Himachal Pradesh High Court
Ex. Fitter vs 2.2002. He Superannuated On ... on 21 October, 2022
Bench: Jyotsna Rewal Dua
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 21st DAY OF OCTOBER, 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No.3385 of 2019
Between:-
ROOP LAL S/O SH. HARI RAM,
R/O VILLAGE KHANOT, PO BARI,
TEHSIL BALDWARA, DISTT. MANDI, H.P.
EX. FITTER, I&PH DIVISION SARKAGHAT,
SUB-DIVISION BALDWARA,
DISTT. MANDI, H.P.
......PETITIONER
(BY MR. A.K. GUPTA AND MS. BABITA CHAUHAN,
ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY (I&PH)
WITH HEADQUARTERS AT SHIMLA, H.P.
2. THE ENGINEER-IN-CHIEF, I&PH
WITH HEADQUARTERS AT U.S. CLUB,
SHIMLA-1
3. THE SUPERINTENDING ENGINEER,
I&PH CIRCLE SUNDERNAGAR,
DISTT. MANDI, H.P.
4. THE EXECUTIVE ENGINEER,
I&PH DIVISION SARKAGHAT,
DISTT. MANDI, H.P.
5. THE SENIOR DEPUTY ACCOUNTANT
GENERAL, H.P. WITH HEADQUARTERS
AT SHIMLA-3
......RESPONDENTS
::: Downloaded on - 21/10/2022 20:06:35 :::CIS
2
(MS. RITTA GOSWAMI, ADDITIONAL ADVOCATE
GENERAL, FOR R-1 TO R-4,
MR. LOKENDER PAUL THAKUR, SENIOR PANEL
COUNSEL, FOR R-5)
RESERVED ON : 14.10.2022
.
PRONOUNCED ON : 21.10.2022
This petition coming on for hearing this day, the Court
passed the following:
ORDER
Petitioner, a retired Class-III employee, who has
been denied pension on account of not possessing the
qualifying service of 10 years, seeks applicability of a
judgment rendered on 08.03.2018 by the Hon'ble Apex
Court in case of Class-IV employees in Civil Appeal No.6309
of 2017 (Sunder Singh Versus The State of Himachal
Pradesh & Ors.), for counting his daily waged service for
grant of pension.
2. Facts:-
The petitioner was engaged as a Fitter on daily
wage basis in Irrigation & Public Health (I&PH) Department
on 11.02.1991. His services were regularized w.e.f.
01.02.2002. He superannuated on 31.10.2010. Having
served for 8 years on regular basis, i.e. less than the
required qualifying period of 10 years, the petitioner is not
being paid pension. 12 years after his retirement, the
petitioner filed this writ petition on 08.11.2019, seeking
pension with following substantive prayer:-
"i. That the respondents may be ordered to process the
case of the petitioner for pension and the same may be
.
ordered to be paid to the petitioner from the due date
with all the benefits incidental thereof."
3. Contentions:-
I have heard learned counsel on both sides.
In support of the relief claimed, Mr. A.K. Gupta,
learned counsel for the petitioner advanced submissions
under the following broad points:-
3(i). Judgment passed by the Hon'ble Apex Court in
Civil Appeal No.6309 of 2017, titled Sunder Singh
Versus The State of Himachal Pradesh & Ors., decided
on 8th March, 2018, is applicable to the case of the
petitioner for grant of pension. In terms of this judgment,
daily waged service rendered by the petitioner prior to his
regularization is to be computed towards qualifying service
for grant of pension in the manner prescribed in the
judgment.
3(ii). Petitioner, a Class-III employee, cannot be
discriminated vis-à-vis Class-IV employee in the matter of
computation of daily wage service for the purpose of grant
of pension. When daily waged service of Class-IV employees
is being counted in the manner mandated in Sunder
Singh's case, supra, towards qualifying service for grant of
pension, then by drawing the same analogy, it should be
.
counted in the same manner in case of Class-III employees
as well.
3(iii). This Court should exercise its jurisdiction under
Article 226 of the Constitution of India to obviate the
discrimination between the similarly situated Class-III and
Class-IV employees.
4. Observations:-
Before discussing the points raised by learned
counsel for the petitioner, basic provisions pertaining to
entitlement of an employee to pension may first be noticed.
4(I). Rule Position:-
4(I)(a). Central Civil Services (Pension) Rules, 1972
(hereinafter to be referred as 'Pension Rules') have been
made applicable to the State of Himachal Pradesh vide
notification dated 30.03.1974. Rule 49 of the Pension Rules
provides for qualifying service of 10 years for an employee
to become eligible for grant of pension. Relevant part of
Rule 49 reads as under:-
"(1) In the case of a Government servant retiring in
accordance with the provisions of these rules before
completing qualifying service of ten years, the amount of
service gratuity shall be calculated at the rate of half
month's emoluments for every completed six monthly
period of qualifying service.
