Himachal Pradesh High Court
State Of Hp And Another vs Anil Kumar on 10 October, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Letters Patent Appeal No. 136 of 2023
.
Date of Decision: October 10, 2023
State of HP and another ...Appellants
Versus
Anil Kumar .....Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
of
The Hon'ble Mr.Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the Appellants: Mr. Anup Rattan, Advocate General with
rt Mr.Rajesh Mandhotra, Additional Advocate
General.
For the Respondent: Mr. Kishore Pundeer, Advocate.
Vivek Singh Thakur, J (oral)
This appeal has been preferred by State against judgment dated 23rd July, 2020, passed in CWPOA No. 485 of 2019 titled Anil Kumar vs. State of HP, whereby direction passed by the Court in judgment dated 1.1.2020 passed in CWP 3267 of 2019 titled Ram Krishan Sharma vs. The Accountant General (A&E) HP and others has been made mutatis mutandis applicable to the petitioner.
2 For convenience, parties are being referred according to their status in Writ Petition, as petitioner and respondent respectively. 3 Petitioner was appointed as Lecuturer (Political Science) in the Education Department, on contract basis on 19 th August, 1997, in sequel to Policy adopted by the State of Himachal Pradesh. After serving for a considerable long period, his services were regularized vide order dated 26th June, 2006 w.e.f. 1.1.2006.
1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 13/10/2023 20:34:15 :::CIS 2 4 Learned Additional Advocate General has submitted that in Ram Krishan's case, the petitioner therein was appointed on 23.1.1999 on ad-hoc basis but following the process provided in R&P Rules, whereas petitioner herein was appointed on contract basis on the basis of Policy .
but dehors R&P Rules, therefore, he is not entitled for applicability of directions passed in said matter for conferring service benefits to him. 5 There is force in contentions of learned Additional Advocate General for the process adopted for contract appointment of petitioner and process followed in case of Ram Krishan's matter and, therefore, in of given facts and circumstances direction issued in Ram Krishan's case cannot be made applicable in the case of petitioner. 6
rt However, the issue involved in present case is that as to whether a person appointed to a post temporarily, without having special qualification required for recruitment to the said post, but in due process completed for such appointment pursuant to Policy adopted by the State, is entitled for counting his temporary service for annual increments and pensionary benefits on regularization of his service on the same post, without interruption.
7 The aforesaid issue is no longer res integra, but stands settled in various pronouncements of this High Court, affirmed by the Supreme Court.
8 In Paras Ram vs. State of Himachal Pradesh and another, Latest HLJ 2009 (HP) 887, it was held by the Court as under:
"4.In the present case petitioner has uninterruptedly worked against the post of Junior Basic Trained Teacher on ad hoc basis and has been awarded special certificate. He was regularized on 13.11.1997. In view of Annexure PB, the ad hoc services rendered by the petitioner before his regularization are to be counted towards annual increments. The petitioner has served the respondentState as Junior Basic Trained Teacher from 1987. He is entitled to ::: Downloaded on - 13/10/2023 20:34:15 :::CIS 3 get the entire services counted which has rendered on ad hoc basis with effect from 1987 for the purpose of annual increments. The petitioner has worked as a Junior Basic Trained Teacher for all intents and purposes and has been issued a certificate by the State as .
per notification dated 31.08.1995. There is no distinction visualized/contemplated in Annexure PB to which category the benefit of ad hoc services is to be granted for the purpose of annual increments. This notification will cover all the cases where the persons had worked on ad hoc basis and immediately thereafter they were regularized without any break in the Education Department.
of The services which the petitioner had similarly situate persons have rendered on ad hoc basis for a long period; cannot be permitted to be rendered rt otiose."
9 On the basis of aforesaid pronouncement, one Sita Ram was granted same benefit but without benefit of seniority and he had approached the Division Bench, by filing LPA No.36 of 2010, which was decided on 15.07.2010 denying him benefit of seniority on the basis of ad hoc service, but declaring him entitle for counting of ad hoc services followed by regular services for the purpose of increment and pension.
