Mohan Singh v. State Of Haryana And Another

V.K Jhanji, J.:— The petitioner was appointed as a carpenter on 21.2.1953 in composite State of Punjab on daily wages. On 18.12.1958 the petitioner was appointed against a new post and his seniority was to be reckoned with from 21.2.1953 (Annexure P. 1). On bifurcation of the States, the petitioner's services were allocated to the State of Haryana. The petitioner attained the age of superannuation in the year 1967 and retired from service with effect from 3.11.1967 Haryana Roadways was not a pensionable department at the time when the petitioner retired from service and it was only on 24.9.1982 that the department became pensionable. However, under the scheme dated Page: 68524.9.1982 (Annexure P3) it was to apply to only those employees working in the transport department and who had retired on or after 1.7.1982 The petitioner challenged the scheme dated 24.9.1982 in this Court by way of Civil Writ Petiton No. 451 of 1987. The challenge was that there is no rationale in giving this cut of date i.e 1.7.1982 No written statement was filed in that writ petition and the writ petition was decided in favour of the petitioner on 2.2.1987 whereby Annexure, P-3 to the extent that the scheme was to confine to only those employees who had retired on or after 1.7.1932, was struck down. Civil Writ Petition No. 451 of 1987 was decided in the light of decision given by this Court in Civil Wirt Petition No. 1646 of 1985. The petitioner, after the decision of CWP No. 451 of 1987, made a representation to the respondents that in the light of decision of CWP No. 451 of 1987, he is entitled to pensionary benefits. Vide letter dated 273.1988, Accountant Genearal (A & E), Haryana granted gratuity to the petitioner but pension was not granted. The petitioner has come to this Court by way of this writ petition seeking a direction to the respondents to give him pensionary benefits.

2. The stand of respondent No. 2 i.e the General Manager, Haryana Roadways, Ambala is that the petitioner has worked from 21.2.1953 to 30.11.1958 on daily wage basis and from 1.12.1958 to 3.11.1967 on ad-hoc basis. Therefore, the services of the petitioner for the purpose of pensionary benefits was counted from the date of his ad-hoc appointment and as an ad-hoc employee he rendered service only for 8 years 11 months and 2 days. Therefore, he is not eligible for pension as he has not completed the minimum service of 10 years for the purpose as required under Rule 6.12(i) of CSR Volume II.

3. Learned counsel for the petitioner has raised three contentions; one that in the light of decision in CWP No. 451 of 1987, the petitioner is entitled to pension as respondents raised no objection at the time when order, Annexure P/3 was quashed to the extent that it limited pension to only those employees who had retired on or after 1.7.1982 His second contention is that under rule 3.17 of the Punjab Civil Services Rules, Volume II, the petitioner is entitled to all the pensionary benefits as temporary or officiating service has to be counted except in the establishments which were non-pensionable. It is not denied that the department became pensionable in the year 1982. He further contended that daily wage earners have not been excluded from granting of pensionary benefits. Under rule 3.17 of the Punjab Civil Services Rules, service rendered by the petitioner on daily wage basis has to be counted for the purpose of computing qualified service. His third contention is that admittedly the petitioner is a workman within the definition of workman under the Industrial Disputes act, 1947, and he having continued in service for more than 240 days, he must be taken to have been regularised after the completion of the said period in terms of the judgment in Piara Singh… v. State Of Haryana…., 1988 (4) SLR 739. He also laid stress that when he was appointed against a new post, it was made clear that his seniority has to be reckoned with effect from 21.2.1953 and as such he would be deemed to be in continuous regular service with effect from 21.2.1953

4. After hearing learned counsel for the parties at length, I find that this petition must succeed. Admittedly, the petitioner joined the department on 21.2.1953 on daily wages but he was appointed against a new post on 18.12.1953 and his seniority was to be reckoned with effect from 21.2.1953 (Annexure P-1). He continued in service till 3.11.1967 when he retired from the service. When the petitioner came to his Court in Civil Writ Petition No. 451 of 1987, he claimed that he is entitled to pensionary benefits and the cut of date of 1.7.1982 is illegal and unconstitutional The respondents never filed any written statement in response to that petition and the scheme was quashed to the extent it gave benefits only to those persons who retired on or after 1.7.1982 As a matter of fact, the objection as to whether the petitioner had completed the qualifying service was available to the State when Civil Writ Petition No. 451 of 1987 was allowed. The objection relates to the merits of the case which was available to the respondents at the time of decision of the case and since the same was not taken it would have been deemed to be considered and rejected.

5. Even otherwise full bench of this Court in Kesar Chand v. State of Punjab, 1988 (2) P.L.R 223 has held that under rule 3.17 of the Punjab Civil Services Rules, Volume II, period of service of a work-charged employee before their regularisation has to be computed towards qualifying service. In Kesar Chand's case (supra) sub-rule (ii) of rule 3.17 of the Punjab Civil Services Rules, Volume II, which provided that the period of service of work-charged establishment will not be counted while determining qualifying service, was struck down being violative of Article 14 of the Constitution.

6. In the present case also, the petitioner who was appointed on daily wages on 21.2.1953 but his services were regularised on 13.12.1958 and his seniority was to be reckoned with effect from 21.2.1953 i.e the date he was appointed in the department on daily wages. It would be unjust and inequitable in case the period from 21.2.1953 to 18.12.1958 is excluded while computing the qualifying service of the petitioner for grant of pensionary benefits. The Supreme Court in Bhagwati Prasad v. Delhi State Mineral De v. Corpn., 1990 LIC 126 has held that the persons who continue in service on daily wages for more than 3 years, would be entitled to confirmation even if they were unqualified. In the present case, it is not the case of the State that the petitioner was not qualified for being appointed to the post of carpenter. Thus, the action of the State in not treating the petitioner as regular with effect from 21.2.1953 is absolutely illegal, arbitrary and cannot be sustained in law.

7. Consequently, this writ petition is allowed and a direction is issued to the respondents to grant all pensionary benefits to the petitioner treating his entire service i.e with effect from 21.2.1953 to 3.11.1967 to be qualified for the purpose of grant of pensionary benefits. Since the petitioner had to come to this Court twice claiming the same relief, he is certainly entitled to interest @ 12% p.a from the date of superannuation till realisation. Respondents are further directed to finalise the pension case of the petitioner within three months. Costs are quantified at Rs. 2,000/-.

8. Petition allowed.