(1-A) The Dearness Allowance admissible on the date of
retirement shall also be treated as emoluments for the
purpose of sub-rule (1);
.
(2) Subject to the proviso to sub-rule (2) of Rule 38, in the
case of a Government servant retiring in accordance
with the provisions of these rules after completing
qualifying service of not less than ten years, the amount
of pension shall be calculated at fifty per cent of
emoluments or average emoluments, whichever is more
beneficial to him, subject to a minimum of nine
thousand rupees per mensem and maximum of one lakh
twenty-five thousand rupees per mensem.............."
4(I)(b). Chapter-III of the Pension Rules outlines nature
of qualifying service. Under Rule 13 thereof, the service that
qualifies for pension commences from the date the
employee takes charge of the post to which he is appointed
either substantively or in an officiating/temporary capacity,
provided that officiating or temporary service is followed
without interruption by substantive appointment in the
same or another service or post. Relevant part of the rule
reads as under:-
"Subject to the provisions of these rules, qualifying
service of a Government servant shall commence from
the date he takes charge of the post to which he is first
appointed either substantively or in an officiating or
temporary capacity:
Provided that officiating or temporary service is
followed without interruption by substantive
appointment in the same or another service or post."
Rule 14 of the Pension Rules puts a rider that
service of a government servant shall not qualify unless his
duties and pay are regulated by the Government or under
conditions determined by the Government. It is also
provided in the rule that in order to qualify for pension,
.
service must be under the Government and paid by the
Government from the Consolidated Fund of India or a Local
Fund administered by that Government. Service in a non-
pensionable establishment is excluded from computation
unless such service is treated as qualifying service by the
Government. Relevant portion of Rule 14 is as under:-
"(1) The service of a Government servant shall not qualify
unless his duties and pay are regulated by the
Government, or under conditions determined by the
Government.
(2) For the purposes of sub-rule (1), the expression
"Service" means service under the Government and
paid by that Government from the Consolidated Fund of
India or a Local Fund administered by that Government
but does not include service in a non-pensionable
establishment unless such service is treated as
qualifying service by that Government."
4(I)(c). Rule 2(b) of the Pension Rules excludes
applicability of the rules to persons engaged in daily rated
employment. This sub-rule reads as follows:-
"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
substantively to civil services and posts in connection
with the affairs of the Union which are borne on
pensionable establishments, but shall not apply to-
(a) ...........................................
(b) persons in casual and daily-rated employment."
4(I)(d). Simple reading of CCS (Pension) Rules makes it
obvious that daily waged service rendered by the petitioner
does not qualify to be computed towards pension.
.
4(II). Judicial precedent leading to Sunder Singh's
case:-
4(II)(a). A Division Bench of this Court in CWP No.180
of 2001, titled State of H.P. and another Versus Ram
Lal and others, was dealing with the question whether the
services rendered on daily waged basis by the employees
before their regularization/grant of work charged status are
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. CWP No.3496/2011 (Sunder Singh Versus
State of Himachal Pradesh) was one of the several petitions
connected with the lead case titled State of H.P. and
another Versus Ram Lal and others.
The Division Bench decided all companion writ
petitions by a common judgment passed on 31.05.2012.
The Court took note of the fact that CCS (Pension) Rules
were made applicable to the State of Himachal Pradesh
w.e.f. 30.03.1974. The implication of Rules 2(b), 2(c), 13,
14, 49 was also considered. Various precedents on the
point involved were also noticed in the judgment. It was
held that under the applicable rules, daily wage service
cannot be counted towards the qualifying service for
.
pension. It would be appropriate to extract hereinafter some
of the relevant paragraphs from the judgment:-
"72. At the cost of repetition, we may state that under Rule
2, daily rated and casual employees were specifically
excluded by the Rules. Rule 14 does empower the
Government to include the service on a non-pensionable
establishment, but some specific orders were required
to be passed.............
74. It was contended on behalf of the employees that if two
views are possible, then the view favouring the
employees should be taken. We have no quarrel with
this proposition, but in this case, we are of the
considered view that the view canvassed on behalf of
the employees is not a possible view after we take into
consideration Rule 89. If the Rules do not envisage
counting of daily wage service towards qualifying
service for pension, this Court cannot, by judicial fiat,
direct that the daily wage service must be taken into
consideration while calculating the qualifying service in
terms of the Pension Rules.................
