Himachal Pradesh High Court
Smt. Geeta Devi vs State Of Himachal Pradesh And Others on 9 November, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.5710 of 2019 Date of Decision: 9.11.2020
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Smt. Geeta Devi ...... Petitioner
Versus
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State of Himachal Pradesh and others. .......Respondents
--------------------------------------------------------------- ---------------------------- Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for report?
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For the Petitioner: Mr. Varun Rana, Advocate, through video-
conferencing For the Respondents: Mr. Sudhir Bhatnagar and Mr. Arvind Sharma, Additional Advocate Generals, with Mr. Kunal Thakur, Deputy Advocate General, for the respondent/State, through video-conferencing.
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Sandeep Sharma, Judge(oral) Vide memo dated 14.11.1995 (Annexure A-1), petitioner was informed that her name had been sponsored by the Employment Exchange for appointment as teacher on contract basis against the post of JBT on fixed pay of Rs.1200/-
plus allowances and that appointment was made on seniority-
cum-merit basis session wise. Petitioner was offered appointment on contract basis vide order dated 1.7.1996 (Annexure A-2) and she was posted initially at GPS Chambi (Sundernagar-I), but subsequently aforesaid order of her posting was modified vide ::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 2 corrigendum dated 11.9.1996 (Annexure A-3) and her place of posting was changed from GPS Chambi to GPS Samkal (Sundernagar-I). Pursuant to aforesaid appointment, petitioner .
continued working as JBT on contract basis without there being any interruption till her regularization against the post of JBT vide order dated 17.09.2005 (Annexure A-4).
2. Vide representation dated 24.4.2015 (Annexure A-5), petitioner requested to count her service followed by regularization on the same post without any interruption towards pensionary benefits, however, vide memorandum dated 1.6.2015, petitioner was informed that as per the policy of the State Government contractual service followed by the regularization cannot be considered for pensionary benefits. The petitioner now stands retired from the post of JBT on 30.6.2015, but since her prayer for counting her contract service followed by regularization without interruption for pensionary benefits under CCS Rules 1972 came to be declined by the respondent department, she approached the erstwhile H.P.State Administrative Tribunal by way of Original Application No.4169 of 2015, which now stands transferred to this Court and re-
::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 3registered as CWPOA No.5710 of 2019, praying therein following reliefs:-
(i) That the impugned decision conveyed to the applicant vide memorandum dated 1.6.2015, .
Annexure A-6, rejecting her claim to count contractual service followed by regularization as JBT teacher for the purpose of pensionary benefits may kindly be quashed and set-aside;
(ii) That respondent department may be directed to count the qualifying service of applicant towards pension with effect from 12.9.1996 when she joined against the post of JBT on contract basis followed by her regularization against the said post without interruption and consequently she may be held entitled to pensionary benefits under CCS(Pension) Rules, 1972 with all consequential benefits;
(iii) That the respondent department may be directed to pay interest at market rate on delayed payments of pensionary benefits;
3. Precisely, the question which falls for consideration of this Court in the case at hand is that "whether the services of an employee appointed on contractual basis in temporary/adhoc capacity can be counted towards the qualifying service for grant of pension after his/her regularization."
4. I have heard learned counsel representing the parties and gone through the record.::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 4
5. Similar question, as has been formulated by this Court for determination, has already been gone into and decided by this Court as well as coordinate benches in case titled Ram Krishan .
Sharma versus The Accountant General (A & E) H.P. and others, decided on 1.1.2020, CWPOA No.195 of 2019, titled Smt. Sheela Devi Vs. State of HP and Ors decided on 26.12.2019 and CWP No.2411 of 2019 alongwith connected matters, titled Jagdish Chand versus State of Himachal Pradesh and others, decided on 1.1.2020, wherein it has been categorically held that service of an employee appointed on contractual basis in temporary capacity prior to his regularization shall be treated as qualifying service for grant of pension. Aforesaid judgments rendered by this Court as well as coordinate Benches, if read in its entirety clearly lay down that no discrimination can be made interse the employees, who renders/rendered services prior to regularization in the capacity of contractual employees and were subsequently regularized. Service rendered prior to regularization in any capacity be it work charged employees, contingency paid fund employees or non-pensionable establishment is to be counted towards qualifying service even if such service is not preceded by ::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 5 temporary or regular appointment in a pensionable establishment.
