Nirmal Yadav, J.:— The petitioner have sought a writ under Articles 226/227 of the Constitution of India in the nature of mandamus directing the respondents to count the period of service rendered by them on daily wage basis along with regular service, for granting pensionary benefits, and have also prayed for issuance of a writ in the nature of certiorari for quashing the impugned order dated 13-2-2004 (Annexure P4) denying pensionary benefits to the petitioners.
2. The petitioners were appointed as work mate on daily-wage basis in the years 1980 and 1981. Their services were regularized as work mate in the year 1993. Petitioners No. 1 and 2 were promoted as Assistant Line Men on 6-6-2002 and 4-11-1999, respectively. The petitioners have retired from service on attaining the age of superannuation in the years 2002 and 2003. All the three petitioners have less than 10 years regular service to their credit for availing pensionary benefits as required under the Punjab Civil Services Rules, applicable to the State of Haryana, which have been adopted by the Uttar Haryana Bijli Vitran Nigam Limited. Since the period spent on daily wage service was not counted towards pensionary and other terminal benefits, in spite of petitioners submitting representations and legal notice (Annexure P2), they filed Civil writ Petition No. 16514 of 2003. The aforesaid writ petition was disposed of by this court by issuing a direction to the respondents to take a decision on the legal notice within four months from the date a certified copy of the order is received by them, in case the claim of the petitioner is denied, the reasons thereof would be given in the order itself. In compliance of the order of this Court, the respondents have disposed of the legal notice rejecting the petitioner's claim vide order Annexure P4, holding that workcharge service followed by regular appointment is not countable towards pensionary benefits in case where the employee had not submitted his option within three months of the circular dated 6-8-1993 or from the date of regularisation for availing of pensionary benefits and did not refund the entire amount of employees contributory provident fund along with interest thereon. The petitioners have challenged the impugned order on the ground that service rendered by them on daily wage/work-charge basis is liable to be counted for pensionary and other terminal benefits and they are entitled for grant of pension in view of the decision of this Court in C.W.P No. 15535 of 1997 titled as Nathi Ram v. State of Haryana, decided on 17-9-1998. [Reported in (1999) 1 SCT 338 (Pb. & Hry.)]. The respondents have filed reply stating that the petitioners have rendered less than 10 years regular service and as such, they cannot be granted pensionary benefits as prescribed under the rules. In view of the notification issued by the Government of Haryana No. V2 (55) 88-2FR-II dated 4-9-1992 and adopted by the erstwhile Haryana State Electricity Board vide Memo No. Ch. 9.Pen/G-43/93 dated 6-8-1993 and on account of amendment of Civil Services Rules Volume-II, Rule 3.17, the service rendered in the capacity of work-charge could be counted towards qualifying service subject to the condition that an employee had submitted the option within a period of three months from the date of regularization or from the date of issue of the aforesaid circular. In case he/she had opted for pensionary benefits, he/she had to refund the entire amount of employees contribution towards EPF along with interest thereon.
3. We have heard the learned counsel for the parties and perused the material on record.
4. Learned counsel for the petitioners argued that petitioner Nos. 1 to 3 were appointed as work mate on daily-wage basis on 6-1-1981, 1-9-1981 and 1-7-1981 and their services were regularized with effect from 1-5-1993, 4-5-1993 and 1-7-1993, respectively. Petitioner Nos. 1 and 2 were promoted as Assistant Lineman on 4-11-1999 and 6-6-2002 and continued as such upto 31-12-2002 and 31-1-2003 when they retired from service on attaining the age of superannuation. Petitioner No. 3 retired on attaining the age of superannuation on 30-6-2002. He further argued that the controversy in hand is squarely covered by a Full Bench judgment of this Court in Kesar Chand v. State of Punjab, 1989 (II) RSJ 629 : [1988 (5) SLR 27 (Pb. & Hry.)] as well as by the judgments of this court in Joginder Singh v. State of Haryana, (1998) 1 SCT 795 : [1999 (4) SLR 214 (Pb. & Hry.)], Hazura Singh v. State of Punjab, 2003 (4) RSJ 336 : [2004 (2) SLR 719 (Pb. & Hry.)], Nasib Singh… v. The State Of Punjab & Ors.…, 1999 (4) RSJ 244 : [1999 (5) SLR 497 (Pb. & Hry.)] and Nathi Ram v. State of Haryana, C.W.P No. 15535 of 1997 decided on 17-9-1998. (supra).
