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2021 DIGILAW 400 (HP)

Uttam Sain v. State Of H P & Ors.

2021-07-13

SATYEN VAIDYA, TARLOK SINGH CHAUHAN

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JUDGMENT Satyen Vaidya, J. - Common questions of facts and law are involved in CWP Nos. 2956 of 2019 titled Uttam Sain Versus State of Himachal Pradesh and others and 2970 of 2019 titled Raji Nand Versus State of Himachal Pradesh and others, therefore, both these petitions are being disposed of by a common judgment. 2. The facts of the case in CWP2956 of 2019 are being taken into consideration first. 3. In 1995 petitioner was engaged as Beldar on daily wages with respondent No.4. His services were regularized in 2006 and he retired as Mate on 30.09.2011. 4. On 28.7.2010, this Court passed judgment in CWP No. 2735 of 2010 titled Rakesh Kumar Versus State of Himachal Pradesh and others. 5. Respondent No.1 issued directions dated 14.2.2019 to implement judgment in Rakesh Kumar's case. Accordingly respondent No.4 ordered the regularization of the petitioner w.e.f 1.1.2003 vide order dated 13.10.2015. 6. On 8.3.2018, the Hon'ble Supreme Court passed judgment in Civil Appeal No. 6309 of 2017 titled Sunder Singh Versus State of Himachal Pradesh and others, inter alia holding 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 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." 7. Additional Chief Secretary (Finance) to the Government of Himachal Pradesh vide letter dated 14.2.2019 directed all the administrative departments to implement judgment passed by the Hon'ble Supreme Court in Sunder Singh's case. 8. Petitioner had completed regular service of 8 years 7 months only with additional 8 years of daily wage service to his credit and had become entitled to the benefit of ratio laid down in Sunder Singh's case. Petitioner, however, was not granted his due. 9. Aggrieved against the inaction of respondents in not granting him the benefit of the judgment passed in Sunder Singh's case as well as office letter dated 14.02.2019, petitioner preferred Original Application No. 1218 of 2019 before the erstwhile H.P. State Administrative Tribunal. Petitioner, however, was not granted his due. 9. Aggrieved against the inaction of respondents in not granting him the benefit of the judgment passed in Sunder Singh's case as well as office letter dated 14.02.2019, petitioner preferred Original Application No. 1218 of 2019 before the erstwhile H.P. State Administrative Tribunal. The said Original Application was disposed of on 5.4.2019 with direction to respondent-departments to consider the case of petitioner for extending him the benefit of judgment in Sunder Singh's case. 10. Respondent No. 4 passed order dated 23.08.2019, Annexure P-7, rejecting the claim of the petitioner on the ground that the benefit of said judgment could be allowed only to those daily wage Class-IV employees, who were regularized in pursuance to the decision rendered by the Hon'ble Supreme Court in the case ofMool Raj Uppadhya Vs. State of H.P & Others, (1994) Supp2 SCC 316. 11. As far as the facts in the case of CWP 2970 of 2019 titled Raji Nand Versus State of Himachal Pradesh and others are concerned, those are similar to the facts in CWP 2956 of 2019 except that the petitioner in CWP 2970 of 2019 retired from service on 31.10.2011 and his Original Application before the erstwhile H.P. State Administrative Tribunal was numbered as OA No. 1215/2019. 12. Aggrieved against the orders dated 23.08.2019. Annexure P-7, issued by respondent No. 4, the petitioners have preferred the instant petitions seeking following substantive reliefs: - "i) Issue a writ of certiorari or other appropriate writ, order or direction quashing the impugned order dated 23.08.2019 (Annexure P-7) for all intents and purposes. (ii) Issue a writ of mandamus or other appropriate writ order or direction, directing the respondents department to count 1 year and 7 months of daily wage service in 8 years 10 months as regular service. i.e. total 10 years and 5 months 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. 13. (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. 13. Respondents in their joint reply have taken a stand akin to the one taken by respondent No.4 in Annexure P-7. As per respondents, the petitioners were not entitled to the benefit of the judgment rendered in Sunder Singh's case as their regularization was not based on the policy framed in pursuance to Mool Raj Upadhyay's case and instead were regularized on competition of 8 years service on daily wages in accordance with subsequent regularization policy. 14. We have heard learned counsel for petitioners and learned Advocate General for the respondents and have carefully gone through the record. 15. In Civil Appeal No. 6309 of 2017, titled Sunder Singh Vs. State of H.P. and Others in para-2, the Hon'ble Supreme Court has observed as under: - "2. The appellants represent class of Class-IV employees who were recruited initially as daily wagers such as Peon/Chowkidar/Sweeper/ Farrash /Malis/ Rasoia etc. Their services, therefore, were regularized pursuant to the decision of this Court in Mool Raj Upadhyaya vs. State of H.P. and others, (1994) Supp2 SCC 316 under a Scheme. Regularization was after 10 years of service. Thereafter the Supreme Court proceeded to hold that the appellants in Sunder Singh's case or other similarly situated persons were entitled to pension if they had been duly regularized and had completed total eligible service for more than 10 years. Daily wage service of 5 years was held to be treated equal to one year of regular service for pension. If on that basis, their services were more than 8 years but less than 10 years, their services were held to be reckoned as ten years service. 