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2020 DIGILAW 836 (HP)

Mehandi Devi v. State of Himachal Pradesh

2020-11-12

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - Late husband of petitioner Sh. Dhaju Ram was engaged on daily wage basis in Shri Renukaji Forest Division with effect from 1.1.1991 but subsequently, after completion of 8 years continuous service with 240 days in a calendar year, his services came to be regularized as Peon with effect from 31.7.2006 in the aforesaid Forest Division vide office order No. 111/2006-07 dated 1.12.2006 as per regularisation policy in vogue. Husband of the petitioner expired on 18.4.2010, whereafter petitioner filed CWP No. 3266 of 2012 titled as Smt. Mehandi Devi vs. State of HP and others , seeking therein directions to the respondents to grant work charge status to her late husband, from the date he had completed requisite years. Principal Chief Conservator of Forests vide office order No. 977/2012 dated 28.9.2012 granted work charge status to late husband of the petitioner with effect from 1.1.2001 in terms of directions issued by this Court in the aforesaid writ petition (Annexure R-1). 2. Though, in the case at hand, sum of Rs.47,275/- stands paid to the petitioner vide bill No. 26, dated 20.1.2014 on account of arrears of work charge status but since the petitioner has not been given full arrears and her request for grant of family pension has been denied, she has approached this Court in the instant proceedings, praying therein for following reliefs: "(i). That the respondents may be ordered to pay the arrears to the petitioner on account of work charge status given to her late husband, as has been done in the similarly situated cases and being nominee of her late husband the petitioner is entitled to all monetary benefits which accrued to her late husband during his service carrier. (ii). That the respondents may be ordered to be work out family pension of the petitioner from the due date with all the benefits incidental thereof." 3. Having heard learned counsel for the parties and perused the pleadings adduced on record by respective parties, especially reply filed by respondents Nos. 1 to 4, this court finds that though there is no dispute inter se parties that late husband of the petitioner was engaged on daily wage basis in the Forest Department with effect from 1.1.1991 and his services were subsequently regularized against the post of Peon with effect from 31.7.2006. 1 to 4, this court finds that though there is no dispute inter se parties that late husband of the petitioner was engaged on daily wage basis in the Forest Department with effect from 1.1.1991 and his services were subsequently regularized against the post of Peon with effect from 31.7.2006. It is also not in dispute that pursuant to judgment dated 7.5.2012, passed by this Court in CWP No. 3266 of 2012, late husband of the petitioner was granted work charge status with effect from 1.1.2001. As per the reply filed on behalf of the respondents, though in terms of clarification received from the Government of Himachal Pradesh vide letter No. FFE-B-B(7)-28/2013 dated 6.3.2013, arrears on account of work charge status were to be restricted to 3 years prior to the date of filing of the writ petition but since husband of petitioner had expired on 18.4.2010, department calculated arrears for the period prior to three years from the date of death of the husband of petitioner. As per the respondents, sum of Rs.47,275/-stands paid to the petitioner on account of arrears and as such, there appears to be no force in the prayer made on behalf of the petitioner for issuance of directions to the respondents to pay arrears on account of conferment of work charge status in favour of late husband of the petitioner. Otherwise also, this Court finds that a sum of Rs. 47,275/- was paid to the petitioner vide Bill No. 26, dated 20.1.2014, Annexure R-3 and at that time, no objection, if any, ever came to be raised on behalf of the petitioner with regard to the amount calculated by the respondents on account of arrears. 4. Though, in the case at hand, arrears on account of work charge status were required to be restricted to three years prior to filing of Civil Writ Petition in terms of clarification dated 6.3.2013, issued by the Government of Himachal Pradesh, but the Department having taken note of death of late husband of the petitioner, restricted the arrears prior to three years from the date of his death i.e. 18.4.2010, meaning thereby, he was given all the financial benefits on account of conferment of work charge status with effect from April, 2007, whereas, such benefits in normal circumstances ought to have been give with effect from 1.1.2001 i.e. the date from which petitioner was conferred work charge status. 