Punjab-Haryana High Court
Mukhtiar Singh vs State Of Punjab And Others on 21 March, 2024
Neutral Citation No:=2024:PHHC:041714
CWP-17166-2022(O&M) 2024:PHHC:041714
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
284
WP-17166-2022 (O&M)
C
Date of Decision: 21.03.2024
Mukhtiar Singh .....Petitioner
Versus
State of Punjab and others .....Respondents
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
Present: r. Vikas Chatrath and
M
Mr. Dharamvir Singh, Advocates for the petitioners.
Mr. Gagneshwar Walia, Addl. AG, Punjab.
****
AMAN CHAUDHARY, J.(ORAL)
1. ThepresentCivilWritPetitionhasbeenfiledunderArticles226/227
of the Constitution of India for issuance of directions to the respondents to
consider the case of the petitioner under the Old Pension Scheme.
2. Learnedcounselwouldcontendthatthepetitionerwhoinitiallyjoined
the Department of Roadways on 01.04.1982 as a daily wager, was thereafter
appointed as a Helper on 27.02.1987 till he was retrenched on 31.03.1999 and
reinstated w.e.f. 01.04.1999 by the Industrial Tribunal with continuity of service
and full back wages, as upheld in CWP-20509-2012 decided on 17.03.2015. He
was regularized as washing boy with effect from 28.08.2015 vide Office Order
dated30.08.2016,withtheconditionthathewouldbegrantedpensionarybenefits
as per the instruction no.3/72/2003-FPPC/7280 dated 12.12.2006 issued by the
Punjab Government and not under Old Pension Scheme. He superannuated on
31.03.2021, but has since received only leave encashment to the tune of Rs.
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59,613/- on 18.08.2021, while being deprived of his pension and other retiral
benefits. His case is squarely covered by the judgment in Municipal Council,
Qadian vs. Musthaq Masih and others, LPA-666-2022, dated 21.12.2023,
decided relying on Harbans Lal vs.StateofPunjabandothers,2012(3)SCT
362, wherein it was held thus:
" 11. First of all, a perusal of resolution dated 01.11.2011
(Annexure P-2) shows that the Director, Local Government,
Punjab, had taken a decision that services of employees
working in various Municipal Councils, who had rendered
more than 10 years of service on contract basis, would be
regularized. In Nagar Council, Qadian, two clerks/4 Safai
Sewaks were working on contract basis for the last 10 years
andtheircaseforregularizationwaspresentedforapproval.As
per letter dated 23.12.2011 (Annexure P-3), Mushtaq
Masih-petitioner (respondent No.1) wasgivenappointmenton
thepostofClerkintheregularpayscaleof5910-20200+1900.
He was to be on probation for a period of two years. His
services were to be governed under the New Pension Rules.
Prior to his appointment on regular basis, his last 10 years'
service had been taken into account and made basis for for
giving regular appointment.
12. This very issue had come upforconsiderationinHarbans
Lal's case (supra), wherein this Court had made reference to
Rule3.17AofPunjabCivilServicesRules,Vol.II,whichreads
as under:-
"3.17A (I) subject to all the provisions ofrule4.23and
other rules and exceptinthecasesmentionedbelow,all
service rendered on establishment, interrupted or
continuous, shall count as qualifying service:-
(i) Service rendered in work-charged establishment.
(ii) Service paid from contingences:
Provided that after 1st January, 1973 halfoftheservice
paid from contingencies will be allowed to count
towards pension at the time of absorption in regular
employment subject to the following conditions:-
(a)Servicepaidfromcontingenciesshouldhavebeenin
a job involving whole-time employment (and not
part-time or for a portion of the day).
(b)Servicepaidfromcontingenciesshouldhavebeenin
a type of workorjobforwhichregularpostcouldhave
been sanctioned e.g. Malis, chowkidars, khalasis, etc.
(c) The service should have been one for which the
payment is made either on monthly or daily rates
computedandpaidonamonthlybasisandwhichthough
not analogous to the regular scale of pay should bear
somerelationinthematterofpaytothosebeingpaidfor
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similar jobs being performed by staff in regular
establishment.
(d) The service paid from contingencies should have
been continuous and followed by absorption in regular
employment without a break.
(iii) Casual or daily rated service.
(iv) Suspension adjusting as a specific penalty."
