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2002 DIGILAW 189 (HP)

KAHAN CHAND v. STATE OF H. P.

2002-07-05

NARINDER SINGH THAKUR

body2002
Narinder Thakur, Member (J) 1. The controversy involved in the present original application has long since been settled. The applicant is aggrieved by the impugned action of the respondents whereby they are not going to pay the pension to the applicant as they have not prepared Pensionary documents of the applicant. 2. The applicant was initially engaged on daily wages basis as mistry in 1973 and he has completed more than 240 days in each calander year for regularization. A perusal of the details of working of the applicant for the period from 1973 to 1988. Annexed as annexure A-a would show that the applicant has completed fifteen years of service upto 31.12.1987. He was given a status of work charged mistry in the year 1992 in the pay-scale of Rs. 950-1800, Annexure A-2, thereafter the respondents have confirmed and promoted the applicant as Road Inspector in January, 1996 and the applicant was discharging his duties as such. 3. The applicant has retired on attaining the age of superannuation in 2002. The arbitrary and illegal action of the respondents in not regularising the services of the applicant from due I date has resulted in huge financial loss as well as the future consequential benefits, like Pensionary and allied benefits etc. The? applicant is only 4th class educated. The applicant was genuinely and legitimately expecting that the services of the applicant will be . regularised retrospectively i.e. 4/1983 when the applicant has completed minimum ten years of service for being regularised. It is also stated that the respondents have regularised the service of Chatter Singh Mehta working as Road Inspector in Sub Division, Jubbal and Krishan Lal, work inspector working in Sub Division, Hatkoti form due dates ignoring the claim of the applicant for being regularised from the due date. The applicant made a detailed representation to the respondents on 16.18.2001 (Annexure A-3). However, the respondents have not chosen to decide the same till date. The applicant also made representation to the Honble Chief Minister on 4.12.2001, Annexure A-4) and in that representation also nothing has been heard so far. 4. The applicant made a detailed representation to the respondents on 16.18.2001 (Annexure A-3). However, the respondents have not chosen to decide the same till date. The applicant also made representation to the Honble Chief Minister on 4.12.2001, Annexure A-4) and in that representation also nothing has been heard so far. 4. In the counter filed by the respondents /State it has been averred that the original application is time barred as the same is being filed by the applicant after a lapse of nine years of acceptance of offer of appointment and further due to retirement after attaining the age of superannuation. The applicant was offered a purely temporary post of j work charged mistry from the date of his joining in the scale of Rs. 950-25-1200-30-1560-40-1800 by the superintending Engineer 2nd circle, HPP WD, Shimla vide his office order dated 12.8.1992. Thereafter after a period of nine years he cannot take such unwarranted and un-reasonable plea that too is nothing but an after thought and the pensionary benefit is admissible under rule 49 and 50 of the (Central Civil Services(pension) Rules, 1972 have been granted to the applicant. In para 6.1 of the reply it ha§ been categorically admitted that the applicant has rendered service on daily wages from J 1973 to 31 12.1987 as the same is matter of record. 5. 1 have heard the learned counsel for the respective parties and have gone through their pleadings carefully. 6. The applicant has claimed that he is entitled for pension. Law in this regard is well settled by Honble High Court of Himachal Pradesh in case reported in 1988 (2) Shimla Law cases 18, titled as Shakuntla Devi Vs. State of HP. and Ors and in another judgment titled as Ram Singh Vs. State of Himachal Pradesh reported in 1986 Shimla Law Cases, 208, as per this, the applicant is entitled for regularisation w.e.f. 3/1988 and after that with all consequential benefits with effect from that date. 7. As stated earlier, the controversy involved in the present case has since been settled in OA No. (D) 617/98 Babu Vs. State and others: OA (D) 616/98 Ddharam Singh vs. State and others: OA(D) 615/98 Asha Ram vs. State and others: OA(D) 613/98 Ranvir Singh vs. State. 8. The averments of the applicant have not been denied by the respondents in their reply. State and others: OA (D) 616/98 Ddharam Singh vs. State and others: OA(D) 615/98 Asha Ram vs. State and others: OA(D) 613/98 Ranvir Singh vs. State. 8. The averments of the applicant have not been denied by the respondents in their reply. However, the main defence of the respondent/department has been that under CCS (pension) Rules no pension is admissible to those who retire before twenty years of calculated service. 9. This view of the respondent department is not sustainable if view of the provisions laid down in the CCS (Pension) Rules, 1972. Rule 14 lays down the condition subject to which the service qualifying for grant of pensionary benefits. Under these rules, the Government of India vide its OM No. F 12 (1)-E.V/ 68 dated 14th may, 1968 has clearly laid down that in pursuance of recommendation of the council, it has been decided that half the service paid from contingency will be allowed to count towards pension at the time of absorption in regular employment in respect of service paid from contingency involving whole time employment. Admittedly, the applicant was being paid daily wages for the full time work and the applicant was not working on part time basis. Thus the applicant has worked for nineteen years on daily wages basis from 1973 to 1992 and as such his services for pension at the rate of half will come to nine years and six months as daily wages plus nine years and five months as regular totaling to eighteen years and eleven months. 10. The next contention of respondent department that the pensionary benefits are available after twenty years of service is not tenable. Rule 49 of CCS (pension) rules deals with the amount of pension how to be calculated after different years of service. It is quite apparent on the reading of rule 49 that after a person retire from service in accordance with the provisions of these rules, he is entitled for pension after ten years calculated service. The applicant has been retired on superannuation and in accordance with the provision of CCS (pension) Rules as such he is entitled for grant of pension. 