77. In view of the above discussion, we are of the
considered view that the Pension Chapter of the Civil
Service Regulations, which governed the employees
earlier, stood repealed after the enforcement of the
Central Civil Service (Pension) Rules, 1972 and the
savings portion of Rule 89 of the 1972 Rules does not
save the Office Memorandum No.F.12(1)E.V/68, dated
14th May, 1968. Consequently, we answer the question
framed by us earlier holding that the service rendered
on daily waged basis by the employees before their
regularization/grant of work charged status cannot be
taken into consideration for counting their qualifying
service for grant of pension under the Central Civil
Service (Pension) Rules, 1972. The writ petition is
disposed of in the aforesaid terms."
4(II)(b). Apex Court judgment in Sunder Singh's case:-
Some of the petitioners whose writ petitions
were disposed of under the Division Bench judgment dated
.
31.05.2012, chose to assail the said judgment before the
Hon'ble Apex Court by filing Special Leave Petitions. These
SLPs were connected and decided on 08.03.2018 under the
lead case Civil Appeal No.6309 of 2017 (Sunder Singh
Versus The State of Himachal Pradesh & Ors.). In these
cases, the appellants were retired regular Class-IV
employees seeking to count the daily wage service rendered
by them prior to their regularization towards qualifying
service for pension. Hon'ble Apex Court disposed of the
petitions with 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 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.
4. Since the appellants have not rendered the requisite 10
years of 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 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 terms."
4(II)(c). Implication of judgment in Sunder Singh's
case:-
In Sunder Singh's case, the appellants belonged
only to Class-IV category. Employees belonging to Class-III
category were not the appellants therein. The directions
passed by the Hon'ble Apex Court in Sunder Singh's case
were specifically made applicable only to Class-IV
employees. This is apparent from the following extracts
from the judgment:-
"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
after 10 years of service.
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 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."
Judgment in Sunder Singh's case itself restricts
.
its applicability to the appellants therein, who belonged to
Class-IV category or other similarly placed Class-IV
employees. In the judgment, Hon'ble Apex Court has
observed that 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 Doctrine of Proportionate Equality, daily
wage service rendered by Class-IV employee was directed to
be counted towards qualifying service for pension in the
manner mandated in the judgment. Paragraph 5 of the
judgment, being relevant in this regard, reads as under:-
"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."
The judgment not only has been made
applicable specifically to Class-IV category, but is also
under Article 142 of the Constitution of India. In (2014) 8
SCC 883, State of Punjab and others Versus Rafiq
Masih, it was held that Article 142 of the Constitution of
India is supplementary in nature and cannot supplant the
substantive provisions of the statute. The directions of the
.
Court under Article 142 of the Constitution of India that
relax the application of law or exempt the case in hand from
the rigour of law in view of the peculiar facts and
circumstances do not compromise the ratio decidendi and
therefore lose its basic premise of making it a binding
precedent. Jurisdiction under Article 136 of the
Constitution of India is corrective that vests a discretion in
the Hon'ble Supreme Court to settle and declare the law
and make it a binding precedent for future instead of
keeping it vague. Paragraphs 9 to 13 of the judgment read
as under:-
"9. The word 'complete justice' was fraught with
uncertainty until Article 142 of the Constitution received
its first interpretation in Prem Chand Garg v. Excise
Commr. which added a rider to the exercise of wide
extraordinary powers by laying down that though the
powers are wide, the same is an ancillary power and
can be used when not expressly in conflict with the
substantive provisions of law. This view was endorsed
by a nine-Judge Bench in Naresh Shridhar Mirajkar v.
State of Maharashtra reiterated by a seven-Judge
Bench in A.R. Antulay v. R.S. Nayak and finally settled
in Supreme Court Bar Assn. v. Union of India.
10. Article 136 of the Constitution of India, confers a wide
discretionary power on the Supreme Court to interfere in
suitable cases. Article 136 is a special jurisdiction and
can be best described in the words of this Court
in Ramakant Rai v. Madan Rai: (SCC p.403, para 14)
"14. ...It is a residuary power; it is
extraordinary in its amplitude, its limits, when it
chases injustice, is the sky itself".
11. Article 136 of the Constitution of India was legislatively
intended to be exercised by the Highest Court of the
Land, with scrupulous adherence to the settled judicial
.
principle well established by precedents in our
jurisprudence. Article 136 of the Constitution is a
corrective jurisdiction that vest a discretion in the
Supreme Court to settle the law clear and as forthrightly
forwarded in the case of Union of India v. Karnail Singh,
it makes the law operational to make it a binding
precedent for the future instead of keeping it vague. In
short, it declares the law, as under Article 141 of the
Constitution.
