High Court of Punjab and HaryanaCWP/5223/2018allowed

Kanta Devi v. State Of Haryana And ORS.

2022-11-29Mr. Justice Arun Palli10 pages

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$ & 0Kesar Chand Vs. State of Punjab and others', AIR 1988 Punjab 265, a Full Bench of this Court held that the adhoc/temporary/casual service rendered prior to the regularization is liable to be taken into account as a qualifying service for computing the pensionary benefits. Therefore, keeping in view the rules governing the service, the petitioner is entitled for the grant of the benefit of service starting from February 1994 onwards as a qualifying service for computing the pensionary benefits.

Not only this, the Hon'ble Supreme Court of India in Civil Appeal No.3348 of 2015 titled as Secretary, Minor Irrigation Deptt and R.E.S. vs. Narendera Kumar Tripathi decided on 07.04.2015, held that the adhoc appointment cannot be ignored while computing the qualifying service.

In the recent judgment of the Hon'ble Supreme Court of India in Civil Appeal No.6798 of 2019 titled as Prem Singh vs. State of Uttar Pradesh and others, decided on 02.09.2019, the Hon'ble Supreme Court of India has clearly held that the work charge service rendered prior to regularization is to be treated as qualifying service for computing the pensionary benefits. The relevant paragraph 33 and 35 is as under:- 1 !

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Keeping in view the above, ignoring the service which the petitioner had rendered starting from February 1994 onwards till the regularization of her services is totally arbitrary and illegal. Once the petitioner was allowed to work for a period of 19 years before regularizing her services, it cannot be said that the work of the petitioner was of a stop gap nature. Once an employee has worked in a department for two decades, it can be safely presumed that there exist the work for the said employee in the Department, which the employee had rendered also. Further, though w.e.f. 01.01.2006, there was no pension available within the State of Haryana but, an employee, who was already in service as on 01.01.

2006, will be entitled for the benefit under the Old Pension Scheme keeping in view the judgment of the Division Bench of this Court in Harbans Lal's case (supra). In the said judgment, it has been held that even if an employee is working on adhoc basis or a stop gap arrangement, the cut of date and his/her services were regularized after the cut of date, the employee will be governed by the Old Pension Scheme.

2 0/ 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. 11.

xxx xxx xxx xxx 12.

xxx xxx xxx xxx 13.

xxx xxx xxx xxx 14.

xxx xxx xxx xxx 15.

xxx xxx xxx xxx 16.

From the above discussion, we have come to the conclusion that the entire daily wage service of the petitioner from 1988 till the date of his regularization is to be counted as qualifying service for the purpose of pension. He will be deemed to be in govt. service prior to 1.1.2004. The new Re-structured Defined Contribution Pension Scheme (Annexure P-1) has been introduced for the new entrants in the Punjab Government Service w.e.f. 01.01.2004, will not be applicable to the petitioner. The amendment made vide Annexure P-2 amending the Punjab Civil Services Rules, cannot be further amended by issuing clarification/instructions dated 30.5.2008 (Annexure P-3). The petitioner will continue to be governed by the GPF Scheme and is held entitled to receive pensionary benefits as applicable to the employees recruited in the Punjab Govt. Services prior to 1.1.2004.

17.

In view of the above, the writ petition is allowed. Accordingly respondents are directed to treat the whole period of work charge service as qualified service for pension because accordingly to clarification issued on 30.5.2008 (Annexure P-3), the new defined Contributory Pension Scheme would be applicable to all those employees who have been working prior to 1.1.2004 but have been regularized thereafter. Let his pension and arrears be calculated and paid to him expeditiously, preferably within a period of three months from the date of receipt of copy of this order."

The law cited hereinbefore has already attained finality upto the Hon'ble Supreme Court of India. That being so, even if the services of petitioner have been regularized w.e.f. 01.01.2006, the petitioner will be governed by the settled principle of law settled in Harbans Lal's case (supra).

Keeping in view the above, the claim of the petitioner for the grant of pensionary benefits under the Old Pension Scheme also deserves to be allowed being meritorious.

Learned counsel for the petitioner argues that as the petitioner retired about five year ago and the petitioner has been deprived of the benefits for which she is entitled for, hence, the petitioner is also entitled for the grant of interest.

Learned counsel for the respondents submits that there was no intentional denial of the benefits but as per the respondents, the petitioner was not found entitled for the benefits under the Rules governing the service hence, the claim of interest may kindly be declined. The prayer of the petitioner has been allowed on the basis of rules existing which were in operation at the time when the petitioner retired. Law laid down in Harbans Lal's case (supra) was also available for application upon the petitioner when the petitioner retired. The respondents, did not consider the claim of the petitioner in correct perspective so as to only decline the benefits. Even the judgment of the Full Bench in Kesar Chand's case (supra) as well as the judgment of the Hon'ble Supreme Court of India in Narendera Kumar Tripathi's case (supra) were also available

with the respondents for their consideration so as to grant the benefit to the petitioner.

Apart from this, a Coordinate Bench of this Court in J.S.

Cheema Vs State of Haryana, 2014(13) RCR (Civil) 355,

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All the writ petitions are allowed in above terms. A photocopy of this order be placed on the files of other connected cases.

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