Ram Singh vs State Of H.P. & Ors
2024 Latest Caselaw 14 HP

Himachal Pradesh High Court

Ram Singh vs State Of H.P. & Ors on 1 January, 2024

           IN THE HIGH COURT OF HIMACHAL PRADESH
                          AT SHIMLA
                                       CWP No.10009 of 2023
                                       Decided on: 01st January, 2024




                                                                          .
    ___________________________________________________________





    Ram Singh                                                            ....Petitioner

                                              Versus





    State of H.P. & ors.                                                 ....Respondents

    Coram




                                                of
    Hon'ble Mr. Justice Ranjan Sharma, Judge
    1 Whether approved for reporting?



    For the petitionerrt                  :    Mr. Kul Bhushan Khajuria,
                                               Advocate.

    For the respondents                   :    Mr. Vishal Panwar, Additional
                                               Advocate General.

    Ranjan Sharma, Judge (Oral)

Notice. Mr. Vishal Panwar, learned Additional

Advocate General, appears and waives service of notice

on behalf of the respondents.

2. With the consent of the parties, the instant

writ petition, is taken up for disposal, at this stage, in

view of the order(s) intended to be passed herein.

Whether reporters of Local Papers may be allowed to see the judgment? Yes

3. The petitioner, a retired Pump Operator, has

filed the instant writ petition, with the following prayer:-

.

i) "That the impugned order dated 11.09.2023

contained in Annexure P-3 may kindly be quashed and set aside.

ii)

That the respondent department may be directed to count the period of 05 years of daily wage service equal to one year for the purpose of

of pension in view of the judgment passed by Hon'ble Apex Court in Sunder Singh's case."

4. rt In the background of the relief(s), prayed for

above, the case of the petitioner as submitted by the

learned counsel is that, the petitioner was engaged as

Pump Operator, Class-III on daily wage basis, in

Irrigation and Public Health Division Dehra, Distt.

Kangra, H.P. w.e.f. 1992. He further submits that he was

conferred work and was then regularized, as Pump

Operator in terms of the mandate of the Hon'ble Apex

Court in the case of Mool Raj Upadhyaya w.e.f.

1.1.2000. The petitioner retired from the service of

respondents on 30.04.2012 after rendering more than

nine years of service

5. The case of the petitioner is that initially the

respondents have not granted the benefit of pension to

.

the petitioner on the plea that he had "not rendered the

requisite "qualifying service of ten years" by counting the

nine years and seven months of regular service in lieu of

ten years of daily wage service, in terms of the law laid

of down by the Hon'ble Apex Court, in case of Sunder

Singh. rt

6. Now, the grievance of the petitioner is that the

judgment passed by the Hon'ble Apex Court in the case

of Sunder Singh versus State of Himachal Pradesh [Civil

Appeal No.6309 of 2017, dated 8.3.2017] has been

clarified by the Hon'ble Apex Court in the case of Balo

Devi Versus State of HP [2022 HP(2) 817], which

mandates that in case, the regular service and regular

service after giving proportional weightage in lieu of daily

wage service comes to eight years then also the service of

eight years is to be treated as ten years service and such

an employee is entitled for pension. Even the Division

bench of this Court in the case of Roop Lal Versus State

of Himachal Pradesh [LPA 196 of 2022, decided on

.

11.10.2023] has mandated the respondents to grant

pension, even to Class-III employees by treating the eight

years of service actually rendered [regular service and

regular service after giving proportional weightage of daily

of wage service as above] by treating it as ten years of

qualifying service for pension. In this background, the rt said period of service of eight years rendered by the

petitioner be treated as ten years of qualifying service,

therefore, despite the eligibility and entitlement, in terms

of the mandate of law; the denial of pension to the

petitioners w.e.f. 1.1.2018 till day was illegal, arbitrary

and violative of Articles 14 and 16 and Article 300-A of

the Constitution of India.

