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2023 DIGILAW 109 (HP)

State of H. P. v. Bhim Sen

2023-03-03

SABINA, SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. CMP(M) No. 1559 of 2022 By way of instant application, a prayer has been made to condone the delay in filing the accompanying Letters Patent Appeal. It is submitted that a delay of 112 days has occurred in filing the appeal due to the reason that after passing of the judgment by learned Single Judge in CWP No. 4374 of 2021, the file was routed through different channels in order to obtain legal opinion and administrative clearance. The delay caused in filing the appeal is stated to be un-intentional. 2. We have gone through the contents of the application, which are duly supported by an affidavit filed by the Chief Conservator of Forests, Chamba, Himachal Pradesh. We are satisfied that the delay in filing the appeal is neither intentional nor willful. Accordingly, the application is allowed and the delay in filing the appeal is condoned. Application stands disposed of. Appeal be registered. LPA No. 16 of 2023 Heard. 2. By way of instant appeal, the appellants have assailed the judgment dated 16.06.2022 passed by learned Single Judge in CWP No. 4374 of 2021, titled Bhim Sen vs. State of Himachal Pradesh and others. 3. Vide impugned judgment, learned Single Judge has issued the directions in the following terms : “For the foregoing reasons, this petition is allowed. The respondents are directed to treat the petitioner eligible for grant of pension alongwith due and admissible arrears under Central Civil Service (Pension) Rules, 1972 and to take all required steps in that regard within a period of six weeks from today. Pending miscellaneous application(s) if any, shall also stand disposed of”. 4. The respondent was appointed as Forest Worker at Pangi Forest Division Killar of District Chamba on 01.01.1992. He was conferred the work charge status w.e.f. 01.01.2002. The services of the respondent were regularized w.e.f. 12.10.2007. The respondent retired on 20.08.2018. 5. The respondent approached this Court by way of CWP No. 4374 of 2021 with the prayer in following terms: a) That the respondents may kindly be directed to pay pension including arrears of pension and other retiral benefits to the petitioner alongwith interest at the market rate. The respondent retired on 20.08.2018. 5. The respondent approached this Court by way of CWP No. 4374 of 2021 with the prayer in following terms: a) That the respondents may kindly be directed to pay pension including arrears of pension and other retiral benefits to the petitioner alongwith interest at the market rate. b) That the respondents be directed to count the service rendered by petitioner as 10 years of daily wage service (1992-2002), 5 years of work charge (1.1.2002 to 12.10.2007) service, 11 years of regular service (12.10.2007 to 28.02.2018). Total 26 years of service towards qualifying service for the purpose of pension as per law declared by this Hon’ble Court in CWP No. 6167 of 2012, titled Sukru Ram vs. State of H.P. & Others. c) That the impugned order dated 15.3.2021 (Annexure P-20) may kindly be quashed/modified and the respondents be directed to grant work charge status/regularization to the petitioner after 8 years i.e. with effect from 01.01.2000 with all consequential benefits including seniority, continuity, annual increments, earned leave and pension and all other consequential benefits including arrears accruing thereon.” 6. The appellants contested the petition and filed its reply. The claim of respondent herein was contested on following grounds:- (i) Conferment of work charge status was not included in Central Civil Service (Pension) Rules, 1972, therefore, the work charge service was not liable to be counted as qualifying service for pension. ii) The date of regularization of respondent i.e.015.3.2008 was beyond the cut-off date of 15.5.2003 prescribed in New Pension Scheme-2006. iii) The appellants-Department did not have work charge establishment. 7. The learned Single Judge after considering all the above noted three objections raised on behalf of the appellants, rejected them and proceeded to allow the petition in above noted terms. 8. Learned Additional Advocate General contended that the impugned judgment suffers from illegality, inasmuch as, learned Single Judge has decided all the contentions raised by the appellants, without correctly appreciating the facts of the case as also the law applicable thereto. 9. We have gone through the impugned judgment as also the writ record. 10. Learned Single Judge has rightly placed reliance on the judgment passed by a Division Bench of this Court in CWP No. 2384 of 2018, titled State of Himachal Pradesh & Others vs. Sh. 9. We have gone through the impugned judgment as also the writ record. 10. Learned Single Judge has rightly placed reliance on the judgment passed by a Division Bench of this Court in CWP No. 2384 of 2018, titled State of Himachal Pradesh & Others vs. Sh. Matwar Singh and another, decided on 18.12.2018 and CWP No. 6167 of 2017, titled Sukru Ram vs. State of H.P. & Others, decided on 6th March, 2013, in order to hold that the work charge service followed by regular service was liable for being counted as qualifying service for pension. 