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2023 DIGILAW 531 (HP)

Asha Devi v. State of H. P.

2023-12-14

JYOTSNA REWAL DUA

body2023
JUDGMENT : (Jyotsna Rewal Dua, J.) The petitioners in essence are seeking a direction to the respondents to count ad hoc service rendered by them as qualifying service for the purpose of grant of pension under the Central Civil Services (Pension) Rules, 1972 [CCS (Pension) Rules, 1972) as well as General Provident Fund (GFP in short) alongwith consequential benefits. 2. The case set up by the petitioners is that: - 2(i) The petitioners, seventeen in number, were initially appointed on ad hoc basis as Veterinary Officers between the years 1993 to 2000 (detail is as under):- Sr. No. Name of the Petitioner Ad hoc appointment Date of regularization 1. Dr. Asha Devi 29.09.1993 03.05.2005 2. Dr. Sanjay Awasthi 30.07.1996 -do- 3. Dr. Sushma Ranaq 06.08.1996 -do- 4 Dr. Dalip Singh Mehta 12.05.1997 -do- 5. Dr.Mohit Mahajan 16.03.1999 -do- 6. Dr. Deepak Verma 16.03.1999 -do- 7. Dr. Randhir Singh 16.03.1999 -do- 8. Dr. Arvind Sharma 31.05.1999 -do- 9. Dr. Sanjeev Kumar Tyagi 20.03.1999 -do- 10. Dr. Rakesh Kumar Thakur 16.03.1999 -do- 11 Dr. Mohinder Kumar 16.03.1999 -do- 12. Dr. Rajiv Kumar 23.03.1999 -do- 13. Dr. Rajinder Singh Jaswal 12.01.2000 -do- 14 Dr. Ajay Masand 21.01.2000 -do- 15. Dr. Ram Krishan Sharma 13.01.2000 -do- 16. Dr. Yogesh Sharma 18.02.2000 -do- 17. Dr.Chaitanya Thakur 17.01.2000 -do- Petitioners’ ad hoc appointments were in regular pay scale. They also earned annual increments admissible in the pay scale applicable to the post. All the petitioners were allotted GPF account numbers and had been contributing towards GPF on their ad hoc appointment. 2(ii) On 15.05.2003, the respondents issued notification amending the CCS (Pension) Rules, 1972 by excluding the appointments made in the State of Himachal Pradesh after the date of publication of the notification in the Rajpatra, Himachal Pradesh from the purview of CCS (Pension) Rules, 1972. 2(iii) Services of all the petitioners were regularized vide notification dated 03.05.2005 subject to terms and conditions mentioned in the notification. These terms and conditions, inter alia, provided that the petitioners shall be allowed to contribute towards GPF; They must possess at least five years continuous ad hoc service at the time of regularization of their services. 2(iv) The respondents-State issued notification on 17.08.2006, introducing Contributory Pension Scheme for new appointees of the Himachal Pradesh Government appointed on or after 15.05.2003. These terms and conditions, inter alia, provided that the petitioners shall be allowed to contribute towards GPF; They must possess at least five years continuous ad hoc service at the time of regularization of their services. 2(iv) The respondents-State issued notification on 17.08.2006, introducing Contributory Pension Scheme for new appointees of the Himachal Pradesh Government appointed on or after 15.05.2003. In terms of Himachal Pradesh Civil Services Contributory Pension Rules, 2006, notified on 17.08.2006, “Employees appointed on or after 15.05.2003 and who are already contributing towards GPF shall cease to continue to subscribe towards the General Provident Fund from the date of notification of the Contributory Pension Scheme. The amount deposited in their General Provident Fund Account shall be transferred to their respective Contributory Pension Fund Account alongwith interest……..” 2(v) On 23.07.2007, some of the petitioners herein were directed by the respondents to apply for the Contributory Pension Scheme Index Number. This was in light of the fact that the petitioners’ services had been regularized on 03.05.2005 i.e. after the issuance of notification of Contributory Pension Scheme, 2006 (15.05.2003). On 18.02.2008, the respondents issued a memo to some of the petitioners, directing them to apply for the allotment of Contributory Pension Scheme Number. 2(vi) A Civil Writ Petition No.1921 of 2008 was instituted, wherein some of the present petitioners were also the petitioners, claiming that the Contributory Pension Scheme be held not applicable to them and they be further held entitled to continue under the GPF scheme, for which they have been contributing ever-since the date of their initial ad hoc appointments. The writ petition was disposed of on 29.12.2010 by directing the respondents to consider the case of the petitioners and to take appropriate action in the matter thereupon. While disposing of the writ petition, the Court noticed that: - for all practical purposes, the petitioners had been granted the date of appointments as dates of their joining as ad hoc/contractual Medical Officers; They had also been granted increments and seniority with effect from the date of joining as ad hoc/contract Medical Officers; Following observations made by the Court are, relevant to the context: - “2. It is the case of the petitioners that they had been appointed on contract/adhoc/tenure basis prior to 15-5-2003 and from the very initial date of appointment they had been contributing to the GPF. It is the case of the petitioners that they had been appointed on contract/adhoc/tenure basis prior to 15-5-2003 and from the very initial date of appointment they had been contributing to the GPF. At any rate, it is contended that since they have been regularized in service, they can not be compelled to switch over to the CPF. 3 ………….. 