Himachal Pradesh High Court
On The 23Rd Day Of September vs Ram Lal And Others on 23 September, 2021
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 23rd DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SURESHWAR THAKUR
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.7340 OF
2019.
Between:-
SH. MADAN LAL SON OF SH. RATNA
RAM, RESIDENT OF VILLAGE CHANDPUR
P.O. KOTRIBYAS, TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P., EX-BELDAR
SERICULTURE DEPARTMENT, NAHAN,
DISTRICT SIRMOUR, H.P.
....PETITIONER.
(BY MR. A.K. GUPTA, ADVOCATE)
AND
1. THE STATE OF H.P. THROUGH PRINCIPAL
SECRETARY (INDUSTRIES) WITH
HEADQUARTER AT SHIMLA, H.P.
2. THE COMMISSIONER/DIRECTOR INDUSTRIES
WITH HEADQUARTERS AT SHIMLA, H.P.
3. THE GENERAL MANAGER, INDUSTRIES
(DISTRICT INDUSTRIES CENTRE) NAHAN
DISTRICT SIRMOUR, H.P.
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4. SENIOR ACCOUNTANT GENERAL, H.P. CIRCLE
.
SHIMLA, H.P.
....RESPONDENTS.
(MR. NARENDER GULERIA, ADDL. A.G.
FOR RESPONDENT No.1 to 3.
MR. BALRAM SHARMA, ASGI FOR
RESPONDENT NO.4)
RESERVED ON: 14th SEPTEMBER, 2021.
DELIVERED ON: 23rd SEPTEMBER, 2021.
This petition coming on for hearing this day, the
Court passed the following:-
JUDGMENT
The petitioner became enrolled as a daily wage
worker w.e.f. 1.1.1993. The work charged status became
conferred upon him w.e.f. 1.1.2003. His regularization in service
was made in the year 2006. Though, the writ petitioner claims
that all his post retiral benefits being governed by the CCS
(Pension) Rules, 1972. However, the respondents in their reply
on affidavit contend, that since the regularization in service of the
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.
writ petitioner occurred after 15.05.2003. Consequently, they
submitted that since the notification of 17.08.2006 makes
prescription(s) that all appointments made against substantive
posts in Himachal Pradesh, immediately after 15.05.2003, being
governed by the Himachal Pradesh Civil Services Contributory
Pension Rules, 2006, than by the CCS (Pension) Rules, 1972,
and, thereupon, the notification (supra) rather prevailing over the
CCS (Pension) Rules, 1972.
2. Though, vis-a-vis, the entrants into regular service
after May, 2003, the post retiral benefits become governed by the
Himachal Pradesh Civil Services Contributory Pension Rules,
2006. However, yet the learned counsel for the petitioner, seeks
the making of a mandamus, upon the respondents to grant him,
the benefit of CCS Pension Rules, 1972. However, for the
reasons to be assigned hereinafter, the afore claimed mandamus,
is, declined.
3. This Court, in a binding, and, conclusive verdict made
upon CWP No. 180 of 2001, decided on 31.05.2012, titled as
State of H.P. & Anr. vs. Ram Lal and others, had formulated the
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.
hereinafter extracted question of law, for determination being
made thereon:-
"Whether the services rendered on daily waged basis by
the employees before their regularization/grant of work
charged status qre to be taken into consideration for the
purpose of counting their qualifying service for grant of
pension under the Central Civil Services (Pension) Rules,
1972, and, if so, to what extent?
Therein it has been held, that the period of rendition of services
by the employees either in a daily wage capacity or in a work
charged capacity, not making them eligible for the purpose of
grant of pension, under, the Central Civil Services (Pension)
Rules, 1972. The learned counsel appearing for the petitioner,
has not been able to place on record any verdict, as made by the
Hon'ble Apex Court, upon, any apposite SLP, as became
preferred therebefore, and, wherethrough, the verdict supra
became annulled. Reiteratedly, hence the verdict supra has
acquired the fullest conclusive and binding effect. Moreover, this
Court, had through its verdict made, on 20th August, 2021, upon,
CWPOA No. 6294 of 2019, titled as Duni Chand vs. State of
H.P. & Ors., had after making an adnauseam interpretation of
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.
Rule 4 of the General Provident Fund (CS) Rules, and, also upon,
its ascribing, the, correct meaning to the coinage "temporary
post", hence occurring in Fundamental Rules 9 (30), besides
upon its making an interpretation of Rule 2 of the Central Civil
Services (Pension) Rules, 1972, had made, their respective
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interpretation(s), in the hereinafter extracted manner:-
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
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, may subscribe to GPF any time before
completion of one year service.
