Punjab-Haryana High Court
Devi Singh vs State on 26 May, 2009
Author: Ajay Tewari
Bench: Ajay Tewari
C.W.P No. 13909 of 2008 ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P No. 13909 of 2008
Date of decision : May 26, 2009
Devi Singh,
...... Petitioner (s)
v.
State of Haryana and others,
...... Respondent(s)
***
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Dr. Surya Parkash Garg, Advocate for the petitioner.
Mr. Harish Rathee, Sr. DAG Haryana for the respondents.
***
1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
*** AJAY TEWARI, J The petitioner joined the Indian Army as Sepoy in the year 1963. He was discharged therefrom in 1979. Being an ex-serviceman he registered himself with the Employment Exchange in that category. In the year 1990, employees of the Transport Department of respondent No.1 went on strike and fresh recruitments were made through Employment Exchange by a duly constituted selection committee and the petitioner was appointed on daily wage basis w.e.f 7.4.1990. Even though the mode of selection was as per that of prescribed regular selection process and all necessary C.W.P No. 13909 of 2008 ::2::
formalities like medical examination were conducted before the appointment of the petitioner, yet he was granted the benefit of regular employment only w.e.f 1.2.1996. Thereafter, admittedly he was given assumed date of appointment as 7.2.1992 to compensate him for his military service during emergency under the Emergency (Concession) Rules, 1965. Consequently, he was granted the ACP scale w.e.f 1.3.2002. He retired w.e.f 30.11.2004. He was not granted pension and having made numerous representations, ultimately by letter (Annexure P-7) he was informed that since he had approved service of only 8 years and 10 months, no pension could be released to him. By letter (Annexure P-8), the office of the Accountant General pointed out that in view of the approved service being only 8 years and 10 months as mentioned above, the ACP Grade granted to the petitioner had to be withdrawn and his pay re-fixed. These are the actions which have been challenged in this writ petition. The petitioner claims that his service should be counted w.e.f 7.4.1990 and that the ACP grade was rightly granted to him.
The matter is not res-integra. In Hoshiar Singh Kadian vs State of Haryana and others, 2007(3) SCT 778 a Division Bench of this Court held as follows :-
"4. After hearing learned counsel for the parties, we are of the considered view that this petition deserves to succeed. It is evident from a perusal of the order dated 11.11.2002 that the petitioner has been granted the benefit of military service from 19.3.1965 to 10.1.1968 (2 years 9 months and 23 days) for the purposes of pension and pension infact is said to have been paid.
C.W.P No. 13909 of 2008 ::3::
However, the question which survives for consideration is whether the petitioner is entitled to the grant of benefit of ad hoc service rendered by the petitioner on the post of Clerk without any interruption in the Panchayat Department as a Clerk. It is appropriate to mention that the petitioner was appointed as Clerk on ad hoc basis on 26.6.1970 and he served as such upto 28.2.1973. He joined as Clerk in Transport Department on having been selected by the Subordinate Services Selection Board w.e.f 1.3.1973. It is well settled that ad hoc service followed by regular service is to be considered as qualifying service for the purposes of pension and pensionary benefits. The aforementioned view has been taken by a Full Bench of this Court in the case of Kesar Chand v. State of Punjab, 1988(2)PLR 223. In pursuance to the view taken by the Full Bench, the State of Haryana has substituted Rule 3.17 by incorporation of a new rule namely 3.17(A). Even a perusal of the aforementioned rule would show that all uninterrupted adhoc service rendered by an employee is to count as qualifying service for the purposes of pension. Rule 3.17 (A)(g) as substituted is reproduced hereunder for facility of reference :
`3.17-A(g) The entire service rendered by an employee as work charged shall be reckoned towards retirement benefits provided-
C.W.P No. 13909 of 2008 ::4::
(i) such service is followed by regular
employment;
(ii) there is no interruption in the two or more
spells of service or the interruptions fall within condonable limits; and
(iii) such service is a whole time employment and not part-time or portion of day.'
