Punjab-Haryana High Court
Ramesh Chander vs State Of Haryana And Others on 9 August, 2023
Neutral Citation No:=2023:PHHC:102942
CM Nos.8057-CWP to 8059-CWP in/and 2023:PHHC:102942
RA-CW No.165 of 2023 (O&M) in
CWP No.13067 of 2021 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(102)
CM Nos.8057-CWP to 8059-CWP in/and
RA-CW No.165 of 2023 (O&M) in
CWP No.13067 of 2021
Date of Decision : 09.08.2023
Ramesh Chander
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. R.D. Sharma, Deputy Advocate General, Haryana
for the review applicants-respondents.
***
Harsimran Singh Sethi J. (Oral)
The present review petition has been filed for review of the
order dated 26.05.2022 by which, the writ petition was disposed of in
terms of the Division Bench judgment in CWP No.2371 of 2010 decided
on 31.08.2010 titled as Harbans Lal Vs. State of Punjab and others,
which judgment of the Division Bench already attained finality upto the
Hon'ble Supreme Court of India.
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The grievance which was raised by the petitioner in the writ
petition was that the petitioner was appointed on daily wage basis with the
respondent-department on 08.09.2004 and his services were regularized by
the department on 19.09.2013 and he continued working upto 31.07.2020,
on which date he got retired on attaining the age of superannuation hence,
the Old Pension Rules will be applicable upon him keeping in view the
judgment of the Division Bench in Harbans Lal's case(supra) and not the
Contributory Provident Fund scheme which came into operation w.e.f.
01.01.2006.
On 26.05.2022, the said petition was disposed of in terms of
Harbans Lal's case (supra) as learned counsel appearing for the
respective parties agreed to the fact that the present petition is covered by
the judgment in Harbans Lal's case(supra).
Now, the present review application has been filed for recalling
the said order dated 26.05.2022 on the ground that the claim of the
petitioner is not covered by Harbans Lal's case(supra).
On 12.05.2023, the following order was passed:
"Learned counsel for the applicant-State seeks some time to
file an affidavit of Secretary Finance that up to the date of
filing the present review petition as to whether or not any
benefit has been granted to any employee on the basis of the
judgment of this Court in CWP-2371-2010 titled as Harbans
Lal Vs. State of Punjab and others decided on 31.08.2010
either on their own or upon any order passed by the
competent Court of Law, if yes, give the details of the cases.
Let the said affidavit be filed positively by the next date of
hearing.
Adjourned to 30.05.2023."
Thereafter, on 30.05.2023, the State counsel sought some more
time to file appropriate affidavit. On the last date of hearing, the following
order was passed:
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RA-CW No.165 of 2023 (O&M) in
"Last opportunity is granted to the applicant-State to comply
with the order dated 12.05.2023.
Adjourned to 09.08.2023.
It is made clear that in case the order dated 12.05.2023 is not
complied with by the adjourned date, respondent No.1 shall
remain present in the Court."
Despite getting three adjournments, no affidavit has come on
record so far in terms of the order dated 12.05.2023.
Learned counsel for the review petitioner argues that the
statement was wrongly given by learned counsel for the State that the writ
petition is covered by the judgment in Harbans Lal's case(supra), hence,
the order dated 26.05.2022 needs to be reviewed.
Learned counsel for the petitioner submits that in the present
case, the contributory fund was not deposited by the petitioner for the
service rendered, prior to the regularization of the services of the petitioner
and, hence the benefit of judgment in Harbans Lal's case(supra) could
not be given to the petitioner.
On being asked to provide the data as to whether or not, an
employee who is working on daily wage basis, his Contributory Provident
Fund is to be deducted, learned State counsel conceded the fact that no
such contribution is deducted. That being so merely that the contribution
was not deducted for the period when the petitioner was working on daily
wage basis, the same cannot be a ground to deny the benefit of the
judgment in Harbans Lal's case(supra) especially when as per the
judgment in Harbans Lal(supra), it has been held that where an
employee, who has been working on daily wage basis prior to the date
when the New Pension Scheme was notified, he/she will be entitled for the
benefit under the Old Pension Scheme even if the said employee has been
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regularized in service after a promulgation of New Pension Scheme. The
relevant para of the judgment in Harbans Lal's case (supra) is as under:
" xxx xxx xxx xxx
10. The consistent view of the judgment is that work charge
service rendered before regularization, is liable to be counted as
qualifying service for the purpose of pension. A Division Bench
of this Court was seized of a case in which vires of Rule 3.17 A
was challenged whereby half of the service paid out of
contingency fund was to be counted as qualifying service. This
rule has been struck down in a judgment of this Court in case of
Joginder Singh v. State of Haryana , 1998 Vol.1, SCT 795.
Once the entire service paid out of contingency, is liable to be
counted for the purpose of qualifying service, a causal/daily
rated service is also bound to be counted as qualifying service.
11. xxx xxx xxx xxx
12. xxx xxx xxx xxx
13. xxx xxx xxx xxx
14. xxx xxx xxx xxx
15. xxx xxx xxx xxx
16. From the above discussion, we have come to the
conclusion that the entire daily wage service of the petitioner
from 1988 till the date of his regularization is to be counted as
qualifying service for the purpose of pension. He will be deemed
to be in govt. service prior to 1.1.2004. The new Re-structured
Defined Contribution Pension Scheme (Annexure P-1) has been
introduced for the new entrants in the Punjab Government
Service w.e.f. 01.01.2004, will not be applicable to the petitioner.
The amendment made vide Annexure P-2 amending the Punjab
Civil Services Rules, cannot be further amended by issuing
clarification/instructions dated 30.5.2008 (Annexure P-3). The
petitioner will continue to be governed by the GPF Scheme and
is held entitled to receive pensionary benefits as applicable to the
employees recruited in the Punjab Govt. Services prior to
1.1.2004.
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17. In view of the above, the writ petition is allowed.
Accordingly respondents are directed to treat the whole period of
work charge service as qualified service for pension because
accordingly to clarification issued on 30.5.2008 (Annexure P-3),
the new defined Contributory Pension Scheme would be
applicable to all those employees who have been working prior
to 1.1.2004 but have been regularized thereafter. Let his pension
and arrears be calculated and paid to him expeditiously,
preferably within a period of three months from the date of
receipt of copy of this order."
A bare perusal of the above reproduction of the judgment in
Harbans Lal(supra) would show that the reason given for the grant of the
benefit by the Division Bench is that the daily wage service rendered by an
employee is to be treated as a qualifying service for pensionary benefits as
per the Rules governing the service. Even if, the provident fund is not
deducted during the period when the employee is discharging daily wage
service, the same will be of no consequence so as to deny the benefits of
the said service for computing the pensionary benefits. Once the period of
qualifying service of an employee starts from a date prior to 01.01.2006,
the employee concerned is to be considered under Old Pension Scheme
even if the services of the said employee were regularized by the State
after 01.01.2006.
Keeping in view the above settled principle of law, the claim of
the petitioner is squarely covered by the judgment in Harbans Lal's case
(supra) as the petitioner was in service prior to 01.01.2006 though, his
services were regularized in September, 2013.
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CM Nos.8057-CWP to 8059-CWP in/and 2023:PHHC:102942
RA-CW No.165 of 2023 (O&M) in
Keeping in view the above, no ground is made out for review
of the order dated 26.05.2022. The review petition is accordingly
dismissed.
August 09, 2023 (HARSIMRAN SINGH SETHI)
jt JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:102942
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