Himachal Pradesh High Court
Kiran Chand Sharma vs State Of Himachal Pradesh And Anr on 30 June, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWPOA No. 698 of 2019
Decided on: 30.6.2020
.
__________________________________________________________________
Kiran Chand Sharma ...........Petitioner
Versus
State of Himachal Pradesh and Anr. ..........Respondents
__________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner : Mr. Bhuvnesh Sharma, Advocate,
through Video Conferencing.
For the Respondents : Mr. Sudhir Bhatnagar, Additional
Advocate General, through Video
Conferencing.
__________________________________________________________________
Sandeep Sharma, Judge (oral):
Precisely, the facts of the case, as emerge from the record, are that petitioner namely Kiran Chand Sharma was initially appointed as JBT teacher on contract basis at GPS Shilla, Education Block Naggar, District Kullu, H.P., on 4.12.1997, whereafter after completion of eight years of contractual services, services of the petitioner came to be regularized on 5.7.2006, w.e.f. 1.1.2006 (Annexure P1 and P2). It is also not in dispute that contract services of the petitioner were followed by regularization without there being any interruption. The petitioner claimed before the authorities that services rendered by him on contract basis be also taken into consideration while computing his qualifying service for the purpose of pension (Annexure R-3), but since, no action ever came to be taken at 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 2the behest of the respondents on the aforesaid representation filed by the petitioner, he was compelled to approach this Court by way of writ .
petition filed under Article 226 of the Constitution of India, praying therein for following main relief:
"That the respondents may very kindly be directed to count the services of the petitioner rendered on contract basis followed by regularization, for the purpose of service increments and towards pension, with all consequential benefits"
In the year, 2015, petition came to be transferred to the Erstwhile HP State Administrative Tribunal, however, same has been again transferred to this Court on the abolishment of Tribunal.
2. Having heard learned counsel for the parties and perused material available on record, this Court finds that it is not in dispute inter-se parties that the petitioner was initially appointed against the substantive post by following due procedure in accordance with law and recruitment was made consequent upon the selection made by the duly constituted Selection Committee. Similarly, there is no dispute that the petitioner kept on serving the education department uninterruptedly till his regularization.
3. Respondents while admitting factum with regard to appointment of the petitioner as JBT on contract basis have stated in their reply that the petitioner at the time of accepting appointment on contract basis had executed an agreement, wherein there was no ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 3 condition that services rendered during contract would be counted for computing qualifying service for pensionary benefits. Apart from above, .
respondent State has also placed reliance upon the judgment dated 28.4.2011 rendered by the Division Bench of this Court in LPA No. 114 of 2010, titled State of H.P. Vs. Uma Dutt Sharma, wherein it has been held that ad-hoc/tenure service rendered by the employee followed by the regular appointment shall count for the purpose of increment and pension, but not contract service.
4. In the aforesaid facts and circumstances, question which needs to be decided in the instant proceedings is that "Whether services rendered by an employee on contractual basis can be subsequently counted towards qualifying service for grant of pension or not?"
5. I have heard the learned counsel for the parties and gone through records of the case.
6. Question as formulated herein above has been already considered and decided by this Court vide judgment dated 1.1.2020 passed by this Court in CWP No. 3267 of 2019 titled Ram Krishan Sharma v.
The Accountant General (A&E) HP and Ors, wherein having taken note of various judgments rendered by the Hon'ble Apex Court as well as co-
ordinate Benches of this Court, it has been concluded that services of an employee appointed on contractual basis in temporary capacity prior to ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 4 his regularization shall be treated as qualifying service for grant of pension.