13.Aspertheaboverules,after01.01.1973,halfoftheservice
paid from contingencies was also to be allowed to count
towards pension at the time of absorption in regular
employment, but in any case casual or daily rated service,
amongst others cannot be counted towards qualifying service
for pension. In that case, reference was made to aFullBench
judgment passed inKesarChandvs.StateofPunjab,1998(2)
PLR 223, wherein it was held that the work charged service
rendered before regularization, was liable to be counted as
qualifyingserviceforthepurposeofpension.InHarbansLal's
case (supra), further reference was made to the judgment
passed in Smt. Ramesh Tuli vs. State of Punjab and others,
2007(3)SCT,791,whereinaDivisionBenchofthisCourthad
examined the proposition, as to what would be the qualifying
service for pension as per Clause 6 (6) of the 1992 Pension
Scheme, applicable to the Punjab Privately Management
Recognized Schools Employees. It was held that the entire
servicewouldbecountedasqualifyingserviceforthepurpose
of pension. However, the Contributory Provident Fund was
required to be adjusted and deducted from the arrears of
pension. It was further held that the petitioners' initial dateof
appointment, after regularization, would be the date onwhich
employee took chargeofthepost.Oncetheentireserviceofa
daily wager was to be counted as qualifying service, then his
date of appointment would relegate back to his initial date of
appointmenti.e.1988andhecouldnotbeoustedfrompension
scheme by applying the date ofregularizationi.e.28.03.2005,
whichwasevidentlyafterthenewschemeornewrestructured
defined Contribution PensionScheme.Referencewasmadeto
another judgment passed by Division Bench of this Court in
Hans Raj vs.StateofPunjabandothers,2005(3)RSJ262.In
that case, the Division Bench had examined the Punjab
Municipal Employees Pension and General Provident Fund
Rules, 1994. The State of Punjab, vide instructions dated
08.01.1999, had provided that since the Pension Rules had
been made applicable in lieu of CPF, the period to be
consideredasqualifyingforpensionhadtoberestrictedtothe
period for which the employee was contributing to his CPF.
ThoseinstructionswereheldcontrarytothePensionRulesand
the petitioner was held entitled to count his entire service as
qualifying service for the purpose of pension. The condition
that qualifying service would commence from the date of
contribution to the CPF, had been rejected by the Division
Bench.Finally,theDivisionBench,whilereferringtothecase
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of Hans Raj (supra), held that the New Defined Contributory
Pension Scheme came into effect w.e.f.01.01.2004.However,
since the petitioner was working from 1988, he would be
deemed to be in service prior to 01.01.2004. He would be
continuedtobegovernedbytheGPFSchemeandwasentitled
to receive pensionary benefits as applicable to the employees
recruited in the Punjab Government Services prior to
01.01.2004. The clarification/instructions dated 30.05.2008
could not deny the benefit of past service to the employees.
14. The ratio of the judgment passed in Harbans Lal's case
(supra)isapplicabletothefactsofthepresentcase,astheNew
Defined Contributory Pension Scheme came into effect w.e.f.
01.01.2004.Rule3.17AofPunjabCivilServicesRules,Vol.II,
which dealswithcountingofpastservicetowardspensionhas
been elaborately examined in thesaidjudgment.Thisrulehas
alsobeeninterpretedinKesarChand'scase(supra),whereinit
has been held that the work charged service rendered before
regularization, is liable to becountedasqualifyingservicefor
the purpose of pension. The decision given in Harbans Lal's
case(supra)was,thereafter,followedinSultanRamandothers
vs. State of Punjab and others, CWP13458-2012 (decided on
17.01.2013), which was later on, clarified vide order dated
31.01.2013 passed in CM-1606-2013 to the effect that Old
GPF Scheme will be applicable to all those employees, who
were the employees prior to 2004, but had been regularized
thereafter.ThesaidjudgmenthasattainedfinalityuptoHon'ble
the Supreme Court.
xx xx xx
16.Thus,aftergoingthroughthecontentsofappealsaswellas
the impugned judgment(s), this Court is of the view that the
benefit of OldPensionSchemehasrightlybeengrantedtothe
petitioner(s). Hence, no ground is made out tointerfereinthe
well reasoned judgment(s) passed by the learned Single
Judge."
3. While stressing on the importance of grant of pension, Hon'ble the
Supreme Court held in State of Kerala vs. M. Padmanabhan Nair, (1985) 1
SCC429that,"Pensionandgratuityarenolongeranybountytobedistributedby
the Government to its employees on theirretirementbuthavebecome,underthe
decisions of this Court, valuable rights and property in their hands and any
culpable delay in settlement and disbursement thereof must be visited with the
penalty of payment of interest at the current market rate till actual payment."
4. Learned State counsel despite his best efforts was unable to
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controvert the factual position as also draw out any distinctive aspects in the
aforementioned judgments orcite any contrary law.
5. Inviewoftheaforesaid,thepresentpetitionisdisposedofintermsof
the judgments passed inHarbans LalandMusthaq Masihand others(supra).
(AMAN CHAUDHARY)
2 1.03.2024 JUDGE
Rajeev (rvs)
hether speaking/reasoned:
W es/No
Y
Whether reportable: Yes/No
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