Himachal Pradesh High Court
Ex. Fitter vs The State Of Himachal on 21 October, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 21st DAY OF OCTOBER, 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No.3385 of 2019
Between:-
ROOP LAL S/O SH. HARI RAM,
R/O VILLAGE KHANOT, PO BARI,
TEHSIL BALDWARA, DISTT. MANDI, H.P.
EX. FITTER, I&PH DIVISION SARKAGHAT,
SUB-DIVISION BALDWARA,
DISTT. MANDI, H.P.
......PETITIONER
(BY MR. A.K. GUPTA AND MS. BABITA CHAUHAN,
ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY (I&PH)
WITH HEADQUARTERS AT SHIMLA, H.P.
2. THE ENGINEER-IN-CHIEF, I&PH
WITH HEADQUARTERS AT U.S. CLUB,
SHIMLA-1
3. THE SUPERINTENDING ENGINEER,
I&PH CIRCLE SUNDERNAGAR,
DISTT. MANDI, H.P.
4. THE EXECUTIVE ENGINEER,
I&PH DIVISION SARKAGHAT,
DISTT. MANDI, H.P.
5. THE SENIOR DEPUTY ACCOUNTANT
GENERAL, H.P. WITH HEADQUARTERS
AT SHIMLA-3
......RESPONDENTS
::: Downloaded on - 21/10/2022 20:06:35 :::CIS
2
(MS. RITTA GOSWAMI, ADDITIONAL ADVOCATE
GENERAL, FOR R-1 TO R-4,
MR. LOKENDER PAUL THAKUR, SENIOR PANEL
COUNSEL, FOR R-5)
RESERVED ON : 14.10.2022
.
PRONOUNCED ON : 21.10.2022
This petition coming on for hearing this day, the Court
passed the following:
ORDER
Petitioner, a retired Class-III employee, who has been denied pension on account of not possessing the qualifying service of 10 years, seeks applicability of a judgment rendered on 08.03.2018 by the Hon'ble Apex Court in case of Class-IV employees in Civil Appeal No.6309 of 2017 (Sunder Singh Versus The State of Himachal Pradesh & Ors.), for counting his daily waged service for grant of pension.
2. Facts:-
The petitioner was engaged as a Fitter on daily wage basis in Irrigation & Public Health (I&PH) Department on 11.02.1991. His services were regularized w.e.f.
01.02.2002. He superannuated on 31.10.2010. Having served for 8 years on regular basis, i.e. less than the required qualifying period of 10 years, the petitioner is not being paid pension. 12 years after his retirement, the ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 3 petitioner filed this writ petition on 08.11.2019, seeking pension with following substantive prayer:-
"i. That the respondents may be ordered to process the case of the petitioner for pension and the same may be .
ordered to be paid to the petitioner from the due date with all the benefits incidental thereof."
3. Contentions:-
I have heard learned counsel on both sides.
In support of the relief claimed, Mr. A.K. Gupta, learned counsel for the petitioner advanced submissions under the following broad points:-
3(i). Judgment passed by the Hon'ble Apex Court in Civil Appeal No.6309 of 2017, titled Sunder Singh Versus The State of Himachal Pradesh & Ors., decided on 8th March, 2018, is applicable to the case of the petitioner for grant of pension. In terms of this judgment, daily waged service rendered by the petitioner prior to his regularization is to be computed towards qualifying service for grant of pension in the manner prescribed in the judgment.
3(ii). Petitioner, a Class-III employee, cannot be discriminated vis-à-vis Class-IV employee in the matter of computation of daily wage service for the purpose of grant of pension. When daily waged service of Class-IV employees ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 4 is being counted in the manner mandated in Sunder Singh's case, supra, towards qualifying service for grant of pension, then by drawing the same analogy, it should be .
counted in the same manner in case of Class-III employees as well.
3(iii). This Court should exercise its jurisdiction under Article 226 of the Constitution of India to obviate the discrimination between the similarly situated Class-III and Class-IV employees.