Aforesaid judgment rendered by this Court reveals that petitioner in that .
case was appointed as Ayurveda Doctor on ad-hoc basis vide communication dated 23.1.1999 and his services were thereafter regularized on 25.11.2006. After superannuation of aforesaid Ayurveda doctor, respondent issued pension payment order in favour of the petitioner authorizing him to have benefit of pension after superannuation from the Directorate of Ayurveda and he was in receipt of pension till the issuance of communication dated 11.10.2019, whereby District Ayurvedic Officer, Bilaspur requested the Accountant General to stop pension of the petitioner. In the case referred above, District Ayurvedic Officer apprised the Accountant General that as per government of Himachal Pradesh Finance (Pension) vide notification No. Fin.(Pen) A(3)-196 dated 17.8.2006, employees appointed on regular basis after 15.5.2003 are entitled to only to the Contributory Pension Scheme and not entitled to pension under CCS Pension Rules, 1972 and as such, petitioner is not entitled to pension under CCS Pension Rules 1972.
7. Taking cognizance of the aforesaid communication sent by the District Ayurvedic Officer, Office of Accountant General stopped the pension of the petitioner, however, this Court in Ram Krishan Sharma's (Supra) quashed the order stopping pension issued by the District ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 5 Ayurvedic Officer and held that the petitioner would be deemed to be in regular service of department in the capacity of Ayurvedic Medical .
Officers since date of his initial engagement. In the aforesaid judgment, this Court while placing reliance upon various judgments rendered by the Hon'ble Apex Court held that services rendered prior to regularisation in any capacity be it work-charged employees, contingency paid fund employees or non-pensionable establishment have to be counted towards qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
8. Since issue in the present case is similarly to the issue, which stands already decided vide aforesaid judgment (Ram Krishan Sharma's case) as well as judgment rendered by the co-ordinate Bench of this Court in CWPOA No. 195 of 2019 dated 26.12.2019, titled Sheela Devi v.
State. It would be apt to take note of relevant paras of judgment passed in Sheela Devi's case supra:
"2. The late husband of the petitioner was appointed as Ayurvedic doctor on contract basis in temporary capacity in the year 1999, however, his services were thereafter regularised in the year 2009 and he shortly thereafter expired on 23.01.2011. The request made by the applicant for release of pension has been turned down by the respondents vide order dated 18.6.2018 on the ground that the services rendered by the husband of the applicant on contract basis cannot be counted for pensionary benefits under CCS (Pension) Rules, 1972 (for short 'Pension Rules') as the same are applicable only to regular government employees appointed in the pensionable establishments in ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 6 the Government departments on or before 14.05.2003. The Government employees appointed in non-pensionable establishments are covered under the Contributory Provident .
Fund Rules, 1962. In terms of rule 2 of the Pension Rules, these rules are applicable to the Government employees appointed substantively to civil services and posts in Government departments which are borne on pensionable establishments appointed on or before 14.05.2003. Further, as per rule 2 (g) of the Pension Rules, these Rules are not applicable to the persons employed on contract except when the contract provides otherwise.
3. We have heard learned counsel for the parties and have gone through the records of the case carefully.
4. Rule 17 of the Central Civil Services (Pension)Rules, 1972 reads as under:
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 r 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 ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 7 paid to him on account of service rendered on contract."
5. It is clear from the plain language employed in rule 17 of .
the Central Civil Services (Pension) Rules, 1972 that if a person is initially engaged by the Government on contract for a specified period and is subsequently appointed to the same or another post in a substantiative capacity in a pensionable establishment without interruption of duty, he may opt either to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service or to agree to refund to the Government the monetary benefit referred to in clause 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.
6. We may at this stage refer to a decision rendered by learned Single Judge of this Court in Paras Ram vs. State of Himachal Pradesh and another, 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 in 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 period may be treated as qualifying service for the purpose of pension also."
8. A co-ordinate Bench of this Court (Coram: Mr. Justice Rajiv Sharma, J. and Mr. Justice Sureshwar Thakur, J.) while dealing with an identical issue in CWP No. 5400 of 2014 titled Veena Devi Vs. Himachal Pradesh State Electricity Board and another, decided on 21.11.2014 and after interpreting the provisions of Rule 17, directed the respondents therein to count the services of the petitioner therein on contract basis as Clerk/Typist with effect from 16.11.1988 to 21.3.2009 for the purpose of qualifying service for pensionary benefits.