4. …………. 5. It is seen from Annexure P-7 Memorandum dated 5.3.2007 in the matter of regularization of Adhoc/Contractual Medical Officers that such employees have been regularized in service with the following among other conditions: "7. The pay of Adhoc/Contractual Medical Officers who have been appointed prior to December, 2002 and allowed Regular scale with increments may be protected while adjusting them in the pay scale of Rs.7880-13500. 8. Seniority will be given in the following manner: i) Date of joining as Adhoc contractual Medical Officer. ii) in case of same Date of joining, Date of Birth has been taken as second distinguished criterion." 6. Therefore, for all practical purposes in the case of these doctors, they have been granted the date of appointment as the date of joining as adhoc/contractual Medical Officers. It is further seen that they have granted increment and seniority w.e.f. the date of joining as adhoc/ contract Medical Officers. 7. In that view of the matter, the submission is that the petitioners are to be deemed to be appointed prior to 15.5.2003 for the purpose of contribution to the GPF and CCS (Pension) Rules, 1972. To what extent CCS (Pension) Rules, 1972 and GPF Rules are interconnected is itself a larger question under Rule 4 of the GPF Rules, then only restriction is that, a contributory to CPF cannot continue GPF. 8. Having regard to the CCS (Pension) Rules, 1972, having regard to the GPF Rules and having regard to the submissions as above, we are of the view that in the case of the petitioners, the matter requires fresh consideration by the Government since as the amendment introduced w.e.f. 15.5.2003, all appointments made in the State of Himachal Pradesh on or after the date of publication of the notification namely, on 15.5.2003, they alone are not to be covered by CCS(Pension) Rules, 1972. It is also to be noted as per the Scheme dated 17.8.2006, the same is only made applicable to the new appointees appointed after 15.5.2003.” Operative part of directions reads as under:- “9. Having regard to the factual matrix and legal position as referred to above, whereby the appointments though on adhoc/contractual/tenure basis having been made prior to 15.5.2003 and which appointments having been given effect by way of regularization with effect from the date of adhoc/tenure /contractual basis, the contentions as referred to above, assume significance and force. Therefore, these writ petitions are disposed of directing the first respondent to consider the case of the petitioners afresh and take appropriate action in the matter expeditiously.” The respondents considered the case of the petitioners on 21.12.2012 and decided that the service rendered by them on ad hoc basis neither falls under the purview of CCS (Pension) Rules, 1972 nor is covered under Himachal Pradesh Contributory Pension Rules, 2006. 2(vii) In the aforesaid background, the petitioners have preferred the instant writ petition, seeking following substantive reliefs: - “(i) That the respondents may be directed to treat the petitioners as having been appointed as Veterinary Officers prior to 15.05.2003 for the purpose of applicability of CCS(Pension) Rules, 1972 and GPF, with all consequential benefits. (ii) That the impugned decision reflected in letter dated 21.12.2012, Annexure P-10 rejecting the claim of the petitioners to count their service as qualifying service towards pension under CCS (Pension) Rules, 1972 and GPF may kindly be quashed and set aside as violative of Articles 14 and 16 of the Constitution of India, with all consequential benefits. (iii) That if it is construed that notification dated 15.05.2003, Annexure P-3 and notification dated 17.08.2006, Annexure P-5 is retrospective in nature so as to take away the right of petitioners to count their adhoc service rendered before 15.05.2003 towards qualifying service under CCS (Pension) Rules, 1972 and GPF, in that event such retrospective operation of the aforesaid notifications may be struck down as violative of Articles 14 and 16 of the Constitution of India, with all consequential benefits. (iv) That the respondents may be directed to allow the petitioners to continue contributing to GPF with further direction to count their initial adhoc officiation following by regularization towards qualifying service for pension under C CS (Pension) Rules, 1972, with all consequential benefits.” 