Punjab-Haryana High Court
Kanwar Singh vs State Of Haryana & Ors on 10 October, 2023
Neutral Citation No:=2023:PHHC:131552
CWP-17950-2014 (O&M) 2023:PHHC:131552 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(207) CWP-17950-2014 (O&M)
Date of Decision : October 10, 2023
Kanwar Singh .. Petitioner
Versus
State of Haryana and others .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. B.K. Bagri, Advocate, for the petitioner.
Mr. Saurabh Mohunta, Deputy Advocate General, Haryana.
Ms. Amanpreet Kaur, Advocate, for
Mr. Harneet Singh Oberoi, Advocate, for respondent No.3.
HARSIMRAN SINGH SETHI J. (ORAL)
CM-17714-CWP-2019
As prayed for, the application is allowed.
Annexure P-10 is taken on record.
CWP-17950-2014
1. In the present writ petition, the claim of the petitioner is for
counting the service which the petitioner had rendered prior to the
regularization of his services in the year 2000 as a qualifying service so as
to grant the petitioner the pensionary benefits.
2. Certain facts may be noticed for the correct appreciation of the
issue in hand.
3. The petitioner was appointed as a Driver with the Haryana
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Roadways on 16.05.1994 on contractual basis keeping in view the fact that
there was strike announced by the employees of the Transport Department.
The petitioner's contract was extended time and again and the petitioner
continued working as a Driver. In the year 1998, keeping in view the
satisfactory work of the petitioner, his services were regularized by the
respondents and ultimately, on attaining the age of superannuation, the
petitioner retired from service on 31.05.2005.
4. Upon the retirement, the petitioner was not given the benefit of
pension on the ground that the petitioner did not had 10 years qualifying
service for the grant of pensionary benefits as his services have been
regularized only in the year 1998 from which date, the benefit of regular
service is to be counted.
5. Feeling aggrieved against the said action, the petitioner has
approached this Court with a prayer that the respondents be directed to
consider the total length of service which the petitioner had rendered with
the respondents keeping in view the provisions of law which govern the
aspect of the grant of pensionary benefits and issue appropriate direction to
the respondents to grant the petitioner the benefit of pension.
6. Learned State counsel submits that as only the regular service
could have been taken into account for the grant of pensionary benefits and
as the petitioner's services were regularized only in the year 1998 and the
petitioner retired from service on 31.05.2005, the petitioner did not
complete 10 years of mandatory service with the Department to claim the
benefit of pension, hence, the claim of the petitioner is liable to be rejected.
7. Learned State counsel further submits that the present petition
was filed in the year 2014 whereas, the petitioner had retired from service in
the year 2005 and therefore, on the ground of delay and latches, the present
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writ petition is not maintainable as the petition is barred because of
inordinate delay in filing the present petition.
8. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
9. The benefit of pension is regulated by the rules governing the
service. It is a conceded position that when the petitioner retired from
service on 31.05.2005, Punjab Civil Services Rules (as applicable to
Haryana) were applicable. Rule 3.17-A (a) of the Punjab Civil Services
Rules deals with the issue as to which service is to be treated as qualifying
service for the grant of pensionary benefits. Rule 3.17-A (a) is as under:-
" 3.17-A (a) All services interrupted or continuous
followed by confirmation shall be treated as qualifying service;
the petitioner of break shall be omitted while working out
aggregate service."
10. A bare perusal of Rule 3.17-A (a) would show that all service
interrupted or continuous followed by confirmation shall be treated as
qualifying service. The word mentioned in the Rule is "all service".
11. When the said Rule is applied to the claim of the petitioner, it is
clear that the petitioner was appointed on contract basis in the year 1994
and the petitioner continued working uninterruptedly till his services were
regularized in the year 1998. That being so, the service which the petitioner
had rendered on contract basis with the respondents, is liable to be taken
into account as a qualifying service.
12. It is a conceded position that the said Rule has already been
interpreted by the Full Bench of this Court in Kesar Chand Vs. State of
Punjab and others', AIR 1988 Punjab 265 according to which, even the
daily wage service is liable to be treated as qualifying service in case, the
services of the employee concerned were regularized by the Department.