10 In CWP No.4550 of 2010, titled as Ravi Kumar vs. State of H.P. and another, decided on 16.12.2010 alongwith connected matters, in case of tenure appointees, direction was given to grant annual increment during period of tenure services and to count the said period for the purpose of pension like ad hoc appointees in the Education Department. However, issue related to contract Teachers was kept open to be decided by the Authority.
11 In CWP No.5400 of 2014, titled as Veena Devi vs. Himachal Pradesh State Electricity Board Ltd & another, decided on 21.11.2014, contract service followed by regular appointment ::: Downloaded on - 13/10/2023 20:34:15 :::CIS 4 without interruption was directed to be considered for the purpose of qualifying service for pensionary benefits. 12 Special Leave to Appeal CC No(s) 18898 of 2015, titled as H.P. State Electricity Board Ltd. and another vs. Veena .
Devi, preferred against the said order was dismissed by the Supreme Court on 26.10.2015.
13 In CWP No.8953 of 2013, titled as Joga Singh and others vs. State of Himachal Pradesh and others, and connected matters, decided on 15.06.2015, petitioners therein were of appointed as Vidya Upasaks against vacant posts of JBT following procedure laid down in Vidya Upasak Yojna 1998. They were not possessing JBT rt certificates. After undergoing training and one year condensed Teacher Training Course, they were 21 days initial regularized/absorbed against JBT posts in Education Department. The Division Bench of this Court had directed to extend benefits period of period of their service as Vidya Upasaks, which was followed by regular appointment, for annual increments as well as counting qualifying service for pension. 14 After dismissal of SLP(C) No.183 of 2016, titled as State of H.P. & others vs. Joga Singh and others, Review Petition (Civil) No.274 of 2017 in the said SLP(C) No.183 of 2016, was dismissed by the Supreme Court on 02.03.2017. 15 In similar case CWPOA No.195 of 2019, titled as Sheela Devi vs. State of H.P. & others, decided on 26.12.2019, after taking into consideration Rule 17 of Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as 'CCS Pension Rules), and other pronouncements of this High Court as well as Supreme Court, Division Bench of this Court had directed to count period of contract service followed by regular service as qualifying service for granting pension.
::: Downloaded on - 13/10/2023 20:34:15 :::CIS 5 16 In Jagdish Chand vs. State of Himachal Pradesh & others, decided on 10.01.2020, alongwith connected matters, wherein petitioners, who were not JBT, but having qualification as TGT, O.T., Shastri etc. were appointed against sanctioned vacant post(s) of .
JBT as Vidya Upasak. Their services were regularized as JBTs in the year 2007 after awarding them special JBT certificates. In this matter, it was directed to count contract service followed by regularization against the post of JBT towards qualifying service for the purpose of pension under CCS Pension of Rules as well as for annual increment, but restricting actual financial benefits to three years prior to filing of writ petitions. 17
rt It is also an admitted fact that SLP (Civil) No.10399 of 2020, titled as State of Himachal Pradesh & another vs. Sheela Devi, and SLP(C) Nos.8012-8013 of 2021, in State of Himachal Pradesh vs. Jagdish Chand, have been dismissed by the Supreme Court vide order dated 07.08.2023 with direction that past service of contractual employee on regularization is to be counted for the purpose of pension and thus judgments in Sheela Devi's and Jagdish Chand's cases, referred supra, have attained finality.
18 Learned Additional Advocate General, though not pleaded in the reply, has contended that in Sheela Devi's case benefits of counting contract service for annual increment has not been granted.
