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2018 DIGILAW 149 (UTT)

Ram Singh v. State of Uttarakhand

2018-04-03

SHARAD KUMAR SHARMA

body2018
JUDGMENT : Sharad Kumar Sharma, J. 1. The petitioners have filed the present writ petition for the following reliefs: “(i) To declare provisions of Civil Service Regulation including Regulation 368 and Regulation 370(ii) of the Civil Service Regulations, as violative of provisions contained in Part III and Part IV of the Constitution in so far as they deprive persons serving in Work-Charge Establishment of their vested right to pension. (ii) To declare para 669 of the Financial Hand Book Volume VI, as violative of provisions contained in Part III and Part IV of the Constitution in so far as it deprive persons serving in Work-Charge Establishment of their vested right to pension. (iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the entire service rendered by the petitioners in the Work-Charge Establishment of the department as qualifying service for pension and to grant pension accordingly to the petitioners. (iv) Issue a writ, order or direction in the nature of mandamus commanding the respondent to grant pension and other retrial benefits along with arrears of salary to the petitioners within a stipulated time.” 2. The learned counsel for the petitioners submits that at this stage, he is not pressing for relief no. 1. The reason behind this is that he submits that even otherwise reliefs claimed by virtue of relief no. 3 and 4 are covered by another judgment rendered by Hon’ble Apex Court in Habib Khan’s case Civil Appeal No. 10806/2017 as decided on 23.08.2017 against which review of State has also been dismissed on 16.01.2018. The Hon’ble Apex Court has held as under:- “7. As already observed, the provisions of Rule 370 of the Civil Service Regulations applicable to the State of Uttarakhand are pari materia with the provisions of Rule 3.17 (ii) of the Punjab Civil Services Rules, discussed above. If that is so, we do not see as to why the period of service rendered on work-charged basis by the appellants should not be counted for purposes of computation of ‘qualifying service’ for grant of pension. If that is so, we do not see as to why the period of service rendered on work-charged basis by the appellants should not be counted for purposes of computation of ‘qualifying service’ for grant of pension. The pari materia provisions of Rule 3.17(ii) of the Punjab Civil Services Rules having been interpreted and understood in the above manner by this Court in Narata Singh (supra) we do not find any room for taking any other view except to hold that the appellants are entitled to reckon the period of work-charged service for purposes of computation of ‘qualifying service’ for grant of pension. We order accordingly; allow these appeals and set aside the impugned orders passed by the High Court.” 3. The brief facts leading to the findings of the Writ Petition are that the petitioners contends that they were appointed in 1975 and 1986 respectively in the work charge establishment and they have continuously worked for over a decade in the said establishment. Although, having been appointed as daily wager in 1975 and 1980 respectively, they have regularly worked in the work charge establishment. On the basis of the decision taken by the Selection Committee, the services of the petitioners were regularized by the order dated 28.06.2003. An order of the regularization to the said effect was passed by the Executive Engineer on 28.06.2003. After completing the requisite tenure of service petitioner no. 1 retired on 30.09.2006 and petitioner no. 2 retired on 30.04.2007. 4. After superannuation, the petitioners were surprised to receive a very meager sum of money as a consequence of settlement of post retrial dues, on the basis of the order issued by the Treasury Officer on 19.04.2007. The petitioners’ contention in the Writ Petition is that the settlement of the retrial dues by the order dated 19.04.2007 does not commensurate to the period of services rendered by him. But it is the case of the respondent that since the petitioners have not completed the requisite ten years regular service, hence, they would not fall within the zone of consideration for grants of post retrial dues since having not completed the requisite years of service as required by the law. 5. But it is the case of the respondent that since the petitioners have not completed the requisite ten years regular service, hence, they would not fall within the zone of consideration for grants of post retrial dues since having not completed the requisite years of service as required by the law. 5. The petitioners to raise their claim have filed their representation, contending thereof that they have rendered their services since 1975 and 1980 respectively and they had been appointed in the work-charge establishment of the department in the year 1986 and 1998 respectively and have rendered more than 31 and 27 years of continuous service in the department, as such they are entitled for pensionary and other retrial benefits after considering the service as rendered in the work-charge establishments. When no decision was taken on the same, the petitioners were constrained to file the present Writ Petition. The petitioners in the Writ Petition have submitted that owing to the constitutional mandate the employer cannot deny the pensionary benefits to an employee who have served for a long period under the pretext that they have not completed ten years of requisite service. 