11. It is more than settled now that the work charge status followed by regular appointment has to be counted for qualifying service for the purpose of pension and other retiral benefits. This legal proposition has also been upheld by a Division Bench of this Court in CWP No. 2956 of 2019, titled Uttam Sain vs. State of H.P. and others, decided on 13.7.2021, wherein it was 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.” 12. Further, the learned Single Judge has also rightly arrived at a conclusion that since the work charge service was to be counted as qualifying service for the purpose of pension and the respondent having been conferred with the work charge status w.e.f. 01.01.2002, the cut-off date as provided in New Pension Scheme would not be an impediment in grant of relief to the respondent. Learned Single Judge has placed reliance on the general instructions dated 22.7.2014, issued by the Forest Department to the following effect: “To combine the period of work charge service with regular service for pension purpose as per the judgment of the Hon’ble High Court passed in CWP No. 6167/2012 titled as Sh. Shukru Ram vs. State of H.P. You are, therefore, requested to decide all the representations at your legal on the analogy of this judgment whether the representationist has filed the writ petition or not. So far as the matter regarding decision in the case of retires and Jai Devi Gupta’s case is concerned, all such cases be sent to the Government with full justification for approval”. 13. Similarly, learned Single Judge has rightly negated the contention of the appellants to the effect that the Forest Department did not have work charge establishment and, as such, the respondent was not entitled to the relief claimed in the petition. The issue regarding non-existence of work charge establishment in a Department especially the Forest Department of the Government of Himachal Pradesh has also been settled. In CWP No. 3111 of 2016, titled State of H.P. & Others vs. Ashwani Kumar, decided on 10.05.2018, it has been held as under: “6. Having carefully perused material available on record, especially judgment rendered by this Court in Ravi Kumar v. State of H.P. and Ors., as referred herein above, which has been further upheld by the Hon’ble Apex Court in Special Leave to Appeal (C) No. 33570/2010 titled State of HP and Ors. v. Pritam Singh and connected matters, this Court has no hesitation to conclude that there is no error in the finding recorded by the learned Tribunal that work charge establishment is not a pre-requisite for conferment of work charge status. v. Pritam Singh and connected matters, this Court has no hesitation to conclude that there is no error in the finding recorded by the learned Tribunal that work charge establishment is not a pre-requisite for conferment of work charge status. The Division Bench of this Court while rendering its decision in CWP No. 2735 of 2010, titled Rakesh Kumar decided on 28.7.2010, has held that regularization has no concern with the conferment of work charge status after lapse of time, rather Court in aforesaid judgment has categorically observed that while deciding the issue, it is to be borne in mind that the petitioners are only class-IV worker (Beldars) and the schemes announced by the Government, clearly provides that the department concerned should consider the workmen concerned for bringing them on the work charged category and as such, there is an obligation cast upon the department to consider the case of daily waged workman for conferment of daily work charge status, being on a work charged establishment on completion of required number of years in terms of the policy. In the aforesaid judgment, it has been specifically held that benefits which accrued on workers as per policy are required to be conferred by the department.” 14. Recently in State of Himachal Pradesh and others vs. Smt. Reema Devi, LPA No. 160 of 2021, decided on 23.05.2022, a Division Bench of this Court following Ashwani Kumar’s case (supra) held as under in the case where also the Forest department was involved: - “11. Now adverting to the facts of the instant case, the grant of work charge status to late Shri Het Ram has been denied on the ground that Himachal Pradesh Forests Department had no work charge establishment. In Ashwani Kumar's case (supra) also right of the petitioner therein for grant of work charge status was considered when the HPPWD had ceased to be a work charge establishment. 12. This Court while delivering judgment in Ashwani Kumar's case (supra) had, thus, decided the principle that work charge establishment was not a prerequisite for conferment of work charge status and thus, would not confine only to the petitioner in the said case. In view of this, the contention raised on behalf of the appellants that the judgment in Ashwani Kumar's case (supra) was a judgment in personam, cannot be sustained.” 15. In view of this, the contention raised on behalf of the appellants that the judgment in Ashwani Kumar's case (supra) was a judgment in personam, cannot be sustained.” 15. In view of the above discussion, we do not find any infirmity or illegality in the impugned judgment and the same is affirmed. Accordingly, the appeal is dismissed with no order as to costs. Pending application(s), if any, also stands disposed of.