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Keeping in view the said settled principle of law, the contractual service
which the petitioner rendered continuously starting from 16.05.1994 is to be
taken into account as a qualifying service and therefore, the petitioner has
more than 10 years of service to his credit to become eligible for the grant
of pensioanry benefits.
13. Further, learned State counsel submits that contractual
appointment should not be taken into account as a qualifying service.
14. It may be noticed that once the word used in Rule 3.17-A is
"all service", the same will also cover the contractual appointment, hence,
the said service cannot be excluded for qualifying service.
15. The Hon'ble Supreme Court of India while passing order in
SLP No.10399 of 2020, decided on 07.08.2023, has held that the past
service as a contractual employee is to be taken into account for computing
the pensionary benefits. The said judgment covers the claim of the
petitioner as well. Hence, the claim of the petitioner is squarely covered for
the grant of pension as the petitioner had more than 10 years of service to
his credit on the day when he retired from service on attaining the age of
superannuation.
16. It is a settled principle of law settled by the Hon'ble Supreme
Court of India in Civil Appeal No.4100 of 2022 titled as Shri M.L. Patel
(Dead) through LRs vs. State of Goa and another, decided on 20.05.2022
that the claim for pension is continuous cause of action and cannot be
barred on the ground of delay and latches. The judgment of the Hon'ble
Supreme Court of India holding that the claim for pension is continuous
cause of action, hence, the argument of the learned State counsel that the
claim of the petitioner is barred by delay and latches, cannot be accepted.
17. At this stage, learned State counsel submits that at certain point
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of time, the petitioner had availed leave during his service career, which
leave is to be deducted while computing the qualifying service. No rule to
support the said claim has been cited before this Court to claim that the
leave obtained by an employee while in service is to be deducted from the
total qualifying service. In the absence of any Rule being cited, the claim of
the Department that leave obtained by the petitioner while in service is to be
deducted while computing the qualifying service, cannot be accepted.
18. Keeping in view the above, the present writ petition is allowed.
The petitioner is held entitled for the grant of pensionary benefits by taking
into consideration the service rendered by him on contractual basis as a
qualifying service.
19. At this stage, learned counsel for the petitioner submits that the
petitioner is waiting for the grant of pension for the last 17 years, hence,
once the entitlement of the petitioner is based upon the Rules and
regulations which existed at the time of his retirement, the petitioner is also
entitled for the grant of interest on the arrears which the petitioner has been
held entitled for under this order.
20. Learned State counsel submits that the adjudication of the
claim for the grant of pension has been done by this Court today, hence, the
claim of the interest may kindly be declined.
21. Keeping in view the facts and circumstances that the
entitlement of the petitioner is based upon the Rules which existed at the
time of the retirement and simple reading of the Rule makes it clear that the
petitioner is entitled to count the contractual service as a qualifying service
and he has been litigating with the Department for the last 17 years, coupled
with the settled principle of law settled by the Coordinate Bench of this
Court in J.S. Cheema Vs. State of Haryana, 2014(13) RCR (Civil) 355,
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where any amount for which an employee was entitled for but has been
retained and used by the Department, the employee will be entitled for
interest. The relevant paragraph of the said judgment is as under:-
"The jurisprudential basis for grant of interest is the fact
that one person's money has been used by somebody else. It is
in that sense rent for the usage of money. If the user is
compounded by any negligence on the part of the person with
whom the money is lying it may result in higher rate because
then it can also include the component of damages (in the form
of interest). In the circumstances, even if there is no negligence
on the part of the State it cannot be denied that money which
rightly belonged to the petitioner was in the custody of the State
and was being used by it."
22. Keeping in view the above, the prayer of the petitioner is
allowed. Petitioner is held entitled for interest @ 6% per annum on the
arrears which will be calculated under this order. Let the order be complied
with within a period of two months from the receipt of copy of this order.
23. The present writ petition is allowed in above terms.
24. The miscellaneous application pending, if any, also stands
disposed of.
October 10, 2023 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes
Whether reportable : Yes
Neutral Citation No:=2023:PHHC:131552
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