C.W.P. No.335 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.335 of 2008 DATE OF DECISION: MAY 27, 2009 Parshotam Singh .....PETITIONER Versus The Managing Director/Secretary HVPN, Panchkula and another ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Naveen Daryal, Advocate, for the petitioner. Mr. Narender Hooda, Advocate, for the respondents. .. SATISH KUMAR MITTAL, J. The petitioner, who has retired from the post of Lineman from the office of Sub Divisional Officer (Operation), Sub Division, Uttar Haryana Bijli Vitran Nigam, Nilokheri, has filed this writ petition under Article 226 of the Constitution of India for quashing the order dated 14.12.2007 (Annexure P9) whereby the claim of the petitioner for counting the work charge service from 1.1.1969 to 22.11.1976 towards qualifying service for the purpose of pensionary benefits, has been rejected; with a further direction to the respondents to count the said work charge service towards qualifying service for the purpose of pensionary benefits. The petitioner joined the service of the respondents as work charge T-Mate on 1.1.1969. Thereafter, the services of the petitioner were C.W.P. No.335 of 2008 -2- regularized and he was posted as Assistant Lineman on regular basis on 23.11.1976. The petitioner has retired from service on 31.7.2004 as regular Lineman on attaining the age of superannuation. On his retirement, the petitioner has been released the pensionary benefits on the basis of his actual regular qualifying service i.e. from 23.11.1976 to 31.7.2004. The petitioner filed claim by way of representation to the respondents for counting his work charge service from 1.1.1969 to 22.11.1976 towards qualifying service for the purpose of pensionary benefits in terms of the decision of the Full Bench of this Court in Kesar Chand v. State of Punjab and others, 1989(II) RSJ 629, wherein it was held that once the services of a work-charged employee have been regularised, 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 Punjab Civil Services Rules, Volume-II (hereinafter referred to as `the Rules'), and further in view of the amendment made by the Haryana Government in the aforesaid Rule vide notification dated 4.2.1992, which was adopted by the respondent-Board/Nigam vide Memo dated 23.6.1993. The representation filed by the petitioner has been rejected by respondent No.2 vide order dated 14.12.2007 (Annexure P9) on the ground that the petitioner had not exercised the option for availing the pensionary benefits in terms of the Instructions dated 6.8.1993 and 9.8.1994. Therefore, the work charged service rendered by the petitioner before the regular service is not to be counted towards qualifying service for the purpose of pensionary benefits. The petitioner has challenged the said order in the instant petition. It is the case of the petitioner that from 1.1.1969 to 22.11.1976 he had worked as T-Mate on work charge basis and thereafter his services C.W.P. No.335 of 2008 -3- were regularized and he was offered/promoted to the post of Assistant Lineman w.e.f. 30.11.1976. It is further the case of the petitioner that there is no break in service of the petitioner. It is also the case of the petitioner that after regularization of his services, he became member of the pension scheme. But on his retirement, the respondents have released the pensionary benefits to the petitioner only on the basis of his actual regular service from 23.11.1976 to 31.7.2004 without taking into account the work charge service, which, according to the Full Bench in Kesar Chand's case (supra), was to be taken into account for the purpose of granting the pensionary benefits. It is further the case of the petitioner that vide Notification dated 4.2.1992 the State Government amended the provisions of Rule 3.17 of the Rules, according to which, the entire service rendered by an employee as work charged shall be reckoned towards retirement benefits provided, (a) such service is followed by regular employment; (b) there is no interruption in the two or more spells of service or the interruptions fall within condonable limits; and (c) such service is a whole time employment and not part time or portion of day. The said Circular has also been adopted by the respondent-Nigam, but in spite of that the work charge service rendered by the petitioner has not been taken into account towards qualifying service while calculating the pensionary benefits payable to the petitioner. In the written statement, the respondents have taken the same stand as they had taken while rejecting the claim of the petitioner vide order dated 14.12.2007 (Annexure P9). I have heard the arguments of the learned counsel for the parties. Concededly, the petitioner worked as T-Mate on work charge C.W.P. No.335 of 2008 -4- basis from 1.1.1969 to 22.11.1976. Thereafter his services were regularized without any break. On 31.7.2004 the petitioner had retired from the services of the respondents as regular Lineman. It is also conceded position that the retiral benefits of the petitioner have been calculated and released on the basis of the actual regular service rendered by the petitioner from 23.11.1976 to 31.7.2004. In Kesar Chand's case (supra), the Full Bench of this Court has held as under:- “Once the services of a work-charged employee have been regularised, there appears to be hardly any logic to deprive him of the pensionary benefits as are available to other public servants under Rule3.17 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 work-charged employees and their service regularised subsequently, and the other is not based on any intelligible criteria and, therefore, is not sustainable at law. After the services of a work-charged employee have been regularised, 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.” In view of the declaration made in the aforesaid judgment, the C.W.P. No.335 of 2008 -5- Haryana Government vide Notification No.1/2(55)88-2FR-II