Himachal Pradesh High Court
Smt. Leela Sharma Wife Of vs The State Of H.P. on 20 August, 2021
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 20th DAY OF AUGUST, 2021
BEFORE
.
HON'BLE MR. JUSTICE SURESHWAR THAKUR
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.6337 OF
2019.
Between:-
1. SMT. LEELA SHARMA WIFE OF
SHRI RAJINDER SINGH, R/O
VILLAGE AND POST OFFICE
AWLIWALA, P.O. KOTRI, TEHSIL
NAHAN, DISTRICT SIRMOUR, H.P.
PRESENTLY SERVING AS A BELDAR
IN HORTICULTURE DEPARTMENT
UNDER DEPUTY DIRECTOR OF HORTICULTURE
NAHAN, DISTRICT SIRMOUR, H.P.
2. SH. SOHAN SINGH SON OF
SHRI RANBIR SINGH, RESIDENT OF
VILLAGE UHOT, POST OFFICE AND
TEHSIL SHILLAI, DISTRICT SIRMOUR
H.P. PRESENTLY WERVING AS A
BELDAR HORTICULTURE DEPARTMENT
IN DEVELOPMENT BLOCK SHILLAI,
DISTRICT SIRMOUR, H.P.
3. SHRI KHAJAN SINGH SON OF
SHRI SHER SINGH, RESIDENT OF
VILLAGE CHIYALI, P.O. AND TEHSIL
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SHILLAI, DISTRICT SIRMOUR, H.P.
.
PRESENTLY SERVING AS A BELDAR IN
HOLTICULTURE DEPARTMENT IN
DEVELOPMENT BLOCK SHILLAI,
DISTRICT SIRMOUR, H.P.
4. SH. PANCH RAM SON OF SH. BASTI RAM,
RESIDENT OF VILLAGE GANGTOLI, P.O.
TIMBI, TEHSIL SHILLAI, DISTRICT
SIRMOUR, H.P. PRESENTLY SERVING
IN HORTICULTURE DEPARTMENT UNDER
PCDO TIMBI, DISTRICT SIRMOUR, H.P.
....PETITIONERS.
(BY MR. ABHYENDER GUPTA, ADVOCATE)
AND
1. THE STATE OF H.P., THROUGH PRINCIPAL
SECREATARY (HOLTICULTURE) WITH
HEADQUARTERS AT SHIMLA-2, H.P.
2. THE DIRECTOR OF HORTICULTURE WITH
HEADQUARTERS AT NAV VAHAR,SHIMLA-
2.
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3. THE DEPUTY DIRECTOR OF
.
HORTICULTURE WITH HEADQUARTERS AT
NAHAN, DISTRICT SIRMOUR, H.P.
4. THE SENIOR DEPUTY ACCOUNTANT
GENERAL WITH HEADQUARTERS AT
SHIMLA, H.P.
(MR.
HEMANT
VAID & Mr.
....RESPONDENTS.
ASHWANI SHARMA, ADDITIONAL
ADVOCATE GENERALS WITH MR.
VIKRANT CHANDEL AND MR.
GAURAV SHARMA, DEPUTY
ADVOCATE GENERALS FOR
RESPONDENTS No.1 to 3.
MR. BALRAM SHARMA, ASGI FOR
RESPONDENT No.4)
RESERVED ON: 13th AUGUST, 2021.
DELIVERED ON: 20th AUGUST, 2021.
This petition coming on for hearing this day, the
Court passed the following:-
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JUDGMENT
.
The writ petitioners became conferred the aspired
work charge status in the year 2003. The afore factum finds
reflection in Annexure P-1, and, Annexure P-2. They became
allotted General Provident Fund (for shot "GPF") number by the
Senior Deputy Accountant General, H.P. However, through
Annexure P-3, the writ petitioners were asked to switch over to
Contributory Pension Scheme (for short "CPF"), as per rules of
2006, on the ground that their regular appointment took place
after May, 2003. Consequently, the writ petitioners become
aggrieved by the making of Annexure P-3, and, through the
institution of the instant writ petition before this Court, they have
sought the quashing of Annexure P-3. Moreover, they have also
prayed for a mandamus being issued upon the respondent
concerned, to, permit him to contribute to GPF.
2. Respondents No.1 and 2, in their reply meted to the
writ petition, strived to validate Annexure P-3 through Annexure
R-1 as becomes appended with the reply. A perusal of Annexure
R-1 appended to their reply, Annexure whereof is a notification
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.
issued on 17.8.2006, though does enclose, that vis-à-vis, all
appointments made by the Government of Himachal Pradesh on
or after 15.5.2003, rather barring the appointees concerned, from
drawing the benefits of Central Civil Services (pension) Rules,
1972. Moreover, it is also spelt therein, that the appointees
concerned whose appointments occur after 15.5.2003, would
draw pension co-equivalent, to their contribution to the apposite
pension fund.
