Himachal Pradesh High Court
Hem Raj Sharma vs State Of Himachal Pradesh & Others on 16 September, 2023
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No.844 of 2019 alongwith
CWPOA Nos.775, 786, 792, 797, 810, 832,
846, 847, 1060, 5610, 5613 of 2019, 4710,
5060 of 2020, CWP Nos.166, 2251, 5653 of
2022
.
Date of Decision: September 16, 2023
1. CWPOA No.844 of 2019
Hem Raj Sharma ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
2. CWPOA No.775 of 2019
Raj Mal
r ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
3. CWPOA No.786 of 2019
Bimla Devi ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
4. CWPOA No.792 of 2019
Hem Raj Sharma ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
5. CWPOA No.797 of 2019
Surender Kumar Sharma & others ...Petitioners.
Versus
State of Himachal Pradesh & others ..Respondents.
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6. CWPOA No.810 of 2019
Daya Gupta ...Petitioner.
Versus
.
State of Himachal Pradesh & others ..Respondents.
7. CWPOA No. 832 of 2019
Parma Nand Gautam ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
8. CWPOA No. 846 of 2019
Brij Lal ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
9. CWPOA No.847 of 2019
Balbir Singh ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
10. CWPOA No. 1060 of 2019
Hari Singh ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
11. CWPOA No.5610 of 2019
Prabha Thakur ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
12. CWPOA No.5613 of 2019
Roshan Lal & others ...Petitioners.
Versus
State of Himachal Pradesh & others ..Respondents.
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13. CWPOA No.4710 of 2020
Gopal Singh Sadrehru & others ...Petitioners.
Versus
State of Himachal Pradesh & others ..Respondents.
.
14. CWPOA No.5060 of 2020
Sudesh Kumar & others ...Petitioners.
Versus
State of Himachal Pradesh & others ..Respondents.
15. CWP No.166 of 2022
Bhuvneshwar & others ...Petitioners.
Versus
State of Himachal Pradesh & others
r ..Respondents.
16. CWP No.2251 of 2022
Raj Kumar ...Petitioner.
Versus
State of Himachal Pradesh & others ..Respondents.
17. CWP No.5653 of 2022
Sangeeta Chopra & another ...Petitioners.
Versus
State of Himachal Pradesh & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the Petitioner(s): Ms.Heena Chauhan, Advocate, vice Mr.B.S.
Thakur, Advocate, M/s Parav Sharma,
Adarsh K. Vashista, Vikas Rajput & Vinod
Chauhan, Advocates, for the respective
petitioners, in all respective petitions.
For the Respondents: Mr. Anup Rattan, Advocate General,
alongwith Mr.Rajesh Mandhotra, Additional
Advocate General, in all the petitions.
1 Whether reporters of the local papers may be allowed to see the judgment?
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Mr.Rajesh Prakash, Advocate, vice
Mr.B.Nandan, Advocate, for private
respondent in CWPOA No.5060 of 2020.
Vivek Singh Thakur, J (Oral)
.
These petitions, for involvement of common question
of fact and law, required to be adjudicated in these petitions, are
being decided by this common judgment.
2. In these petitions, issue involved is that as to
whether a person appointed to a post temporarily, without
having special qualification required for recruitment to the said
post, but in due process completed for such appointment
pursuant to Policy adopted by the State, is entitled for counting
his temporary service for annual increments and pensionary
benefits on regularization of his service on the same post,
without interruption.
3. Admittedly, petitioners, in sequel to Policy adopted
by the State of Himachal Pradesh, with qualification of Trained
Graduate Teachers (TGTs), Language Teachers (LTs), Shastris
etc., who were not Junior Basic Teachers (JBTs) were appointed
as JBT on contract basis in the Department of Elementary
Education, Himachal Pradesh. After serving for quite
considerable long period, they after completing special Training
provided by the Government, were conferred Special JBT
Certificates. Thereafter, their services were regularized as JBTs
in the Education Department.
4. Petitioners have approached this Court, seeking
direction to the respondents to extend benefit of period of their
services rendered by them on contract basis prior to their
regularization, but from the date of initial appointment, for
annual increments and counting for the purpose of pensionary
.
benefits.
5. The aforesaid issue is no longer res integra, but
stands settled in various pronouncements of this High Court,
affirmed by the Supreme Court.
6. In Paras Ram vs. State of Himachal Pradesh and
another, Latest HLJ 2009 (HP) 887, it was held by the Court as
under:- r
"4. In the present case petitioner has uninterruptedly
worked against the post of Junior Basic Trained Teacher
on ad hoc basis and has been awarded special certificate.
