CWP No. 10002 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 10002 of 2008 Date of Decision: May 18 , 2009 Mohinder Kumar Sharma ...... Petitioner Versus State of Haryana and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Sudhir Nar, Advocate for Mr.J.S.Maanipur, Advocate for the petitioner. Mr. Birender Singh Rana, Addl.AG, Haryana. **** 1. Whether Reporters of local papers 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? Ajay Tewari, J. The petitioner claims that his previous service which culminated into regular service without a single break should be counted for pensionary benefits. On May 07, 2009 the following order was passed:- “Learned counsel for the petitioner has handed over a copy of a Division Bench judgment of this Court in Hari Chand v. Bhakhra Beas Management Board and others reported as 2005(2) RSJ 373 to earned counsel for the respondents who seeks a short date to go through CWP No. 10002 of 2008 2 the same and distinguish it, if possible. Adjourned to 18.05.2009.” Learned counsel for the respondents is not in a position to distinguish the said judgment in which it was laid down as follows:- “After hearing counsel for the parties, this Court is of the opinion that the writ petition deserves to be allowed. In view of the pleadings on record, factual position is not in dispute. Petitioner had served respondents as a daily wager and thereafter as a regular employer for the period of more than 12 years. Qualifying period to get pension is only 10 years. If service rendered by the petitioner as daily wager is counted towards qualifying service, he will become eligible to get pension. A similar question came up for consideration before this Court in Mohan Singh's case (supra). After analysing facts of that case and by placing reliance on a Full Bench judgment of this Court in Kesar Chandvs. State of Punjab, 1998(2) PLR 223, it was opined that the period of work-charge service is required to be counted towards qualifying service. In the above-mentioned case, it was observed as under:- “Even otherwise Full Bench of this Court in Kesar Chand vs. State of Punjab, 1998(2) PLR 223, had 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 counted towards qualifying service. In Kesar Chand's case (supra) sub-rule (ii) CWP No. 10002 of 2008 3 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 vio0lative of Article 14 o the Constitution. Similarly, in Joginder Singh's case (supra), a Single Bench of this Court, while dealing with similar situation, has interpreted Rule 13.17(A) (f) & (g) of Rules and has opined as under :- “It will be evident from the aforesaid rule that it provides for the method by which the qualifying service is to be determined. Sub-clause (i) of clause (f) of Rule 3.7-A of the said Rules provides that even persons paid from contingencies are entitled to count half of their services as qualifying service provided the four conditions laid down in sub-clause (i) are fulfilled. It is the admitted position that the petitioner had work3ed for about 23 years in the respondent department but for two breaks that were not due to any default on his part. It will also be seen that the stipulation in sub-clause (i) that half the period of service is to be counted towards qualifying service is to be read along with the subsequent four conditions in the same rule. These conditions have been working as a whole-time employee against a job for which a regular post should have been sanctioned with the payment of salary being made on a monthly or daily basis and that the service paid from contingency should have been continuous and without any break. To my mind, the facts of the case clearly spell out that the petitioner fulfilled CWP No. 10002 of 2008 4 these four conditions. I am also of the opi9nion that the stipulation in sub-clause (i) of Clause (f) of Rule 3.17-A that only half the period of service is arbitrary and no logic or reason can be spelt out in it. In Kesar Chand vs. State of Punjab and others (supra), this Court while considering Rule 3.17 of the Punjab Civil Service Rules Vol.II which provided that if work-charged service was followed by regular employment, the period of work-charge service could not be taken into account for the purpose of determining the qaualifying service was quashed being arbitrary and unjust.” 7. When confronted with the ratio of judgments, referred to above, counsel for the respondents has failed to show any contrary judgment on account of which relief can be declined to the petitioner. This Court feels that order Annexure P/6 was passed by the respondents without noticing established law on the subject, as such, the same is liable to be quashed. 8. Accordingly, this writ petition is allowed, order Annexure P/6 dated 16.9.2002 is quashed, respondents are directed to count service of petitioner,rendered by him as daily wager towards qualifying service and sanction pension in his favour. Needful be done within a period of three months from the date of receipt of a copy of this order. On sanction of pension in his favour, petitioner is directed to return amount of service gratuity and D.C.R.G., received by him along with simple interest CWP No. 10002 of 2008 5 @ 7% (from the date of receipt of amount in question till its return), to the respondents within a period of six weeks. Arrears be also paid within period, referred to above.” In these circumstances this writ petition is allowed in the same terms as aforementioned Hari Chand' s case. (AJAY TEWARI) JUDGE May 18 , 2009 sunita