3. (iv) That the respondents may be directed to allow the petitioners to continue contributing to GPF with further direction to count their initial adhoc officiation following by regularization towards qualifying service for pension under C CS (Pension) Rules, 1972, with all consequential benefits.” 3. Pursuant to an interim order passed in this writ petition on 22.08.2017, the petitioners were permitted to continue contributing towards GPF. Learned Senior Counsel for the petitioners submitted that this interim order is being complied with by the petitioners and all have been contributing towards their respective GPF accounts. Consideration 4. I have heard learned counsel on both sides and also considered the case file. The petitioners are seeking applicability of CCS (Pension) Rules, 1972 to them primarily on the ground that:- ad hoc service rendered by them prior to their regularization on 03.05.2005, is required to be counted and considered as a qualifying service towards pension; The Contributory Pension Scheme notified by the respondents on 17.08.2006 and made applicable w.e.f. 15.05.2003, therefore, will not be applicable to them. After hearing learned counsel on both sides, I find substance in the submissions made by leaned counsel for the petitioners. This is for the following reasons: - 4(i) It is not in dispute that:- The petitioners were appointed on ad hoc basis during the year 1993 to 2000; Their such ad hoc appointments were in regular pay scale; The petitioners have also been granted increments during their ad hoc service on such regular pay scale. 4(ii) The ad hoc services rendered by the petitioners were taken into consideration by the respondents while regularizing their services in terms of notification dated 03.05.2005. 4(iii) As per terms and conditions of the notification dated 03.05.2005, under which services of the petitioners were regularized, their seniority was to be counted from the date of their joining the ad hoc services. Condition No.11 as contained in notification reads as under:- “11 With respect to determination of seniority of the ad hoc employees as are regularized shall be determine din accordance with the date of joining the post on ad hoc basis. Condition No.11 as contained in notification reads as under:- “11 With respect to determination of seniority of the ad hoc employees as are regularized shall be determine din accordance with the date of joining the post on ad hoc basis. if the date of joining the post(s) on ad hoc basis by such ad hoc employees was the same, then the elder employees shall rank senior to an employee younger in age.” It is, thus, apparent that the respondents have themselves considered the ad hoc service rendered by the petitioners for counting their seniority. 4(iv) Notification dated 15.05.2003 amending CCS (Pension) Rules, 1972 states that it is only the appointments made in the State on or after the date of publication of the notification, which would be excluded from the purview of applicability of the CCS (Pension) Rules, 1972. In the instant case, the respondents have themselves treated the petitioners to have been appointed with effect from the date of their ad hoc appointments, which are all prior to the notifying of Contributory Pension Scheme, 2006 (15.05.2003). 4(v) Latest HLJ 2009 (HP) 887 (Paras Ram Vs. State of H.P.), was a case wherein it was held that the services rendered on ad hoc basis for long period cannot be permitted to be rendered otiose. Relevant para of the judgment is as under :- “4. In the present case the petitioner has uninterruptedly worked against the post of Junior Basic Trained Teacher on ad hoc basis and has been awarded special certificate. He was regularized on 13.11.1997. In view of Annexure PB, the ad hoc services rendered by the petitioner before his regularization are to be counted towards annual increments. The Petitioner has served the respondent- State as Junior Basic Trained Teacher from 1987. He is entitled to get the entire services counted which has rendered on ad hoc basis with effect from 1987 for the purpose of annual increments. The petitioner has worked as a Junior Basic Trained Teacher for all intents and purposes and has been issued a certificate by the State as per notification dated 31.8.1995. There is no distinction visualized/contemplated in Annexure PB to which category the benefit of ad hoc services is to be granted for the purpose of annual increments. The petitioner has worked as a Junior Basic Trained Teacher for all intents and purposes and has been issued a certificate by the State as per notification dated 31.8.1995. There is no