4. Observations:-
Before discussing the points raised by learned counsel for the petitioner, basic provisions pertaining to entitlement of an employee to pension may first be noticed.
4(I). Rule Position:-
4(I)(a). Central Civil Services (Pension) Rules, 1972
(hereinafter to be referred as 'Pension Rules') have been made applicable to the State of Himachal Pradesh vide notification dated 30.03.1974. Rule 49 of the Pension Rules provides for qualifying service of 10 years for an employee to become eligible for grant of pension. Relevant part of Rule 49 reads as under:-
"(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 5 service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service.
(1-A) The Dearness Allowance admissible on the date of retirement shall also be treated as emoluments for the purpose of sub-rule (1);
.
(2) Subject to the proviso to sub-rule (2) of Rule 38, in the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than ten years, the amount of pension shall be calculated at fifty per cent of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of nine thousand rupees per mensem and maximum of one lakh twenty-five thousand rupees per mensem.............."
4(I)(b). Chapter-III of the Pension Rules outlines nature of qualifying service. Under Rule 13 thereof, the service that qualifies for pension commences from the date the employee takes charge of the post to which he is appointed either substantively or in an officiating/temporary capacity, provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Relevant part of the rule reads as under:-
"Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post."
Rule 14 of the Pension Rules puts a rider that service of a government servant shall not qualify unless his ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 6 duties and pay are regulated by the Government or under conditions determined by the Government. It is also provided in the rule that in order to qualify for pension, .
service must be under the Government and paid by the Government from the Consolidated Fund of India or a Local Fund administered by that Government. Service in a non-
pensionable establishment is excluded from computation unless such service is treated as qualifying service by the Government. Relevant portion of Rule 14 is as under:-
"(1) The service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government.
(2) For the purposes of sub-rule (1), the expression "Service" means service under the Government and paid by that Government from the Consolidated Fund of India or a Local Fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government."
4(I)(c). Rule 2(b) of the Pension Rules excludes applicability of the rules to persons engaged in daily rated employment. This sub-rule reads as follows:-
"2. Application Save as otherwise provided in these rules, these rules shall apply to Government servants appointed on or before the 31st day of December, 2003 including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to-
(a) ...........................................
(b) persons in casual and daily-rated employment."::: Downloaded on - 21/10/2022 20:06:35 :::CIS 7
4(I)(d). Simple reading of CCS (Pension) Rules makes it obvious that daily waged service rendered by the petitioner does not qualify to be computed towards pension.
.
4(II). Judicial precedent leading to Sunder Singh's case:-
4(II)(a). A Division Bench of this Court in CWP No.180 of 2001, titled State of H.P. and another Versus Ram Lal and others, was dealing with the question whether the services rendered on daily waged basis by the employees before their regularization/grant of work charged status are to be taken into consideration for the purpose of counting their qualifying service for grant of pension under the Central Civil Services (Pension) Rules, 1972, and if so, to what extent. CWP No.3496/2011 (Sunder Singh Versus State of Himachal Pradesh) was one of the several petitions connected with the lead case titled State of H.P. and another Versus Ram Lal and others.
The Division Bench decided all companion writ petitions by a common judgment passed on 31.05.2012.
The Court took note of the fact that CCS (Pension) Rules were made applicable to the State of Himachal Pradesh w.e.f. 30.03.1974. The implication of Rules 2(b), 2(c), 13, 14, 49 was also considered. Various precedents on the ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 8 point involved were also noticed in the judgment. It was held that under the applicable rules, daily wage service cannot be counted towards the qualifying service for .
pension. It would be appropriate to extract hereinafter some of the relevant paragraphs from the judgment:-
"72. At the cost of repetition, we may state that under Rule 2, daily rated and casual employees were specifically excluded by the Rules. Rule 14 does empower the Government to include the service on a non-pensionable establishment, but some specific orders were required to be passed.............
74. It was contended on behalf of the employees that if two views are possible, then the view favouring the employees should be taken. We have no quarrel with this proposition, but in this case, we are of the considered view that the view canvassed on behalf of the employees is not a possible view after we take into consideration Rule 89. If the Rules do not envisage counting of daily wage service towards qualifying service for pension, this Court cannot, by judicial fiat, direct that the daily wage service must be taken into consideration while calculating the qualifying service in terms of the Pension Rules.................
