Himachal Pradesh High Court
Paramjeet Singh vs The State Of H.P. And Others on 3 January, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWPOA No. 5341 of 2020
Decided on: January 3, 2023
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.
Paramjeet Singh .........Petitioner
Versus
The State of H.P. and others ...Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
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For the petitioner: Mr. Abhyendra Gupta, Advocate.
For the respondents: Mr. Rajan Kahol and Mr. B.C. Verma,
Additional Advocates General.
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Sandeep Sharma, J. (oral)
r In the year 1990, petitioner herein was engaged as Part Time Worker 1990 but his service were converted into Whole Time Contingent Paid Worker vide order dated 29.12.2001 (Annexure A-1) in time scale of pay. On account of aforesaid order dated 29.12.2001, petitioner became a temporary employee and was entitled to contribute to GPF. He applied for allotment of GPF number and Accountant General, Himachal Pradesh allotted GPF number to the petitioner.
Perusal of Annexure A-2, i.e. annual statement of GPF, reveals that the petitioner after allotment of GPF started making contribution towards GPF.
2. However, in 2006, petitioner was asked not to contribute towards GPF on the ground that his services were regularized in June, Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 04/01/2023 20:32:42 :::CIS -2-2003. Being aggrieved with the aforesaid action of the respondents, petitioner approached Himachal Pradesh Administrative Tribunal by .
way OA No. 5820 of 2018, which on account of abolishment of the Himachal Pradesh Administrative Tribunal, stands transferred to this court and re-registered as CWPOA No. 5341 of 2020 praying therein for following main relief:
"That the respondents maybe ordered to allow the applicant to contribute to GPF and the previous contribution may be ordered to be realized from the pay of the applicant."
3. Having heard learned counsel for the parties and perused the material available on record, this court finds that the facts as noticed herein above are not in dispute. In nutshell, case of the respondents as set up in the reply and further canvassed by Mr. B.C. Verma, learned Additional Advocate General is that since the petitioner was made regular Class IV employee after 15.5.2003, he is to be governed by Contributory Pension Scheme applicable with effect from 15.5.2003. It has been claimed by the respondents that Government servants appointed after 15.5.2003 on regular basis are not entitled to GPF but entitled to CPF contribution. If the reply of the respondents is perused in its entirety, it clearly reveals that after petitioner's being declared as a temporary employee, he was permitted to contribute towards GPF. Petitioner continued to make subscriptions towards GPF till February, 2007 but thereafter, he was asked not to make any ::: Downloaded on - 04/01/2023 20:32:42 :::CIS -3- subscription by the respondents. Reply further reveals that the GPF deduction was not permitted on account of issuance of letter dated .
2.3.2013 issued by the Under Secretary (Revenue) to the Government of Himachal Pradesh, whereby it has been informed that issue regarding deduction of either GPF or CPF from salary of Government employee from the date of granting them work charge status, was taken up with the Finance Departmnt for opinion, who after due deliberation has observed that CCS (Pension) Rules, 1972 are applicable only to regular employees appointed before 14.5.2003 and in terms of Rule 2 of these Rules, all Government employees appointed on or after 15.5.2003 on regular basis are covered under the Contributory Pension Scheme (also called New Pension Scheme) and they are governed by new Contributory Pension Rules, 2006.
4. Mr. Abhyendra Gupta, learned counsel for the petitioner, while inviting attention of this court to judgment dated 17.11.2022 passed by this court in Harinder Singh v. State of Himachal Pradesh and others, argued that issue raised in the petition at hand, is squarely covered by aforesaid judgment passed this court, which is further based upon judgment passed by Division Bench of this court in CWP No. 2384 of 2018 titled State of Himachal Pradesh and others v. Matwar Singh, whereby Division Bench held that work charge status followed by regular appointment, is to be counted as component of qualifying service for the purpose of pension and other retiral benefits.
::: Downloaded on - 04/01/2023 20:32:42 :::CIS -4-5. Having perused judgment rendered in Harinder Singh supra, this court finds that the issue raised in the instant petition stands duly .
