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Himachal Pradesh High Court · body

2021 DIGILAW 707 (HP)

. v. .

2021-09-14

JYOTSNA REWAL DUA, RAVI MALIMATH

body2021
JUDGMENT : 1. The case of the petitioner is that, her late husband was regularized as a work charge Beldar, w.e.f. 01.01.2000. He retired from service on 28.02.2006. The total service rendered by her late husband was, 6 years, 2 months. On retirement, he was deprived of his pension, on the ground that he did not possess the qualifying service of 10 years to his credit. Thereafter, the husband of the petitioner died in the year 2010. 2. The petitioner filed O.A. (D) No. 170 of 2018 before the H.P. Administrative Tribunal. By the order dated 20.06.2018, the same was disposed off, with a direction to the respondents-State to consider the case of the applicant, in view of the principles laid down in the 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, decided on 8.3.2018. The respondents-State in terms of its office order dated 13.05.2019, came to the conclusion that the case of the applicant is not similar to Sunder Singh’s case and hence, rejected the plea. Aggrieved by the same, the instant petition is filed. 3. Shri A.K. Gupta, the learned counsel for the petitioner places reliance on the judgment of the Hon’ble Supreme Court in the case of Sunder Singh. He further submits that by the order dated 25.06.2021 passed by the learned Division Bench of this Court in CWP No. 3396 of 2021, the principles as enunciated in Sunder Singh’s case were applied and relief was granted to the writ petitioners therein. Further, reliance is also placed on yet another Division Bench judgment of this Court dated 24.06.2019 passed in Ex. Pet. No. 117 of 2018 in CWP No. 267 of 2015, where a similar view was taken. Hence, he pleads that the petition be allowed. 4. Para 6 of the judgment of the Hon’ble Supreme Court in Sunder Singh’s case, which was applied in the two judgments referred to by the learned counsel for the petitioner, is extracted as follows: “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. 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. The learned Division Bench of this Court in CWP No. 3396 of 2021 held in Para-10 as follows: “10. In the case at hand admittedly the petitioner before his regularization served the department as a daily wager for 10 years, meaning thereby benefit of two 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, it clearly emerge from the order dated 23.9.2020 (Annexure P-5) passed by respondent No. 3 that the petitioner served the department as a regular employee for more than Six years 9 months and in case benefit of two years in terms of judgment of Hon’ble Apex Court is given to the petitioner, his total service comes out to be 8 years 9 months. Hon’ble Apex Court in the 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 the 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 case (supra).” 6. The learned Division Bench therein came to the conclusion that in the facts and circumstances involved therein, the writ petitioner had put in a service of 6 years, 9 months. Two years benefit of regular service is required to be given to him, since he had put in service as a daily wager for more than 10 years. Therefore, in terms of the judgment in Sunder Singh’s case, 2 years is required to be added to 6 years, 9 months’ service rendered by him and in such a case, his total service would come to 8 years 9 months. Therefore, in terms of the judgment in Sunder Singh’s case, 2 years is required to be added to 6 years, 9 months’ service rendered by him and in such a case, his total service would come to 8 years 9 months. It was further held that, the Hon’ble Apex Court has clearly held that after giving the benefit of service rendered on daily wage basis, services of the petitioner becomes more than 8 years and less than 10 years, his service shall be reckoned as 10 years. The same view was followed in the subsequent order of the learned Division Bench. 7. We have considered the judgments of the learned Division Benches in detail. On considering the same, our reasoning and conclusions are different than the one expressed by the earlier Division Benches for the following reasons. 8. The language used by the Hon’ble Supreme Court has to be carefully considered. What was held is that, if as a daily wager he has put in a service of 5 years, then he will get the benefit of one year. If he has put in a service of 10 years, he will get the benefit of 2 years. If after such a calculation is made and 2 years is added on to his service and on such addition, he reaches the qualifying service of 10 years, only then his service is deemed to be reckoned as a service being put in for 10 years. 