9. Likewise, the same Bench issued similar directions in CWP No. 8953 of 2013 titled Joga Singh and others vs. State of H.P. and others and connected matter, decided on 15.6.2015 by directing the period of service rendered on contract basis as ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 8 qualifying service for the purpose of pension under the Pension Rules.
10. Another Co-ordinate Bench of this Court {Coram: Hon'ble .
Mr. Justice Surya Kant, Chief Justice (as his Lordship then was) and Hon'ble Mr. Justice Ajay Mohan Goel, J.} in CWP No. 2384 of 2018 titled State of Himachal Pradesh and others vs. Matwar Singh and another, decided on 18.12.2018, held that work charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits. Therefore, the executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/ struck down, in light of the decisions rendered in CWP No. 6167 of 2012, titled Sukru Ram vs. State of H.P. and others, decided on 6th March, 2013 and a Full Bench of Punjab and Haryana High Court in Kesar Chand vs. State of Punjab through the Secretary PWD (B&R) Chandigarh and others, (1988) 94 (2) PLR 223, the relevant para-3 of the judgment reads as under:
r "3. It is by now well settled that the work charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits. Executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/ struck down, in light of view taken by this Court in CWP No. 6167 of 2012, titled Sukru Ram vs. State of H.P. and others, decided on 6th March, 2013. A Full Bench of Punjab and Haryana High Court in Kesar Chand vs. State of Punjab through the Secretary PWD (B&R) Chandigarh and others, (1988) 94 (2) PLR 223, also dealt with an identical issue where Rule 3.17 (ii) of the Punjab Civil Services Rules excluded the work charge service for the purpose of qualifying service. Setting aside the said Rule being violative of Articles 14 and 16 of the Constitution of India, it was held that the work charge service followed by regular appointment will count towards qualifying service for the purpose of pension and other retiral benefits. The aforesaid view was also confirmed by the Hon'ble Apex Court."
11. As regards the counting of work period rendered on work charged basis followed by regular appointment, the issue is otherwise no longer res integra in view of the judgment of ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 9 the Hon'ble Supreme Court in Punjab State Electricity Board vs. Narata Singh AIR 2010 SC 1467, Habib Khan vs. The State of Uttarakhand (Civil Appeal No. 10806 of 2017) decided on .
23.8.2017 and 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.
12. It is by now settled law that the work-charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits and even adhoc service in terms of Paras Ram's case (supra) followed by regular service in the same post has to be counted for the purpose of increments and in turn for pension as held by the Division Bench of this Court in LPA No. 36 of 2010 titled Sita Ram's case (supra), can the benefit be denied to the employees appointed on contract basis followed by regular appointment.
12. Even though the issue in question is squarely covered by the judgments rendered by this Court in Veena Devi and Joga Singh cases (supra). However, we may at this stage make note of an unreported decision of the Division Bench of the Punjab and Haryana High Court in Rai Singh and another vs. Kurukshetra University, Kurukshetra, C.W.P. No.2246 of 2008, decided on August 18, 2008 wherein the Court after taking into consideration the Full Bench judgment in Kesar Chand case (supra) held that once the employees have been regularised and are now held entitled to pension by counting adhoc service, exclusion of service "on contract basis" will be discriminatory. It was further held that appointment on contract basis is a type of adhoc service.
Mere fact that nominal breaks are given or lesser pay is given or increments are not given, is no ground to treat the said service differently. Beneficial provision for pension having been extended to adhoc employees, denial of the said benefit to employees working on contract basis, who also stand on same footing as employees appointed on adhoc basis cannot be held to be having any rational basis and the judgment in Kesar Chand (supra) is fully applicable. It shall be apposite to refer to the necessary observations as contained in paras 4 to 8 of the judgment, which read as under:
"4. Learned counsel for the petitioners relies upon a Full Bench judgment of this Court in Kesar Chand v.::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 10
State of Punjab and others, 1988 (2) PLR 223, wherein validity of Rule 3.17 (ii) of the Punjab Civil Services Rules, Volume II was considered, which provided for .
temporary or officiating service followed by regularization to be counted as qualifying service but excluded period of service in work charge establishment. It was held that if temporary or officiating service was to be counted towards qualifying service, it was illogical that period of service in a work charge establishment was not counted.