dated 4.2.1992 amended Rule 3.17 of the Rules with regard to the counting of service rendered by an employee on work charge basis towards pensionary benefits. The respondent-Nigam vide Memo dated 23.6.1993 has adopted the said amendment. In spite of that, the claim of the petitioner has been rejected by the respondent-Nigam on the ground that the petitioner has not opted to count his work charge service towards pensionary benefits within three months from the date of issuance of the Instructions dated 6.8.1993, copy of which has been annexed as Annexure R-1. It is further stated that thereafter another opportunity was given to the employees to opt for counting of the work charge service rendered by them, towards pensionary benefits vide Instructions dated 9.8.1994, copy of which has been annexed as Annexure R-2, but the petitioner again did not opt for counting of the work charge service towards pensionary benefits. I have gone though the aforesaid two Instructions Annexures R-1 and R-2. The Instructions dated 6.8.1993 (Annexure R1) provide that the pensionary benefits would be subject to the condition that on regularization from work charged to regular employee, the employee has to submit an option within a period of three months from the date of regularization or from the date of issuance of this Circular, whichever is later as to whether he/she intends to count the period of work charged service rendered by him/her towards pensionary benefits or intends to continue to be a member of EPF. The option once furnished will be final and not to be allowed to be changed in any circumstances. In case, option is not given within the stipulated period of three months, it will be presumed that the employee intends to continue to be a member of EPF. It is further C.W.P. No.335 of 2008 -6- provided that in case the employee opts for pensionary benefits, he/she has to refund the entire amount of Employer's contribution along with interest thereon, towards their EPF in lump sum for crediting to the Board's account. The employee's contribution along with interest has to be deposited with the Board for crediting to his/her GPF account. Clause 4 of these Instructions specifically provides that the Instructions may please be got noted from all the employees and acknowledge the receipt of the letter. Vide Instructions dated 9.8.1994 (Annexure R2), a fresh option was invited. Clause 3 of these Instructions provide that these Instructions be got noted from all the employees and acknowledge the receipt of the letter. In the present case, it is the case of the petitioner that these Instructions were not got noted from him nor he signed any receipt acknowledging the option offered by these two Instructions. Counsel for the respondents during the course of arguments conceded that there is no written receipt obtained from the petitioner. However, he stated that these Instructions were widely circulated in the Department. The respondents have not placed any material on the record which shows that the Instructions dated 6.8.1993 and 9.8.1994 were actually got noted from the petitioner. In absence of any such material, it cannot be inferred that the petitioner had acknowledged about the options called by the respondents by the aforesaid Notifications. Therefore, in my opinion, on a reading of condition No.2(ii) of the Notification dated 6.8.1993, it cannot be presumed that the petitioner did not want to count his work charge service towards pensionary benefits or he intends to continue to be a member of EPF. In the present case, the respondents have treated the petitioner as a member of the pension scheme from the date of regularization of his service, that is why, C.W.P. No.335 of 2008 -7- they have calculated the qualifying service of the petitioner for the purpose of pension w.e.f. 23.11.1976 to 31.7.2004. It is not the case of the respondents that up to the date of issuance of the Instructions dated 6.8.1993 (Annexure R1), the petitioner was a member of the EPF Scheme, therefore, from him, an option was required. As per the written statement, the petitioner never remained a member of the EPF after he became the regular employee of the respondent-Board. Therefore, in my opinion, with the issuance of Notification dated 6.8.1993, the petitioner was not required to opt for the pensionary benefits. This Circular requires option from only those work charged employees whose services were regularized as to whether he or she intends to continue to be a member of EPF or he/she wants his/her work charged service to be counted towards pensionary benefits. Since the services of the petitioner were regularized in the year 1976, perhaps for that reason, this Circular was not got noted from the petitioner. Therefore, in my opinion, the respondents have illegally denied to the petitioner the benefit of the work charged service w.e.f. 1.1.1969 to 22.11.1976 towards qualifying service for the purpose of calculation and grant of pensionary benefits to him. Though in the written statement, it has been stated that there is no record regarding depositing of the EPF share in their office, but in case the share of the employer's contribution towards the EPF during the period of the said work charged service is concerned, the same may be got deposited with interest from the petitioner if the same has been withdrawn by him. In view of the above, the writ petition is allowed and the impugned order dated 14.12.2007 (Annexure P9) is hereby quashed, and the respondents are directed to count the work charged service rendered by the C.W.P. No.335 of 2008 -8- petitioner w.e.f. 1.1.1969 to 22.11.1976 towards qualifying service by treating that he had opted for counting of the work charged service towards pensionary benefits. In case the share of the employer's contribution has been withdrawn by the petitioner, the same may be got deposited from the petitioner with interest. May 27, 2009 (SATISH KUMAR MITTAL) vkg JUDGE