7. Learned counsel for the petitioner has placed

reliance upon the mandate of Hon'ble Apex Court, in

case, of Sunder Singh Versus State of Himachal Pradesh,

in Civil Appeal No.6309 of 2017, decided on 8.3.2018, the

operative part thereof, read as under:-

"6. Some of the petitioners whose writ petitions

.

were disposed of vide the Division Bench's

Judgment dated 31.05.2012 chose to assail the said judgment before the Hon'ble Apex

Court by filing Special Leave Petitions. The SLPs were connected and decided on

08.03.2018 under the lead case Civil Appeal

of No. 6309 of 2017, titled as Sunder Singh vs. State of H.P. and others. It would be pertinent rt to mention herein that the appellant in the aforesaid case were all retired regular Class-IV employees seeking to count the daily wage

service, rendered by them prior to their regularization, towards qualifying service for pension. The Hon'ble Apex Court disposed of

the petition with the 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.

of

4. Since the appellants have not rendered the requisite 10 years of

rt 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

of terms."

8. Learned counsel for the petitioner has also rt relied upon the judgment passed by the Hon'ble Apex

Court in case of Balo Devi vs. State of Himachal

Pradesh and others reported in Latest HLJ

2022(HP)(2) (817), whereby the judgment in the case of

Sunder Singh's case has been clarified as under:-

"The intent of this Court was quite clear that:-

(a) The services rendered as a regular employee

may first be computed.

(b) To the service as rendered to above, the

component at the rate of one year of regular service for every five years of service as daily wager, be added.

(c) If both the components as detailed in Paras a & b herein above, take the length of service to a level of more than eight years but less

than ten years, in terms of last sentence of paragraph 6 of the Order, the services shall be reckoned as ten years."

[

9. The claim of the petitioner draws strength from

.

the judgment passed by Division Bench of this Court in

LPA No.196 of 2022, tilted as Roop Lal versus State of

Himachal Pradesh & Others, decided on 11.10.2023

of and the operative part of the judgment granting benefit of

pension to Class-III retirees reads as under:-

rt "18. When it comes to granting the benefit of counting service rendered on daily wage for

the purpose of pension to class III employees there is no significant respect in which persons concerned are distinguishable from

class IV employees. As has already been stated supra in the case of Class IV employees Articles 14,38,39 and the

Concept of "proportional equality" (egalitarian

equality) have been read into the relevant pension rules and only thereafter a benefit of

counting service rendered on daily wage for the purpose of pension has been accorded to the Class IV employees. Non grant / non extension of benefit of counting service rendered on daily wage for the purpose of pension to Class III employees by not

reading Articles 14, 38, 39, the Concept of "proportional equality" (egalitarian equality) into the relevant pension rules would lead to a differential treatment to

.

persons who are in no manner significantly

different hence in the facts and attending circumstances would be unjustified. The

extension of the same benefit in our considered view cannot be denied. Moreso, especially in view of Rafiq Masih's case 2015

of (8) 334 wherein, Class III and Class IV employees on equitable considerations have

rt been treated at par with respect to the right of the State (employer) to recover from them amounts paid de-hors the applicable service

rules.

19. The claim herein is with respect to counting of service as rendered on daily wage basis before

Regularization/ grant of work charge status towards qualifying service for grant of

pension. For the said adjudication what is relevant is the period rendered towards

daily wage by the concerned employee irrespective of the status of the employee,

Class-III/ Class IV.

20. The claim for pension is a recurring cause of action. The petitioner is an employee who belongs to a lower hierarchy in service. Delay in filing the present petition would disentitle the petitioner for grant of interest but he

- 10 -

would definitely be entitled for monetary benefits prospectively. Further on account of delay in filing the present petition monetary benefits can be restricted to three years prior

.

to the filing of the petition. In this respect it

would be appropriate to refer to (2008) 8 Supreme Court Cases 648, titled as Union of

India and others vs. Tarsem Singh, wherein it has been held that non-grant of pension is a continuing wrong which in spite of delay may

of be granted as it does not effect the rights of third-parties. In so far as the consequential

rt relief of recovery of arrears for past service is concerned, it has been held therein that principle relating to recurring/successive

wrongs would apply. However, the consequential relief relating to arrears shall normally be restricted to a period of three

years prior to the date of filing of the writ petition.

21. In view of the aforesaid proposition of law, we are of the considered view that the purpose of

pension, the Constitutional mandate contained in Articles 14, 38, 39 of the

Constitution of India and the doctrine of proportionate equality would be required to be read into the Rules as has been held by the Apex Court in Sunder Singh's case supra in order to give weightage of service rendered as daily wager towards regular service for the

- 11 -

purpose of pension even to Class-III employees.

