State ofHaryana&Others,decided on 01.03.2019. In the said case also, keeping in view the decision of the Coordinate Bench in Zile Singh's Case (Supra) aswelltheorderpassedinLPANo.426of2016,thebenefitof the service which anemployeehadrenderedonparttimebasis continuously for more than 20 years was allowed to be computed as a qualifying service. The relevant portion of the judgment is as under:- " I have heard counsel for the parties and havegone through the record with their able assistance. ounsel for the petitioner contends that once the C petitionerhadrenderedserviceonparttimebasisstarting from 06.08.1992 till 27.02.2012, the same isliabletobe counted as a qualifying service for the grant of pensionary benefits. Counsel for the petitioner further contends that though the petitioner was working on part timebasis,butasheworkedforabout20years,itcannot be said that he discharged the duties on part time basis. Further, as the petitioner was working as Peon in a school, it cannot be said that he was discharging the duties part time and the same has to be considered a regular employment for all intents and purposes. 3 of 5 ::: Downloaded on - 20-04-2024 05:13:11 ::: Neutral Citation No:=2024:PHHC:048564 CWP-32726-2019 (O&M) 2024:PHHC:048564 -4- Ontheotherhand,counselfortherespondentsstates that once the appointment was made on part time basis, the same cannot be considered as aqualifyingservicein view of the provisions of Section 3.17 (A) of the CSR Vol-II, according to which, part time service cannot be treated as a qualifying service. I tisamatteroffactthatthepetitionerworkedonpart timebasiscontinuouslyfor20years.Apersonisengaged on part time only for a specific job and for specified period. It cannot be said that an employee, who is workingcontinuouslyfor20yearsasPeoninschool,was aparttimejob.Thesaidserviceistobetreatedasalong term employment for all intents and purposes. Full Bench of this Court in Kesar Chand's case A (supra) has held that daily wage service, followed by regularization of the services, is to be counted as a qualifying service for the grant of pensionary benefits. Once, the daily wage service is to be counted as a qualifying service, it cannot be said that continuous appointment rendered by the petitioner for 20 years though as part time basis, is less than the daily wage servicerenderedbyanemployee.Thereisnojustification given by therespondentstodenythesaidbenefit,except the Rule 3.17 (A). The said Rule has already been consideredinKesarChand'scase(supra)andithasbeen held that the daily wage service followed by the regular serviceisgoodenoughtobetreatedasqualifyingservice for computing the pensionary benefits. Therefore, the servicewhichthepetitionerhasrenderedfor20yearsasa Peon from 06.08.1992 till 27.02.2012 cannot be ignored for computing the pensionary benefits of the petitioner." he case of the petitioner is covered by the above said T judgment. earned State counsel, has not been able todifferentiatethe L caseofthepetitionerfromthejudgmentswhichhavebeencited abovetoprovethatthepetitionerisnotentitledforthebenefits ofcountingherparttimeserviceasaqualifyingserviceafterthe services of the petitioner were regularized. I n view of the above, the second objection which has been raisedbytherespondentsthattheparttimeservicerenderedby the petitioner from1984till25.10.2010cannotbecountedasa qualifying service is liable to be rejected. As the objections raised by the Counsel for the respondents to deny the benefits are contrary to the settled principle of law and have already been rejected, petitioner is held entitled to the grant of the pensionary benefits on total length of her service under Old Pension Scheme. heWritPetitionisallowed.Therespondentsaredirectedto T treat the case of the petitioner under the Old Pension Scheme 4 of 5 ::: Downloaded on - 20-04-2024 05:13:11 ::: Neutral Citation No:=2024:PHHC:048564 CWP-32726-2019 (O&M) 2024:PHHC:048564 -5- for the grant of pensionary benefits and while considering the case for thegrantofpensionarybenefitstothepetitionerunder the Old Pension Scheme,theservicerenderedbythepetitioner from 1984till2010shallalsobetreatedasaqualifyingservice for computing the pensionary benefits. Let the calculations of the pensionary benefits be done by the respondents within a period of two months from the receipt of the certified copy of this order and whatever amount the petitioner isfoundentitled for after the calculations shall be released to the petitioner within a period of next two months." 3. Learned State counsel despite his best efforts was unable to controvert the factual position and draw out any distinctive aspects in the aforementioned judgment or cite any contrary law. 4. In wake of the aforesaid, the present petition is disposed of in terms of the judgment passed inJeewan LataandHarbansLal(supra). (AMAN CHAUDHARY) JUDGE 0 9.04.2024 Hemant hether speaking/reasoned W : es / No Y Whether reportable : Yes / No 5 of 5 ::: Downloaded on - 20-04-2024 05:13:11 :::