3. However, a reading of Annexure R-1, though prima-
facie does not sustain, the reply on affidavit filed by respondents
No.1 and 2, that vis-à-vis, appointments made after 15.5.2003,
the apposite appointees being barred to subscribe to GPF, and,
rather all the post retiral benefits becoming governed by
Annexure R-1. However, even if assumingly on a deep reading of
Annexure R-1 the afore submission is prima-facie incorrect.
4. Nonetheless, a reading of Rule 4 of General
Provident Fund (CS) Rules (for short "GPF Rules"), Rule whereof,
stands extracted hereinafter, makes abundant and clear
echoings, that all temporary government servants after a
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continuous, service of one year, shall become eligible to
subscribe to the funds concerned. Moreover, NOTE-3 appended
thereunder also made bespeaking, that temporary government
servants, who have been appointed against regular vacancies,
and, who are likely to complete more than a period of one year,
service.
r to
may subscribe to GPF any time before completion of one year
"4. Conditions of eligibility
All temporary Government servants after a
continuous service of one year, all re-employed
pensioners (other than those eligible for admission to
the Contributory Provident Fund) and all permanent
Government Servants shall subscribe to the Fund:
Provided that no such servant as has been required
or permitted to subscribe to contributory Provident
Fund shall be eligible to join or continue as a
subscriber to the Fund, while he retains his right to
sub-scribe to such a Fund:
Provided further that a temporary Government
servant, who is borne on an establishment or factory to
which the provisions of Employees' Provident Funds
Scheme, 1952, framed under the Employees' Provident
Funds and Miscellaneous Provisions Act, 1952 (19 of
1952) would apply or would have applied but for the
exemption granted under section 17 of the said Act,
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shall subscribe to the General Provident Fund if he has
.
completed six months' continuous service or has
actually worked for not less than 120 days during a
period of six months or less in such establishment or
factor or in any other establishment or factory to which
the said Act applies, under the same employer or partly
in one and partly in the other.
[provided also that nothing contained in these rules
shall apply to Government servant appointed on or
after the 1st day of January, 2004]
EXPLANATION- For the purposes of this rule
"continuous service" shall have the same meaning
assigned to it in the Employees' Provident Funds
Scheme, 1952, and the period of work for 120 days
shall be computed in the manner specified in the said
scheme and shall be certified by the employer.
NOTE-1 -Apprentices and Probationers shall be
treated as temporary Government servants for the
purpose of this rule.
NOTE-2 A temporary Government servant who
completes one year of continuous service during the
middle of a month shall subscribe to the Fund from the
subsequent month.
NOTE-3 -Temporary Government servants (including
Apprentices and Probationers) who have been
appointed against regular vacancies and are likely to
continue for more than a year may subscribe to the
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General Provident Fund any time before completion of
.
one year's service."
5. From a reading of Rule 4 of GPF Rules, and, wherethrough
temporary government servants rendering continuous service, for a
period of one year, and, who are appointed against regular
vacancies, become declared to be eligible, to, seek application qua
them of the provisions cast in GPF Rules, and, also become
permitted to make subscription to GPF, though hence prima-facie
the writ claim would become vindicated. However, yet it has to be
gauged whether the apposite work charge status, as became
conferred upon the writ petitioners on 1.1.2003, makes them eligible,
to, continue to make subscriptions to the GPF, and, also whether
Annexure P-3 can either come to be validated or invalidated.
6. The appointment of the government servant, even though
on a temporary basis, is mandated in NOTE-3 occurring underneath,
Rule 4 of GPF Rules, to be hence against a regular vacancy.
However, upon the workman being conferred with a work charge
status, he would, not be rendering services against a regular
vacancy, and rather would serve against a regular substantive
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.
vacancy, only when his services become regularized against the
substantive vacancy concerned. Consequently, since the conferment
of work charge status, upon the workmen, occurred in the year
2003, and, when at the afore stage, they were rendering services
not against a regular vacancy, and, rather only upon their
regularization in service, they occupied a substantive vacancy.
Therefore, the mere conferment of a work charge status, vis-à-vis,
the petitioners on 1.1.2003, and, it surviving upto their regularization
in service after 15.5.2003, would not make the afore post, to be co-
equivalent to a substantive post, as during the afore spell, their
salary became drawn from sub head "works", and, not from the head
appertaining to salary, as, rather becomes disbursable therefrom,
only to an incumbent working against a regular vacancy, nor,
obviously they would become entitled to claim the benefits of
eligibility (supra) as occurs in Rule 4 of GPF Rules. As a sequel,
also the withdrawal of GPF subscription rather through Annexure P-
3, though earlier made, becomes valid and legally worthy.
7. However, the learned counsel for the petitioners also
contended, on anvil of definition of "Temporary Post" occurring in
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.