12. Article 142 of the Constitution of India is supplementary
in nature and cannot supplant the substantive
provisions, though they are not limited by the
substantive provisions in the statute. It is a power that
gives preference to equity over law. It is a justice
oriented approach as against the strict rigors of the law.
The directions issued by the court can normally be
categorized into one, in the nature of moulding of relief
and the other, as the declaration of law. "Declaration of
Law" as contemplated in Article 141 of the Constitution:
is the speech express or necessarily implied by the
Highest Court of the land. This Court in Indian Bank v.
ABS Marine Products (P) Ltd., Ram Pravesh Singh v.
State of Bihar and in State of U.P. v. Neeraj Awasthi,
has expounded the principle and extolled the power
of Article 142 of the Constitution of India to new heights
by laying down that the directions issued under Article
142 do not constitute a binding precedent unlike Article
141 of the Constitution of India. They are direction
issued to do proper justice and exercise of such power,
cannot be considered as law laid down by the Supreme
Court under Article 141 of the Constitution of India. The
Court have compartmentalized and differentiated the
relief in the operative portion of the judgment by
exercise of powers under Article 142 of the Constitution
as against the law declared. The directions of the Court
under Article 142 of the Constitution, while moulding
the relief, that relax the application of law or exempt the
case in hand from the rigour of the law in view of the
peculiar facts and circumstances do not comprise the
ratio decidendi and therefore lose its basic premise of
making it a binding precedent. This Court on the qui
vive has expanded the horizons of Article 142 of the
Constitution by keeping it outside the purview of Article
141 of the Constitution and by declaring it a direction of
the Court that changes its complexion with the
peculiarity in the facts and circumstances of the case.
13. Therefore, in our opinion, the decisions of the Court
.
based on different scales of Article 136 and Article
142 of the Constitution of India cannot be best weighed
on the same grounds of reasoning and thus in view of
the aforesaid discussion, there is no conflict in the
views expressed in the first two judgments and the
latter judgment."
In (2006) 5 SCC 72, Indian Bank Versus ABS
Marine Products (P) Ltd., it was observed that many times
after declaring the law, Hon'ble Apex Court in operative part
of the judgment, gives some directions, either relaxing the
application of law or exempting the case in hand from the
rigour of the law in view of the peculiar facts in order to do
complete justice. While doing so, normally it is not stated
that such direction/order is in exercise of power under
Article 142. The Court should be very careful to ascertain
and follow the ratio decidendi and not the relief given on the
special facts, exercising power under Article 142. Paragraph
26 of the judgment reads as under:-
"26. One word before parting. Many a time, after declaring
the law, this Court in the operative part of the judgment,
gives some directions which may either relax the
application of law or exempt the case on hand from the
rigour of the law in view of the peculiar facts or in view
of the uncertainty of law till then, to do complete justice.
While doing so, normally it is not stated that such
direction/order is in exercise of power under Article
142. It is not uncommon to find that courts have
followed not the law declared, but the exemption/
relaxation made while moulding the relief in exercise of
power under Article 142. When the High Courts
repeatedly follow a direction issued under Article 142,
by treating it as the law declared by this Court,
incongruously the exemption/relaxation granted
.
under Article 142 becomes the law, though at variance
with the law declared by this Court. The courts should
therefore be careful to ascertain and follow the ratio
decidendi, and not the relief given on the special facts,
exercising power under Article 142. One solution to
avoid such a situation is for this Court to clarify that a
particular direction or portion of the order is in exercise
of power under Article 142. Be that as it may."
The judgment in Indian Bank's case, supra, was
reiterated in (2021) 9 Scale 362, titled Union of India &
another Versus Onkar Nath Dhar, and further reference
was made to (2006) 8 SCC 38, titled Ram Pravesh Singh
and others Versus State of Bihar and others, wherein it
was observed that tenor of an order, which is not preceded
by any reason or consideration of any principle,
demonstrates that it was an order passed under Article 142
of the Constitution of India on peculiar facts of that case.
Such direction is not a binding precedent.
In Sunder Singh's case, supra, Hon'ble Apex
Court did not set aside the impugned common judgment
passed by the Division Bench on 31.05.2012 in the writ
petitions. Rather, it was observed by the Apex Court in its
decision that strict construction of the rules will preclude
computation of daily waged service towards pension. The
Rules were also not set-aside. However, reading the rules
consistent with Articles 14, 38 and 39 of the Constitution of
.
India and applying the Doctrine of Proportionate Equality,
the appellants and similarly placed Class-IV employees
were held entitled to the weightage of service rendered by
them as daily wagers towards regular service for the
purpose of pension. Accordingly, a formula was worked out
in para 6 of the judgment for treating 5 years of daily waged
service equal to one year of regular service for pension as
under:-
"6. ...........................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.