9. Thereafter, the Hon’ble Supreme Court holds that “if on that basis, their services are more than 8 years but less than 10 years, their service will be reckoned as ten years.” If on that basis’ would necessarily mean the basis of adding one year for 5 years’ service already rendered or 2 years for 10 years’ service. It is on that basis, if the number of years are added, then the petitioner would reach the qualifying service of 10 years. It is not a case that even after adding the period of 2 years, in case the petitioner reaches the service of 8 years, then 8 years is to be read as 10 years. That is not what the Hon’ble Supreme Court has held. 8 years becomes 10 years only when the petitioner has put in a service of 10 years on daily wages, for which he gets the benefit of 2 years. That is not what the Hon’ble Supreme Court has held. 8 years becomes 10 years only when the petitioner has put in a service of 10 years on daily wages, for which he gets the benefit of 2 years. 2 years requires to be added to the service that he has rendered. In case he has rendered 8 years, which, in the normal circumstances, disentitles him for pension, then, by giving him the weightage of 2 years for putting in a service for 10 years, he becomes qualified for pension. Therefore, the understanding that 2 years requires to be added to the service of the petitioner and when the said 2 years is added, the qualifying service becomes 8 years, consequently, 8 years is to be reckoned as 10 years, is not what the Hon’ble Supreme Court has stated or intended. 10. In our considered view, it was neither the intent nor the purport of Para 6 of the order of the Hon’ble Supreme Court. 8 years can never ever become 10 years without any addition of the actual period of service rendered. 8 years becomes 10 years only when you add 2 years for the 8 years services rendered. Therefore, if he has put in only 6 years and 2 years are added, it becomes only 8 years, disentitling him for any pension. Therefore, 8 years cannot be construed as 10 years. 11. Assuming the contention of the petitioner is to be accepted, there will still be a shortfall of about 2 years. If 2 years is added to the 6 years’ experience, it has to be considered as 8 years. However, the Hon’ble Supreme Court does not hold that 8 years is to be construed as 10 years. The Hon’ble Supreme Court holds that for the period of 8 years, after adding 2 years, it becomes 10 years. Therefore, for that purpose, it has to be so construed. Otherwise, even after considering the reasons assigned in the earlier writ petition, if 2 years is added to the period of 6 years, it brings the petitioner only to a 8 years period. The qualifying service is 10 years. 8 years can never be construed as 10 years. 12. Furthermore, the shortfall of 2 years in achieving the minimum of 10 years has been dealt with by granting a weightage of 2 years for the 10 years’ services rendered. The qualifying service is 10 years. 8 years can never be construed as 10 years. 12. Furthermore, the shortfall of 2 years in achieving the minimum of 10 years has been dealt with by granting a weightage of 2 years for the 10 years’ services rendered. Therefore, the 8 years’ service rendered, when added to the 2 years’ weightage, will be 10 years, which will be the eligibility for seeking the pension. However, if the reasoning of the learned Division Bench is to be considered, then even if weightage is granted, the minimum period required to be eligible to seek pension, will not be 10 years. It will be less than 10 years. Therefore, the gap in achieving the 10 years’ period will continue to remain. It is a gap that will remain unfilled. It is not a case where the Hon’ble Supreme Court held that since the period required is minimal, such a minimal period should be condoned and to be reckoned as 10 years. There is no condonation of the gap to achieve the 10 years’ mark. 10 years have been achieved by giving a weightage of 2 years. Therefore, in terms of the earlier Division Bench judgment, the 2 years’ difference or a gap of any other period remains unfilled and unexplained. In the absence of an employee gaining 10 years as qualifying service, no pension can be granted to him. Therefore, we are of the view that the reasoning assigned in the earlier judgment of the learned Division Bench would not lead to a conclusion of achieving the full period of 10 years. Hence, on this ground also, we respectfully differ with the view taken by the earlier Division Bench. 13. In view of the contrary view expressed by us, it is only just and necessary that the matter be referred to a Larger Bench. Therefore, in terms of Rule 2 of Chapter-II of the High Court of Himachal Pradesh Original Side Rules, 1997, the following question is referred for adjudication by a Larger Bench: Whether the views expressed in CWP No. 3396 of 2021 and Ex. Pet. No. 117 of 2018 in CWP No. 267 of 2015 OR the view expressed in the present judgment is the appropriate application of the judgment of the Hon’ble Supreme Court in Sunder Singh’s case. 14. Pet. No. 117 of 2018 in CWP No. 267 of 2015 OR the view expressed in the present judgment is the appropriate application of the judgment of the Hon’ble Supreme Court in Sunder Singh’s case. 14. Hence, the Registry is directed to place this matter before Hon’ble the Acting Chief Justice for constitution of a Larger Bench to decide this question.