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2024 DIGILAW 133 (HP)

Hakamu Devi v. State of Himachal Pradesh

2024-02-27

RANJAN SHARMA

body2024
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of respondents No.1 to 4. Mr. Rangil Singh, Advocate, appears and waives service of notice on behalf of respondent No.5. 2. With the consent of the parties, the instant writ petition, is taken up for disposal, at this stage, in view of the order(s) intended to be passed herein. 3. The petitioner has filed the instant writ petition, with the following prayers:- i) “That respondents may kindly be directed to grant the family pension to the petitioner after the retirement of her husband and on counting his daily wage tenure as per the judgment of Hon’ble Apex Court passed in Civil Appeal No.6309/2017 as well as Judgment passed in Balo Devi Civil Appeal No.4792 of 2022, from the due date. ii) That the respondents be also directed to release the pension along with other benefits including the arrears w.e.f. 1-1-2018, along with interest.” 4. The case set up by Mr. H.S. Rangra, learned counsel for the petitioner is that the petitioner’s husband, namely, Shri Sher Singh served initially as daily wage Beldar and then as complaint attendant from 1982 till his regularization w.e.f. 01.01.1994. Thereafter, the petitioner’s husband retired on attaining the age of superannuation, after rendering actual regular service of eight years and five months of regular service on 31.05.2002, as a Class-III employee. 5. In Para 4 of the writ petition, it is stated that the husband of the petitioner, namely, Shri Sher Singh, expired on 17.09.2003 and after his death the present petitioner being the widow is entitled to be considered for grant of family pension w.e.f. 01.01.2018, in terms of the judgment passed by Hon’ble Supreme Court in Civil Appeal No.6309 of 2017, titled as Sunder Singh versus State of Himachal Pradesh and ors., decided on 08.03.2018, which stands clarified by the Hon’ble Supreme Court in Civil Appeal No.4792 of 2022, titled as Balo Devi versus State of Himachal Pradesh & ors., reported in latest HLJ 2022 (HP) (2) (817); after by taking into account the regular service of two years [in lieu of ten years of daily waged service] and actual regular service of eight years and five months. In this background, it is stated that the petitioner’s husband has rendered ten years and five months of regular service vis-à-vis the requirement of minimum eight years of regular service so as to qualify for pension/family pension w.e.f. 01.01.2018 in terms of the mandate of law in case of Sunder Singh & Balo Devi (supra). Once deceased husband of the petitioner is eligible and entitled to pension w.e.f. 01.01.2018, therefore, the petitioner, being the widow is entitled for family pension w.e.f. 01.01.2018 with all benefits. 6. By fulfilling the mandate of law, laid down by the Hon’ble Apex Court in the cases of Sunder Singh & Balo Devi (supra), this Court had decided a similar issue in LPA No.196 of 2022, titled as Roop Lal versus State of Himachal Pradesh & ors., decided on 11.10.2023, whereby, it has been mandated as under:- “18. When it comes to granting the benefit of counting service rendered on daily wage for the purpose of pension to class III employees there is no significant respect in which persons concerned are distinguishable from Class IV employees. As has already been stated supra in the case of Class IV employees Articles 14,38,39 and the Concept of “proportional equality” (egalitarian equality) have been read into the relevant pension rules and only thereafter a benefit of counting service rendered on daily wage for the purpose of pension has been accorded to the Class IV employees. Non grant / non extension of benefit of counting service rendered on daily wage for the purpose of pension to Class III employees by not reading Articles 14, 38, 39, the Concept of “proportional equality” (egalitarian equality) into the relevant pension rules would lead to a differential treatment to persons who are in no manner significantly different hence in the facts and attending circumstances would be unjustified. The extension of the same benefit in our considered view cannot be denied. Moreso, especially in view of Rafiq Masih's case 2015 (8) 334 wherein, Class III and Class IV employees on equitable considerations have been treated at par with respect to the right of the State (employer) to recover from them amounts paid de-hors the applicable service rules. 19. The claim herein is with respect to counting of service as rendered on daily wage basis before Regularization/ grant of work charge status towards qualifying service for grant of pension. 