"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:
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.
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, 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.
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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 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 him 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 petitioner, in the year 2002, makes him 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
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conferred with a work charge status, he would, not be
.
rendering services against a regular vacancy, and rather
would serve against a regular substantive vacancy, only when
his services become regularized against the substantive
vacancy concerned. Consequently, since the conferment of
work charge status, upon the workman, occurred in the year
2002, 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 petitioner in the year 2002, 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.
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.
7. However, the learned counsel for the petitioners
also contended, on anvil of definition of "Temporary Post"
occurring in 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 him fall hence within the definition of
"Temporary Post", as occurs, in Fundamental Rules 9 (30).
"(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
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though temporarily employed, becomes entitled to draw the
.
benefits of GPF Rules, only upon, his temporary employment
being against a regular 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
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the 31st Day of December, 2003] including civilian
.
Government servants in the Defence Services, appointed
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
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makes him amenable to be valid recipients of pension, as the
.
prior thereto application clause, is rather workable, vis-à-vis,
him. 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
petitioner 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-1, communicates that all appointments made on
or after 15.5.2003 hence against every post in the State of
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Himachal Pradesh, rendering the apposite appointees, for, not
.
becoming valid recipients of CCS (pension) Rules. Therefore,
the petitioner become rather entitled to all post retiral benefits
being purveyed to him 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."
Consequently, in terms (supra), this Court, obviously denied to
the writ petitioner therein, his espoused claim qua his post retiral
benefits, rather being covered by Central Civil Services (Pension)
Rules, 1972.
4. However, the learned counsel appearing for the
petitioner placed reliance, upon, a verdict made by the Hon'ble
Punjab and Haryana High Court, upon, CWP No. 2371 of 2010,
decided on 31.08.2010, titled as Harbans Lal vs. The State of
Punjab and others, wherein in the hereinafter extracted relevant
paragraph, the rendition of services by a workman, on a work
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.
charged status, was construed to be eligibilizing him, hence, for
the purpose of receiving pensionary benefits:-
"In view of the above, the writ petition is allowed.
Accordingly, the respondents are directed to treat the
whole period of work charge service as qualified
service for pension because accordingly clarification
issued on 30.05.2008 (Annexure P-3), the new defined
Contributory Pension Scheme would be applicable to
all those employees who have been working prior to
1.1.2004 but have been regularized thereafter. Let his
pension and arrears be calculated and paid to him
expeditiously, preferably within a period of three
months from the date of receipt of copy of this Order."
The afore verdict as made by the Hon'ble Punjab and Haryana
High Court, came to be affirmed by the Hon'ble Apex Court,
through its making a decision, upon, SLP (C) 23578 of 2012, in
case titled as State of Punjab and Ors vs. Harbans Lal. However,
from the afore made conclusive verdict, the learned counsel
appearing for the petitioner, cannot make any valid argument, for
the espoused mandamus being made against the respondents,
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.
as, unlike in the verdicts as made by this Court, the Hon'ble
Punjab and Haryana High Court was dealing with the restructured
defined Contributory Pension Scheme. Therefore, the apposite
scheme qua wherewith the Punjab and Haryana High Court
became seized with, was contradistinct from, the scheme hence
appertaining to the extant lis, besides, when through Annexure P-
3, borne in Harbans Lal verdict (supra), as carried therein, the
restructured defined contributory pension scheme, was made
applicable to those employees who were working prior to 2004,
and, who had been regularized thereafter. Consequently, with
the Punjab and Haryana High Court, dealing with the afore
specific new defined Contributory Scheme and, obviously its not
dealing with the Himachal Pradesh Civil Services Contributory
Pension Rules, 2006, rather whereons the afore conclusive
binding verdict(s) became pronounced by this Court, and, also
with theirs completely covering the lis at hand. Therefore, no
valid leverage can be derived by the counsel for the petitioner,
from the verdict supra rendered by the Hon'ble Punjab and
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.
Haryana High Court, and, latter affirmed by the Hon'ble Apex
Court.
5. For foregoing reasons, there is no merit in the extant
petition, and, it is dismissed accordingly. No costs. All pending
applications also stand disposed of.
r to (Sureshwar Thakur)
Judge
23rd September, 2021.
(jai)