6. As held in Kesar Chand (supra), pension is not a bounty and is for the service rendered. It is a social welfare measure to meet hardship in the old age. The employees can certainly be classified on rational basis for the purpose of grant or denial of pension. A cut off date can also be fixed unless the same is arbitrary or discriminatory. In absence of valid classification, discriminatory treatment is not permissible.
7. Once the employees have been regularised and are held entitled to pension by counting adhoc service, exclusion of service "on contract basis" will be discriminatory. Appointment on contract basis is a type of adhoc service. Mere fact that nominal breaks are given or lesser pay is given or increments are not given, is no ground to treat the said service differently. Beneficial provision for pension having been extended to adhoc employees, denial of the said benefit to employees working on contract basis, who also stand on same footing as employees appointed on adhoc basis cannot be held to be having any rational basis. Judgment of this Court in Kesar Chand (supra) is fully applicable.
8. Accordingly, we allow this writ petition and declare that the contractual employees who have rendered continuous service (ignoring nominal breaks) followed by regularization in a pensionable establishment, will be entitled to be treated at par with adhoc employees in such establishment, for counting their qualifying service for pension."::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 11
13. Adverting to the facts of the case, we have no difficulty in concluding that even though the appointment of the husband of the petitioner was contractual but that was in no .
manner qualitative different from the regular employees and once there was need for doctors in the State as is evident from the fact that the services of the husband of the petitioner ultimately stood regularised, then it was unfair on the part of the State Government to take work from the employee on contract basis. They ought to have resorted to an appointment on regular basis.
14. The taking of work on contractual basis for long amounts to adopting the exploitative device. Later on, though the services of the husband of the petitioner as observed above, were regularised. However, the period spent by him on contractual basis, has not been counted towards the qualifying service. Thus, the respondents have not only deprived the deceased husband of the petitioner from the due emoluments during the period he served on less salary on contractual basis but he was also deprived of counting of the period for pensionary benefits.
15. The State has been benefitted by the services rendered by the deceased husband of the petitioner in the heydays of his life on less salary on contractual basis. Therefore, there is no rhyme or reason not to count the contract period in case it has been rendered before regularization. If same is denied, it would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service.
16. 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. 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 work-charged employees, contract employees, contingency paid fund employees or nonpensionable establishment shall be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 1217. In taking this view, we are fortified by the judgment rendered in Prem Singh's case (supra), more particularly 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 workcharged 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 r 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 workcharged 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 13 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 ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 13 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 14 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-::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 14
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 workcharged 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 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 ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 15 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."
18. 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 has to be counted towards qualifying service even if such service is not preceded by temporary or regular appointment in a r pensionable establishment.
19. Once that be so, obviously no discrimination can be made qua the employees, who rendered services prior to regularisation in the capacity of contractual employees and were regularised only because they had put in the requisite number of years of service on contractual basis like their counterparts who had rendered services in the capacity of work charged employees, contingency paid fund employees or non-pensionable establishment, of course, for that matter even on adhoc basis."
In the aforesaid judgment, it has been categorically held that the services rendered prior to regularization in any capacity be it work-charged employees, contingency paid fund employees or non-pensionable establishment have to be counted towards qualifying service.