77. In view of the above discussion, we are of the considered view that the Pension Chapter of the Civil Service Regulations, which governed the employees earlier, stood repealed after the enforcement of the Central Civil Service (Pension) Rules, 1972 and the savings portion of Rule 89 of the 1972 Rules does not save the Office Memorandum No.F.12(1)E.V/68, dated 14th May, 1968. Consequently, we answer the question framed by us earlier holding that the service rendered on daily waged basis by the employees before their regularization/grant of work charged status cannot be taken into consideration for counting their qualifying service for grant of pension under the Central Civil Service (Pension) Rules, 1972. The writ petition is disposed of in the aforesaid terms."::: Downloaded on - 21/10/2022 20:06:35 :::CIS 9
4(II)(b). Apex Court judgment in Sunder Singh's case:-
Some of the petitioners whose writ petitions were disposed of under the Division Bench judgment dated .
31.05.2012, chose to assail the said judgment before the Hon'ble Apex Court by filing Special Leave Petitions. These SLPs were connected and decided on 08.03.2018 under the lead case Civil Appeal No.6309 of 2017 (Sunder Singh Versus The State of Himachal Pradesh & Ors.). In these cases, the appellants were retired regular Class-IV employees seeking to count the daily wage service rendered by them prior to their regularization towards qualifying service for pension. Hon'ble Apex Court disposed of the petitions with 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.
4. Since the appellants have not rendered the requisite 10 years of 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 ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 10 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 terms."
4(II)(c). Implication of judgment in Sunder Singh's case:-
In Sunder Singh's case, the appellants belonged only to Class-IV category. Employees belonging to Class-III category were not the appellants therein. The directions passed by the Hon'ble Apex Court in Sunder Singh's case were specifically made applicable only to Class-IV employees. This is apparent from the following extracts from the judgment:-
"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.
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 ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 11 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."
Judgment in Sunder Singh's case itself restricts .
its applicability to the appellants therein, who belonged to Class-IV category or other similarly placed Class-IV employees. In the judgment, Hon'ble Apex Court has observed that 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 Doctrine of Proportionate Equality, daily wage service rendered by Class-IV employee was directed to be counted towards qualifying service for pension in the manner mandated in the judgment. Paragraph 5 of the judgment, being relevant in this regard, reads as under:-
"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."
The judgment not only has been made applicable specifically to Class-IV category, but is also under Article 142 of the Constitution of India. In (2014) 8 SCC 883, State of Punjab and others Versus Rafiq ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 12 Masih, it was held that Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions of the statute. The directions of the .
Court under Article 142 of the Constitution of India that relax the application of law or exempt the case in hand from the rigour of law in view of the peculiar facts and circumstances do not compromise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Jurisdiction under Article 136 of the Constitution of India is corrective that vests a discretion in the Hon'ble Supreme Court to settle and declare the law and make it a binding precedent for future instead of keeping it vague. Paragraphs 9 to 13 of the judgment read as under:-
"9. The word 'complete justice' was fraught with uncertainty until Article 142 of the Constitution received its first interpretation in Prem Chand Garg v. Excise Commr. which added a rider to the exercise of wide extraordinary powers by laying down that though the powers are wide, the same is an ancillary power and can be used when not expressly in conflict with the substantive provisions of law. This view was endorsed by a nine-Judge Bench in Naresh Shridhar Mirajkar v. State of Maharashtra reiterated by a seven-Judge Bench in A.R. Antulay v. R.S. Nayak and finally settled in Supreme Court Bar Assn. v. Union of India.
10. Article 136 of the Constitution of India, confers a wide discretionary power on the Supreme Court to interfere in suitable cases. Article 136 is a special jurisdiction and can be best described in the words of this Court in Ramakant Rai v. Madan Rai: (SCC p.403, para 14) ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 13 "14. ...It is a residuary power; it is extraordinary in its amplitude, its limits, when it chases injustice, is the sky itself".
