IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2070 of 2005 Date of Decision: 17.2.2009 State of Haryana and another. ....... Appellants through Shri O.P.Sharma,Additional Advocate General, Haryana. Versus Smt.Kishan Devi. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? 4. .... Mahesh Grover,J. This appeal is directed against the judgments and decrees dated 7.2.2004 and 19.11.2004 passed respectively by the Additional Civil Judge (Senior Division),Rewari (hereinafter described as `the trial Court') and the Additional District Judge, Rewari (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiff-respondent was decreed and the appeal of the defendants-appellants was dismissed. The respondent filed a suit for declaration on the averments R.S.A.No.2070 of 2005 -2- ... that her husband-Kalu Ram served as a part-time sweeper in Government High School, Bolni from 1959 to 22.9.1993. He had filed Civil Suit No.1562 of 1989 for regularisation of his service, which was decreed on 5.1.1994. Since the terms of the decree were not clear, he had filed an appeal which was accepted on 7.3.1995 and consequently, his service was regularised as permanent employee from 19.4.1988 to 22.9.1993 when he retired. Kalu Ram died on 10.10.1998 and according to the respondent, she as one of his legal heirs, had received arrears of salary from the appellants. It was pleaded by the respondent that since her husband had served continuously for 34 years, he was entitled to ordinary pension from the appellants from 22.9.1993 to 10.10.1998 and thereafter, she was entitled to family pension. It was also pleaded by her that she was entitled to arrears of family pension from 10.10.1998 along with interest at the rate of 24% per annum. She averred that a legal notice was served by her on the appellants, but no heed was paid by them and hence, she was constrained to file the suit. The appellants contested the suit and averred that Kalu Ram was merely working on part-time basis and his service was regularised from 19.4.1988 to 21.9.1993 and since the period of regular service was less then 10 years, no pension was payable to him. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to get the pension sanctioned in favour of her husband from 22.9.93 to 10.10.98 along R.S.A.No.2070 of 2005 -3- ... with interest on the arrears of his pension?OPP 2. Whether the plaintiff is entitled to family pension from 10.10.98 and arrears of the same along with interest @ 24% p.a.?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Whether the suit is bad for non-joinder of necessary parties?OPD 5. Whether the plaintiff has no locus standi to file the present suit?OPD 6. Relief. After appraisal of the entire evidence on record, the trial Court concluded that the part-time service rendered by Kalu Ram was required to be counted for the purpose of grant of pensionary benefits to him and his family and accordingly, it decreed the suit of the respondent. It, however, directed that the respondent was entitled to the arrears of pension for 3 years and 2 months prior to the institution of the suit and she was entitled to the family pension and its arrears from 10.10.1998 along with interest at the rate of 9% per annum. In appeal, the findings of the trial Court were affirmed, but the direction with regard to the restriction of the arrears to three years and two months was set aside. Hence, this appeal has been filed by the appellants. Learned counsel for the appellants contended that the findings R.S.A.No.2070 of 2005 -4- ... of the Courts below are erroneous as it was not a case where deceased-Kalu Ram was working on ad hoc or temporary basis, but was a part-time employee. He submitted that by no stretch of imagination, the service rendered on part-time basis could be counted for grant of pensionary benefits as claimed by the respondent and as granted by the Courts below. No one has put in appearance on behalf of the respondent. I have thoughtfully considered the contentions raised by the learned counsel for the appellants and have scrutinized the record. A perusal of the written statement filed by the appellants reveals that their categoric stand was that Kalu Ram was merely a part-time sweeper. This fact was, however, denied by the respondent while filing her replication. The crucial aspect of the matter is the testimony of DW2-Siri Krishan, Principal, Government Senior Secondary School, Garhi Bolani. This witness deposed that he had brought the service record of Kalu Ram. According to that record, DW2 stated that Kalu Ram had been working as Sweeper on part time basis in his school since 22.9.1962 and his service was regularised on that post w.e.f. 19.4.1988. He further testified that prior to 19.4.1988, Kalu Ram was being paid according to the rates fixed by the Deputy Commissioner. It was also stated by DW2 that Kalu Ram used to work for ten months in a year before the aforesaid date and nothing was paid to him for the summer vacation. In view of the deposition of DW2-Siri Krishan, Kalu Ram can, at best, be equated with the status of a daily wager and he had served the R.S.A.No.2070 of 2005 -5- ... appellants uninterruptedly from 22.9.1962 till 22.9.1993, though his service was regularised w.e.f. 19.4.1988. In Kesar Chand Versus State of Punjab and others, AIR 1988 P&H 265, a Full Bench of this Court held as under:- “Once the services of a work-charged employee have been regularised, there is no 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 work-charged employees and their services regularised 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 regularised, he is a public servant like any other servant. To deprive him of the pension is not only unjust and inequitable R.S.A.No.2070 of 2005 -6- ... 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 would be liable to be struck down being violative of Art.14 of the Constitution. The fact that the authorities had granted exemption from rules in certain cases would not be justifiable reason for excluding others from the grant of pension and gratuity benefits. For this reason too, rule 3.17(ii) is bad at law, as it enables the Government to discriminate between employees similarly situated.” In Nasib Singh Versus State of Punjab, 1999(4) S.C.T. 233 (P&H), a learned Single Judge of this Court held that the ad hoc service followed by regularisation will count towards qualifying service for computing the pension. On the same analogy, the service of a daily wager followed by regularisation is required to be counted for grant of pensionary benefits to him or her. In the instant case, Kalu Ram was,concededly, working on part- time basis since 1962 and was being paid as per the rates fixed by the Deputy Commissioner. He used to work for ten months in a year and thus, falls in the category of a daily wager or a temporary employee. In this view of the matter, the service rendered by Kalu Ram prior to his regularisation w.e.f. 19.4.1988 deserves to be counted for computing pensionary benefits. Therefore, there is little hesitation in holding that the findings R.S.A.No.2070 of 2005 -7- ... recorded by the Courts below do not warrant any interference. No substantial question of law has arisen for determination in this appeal which is held to be without any merit and is dismissed. February 17,2009 ( Mahesh Grover ) “SCM” Judge