The judgment rendered by the Hon'ble Apex
Court in Sunder Singh's case and the directions issued
therein for Class-IV employees are within the ambit of
Article 142 of the Constitution of India and therefore,
cannot be made applicable to the petitioner, a Class-III
employee. Under the applicable Pension Rules, the daily
wage service rendered by an employee is not liable to be
counted towards qualifying service for pension.
4(III). Judgments in Mool Raj Upadhyaya and
Sunder Singh's case vis-à-vis argument of
discrimination between Class-III and Class-IV
employees:-
.
Some employees belonging to Class-III and
Class-IV categories working for a number of years on daily
wage basis in I&PH Department, filed a petition under
Article 32 of the Constitution of India before the Hon'ble
Supreme Court seeking regularization of their services.
Taking into consideration the scheme framed by the State
Government and the facts of the case, following directions
were passed in the case:-
"4. Taking into consideration the facts and circumstances of
the case, we modify the said scheme by substituting
paragraphs 1 to 4 of the same by the following
paragraphs:
"(1) Daily-wage/muster-roll workers, whether skilled
or unskilled, who have completed 10 years or more of
continuous service with a minimum of 240 days in a
calendar year on 31-12-1993, shall be appointed as
work charged employees with effect from 1-1-1994
and shall be put in the time-scale of pay applicable to
the corresponding lowest grade in the Government;
(2) daily wage/muster-roll workers, whether skilled
or unskilled, who have not completed 10 years of
continuous service with a minimum of 240 days in a
calendar year on 31-12-1993, shall be appointed as
work-charged employees with effect from the date
they complete the said period of 10 years of service
and on such appointment they shall be put in the time-
scale of pay applicable to the lowest grade in the
Government;
(3) daily-wage/muster-roll workers, whether skilled
or unskilled who have not completed 10 years of
service with a minimum of 240 days in a calendar
year on 31-12-1993, shall be paid daily wages at the
rates prescribed by the Government of Himachal
Pradesh from time to time for daily-wage employees
falling in Class III and Class IV till they are appointed
as work-charged employees in accordance with
paragraph 2;
(4) daily-wage/muster-roll workers shall be
.
regularised in a phased manner on the basis of
seniority-cum-suitability including physical fitness. On
regularisation they shall be put in the minimum of the
time-scale payable to the corresponding lowest grade
applicable to the Government and would be entitled to
all other benefits available to regular government
servants of the corresponding grade."
The emphasis of learned counsel for the
petitioner is that the scheme framed by the State for I&PH
Department, as modified by the Hon'ble Apex Court, was
applied equally to Class-III and Class-IV employees engaged
on daily wage basis. Under the circumstances, both sets of
employees are entitled to equal treatment insofar as
counting of daily wage service towards grant of pension is
concerned. When weightage of daily wage service rendered
by a Class-IV employee is being given for determining his
eligibility for pension in terms of the judgment in Sunder
Singh's case, supra, then in the similar manner, the daily
wage service rendered by a Class-III employee, should also
be considered while computing his qualifying service
towards pension or else it would amount to discrimination
between similarly situated daily wage employees engaged on
Class-III and Class-IV posts.
The above argument has no appealing force.
Class-III and Class-IV are different categories of posts.
Under service jurisprudence, ordinarily Class-IV employees
.
can be promoted to Class-III post subject to the concerned
Recruitment & Promotion Rules. What applies to Class-III
categories of posts need not necessarily be applied to Class-
IV posts. In Mool Raj Upadhyaya's case, supra, the issue
pertained to regularization of daily waged Class-III and
Class-IV employees. Both sets of employees were before the
Hon'ble Apex Court in Mool Raj Upadhyaya's case. The
directions in the judgment were specifically given for both
categories of employees. Entitlement to pension,
interpretation and impact of CCS (Pension) Rules, 1972 on
qualifying service for purpose of pension was not the issue
in Mool Raj Upadhyaya's case. The directions issued in
Sunder Singh's case are in exercise of jurisdiction under
Article 142 of the Constitution of India and their benefit has
been restricted to Class-IV employees only.
