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2025 DIGILAW 15 (HP)

Om Chand v. State of H. P.

2025-01-02

G.S. SANDHAWALIA, SATYEN VAIDYA

body2025
JUDGMENT : G.S. Sandhawalia, C.J. The present Letters Patent Appeal is directed against the order of the learned Single Judge, passed in Civil Writ Petition No. 1223 of 2022, decided on 2 nd September, 2024. 2. The learned Single Judge rejected the claim as such of the present appellants to add two years’ service rendered by them, on daily wage basis, which was claimed in terms of the law laid down by the Apex Court in Civil Appeal No. 6309 of 2017 , titled Sunder Singh versus State of Himachal Pradesh & others, and to commute the pension payable to them. 3. The learned Single came to the conclusion that the judgment as such in Sunder Singh’s case ( supra) was only passed in the peculiar facts and circumstances of that case, where Class-IV employees were not having ten years’ service after regularization. In such circumstances, it has been ordered that daily wage service of five years will be treated equal to one year of regular service for pension and where services are more than eight years, but less than 10 years, their services will be reckoned as ten years. 4. The learned Single Judge further held that in the aforesaid judgment, the Apex Court has nowhere laid down that daily wage service shall be counted for any other purpose except rendering a person eligible for the receipt of pension so as to create a fiction that service rendered by the incumbent should be treated as ten years’ service by giving him the benefit of one year for a daily wage service of five years for the purpose of pension. 5. The learned Counsel for the appellants/petitioners has only relied upon the observations of the Apex Court. 6. We have gone through the writ petition filed by the appellants/petitioners. Their whole case is based upon the judgment in Sunder Singh’s case ( supra) and there is no reference to any specific rule on the basis of which, they claim the counting of the daily wage period for the purposes of getting pension, and neither any details have been given of the period of daily wage service they had put in. 7. 7. The specific stand of respondents No 1 to 4 in the writ petition as such was that the petitioners were regular employees of the respondents-Department, who attained the age of superannuation from Jal Shakti Division Baggi on the post of Beldar or Luskar etc. after rendering 10 or 12 years regular service. The date of regularization and the date of retirement was tabulated accordingly, as under: Sr. No Name of Petitioner Date of regularization Date of retirement Total Service 1. Sh. Om Chand 01.01.1998 31.12.2008 11 Years 2. Sh. Hukam Cahnd 01.01.1996 31.08.2008 12 Years 8 Months 3. Sh. Lab Singh 01.01.1996 31.07.2008 12 Years 7 Months 4. Sh. Dhoom Ram 01.01.1996 31.10.2008 12 Years 10 Months 8. Specifically the case of respondents No. 1 to 4 in the writ petition was that the engagement is purely contractual and the period spent as a daily wage employee is no ‘service’ recognized as a part of qualifying service under the Rules. It is further submitted by them that as per the provisions of CCS (Pension) Rules, only regular service is considered as qualifying service for the purpose of pension and a daily rated service cannot be held at par with the regular service under any stretch of imagination. It is also mentioned that the petitioners stood retired from Government service in the year 2008, whereas the present petition has been filed after the lapse of more than 13 years and thus the petition is liable to be dismissed on the ground of delay and laches. 9. Reply filed on behalf of respondent No. 5 to the writ petition would also go to show that they have rendered more than 10 years of qualifying service and superannuated at the age of 60 years during the year 2008 and their pension cases were forwarded to the office of the replying respondent and they were drawing 50% of last pay drawn at the time of their retirement, as pension. 10. In the rejoinder filed by the present appellants in the writ petition, again there was no reference made to any rule, apart from re-iterating Sunder Singh’s case ( supra). 11. In such circumstances, the learned Single Judge has denied the benefit as such. 12. 10. In the rejoinder filed by the present appellants in the writ petition, again there was no reference made to any rule, apart from re-iterating Sunder Singh’s case ( supra). 11. In such circumstances, the learned Single Judge has denied the benefit as such. 12. Perusal of Sunder Singh’ case would go to show that it is more than on account of equity as such, the Supreme Court had stepped in to direct that five years of regular service should be treated equal to one year of regular service, as the appellants in that case had not rendered 10 years’ regular service and they had been denied pension. The order was passed in peculiar facts and circumstances of that case to grant benefit to the persons, who had rendered considerable service, but unfortunately, were short of the qualifying service for the entitlement of pension and, therefore, the the fall back on aforesaid Sunder Singh’s judgment is totally uncalled for. 13. We have also gone through order dated 25.11.2021 (Annexure P-2), which was subject matter of challenge before the learned Single Judge. 14. The specific stand as such was taken as to under what circumstances, the order was passed in Sunder Singh (supra) and the fact that petitioners were already getting pension as per the CCS (Pension) Rules, 1972. 15. The Apex Court in the judgment in Civil Writ Petition No. 3598 of 2019, Balo Devi Vs. State of H.P. & others has only clarified that post regularization service of eight years is required to get the weightage of daily wage service in order to become entitled for pension to complete 10 years service, as required under Rule 49 of CCS (Pension) Rules, 1972, and therefore, the case has been distinguished. 16. Rule 49 of CCS (Pension) Rules, provides as to how the amount of service gratuity is to be calculated, if the Government servant is retiring before completion of qualifying service of 10 years. 17. In the absence of any pleadings as such in the writ petition as on what basis, the claim could have been raised regarding counting of the daily wage period for calculating the pension and for addition of two years’ service, the claim does not stem from any rule as such. 18. 17. In the absence of any pleadings as such in the writ petition as on what basis, the claim could have been raised regarding counting of the daily wage period for calculating the pension and for addition of two years’ service, the claim does not stem from any rule as such. 18. It is settled principle that writ of mandamus can only be issued where there is any legal right given by a rule or there is a public duty, which is to be complied with by any Authority. In the absence of any such rule referred to, we are of the considered opinion that the order of the learned Single Judge does not suffer from any infirmity which would warrant interference. 19. Accordingly, in view of the above discussion, the present appeal is dismissed. 20. Pending application(s), if any, also stands disposed of.