11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial .
principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vest a discretion in the Supreme Court to settle the law clear and as forthrightly forwarded in the case of Union of India v. Karnail Singh, it makes the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution.
12. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law.
The directions issued by the court can normally be categorized into one, in the nature of moulding of relief and the other, as the declaration of law. "Declaration of Law" as contemplated in Article 141 of the Constitution:
is the speech express or necessarily implied by the Highest Court of the land. This Court in Indian Bank v.
ABS Marine Products (P) Ltd., Ram Pravesh Singh v. State of Bihar and in State of U.P. v. Neeraj Awasthi, has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court have compartmentalized and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 14 vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case.
13. Therefore, in our opinion, the decisions of the Court .
based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment."
In (2006) 5 SCC 72, Indian Bank Versus ABS Marine Products (P) Ltd., it was observed that many times after declaring the law, Hon'ble Apex Court in operative part of the judgment, gives some directions, either relaxing the application of law or exempting the case in hand from the rigour of the law in view of the peculiar facts in order to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. The Court should be very careful to ascertain and follow the ratio decidendi and not the relief given on the special facts, exercising power under Article 142. Paragraph 26 of the judgment reads as under:-
"26. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article
142. It is not uncommon to find that courts have ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 15 followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted .
under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Article 142. Be that as it may."
The judgment in Indian Bank's case, supra, was reiterated in (2021) 9 Scale 362, titled Union of India & another Versus Onkar Nath Dhar, and further reference was made to (2006) 8 SCC 38, titled Ram Pravesh Singh and others Versus State of Bihar and others, wherein it was observed that tenor of an order, which is not preceded by any reason or consideration of any principle, demonstrates that it was an order passed under Article 142 of the Constitution of India on peculiar facts of that case.
Such direction is not a binding precedent.
In Sunder Singh's case, supra, Hon'ble Apex Court did not set aside the impugned common judgment passed by the Division Bench on 31.05.2012 in the writ petitions. Rather, it was observed by the Apex Court in its decision that strict construction of the rules will preclude ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 16 computation of daily waged service towards pension. The Rules were also not set-aside. However, reading the rules consistent with Articles 14, 38 and 39 of the Constitution of .
India and applying the Doctrine of Proportionate Equality, the appellants and similarly placed Class-IV employees were held entitled to the weightage of service rendered by them as daily wagers towards regular service for the purpose of pension. Accordingly, a formula was worked out in para 6 of the judgment for treating 5 years of daily waged service equal to one year of regular service for pension as under:-
"6. ...........................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.
The judgment rendered by the Hon'ble Apex Court in Sunder Singh's case and the directions issued therein for Class-IV employees are within the ambit of Article 142 of the Constitution of India and therefore, cannot be made applicable to the petitioner, a Class-III employee. Under the applicable Pension Rules, the daily wage service rendered by an employee is not liable to be counted towards qualifying service for pension.::: Downloaded on - 21/10/2022 20:06:35 :::CIS 17
4(III). Judgments in Mool Raj Upadhyaya and Sunder Singh's case vis-à-vis argument of discrimination between Class-III and Class-IV employees:-
.
Some employees belonging to Class-III and Class-IV categories working for a number of years on daily wage basis in I&PH Department, filed a petition under Article 32 of the Constitution of India before the Hon'ble Supreme Court seeking regularization of their services.