19 In Sheela Devi's case (supra), the High Court has directed to count the contract service for the purpose of qualifying service towards pension. However, Apex Court, in its order dated 7.8.2023 has directed the respondents/State to count the contract service for the purpose of pension. Needless to say that for counting the service to extend the benefit thereof for ::: Downloaded on - 13/10/2023 20:34:15 :::CIS 6 pension, annual increment for the relevant period is an essential factor required to be considered for calculating pension. Observations by the Division Bench of this Court in this regard in CWP No.850 of 2010, titled Paras Ram vs. State of HP .
and others, Latest HLJ 2009 (HP) 887, as also referred in order dated 15.7.2010 passed by a Division Bench of this Court in LPA No.36 of 2010, titled Sita Ram vs. State of H.P., are relevant wherein it has been stated that service counted for the purpose of annual increment will be counted for pension also. There is of direction for counting the contractual service for pension/pensionary benefits. Counting of service for pension includes, counting of length of rt service for qualifying service for pension, as well as for quantifying the amount of pension payable by calculating it on the basis of basic pay with addition of increment. Therefore, direction to count service for pension also mandates calculation of pension by granting annual increment for relevant period either actual or notional basis. 20 It is also apt to record that CWP No.850 of 2010, titled Paras Ram vs. State of HP and others was decided on 19.10.2010, which has attained finality. Order in Sita Ram's case has also attained finality.
21 Following the aforesaid judgments in Sheela Devi's and Jagdish Chand's cases, this Court in CWPOA No.5507 of 2020, titled as Oma Wati and another vs. State of Himachal Pradesh and others, has directed to extend benefit of annual increments and counting of period of contract service followed by regular appointment for the purpose of pensionary benefits, by observing as under:
"8. Despite repeated observations as well as directions of the Courts in numerous cases that State must behave like a Model Employer, State, irrespective of persons in power and change in Guard, successively keeps on to formulate, adopt and practise exploitative policies as a device to avoid extension of legitimate rights of the ::: Downloaded on - 13/10/2023 20:34:15 :::CIS 7 employees for which they are otherwise entitled. On intervention of the Courts directing the State to extend such benefits like pay scale, increment, leave and counting of service etc., State every time tries to deprive the employee from such benefit by changing nomenclature of .
post and scheme to continue with practice of temporary/ad-
hoc appointments. Appointment of Voluntary Teachers, ad- hoc Teachers, Vidya Upasaks,Contract Teachers, PARA Teachers, PAT, PTA and SMC Teachers are examples of clever phraseology devised by State to overcome directions of the Courts in order to avoid permanent hoc/Temporary appointments Teachers by appointing ad-hoc/Temporary of Teachers depriving them of service benefits available to regular employees. When Courts upheld the entitlement of ad-hoc employees for service benefits, State came with rt Scheme for appointment of Voluntary Teachers. Again, on intervention of the Court, State continued changing the name of Policy but for appointment on exploitative terms. Therefore, we are of the opinion that all these terms are similar temporary appointments irrespective of their nomenclature. Therefore, verdict of the Court regarding extension of service benefits with respect to one kind of temporary appointment is equally applicable to similar temporary appointment with different nomenclature."
22 In view of aforesaid of judgments on the subject matter, we are of the considered view that present case is squarely covered with aforesaid ratio propounded by this High Court affirmed by the Supreme Court. Therefore, aforesaid judgments shall be mutatis mutandi applicable in the present matter also and petitioner shall be entitled for counting his contract services for the purpose of pensionary benefits as well as annual increments for the said period with all consequential benefits, but restricting actual consequential financial benefits to three years prior to filing of writ petition. ::: Downloaded on - 13/10/2023 20:34:15 :::CIS 8 23 Present petition was filed on 27 th October, 2009. Therefore, petitioner shall be entitled for actual financial benefits w.e.f. October, 2006.
24 Due and admissible benefits shall be released to petitioner .
within a period of four months from today. Needless to say that benefits given beyond three years prior to filing of writ petition shall be extended to him on notional basis.
25 Accordingly, present appeal is partly allowed to the extent that verdict of Ram Krishan's case shall not be applicable in present of case. However, the petitioner shall be entitled for counting of his contract service for annual increments and purpose of pension as observed herein- above.
rt The appeal stands disposed of in above terms, so also pending application(s), if any.
(Vivek Singh Thakur), Judge.
October 10, 2023 (Bipin Chander Negi)
(ms) Judge
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