5. It is not in dispute that late husband of the petitioner during his life time never raised dispute or filed petition with regard to grant of work charge status rather, present petitioner after death of her husband, Dhaju Ram, filed CWP No. 3266 of 2012, seeking therein direction to the respondents to grant work charge status from the date he completed 10 years daily wage service. Pursuant to the direction issued by this Court in aforesaid writ petition, work charge status was conferred upon late husband of the petitioner with effect from 1.1.2001. Since late husband of the petitioner kept silent till his death i.e. 18.4.2010 no directions, if any, can be issued for payment qua aforesaid period i.e. 1.1.2001 to 18.4.2010. Since the petitioner approached this court in 2012, by way of CWP No. 3266 of 2012, arrears on account of work charge status were required to be restricted to 3 years prior to filing of CWP No. 3266 of 2012 but, in the case at hand, respondents ignoring instructions/clarifications issued by Government of Himachal Pradesh vide letter dated 6.3.2013, calculated arrears for the period, three years prior to date of death of late husband of the petitioner i.e. April, 2007 and as such, no direction can be issued to the respondents to pay arrears with effect from 1.1.2001. 6. Another claim of the petitioner for grant of family pension requires to be allowed. Respondents in their reply have claimed that claim made by petitioner for family pension is not admissible as per law since deceased husband of the petitioner was not eligible to be covered under the provisions of CCS (Pension) Rules, 1972 and such rules are only applicable to regular employees appointed on or before 15.5.2003. Besides above, respondents have claimed in the reply that since work charged employees are not covered under the provisions of CCS (Pension) Rules, 1972, late husband of the petitioner is also not covered under such provisions, because his services were regularized with effect from 31.7.2006. Besides above, respondents have claimed in the reply that since work charged employees are not covered under the provisions of CCS (Pension) Rules, 1972, late husband of the petitioner is also not covered under such provisions, because his services were regularized with effect from 31.7.2006. Aforesaid plea taken by respondents is contrary to record because though at first instance services of petitioner were regularized against the post of Peon with effect from 31.7.2006 but it is an admitted fact that subsequently in terms of judgment dated 7.5.2012 delivered by this Court in CWP No. 3266 of 2012, late husband of the petitioner was granted work charge status with effect from 1.1.2001, Annexure R-1. 7. By now, it is well settled that work charge status followed by regular appointment has to be counted as a component towards qualifying service for the purpose of pension and other retiral benefits. In this regard, reliance is placed upon judgment rendered by Division Bench of this court in CWP No. 2384 of 2018, titled State of Himachal Pradesh and others vs. Smt. Matwar Singh and others , decided on 18.4.2012 (Annexure P-1/B), wherein it has been held as under: - "3. It is by now well settled that the work charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits. Executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/ struck down, in the light of view taken by this Court in CWP No.6167 of 2017, titled Sukru Ram vs. State of Himachal Pradesh & others , decided on 6th March, 2013. A Full Bench of Punjab and Haryana High Court in Keshar Chand vs. State of Punjab through the Secretary P.W.D. B & R Chandigarh and others, (1988) 94 PunLR 223 , also dealt with an identical issue where Rule 3.17(ii) of the Punjab Civil Services Rules excluded the work charge service for the purpose of qualifying service. Setting aside the said Rule being violative of Articles 14 and 16 of the Constitution of India, it was held that the work charge service followed by regular appointment will count towards qualifying service for the purpose of pension and other retiral benefits. The aforesaid view was also confirmed by the Hon'ble Apex Court. 8. Setting aside the said Rule being violative of Articles 14 and 16 of the Constitution of India, it was held that the work charge service followed by regular appointment will count towards qualifying service for the purpose of pension and other retiral benefits. The aforesaid view was also confirmed by the Hon'ble Apex Court. 