Taking into consideration the scheme framed by the State Government and the facts of the case, following directions were passed in the case:-
"4. Taking into consideration the facts and circumstances of the case, we modify the said scheme by substituting paragraphs 1 to 4 of the same by the following paragraphs:
"(1) Daily-wage/muster-roll workers, whether skilled or unskilled, who have completed 10 years or more of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work charged employees with effect from 1-1-1994 and shall be put in the time-scale of pay applicable to the corresponding lowest grade in the Government;
(2) daily wage/muster-roll workers, whether skilled or unskilled, who have not completed 10 years of continuous service with a minimum of 240 days in a calendar year on 31-12-1993, shall be appointed as work-charged employees with effect from the date they complete the said period of 10 years of service and on such appointment they shall be put in the time-
scale of pay applicable to the lowest grade in the Government;
(3) daily-wage/muster-roll workers, whether skilled or unskilled who have not completed 10 years of service with a minimum of 240 days in a calendar year on 31-12-1993, shall be paid daily wages at the ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 18 rates prescribed by the Government of Himachal Pradesh from time to time for daily-wage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2;
(4) daily-wage/muster-roll workers shall be .
regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularisation they shall be put in the minimum of the time-scale payable to the corresponding lowest grade applicable to the Government and would be entitled to all other benefits available to regular government servants of the corresponding grade."
The emphasis of learned counsel for the petitioner is that the scheme framed by the State for I&PH Department, as modified by the Hon'ble Apex Court, was applied equally to Class-III and Class-IV employees engaged on daily wage basis. Under the circumstances, both sets of employees are entitled to equal treatment insofar as counting of daily wage service towards grant of pension is concerned. When weightage of daily wage service rendered by a Class-IV employee is being given for determining his eligibility for pension in terms of the judgment in Sunder Singh's case, supra, then in the similar manner, the daily wage service rendered by a Class-III employee, should also be considered while computing his qualifying service towards pension or else it would amount to discrimination between similarly situated daily wage employees engaged on Class-III and Class-IV posts.
::: Downloaded on - 21/10/2022 20:06:35 :::CIS 19The above argument has no appealing force.
Class-III and Class-IV are different categories of posts.
Under service jurisprudence, ordinarily Class-IV employees .
can be promoted to Class-III post subject to the concerned Recruitment & Promotion Rules. What applies to Class-III categories of posts need not necessarily be applied to Class-
IV posts. In Mool Raj Upadhyaya's case, supra, the issue pertained to regularization of daily waged Class-III and Class-IV employees. Both sets of employees were before the Hon'ble Apex Court in Mool Raj Upadhyaya's case. The directions in the judgment were specifically given for both categories of employees. Entitlement to pension, interpretation and impact of CCS (Pension) Rules, 1972 on qualifying service for purpose of pension was not the issue in Mool Raj Upadhyaya's case. The directions issued in Sunder Singh's case are in exercise of jurisdiction under Article 142 of the Constitution of India and their benefit has been restricted to Class-IV employees only.
4(IV). Judgments relied upon by the petitioner:-
4(IV)(a). Learned counsel for the petitioner pressed into service a judgment dated 31.08.2010 passed by the Hon'ble Punjab & Haryana High Court in CWP No.2371 of 2010 (Harbans Lal Versus State of Punjab and others), to ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 20 contend that the period spent by the daily wager cannot be excluded while calculating the qualifying service for pension. I am afraid the judgment relied upon has no .
applicability to the issue involved in the instant case. In Harbans Lal's case, a New Re-structured Defined Contributory Pension Scheme was introduced by the Government of India w.e.f. 01.01.2004 for new entrants to government service. Thereafter, the Punjab Government vide circular dated 30.05.2008, clarified that the New Re-
structured Defined Contributory Pension Scheme would be applicable w.e.f. 01.01.2004 in case of Punjab Government employees whose services were regularized after 01.01.2004, though they were engaged as daily wagers or on work-charge basis prior to that. The High Court quashed the circulars. The decision of the High Court was affirmed by the Hon'ble Apex Court on 30.07.2012. The point whether the service rendered on daily wage basis is liable to be counted towards qualifying service for pension was not involved in Harbans Lal's case, supra. The Court had considered the Punjab Civil Services Rules, 1970. The Pension Rules involved in the instant case were not under consideration in that case.::: Downloaded on - 21/10/2022 20:06:35 :::CIS 21
4(IV)(b). In Kesar Chand Versus State of Punjab and others, 1988 (5) SLR 27, a Full Bench of the Punjab and Haryana High Court held that an employee is entitled to .
