IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. . 4550 of 2010 along with CWP Nos. 4550,4622,5045, 5121, 5122, 5153, 5154, 5157, 5548, 5589, 5904, 5930, 6004, 6041, 6054, 6621, 6870, 6876, 6877, 6879, 6881, 6907, 6930, 6998, 6999, 7003, 7195, 7311, 7312, 7313, 7314, 6926, and 7406 of 2010. Decided on : 16.12.2010. 1. CWP No.4550 of 2010 Ravi Kumar ……Petitioner. Versus State of H.P. and another …. Respondents. 2. CWP No. 4622 of 2010 Dwarka Sood and others ..…Petitioners. Versus State of H.P. and another …. Respondents 3. CWP No. 5045 of 2010 Veena Kumari and others ..…Petitioners. Versus State of H.P. and others …. Respondents 4. CWP No. 5121 of 2010 Suman Kumar and another ….Petitioners Versus State of H.P. and another …. Respondents 5. CWP No. 5122 of 2010 Suresh Kumari ..…Petitioner. Versus State of H.P. and another …. Respondents 2 6. CWP No. 5153 of 2010 Urmil Chauhan ..…Petitioner. Versus State of H.P and others …… Respondents 7. CWP No. 5154 of 2010 Krishan Lal ..…Petitioner. Versus State of H.P and others …… Respondents 8. CWP No. 5157 of 2010 Brij Pal .…Petitioner. Versus State of H.P and Others … Respondents 9. CWP No.5548 of 2010 Desh Raj Sharma ..…Petitioner. Versus State of H.P and others …… Respondents 10. CWP No. 5589 of 2010 Kalam Singh Rikhta ..…Petitioner. Versus State of H.P and others …… Respondents 11. CWP No. 5904 of 2010 Rakesh Kumar .. ..…Petitioner. Versus State of H.P and another …… Respondents 12. CWP No. 5930 of 2010 Madan Lal ..…Petitioner. Versus State of HP and others …… Respondents 3 13. CWP No. 6004 of 2010 Nitya Dev and Others ..…Petitioners Versus State of HP and another …… Respondents 14. CWP No. 6041 of 2010 Tej Bir Singh ..…Petitioner. Versus State of H.P. and others …… Respondents 15. CWP No. 6054 of 2010 Utam Chand Sharma ..…Petitioner. Versus State of H. P. and others …… Respondents 16. CWP No. 6621 of 2010 Narender Singh Katoch …….Petitioner Versus State of H. P. and another …… Respondents 17. CWP No. 6870 of 2010 Saroj Sipahiya ..…Petitioner. Versus State of H.P and others …… Respondents 18. CWP No. 6876 of 2010 Niranjan Sharma ..…Petitioner. Versus State of H.P and another …… Respondents 19. CWP No. 6877 of 2010 Manoj Kumar Sharma ..…Petitioner. Versus State of H.P and another …… Respondents 4 20. CWP No. 6879 of 2010 Sandhya Devi Sharma ..…Petitioner. Versus State of H. P. and another …… Respondents 21. CWP No. 6881 of 2010 Saroj Kashyap ..…Petitioner. Versus State of H. P. and another …… Respondents 22. CWP No. 6907 of 2010 Gana Nand Sharma ..…Petitioner. Versus State of H. P. and another …… Respondents 23. CWP No.6930 of 2010 Rita Verma ..…Petitioner. Versus State of H.P and another …… Respondents 24. CWP No. 6998 of 2010 Narayan Dutt and others ..…Petitioners. Versus State of H.P and another …… Respondents 25. CWP No. 6999 of 2010 Mohinder and others ..…Petitioners. Versus State of H.P and another …… Respondents 26. CWP No. 7003 of 2010 Anil kumar and others ..…Petitioner. Versus State of H.P and another …… Respondents. 5 27. CWP No. 7195 of 2010 Madan Lal Sharma and others …….Petitioners. Versus State of H. P. and another …… Respondents. 28. CWP No. 7311 of 2010 Tej Singh ..…Petitioner. Versus State of H. P. and another …… Respondents 29. CWP No. 7312 of 2010 Saran Dass .…Petitioner. Versus State of H.P and another …… Respondents 30. CWP No.7313 of 2010 Naresh Kumar ..…Petitioner. Versus State of H. P. and another …… Respondents. 31. CWP No. 7314 of 2010 Surajmani ..…Petitioner. Versus State of H.P and another …… Respondents. 32. CWP No. 6926 of 2010 Almi Devi Thakur ..…Petitioner. Versus State of H.P and another …… Respondents. 33. CWP No. 7406 of 2010 Manohar Lal .…Petitioner. Versus State of H.P and others …… Respondents. 6 Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Mr. A.K. Vashistha, Mr. Bhupender Thakur, Mr. Varun Thakur, Mr. Neel Kamal Sood, Mr. Bhuvnesh Sharma, Mr. Ramakant Sharma, Mr. Subhash Sharma, Mr. R.S. Gautam and Mr. Ajay Mohan Goel, Advocates For the respondents: Mr. R.K. Bawa Advocate General with Mr. J.K. Verma, Dy. Advocate General Justice Kurian Joseph, Chief Justice (Oral). Petitioners in all these cases are aggrieved basically since they are not granted increments during the period of their tenure/contract service. According to the petitioners, all of them have been recruited through the permitted process of recruitment; however, at the time of appointment they have been appointed on tenure/contract basis. It is contended by the petitioners that the temporary capacity was followed by regular appointment and hence they are entitled to get the period of tenure/contract service rendered by them counted for the purpose of increments and pension. 