adjudicated by this court in aforesaid judgment and as such, prayer of the petitioner deserves to be allowed. Relevant paras of judgment passed in Harinder Singh are reproduced below:
"4. Mr. A.K. Gupta, Senior Advocate, appearing on behalf of the petitioner, argued that erstwhile HP State Administrative Tribunal vide order dated 31.7.2017, passed in OA No. 6681 of 2016, Matwar Singh v. State of Himachal Pradesh and Ors, which has been further upheld by the Division Bench of this Court vide judgment dated 18.12.2018, in CWP No. 2384 of 2018, titled State of Himachal Pradesh and Ors v. Matwar Singh, has held that work charge service followed by the regular appointment is to be counted as a component of qualifying service for the purpose of pension and other retiral benefits. If it is so, petitioner is entitled to be governed by the Old Pension Scheme. He submitted that since petitioner was conferred work charge status prior to promulgation of New Pension Scheme, he was rightly allotted GPF number by the office of Accountant General. He also invited attention of this court to Rule 4 of General Provident Fund Rules, perusal whereof reveals that all temporary government servants after a continuous service of one year are eligible to contribute/subscribe to the old Pension Scheme. Rule 4 of the aforesaid rules reads as under:
" Rule-4: CONDITIONS OF ELIGIBILITY
4. Conditions of eligibility -
All temporary Government servants after a continuous service of one year, all re-employed pensioners (other than those eligible for admission to the Contributory Provident Fund) and all permanent Government servants shall subscribe to the Fund:::: Downloaded on - 04/01/2023 20:32:42 :::CIS -5-
Provided that no such servant as has been required or permitted to subscribe to a Contributory Provident Fund shall be eligible to join or continue as a subscriber to the Fund, while he retains his right to subscribe to such a Fund:
.
Provided further that a temporary Government servant, who is borne on an establishment or factory to which the provisions of Employees' Provident Funds Scheme, 1952, framed under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), would apply or would have applied but for the exemption granted under Section 17 of the said Act, shall subscribe to the General Provident Fund if he has completed six months' continuous service or has actually worked for not less than 120 days during a period of six months or less in such establishment or factory or in any other establishment or factory to which the said Act applies, under the same employer or partly in one and partly in the other.
1[Provided also that nothing contained in these rules shall apply to Government servant appointed on or after the 1 st day of January, 2004.] EXPLANATION. - For the purposes of this rule "continuous service" shall have the same meaning assigned to it in the Employees' Provident Funds Scheme, 1952, and the period of work for 120 days shall be computed in the manner specified in the said scheme and shall be certified by the employer.
5. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while refuting the aforesaid submission made by the learned counsel for the petitioner argued that since services of the petitioner were regularized in the year, 2007, he could not have been allotted GPF number, which in case of the petitioner was inadvertently issued. However, learned Additional Advocate General was unable to dispute that on account of judgment rendered by the Division Bench of this Court in CWP No. 2384 of 2018, State of Himachal Pradesh and Ors v. Matwar Singh and Anr, service rendered on work charge basis followed by the regular appointment is to be counted towards qualifying service for the purpose of pension and other retiral benefits. If it is so, petitioner otherwise is eligible to contribute the GPF towards Old Pension Scheme. Admittedly, if service rendered on work charge basis by the petitioner is taken into consideration, that would commence from the year, 2002 i.e. ::: Downloaded on - 04/01/2023 20:32:42 :::CIS -6- much prior to promulgation of New Pension Scheme, whereby all government employees appointed on or after 15.5.2003 on regular basis came to be held entitled to subscribe to Contributory Pension .
Scheme. Since on account of work charge service rendered prior to regularization, petitioner became entitled to pension under the old Scheme, he automatically becomes entitled to be governed by the Old Pension Scheme and as such, petitioner is entitled to make contribution towards the GPF, for which he has already been allotted GPF number.
6. At this stage, it would be apt to take note of the judgment dated 18.12.2018 passed in CWP No.2384 of 2018 (supra), relevant portion whereof reads as under:
2. The facts are not in dispute. The private respondent joined the petitioners' Department as daily waged worker in the year 1992 at Saraswati Nagar Range under the jurisdiction of the Divisional Forest Officer, Forest Division, Rohru, Distt. Shimla. He was subsequently conferred status of work charge employee w.e.f. 01.05.2002. His services were later on regularized as Forest Worker w.e.f. 06.09.2007 as per the policy of the State Government. It appears that the respondent's claim for grant of pension was declined on the ground that he did not possess the requisite qualifying service. It is in this backdrop that the respondent approached the Tribunal and his claim has been accepted.
3. It is by now well settled that the work charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits. Executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/struck down, in the light of view taken by this Court in CWP No.6167 of 2017, titled Sukru Ram vs. State of H.P. & others, decided on 6th March, 2013. A Full Bench of Punjab and Haryana High Court in Keshar Chand vs. State of Punjab through the Secretary P.W.D. B & R Chandigarh and others, (1988) 94(2) PLR 223, also dealt with an identical issue where Rule 3.17(ii) of the Punjab Civil Services Rules excluded the work charge service for the purpose of qualifying service. Setting aside the said Rule being violative of Articles 14 and 16 of the Constitution of India, it was held that the work charge service followed by regular appointment will count towards qualifying service for the ::: Downloaded on - 04/01/2023 20:32:42 :::CIS -7- purpose of pension and other retiral benefits. The aforesaid view was also confirmed by the Hon'ble Apex Court.
4. For the afore-stated reasons, we do not find any error in the impugned order passed by the Tribunal. Accordingly, the writ .
petition is dismissed alongwith pending application(s), if any."
