Himachal Pradesh High Court
Sarita Sharma vs State Of H.P. And Another on 25 February, 2020
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 242 of 2019.
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Decided on: 25.02.2020.
Sarita Sharma ...Petitioner
Versus
State of H.P. and another ..Respondents
______________________________________________________
Coram
Whether approved for reporting ?1 No
r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
For the Petitioner : Mr. Prem P. Chauhan, Advocate.
For the Respondents : Mr. Ajay Vaidya, Senior Additional
Advocate General, with Mr. Vinod
Thakur, Mr. Desh Raj Thakur, Addl.
Advocate Generals, Mr. Bhupinder
Thakur and Mr. Narinder Thakur,
Deputy Advocate Generals.
Tarlok Singh Chauhan, Judge (oral)
The moot question in this petition is whether the services of an employee appointed on adhoc basis followed by regular appointment is to be counted for the purpose of pensionary benefits.
2. The facts are not in dispute. Pursuant to the interview held by the duly constituted Selection Committee on 25.6.1983, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 2 the petitioner came to be appointed as Trained Graduate Teacher (for short 'TGT) and joined as such on 17.04.1985. Thereafter her .
services came to be regularised only on 23.08.1994 despite her appointment having been made against a sanctioned post. In the interregnum, some of the aggrieved persons whose adhoc services were not counted for the purpose of regularisation approached this Court by way of CWP No. 372 of 1985 titled as Surinder Kumar and others vs. State of H.P. and another, wherein this Court on 04.03.1986 passed the following directions:
"4. The petitioners have claimed that the period of adhoc service rendered by them should be tagged on to their regular service in case of regularisation of their services for the purposes of seniority, fixation of pay etc. The Court does not propose to issue any directions on this question at the present stage. Such of the adhoc teachers, whose services may be regularised, including the petitioners, will be at liberty to make representation(s) to the State Government in regard to this matter within a period of four weeks from the date of regularisation. The representation(s), if and when made, shall be entertained and decided in accordance with law within a period of eight weeks thereafter. If the concerned persons are aggrieved by the decision, they would be at liberty to move the Court again."
3. In compliance to the above directions, the respondents acceded to the request of the petitioners therein and ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 3 directed the counting of the adhoc services rendered by the petitioners therein for all purposes. However, the benefit of this .
decision was only confined to the petitioners in CWP No. 372 of 1985 and not to the other similarly situated persons, constraining the petitioner to file the instant petition for the grant of following substantive reliefs:
(a) To issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent department to grant the benefits of entire adhoc service rendered by the petitioner towards her seniority for all purpose and intents, including for grant of proficiency step ups, Assured Career Progression Scheme benefits and all other consequential benefits flowing thereof with arrears and interest thereon @ 18% p.a.
(b) To issue an appropriate writ, order or direction in nature thereof to give full justice to the petitioner in the circumstances of the case and may pass such further writ, order or orders as this Hon'ble Court may deem fit, proper, just and expedient in the circumstances of the case."
4. The only ground taken by the respondents to oppose the claim of the petitioner is that the adhoc services rendered by the petitioner without break followed by regular appointment is to be counted towards increments on notional basis and not for assigning seniority. Therefore, the petitioner is not entitled for the grant of benefits of adhoc services rendered by her towards her ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 4 seniority for all intents including for the grant of proficiency step up, Assured Career Progression Scheme benefits etc. and the .
petitioner will be entitled for seniority and pay fixation only from the date of regular appointment.
5. The basis for making such averments have not been set-out in the reply nor could orally explained by the respondents during the course of arguments.
6. In fact, the issue posed in this petition is no longer res integra in view of the decision rendered by learned Single Judge of this Court in Paras Ram vs. State of Himachal Pradesh and others, Latest HLJ 2009 (HP) 887 wherein it was laid down that if adhoc service is followed by regular service in the same post, the said service can be counted for the purpose of increments.
