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Himachal Pradesh High Court · body

2016 DIGILAW 2534 (HP)

Madhu Tomar v. State of H. P.

2016-12-02

SURESHWAR THAKUR

body2016
Sureshwar Thakur, J. The petitioner stood appointed as an Anganwari Worker on 21.10.1982, in capacity whereof she rendered work under the respondents upto 30.08.2005 whereat in consonance with the relevant R & P Rules she stood absorbed as a Supervisor by the respondents. She claims qua the hitherto rendition by her of service under the respondents as an Anganwari Worker standing amalgamated with her subsequent rendition of service as a Supervisor under the respondents, for facilitating computation vis.a.vis her the pensionary benefits. Her initial engagement as an Anganwari Worker under the respondents, as visible from a pronouncement made the Hon’ble Apex Court in State of Karnataka and others vs. Ameerbi and others reported in (2007) 11 SCC 681 , relevant paragraph whereof stands extracted hereinafter: “Appointment made under a scheme and recruitment process being carried out through a committee, in our opinion, would not render the incumbents thereof holders of civil post. Our attention has not been drawn to any rule or regulation governing the mode of their recruitment. Some statements in this behalf have been made by the interveners but for the reasons stated hereinbefore, we cannot enter thereinto.” does not don the mantle of a civil post. Also she manifestly cannot in the aforestated capacity be construed to be holder of a civil post. The effect of the aforesaid pronouncement made by the Hon’ble Apex Court in its verdict reported supra holds a bearing upon the legitimacy of the claim of the petitioner qua the period of her rendition of service as an Anganwari worker under the respondents standing amalgamated with her subsequent rendition of service as a Supervisor under the respondents significantly when the latter capacity whereon she evidently stood absorbed by the respondents dons the mantle of a substantive post especially when she in consonance with the mandate of the relevant R & P Rules stood appointed thereon besides when her appointment thereon stood preceded by the respondents begetting compliance with the rigours of the mandate held in the apposite rules. Uncontrovertedly, the rendition of service by the petitioner against the substantive post of a Supervisor is to be construable to be rendition of service by her against a civil post since 30.08.2005 whereat she stood appointed as a Supervisor. Uncontrovertedly, the rendition of service by the petitioner against the substantive post of a Supervisor is to be construable to be rendition of service by her against a civil post since 30.08.2005 whereat she stood appointed as a Supervisor. However, reiteratedly her initial appointment since 21.10.1982 upto 30.08.2005 whereon she rendered service under the respondents as an Anganwari Worker does not, for reasons aforestated, hold any trait or characteristic qua her appointment thereon being made against a civil post nor she is to be construable to be since 21.10.1982 upto 30.08.2005 to hold a civil post. Now hereat the effect of the aforesaid inference erected by this Court qua the period from 21.10.1982 upto 30.08.2005 whereon she rendered service as an Anganwari Worker under the respondents being unamenable for it being construable to be rendition of service by her against a civil post is qua its tellingly adversely impinging upon her entitlement to seek amalgamation of the aforesaid duration of rendition of service by her under the respondents in the capacity of an Anganwari worker with the period of service subsequent thereto rendered by her under the respondents against the substantive post of a Supervisor, besides also her entitlement qua the facet aforesaid holding any tenacity warrants an allusion to Rule 13 of the CCS Pension Rules, 1972, where within a mandate is held qua the commencement of the qualifying period of service of a Government servant for his standing entitled to therefrom seek computation of pensionary benefits by his employer qua him. “ Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity : Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post : Provided further that – (a) in the case of a Government servant in a Group `D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and (b) in the case of a Government servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity. (c) the provisions of clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19.” A circumspect reading thereof, unravels qua the occurrence of commencement of the relevant qualifying period of service occurring besides arising from the date a Government servant takes charge of the post to which he stands first appointed either substantively or in a temporary capacity. Also it holds a proviso qua the temporary besides officiating period of rendition of service by a Government servant if remains unbroken upto his subsequent regular engagement in the relevant capacity rather stands incessantly succeeded upto his standing appointed against a substantive post in the same or in another service, the hitherto period of rendition of service by a Government servant even in an officiating or in a temporary capacity being reckonable besides it being includable for the relevant computation of pensionary benefits standing made qua him. Obviously therefrom the imminent sequel is qua also the entire period of its duration standing enjoined to be amalgamated with the subsequent period of his rendition of service in a substantive capacity against a substantive post unless his preceding rendition of service in an officiating or temporary capacity stands interrupted by a break in service, thereupon the learned counsel for the petitioner contends