11. It is well established law by now that pension is a property of an Honble Apex Court: Deokinandan Prasad Vs. State of Bihar 1971 (2) SCC 33O.individuai under article 300-A of the constitution of India and not a bounty. 11. It is well established law by now that pension is a property of an Honble Apex Court: Deokinandan Prasad Vs. State of Bihar 1971 (2) SCC 33O.individuai under article 300-A of the constitution of India and not a bounty. The law is settled in the following judgments that the right of the petitioner to receive pension is property under article 31 (1) and by a mere executive order the state had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) AND IT IS NOT SAVED BY SUB-ARTICLE (5) OF article 19. Therefore, it follows that the order dated June 12,1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 3(1) of the constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the state to properly consider the claim of the petitioner for payment of pension according to law." H.H. Mahara Jadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior, HH, Kaharajadhiraja Maharana Shri Bhagwat Singh Ji Bahadur of Udaipur, Col. H.K.Brarbana Saramaour Raja-I-Rajagan Sir Partap Singh Malvendra Bahadur, Col Raja Surinder Singh Bahadur of Nalagarh 1971 (1) SCC 85: "232..... I have earlier come to the conclusion that the right to get the privy purses under Article 291 is legal right. From that it follows that it is right enforceable through the courts of law. A right to receive cash amount annually has been considered by this court to be a property -state of M.P. Vs. Ranojirao Shinde and others 1968 (3) SLR 489; AIR 1968 SC 1053; 1968 (20 SCJ 760. Even if it is considered as pension as the same is payable under law under article 291, the same is property -see Madho Rao Phalke vs state of MP." 12. It is well settled principle of law that pension is recurring f cause of action arising from month to month when it becomes payable; on the first of each month. As such the contention of the respondent that the application is barred by time does not hold good. It is well settled principle of law that pension is recurring f cause of action arising from month to month when it becomes payable; on the first of each month. As such the contention of the respondent that the application is barred by time does not hold good. In Shakuntla Devi Vs. State of H.P. reported in 1988(2) Shimla Law cases 18, the Honble High Court of Himachal Pradesh while dealing with the similar matter has issued direction to the state Government to regularise the service of the petitioner by counting ex-post facto sanction and then given pensionary benefits. 13. In another judgment titled as Ram Singh vs. state of Himachal Pradesh reported in 1986 SLC, the Honble High Court of Himachal Pradesh has held that pension is to be property of an individual under Article 19 (1) (f) 31 (1) and 300-A of the constitution of India and directed the state to pay the same to the similarly situated persons with interest. 14. The pensionary benefits are not only compensations for loyal service rendered in the past, but also by broader significance in that it is a social welfare measure rendering socio-economic justice by providing economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when one had given his best in the hey days of life to his employer, in days of invalidity, economic security by way of periodical payment is assured. Therefore, it is a work of stipend made in consideration of past service or a surrender of rights or emoluments to one retire from service. This pension is earned by rendering long and efficient service and therefore can be said to be deferred portion of the compensation for the service rendered. In one sentence one can say that the most practical raison dieter for pension is the inability to provide for oneself due to old age. One may live and avoid un-employment but not senility and penure if there is nothing to fall back upon. The applicant in the present original application is of 62 years of age and he has no option except to depend upon the pensionary benefits in this advanced old age. He is not supposed to be left in lurch towards the sunset of his life. The applicant in the present original application is of 62 years of age and he has no option except to depend upon the pensionary benefits in this advanced old age. He is not supposed to be left in lurch towards the sunset of his life. As such the action of the respondents in not paying him the pensionary benefits is illegal and arbitrary. 15. So far as the payment of interest is concerned, I, allow the same on the analogy of Government charges from a individual in case of refund of pension. As per the G l Department of pension and pw O M. No. E-7/1/93-p-pw (F) dated 25.8.1994 and 31-8-1995 published in swamis pension compilation (14th Edition) 1988 at page 40-41, wherein it has been laid down that: "It has been decided that whenever the employees are required to refund the pensionary benefits received by them for the service already rendered by them under the central or state Government or Autonomous Bodies in order to avail the benefits of counting past service for pension purpose in terms of the provisions of Rule 17 to 20 of the CCS (pension) Rules, 1972. The term of pension and pensioners welfare OM No. 28/10/84-PU dated 29-8-1984 as amended from time to time, the rate of interest will be laid down as applicable on GPF accumulation from time to time, for the period from the date of receipt of pensionary benefits to the date of their refund to the government/autonomous Body." 16. Interest will be calculated in the same manner as is done in GPF balance. 17. Denial of pensionary benefits to those who are more in need at this age on some technicality is against the constitutional mandates. 18. In view of the above discussion, I allow the present original application with direction to the respondent department to regularise the services of the applicant after completion of ten years of service only for the purpose of pensionary benefits and them thereafter, counting half of the service rendered by the applicant as daily rated worker and full service as regularised worker, the pensionary benefits will be worked out and paid alongwith interest calculated in the manner and at the rate given on GPF deposits. These directions will be complied with, within three months from the date of this order. I however, make no order as to costs. These directions will be complied with, within three months from the date of this order. I however, make no order as to costs. The application stands finally disposed of in the light of above.