16. We have no hesitation to hold that respondent No.4 has misconstrued and mis-understood the above noted observation of Supreme Court in Sunder Singh's case. To say that the ratio of Sunder Singh's case applied only to those daily wage class IV employees whose services were regularized in pursuance to the decision rendered by Supreme Court in Mool Raj Upadhyay's case , will be a clear misnomer. To say that the ratio of Sunder Singh's case applied only to those daily wage class IV employees whose services were regularized in pursuance to the decision rendered by Supreme Court in Mool Raj Upadhyay's case , will be a clear misnomer. Reference to Mool Raj Upadhyay's case in Sunder Singh supra was only for purpose of recording the facts of the case in hand before the Supreme Court and it cannot be read to mean that the ratio of the judgment in Sunder Singh's case would have limited application to daily wage employees whose services were regularized in pursuance to Mool Raj Upadhyay's judgment. 17. The expression " other similarly placed Class-IV employees" used in para-6 of aforesaid judgment can not be restricted to the persons who got the benefit of regularization in pursuance to Mool Raj Upadhyay's judgment, especially, when the Supreme Court has rendered the judgment in Sunder Singh's case by reading the rules consistent with articles 14,38 and 39 of the Constitution of India and also by applying the doctrine of proportionate equality. Any restrictive interpretation to the aforesaid expression shall be in violation of the principle of law applied by the Supreme Court. Adoption of such restrictive interpretation shall render the principle laid down in Sunder Singh's case nugatory and otiose. 18. In an earlier decision dated 06.03.2020 in CWP No. 2672 of 2019, titled Tedhi Singh Vs. State of H.P and others, a Co-ordinate Bench of this Court has noted as under: - "3. The mode and manner of counting daily wage service towards pension is no longer res-integra. Hon'ble Apex Court in Civil Appeal No. 6309 of 2017, titled Sunder Singh Versus The state of Himachal Pradesh & Ors., has held that w.e.f 1.1.2018, the appellants ( therein) or other similarly placed class-IV employees will be entitled to pension if they have been duly regularized and have completed total eligible service for more than ten years. Daily wage service of five years will be treated equal to one year for pension, If on that basis, their services are more than eight years, but less than ten years, their services will be reckoned as ten years". 19. The petitioners in CWP 2956/2019 and 2970/2019 had completed eight years and seven months and eight years ten months regular service respectively till their retirement with additional about 8 years service on daily wage to their credit. 19. The petitioners in CWP 2956/2019 and 2970/2019 had completed eight years and seven months and eight years ten months regular service respectively till their retirement with additional about 8 years service on daily wage to their credit. Applying the ratio of Sunder Singh's judgment, the petitioners were entitled to be reckoned to have rendered more than ten years service and thus made them entitled to pensionary benefits under CCS (Pension) Rules, 1972. 20. It has also been contended by respondents that the petitioners were granted work charge status only vide order dated 13.10.2015 and the expression used therein was "work charge regularization". In any case, be it conferment of work charge status or regularization in favour of petitioner vide office order dated 13.10.2015, the same will not affect the outcome of this petition. In view of the law laid down by this Court in CWP No. 6167 of 2017, titled Sukru Ram Vs. State of H.P. & Ors., CWP No. 2384 of 2018 titled State of Himachal Pradesh & Ors. Vs. Matwar Singh and also by the Hon'ble Supreme Court in Prem Singh Vs. State of H.P., (2019) 10 SCC 516 , the work charge status followed by regular appointment has to be counted as a component for qualifying service for the purpose of pension and other retiral benefits. 21. Both the petitions are thus allowed. Orders dated 23.08.2019, Annexure P-7, (in both the cases) issued by respondent No. 4, are quashed and set-aside being arbitrary, irrational and harsh besides being violative of article 14 of the Constitution of India. 22. It is evident from the record that the petitioners cannot be faulted in the facts of present cases and it was on account of wrong acts of omission and commission of respondents that they were denied their lawful dues, therefore, the respondents are directed to immediately grant the benefit of judgment rendered by the Hon'ble Supreme Court in Civil Appeal No. 6309 of 2017, titled Sunder Singh Vs. State of H.P. and others to the petitioners and to release the amount of pension due to them w.e.f 1.1.2018 with interest at the rate of 9% per annum within a period of four weeks from the date of this order. 23. No order as to costs. 24. Pending miscellaneous application(s), if any, also stand disposed of, accordingly.