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Himachal Pradesh High Court · body

2022 DIGILAW 823 (HP)

Viyas Dev v. State of H. P.

2022-12-14

SATYEN VAIDYA

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JUDGMENT : (Satyen Vaidya, J.) 1. By way of instant petition, petitioner has prayed for grant of following substantive reliefs: “i) That the respondents may kindly be directed to consider the case of the applicant to allot the G.P.F. number and also to cover the applicant under old Pension Scheme. ii) That the respondents may kindly be directed to pay the balance amount of arrears granted to the applicant on account of the grant of work charge status w.e.f. 01.01.2001 by deducting an amount of Rs.65,000/- with 9% interest.” 2. Brief facts necessary for adjudication of the petition are that petitioner was engaged as daily wage Beldar w.e.f. 01.01.1991. His services were regularized as Peon w.e.f. 15.09.2006. 3. Petitioner had approached this Court by way of CWP No.2023 of 2011 seeking relief of conferment of work charge status on completion of 10 years of daily wage services. In pursuance to the order passed by this Court in CWP No. 2023 of 2011, the respondents conferred the work charge status on petitioner w.e.f. 01.01.2001. On this count, petitioner was also held entitled to arrears to the tune of Rs.3,26,370/-. The petitioner was paid only a sum of Rs.65,000/- out of the aforesaid calculated amount and the balance remained to be paid. 4. The grievance of the petitioner is that firstly, he is entitled to the balance amount of arrears out of the calculated amount of Rs.3,26,370/- and secondly, he is also entitled for all consequential benefits including the allotment of GPF number as his services w.e.f. 01.01.2001 on work charge establishment followed by the regular service w.e.f. 15.09.2006 is liable for consideration for the purpose of pensionary benefits. 5. The respondents have filed the reply. It is submitted that the petitioner was conferred the work charge status w.e.f. 01.01.2001 in pursuance to the order passed by this Court in CWP No. 2023 of 2011, though initially the arrears payable to petitioner were calculated at Rs.3,26,370/-, but only Rs.65,275/- was paid as first instalment. Subsequently, in compliance to instruction dated 15.12.2011 issued by the Principal Secretary (Finance) to the Government of Himachal Pradesh, the claim of arrears payable to the petitioner was restricted to a period of three years only and it was found that petitioner was entitled to Rs.53,000/- and a sum of Rs.12,174/- was recoverable from him. 6. Subsequently, in compliance to instruction dated 15.12.2011 issued by the Principal Secretary (Finance) to the Government of Himachal Pradesh, the claim of arrears payable to the petitioner was restricted to a period of three years only and it was found that petitioner was entitled to Rs.53,000/- and a sum of Rs.12,174/- was recoverable from him. 6. As regards, the entitlement of petitioner for subscription of GPF, the respondents have taken a stand that they had submitted the case of the petitioner to Accountant General, Himachal Pradesh, but the said office rejected the case of the petitioner with following remarks: “As per the Govt. Notification No.Fin.(c) A(3)-4/2001 dated 13.01.2016, all work charged employees, whose services have been regularized after 15.05.2003, against the regular posts and given work charge status in compliance to the orders of Hon’ble Court before 15.05.2003 are not eligible for the subscription of GPF and the period of work charge status is also not accountable towards the pensionary benefits under CCS (Pension) Rules, 1972.” 7. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 8. In State of H.P. and others vs. Sukru Ram and another, CMPM No. 423 of 2017, decided by a Division Bench of this Court on 23.5.2017, it was held as under: “The issue is no longer res integra, which stands settled by the Hon’ble Supreme Court of India in Punjab State Electricity Board and another v. Narata Singh and another, (2010) 4 SCC 317 , as also earlier decision of this Court in CWP No. 2240 of 2008, titled as The State of H.P. and others v. Sh. Tulsi Ram, decided on 31.5.2012, in which learned Single Judge, while holding the service rendered by the writ petitioner on work-charged basis from 1.4.2001 to 2.4.2017 to be counted for the purpose of pension” 9. Later in State of H.P. & others vs. Matwar Singh & another, CWP No. 2384 of 2018, decided by a Division Bench of this Court on 18.12.2018, it was held as under:- “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 H.P. & 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(2) PLR 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.” 10. Similarly, in CWP No. 2956 of 2019, decided on 13.7.2021, another Division Bench of this Court observed as under:- “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 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.” Thus, it is more than settled now that 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. 11. Adverting to the facts of the present case, the petitioner was conferred work charge status on 01.01.2001 and was followed by his regularization on 15.09.2006. 11. Adverting to the facts of the present case, the petitioner was conferred work charge status on 01.01.2001 and was followed by his regularization on 15.09.2006. Thus, the service of petitioner as work charge employee, followed by regular appointment is liable to be counted for the purpose of pension and other retiral benefits, hence the distinction drawn by the respondents on the ground that petitioner was regularized after the cut-off date i.e. 15.5.2003, cannot be sustained. The petitioner had earned the status of work charge employee as a matter of right under the policy of the State Government. 12. It is apt to reproduce the observations made by Hon’ble Supreme Court in para-31 of the judgment rendered in case of Prem Singh vs. State of U.P. & others 2019 (10) SCC 516 , which read as under:- “In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work-charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in workcharged establishment”. 13. Once the work charge employment of the petitioner is held liable to be counted for the grant of pensionary benefits to him, as a natural corollary, he will be governed under CCS Pension Rules, 1972 and the Contributory Pension Scheme will not be applicable to him. 14. The stand of the respondents with respect to withholding of payable arrears to the petitioner on the basis of the instructions dated 15.12.2011 issued by the Finance Department can also not be countenanced. Petitioner had earned the right to the arrears payable to him on account of service rendered by him on work charge basis, such right cannot be abridged by administrative instructions. 15. Petitioner had earned the right to the arrears payable to him on account of service rendered by him on work charge basis, such right cannot be abridged by administrative instructions. 15. For the aforesaid reasons, the present petition is allowed. The respondents are directed to release the balance of arrears payable to the petitioner and also to consider the period of work-charge employment of the petitioner, followed by his regular service for the purpose of grant of pensionary benefits and for that purpose to grant him the GPF Number. The needful be done within a period of three months from today. 16. The petition stands disposed of in the aforesaid terms, so also the pending application(s), if any.