count the work charged services rendered by him for computing the qualifying service for grant of pension and gratuity. Though this judgment pertains to counting of work charge service towards qualifying service for the purpose of pension, but relying upon this decision, in some subsequent decisions from the Punjab and Haryana High Court, daily wage service has been ordered to be counted while calculating the qualifying service for the purpose of pension. However, the rule position under the Pension Rules involved in the instant case has not been discussed in the aforesaid judgments. Applicable rules involved there were the Punjab Civil Services Rules, 1970. This has been noticed by the Division Bench of this Court in Ram Lal's case, supra, as under:-
"36. In Kesar Chand versus State of Punjab and others, 1988 (5) SLR 27, a Full Bench of the Punjab and Haryana High Court held that an employee is entitled to count the service rendered by him on work charge basis for counting the whole of his service for the purpose of calculating the pension and gratuity. The State of Himachal Pradesh is admittedly counting the service rendered on work charge basis for calculating the pension. This decision does not deal with the question of counting service rendered on daily wages for calculating the qualifying service for purposes of pension.::: Downloaded on - 21/10/2022 20:06:35 :::CIS 22
41. A Division Bench of the Punjab and Haryana High Court in Mangat Ram versus Haryana Vidyut Prasaran Nigam Ltd. and others, 2005 (5) SLR 793, following the Full Bench Decision in Kesar Chand's case held that the period spent by the daily wager cannot be excluded while calculating the qualifying service as it was .
followed by regular service which was continuous. In Ram Dia and others versus Uttar Haryana Bijli Vitran Nigam Ltd. (UHBVNL) and another, 2005 (8) SLR 765, the service rendered on work charge basis has been directed to be taken into account. In both these cases the provisions of Rule 2 of the CCS CCA Rules have not been taken into account.
42. A learned Single Judge of the Punjab and Haryana High Court in Babu Ram versus State of Haryana and others, 2009 (4) SLR 337, again held that the services rendered by employees on daily wages should be counted towards their qualifying service. However, there is no discussion on this issue and it has been decided only on the basis of the previous judgments of the Punjab and Haryana High Court.
47. The Apex Court in Union of India and others versus Rakesh Kumar supra has also clearly held that the pensionary benefit cannot be granted dehors the statutory rules. It has been laid down in unambiguous terms that the courts cannot direct payment of pension on the ground of so called hardship. A perusal of Rule 2(b) and 2(c) of the pension Rules clearly shows that the rules do not apply to persons in casual and daily rated employment and persons paid from contingencies. No doubt, Rule 13 provides that the qualifying service of a government servant shall commence from the date he takes charge of the post to which he is first appointed either substantially or in officiating or temporary capacity. The contention of the petitioners is that the phrase "officiating or temporary capacity" shall include the appointment on daily wages also. We are afraid that we cannot accept this contention. Temporary service cannot be equated with service rendered on daily wages. We are aware that judgments of the Punjab and Haryana High Court and the Delhi High Court are to the contrary. However, as pointed out above, these courts have not taken into consideration the specific exclusion under rule 2(b) and 2(c) of the Pension Rules. In Kesar Chand's case, a Full Bench of the Punjab and Haryana High Court was only dealing with the service rendered on work charge basis. This ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 23 service is being counted for purposes of pension by the State of Himachal Pradesh. However, the later judgments of the Punjab and Haryana High Court have applied the judgment in Kesar Chand's case in cases of daily wagers also, but without taking note of the specific exclusion under Rule 2(b) and 2(c) of the .
Pension Rules. We are of the view that Rule 13 only contemplates the counting of service which has been rendered after appointment on substantial, officiating or temporary capacity. This pre-supposes that appointment is in terms of the rules like the Temporary Civil Service Rules. Daily wagers have been specifically excluded and on a reading of the Rules, it cannot be said that the words "officiating and temporary capacity"
cover the employees engaged on casual daily rated basis."
4(IV(c). Reliance placed upon (2019) 10 SCC 516, titled Prem Singh Versus State of Uttar Pradesh and others, is of no assistance to the petitioner. The said matter was regarding counting work charge service towards pension and revolved around Uttar Pradesh Retirement Benefits Rules, 1961 and Uttar Pradesh Civil Services Regulations.