6. In support of his contention learned counsel for the petitioners has submitted that the Hon’ble Apex Court had consistently held that a daily wager/adhoc employee or an employee serving in Work-Charge Establishment who have put in sufficient period of services, their services are required to be taken into consideration for the process of settlement of the post retrial dues. It has also been held out that if an employee has worked for a considerable period in the work-charge establishment for a considerable time, it reveals that there was a vacancy available and thus the department is under an obligation to settle the post retrial dues in terms of the regulations as contemplated under the Civil Services Regulations. The controversy pertaining to the entitlement of pensionary benefits after inclusion of the service period as rendered in the work charge establishment had came up for consideration before this Court in Habib Khan’s case which travelled up to the Apex Court and the Apex Court vide its judgment dated 23.08.2017 had upheld the proposition that for the purpose of settlement of the qualifying service for the grant of pensionary benefits the services rendered as on the work charge basis should be counted for the grant of pension. The Hon’ble Apex Court, while rendering the judgment of 23.08.2017 had taken into consideration the pari materia provisions as applicable in the Punjab Civil Services, as it has been held out in the case of the Narata Singh and thus the Court held that no contrary view could be taken in that regard. The State Government feeling aggrieved against the judgment dated 23.08.2017 as rendered by the Hon’ble High Court had preferred a review and the review petition too has been dismissed by the Hon’ble Apex Court by its Judgment dated 16.01.20018. Based on the aforesaid judgment, number of special appeals have come for consideration before the Division Bench of this Court and the Division Bench too based on the judgment rendered by the Hon’ble Apex Court in Civil Appeal No. 10806 of 2017 State of Uttarakhand vs. Habib Khan had allowed the appeal and directed the State Government to count the work-charge services for the purpose of computing of the ‘qualifying service’ for grant of pension to the appellant as well as the similarly situated persons, within a period of two months from the date of production of a certified copy of the order. The relevant part of the judgment passed by the Division Bench of this Court on 23.10.2017 is quoted hereunder: - “Accordingly, the present appeal is allowed. The judgment rendered by learned Single Judge in WPSS No. 1428 of 2012, on 12.11.2013, is quashed and set-aside. The respondent-State is directed to count the work-charge services for the purpose of computation of ‘qualifying service’ for grant of pension to the appellant as well as the similarly situate persons, within a period of two months from the production of a certified copy of this order.” Pending application, if any, stands disposed of accordingly.” 7. The identical view was endorsed by the Division Bench of this Court in its judgment rendered on 26.03.2018, in Special Appeal No. 70/2018 State of Uttarakhand vs. Ram Swaroop and Others which is reproduced herein below:- “2. The present controversy raised in the appeal has conclusively been decided by the Hon’ble Apex Court in the case of Habib Khan vs. State of Uttarakhand and Others, decided on 23.08.2017. The operative portion of the judgment reads as under:- “6. The present controversy raised in the appeal has conclusively been decided by the Hon’ble Apex Court in the case of Habib Khan vs. State of Uttarakhand and Others, decided on 23.08.2017. The operative portion of the judgment reads as under:- “6. The pari materia provision contained in Rule 3.17(ii) of the Punjab Civil Services Rules had been struck down by a Full Bench decision of the Punjab and Haryana High Court in Kesar Chand vs. State of Punjab and Others. The challenge by the State against the aforesaid decision of the Full Bench of the Punjab and Haryana High Court was negatived by this Court. The matter came up for consideration before this Court, once again, in the case of Punjab State Electricity Board and Another vs. Narata Singh and Another. While dealing with the said question this Court in paragraph 25 of the report held that the Full Bench decision of the Punjab and Haryana High Court was perfectly justified in striking down Rule 3.17(ii) of the Punjab Civil Services Rules resulting in obliteration of the distinction made in the said Rules between temporary and officiating service and work-charged service. On the said basis, this Court took the view that the period of work-charged service should be reckoned for purposes of computation of qualifying service for grant of pension. 3. The judgment rendered by the Division Bench of this Court in Satpal Singh vs. State of Uttarakhand, passed in Special Appeal No. 108 of 2014, vide judgment dated 23.10.2017, on the same legal issue was also upheld by the Hon’ble Supreme Court of India. 4. The law declared by the Hon’ble Supreme Court is a law binding on all the subordinate authorities throughout the country under Article 141 of the Constitution of India. Moreover the order dated 10.08.2017 is compromise/consent order and the State Government is precluded from challenging the same. Accordingly the present appeal is dismissed with cost quantified at Rs. 1,00,000/- (Rupees One lac only). 5. The State Government is also advised not to file frivolous special appeals when the controversy raised in this appeal has already been decided conclusively by the Hon’ble Supreme Court of India. It amounts to negation of rule of the law and wastage of public money. The cost shall be recovered from the erring officers/officials, who have advised filing of the special appeal.” 8. It amounts to negation of rule of the law and wastage of public money. The cost shall be recovered from the erring officers/officials, who have advised filing of the special appeal.” 8. In that view of the matter, the Writ Petition succeeds and the mandamus is issued to the respondents to settle the post retrial dues of the petitioners after taking into consideration the services as rendered in the work-charge establishment as to be a period for ‘qualifying services’ for grant of pension and to pay the same to the petitioners within the period of two months from today. 9. Subject to the above observations, the writ petition stands allowed along with all the arrears. 10. No order as to costs.