4(IV). Judgments relied upon by the petitioner:-
4(IV)(a). Learned counsel for the petitioner pressed into
service a judgment dated 31.08.2010 passed by the Hon'ble
Punjab & Haryana High Court in CWP No.2371 of 2010
(Harbans Lal Versus State of Punjab and others), to
contend that the period spent by the daily wager cannot be
excluded while calculating the qualifying service for
pension. I am afraid the judgment relied upon has no
.
applicability to the issue involved in the instant case. In
Harbans Lal's case, a New Re-structured Defined
Contributory Pension Scheme was introduced by the
Government of India w.e.f. 01.01.2004 for new entrants to
government service. Thereafter, the Punjab Government
vide circular dated 30.05.2008, clarified that the New Re-
structured Defined Contributory Pension Scheme would be
applicable w.e.f. 01.01.2004 in case of Punjab Government
employees whose services were regularized after
01.01.2004, though they were engaged as daily wagers or
on work-charge basis prior to that. The High Court quashed
the circulars. The decision of the High Court was affirmed
by the Hon'ble Apex Court on 30.07.2012. The point
whether the service rendered on daily wage basis is liable to
be counted towards qualifying service for pension was not
involved in Harbans Lal's case, supra. The Court had
considered the Punjab Civil Services Rules, 1970. The
Pension Rules involved in the instant case were not under
consideration in that case.
4(IV)(b). In Kesar Chand Versus State of Punjab and
others, 1988 (5) SLR 27, a Full Bench of the Punjab and
Haryana High Court held that an employee is entitled to
.
count the work charged services rendered by him for
computing the qualifying service for grant of pension and
gratuity. Though this judgment pertains to counting of
work charge service towards qualifying service for the
purpose of pension, but relying upon this decision, in some
subsequent decisions from the Punjab and Haryana High
Court, daily wage service has been ordered to be counted
while calculating the qualifying service for the purpose of
pension. However, the rule position under the Pension
Rules involved in the instant case has not been discussed
in the aforesaid judgments. Applicable rules involved there
were the Punjab Civil Services Rules, 1970. This has been
noticed by the Division Bench of this Court in Ram Lal's
case, supra, as under:-
"36. In Kesar Chand versus State of Punjab and others,
1988 (5) SLR 27, a Full Bench of the Punjab and
Haryana High Court held that an employee is entitled to
count the service rendered by him on work charge basis
for counting the whole of his service for the purpose of
calculating the pension and gratuity. The State of
Himachal Pradesh is admittedly counting the service
rendered on work charge basis for calculating the
pension. This decision does not deal with the question
of counting service rendered on daily wages for
calculating the qualifying service for purposes of
pension.
41. A Division Bench of the Punjab and Haryana High Court
in Mangat Ram versus Haryana Vidyut Prasaran Nigam
Ltd. and others, 2005 (5) SLR 793, following the Full
Bench Decision in Kesar Chand's case held that the
period spent by the daily wager cannot be excluded
while calculating the qualifying service as it was
.
followed by regular service which was continuous. In
Ram Dia and others versus Uttar Haryana Bijli Vitran
Nigam Ltd. (UHBVNL) and another, 2005 (8) SLR 765,
the service rendered on work charge basis has been
directed to be taken into account. In both these cases
the provisions of Rule 2 of the CCS CCA Rules have not
been taken into account.
42. A learned Single Judge of the Punjab and Haryana
High Court in Babu Ram versus State of Haryana and
others, 2009 (4) SLR 337, again held that the services
rendered by employees on daily wages should be
counted towards their qualifying service. However,
there is no discussion on this issue and it has been
decided only on the basis of the previous judgments of
the Punjab and Haryana High Court.
47. The Apex Court in Union of India and others versus
Rakesh Kumar supra has also clearly held that the
pensionary benefit cannot be granted dehors the
statutory rules. It has been laid down in unambiguous
terms that the courts cannot direct payment of pension
on the ground of so called hardship. A perusal of Rule
2(b) and 2(c) of the pension Rules clearly shows that the
rules do not apply to persons in casual and daily rated
employment and persons paid from contingencies. No
doubt, Rule 13 provides that the qualifying service of a
government servant shall commence from the date he
takes charge of the post to which he is first appointed
either substantially or in officiating or temporary
capacity. The contention of the petitioners is that the
phrase "officiating or temporary capacity" shall include
the appointment on daily wages also. We are afraid
that we cannot accept this contention. Temporary
service cannot be equated with service rendered on
daily wages. We are aware that judgments of the
Punjab and Haryana High Court and the Delhi High
Court are to the contrary. However, as pointed out
above, these courts have not taken into consideration
the specific exclusion under rule 2(b) and 2(c) of the
Pension Rules. In Kesar Chand's case, a Full Bench of
the Punjab and Haryana High Court was only dealing
with the service rendered on work charge basis. This
service is being counted for purposes of pension by the
State of Himachal Pradesh. However, the later
judgments of the Punjab and Haryana High Court have
applied the judgment in Kesar Chand's case in cases of
daily wagers also, but without taking note of the
specific exclusion under Rule 2(b) and 2(c) of the
.