distinction visualized/contemplated in Annexure PB to which category the benefit of ad hoc services is to be granted for the purpose of annual increments. This notification will cover all the cases where the persons had worked on ad hoc basis and immediately thereafter they were regularized without any break in the Education Department. The services which the petitioner had similarly situate persons have rendered on ad hoc basis for a long period, cannot be permitted to be rendered otiose.” In LPA No. 36 of 2010 (Sita Ram Vs. State of HP & Ors.), decided on 15.06.2010, the Division Bench further clarified the decision in Paras Ram’s case supra that if ad hoc service is followed by regular service in the same post, the said service could be counted for the purpose of increments and that it is a settled principle of law that if any service that is counted for the purpose of increments, will count for pension also. Relevant extract from the judgment is as under :- “2 ……………..However, this Court in Paras Ram’s case had laid down the law that if ad hoc service is followed by regular service in the same post, the said service could be counted for the purpose of increments. It is also settled principle of law that any service that is counted for the purpose of increment, will count for pension also. To that extent the appellant is justified in making submission that period may be treated as qualifying service for the purpose of pension also………………” To the similar effect is the decision rendered in a bunch of petitions with lead case CWP No.4550 of 2010 (Ravi Kumar Vs. State of H.P. and another and connected matters) decided on 16.12.2010, wherein it was inter alia held that “all the tenure appointees appointed on running grade and followed without break by regular appointment are entitled to count their service period for increments and pension.” The writ petitions were disposed of with the following directions: - “13. State of H.P. and another and connected matters) decided on 16.12.2010, wherein it was inter alia held that “all the tenure appointees appointed on running grade and followed without break by regular appointment are entitled to count their service period for increments and pension.” The writ petitions were disposed of with the following directions: - “13. In the above circumstances, all these writ petitions are disposed of as follows:- (1) The tenure appointees in the education department if appointed without break in regular service shall be granted increments during the tenure period and the said service will count for pension, as in the case of ad hoc appointees in the education department. (2) As far as contract teachers are concerned, the 1st respondent may consider their case for increments or for counting the service as qualifying service for pension, having regard to all relevant factors, some of which are referred to above. It will be open to the petitioners to jointly also file appropriate representations. Orders in that regard will be passed within four months from the date of receipt of a copy of this judgment/representations.” In a decision rendered on 07.12.2023 in CWPOA No.6956 of 2020 (Rama Nand Sharma Vs. State of H.P. & Ors), where the petitioner therein had prayed for a direction to the respondents to grant him pension and retiral benefits by counting his entire service towards qualifying service for the purpose of pension, after noticing several authoritative pronouncements on the subject matter, the Division Bench held that the petitioner was entitled to count his contract service for the purpose of pensionary benefits as well as annual increments for the said period with all consequential benefits. 5. In view of above reasons, it can be concluded that ad hoc service rendered by the petitioners, in this case, is liable to be considered as qualifying service towards pension; Service of petitioners, who are to be construed as appointees prior to 15.05.2003, is governed by CCS (Pension) Rules, 1972. In view of the above discussion, the writ petition is allowed. The petitioners are held entitled to applicability of CCS (Pension) Rules, 1972. The ad hoc service rendered by them in the given facts of the case shall be countable towards qualifying service for the pension. The actual consequential financial benefits in terms of pension shall, however, be restricted to three years prior to filing of the writ petition. The petitioners are held entitled to applicability of CCS (Pension) Rules, 1972. The ad hoc service rendered by them in the given facts of the case shall be countable towards qualifying service for the pension. The actual consequential financial benefits in terms of pension shall, however, be restricted to three years prior to filing of the writ petition. The pending miscellaneous application(s), if any, also stand disposed of.