7. Further a Division Bench of this Court in LPA No. 36 of 2010 titled Sita Ram vs. State of H.P. and others, decided on 15.7.2010 after placing reliance upon Paras Ram's case (supra) held that "It is also settled principle of law that any service that is counted for the purpose of increment, will count for pension also.
To that extent the appellant is justified in making submission that ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 5 period may be treated as qualifying service for the purpose of pension also."
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8. Adverting to the facts of the case, I have no difficulty in concluding that even though the appointment of the petitioner was on adhoc basis but that was in no manner qualitatively different from the regular employees and particularly when there was a vacancy and need for the services of the petitioner and she was ultimately regularized. Once that be so, then obviously it was unfair on the part of the respondents to take work from the petitioner on adhoc basis. They ought to have resorted to an appointment on regular basis.
9. The taking of work on adhoc basis for long amounts to adopting the exploitative device. Later on, though the services of the petitioner have been regularized, however, the period spent by her on adhoc basis, has not been counted towards the qualifying service. Thus, the respondents have not only deprived the petitioner from the due emoluments during the period she served on less salary on adhoc basis but she was also deprived of counting of the period for pensionary benefits.
10. The respondents have been benefitted by the services rendered by the petitioner in the heydays of her life on ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 6 less salary on adhoc basis. Therefore, there is no rhyme or reason not to count the adhoc period in case it has been .
rendered before regularization. If the same is denied, it would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service.
11. The classification cannot be done on the irrational basis and when the 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. As it would rather be unjust, illegal, impermissible to make the aforesaid classification under the Pension Rules and to make Rule valid and non-discriminatory, the same will have to be read down and it has to be held that services rendered even prior to regularisation in the capacity of adhoc shall have to be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
12. In a recent decision rendered by three Judges of the Hon'ble Supreme Court in Prem Singh vs. State of Uttar Pradesh and others AIR 2019 SC 4390, it was held that the services rendered on contract basis followed by regular ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 7 appointment have to be counted towards qualifying service for the purpose of pension. It shall be apposite to refer to the .
observations made in paras 28 to 34 of the judgment, which read as under:
"28. 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.
29. 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 ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 8 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 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.
30. 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 ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 9 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.
31. 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 permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies.
32. 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 Note to Rule 3(8) of 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 regularisation. 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 ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 10 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.
33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
34. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook."
13. It would be clearly evident from the aforesaid judgment of the Hon'ble Supreme Court that the services rendered prior to regularisation in any capacity be it work-charged employees, contingency paid fund employees or non-pensionable establishment or adhoc has to be counted towards qualifying ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 11 service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
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14. Once that be so, obviously no discrimination can be made qua the employees, who rendered services prior to regularisation in the capacity of adhoc employees.
15. Similar reiteration of law can be found in a judgment rendered by a co-ordinate Bench of this Court in CWP No.3267 of 2019, titled Ram Krishan Sharma vs. The Accountant General (A&E), HP and Ors., decided on 01.01.2020 and a very recent judgment rendered by this Court in CWP No. 537 of 2018, titled Kedar Singh Negi vs. H.P. High Court and others, decided on 07.01.2020.
16. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed. The respondents are directed to grant the benefit of entire adhoc service rendered by the petitioner towards her seniority for all intents and purposes including grant of proficiency step-up, Assured Career Progression Scheme benefits and all other consequential benefits flowing thereof within a period of three months from today, failing which, the respondents shall be liable to pay an interest of 9% ::: Downloaded on - 26/02/2020 20:23:44 :::HCHP 12 per annum, which initially shall be paid by the department, to be recovered from the erring official(s).
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17. For compliance, list on 26.05.2020.
18. The petition is disposed of in the aforesaid terms, so also the pending application(s) if any, leaving the parties to bear their own costs.
th 25 February, 2020.
(GR)
r to (Tarlok Singh Chauhan)
Judge
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