9. Though in the instant case, respondents in their reply have claimed that since there was no condition in the contract agreement ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 16 signed by the petitioner at the time of accepting service on contract .
basis that services rendered by him toward contract period shall be counted for the purpose of computing qualifying service for pension and increment, claim of the petitioner is not sustainable, but having taken note of the facts and circumstances of the case as well as law discussed herein above, aforesaid submission is not only fallacious, rather same is without any logic and as such, cannot be accepted. No doubt, initial appointment of the petitioner was on contract basis, but that in any manner cannot said to be qualitative different from the regular employees. The taking of work on contract basis for long period amounts to exploitation and as such, period spent by the petitioner on contract basis, if not counted towards qualifying service, petitioner would not only be deprived from the due emoluments qua the period he served on less salary on contractual basis, but he would also be deprived of counting of the period for pensionary benefits. Once State has counted the service rendered by the petitioner on contract basis for the purpose of regularization, there is no plausible reason to not to count such services for computing qualifying service for the purposes of pension.
10. Classification cannot be done on irrational basis, especially when respondents themselves have counted services rendered by the ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 17 petitioner on contract for regularizing services. It would be unjust, illegal and impermissible to accept the aforesaid classification 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 prior to regularisation in any capacity be it work-charged employees, contingency paid fund employees or non-pensionable establishment have to be counted towards qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
Aforesaid view taken by this Court is fortified by the judgment rendered by the Hon'ble Apex Court in case titled Prem Singh v. State of UP and Ors, AIR SC 4390., which has been otherwise taken note of, by this Court while passing judgment in Ram Krishan's Case supra. In light of the aforesaid law laid down by the Hon'ble Apex Court as well as this Court, no discrimination can be made inter-se employees, who renders or have rendered services prior to regularization in the capacity of contractual employees and were subsequently regularized.
11. Contention of learned Additional Advocate General that initial date of appointment after regularization would be date on which the petitioner or other similarly situate persons took charge of the post is wholly mis-placed and cannot be accepted. Once entire service of the petitioner or other similarly situate persons rendered in any capacity is to ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 18 be counted as qualifying service, then his date of appointment is to relate back to his initial date of appointment and such persons cannot be .
estopped from pension scheme by applying the date of regularization
12. The Hon'ble Apex Court in case titled R. N. Nanjundappa v.
T. Thimmiah and Anr, 1972 (1) SCC 409 has categorically held that regularization cannot be said to be mode of recruitment and to accede to such proposition, would mean to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. Relevant para of the aforesaid judgment is reproduced herein below:
"The contention on behalf of the State that a rule under Article 309 for regularisation of the appointment of a person would be a form of recruitment read with reference to power under Article 162 is unsound and unacceptable. The executive has the power to appoint. That power may have its source in Article 162. In the present case the rule which regularised the appointment of the respondent with effect from 15 February, 1958 notwithstanding any rules cannot be said to be in exercise of power under Article
162. First, Article 162 does not speak of rules whereas Article 309 speaks of rules. Therefore, the present case touches the power of the State, to make rules under Article 309 of the nature impeached here. Secondly, when the Government acted (1) [1966] 1 S.C.R. 994.
under Article 309 the Government cannot be said to have acted also under Article 162 in the same breath. The two Articles operate in different areas. Regularisation cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 19 infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-
.
compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
13. Reliance is placed on the judgment dated 31.8.2010 rendered by the Punjab and Haryana High Court in Case titled Harbans Lal v. State of Punjab and Ors in CWP No. 2371/2010, wherein it has been held that service rendered before regularization is liable to be counted for the purpose of pension. Relevant paras of the aforesaid judgment are as reproduced under:
"The consistent view of the judgment is that work charge service rendered before regularization, is liable to be counted as qualifying service for the purpose of pension. A Division Bench of this Court was seized of a case in which vires of Rule 3.17 A was challenged whereby half of the service paid out of contingency fund was to be counted as qualifying service. This rule has been struck down in a judgment of this Court in case of Joginder Singh v. State of Haryana , 1998 Vol.1, SCT 795. Once the entire service paid out of contingency, is liable to be counted for the purpose of qualifying service, a causal/daily rated service is also bound to be counted as qualifying service. A Division Bench judgment in case of Smt.Ramesh Tuli Vs. State of Punjab and others, 2007(3) SCT, 791 examined the proposition as to what would be the qualifying service for pension as per Clause 6(6) of the 1992 Pension Scheme applicable to the Punjab Privately Management Recognized Schools Employees. In paragraph 6 of the judgment, the following observation has been made :- "There is another aspect of the matter. Hon'ble the Supreme Court in the case of Vansant Gangaramsa Chandan v. State of Maharashtra, 1996(4) SCT 403:
JT 1996 (Supp.) SC 544, has considered clause 23 of Chapter VI of a Pension Scheme of the Hyderabad Agricultural Committee, which is as under:- "4.Clause 23 of Chapter VI in the scheme reads as under: "Qualifying service of a Market Committee employee ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 20 shall commence from the date he takes charge of the post to which he is first appointed or from the date the employer started deducting the P.F. contribution for the employee which ever later."
It was held that the clauses of the Scheme have to be read by .
keeping in view the fact that pension is not a bounty of the State and it is earned by employees after rendering long service to fall back upon after their retirement. The same cannot be arbitrarily denied. The clause was subjected to the principle of 'reading down' a well known tool of interpretation to sustain the constitutionality of a statutory provision and accordingly it was read down to mean that the qualifying service could commence either from the date of taking charge of the post to which the employee was first appointed or from the date he started contributing to the Contributory Provident Fund whichever was earlier. The ratio of the above mentioned judgment would apply to the facts of the instant case, inasmuch as, the provision made in clause 6(6) of the 1992 Scheme has to be read down to mean that qualifying service would commence from the date of continuous appointment, which is 17.8.1965 in the present case, or from an earlier date if the employer had started contributing to the Contributory Provident Fund whichever is earlier. Therefore, the petitioner would be entitled to count her service with effect from the date of her appointment and approval i.e. 17.8.1965." The writ petition was allowed and the petitioners were held entitled to count their entire service w.e.f. 17.8.1965 to 30.9.2001 as qualifying service for the purposes of pension. However, the Contributory Provident Fund was required to be adjusted and deducted from the arrears of her pension. We come to the conclusion that the petitioners' initial date of appointment after regularization will be the date on which employee takes charge of the post. Once the entire service of a daily wager is to be counted as qualifying service then his date of appointment will relegate back to his initial date of appointment i.e. 1988 and he cannot be ousted from pension scheme by applying the date of regularization i.e. 28.3.2005 which is evidently after the new scheme or new restructured defined Contribution Pension Scheme came into force w.e.f. 1.1.2004. Reliance has been placed by the respondents on a Single Bench judgment in case of Ramesh Singh and others Vs. State of Punjab (CWP No.5092 of 2010 decided on 22.3.2010). No benefit can be derived by the State on behalf of the judgment because Rule 3.17 of the Punjab Civil Service Rules Vol.II has not been discussed in the judgment. A request for extension of pension scheme has been repelled in the judgment on the ground that petitioners who were working in the Board on work charge basis were regularized by the Board. Since, there was no scheme of pension in the Board, their claim of pension was rejected. On the ::: Downloaded on - 06/07/2020 20:20:55 :::HCHP 21 other hand, the employees who had come from the department of Health on deputation to the Board, and who on repatriation to the parent department were held entitled to a pension by virtue of pension scheme applicable in the parent department. This .
judgment is not applicable on the facts in the present case."
Aforesaid judgment rendered by the Punjab and Haryana High Court has attained finality because SLP bearing No. CC/7901 of 20111 having been filed by the State of Punjab stands dismissed.
14. Consequently, in view of the detailed discussion made herein above as well as law relied upon, present petition is allowed and respondents are directed to count the service rendered by the petitioner on contract basis while computing qualifying service for the purpose of pension and increment. Petition stands disposed of accordingly.
30th June, 2020 (Sandeep Sharma),
manjit Judge
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