Punjab-Haryana High Court
Mukhtiar Singh vs State Of Punjab And Others on 21 March, 2024
Neutral Citation No:=2024:PHHC:041714
CWP-17166-2022(O&M) 2024:PHHC:041714
-1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
284
WP-17166-2022 (O&M)
C
Date of Decision: 21.03.2024
Mukhtiar Singh .....Petitioner
Versus
State of Punjab and others .....Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY Present: r. Vikas Chatrath and M Mr. Dharamvir Singh, Advocates for the petitioners. Mr. Gagneshwar Walia, Addl. AG, Punjab. **** AMAN CHAUDHARY, J.(ORAL) 1. ThepresentCivilWritPetitionhasbeenfiledunderArticles226/227 of the Constitution of India for issuance of directions to the respondents to consider the case of the petitioner under the Old Pension Scheme. 2. Learnedcounselwouldcontendthatthepetitionerwhoinitiallyjoined the Department of Roadways on 01.04.1982 as a daily wager, was thereafter appointed as a Helper on 27.02.1987 till he was retrenched on 31.03.1999 and reinstated w.e.f. 01.04.1999 by the Industrial Tribunal with continuity of service and full back wages, as upheld in CWP-20509-2012 decided on 17.03.2015. He was regularized as washing boy with effect from 28.08.2015 vide Office Order dated30.08.2016,withtheconditionthathewouldbegrantedpensionarybenefits as per the instruction no.3/72/2003-FPPC/7280 dated 12.12.2006 issued by the Punjab Government and not under Old Pension Scheme. He superannuated on 31.03.2021, but has since received only leave encashment to the tune of Rs. 1 of 5 ::: Downloaded on - 27-03-2024 20:50:41 ::: Neutral Citation No:=2024:PHHC:041714 CWP-17166-2022(O&M) 2024:PHHC:041714 -2- 59,613/- on 18.08.2021, while being deprived of his pension and other retiral benefits. His case is squarely covered by the judgment in Municipal Council, Qadian vs. Musthaq Masih and others, LPA-666-2022, dated 21.12.2023, decided relying on Harbans Lal vs.StateofPunjabandothers,2012(3)SCT 362, wherein it was held thus: " 11. First of all, a perusal of resolution dated 01.11.2011 (Annexure P-2) shows that the Director, Local Government, Punjab, had taken a decision that services of employees working in various Municipal Councils, who had rendered more than 10 years of service on contract basis, would be regularized. In Nagar Council, Qadian, two clerks/4 Safai Sewaks were working on contract basis for the last 10 years andtheircaseforregularizationwaspresentedforapproval.As per letter dated 23.12.2011 (Annexure P-3), Mushtaq Masih-petitioner (respondent No.1) wasgivenappointmenton thepostofClerkintheregularpayscaleof5910-20200+1900. He was to be on probation for a period of two years. His services were to be governed under the New Pension Rules. Prior to his appointment on regular basis, his last 10 years' service had been taken into account and made basis for for giving regular appointment. 12. This very issue had come upforconsiderationinHarbans Lal's case (supra), wherein this Court had made reference to Rule3.17AofPunjabCivilServicesRules,Vol.II,whichreads as under:- "3.17A (I) subject to all the provisions ofrule4.23and other rules and exceptinthecasesmentionedbelow,all service rendered on establishment, interrupted or continuous, shall count as qualifying service:- (i) Service rendered in work-charged establishment. (ii) Service paid from contingences: Provided that after 1st January, 1973 halfoftheservice paid from contingencies will be allowed to count towards pension at the time of absorption in regular employment subject to the following conditions:- (a)Servicepaidfromcontingenciesshouldhavebeenin a job involving whole-time employment (and not part-time or for a portion of the day). (b)Servicepaidfromcontingenciesshouldhavebeenin a type of workorjobforwhichregularpostcouldhave been sanctioned e.g. Malis, chowkidars, khalasis, etc. (c) The service should have been one for which the payment is made either on monthly or daily rates computedandpaidonamonthlybasisandwhichthough not analogous to the regular scale of pay should bear somerelationinthematterofpaytothosebeingpaidfor 2 of 5 ::: Downloaded on - 27-03-2024 20:50:42 ::: Neutral Citation No:=2024:PHHC:041714 CWP-17166-2022(O&M) 2024:PHHC:041714 -3- similar jobs being performed by staff in regular establishment. (d) The service paid from contingencies should have been continuous and followed by absorption in regular employment without a break. (iii) Casual or daily rated service. (iv) Suspension adjusting as a specific penalty." 