Pension Rules. We are of the view that Rule 13 only
contemplates the counting of service which has been
rendered after appointment on substantial, officiating or
temporary capacity. This pre-supposes that
appointment is in terms of the rules like the Temporary
Civil Service Rules. Daily wagers have been specifically
excluded and on a reading of the Rules, it cannot be
said that the words "officiating and temporary capacity"
cover the employees engaged on casual daily rated
basis."
4(IV(c). Reliance placed upon (2019) 10 SCC 516, titled
Prem Singh Versus State of Uttar Pradesh and others,
is of no assistance to the petitioner. The said matter was
regarding counting work charge service towards pension
and revolved around Uttar Pradesh Retirement Benefits
Rules, 1961 and Uttar Pradesh Civil Services Regulations.
The implication of judgment in Prem Singh's case, supra,
was considered by the Hon'ble Apex Court in Civil Appeal
No.7068 of 2022, titled Sunita Burman Versus The
Commissioner, M.P. Housing and Infrastructure
Development Board and others, decided on 14.10.2022,
as under:-
"13. As for the decision in the case of Prem Singh (supra)
cited on behalf of the appellant, the question raised in
the said matter related to the validity of Rule 3(8) of the
Uttar Pradesh Retirement Benefits Rules, 1961 and
Regulation 370 of the Civil Services Regulations of Uttar
Pradesh. In a backdrop where this Court had earlier
affirmed the decision of the High Court of Punjab and
Haryana in the case of Kesar Chand v. State of Punjab,
in relation to pari materia provisions enacted in the
State of Punjab which excluded computation of the
period of work charged services from qualifying service
.
for grant of pension, a three Judge Bench of this Court
examined several decisions on this aspect and on
perusing the Note appended to Rule 3(8) of the Uttar
Pradesh Retirement Benefits Rules, 1961 and
Regulation 370 of the Civil Services Regulations, held
that since the service of the appellant in the said case
had been regularized on a vacant post, Rule 3(8) of the
U.P. Retirement Benefits Rules, 1961 ought to be read
down in respect of the services rendered by him even
prior to his regularization and the period spent in the
capacity of a charged employee/contingency paid fund
employee or non-pensionable establishment employee
ought to be counted towards the qualifying service for
extending the benefit of pension to such employees.
14. The fact situation in the case in hand is entirely
different. The deceased husband of the appellant had
remained a work charged employee till the date of his
demise on 26th April, 2016. His services had not been
regularized. The Office Order dated 29th October, 1997
relied on by the appellant to urge that the services of the
deceased husband of the appellant had been
regularized, is being misread as can be discerned from
the first para of the said order which states that daily
wages Muster Roll employees working between 26th
May, 1974 to 30th June, 1981 and named therein were
being appointed in work charged establishments and
further, that the M.P. Work Charged and Contingency
Paid Employees Recruitment and Service Rules, 1977
was made applicable to them. We have noticed above
that the aforesaid rules were never adopted by the
respondent No.1-Housing Board or extended to its work
charged employees. Being cognizant of the vacuum
relating to the service conditions of the employees
working in its work charged establishments, the Board
of Directors of the respondent No.1-Housing Board had
deliberated over the matter and decided on 6th April,
2015 to extend the benefit of pension to the said
employees by bringing them within the purview of the
NPS and they were given an option to become a member
of the said Scheme so as to avail the benefit of pension.
As her deceased husband had elected not to opt for the
said Scheme, the appellant cannot claim entitlement to
payment of family pension on his demise.
15. We therefore hold that the deceased husband of the
appellant was not a regular employee of the respondent
No.1-Housing Board. He had remained a work charged
employee in the establishment of the Housing Board till
.
the date of his demise. Even while serving in the said
capacity, the appellant's deceased husband could have
opted for pension under the NPS that was made
available to the work charged employees of the
respondent No.1-Housing Board in terms of the order
dated 02nd July, 2015. But he did not opt for the said
Scheme. The appellant is, therefore, not entitled to
receive family pension from the respondent No.1-
Housing Board."
4(IV(d). Reliance placed upon (2020) 8 SCC 106, titled
V. Sukumaran Versus State of Kerala and another,
decided by the Apex Court on 26.08.2020, is again
misplaced as Hon'ble Apex Court categorically observed in
the judgment that "pensionary provisions must be given a
liberal construction as a social welfare measure. This does
not imply that something can be given contrary to rules,
but the very basis for grant of such pension must be kept in
mind i.e. to facilitate a retired government employee to live
with dignity in his winter of life and, thus, such benefit
should not be unreasonably denied to an employee, more so
on technicalities."
