CMP No. 18049 of 2023

1. Heard. Allowed.

CWP No. 6263 of 2020

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, a retired Beldar (Class-IV) from I & PH-Jal Shakti Vibhag, under the Respondent-State has come up before this Court, in the instant petition, seeking the following relief(s):-

i) "That the respondents may kindly be directed to regularize the services of the petitioner on the completion of eight years of daily wage services alongwith benefits.

ii) That the respondents may kindly be directed to grant pension to the petitioner along-with interest and arrears from the date of his retirement in the interest of justice."

4. In the background of the relief(s), prayed for above, the case of the petitioner as submitted by the learned counsel is that, the petitioner was engaged as, daily wages beldar on 01.01.1987 in Irrigation and Public Health Division Nerwa, and his services were regularized on 01.01.1997. He further submits that he was conferred work and was then regularized on 01.01.1997, in terms of the mandate of the Hon'ble Apex Court in the case of Mool Raj Upadhyaya w.e.f. 01.01.2000. The petitioner retired from the service of respondents on 30.06.2003 after rendering regular deemed service of eight years and six months [i.e. based on six years, six months of regular service and two years of deemed regular service, in lieu of ten years of daily wage service].

5. The case of the petitioner is that initially the respondents have not granted the benefit of pension to the petitioner on the plea that he had "not rendered the requisite "qualifying service of ten years" in terms of the law laid down by the Hon'ble Apex Court, in case of Sunder Singh.

6. Now, the grievance of the petitioner is that the judgment passed by the Hon'ble Apex Court, in the case of Sunder Singh versus State of Himachal Pradesh [Civil Appeal No. 6309 of 2017, dated 8.3.2017] has been clarified by the Hon'ble Apex Court in the case of Balo Devi Versus State of HP [2022 HP(2) 817], which mandates that "in case, the regular service and regular service after giving proportional weightage in lieu of daily wage service comes to eight years"; then also, the "service of eight years is to be treated as ten years service and such an employee is entitled for pension".

In this background, the said period of service of eight years rendered by the petitioner be treated as ten years of qualifying service but, despite the eligibility and entitlement, in terms of the mandate of law; the denial of pension to the petitioner w.e.f. 01.01.2018 till day is illegal, arbitrary and violative of Articles 14 and 16 and Article 300-A of the Constitution of India.

7. Learned counsel for the petitioner has placed reliance upon the mandate of Hon'ble Apex Court, in case, of Sunder Singh Versus State of Himachal Pradesh, in Civil Appeal No. 6309 of 2017, decided on 8.3.2018, the operative part thereof, read as under:-

"6. Some of the petitioners whose writ petitions were disposed of vide the Division Bench's Judgment dated 31.05.2012 chose to assail the said judgment before the Hon'ble Apex Court by filing Special Leave Petitions. The SLPs were connected and decided on 08.03.2018 under the lead case Civil Appeal No. 6309 of 2017, titled as Sunder Singh vs. State of H.P. and others. It would be pertinent to mention herein that the appellant in the aforesaid case were all retired regular Class-IV employees seeking to count the daily wage service, rendered by them prior to their regularization, towards qualifying service for pension. The Hon'ble Apex Court disposed of the petition with the following order:

"1. Heard learned counsel for the parties.

2. The appellants represent class of Class-IV employees who were recruited initially as daily wagers such as Peon/Chowkidar/Sweeper/ Farrash/Malis/Rasoia etc. Their services, thereafter, were regularized pursuant to the decision of this Court in Mool Raj Upadhyaya Vs. State of H.P. and Ors. 1994 Supp(2) SCC 316 under a Scheme. Regularization was after 10 years of service.

3. It is undisputed that the post-regularization an employee who had served for 10 years is entitled to pension for which work charge service is counted. Earlier, in terms of O.M. dated 14.05.1998, 50% of daily-wage service was also counted for pension after regularization but the rules have undergone change.