6. Since, recently the Division Bench of this Court in .
Jagdish Chand's case (supra), had an occasion to deal with the cases of JBT teachers, whose services were though regularized after successful completion of their contract but period spent by them on contact was not taken into consideration while computing qualifying service for the purpose of pension, it would judgment, herein:-
r to
be profitable to take note of following paras of aforesaid
Observations:
5(iii) Judgment in Joga Singh's case was delivered on
15.6.2015. This judgment was not implemented as it was challenged in the Special Leave Petition (c) No.183/2016. The Special Leave Petition was dismissed on 4.1.2016. Review Petition No. 274/2017 was dismissed on 2.3.2017. It was after the dismissal of the SLP that cause of action virtually arose in favour of the petitioner as his juniors (originally -Vidya Upasaks) were held entitled to count their past service for purpose of pensionary benefits under CCS (Pension) Rules, 1972 as well as for annual increments. Petitioner thereafter preferred Original Application No.3796 of 2018, which was disposed of by directing the competent authority to grant the benefit of Joga Singh's judgment to the petitioner in case he was similarly situated. The competent authority rejected petitioner's representation on 8.7.2019 on the ground that petitioner is not similarly situated to Joga Singh. We have already observed that petitioner was similarly situated to Joga Singh, rather he was senior to Joga Singh.
::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 65(iv) It cannot be said that to claim the benefit of judgment in Joga Singh's case, petitioner is required to challenge his regularization order dated 10.07.2006. For counting their service rendered as Vidya Upasaks, towards qualifying service for pensionary benefits under CCS(Pension) Rules, 1972 and for grant .
of annual increments, Joga Singh and other similarly situated Vidya Upasaks had neither challenged their regularization orders nor these orders were quashed by this Court in judgment dated 15.6.2015. Judgment in Joga Singh's case, directed the respondent- State to count the entire service rendered by Vidya Upasaks from the date of their appointment as Vidya Upasaks as qualifying service for grant of pension under CCS(Pension) Rules 1972 and annual increments. No other benefit of past service was granted. Regularization orders of Vidya Upasaks were not quashed. 5(v) Judgment in Joga Singh's case is virtually a judgment in rem in so far as JBT cadre is concerned. Contractually appointed JBTs (petitioners) and Vidya Upasaks (Joga Singh & others) eventually were regularized as JBTs & merged into one cadre of JBT. Petitioners were appointed as JBTs on contract basis prior in time to Joga Singh & others' appointment as Vidya Upasaks. Appointment of both the categories was against sanctioned and regular posts. Petitioners were regularized as JBTs prior in time to regularization of Vidya Upasaks.. Benefits of counting past service granted to all Vidya Upasaks as a category in whole treating it as qualifying service towards grant of pension under CCS (Pension) Rules, 1972 and annual increments cannot be denied to the petitioners, who were seniors to Vidya Upasaks. Hon'ble Apex Court in (2015) 1 SCC 347 titled as State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others has categorically held that non-extension of benefit, accorded in favour of a particular set of employees by the Court, to similarly situated persons violates Article 14 of the Constitution of India as like should be treated alike. This of-course is subject to exception in case ::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 7 of delay, laches and acquiescence on part of those who remain dormant and do not challenge wrongful action in their respective cases merely for the reason that their counterparts have succeeded in their efforts earlier by approaching the Court. In such a situation, they are no better than fence sitters. However, as .
observed earlier, the benefit given by the Court, was a judgment in rem intended to give benefit to all similarly situated persons, irrespective of whether they approached the Court or not, this exception, therefore, will not operate.
