Civil Writ Petition No.17955 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.17955 of 2010 Date of decision : 22.11.2011 Ram Chander ....PETITIONER(S) VERSUS State of Haryana and others ....RESPONDENT(S) CORAM : HON'BLE MR.JUSTICE MAHESH GROVER *** Present : Mr.Gaurav Jain, Advocate, for the petitioner. Mr.Harish Rathee, Senior DAG, Haryana, for the respondent(s)-State. *** MAHESH GROVER, J (Oral) The petitioner prays that he be considered for grant of pension/retiral benefits while taking into consideration the service which he has rendered with the respondents on daily wage basis. Subsequent to the death of the son of the petitioner in a terrorists attack, he was appointed by the respondents on 24.01.1992 as a peon on daily wage basis in the office of the Municipal Committee, Tohana, which service continued on the same terms upto 24.07.1995. Subsequently, w.e.f. 25.07.1995, the petitioner was absorbed as a regular peon/employee in the office of Municipal Committee, Tohana in the pay scale of Rs.750-900, which pay was revised from time to time. In the year 1999, the Octroi Department of the Municipal Committee, where the petitioner was employed, was abolished and after that Government of Haryana took a policy decision for adjustment/absorption of such employees. The Civil Writ Petition No.17955 of 2010 2 petitioner was absorbed in Government service w.e.f. 05.02.2001. He superannuated from this post on 31.03.2006. He, thus, prays that the previous service, which he has rendered, be calculated and he be awarded benefit of pension appropriately. The respondents have denied his claim and have stated that the petitioner does not have the qualifying service so as to enable him to be made admissible to the benefit of pension. The facts, however, have not been disputed and the only question survives is whether the previous service, rendered by the petitioner on daily wage basis and the service rendered by him prior to his absorption in Government service, is to be counted for the purposes of reckoning his pension or not? Learned counsel for the petitioner contends that such service necessarily has to be counted and has placed reliance on the decision of this Court rendered in case Kashmir Chand versus Punjab State Electricity Board and others 2005 (4) SCT 298 wherein this Court has observed that service rendered by an employee even on work charge basis is to be considered valid for grant of pension. Likewise, in various other judgments delivered in cases Kesar Chand versus State of Punjab 1989 (II) Recent Service Judgments 629, Malook Singh versus State of Punjab 1992 (2) Service Cases Today 133, Joginder Singh versus State of Haryana 1998 (1) SCT 795, Hazura Singh versus State of Punjab 2003 (4) RSJ 336 and Nasib Singh versus The State of Punjab 1999 (4) SCT 233 (P&H) : 1999 (4) RSJ 244, this Court has made the similar observations. Rule 3.17A and 4.23 of Punjab Civil Services Rules, Volume (2) being relevant for the purposes of consideration of the controversy reads as under:- Civil Writ Petition No.17955 of 2010 3 “3.17(A) (1) Subject to the provisions of Rule 4.23 and other rules and except 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 Ist 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 willful absence from duty or unauthorised basence without leave, shall entail forfeiture of the past service. 4.23. In the absence of a specific indication to the contrary in the service record, an interruption between Civil Writ Petition No.17955 of 2010 4 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.”. The facts, being not in dispute, it is admitted that the petitioner was working on daily wage basis from 24.01.1992 to 24.07.1995 whereupon he was regularized and subsequently absorbed in Government service on 05.02.2001 and retired from service in the year 2006. Therefore, applying the ratio of the aforesaid judgments, I am of the considered opinion that the petitioner cannot be denied the benefit of the service, rendered by him, on daily wage basis before his regularization for the purposes of considering him, admissible to the benefits of pension. In Kesar Chand's Case (supra), the Full Bench has observed as under:- “Once the services of a work-charged employees 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 regularization has not been taken into consideration for determining his Civil Writ Petition No.17955 of 2010 5 qualifying service. The classification which is sought to be made among Government servants who are eligible for pension and those who started as work-charged 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.” For the aforesaid reasons, the writ petition is allowed, impugned order dated 11.01.2010 (Annexure P-3) is quashed and the respondents are directed to re-determine the issue and while taking into consideration the service rendered by the petitioner on daily wage basis w.e.f. 24.01.1992 till 24.07.1995 his pension be determined and all the consequential benefits be released to him within a period of four months. (MAHESH GROVER ) November 22, 2011 JUDGE mamta