5. In Kesar Chand's case (supra), the Full Bench while dealing with a similar controversy held as under:—
“Once the services of a work-charged employee have been regularized, there appears to be hardly any logic to deprive him of the pensionary benefits as are available to other public servants under Rule 3.17 of the Rules. Equal protection of laws must mean the protection of equal laws for all persons similarly situated. Article 14 strikes at arbitrariness because a provision which is arbitrary involves the negation of equality. Even the temporary or officiating service under the State Government has to be reckoned for determining the qualifying service. It looks to be illogical that the period of service spent by an employee in a work-charged establishment before his regularisation has not been taken into consideration for determining his qualifying service. The classification which is sought to be made among Government servants who are eligible for pension and those who started as workcharged employees and their services regularized subsequently, and the others is not based on any intelligible criteria and, therefore, is not sustainable at law. After the services of a work-charged employee have been regularized, he is a public servant like any other servant. To deprive him of the pension is not only unjust and inequitable but is hit by the vice of arbitrariness and for these reasons the provisions of sub-rule (ii) of rule 3.17 of the Rules have to be struck down being violative of Article 14 of the Constitution.”
6. It would also be relevant here to refer to rule 3.17A and 4.23 of the Punjab Civil Services Rules, Volume (2), which read as under:—
“3.17(A) (I) Subject to the provisions of rule 4.23 and other rules and expect in the cases mentioned below, all service rendered on establishment, interrupted or continuous, shall count as qualifying service;—
(i) Service rendered in work-charged establishment.
(ii) Service paid from contingencies.
Provided that after 1st January. 1973 half of the service paid from contingencies will be allowed to count towards pension at the time of absorption in regular employment subject to the following conditions:—
(a) Service paid from contingencies should have been in a job involving whole-time employment (and not part-time or for a portion of the day).
(b) Service paid from contingencies should have been in a type of work or job for which regular post could have been sanctioned e.g Malis, chowkidars, Khalasis etc.
(c) The service should have been one for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and which though not analogous to the regular scale of pay should bear some relation in the matter of pay to those being paid for similar jobs being performed by staff in regular establishment.
(d) The service paid from contingencies should have been continuous and followed by absorption in regular employment without a break.
(iii) Casual or daily rated service.
(iv) Suspension adjudged as a specific penalty.
3.17A (2) An interruption in the service of a Government employee caused by wilful absence from duty or unauthorized absence without leave, shall entail forfeiture of the past service,
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4.23 In the absence of a specific indication to the contrary in the service record, an interruption between two spells of service rendered under the State Government shall be treated as automatically condoned, and the pre-interruption service shall be treated as qualifying service for pension purposes, except where the interruption has been caused by resignation, dismissal or removal from service or due to participation in a strike, but the period of interruption itself shall under no circumstances be reckoned as qualifying service for pension purposes.”
7. The aforesaid view was further reiterated by this court in the cases of Hazura Singh and Nasib Singh (Supra). In Joginder Singh's case (supra), it has been held as under:—
“I am therefore, of the opinion that the words “half the period of service of such persons paid from contingency” occurring in sub-clause (i) of clause (f) of rule 3.17A are bad in law and are, accordingly, struck down.”
8. A conjoint reading of the rules, quoted above and the observations of this Court would reveal that it is by now well established that period of service rendered on daily-wage/work-charge prior to regularisation of service is liable to be counted for the purpose of gratuity and pension.
9. In view of the above, we are of the view that service rendered by the petitioners on daily-wage/work-charge basis should be counted as qualifying service for pensionary and other terminal benefits. The petitioners were working as a whole-time employee and were paid wages on monthly basis. Therefore, the period of service rendered by them on daily-wage/work-charge basis has to be reckoned while computing their pensionary and other terminal benefits.
10. Faced with the aforesaid situation counsel for the respondents, argued that as per circular dated 6-8-1993, an employee had to submit an option within a period of three months from the date of regularisation or from the date of issue of circular whichever is later, as to he/she intends to avail the pensionary benefits or to continue to be a matter of EPF. If the option was not given, within the stipulated period of three months, it was to be presumed that he/she intended to continue to be a member of EPF and in case, he/she opted for pensionary benefits, then he/she had to refund the entire amount of the employee contribution towards provident fund along with interest thereon in lumpsum for crediting the same to the Board's account for onward credit to his/her GPF account.
11. Learned counsel for the petitioner vehemently argued that petitioners are illiterate and no such circular as pointed out by the respondents, was got noted from them. The petitioners were always desirous and willing to opt for the pension scheme by counting the work-charge/daily-wage service. In support of his arguments, the learned counsel relied on a judgment of this Court in the case of Lilu Ram… v. State Of Haryana…., CWP No. 2476 of 1997, decided on 9-10-1997. The learned counsel for the respondents failed to show any materia that the circular dated 6-8-1993 was actually got noted in writing from the petitioners. In the absence of any such material, it can well be inferred that the petitioner had no knowledge about the options called by the respondents vide the aforesaid circular. Therefore, it is unreasonable to deny the pensionary benefits to the petitioners. Accordingly, the writ petition is allowed. The order at Annexure P4, dated 13-2-2004 is quashed. The respondents are directed to allow the petitioners to exercise their option in accordance with their circular dated 6-8-1993 within a period of one month of receipt of a certified copy of this order and give them the consequential benefits within two months thereafter subject to their fulfilling the conditions of eligibility for being governed under the aforesaid circular dated 6-8-1993.
12. Petition allowed.