The implication of judgment in Prem Singh's case, supra, was considered by the Hon'ble Apex Court in Civil Appeal No.7068 of 2022, titled Sunita Burman Versus The Commissioner, M.P. Housing and Infrastructure Development Board and others, decided on 14.10.2022, as under:-
"13. As for the decision in the case of Prem Singh (supra) cited on behalf of the appellant, the question raised in the said matter related to the validity of Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961 and Regulation 370 of the Civil Services Regulations of Uttar ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 24 Pradesh. In a backdrop where this Court had earlier affirmed the decision of the High Court of Punjab and Haryana in the case of Kesar Chand v. State of Punjab, in relation to pari materia provisions enacted in the State of Punjab which excluded computation of the period of work charged services from qualifying service .
for grant of pension, a three Judge Bench of this Court examined several decisions on this aspect and on perusing the Note appended to Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961 and Regulation 370 of the Civil Services Regulations, held that since the service of the appellant in the said case had been regularized on a vacant post, Rule 3(8) of the U.P. Retirement Benefits Rules, 1961 ought to be read down in respect of the services rendered by him even prior to his regularization and the period spent in the capacity of a charged employee/contingency paid fund employee or non-pensionable establishment employee ought to be counted towards the qualifying service for extending the benefit of pension to such employees.
14. The fact situation in the case in hand is entirely different. The deceased husband of the appellant had remained a work charged employee till the date of his demise on 26th April, 2016. His services had not been regularized. The Office Order dated 29th October, 1997 relied on by the appellant to urge that the services of the deceased husband of the appellant had been regularized, is being misread as can be discerned from the first para of the said order which states that daily wages Muster Roll employees working between 26th May, 1974 to 30th June, 1981 and named therein were being appointed in work charged establishments and further, that the M.P. Work Charged and Contingency Paid Employees Recruitment and Service Rules, 1977 was made applicable to them. We have noticed above that the aforesaid rules were never adopted by the respondent No.1-Housing Board or extended to its work charged employees. Being cognizant of the vacuum relating to the service conditions of the employees working in its work charged establishments, the Board of Directors of the respondent No.1-Housing Board had deliberated over the matter and decided on 6th April, 2015 to extend the benefit of pension to the said employees by bringing them within the purview of the NPS and they were given an option to become a member of the said Scheme so as to avail the benefit of pension. As her deceased husband had elected not to opt for the ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 25 said Scheme, the appellant cannot claim entitlement to payment of family pension on his demise.
15. We therefore hold that the deceased husband of the appellant was not a regular employee of the respondent No.1-Housing Board. He had remained a work charged employee in the establishment of the Housing Board till .
the date of his demise. Even while serving in the said capacity, the appellant's deceased husband could have opted for pension under the NPS that was made available to the work charged employees of the respondent No.1-Housing Board in terms of the order dated 02nd July, 2015. But he did not opt for the said Scheme. The appellant is, therefore, not entitled to receive family pension from the respondent No.1- Housing Board."
4(IV(d). Reliance placed upon (2020) 8 SCC 106, titled V. Sukumaran Versus State of Kerala and another, decided by the Apex Court on 26.08.2020, is again misplaced as Hon'ble Apex Court categorically observed in the judgment that "pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind i.e. to facilitate a retired government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities."
4(IV)(e). In AIR 2014 Patna 208, titled State of Bihar Vs. Bhagwan Singh, a Full Bench of Patna High Court was considering the question whether the service rendered by ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 26 the government servant on daily wages followed by regularization in service will be considered pensionable under the Bihar Pension Rules, 1950. The Full Bench on .
consideration of the applicable rules as under held that the service rendered by the employee on daily wages was not pensionable service and did not qualify for pension:-
"[11] We shall first consider the relevant provisions of the Pension Rules, 1950.