19. The claim herein is with respect to counting of service as rendered on daily wage basis before Regularization/ grant of work charge status towards qualifying service for grant of pension. For the said adjudication what is relevant is the period rendered towards daily wage by the concerned employee irrespective of the status of the employee, Class-III/ Class IV. 20. The claim for pension is a recurring cause of action. The petitioner is an employee who belongs to a lower hierarchy in service. Delay in filing the present petition would dis-entitle the petitioner for grant of interest but he would definitely be entitled for monetary benefits prospectively. Further on account of delay in filing the present petition monetary benefits can be restricted to three years prior to the filing of the petition. In this respect it would be appropriate to refer to (2008) 8 Supreme Court Cases 648, titled as Union of India and others vs. Tarsem Singh, wherein it has been held that non-grant of pension is a continuing wrong which in spite of delay may be granted as it does not effect the rights of third-parties. In so far as the consequential relief of recovery of arrears for past service is concerned, it has been held therein that principle relating to recurring/successive wrongs would apply. However, the consequential relief relating to arrears shall normally be restricted to a period of three years prior to the date of filing of the writ petition. 21. In view of the aforesaid proposition of law, we are of the considered view that the purpose of pension, the Constitutional mandate contained in Articles 14, 38, 39 of the Constitution of India and the doctrine of proportionate equality would be required to be read into the Rules as has been held by the Apex Court in Sunder Singh's case supra in order to give weightage of service rendered as daily wager towards regular service for the purpose of pension even to Class-III employees. 22. In view of the above discussion, respondent-State is directed to extend benefit of Daily Wage service to the petitioner, in terms of Sunder Singh's case, as explained in Balo Devi's case, for calculating qualifying service for the purpose of pension, and to extend all benefits of pension to the petitioner within one month from today. 22. In view of the above discussion, respondent-State is directed to extend benefit of Daily Wage service to the petitioner, in terms of Sunder Singh's case, as explained in Balo Devi's case, for calculating qualifying service for the purpose of pension, and to extend all benefits of pension to the petitioner within one month from today. However, the petitioner shall be entitled for monetary benefits three years prior to the date of filing of the petition. Benefits accruing beyond three years prior to filling of the petition, if any, shall be only on notional basis. 22-A. With respect to the cut-off date from which actual monetary benefits are to be extended, keeping in view the law laid down by Supreme Court in Sunder Singh’s and Balo Devi’s cases, it is further clarified that the petitioner shall be entitled for actual monetary benefits w.e.f. 1.1.2018 and the monetary benefits, if any, prior to 1.1.2018 shall only be on notional basis, but if the three years period, prior to filing of the petition, is subsequent to 1.1.2018, then the actual benefits shall be granted from such subsequent date. 23. In view of what has said hereinabove, we allow this appeal and set aside the impugned judgment.” 7. The principle of law as referred to in the case of Sunder Singh, clarified in the case of Balo Devi (supra), which has been followed by the Division Bench of this Court in Roop Lal (supra) Annexure P-2) has been reiterated by this Court in CWP No.9222 of 2023, titled as Rirku Ram versus State of Himachal Pradesh & ors., decided on 28.11.2023. 8. At this stage, learned counsel for the petitioner submits that in view of the judgments referred to above, the petitioner has submitted a representation on 19.10.2023 (Annexure P-3) to the Respondent No.1-Secretary (Jal Shakti Vibhag, Shimla, Himachal Pradesh), which is stated to be pending. 9. Per contra, Mr. Rajan Kahol, learned State Counsel, submits that the mandate of the judgment passed by the Hon’ble Apex Court in the cases of Sunder Singh & Balo Devi is not in dispute. However, he submits that in case the aforesaid judgments have attained finality, the respondents shall consider the case of the petitioner for grant of family pension after verifying the factual facts. 10. However, he submits that in case the aforesaid judgments have attained finality, the respondents shall consider the case of the petitioner for grant of family pension after verifying the factual facts. 10. In the entirety of the facts and circumstances, referred to above, this Court disposes of the writ petition by directing the Respondent No.1-Secretary (Jal Shakti Vibhag, Shimla, Himachal Pradesh), to consider the representation dated 19.10.2023 (Annexure P-3), in the light of judgments, as referred to above, and to pass appropriate orders within six weeks from today. 11. Needless to say that, this Court has not adverted to the merits of the matter and all questions of facts and law are left open. As aforesaid, the instant writ petition, as well as, the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.