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2020 DIGILAW 791 (HP)

Devi Singh v. State of Himachal Pradesh

2020-11-02

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - Being aggrieved and dissatisfied with the order dated 20.5.2020 (Annexure P-4) passed by respondent No.4, whereby request having been made on behalf of the petitioner to take into consideration service rendered by him on daily wages prior to his regularization for the counting his qualifying service for the purpose of pension came to be rejected, the petitioner has approached this Court in the instant proceedings filed under Section 226 of the Constitution of India, praying therein following substantive reliefs: i) Issue a writ of Certiorari or other appropriate writ, order or direction quashing the impugned order dated 20.5.2020 (Annexure P-4) for all intents and purposes. ii) Issue a writ of Mandamus or other appropriate writ order or direction, directing the respondents department to count 2 years of daily wage service (I.e from 10 years of daily wage service) toward 7 years 5 months of regular service and treat the same as 10 years for the purpose of qualifying service for pension in terms of the law laid down by the Hon'ble Apex Court in Sunder Singh Case. iii) Issue a writ of Mandamus or other appropriate writ or direction by directing the respondents department to release the pension in favour of the petitioner w.e.f 1.1.2018 in terms of the law laid down by the Hon'ble Apex Court of India in Sunder Singh case along with 12% interest for delayed payment within time bound manner. 2. Reply to the petition on behalf of the respondents though stated to have been filed but the same is not on record, however, learned Additional Advocate General has made available a copy of the same and as such this Court proceeds to decide the case at hand. 3. Precisely, the controversy which needs to be decided in the case at hand is "whether services rendered by the petitioner on daily wage basis prior to his regularization are required to be taken into consideration while computing qualifying service for the purpose of pension". Before exploring answer to the aforesaid question, it would be appropriate to take note of certain undisputed facts of the case as emerge from the pleadings adduced on record by respective parties. 4. Before exploring answer to the aforesaid question, it would be appropriate to take note of certain undisputed facts of the case as emerge from the pleadings adduced on record by respective parties. 4. Petitioner was engaged as Beldar on daily wage basis with the respondents department in the year 1992 and in this capacity he kept on working continuously till 31.12.2002, whereafter, his services were ordered to be regularized w.e.f 1.1.2003 as is evident from Annexure P-3, annexed with the reply filed by the respondents. The petitioner retired from the service as regular beldar, after having attained the age of superannuation i.e 58 years on 30.5.2010. Since the petitioner did not complete regular service of 10 years prior to his superannuation on 30.5.2010, he was not held entitled to pension and as such he made representation to the respondents praying therein to grant him benefit of service rendered by him on daily wage basis prior to his regularization so that he becomes eligible for pension, however, fact remains that such request was not acceded to. During the pendency of representation filed by the petitioner, case titled Sunder Singh Vs. State of H.P in Civil Appeal No. 6309 of 2012 , came to be decided by the Hon'ble Apex Court on 8.3.2018 (Annexure P-1), whereby the Hon'ble Apex Court held as under: 6 Accordingly, we direct that w.e.f 01.01.2018, the appellants or other similarly placed Class-IV employees will be entitled to pension if they have been duly regularized and have been completed total eligible service for more than 10 years. Daily wage service of 5 years will be treated equal to one year of regular service for pension. If on that basis, their services are more than 8 years but less than 10 years, their service will be reckoned as ten years. 5. After passing of aforesaid judgment by the Hon'ble Apex Court, petitioner vide representation dated 13.3.2020 (Annexure P-3), again requested the respondents to consider and decide his case in the light of aforesaid judgment, but since his aforesaid representation came to be rejected vide order dated 20.5.2020 (Annexure P-4) passed by Executive Engineer Jal Shakti Division, Karsog, District Mandi, H.P., he has approached this Court in the instant proceedings, praying therein relief (s) as have been reproduced here-in-above. 6. 6. Having heard learned counsel representing the parties and perused the pleadings adduced on record by the respective parties, especially, reply filed by the respondents, this Court finds that there is no dispute interse parties with regard to 10 years continuous service rendered by the petitioner on daily wage basis prior to his regularization w.e.f 01.01.2003. It is also not in dispute interse parties that the petitioner after its regularization served the department un-intruptedly for more than 7 yeas and 5 months. 7. Precisely, the claim of the petitioner is that service rendered by him on daily wage basis prior to his regularization ought to have been taken into consideration by the respondents while computing qualifying service for the purpose of pension. The respondents in their reply have stated that since the petitioner retired after having rendered 7 years and 5 months regular service, which is less than the service as required to count 2 years daily wage service towards regular service of 8 years in terms of directions contained in para 6 of Sunder Singh Judgment (supra), petition having been filed by the petitioner deserves to be rejected. 8. Mr.Arvind Sharma, Ld. Additional Advocate General while inviting the attention of this Court to para 6 of judgment rendered by Hon'ble Apex Court in Sunder Singh (supra), made a serious attempt to pursuade this Court to agree with his contention that since petitioner did not complete regular service of 8 years prior to his superannuation, no benefit, if any, can be given to him qua the service which has rendered as daily wager prior to his regularization. However, having carefully perused the judgment rendered by the Hon'ble Apex Court in Sunder Singh (supra), this Court sees no force in the aforesaid submissions made by the learned Additional Advocate General and, as such, the same is rejected being devoid of any merit. 9. Careful perusal of aforesaid judgment passed Hon'ble Apex Court clearly reveals that w.e.f 1.1.2018, all the Class-IV employees shall be entitled to pension if they stand regularized and have completed total eligible service for more than 10 years. It has been categorically held in the aforesaid judgment that daily wage service of 5 years shall be treated equal to one year of regular service for pension. It has been categorically held in the aforesaid judgment that daily wage service of 5 years shall be treated equal to one year of regular service for pension. Besides above Hon'ble Court has further held that if on the aforesaid basis, service of class-IV employee becomes more than 8 years but less than 10 years, their services shall be reckoned as 10 years. 10. It is not in dispute that the petitioner before his regularization served the department as a daily wager for 10 years, meaning thereby benefit of 2 years of regular service is required to be given to him while determining his total service for the purpose of pension. In the case at hand, as per own case of respondents, petitioner served department as a regular employee for more than 7 years and 5 months and in case benefit of 2 years in terms of judgment of Hon'ble Apex Court is given to the petitioner, his total service comes out to be 9 years and 5 months. Hon'ble Apex Court in aforesaid judgment has clearly held that if after giving benefit of service rendered on daily wage basis, services of the petitioner becomes more than eight years and less than 10 years, his/their service shall be reckoned as 10 years and as such there is force in claim of the petitioner that his old service is required to be considered as 10 years in terms of judgment rendered by Hon'ble Apex Court in Sunder Singh (supra). 10. Consequently, in view of above, present petition is allowed and impugned order dated 20.5.2020, (Annexure-P-4) is quashed and set-aside. Respondents are directed to release the pension in favour of the petitioner from the due date alongwith consequential benefits. Since the petitioner has been running from pillar to post for getting his dues for quite considerable time, this Court hopes and trust that authorities shall do the needful expeditiously, preferably shall take steps to release the pension alongwith consequential benefits within a period of four weeks from the date of passing of this judgment, failing which the petitioner would be entitled to simple interest at the rate of 6%. The petition stands disposed of. 11. All miscellaneous application are disposed of ,if any.