4. Since the appellants have not rendered the requisite 10 years of service they have been denied pension.

5. Even though strictly construing the Rules, the appellants may not be entitled to pension. However, reading the rules consistent with Articles 14, 38 and 39 of the Constitution of India and applying the doctrine of proportionate equality, we are of the view that they are entitled to weightage of service rendered as daily wagers towards regular service for the purpose of pension.

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.

7. The appeal as well as special leave petitions are disposed of in above terms."

8. Learned counsel for the petitioner has also relied upon the judgment passed by the Hon'ble Apex Court in case of Balo Devi vs. State of Himachal Pradesh and others reported in Latest HLJ 2022(HP)(2) (817), whereby the judgment in the case of Sunder Singh's case has been clarified as under:-

"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 daily wager, be added.

(c) If both the components as detailed in Paras a & b herein above, 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."

9. Per contra, Mr. Rajan Kahol, learned Additional Advocate General submits that the judgment in case of Balo Devi (supra) granting pension to Class-IV employees, has not attained finality as yet, as the State Authorities have filed a review petition before the Hon'ble Supreme Court, which is pending decision. However, he submits that once the petitioner has approached this Court belatedly in the year, 2023, therefore, the petitioner's case for pension w.e.f. 01.01.2018 as per the existing mandate of law, referred to above, needs to be looked into, but the actual monetary benefits can only be considered, if otherwise admissible, for a period of three years preceding the filing of the writ petition (02.11.2020) and not beyond that. The submission of learned State Counsel appears to genuine. The submission of the learned Additional Advocate General appears to be genuine and in accordance with the mandate of law whereby, the petitioner can only claim actual monetary benefits-arrears for a period of three years preceding the filing of the writ petition (02.11.2020).

10. In the entirety of the facts stated above and the mandate of the law, laid down by the Hon'ble Apex Court in the case of Sunder Singh's and Balo Devi (supra), once the petitioner has completed eight years service [based on actual regular service rendered and regular service so arrived at after giving proportional weightage in lieu of daily wages service i.e. one year regular service for the years of daily wages service and two years regular service for ten years of daily wages service] then, this eight years service shall be reckoned as ten years service and this eight years service, shall qualify, for pension. Accordingly, based on the regular service, so arrived at, in terms of the mandate of law in case of Sunder Singh and Balo Devi (supra), once the petitioner has completed-rendered eight years of regular service, therefore, he is eligible and entitled to pension under the CCS (Pension) Rules, 1972, w.e.f. 01.01.2018 notionally; except the past arrears, which shall be restricted for a period of three years prior to the filing of writ petition [on 02.11.2020], in terms of settled law.

11. In view of the above, the respondents are directed to consider the case of the petitioner (Class-IV retiree) for grant of pension, in terms of the mandate of the Hon'ble Apex Court in the case of Sunder Singh and Balo Devi (supra) notionally w.e.f. 01.01.2018; and upon consideration, in case, the petitioner is held entitled to pension then, the actual monetary benefits/arrears shall be confined for a period of three years preceding the filing of this writ petition, in terms of the mandate of law, in the case of Union of India versus Tarsem Singh (2008) 8 SCC 648 [LQ/SC/2008/1658] ; Shiv Dass versus Union of India and Others; (2007) 9 SCC 274 [LQ/SC/2007/81] ; State of Madya Pradesh and Others versus Yogendra Shrivastava (2010) 12 SCC 538 [LQ/SC/2009/1902] ; Asger Ibrahim Amin Versus Life Insurance Corporation of India 2015:INSC:764 : (2016) 13 SCC 797, [LQ/SC/2015/1400] followed in Rushibhai Jagdishchandra Pathak versus Bhavnagar Municipal Corporation CA No. 4134 of 2022 [ 2022:INSC:592] decided on 18.5.2022, and arrears beyond three years cannot be claimed/granted. The consequential action be taken by the respondents within three months from today.

12. In the aforesaid terms, the instant writ petition, as well as, pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.