Fundamental Rules 9 (30), definition whereof, stands extracted
hereinafter, that since the pay drawn by the writ petitioners, carries a
definite rate of pay sanctioned for a limited period of time,
thereupon, the working of the writ petitioners, on a work charge
establishment, under the respondents, does make them fall hence
Rules 9 (30).
r to
within the definition of "Temporary Post", as occurs, in Fundamental
"(30) Temporary post means a post carrying a definite
rate of pay sanctioned for a limited time."
8. However, even the afore submission cannot be accepted,
by this Court, as the word "Post" as occurs in Fundamental Rules 9
(30), cannot carry any signification other than it being relatable to a
substantive vacancy. Any other interpretation to the word "Post" as
occurs in Fundamental Rules 9 (30), would be completely
antithetical to the signification (supra), as becomes ascribed to the
relevant NOTE-3 occurring underneath Rule 4 of GPF Rules, and,
wherein a prescription occurs, that a government servant though
temporarily employed, becomes entitled to draw the benefits of GPF
Rules, only upon, his temporary employment being against a regular
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.
vacancy. Therefore, the word "post" occurring in Fundamental Rules
9 (30) becomes amenable to be meted a signification, qua its
appertaining to a substantive post or a substantive vacancy.
Consequently, the afore rendered work on a work charge
establishment, is not, for reasons (supra) rather amenable to be
treated co-equal with work performed against any substantive post
or against any substantive vacancy.
9. The learned counsel for the petitioners, though has not
claimed in the writ petition, hence for pension qua the petitioners
being determinable, on anvil of conferment upon him, of a work
charge status, yet he has argued that application of Rule 2 of
Central Civil Services (Pension) Rules, 1972 (For short CCS
(Pension) Rules), be made qua the petitioners. In making the afore
submission, he makes dependence, upon, Rule 2 of CCS (Pension)
Rules, Rule whereof stands extracted hereinafter:-
"2. Application
Save as otherwise provided in these rules, [these rules
shall apply to Government servants appointed on or before
the 31st Day of December, 2003] including civilian
Government servants in the Defence Services, appointed
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substantively to civil services and posts in connection with
.
affairs of the Union which are borne on pensionable
establishments, but shall not apply to-
(a) Railway servants'
(b) Persons in casual and daily-rated employment;
(c) Persons paid from contingencies;
(d) Persons entitled to the benefit of a Contributory
Provident Fund;
(e) Members of All India Services;
(f) Persons locally recruited for service in diplomatic,
consular or other Indian establishments in foreign
countries;
(g) Persons employed on contract except when the
contract provides otherwise; and
(h) Persons whose terms and conditions of service are
regulated by or under the provisions of the Constitution
or any other law for the time being in force"
10. While making the afore submission, the learned
counsel for the petitioners, has depended upon the specific
exclusion of categories of employees as borne therein, and,
submits that since the apposite exclusion, as, appertaining to
inapplicability of CCS (Pension) Rules, rather is exhaustive, and
ad nauseam, and, when the workmen/employees concerned, who
work against a work charge establishment, do not, occur therein.
Therefore, for want of exclusion of work charge employees, in
Rule 2 of CCS (Pension) Rules, hence makes them amenable to
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.
be valid recipients of pension, as the prior thereto application
clause, is rather workable, vis-à-vis, them. However, even the
afore made submission, cannot be accepted, as the mere non-
occurrence of a work charge workman, in the relevant exclusion
clause, vis-à-vis, the apposite application clause, rather per-se
would not render work done on a work charge establishment,
hence by a work charge workman, to fall within the realm of the
relevant application clause, as, carried in Rule 2 (supra). The
imperative necessity for availments of benefits thereof, by the
work charge employees, is comprised in their substantively
working against regular posts. Since, as afore-stated the writ
petitioners rendered work not against any substantive post
concerned, rather during the period of theirs working as work
charge employees in the apposite work charge establishment
given theirs drawing wages from the sub head works, hence
imperatively contradistinct to the head wherefrom the salaries of
incumbents working against substantive post rather become
drawn. Therefore, they are not entitled to avail the benefits of rule
2 (supra). Moreover, since the notification carried in Annexure R-
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.
1, communicates that all appointments made on or after
15.5.2003 hence against every post in the State of Himachal
Pradesh, rendering the apposite appointees, for, not becoming
valid recipients of CCS (pension) Rules. Therefore, the
petitioners become rather entitled to all post retiral benefits being
purveyed to them in the mode enshrined in Annexure R-1.
Consequently, they are entitled to all post retiral benefits from the
funds wheretowhich they make subscriptions. Therefore, this
Court finds no merit in the petition, and, the same is accordingly
dismissed. All pending application stand disposed of accordingly.
(Sureshwar Thakur)
Judge
20th August, 2021.
(jai)