Rule 56 of the Pension Rules provides that 'unless it be otherwise provided by special rule or contract, the service of every government servant qualifies from the date he takes the charge of the post to which he is first appointed'. Rule 58 thereof provides that the service of a Government servant does not qualify for pension unless it conforms to the following three conditions:-
(i) The service must be under Government.
(ii) The employment must be substantive and permanent.
(iii) The service must be paid by Government.
Rule 61 thereof provides, 'service does not qualify unless the Government servant holds substantively a post on a permanent establishment'. Rule 45 thereof expressly excludes certain service for computation of pension. Clause (a) thereof reads, 'when a government servant is appointed for a limited time only, or for a specified duty, on the completion of which he is to be discharged'. Clause (b) thereof reads, 'when a person is employed temporarily on monthly wages without specified limit of time or duty'.
[13] Keeping in view the above provisions, we are of the opinion that the service rendered by the petitioner as daily wage Choukidar under the Executive Engineer, Tubewell Division, Gaya cannot be said to be a service for which the petitioner was paid from the general revenue of the State Government or the service rendered on a substantive post in a permanent establishment. Such service, although was followed by absorption on regular establishment, will not qualify for pension. Therefore, the service rendered by the petitioner, as daily wage employee from April 1973 to December, ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 27 1978, was not a pensionable service or did not qualify for pension."
No other point was urged.
5. The conclusion of above discussion is that CCS .
(Pension) Rules, 1972, which govern grant of pension in the State of Himachal Pradesh, do not envisage counting of daily wage service towards pension. Period of daily waged service, therefore, cannot be computed towards qualifying service for pension. The Division Bench of this Court in its common judgment dated 31.5.2012 deciding a number of connected writ petitions including CWP No.3496/2011 (Sunder Singh Versus State of Himachal Pradesh), after threadbare discussion of the Pension Rules and judicial precedents, had categorically held that "service rendered on daily waged basis by the employees before their regularization/grant of work charged status cannot be taken into consideration for counting their qualifying service for grant of pension under the Central Civil Services (Pension) Rules, 1972." In appeal against this judgment, preferred by some Class-IV category employees, Hon'ble Apex Court in its judgment dated 08.03.2018 (Sunder Singh Versus State of Himachal Pradesh & Ors.) did not set aside the Division Bench judgment of the High Court. In ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 28 fact, it was observed by the Hon'ble Apex Court that strict application of the Rules may not entitle the appellants to pension. The Rules were also not quashed. It was only by .
reading the rules consistent with Articles 14, 38 and 39 of the Constitution of India and applying the doctrine of proportionate equality that a method was devised for giving weightage to the daily waged service towards pension in the manner mandated in the judgment. However, the judgment was specifically made applicable only to the appellants, who were Class-IV employees and similarly placed Class-IV employees. The judgment falls within the ambit of Article 142 of the Constitution of India. It has an overriding effect on CCS (Pension) Rules, 1972, but only vis-à-vis Class-IV category of employees. Its benefit cannot be extended to the petitioner, a retired Class-III employee. The argument of discrimination between Class-IV and Class-III employees vis-à-vis counting of daily waged service for the purpose of pension on the basis of applicability of judgments in Sunder Singh and Mool Raj Upadhyaya's cases is misplaced. The issue in Mool Raj Upadhyaya's case pertained to regularization of daily waged Class-III and Class-IV employees. Question of counting daily waged service or giving weightage to daily waged service towards ::: Downloaded on - 21/10/2022 20:06:35 :::CIS 29 qualifying service for grant of pension was not involved there.
The respondents have acted in terms of the CCS .
(Pension) Rules, 1972 and accordingly denied pension to the petitioner for the reason that he did not possess minimum required qualifying service of 10 years for grant of pension. Taking into consideration the applicable rule position, the stand of the respondents in denying pension to the petitioner cannot be faulted.
In view of the above discussion, I find no merit in the instant petition. The same is accordingly dismissed alongwith pending miscellaneous application(s), if any.
Jyotsna Rewal Dua Judge October 21, 2022 Mukesh ::: Downloaded on - 21/10/2022 20:06:35 :::CIS