2. The learned Advocate General submits that the petitioners have been appointed in terms of the policy of the State Government from time to time. The petitioners are bound by the terms of appointment. The petitioners, in any case, as far as contractual appointments are concerned have executed specific agreements and parties are bound by the terms of the agreement and nothing more. It is also contended that the petitioners have 1 Whether reporters of the local papers may be allowed to see the judgment? 7 not been appointed through the regular process of recruitment either by the Public Service Commission or by the Subordinate Services Selection Board and for that only reason, they are not entitled for any relief and regularization granted to them itself is a generous gesture on the part of the Government since after regularization they are put in regular scale and are treated at par with other regular employees. It is further submitted that this generous gesture shown by the Government is in deviation of the normal channel of recruitment. It is not as if any injustice was done to the petitioners. Indulgence in terms of equity and justice was granted by offering them regular appointment. Hence, there is no justification, in their request for counting the period as qualifying service for increments or pension as far as tenure/contract appointment is concerned. 3. Learned counsel for the petitioners in reply submitted that all of them have been recruited through regular channel of recruitment and that there is no back door entry. It is also submitted that they have been put in the scale at the time of appointment and hence they are entitled to be treated at par with those employees appointed in the scale. Still further it is submitted that in the case of the employees who have been appointed on ad hoc basis and whose ad hoc service was followed by regular appointment, they are in any case given benefit of increments during the period of ad hoc service and still further the said period is counted for the purpose of pension. 4. As far as ad hoc appointment followed by regular appointment is concerned, there is no dispute that said ad hoc period is liable to be counted for the purpose of increments and that position has become final in view of the decision in LPA No. 36 of 2010. However, it is to be specifically noted that in case of 8 such ad hoc appointment, the Government itself had issued a clarification initially in the year 1987 and thereafter on 2.11.1995 that the ad hoc Lecturers appointed on running grade and getting increments will be entitled to count such period for the purpose of pension. Therefore in the matter of the entitlement of ad hoc appointees, appointed on running scale and whose appointments are followed by the regular appointments without break the position is settled that they are entitled to increments during the period of ad hoc service. On the first principle of service jurisprudence, it is also settled position that any period counted for the purpose of increment has to be counted for the purpose of pension as well since the same is a qualifying service, though this vice versa is not invariably so. 5. We may now analyse the basis of the claim of the petitioners as far as the tenure and contractual period is concerned. Under the CCS ( Pension) Rules, 1972, qualifying service is defined in Rule 3(1)(q) which reads as follows: “ ‘Qualifying Service’ means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules’ 6. Rule 13 provides for commencement of the qualifying service which reads as follows: “ Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post: Provided further that- (a) in the case of a Government servant in a Group ‘D’ service or post who held a lien or a suspended 9 lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and (b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity. (c) the provisions of Clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19. 7. A conjoint reading of the above provisions would make the position clear that a person first appointed in officiating or temporary capacity and in whose case such appointment is followed by a substantive appointment either in the same or subsequent post such period of temporary service without break is liable to be counted as qualifying service. Qualifying service for the purpose of CCS (Pension) Rules, 1972 means a service which qualifies for the purpose of pension and gratuity. The service counted for the purpose of increments will be qualifying service for the purpose of pension since a person is granted increment in a scale only when that person is entitled to count that service as qualifying service in terms of Rule 13 of the CCS (Pension) Rules, unless and otherwise carved out by specific agreement or contract. Contract service as such is not defined in any of the Rules. However, there is one reference