In Union of India vs. C. Girija 2019 (3) SCALE 527, the Apex Court has categorically held that mere filing of representation for the first time, years after accrual of cause of action and subsequent representations thereafter cannot arrest time as the claim would nonetheless become stale and will be barred by delay and laches. However, in 2010 (12) SCC 538 titled as State of Madhya Pradesh and Others vs. Yogendra Shrivastava, it was held that:-
"18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. (See: M.R. Gupta vs. Union of India and Union of India vs. Tarsem Singh)."
In 2008 (8) SCC 648 titled as Union of India and others vs. Tarsem Singh, it was held that where service claim is based on a continuing wrong in respect of issue of payment, re-
::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 8fixation of pay or pension then relief can be granted even if there is delay in seeking remedy though consequential benefits like financial benefits can be restricted. Paras 7 & 8 of the judgment are extracted hereinafter:-
"7. To summarize, 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 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.
8. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the ::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 9 relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances."
Therefore, we hold that prayers of petitioners for counting their past contractual service as qualifying service towards .
pensionary benefits under CCS(Pension) Rules, 1972 and annual increments as allowed to Joga Singh & Other Vidya Upasaks under judgment dated 15.6.2015 cannot be denied to them (petitioners) on grounds of limitation, delay, laches or acquiescence, however, financial benefits are to be restricted to them to three years prior to filing of the writ petitions.
6. Point No.3:
6(i) Learned Advocate General has contended that judgment in Joga Singh's case does not lay down correct law, therefore, it is open for the State to question the same in instant writ petitions, which are seeking applicability of the same. In support of the submissions, learned Advocate General relied upon judgment dated 03.01.2019, passed in Civil Appeal No. 12040 of 2018, titled as Union of India vs. Dr. O.P. Nijhawan, wherein it was held by Hon'ble Apex Court that even where the State does not challenge a judgment owing to the fact that financial repercussions are negligible or where the appeal is time barred or on account of wrong legal advice, this would not ipso-facto prevent the State from challenging subsequent decision in similar matters where magnitude of financial implications involved is high.
6(ii) SLP(c) No. 183/2016 preferred by State against Joga Singh's judgment dated 15.6.2015 was dismissed in limine on 4.1.2016. Review Petition (c) No. 274/2017 was also dismissed by Hon'ble Apex Court on 2.3.2017.
In (2019) 6 SCC 270 titled as State of Orissa & Another vs. Bhirendra Sunder Das & Others relying upon various previous judgments including Supreme Court Employees' Welfare Associating vs. Union of India (1989) 4 SCC 187 and ::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 10 State of Punjab vs. Davinder Pal Singh Bhulla (2011) 14 SCC 770, well settled principle was reiterated that dismissal of an SLP in limine simply implies that case was not considered worthy of examination by the Supreme Court for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold .
without giving any detailed reasons does not constitute any declaration of law or a binding precedent under Article 141 of the Constitution. In 2019 (4) SCC 376, titled as State of Uttar Pradesh vs. Aman Mittal, it was reiterated that an order refusing Special Leave to Appeal does not attract doctrine of merger. 6(iii) However, we are inclined to accept the law laid down in Joga Singh's case. While directing the State to count service rendered by petitioners therein as Vidya Upasaks towards qualifying service for pensionary benefits under CCS(Pension) Rules, 1972 and annual increments, it was justly observed:-
(a) Vidya Upasaks were appointed after undergoing a selection criteria laid down under 'Vidya Upasak Yojna'.
(b) There was no break in their service from date of their initial appointment in 2000 till date of their regularization in 2007.
(c) They were appointed against regular posts and at the time of their regularization, posts were lying vacant.
(d) Rule 13 of CCS(Pension) Rules, 1972 stipulates that 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 service provided such officiating or temporary service is followed without interruption by substantive appointment in same or another service or post.
(e) Rule 17 of CCS(Pension) Rules, 1972 provides that contractual service followed by substantive appointment in a pensionable establishment can also be counted towards qualifying service for grant of pension.