22. In view of the above discussion, respondent-

State is directed to extend benefit of Daily

.

Wage service to the petitioner, in terms of

Sunder Singh's case, as explained in Balo Devi's case, for calculating qualifying service

for the purpose of pension, and to extend all benefits of pension to the petitioner within one month from today. However, the petitioner

of shall be entitled for monetary benefits three years prior to the date of filing of the petition.

rt Benefits accruing beyond three years prior to filling of the petition, if any, shall be only on notional basis.

22-A. With respect to the cut-off date from which actual monetary benefits are to be extended, keeping in view the law laid down by Supreme

Court in Sunder Singh's and Balo Devi's cases, it is further clarified that the petitioner

shall be entitled for actual monetary benefits w.e.f. 1.1.2018 and the monetary benefits, if

any, prior to 1.1.2018 shall only be on notional basis, but if the three years period,

prior to filing of the petition, is subsequent to 1.1.2018, then the actual benefits shall be granted from such subsequent date."

- 12 -

10. Per contra, Mr. Vishal Panwar, learned

Additional Advocate General submits that the judgment

in case of Roop Lal (supra) granting pension to Class-III

.

category employees, has not attained finality as yet.

However he submits that once the petitioner has

approached this Court belatedly in the year, 2023,

therefore, the petitioner's case for pension w.e.f. 1.1.2018

of as per the mandate of the law referred to above needs to

be looked into but the actual monetary benefits can only rt be considered, if otherwise admissible, for a period of

three years preceding the filing of the writ petition

(30.10.2023) and not beyond that. The submission of

learned State Counsel appears to genuine. The

submission of the learned Additional Advocate General

appears to be genuine and in accordance with the

mandate of law whereby, the petitioner can only claim

actual monetary benefits-arrears for a period of three

years preceding the filing of the writ petition

(30.10.2023).

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11. In the entirety of the facts stated above and

the mandate of the law, laid down by the Hon'ble Apex

Court in the case of Sunder Singh's and Balo Devi

.

(supra), and the Division Bench of this Court in case of

Roop Lal (supra), once the petitioner has completed eight

years service [based on actual regular service rendered

and regular service so arrived at after giving proportional

of weightage in lieu of daily wages service i.e. one year

regular service for the years of daily wages service and rt two years regular service for ten years of daily wages

service] then, this eight years service shall be reckoned

as ten years service and this service shall qualify for

pension. Accordingly, based on the regular service, so

arrived at, in terms of the mandate of law in case of

Sunder Singh, Balo Devi and Roop Lal (supra), once the

petitioner has completed-rendered eight years of regular

service, therefore, he is eligible and entitled to pension

under the CCS (Pension) Rules, 1972, w.e.f. 1.1.2018

notionally; except the past arrears, which shall be

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restricted for a period of three years prior to the filing of

writ petition [on 30.10.2023], in terms of the settled law.

12. In view of the above, the respondents are

.

directed to consider the case of the petitioner (Class-III

retiree) for grant of pension, in terms of the mandate of

the Hon'ble Apex Court in the case of Sunder Singh,

Balo Devi and by the Division Bench of this Court in the

of case of Roop Lal (supra) notionally w.e.f. 1.1.2018; and

upon consideration, in case, the petitioner is held entitled rt to pension then, the actual monetary benefits/arrears

shall be confined for a period of three years preceding the

filing of this writ petition, in terms of the mandate of law,

in the case of Union of India versus Tarsem Singh

(2008) 8 SCC 648; Shiv Dass versus Union of India

and Others; (2007) 9 SCC 274; State of Madya

Pradesh and Others versus Yogendra Shrivastava

(2010) 12 SCC 538; Asger Ibrahim Amin Versus Life

Insurance Corporation of India (2016) 13 SCC 797,

followed in Rushibhai Jagdishchandra Pathak versus

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Bhavnagar Municipal Corporation CA No.4134 of

2022 [2022 SCC online SC 641] decided on 18.5.2022,

and arrears beyond three years cannot be

.

claimed/granted. The consequential action be taken by

the respondents within three months from today.

In the aforesaid terms, the instant writ

petition, as well as, pending miscellaneous application(s),

of if any, shall also stand disposed of, accordingly.

                   rt                                  (Ranjan Sharma)
                                                           Judge

    January 01, 2024
          (Shivender)