KEDAR SINGH NEGI VS HP HIGH COURT

KEDAR SINGH NEGI VS HP HIGH COURT
Tarlok Singh Chauhan, J. 
Civil Writ Petition No. 537 of 2018 Decided on : 07-01-2020

Counsel for Appearing Parties

Sanjeev Bhushan, Advocate, Rajesh Kumar, Advocate, Shalini Thakur, Advocate, Shashi Shirshoo, Advocate, Ashok Sharma, Advocate, Desh Raj Thakur, Advocate, Narinder Singh Thakur, Advocate

Tarlok Singh Chauhan, J. - 

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 issue in fact is no longer res integra in view of the judgment rendered by learned Division Bench of this Court in CWPOA No. 195 of 2019, titled Sheela Devi vs. State of H.P. and others, decided on 26.12.2019. 

However, before adverting to the said judgment, certain minimal facts need to be noticed.

3. The respondents advertised the post of Peon in the year 2001 and the petitioner being eligible applied for the said post. After undergoing selection and being successful therein, the petitioner was offered appointment vide order dated 5.12.2002 and accordingly he was ordered to be appointed as Peon on adhoc basis. Subsequently, vide order dated 29.9.2005, the petitioner was ordered to be regularised alongwith two other persons namely Sh. Anil Kumar and Heera Lal, who are working as Chowkidars.

4. It is not in dispute that as regards these two persons i.e. Anil Kumar and Heera Lal, they have already been allotted GPF Account Number and it is only the petitioner, who has been kept out of GPF account and is continuing with the Contributory Pension Scheme. Thus, a case of invidious discrimination is clearly made out.

5. That apart, even the Registrar General of this Court had requested the State to count the services rendered by the petitioner on adhoc basis till his regular appointment for the purpose of pensionary benefits under the CCS (Pension) Rules, 1972, but the said request was not acceded to by respondent No.2, constraining the petitioner to file the instant writ petition for the grant of following substantive reliefs: 

(i) That an appropriate writ, order or direction may very kindly be issued and the impugned rejection dated 15.12.2015 (Annexure P-8) may very kindly be quashed and set-aside and further directions may very kindly be issued to the respondents to allot GPF account number to the petitioner by governing the petitioner with old Pension Scheme instead of new Pension Scheme i.e. Contributory Pension Scheme, 2006.

(ii) That directions may very kindly be issued to count the adhoc service of the petitioner for all purposes including the pension with effect from 05.12.2002 with all consequential benefits in the interest of law and justice."

6. It has been specifically averred by respondent No.1 in its reply that even though respondent No.2 i.e. Accountant General of Himachal Pradesh had informed the High Court regarding the New Contributory Pension Scheme that has been introduced by the H.P. Government for its employees, who joined service on or after 15.05.2003 and would therefore, not cover under the GPF Rules. But the High Court, in turn, after examining the matter informed the Assistant Accounts Officer of respondent No.2 that since the petitioner was appointed on adhoc basis w.e.f. 5.12.2002 and thereafter on regular basis w.e.f. 29.9.2005 without any break in service, therefore, the services rendered by the petitioner on adhoc basis w.e.f. 5.12.2002 till his regular appointment on 29.9.2005 was to be counted for the pensionary benefits as per CCS (Pension) Rules, 1972 and hence, the petitioner was in service before coming into force the New Contributory Pension Scheme, 2006 w.e.f. 15.5.2003 and requested the respondent No.2 to allot the GPF Account Number in favour of the petitioner. However, the office of the respondent No.2 vide endorsement dated 23.11.2006 returned the application form of the petitioner to respondent No.1 i.e. High Court to issue specific order that the adhoc period of the petitioner from 5.12.2002 to 28.9.2005 shall be counted for all pensionary benefits.

7. The respondent No.1, in turn, vide its letter dated 3.2.2007 after complying with the request of respondent No.2 again recommended the case of the petitioner. However, it appears that respondent No.2 thereafter sought guidance/clarification from the State Government to the effect that since there was no provision of counting adhoc services rendered by any official in the CCS(Pension) Rules, 1972 and that in the absence of any specific order in this regard.

8. The respondent No.3 in its reply has averred that the period of adhoc services does not qualify for pensionary benefits under the provisions of Rule 13 of the CCS (Pension) Rules, 1972 and, therefore, the services rendered by the petitioner on adhoc basis at initial stage w.e.f. 5.12.2002 to 28.9.2005 cannot be counted towards pensionary benefits.

9. I have heard learned counsel for the parties and have gone through the records of the case carefully.

10. As observed above, similar issue came up before the learned Division Bench of this Court in Sheela Devi's case (supra) wherein the moot question was whether the services rendered by a person employed on a contract basis followed by regular appointment can be counted towards qualifying service for the purpose of pension. The Court after referring to Rule 17 of the CCS (Pension) Rules, 1972 and number of judgments rendered by this Court, Full Bench judgment of Punjab and Haryana High Court in Kesar Chand vs. State of Punjab through the Secretary PWD (B&R) Chandigarh and others, (1988) 94 PunLR 223, judgment of the Hon'ble Supreme Court in Punjab State Electricity Board vs. Narata Singh, (2010) AIR 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, (2019) AIR SC 4390 held that the services rendered on contract basis followed by regular appointment have to be counted towards qualifying service for the purpose of pension.

11. In fact, the issue 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,2009 LatestHLJ 887 (HP) 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.

12. 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 period may be treated as qualifying service for the purpose of pension also."

13. Adverting to the facts of the case, I have no difficulty in concluding that even though the appointment of the petitioner was adhoc basis but that was in no manner qualitatively different from the regular employees and once there was a vacancy and need for the services of the petitioner he 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 and they ought to have resorted to an appointment on regular basis.

14. 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 him 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 he served on less salary on adhoc basis but he was also deprived of counting of the period for pensionary benefits.

15. The respondents have been benefitted by the services rendered by the petitioner in the heydays of his life on 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.

16. 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.

17. In taking this view, I am 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 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 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 workcharged 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 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 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 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 or adhoc has to be counted towards qualifying service even if such service is not preceded by temporary or regular appointment in a 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 adhoc employees.

20. Similar reiteration of law can be found in a very recent judgment of 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.

21. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and the impugned rejection dated 15.12.2015 (Annexure P-8) is quashed and setaside. The respondents are directed to count the services rendered by the petitioner on adhoc basis prior to his regularisation towards qualifying service for the grant of pension and thereafter allot GPF Account Number to the petitioner, who shall now be governed under the old pension scheme i.e. the scheme prevalent prior to the Contributory Pension Scheme, 2006.

22. 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.