8. It is quite apparent from aforesaid exposition of law that work charge appointment followed by regularization is necessarily to be counted as component towards qualifying service for the purpose of pension and retiral benefits. Executive instructions, if any, issued by Finance Department are liable to be ignored/struck down in terms of the judgment rendered by this court in CWP No. 6167 of 2017, titled Sukru Ram vs. State of Himachal Pradesh and others , decided on 6.3.2013. Hence, services rendered by late husband of the petitioner on work charge status are required to be counted towards qualifying service for the purpose of pension and other retiral benefits. 9. Rule 54 of CCS (Pension) Rules, 1972 specifically deals with the family pension, which provides as under: 54. Family Pension, 1964 (1) The provisions of this rule shall apply - (a) to a Government servant entering service in a pensionable establishment on or after the 1st January, 1964; and (b) to a Government servant who was in service on the 31st December, 1963 and came to be governed by the provisions of the Family Pension Scheme for Central Government Employees, 1964, contained in the Ministry of Finance, Office Memorandum No. 9 (16)-E. V (A)/63, dated the 31st December, 1963, as in force immediately before the commencement of these rules NOTE. - The provisions of this rule will also extend, from 22nd September, 1977, to Government servants on pensionable establishments who retired/died before 31-12-1963, as also to those who were alive on 31-12-1963, but had opted out of 1964 Scheme.] (2) Subject to the provisions of sub-rule 13-B and without pre-judice to the provisions contained in sub-rule (3), where a Government servant dies - (i) after completion of one year of continuous service; or (ii) before completion of one year of continuous service, provided the deceased Government servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for Government service ; or (iii) after retirement from service and was on the date of death in receipt of a pension, or compassionate allowance, referred to in these rules, the family of the deceased shall be entitled to Family Pension (hereinafter in this rule referred to as family pension) under the Family Pension Scheme for Central Government Employees, 1964, the amount of which shall be determined at a uniform rate of 30% of basic pay subject to a minimum of three thousand and five hundred rupees per mensem and a maximum of twenty-seven thousand rupees per mensem. EXPLANATION - The expression 'one year of continuous service' wherever it occurs in this rule shall be construed to include 'less than one year of continuous service' as defined in clause (ii).} ' 10. Careful perusal of aforesaid rules clearly provides that persons having rendered more than one year service is entitled to family pension. Otherwise also this aspect of the matter has been dealt with by a coordinate bench of this Court in CWP No. 8894 of 2008, titled Smt. Kalawati vs. The State of Himachal Pradesh , decided on 31.12.2012, which reads as under: "1. The petitioner is the wife of decease Roop Singh, who was working with the respondents. It is undisputed before me that deceased Roop Singh was offered a temporary post of work charged Beldar w.e.f.1.1.1994 in the pay scale of Rs. 770- 1410 vide Annexure R2 on the terms and conditions as submitted therein. It is also undisputed before me that deceased Roop Singh died on 25.2.1995 and that he joined his services as daily waged Beldar in H.P.PWD, Rajgarh on 1.1.1984. 770- 1410 vide Annexure R2 on the terms and conditions as submitted therein. It is also undisputed before me that deceased Roop Singh died on 25.2.1995 and that he joined his services as daily waged Beldar in H.P.PWD, Rajgarh on 1.1.1984. Learned counsel for the petitioner relies upon Rule 54 subRule (2)(a) of the CCS (Pension) Rules, 1972 to urge that since the deceased has put more than one year service with the State Government, he was entitled to family pension. 2. This prayer is opposed by the learned Assistant Advocate General primarily on the ground that there is nothing on the record to establish that after issuance of Annexure R-2, the deceased had actually joined service or not. I cannot accept this submission made on behalf of the respondents. According to the man-days charge (Annexure R-I) prepared by the respondents, the deceased reported for duty on January, 1994. There is nothing on the record placed by the respondents to show that the deceased Roop Singh had voluntarily abandoned services with the respondents" 11. Consequently, in view of the discussion made herein above as well as law laid down by this Court, petition at hand is partly allowed. First relief claimed by petitioner for grant of arrear on account of work charge status is rejected being devoid of merit, however, respondents are directed to grant family pension to the petitioner being nominee/legal heir of late Dhaju Ram, forthwith alongwith consequential benefits. Pending applications, if any, also stand disposed of.