He was regularized on 13.11.1997. In view of Annexure
PB, the ad hoc services rendered by the petitioner before
his regularization are to be counted towards annual
increments. The petitioner has served the respondent-
State as Junior Basic rained Teacher from 1987. He is
entitled to get the entire services counted which has
rendered on ad hoc basis with effect from 1987 for the
purpose of annual increments. The petitioner has worked
as a Junior Basic Trained Teacher for all intents and
purposes and has been issued a certificate by the State as
per notification dated 31.08.1995. There is no distinction
visualized/contemplated in Annexure PB to which
category the benefit of ad hoc services is to be granted
for the purpose of annual increments. This notification
will cover all the cases where the persons had worked on
ad hoc basis and immediately thereafter they were
regularized without any break in the Education
Department. The services which the petitioner had
similarly situate persons have rendered on ad hoc basis
for a long period; cannot be permitted to be rendered
otiose."
7. On the basis of aforesaid pronouncement, one Sita
Ram was granted same benefit but without benefit of seniority
.
and he had approached the Division Bench, by filing LPA No.36 of
2010, which was decided on 15.07.2010 denying him benefit of
seniority on the basis of ad hoc service, but declaring him entitle
for counting of ad hoc services followed by regular services for
the purpose of increment and pension.
8. In CWP No.4550 of 2010, titled as Ravi Kumar vs.
State of H.P. and another, decided on 16.12.2010 alongwith
connected matters, in case of tenure appointees, direction was
given to grant annual increment during period of tenure services
and to count the said period for the purpose of pension like ad
hoc appointees in the Education Department. However, issue
related to contract Teachers was kept open to be decided by the
Authority.
9. In CWP No.5400 of 2014, titled as Veena Devi vs.
Himachal Pradesh State Electricity Board Ltd & another, decided
on 21.11.2014, contract service followed by regular appointment
without interruption was directed to be considered for the
purpose of qualifying service for pensionary benefits.
10. Special Leave to Appeal CC No(s) 18898 of 2015,
titled as H.P. State Electricity Board Ltd. and another vs. Veena
Devi, preferred against the said order was dismissed by the
Supreme Court on 26.10.2015.
11. In CWP No.8953 of 2013, titled as Joga Singh and
others vs. State of Himachal Pradesh and others, and connected
matters, decided on 15.06.2015, petitioners therein were
.
appointed as Vidya Upasaks against vacant posts of JBT following
procedure laid down in Vidya Upasak Yojna 1998. They were not
possessing JBT certificates. After undergoing 21 days initial
training and one year condensed Teacher Training Course, they
were regularized/absorbed against JBT posts in Education
Department. The Division Bench of this Court had directed to
extend benefits period of period of their service as Vidya
Upasaks, which was followed by regular appointment, for annual
increments as well as counting qualifying service for pension.
12. After dismissal of SLP(C) No.183 of 2016, titled as
State of H.P. & others vs. Joga Singh and others, Review Petition
(Civil) No.274 of 2017 in the said SLP(C) No.183 of 2016, was
dismissed by the Supreme Court on 02.03.2017.
13. In similar case CWPOA No.195 of 2019, titled as
Sheela Devi vs. State of H.P. & others, decided on 26.12.2019,
after taking into consideration Rule 17 of Central Civil Services
(Pension) Rules, 1972 (hereinafter referred to as 'CCS Pension
Rules), and other pronouncements of this High Court as well as
Supreme Court, Division Bench of this Court had directed to
count period of contract service followed by regular service as
qualifying service for granting pension.
14. In Jagdish Chand vs. State of Himachal Pradesh &
others, decided on 10.01.2020, alongwith connected matters,
wherein petitioners, who were not JBT, but having qualification as
TGT, O.T., Shastri etc. were appointed against sanctioned vacant
post(s) of JBT as Vidya Upasak. Their services were regularized
.
as JBTs in the year 2007 after awarding them special JBT
certificates. In this matter, it was directed to count contract
service followed by regularization against the post of JBT towards
qualifying service for the purpose of pension under CCS Pension
Rules as well as for annual increment, but restricting actual
financial benefits to three years prior to filing of writ petitions.
15. It is also an admitted fact that SLP (Civil) No.10399 of
2020, titled as State of Himachal Pradesh & another vs. Sheela
Devi, and SLP(C) Nos.8012-8013 of 2021, in State of Himachal
Pradesh vs. Jagdish Chand, have been dismissed by the Supreme
Court vide order dated 07.08.2023 with direction that past
service of contractual employee on regularization is to be
counted for the purpose of pension and thus judgments in Sheela
Devi's and Jagdish Chand's cases, referred supra, have attained
finality.
16. Learned Additional Advocate General, though not
pleaded in the reply, has contended that in Sheela Devi's case
benefits of counting contract service for annual increment has
not been granted.
