Himachal Pradesh High Court

Santosh Kumari vs State Of Himachal Pradesh & ... on 22 September, 2023

Bench: Vivek Singh Thakur

                                                1


    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                                    CWPOA No. 2075 of 2020 alongwith
                                    CWPOA Nos.2639 and 2772 of 2020

                                    Date of Decision: September 22, 2023




                                                                           .

    1. CWPOA No. 2075 of 2020
    Santosh Kumari                                                          ...Petitioner.





                                             Versus

    State of Himachal Pradesh & another                                     ..Respondents.





    2. CWPOA No. 2639 of 2020

    Usha Sharma                                                             ...Petitioner.

                                             Versus

    State of Himachal Pradesh & others                                      ..Respondents.

    3. CWPOA No. 2772 of 2020
    Kauran Devi & others                                                    ...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):          Mr.Vikas    Rajput,      Advocate,                for   the
                                    petitioners, in all petitions.
    For the Respondents:            Mr. Anup Rattan, Advocate General,
                                    alongwith Mr.Rajesh Mandhotra, Additional
                                    Advocate General, in all the petitions.

    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.

1 Whether reporters of the local papers may be allowed to see the judgment?

2. Petitioners have approached this Court seeking

mainly following reliefs:-

"a. That respondents may kindly be directed to count the service rendered by the applicant

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on contract basis as qualifying service for pensionary benefits under the Central Civil Services (Pension) Rules, 1972 and

respondent may kindly be directed to grant pension to applicant as per CCS (Pension) Rules 1972.

b. That service of applicant may also be

regularized in view of Annexure A-2, on completion of five years of service with all consequential benefits like seniority, pay r fixation and arrears with 9% interest.

c. That respondents may kindly be further directed to consider the case of applicant for annual increments w.e.f. initial date of

appointment on contract basis.

3. Learned counsel for the petitioner(s) submits that

relief (b) stands already granted by the respondents to the

petitioners during pendency of the petition vide Office Order

No.EDN-HMR(Pry.)E-I(NTT)-2016/-48119-48126, dated 3.3.2022

and EDN-HMR(Pry) E-I(NTT)-2016-48799-48804, dated 8.3.2022

and, therefore, petitioners are, now, pressing reliefs (a) and (c)

only.

4. 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.

5. Admittedly, petitioners, in sequel to Policy adopted

by the State of Himachal Pradesh, with qualification of Nursery

Trained Teachers (NTTs) were appointed as JBT in the year 1997-

1998 on contract basis in the Department of Elementary

Education, Himachal Pradesh. After serving for quite

considerable long period, i.e. 5 years after, on completing special

Training provided by the Government, were conferred Special JBT

Certificates. Thereafter, their services were regularized as JBTs

in the Education Department.

6. 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.

7. The aforesaid issue is no longer res integra, but

stands settled in various pronouncements of this High Court,

affirmed by the Supreme Court.

8. In Paras Ram vs. State of Himachal Pradesh and

another, Latest HLJ 2009 (HP) 887, it was held by the Court as

under:-

"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

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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."

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. In CWP No.2411 of 2019, titled 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.

17. 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.

18. 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.

In Sheela Devi's case (supra), the High Court has

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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.

20. 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.

21. 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

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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."

22. 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.

23. CWPOA Nos. 2075, 2639 were filed in May 2017

CWPOA No.2772 of 2020 was filed in August 2017. Petitioners in