to count contract service as qualifying service towards pension under Rule 17 of the CCS ( Pension) Rules which reads as follows: “(1) A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may opt either- 10 (a) to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service; or (b) to agree to refund to the Government the monetary benefits referred to in Clause (a) or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable. (2) The option under sub-rule(1) shall be communicated to the Head of Office under intimation to the Accounts Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable service, or if the Government servant is on leave on that day, within three months of his return from leave, whichever is later. (3) If no communication is received by the Head of Office within the period referred to sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract.” 8. The position under Rule 17 as extracted above, it may be noted is that it is not to count the said service rendered under the contract for the purpose of qualifying service for pension but for the purpose of continuation of contributory provident fund. In other words, merely because an employee under a contract is permitted to contribute to the Provident Fund that does not mean that service would be qualifying service for the purpose of pension. The purpose of Rule 17 is only to enable an employee to opt for continuation of the Provident Fund already contributed by him when his contract employment is followed by regular appointment in substantive post either in the same post or in other service. 9. Tenure service is defined under Fundamental Rules. Rule 9(30-A) is as follows: 11 “ Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period.” 10. The question before us is whether the contract or tenure service is liable to be counted for the purpose of increment and as qualifying service for the purpose of pension? 11. An appointment letter is an offer of appointment, which contains the terms of appointment. As far as contract appointment is concerned, we are informed that apart from the offer of the appointment, all the appointees have executed separate agreements also. If that be so, whole entitlement in respect of the benefits flowing out of that contract service will be governed by the terms and conditions of the agreement as agreed to between the parties. The contention advanced by the learned counsel for the petitioners is that though the appointing authority has used the expression as contract service, for all purposes it is temporary service. Whether a temporary appointee is entitled to count that service for the purpose of increments as qualifying service when followed without interruption by regular appointment will depend on several factors. It is for the Government ultimately to decide whether temporary service by way of contract service followed by regular appointment should be counted for the purpose of increment or as qualifying service for pension, adverting also to the submission that the very purpose of increment is appreciation of performance. It will also be open to the contract teachers to bring to the notice of the Govt. that they are now paid vacation salary. 12. However, as far as tenure service is concerned, we find that the said expression is used as synonymous to ad hoc. Just as an ad hoc appointee is put on running grade, tenure appointee is also on running grade. Therefore there is no 12 point in taking a different stand in the case of tenure appointees. As far as ad hoc appointees are concerned, the State has accepted and implemented the judgment in LPA No. 36 of 2000. Therefore, all the tenure appointees, appointed on running grade and followed without break by regular appointment are entitled to count their service period for increments and pension. 13. In the above circumstances, all these writ petitions are disposed of as follows:- (1) The tenure appointees in the education department if appointed without break in regular service shall be granted increments during the tenure period and the said service will count for pension, as in the case of ad hoc appointees in the education department. (2) As far as contract teachers are concerned, the 1st respondent may consider their case for increments or for counting the service as qualifying service for pension, having regard to all relevant factors, some of which are referred to above. It will be open to the petitioners to jointly also file appropriate representations. Orders in that regard will be passed within four months from the date of receipt of a copy of this judgment/representations. 14. The petitions so also the pending CMP(s), if any, stand disposed of in the above terms. (Justice Kurian Joseph), Chief Justice 16th December, 2010 ( Justice V.K. Sharma), LSP/Jai Judge.