17. In Sheela Devi's case (supra), the High Court has
directed to count the contract service for the purpose of
qualifying service towards pension. However, Apex Court, in its
order dated 7.8.2023 has directed the respondents/State to
count the contract service for the purpose of pension. Needless
to say that for counting the service to extend the benefit thereof
for pension, annual increment for the relevant period is an
.
essential factor required to be considered for calculating
pension. Observations by the Division Bench of this Court in this
regard in CWP No.850 of 2010, titled Paras Ram vs. State of HP
and others, Latest HLJ 2009 (HP) 887, as also referred in order
dated 15.7.2010 passed by a Division Bench of this Court in LPA
No.36 of 2010, titled Sita Ram vs. State of H.P., are relevant
wherein it has been stated that service counted for the purpose
of annual increment will be counted for pension also. There is
direction for counting the contractual service for
pension/pensionary benefits. Counting of service for pension
includes, counting of length of service for qualifying service for
pension, as well as for quantifying the amount of pension
payable by calculating it on the basis of basic pay with addition
of increment. Therefore, direction to count service for pension
also mandates calculation of pension by granting annual
increment for relevant period either actual or notional basis.
18. It is also apt to record that CWP No.850 of 2010,
titled Paras Ram vs. State of HP and others was decided on
19.10.2010, which has attained finality. Order in Sita Ram's case
has also attained finality.
19. Following the aforesaid judgments a Division Bench
of this Court in CWPOA No.5187 of 2020, titled as Sunil Dutt &
others vs. State of Himachal Pradesh & others and CWPOA
No.5507 of 2020, titled as Oma Wati and another vs. State of
Himachal Pradesh and others, has directed to extend benefit of
annual increments and counting of period of contract service
.
followed by regular appointment for the purpose of pensionary
benefits by observing as under:-
"8. Despite repeated observations as well as directions
of the Courts in numerous cases that State must behave
like a Model Employer, State, irrespective of persons in
power and change in Guard, successively keeps on to
formulate, adopt and practise exploitative policies as a
device to avoid extension of legitimate rights of the
employees for which they are otherwise entitled. On
intervention of the Courts directing the State to extend
such benefits like pay scale, increment, leave and
counting of service etc., State every time tries to deprive
the employee from such benefit by changing
nomenclature of post and scheme to continue with
practice of temporary/ad-hoc appointments. Appointment
of Voluntary Teachers, ad-hoc Teachers, Vidya Upasaks,
Contract Teachers, PARA Teachers, PAT, PTA and SMC
Teachers are examples of clever phraseology devised by
State to overcome directions of the Courts in order to
avoid permanent appointments by appointing ad-
hoc/Temporary Teachers depriving them of service
benefits available to regular employees. When Courts
upheld the entitlement of ad-hoc employees for service
benefits, State came with Scheme for appointment of
Voluntary Teachers. Again, on intervention of the Court,
State continued changing the name of Policy but for
appointment on exploitative terms. Therefore, we are of
the opinion that all these terms are similar temporary
appointments irrespective of their nomenclature.
Therefore, verdict of the Court regarding extension of
service benefits with respect to one kind of temporary
appointment is equally applicable to similar temporary
appointment with different nomenclature."
20. In view of aforesaid of judgments on the subject
.
matter, I am of the considered view that present cases are
squarely covered with aforesaid ratio propounded by this High
Court affirmed by the Supreme Court. Therefore, aforesaid
judgments shall be mutatis mutandi applicable in the present
matters also and petitioners shall be entitled for counting their
contract services for the purpose of pensionary benefits as well
as annual increments for the said period with all consequential
benefits, but restricting actual consequential financial benefits to
three years prior to filing of writ petitions.
21. CWPOA Nos. 832, 792, 844, 775, 846, 847, 1060,
786, 797, 810 of 2019 were filed in January 2012, February 2012,
March 2012 and May 2012 respectively. Petitioners in these
petitions shall be entitled for actual financial benefits from 1st
January 2009, 1st February 2009, 1st March 2009 and 1st May
2009 respectively.
22. CWPOA Nos.5613 and 5610 of 2019 were filed in
August 2015 and September 2015 respectively. Petitioners
therein, shall be entitled for actual financial benefits from 1st
August 2012 and 1st September 2012 respectively.
23. CWPOA Nos.4710 and 5060 of 2020 were filed in July
2018 and August 2018 respectively. Petitioners therein, shall be
entitled for actual financial benefits from 1st July 2015 and 1st
August 2015 respectively.
24. CWP No.166 of 2021 was filed in November 2021.
Petitioners therein, shall be entitled for actual financial benefits
from 1st November 2018.
.
25. CWP Nos.2251 and 5653 of 2022 were filed in
January 2022 and July 2022. Petitioners therein, shall be entitled
for actual financial benefits from 1st January 2019 and 1st July
2019.
26. Due and admissible benefits shall be released to the
petitioners within a period of six months from today. Needless to
say that benefits given three years prior to filing of writ petitions
shall be extended to them on notional basis.
27. Present petitions stand allowed and disposed of in
aforesaid terms, so also pending miscellaneous application(s), if
any.
(Vivek Singh Thakur),
Judge.
September 16, 2023
(Purohit)