6. It is quite apparent from aforesaid exposition of law that services rendered on work charge basis followed by regular appointment are to be counted towards qualifying service for the purpose of pension and other retiral benefit. Since work charge employee is also considered to be a temporary employee, a temporary employee given time pay scale is entitled to be given similar treatment as is being given to work charged employee in terms of judgment rendered in Matwar Singh by Division Bench. In Matwar Singh, it has been held that the services rendered on work charge basis followed by regular appointment are to be counted as qualifying service for the purpose of pension and other retiral benefits.
7. If it is so, the petitioner is eligible to contribute towards GPF under old pension scheme. If services rendered on temporary basis by petitioner is taken into consideration, that would commence from the year 2001 i.e. much prior to promulgation of Contributory Pension Scheme, whereby Government employees appointed after 15.5.2003 on regular basis were held entitled to contribute towards CPF. Since on account of temporary service rendered by petitioner prior to his regularisation, he became entitled to pension under old Pension Scheme, he automatically becomes entitled to be governed by old ::: Downloaded on - 04/01/2023 20:32:42 :::CIS -8- pension scheme. If it is so, he is entitled to make contribution towards GPF, for which he has been granted GPF number by the office of .
Accountant General, Himachal Pradesh as taken note here in above.
8. Rule 9 sub rule 30 of Fundamental Rules, provides that, "Temporary post means a post carrying a definite rate of pay sanctioned for a limited time.
9. Perusal of Rule 4 of General Provident Fund Rules, reveals that all temporary government servants after a continuous service of one year are eligible to contribute/subscribe to the old Pension Scheme. Note 3 to rule 4 provides that temporary Government servants (including Apprentices and Probationers) who have been appointed against regular vacancies and are likely to continue for more than a year may subscribe to the General Provident Fund any time before completion of one year's service.
10. In the case at hand, it is not in dispute that petitioner after his being appointed as a temporary employee, was allotted GPF number by the office of Accountant General, Himachal Pradesh and he had been making subscriptions to GPF till 2007, when he was asked not to contribute towards GPF by the respondents-State.
11. True it is that GPF was stopped to be deducted in 2006-07 and the petitioner approached the Himachal Pradesh Administrative Tribunal in 2018, after inordinate delay of eleven years, but having taken note of the fact that the cause of action in the present case is a ::: Downloaded on - 04/01/2023 20:32:42 :::CIS -9- recurring one, delay and laches may not come in the way of the petitioner, while seeking redressal of a recurring cause of action.
.
12. In this regard, reliance may be placed on judgment rendered by Hon'ble Apex Court in Union of India & ors v. Tarsem Singh, (2008) 8 SCC 648, wherein it has been held as under:
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted r even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."::: Downloaded on - 04/01/2023 20:32:42 :::CIS
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13. Above decision has been followed by Hon'ble Apex Court in Asger Ibrahim Amin v. Life Insurance Corporation of India, (2016) .
13 SCC 797, holding as under:
"4. As regards the issue of delay in matters pertaining to claims of pension, it has already been opined by this Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648 that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights. This Court held:"
14. Perusal of above decisions shows that in the matters of recurring cause of action, delay and laches or limitation will not thwart the claim so long as the claim subsists. In the case at hand, the petitioner is suffering recurring losses thus, keeping in view his status and plight, it would be better and just to ignore the delay in filing the petition at hand.
15. Similar observation has been made by a Co-ordinate Bench of this Court in Yashwant Singh v. State of Himachal Pradesh, CWPOA No. 46 of 2020, decided on 22.4.2021, wherein it has been held that where the Court is dealing with one of fundamental rights of poor workman, its role is that of a sentinel for protection of fundamental rights of the weak and down-trodden and cannot, therefore, easily allow itself to be persuaded to refuse the reliefs solely on jejune ground of delay and laches. Learned Single Judge of this Court in order supra, held as under:
::: Downloaded on - 04/01/2023 20:32:42 :::CIS- 11 -
"It needs to be observed that where the Court is dealing with one of fundamental rights of poor workman, its role is that of a sentinel for protection of fundamental rights of the weak and .
down-trodden and cannot, therefore, easily allow itself to be persuaded to refuse the reliefs solely on jejune ground of delay and laches or the like. The right seeking of benefits of regularization of service is a right akin to a fundamental right guaranteed to the workman. Therefore, the plea of delay should not come in the way of granting relief to the workman, more particularly, when the Court is of the opinion that it is the inaction of the respondents that has formed basis of such delay."
16. Consequently in vow of detailed discussion made herein above and the law taken note of, this court finds merit in the petition and the same is allowed. Respondents are directed to deduct GPF subscription from the salary of the petitioner forthwith and remit the same to the GPF account of the petitioner allotted by the office of Accountant General, Himachal Pradesh.
17. The petition stands disposed of in the afore terms, alongwith all pending applications.
(Sandeep Sharma) Judge January 3, 2023 (Vikrant) ::: Downloaded on - 04/01/2023 20:32:42 :::CIS