In backdrop of facts of the case, it was thus held that though Vidya Upasaks were not entitled to regular pay scale at par with regular appointments, but they were certainly entitled to count the period from 2000 to 2007 towards annual increments and qualifying service for pension.
::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 11Petitioners herein, as already observed, are situated at much better footing than the petitioners in Joga Singh's case. They were appointed as JBT on contract basis against regular JBT posts in 1997 and were regularized as such w.e.f. 1.1.2006. Rule 17 of CCS (Pension) Rules, 1972 permits counting contractual service towards .
qualifying service for grant of pensionary benefits. This rule is extracted hereinafter:-
"17. Counting of service on contract -
(1) A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may opt either :
a) to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service ; or
b) to agree to refund to the Government the monetary benefits referred to in Clause (a) or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.
(2) The option under sub-rule (1) shall be communicated to the Head of Office under intimation to the Accounts Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable service, or if the Government servant is on leave on that day, within three months of his return from leave, whichever is later.
(3) If no communication is received by the Head of Office within the period referred to in sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract."
Petitioners' contractual service was followed by substantive appointment without any break in pensionable establishment.
6(iv) In a recent pronouncement reported in (2019) 10 SCC 516 titled as Prem Singh vs. State of Utter Pradesh, Hon'ble Apex Court while reading down Rule 3(8) of U.P. Retirement Benefit Rules 1961 has relied upon Full Bench Judgment of Punjab & Haryana High Court renderd in Kesar Chand vs. State of Punjab AIR 1988 P & H 265, which was upheld by Apex Court in Punjab State Electricity ::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 12 Board vs. Narata Singh (2010) 4 SCC 317, to hold that services rendered by a workman on work charge basis are to be counted towards qualifying service for the purposes of pension. Relevant extracts from the judgments are:-
"29. The submission has been urged on behalf of the State of Uttar .
Pradesh to differentiate the case between work-charged employees and regular employees on the ground that due procedure is not followed for appointment of work charged employees, they do not have that much work pressure, they are unequal and cannot be treated equally, work- charged employees form a totally different class, their work is materially and qualitatively different, there cannot be any clubbing of the services of the work-charged employees with the regular service and vice versa, if a work- charged employee is treated as in the regular service it will dilute the basic concept of giving incentive and reward to a permanent and responsible regular employee.
30. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma & Ors. v. State of Uttar Pradesh & Ors. (CA No.______2019 @ SLP (C) No.5775 of 2018) the appellants were allowed to cross efficiency bar, after '8' years of continuous service, even during the period of work-charged services. Narain Dutt ::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 13 Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak w.e.f 15.9.1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs.200- 320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency .
bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation.
31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment.
32. In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and ::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 14 permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.
33. The question arises whether the imposition of rider that such service to be counted has to be rendered in between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, .
though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularization. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification."
Hon'ble Apex Court held that service rendered in work charged establishment shall be treated as qualifying service for grant of pension. However, arrears of pension were confined to three years before the date of retirement. Benefit of Judgment for the purpose of pension was extended even to the retired work-charged employees who during their service career were not even regularized.
Relying upon above judgment, a Division Bench of this Court in CWPOA No. 195 of 2019, titled as Smt. Sheela Devi Vs. State of H.P., decided on 26.12.2019 has held that service of an employee appointed on contractual basis in temporary capacity can be counted towards qualifying service for grant of pension after regularization of his service.
::: Downloaded on - 13/11/2020 20:15:35 :::HCHP 15In view of above discussion, the service rendered by the petitioners on contractual basis deserves to be counted towards qualifying service for pensionary benefits under CCS(Pension) Rules 1972 and for annual increments."
7. Consequently, in view of the above, the present .
petition is allowed by making the directions in Jagdish Chand case (supra) mutatis mutandi applicable, also to the present petition. Pending applications, if any, also stands disposed of.
(Sandeep Sharma)
9th October, 2020 Judge
(shankar) r
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