4(IV)(e). In AIR 2014 Patna 208, titled State of Bihar
Vs. Bhagwan Singh, a Full Bench of Patna High Court was
considering the question whether the service rendered by
the government servant on daily wages followed by
regularization in service will be considered pensionable
under the Bihar Pension Rules, 1950. The Full Bench on
.
consideration of the applicable rules as under held that the
service rendered by the employee on daily wages was not
pensionable service and did not qualify for pension:-
"[11] We shall first consider the relevant provisions of the
Pension Rules, 1950.
Rule 56 of the Pension Rules provides that 'unless it be
otherwise provided by special rule or contract, the
service of every government servant qualifies from the
date he takes the charge of the post to which he is first
appointed'. Rule 58 thereof provides that the service of
a Government servant does not qualify for pension
unless it conforms to the following three conditions:-
(i) The service must be under Government.
(ii) The employment must be substantive and
permanent.
(iii) The service must be paid by Government.
Rule 61 thereof provides, 'service does not qualify
unless the Government servant holds substantively a
post on a permanent establishment'. Rule 45 thereof
expressly excludes certain service for computation of
pension. Clause (a) thereof reads, 'when a government
servant is appointed for a limited time only, or for a
specified duty, on the completion of which he is to be
discharged'. Clause (b) thereof reads, 'when a person is
employed temporarily on monthly wages without
specified limit of time or duty'.
[13] Keeping in view the above provisions, we are of the
opinion that the service rendered by the petitioner as
daily wage Choukidar under the Executive Engineer,
Tubewell Division, Gaya cannot be said to be a service
for which the petitioner was paid from the general
revenue of the State Government or the service rendered
on a substantive post in a permanent establishment.
Such service, although was followed by absorption on
regular establishment, will not qualify for pension.
Therefore, the service rendered by the petitioner, as
daily wage employee from April 1973 to December,
1978, was not a pensionable service or did not qualify
for pension."
No other point was urged.
5. The conclusion of above discussion is that CCS
.
(Pension) Rules, 1972, which govern grant of pension in the
State of Himachal Pradesh, do not envisage counting of
daily wage service towards pension. Period of daily waged
service, therefore, cannot be computed towards qualifying
service for pension. The Division Bench of this Court in its
common judgment dated 31.5.2012 deciding a number of
connected writ petitions including CWP No.3496/2011
(Sunder Singh Versus State of Himachal Pradesh), after
threadbare discussion of the Pension Rules and judicial
precedents, had categorically held that "service rendered on
daily waged basis by the employees before their
regularization/grant of work charged status cannot be
taken into consideration for counting their qualifying
service for grant of pension under the Central Civil Services
(Pension) Rules, 1972." In appeal against this judgment,
preferred by some Class-IV category employees, Hon'ble
Apex Court in its judgment dated 08.03.2018 (Sunder
Singh Versus State of Himachal Pradesh & Ors.) did not set
aside the Division Bench judgment of the High Court. In
fact, it was observed by the Hon'ble Apex Court that strict
application of the Rules may not entitle the appellants to
pension. The Rules were also not quashed. It was only by
.
reading the rules consistent with Articles 14, 38 and 39 of
the Constitution of India and applying the doctrine of
proportionate equality that a method was devised for giving
weightage to the daily waged service towards pension in the
manner mandated in the judgment. However, the judgment
was specifically made applicable only to the appellants, who
were Class-IV employees and similarly placed Class-IV
employees. The judgment falls within the ambit of Article
142 of the Constitution of India. It has an overriding effect
on CCS (Pension) Rules, 1972, but only vis-à-vis Class-IV
category of employees. Its benefit cannot be extended to the
petitioner, a retired Class-III employee. The argument of
discrimination between Class-IV and Class-III employees
vis-à-vis counting of daily waged service for the purpose of
pension on the basis of applicability of judgments in
Sunder Singh and Mool Raj Upadhyaya's cases is
misplaced. The issue in Mool Raj Upadhyaya's case
pertained to regularization of daily waged Class-III and
Class-IV employees. Question of counting daily waged
service or giving weightage to daily waged service towards
qualifying service for grant of pension was not involved
there.
The respondents have acted in terms of the CCS
.
(Pension) Rules, 1972 and accordingly denied pension to
the petitioner for the reason that he did not possess
minimum required qualifying service of 10 years for grant of
pension. Taking into consideration the applicable rule
position, the stand of the respondents in denying pension
to the petitioner cannot be faulted.
In view of the above discussion, I find no merit
in the instant petition. The same is accordingly dismissed
alongwith pending miscellaneous application(s), if any.
Jyotsna Rewal Dua
Judge
October 21, 2022
Mukesh
