IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 7396 of 2008 Date of decision: 21.02.2011 ________________________________________________________________ Amar Singh. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Mr. Ranjan Sharma and Mr. Rajesh Verma, Advocates. For the respondents: Mr. J.S. Guleria, Assistant Advocate General. V.K. Sharma, J. (Oral). Though the petition has been filed for grant of numerous reliefs, yet at the time of hearing it has been restricted only in respect of the following claims, vide para 7(i) to (iii) and (v), as the remaining reliefs have already been granted to him by the respondents: “7(i) That the respondents may be directed to give the benefit of pension to the applicant on the basis of 19 years & 10 months of qualifying service as mentioned in ground(s) (c) & (d) or 12 years and 4 months of qualifying service as mentioned in ground (e) & (f) of the OA, forthwith. (ii) that the respondents may be directed to give the benefit of service gratuity to the applicant either on the basis of 19 years and 10 months of qualifying service or alternatively 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ....2... on the basis of 12 years and 4 months of qualifying service as mentioned in ground(g) of the OA, forthwith. (iii) That in the alternative, to relief(s) (I) & (ii) the respondents may be directed to give the benefit of pension, gratuity etc. w.e.f. the date of his retirement on 30.9.2000 as per the Judgment passed by the Hon'ble tribunal recently forthwith. (v) That the respondents may be directed to release the arrears of pension, gratuity, leave encashment etc. as admissible, alongwith interest @ 18% per annum since the retirement till realisation forthwith.” 2. The respondents have taken the following stand vide paras 1 and 2 of preliminary submissions: “1. That the present petition is not maintainable as no legal or fundamental right of the applicant has ever been infringed in any manner. The applicant/petitioner was regularized w.e.f. 1.1.96 and he joined duty on 28.3.98 as work- charged beldar. He was entitled to get all benefits w.e.f. 1.1.96. He served in the respondent department for 4 years and 9 months and served in the respondent department for 4 years and 9 months and after reaching on the age of superannuation, he retired on 30.9.2000. All eligible beneficial claims of a retiree i.e. increments/arrear/GPF and leave encashment were paid to petitioner vide voucher No. 225 dt. 31.3.99 and voucher No. 22, 23 & 24 dt. 20.4.2001 respectively by the Assistant Engineer, Sihunta Sub Division, HPPWD, Sihunta. 2. That as far as gratuity and pension benefits are concerned the petitioner is not entitled for these benefits and he had served in the respondent department less than 5 years. As per pension Rules when the service is below 5 years the temporary employees is not eligible for any grant of terminal gratuity. Hence the claim of the petitioner is not maintainable;e in the eye of law, the petition may be dismissed on the score only.” 3. A rejoinder, refuting the above stand and reiterating the averments set up in the petition, has been filed. 4. The learned counsel for the petitioner submits at the very outset that as he had completed 10 years of service as a daily rated beldar with 240 days of continuous service in each calendar year during the period 1986 to 1995, he was regularized w.e.f. 01.01.1996 and ultimately retired on 30.09.2000 on attaining the ...3... age of superannuation. Thus, the petitioner had 10 years' daily rated and 4 years and 9 months' regular service to his credit. 5. In so far as the claim for pension is concerned, the petitioner is placing reliance on the law laid down by this Court in State of H.P & others vs. Sarab Dayal, Latest HLJ, 2007 (HP) 1292. Para 27 of the judgment, being relevant, is extracted below: “27. In this case even as per the man days chart, the employee has completed more than 240 days in each calendar year w.e.f. 1.1.1975. He was regularized as work charged beldar on 28.2.1980 and retired on 31.5.1987. He has thus rendered 5 years, 2 months service on daily wage, half of which works out to 2 years, 7 months. His regular service is 7 years, 3 months and 14 days. Adding half of his daily waged service, i.e. 2 years, 7 months, his total services comes to 9 years and 10 months. Even if the stand of the petitioner is accepted that he only joined on 18.3.1980, his total service still works out to 9 years, 9 months and 14 days. As per Rule 49(3) the complete quarter has to be counted as 6 months and, therefore, the petitioner has 10 years service. The respondents are directed to treat this as his qualifying service, calculate the pension and pay the same to the employee accordingly. The arrears of pension and pension be released to the employee latest by 31st December, 2007. The petitioner­State shall also pay interest at the rate of 71/2% per annum from the date the pension fell due till date of deposit/payment of the same. The writ petition is disposed of in the aforesaid terms with no order as to costs.” 6. On the above analogy, the petitioner had served the respondent department for 9 years and 9 months, i.e., half of daily rated service of 5 years and 4 years 9 months of regular service. 7. Regarding the claim for gratuity, the petitioner seeks support from a judgment rendered by a learned Single Judge of this ...4... Court in State of H.P. vs. Lashkari Ram, 2008 (1) Shimla Law Cases 245, wherein it has been held as under vide paras 21 and 22 of the report: “21. In the present case, the Controlling Authority while calculating the gratuity payable to the Workman has counted the entire period from March, 1982 to 31.10.2001, i.e. Twenty years and has directed the Executive Engineer, Irrigation & Public Health Division, Sarkaghat to pay a sum of Rs. 53,873/­ initially and after deducting a sum of Rs. 17,269/­ finally directed the State to pay sum of Rs. 36,604/­. 22. In view of the above discussion, the Controlling Authority was required to calculate the gratuity for the period w.e.f. March, 1982 to 31.12.1993 under the payment of Gratuity Act, 1972 and for the remaining period, i.e. 1.1.1994 to 31.10.2001 (regular period only), the state was bound to pay the gratuity under the CCS (Pension) Rules, 1972. Accordingly, the writ petition is disposed of with the following directions:­ (i) The workman is entitled to get the gratuity for the period w.e.f. March, 1982 to 31.12.1993 under the Payment of Gratuity Act, 1972 with interest as per law laid down by the Hon'ble Supreme Court in H. Gangahanume Gowda v. Karnataka Agro Industries Corporation Ltd. (2003) 3 SCC 40; (ii)The workman is held entitled and is to be paid the gratuity w.e.f. 1.1.1994 to 31.10.2001 (regular period) under the CCS (Pension) Rules, 1972 with interest @ 9% per annum. The copy of the judgment be sent to the Secretary, Labour & Employment for its distribution to the Controlling as well as Appellate Authority constituted under the Payment of Gratuity Act, 1972.” 8. In view of the above, if on facts, the case of the petitioner is covered under the aforesaid judgments in the cases of ...5... State of H.P. and others vs. Sarab Dayal and State of H.P. vs. Lashkari Ram, supra and he is also a similarly situate person, he shall also be treated similarly without any discrimination and the benefit of the said judgments shall be extended to him within three months from today. It is clarified that since the judgment in the case of State of H.P. & others versus Sarab Dayal, supra, is stated to be under challenge before the Hon'ble Supreme Court, any benefit granted to the petitioner in the light of the present judgment shall be subject to the outcome of the decision of the Hon'ble Supreme Court. 9. In view of the above, the petition stands disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge 21st February, 2011 (virender)