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Himachal Pradesh High Court · body

2025 DIGILAW 821 (HP)

Kali Dass v. State of H. P.

2025-04-25

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, J. This writ petition has been filed for grant of following reliefs: - 1. That the petitioner be considered for pensionary benefits and payment thereof with effect from the date of his retirement under the old pension scheme. 2. That the respondents may very kindly be directed to grant the pension to the petitioner after counting the daily wage service for the purpose of completion of requisite years period for pension keeping in view of judgments dated 8.3.2018 passed in Civil Appeal No. 6309 of 2017 Sunder Singh Vs. The State of Himachal Pradesh & Ors. and Civil Appeal No. 4792 of 2022 Balo Devi Vs, State of H.P & Ors., passed by the Hon'ble Apex Court. 3. That due and admissible arrears be also paid to the petitioner alongwith interest and other consequential benefits.” 2. Petitioner was initially engaged in the respondent- H.P. Public Works Department as Daily Wage Beldar in February 2002. Treating his daily wage service in each calendar year w.e.f. 2008 as 240 days and more, the respondents regularized petitioner’s services on 18.08.2015. Petitioner took up the matter before the learned Labour Court-cum-Industrial Tribunal, Dharamshala, District Kangra, H.P for counting the daily wage service rendered by him w.e.f. 2002 onwards on the ground that he had actually rendered 240 days’ service in every calendar year w.e.f. 2002. The award was passed on 24.02.2016 in petitioner’s favour. It was acted upon by the respondents. Petitioner’s services were regularized w.e.f. 18.08.2012, vide order dated 20.09.2017. Petitioner superannuated on 30.04.2022. Petitioner rendered total of nine years, eight months and fourteen days of regular service. The service fell short of ten years of qualifying service required for pensionary benefits, therefore, the respondents did not grant pensionary benefits to the petitioner. 3. Feeling aggrieved, petitioner has instituted this writ petition, seeking direction to the respondents to count the daily wage service rendered by him for the purpose of pensionary benefits in view of the decisions in Sunder Singh Versus The State of Himachal Pradesh & Ors., Civil Appeal No.6309 of 2017, decided on 08.03.2018 and Balo Devi & others Versus State of Himachal Pradesh and others, Civil Appeal No.4792 of 2022, decided on 18.07.2022. 4. 4. The stand of the respondents is that the judgment in Sunder Singh (supra) is applicable only to Class-IV Workmen, who were engaged before 31.12.1993 and were granted work charge status/regularization in accordance with the verdict in Mool Raj Upadhaya Vs. State of H.P. and others, 1994 Supp. (2) SCC 316; The judgment is not applicable to the petitioner as he was engaged in February 2002. The aforesaid stand of the respondents is absolutely contrary to the dictum in Sunder Singh (supra) , Balo Devi (supra) and Roop Lal Versus State of H.P. & Others, LPA No.196 of 2022, decided on 11.10.2023. In Sunder Singh (supra) , the Hon’ble Apex Court held that w.e.f. 01.01.2018, the appellants (therein) or other similarly placed class-IV employees will be entitled to pension, if they have been duly regularized and have completed eligible service for more than ten years. Daily wage service of five years will be treated to equal one year of regular service for pension. If on that basis, their service are more than eight years but less than ten years, then their service will be reckoned as ten years. The relevant para from the decision is as under:- “6. Accordingly, we direct that w.e.f 01.01.2018, the appellants or other similarly placed Class-IV employees will be entitled to pension if they have been duly regularized and have been completed total eligible service for more than 10 years. Daily wage service of 5 years will be treated equal to one year of regular service for pension. If on that basis, their services are more than 8 years but less than 10 years, their service will be reckoned as ten years.” The above was further clarified in Balo Devi (supra) as under :- “We find it difficult to accept the submission of Mr. Patwalia. If the submission is accepted, the last line of paragraph 6 would lose any significance or meaning. The intent of this Court was quite clear that : - (a). The services rendered as a regular employee may first be computed. (b) To the service as rendered to above, the component at the rate of one year of regular service for every five years of service as a daily wager, be added. The intent of this Court was quite clear that : - (a). The services rendered as a regular employee may first be computed. (b) To the service as rendered to above, the component at the rate of one year of regular service for every five years of service as a daily wager, be added. (c) If both the components as detailed in Paras a & b hereinabove, take the length of service to a level of more than eight years but less than ten years, in terms of last sentence of paragraph 6 of the Order, the services shall be reckoned as ten years.” Furthermore, in Roop Lal (supra) the benefit of decision in Sunder Singh (supra) , was extended to the daily wage service rendered by Class-III employees as well. Relevant paras from the judgment read as under:- “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 affect 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 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 that the purpose of pension, the considered view 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-Ill employees.” Special Leave to Appeal (C) No.1007/2024 preferred by the State against the aforesaid decision was dismissed by the Hon’ble Apex Court on 18.03.2025. Therefore, respondents’ stand that benefit of decision in Sunder Singh (supra) and Balo Devi (supra) is limited to only to those Class-IV employees, who were covered under the Scheme approved in Mool Raj Upadhayay’s (supra) case, is misconceived and based upon misinterpretation the decisions. The petitioner, a Class–IV employee, is certainly entitled to count the daily wage service rendered by him w.e.f. February 2002 in terms of decision in Sunder Singh (supra), Balo Devi (supra) and Roop Lal (supra) towards his regular service. It is an admitted position that on counting of such service, the total service rendered by the petitioner becomes more than the qualifying service required for pension. Therefore, in accordance with decisions in Sunder Singh (supra) and Balo Devi (supra) , the petitioner has the requisite service that entitles him to pension. 5. This writ petition is accordingly allowed. Petitioner is held entitled to count his daily wage service in terms of decision rendered in Sunder Singh (supra)Balo Devi (supra) and Roop Lal (supra) towards the regular service rendered by him for the purpose of pensionary benefits. In this manner, taking note of total service rendered by him, the petitioner is further held entitled for grant of pension. The respondent to do the needful within four weeks. Pending miscellaneous application(s), if any, also to stand dispose of.