13.Aspertheaboverules,after01.01.1973,halfoftheservice paid from contingencies was also to be allowed to count towards pension at the time of absorption in regular employment, but in any case casual or daily rated service, amongst others cannot be counted towards qualifying service for pension. In that case, reference was made to aFullBench judgment passed inKesarChandvs.StateofPunjab,1998(2) PLR 223, wherein it was held that the work charged service rendered before regularization, was liable to be counted as qualifyingserviceforthepurposeofpension.InHarbansLal's case (supra), further reference was made to the judgment passed in Smt. Ramesh Tuli vs. State of Punjab and others, 2007(3)SCT,791,whereinaDivisionBenchofthisCourthad examined the proposition, as to what would be the qualifying service for pension as per Clause 6 (6) of the 1992 Pension Scheme, applicable to the Punjab Privately Management Recognized Schools Employees. It was held that the entire servicewouldbecountedasqualifyingserviceforthepurpose of pension. However, the Contributory Provident Fund was required to be adjusted and deducted from the arrears of pension. It was further held that the petitioners' initial dateof appointment, after regularization, would be the date onwhich employee took chargeofthepost.Oncetheentireserviceofa daily wager was to be counted as qualifying service, then his date of appointment would relegate back to his initial date of appointmenti.e.1988andhecouldnotbeoustedfrompension scheme by applying the date ofregularizationi.e.28.03.2005, whichwasevidentlyafterthenewschemeornewrestructured defined Contribution PensionScheme.Referencewasmadeto another judgment passed by Division Bench of this Court in Hans Raj vs.StateofPunjabandothers,2005(3)RSJ262.In that case, the Division Bench had examined the Punjab Municipal Employees Pension and General Provident Fund Rules, 1994. The State of Punjab, vide instructions dated 08.01.1999, had provided that since the Pension Rules had been made applicable in lieu of CPF, the period to be consideredasqualifyingforpensionhadtoberestrictedtothe period for which the employee was contributing to his CPF. ThoseinstructionswereheldcontrarytothePensionRulesand the petitioner was held entitled to count his entire service as qualifying service for the purpose of pension. The condition that qualifying service would commence from the date of contribution to the CPF, had been rejected by the Division Bench.Finally,theDivisionBench,whilereferringtothecase 3 of 5 ::: Downloaded on - 27-03-2024 20:50:42 ::: Neutral Citation No:=2024:PHHC:041714 CWP-17166-2022(O&M) 2024:PHHC:041714 -4- of Hans Raj (supra), held that the New Defined Contributory Pension Scheme came into effect w.e.f.01.01.2004.However, since the petitioner was working from 1988, he would be deemed to be in service prior to 01.01.2004. He would be continuedtobegovernedbytheGPFSchemeandwasentitled to receive pensionary benefits as applicable to the employees recruited in the Punjab Government Services prior to 01.01.2004. The clarification/instructions dated 30.05.2008 could not deny the benefit of past service to the employees. 14. The ratio of the judgment passed in Harbans Lal's case (supra)isapplicabletothefactsofthepresentcase,astheNew Defined Contributory Pension Scheme came into effect w.e.f. 01.01.2004.Rule3.17AofPunjabCivilServicesRules,Vol.II, which dealswithcountingofpastservicetowardspensionhas been elaborately examined in thesaidjudgment.Thisrulehas alsobeeninterpretedinKesarChand'scase(supra),whereinit has been held that the work charged service rendered before regularization, is liable to becountedasqualifyingservicefor the purpose of pension. The decision given in Harbans Lal's case(supra)was,thereafter,followedinSultanRamandothers vs. State of Punjab and others, CWP13458-2012 (decided on 17.01.2013), which was later on, clarified vide order dated 31.01.2013 passed in CM-1606-2013 to the effect that Old GPF Scheme will be applicable to all those employees, who were the employees prior to 2004, but had been regularized thereafter.ThesaidjudgmenthasattainedfinalityuptoHon'ble the Supreme Court. xx xx xx 16.Thus,aftergoingthroughthecontentsofappealsaswellas the impugned judgment(s), this Court is of the view that the benefit of OldPensionSchemehasrightlybeengrantedtothe petitioner(s). Hence, no ground is made out tointerfereinthe well reasoned judgment(s) passed by the learned Single Judge." 3. While stressing on the importance of grant of pension, Hon'ble the Supreme Court held in State of Kerala vs. M. Padmanabhan Nair, (1985) 1 SCC429that,"Pensionandgratuityarenolongeranybountytobedistributedby the Government to its employees on theirretirementbuthavebecome,underthe decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment." 4. Learned State counsel despite his best efforts was unable to 4 of 5 ::: Downloaded on - 27-03-2024 20:50:42 ::: Neutral Citation No:=2024:PHHC:041714 CWP-17166-2022(O&M) 2024:PHHC:041714 -5- controvert the factual position as also draw out any distinctive aspects in the aforementioned judgments orcite any contrary law. 5. Inviewoftheaforesaid,thepresentpetitionisdisposedofintermsof the judgments passed inHarbans LalandMusthaq Masihand others(supra). (AMAN CHAUDHARY) 2 1.03.2024 JUDGE Rajeev (rvs) hether speaking/reasoned: W es/No Y Whether reportable: Yes/No 5 of 5 ::: Downloaded on - 27-03-2024 20:50:42 :::