qua the rendition of service by the petitioner in a non substantive capacity of an Anganwari worker being amenable to a construction of it falling within the ambit of Rule 13 of the CCS Pension Rules, 1972, it acquiring the trait of hers rendering service thereagainst under the respondents in an officiating or in a temporary capacity also with hers in an unbroken succession therefrom upto hers standing appointed against a substantive post of a Supervisor rendering service under the respondents besides when her previous rendition of service in a temporary or in officiating capacity of an Anganwari Worker under the respondents held incessant continuity in time upto her appointment against the substantive post of a Supervisor rendered her to satiate the mandate of Rule 13 of the CCS Pension Rules, 1972, whereupon she canvases of hence the rendition of service as an Anganwari worker by the petitioner under her employers while hence being construable to be rendition of service in an officiating or in a temporary capacity enjoined the respondents to amalgamate the aforesaid period of rendition of service by her alongwith the rendition of service by her against the substantive post of a Supervisor, for thereupon the relevant computation of pensionary benefits being made qua her. The aforesaid submission made before this Court by the learned counsel for the petitioner is not amenable for its standing countenanced by this Court as it stands canvassed unbereft of hers remaining mindful qua there within the imperative ingredients warranting satiation is qua the relevant period of service even in an officiating or in a temporary capacity standing performed against a civil post. 2. 2. Now conspicuously, when this Court has pronounced qua any appointment as an Anganwari worker standing not construable to be an appointment against a Civil post nor an appointee thereon being construable to be holder of a Civil post whereupon the inevitable sequel is qua the rendition of service by the petitioner in the capacity of an Anganwari worker, even if assumably it is construable to be qua her rendering service there against in an officiating or in a temporary capacity not hence satiating the mandate of the relevant rules where within the aforesaid manner of rendition of employment by her under her employer warrants rendition thereon against a civil post, civil post whereof for reasons aforestated stood unadorned by the petitioner at the stage whereat she rendered service as an Anganwari worker under the respondents. Consequently, with the petitioner while performing service as an Anganwari worker under the respondents hers not holding any civil post since 21.10.1982 to 30.08.2005, corollary whereof is qua with hers not throughout the aforesaid period neither performing service under the respondents against a civil post nor hence she being construable to be holder of a civil post whereupon the performance of service there against by her even if construable to be in a temporary or in an officiating capacity does not befittingly render her to be construable to be falling within the ambit of Rule 13 of the CCS Pension Rules. In aftermath, the period of service performed by the petitioner in the capacity of an Anganwari worker since 21.10.1982 upto 30.08.2005 is to be concluded to be not constituting the relevant qualifying service for the purpose of attraction qua hers of the apposite rules nor it is enjoined to be amalgamated with the subsequent rendition of service by her under the respondent against a substantive post of a supervisor. 3. 3. The learned counsel for the petitioner has contended with force before this Court while relying upon a judgment rendered by this Court in Civil Writ Petition No. 8953 of 2013 qua Vidya Upasaks appointed by the respondents under the ‘Himachal Pradesh Vidya Upasaks Yojna, 1998’ wherein this Court had pronounced qua with the rendition of service on a contractual basis by Vidya Upasaks standing succeeded by theirs standing appointed in a regular capacity thereon also when hence the aforestated ingredients encapsulated in the relevant pension rules stood satiated thereupon this Court held qua the period of rendition of service on a contractual basis by Vidya Upasaks being amenable for reckoning besides being construable to be constituting qualifying service within the ambit of the relevant mandate of the pension rules for thereupon computing the relevant pensionary benefits qua them. However, the reliance as placed by the learned counsel for the petitioner upon the aforesaid verdict of this Court is inapt given the evident gross distinctivity inter se the factual matrix prevailing thereat vis.a.vis the factual matrix visibly prevalent hereat, contradistinction whereof is garnerable from the factum qua therein the engagement on a contractual basis of Vidya Upasaks standing preceded by theirs undergoing the rigours of selection by a duly constituted Board in sequel to the post aforesaid standing advertised whereupon their initial engagement in a contractual capacity by their employer did render their apposite initial engagement being construable to partake the trait qua theirs hence initially standing appointed thereon against a civil post also theirs being construable to be holders of a civil post whereas with an Anganwari worker(s) for reasons aforestated not standing appointed against a civil post nor the appointees there against being construable to be holding a civil post conspicuously also when their engagement stood unpreceded by the relevant post standing advertised visibly renders the decision relied upon by the learned counsel for the petitioner to stand unattracted hereat. There is no merit in the petition and the same is dismissed. The pending applications, if any, also stand dismissed. No costs.