5. Even otherwise Rule 3.17 read with Rule 4.19(b) also supports the case of the petitioner. According to the aforementioned rules pension is admissible to an employee who was holding temporary post under the Government from which he resigned in order to join another service under the State Government. It is evident from perusal of Rule 3.17 that if an officer has been holding substantive permanent post on the date of his retirement then his temporary or officiating service under the State Government without interruption by confirmation in the same or any other post is to count as qualifying service. The aforementioned proposition was considered by this Court in the case of M.M.Lall Bareja v. State of Haryana, 1995(2) SCT 178 and it was held that resignation from earlier post with the object of joining another post in another department with proper permission would be considered as qualifying service for the purposes of pension whereas in the present case Rule 3.17 itself is clear with regard to counting of ad hoc C.W.P No. 13909 of 2008 ::5::
service for the purposes of pension. Xx xx xx" In another judgment reported as Iqbal Singh vs Punjab State Electricity Board, 2007(3) SLR 722, a Division Bench of this Court held as follows :-
"4. The matter is not res-integra as the issue raised in the instant petition has already been settled by this Court in the case of Dharam Pal v. The Superintending Engineer, Operation Circle UNBVNL, Karnal and another (CWP No.1150 of 2005, decided on 21.11.2006). In that case reliance has been placed on a Full Bench judgment of this Court in the case of Kesar Chand v. State of Punjab, 1988 (2) PLR 223 and two Division Bench judgments in the cases of Hazura Singh v. State of Punjab, 2004(1) SCT 695 and Mangat Ram v. Haryana Vidyut Prasaran Nigam Ltd. 2005(4) SCT 302.
5. On principle, precedents as well as the rules, the claim of the petitioner deserves to be accepted.
Accordingly, we allow the writ petition. The petitioner is held entitled to computation of the work charged service as qualifying service. The respondents shall undertake the exercise of computation of arrears and complete the same within a period of two months from the date a certified copy of this order is supplied to them. The petitioner shall also be entitled to interest on the arrears @ 8 percent per annum from the date the arrears were C.W.P No. 13909 of 2008 ::6::
payable till the date of payment. However, the arrears resulting from re-calculation of pay/pension after adding the aforementioned period of ad hoc service shall be confined only to three years two months preceding the date of filing of the writ petition, which is 3.5.2004." In Ram Dia v. Uttar Haryana Bijli Vitran Nigam Ltd, 2005(4) SCT 387, yet another Division Bench of this Court held as follows :-
"7. In view of the above, we are of the view that service rendered by the petitioners on daily-wage/work- charge basis should be counted as qualifying service for pensionary and other terminal benefits. The petitioners were working as a whole-time employee and were paid wages on monthly basis. Therefore, the period of service rendered by them on daily-wage/work-charge basis has to be reckoned while computing their pensionary and other terminal benefits."
Thus, the entire service of the petitioner from 7.5.1990 to 30.11.2004 has to be considered for the purpose of commutation of pension as approved service.
With regard to the ACP scale, the admission in the written statement that the petitioner was granted assumed date of appointment as 1.3.1992, in view of the Emergency (Concession) Rules, 1965 makes it clear that the grant of ACP scale w.e.f 30.11.2004 on completion of 10 years of service cannot be faulted.
Consequently, this writ petition is allowed, the respondents are directed not to withdraw the ACP grade granted to the petitioner w.e.f C.W.P No. 13909 of 2008 ::7::
30.11.2004 and further to count the entire service from 7.5.1990 to 30.11.2004 towards pension. In view of the fact that the matter is covered and that this litigation which was forced upon the petitioner unjustifiedly delayed his claim, I direct that the arrears would be paid with interest @ 8% p.a to be computed w.e.f 1.6.1995. This entire exercise be completed within three months from the receipt of a certified copy of this order. In case the payment is not made within the stipulated period, the petitioner would be entitled to further interest @ 8% even on the interest amount.
( AJAY TEWARI ) May 26, 2009. JUDGE `kk'