CIVIL WRIT PETITION NO.800 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 20, 2009 Mani Ram .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sanjiv Gupta, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner prays for counting the service rendered by him as daily wager for the purpose of grant of pension as this service was followed by regular service by the petitioner. This issue appears to be settled by number of precedents, which are relied upon but still the respondents would oppose the plea by saying that such service is not a pensionable service and as such, can not be added to the regular service rendered by the petitioner for the purpose of grant of pension. CIVIL WRIT PETITION NO.800 OF 2009 :{ 2 }: The facts noticed in brief are that the petitioner was appointed as a Tractor Driver in the year 1969. Initially, he remained posted in District Hisar upto the year 1972. Thereafter, he was transferred to District Sirsa where he remained from the years 1973 to 1977. The petitioner was then transferred to Fatehabad where he stayed till the year 1997. The petitioner had been working against a regular vacancy. The petitioner, thus, prayed for regularising his services. When nothing was done, the petitioner filed a writ petition No.5121 of 1996, which was disposed of with a direction to the respondents to consider his claim and to decide his representation by passing a speaking order. Still, the claim of the petitioner was declined. He thereafter impugned the order declining his claim by filing another writ petition No.2838 of 1997, which was allowed by this Court on 3.10.1997. He had to file a contempt petition to ensure implementation of the order. Services of the petitioner thereafter were regularised w.e.f 1.1.1996 though he pleaded for his reuglarisation from a retrospective date, which was not agreed. The petitioner has retired in the year 2005. Thus, he has to his credit regular service w.e.f 1.1.1996 but was not granted the pension and other benefits on the ground that he did not complete 10 years service after regularisation. Relying upon a Full Bench decision of this Court in Kesar Chand Vs. State of Punjab, 1998(2) PLR 223, the petitioner has prayed that entire length of service rendered by him is required to be taken into consideration as a qualified service for grant of pension. Before filing the present writ petition, the petitioner has made various representations but these remained unactioned. He has, thus, filed this writ petition. CIVIL WRIT PETITION NO.800 OF 2009 :{ 3 }: Reply has been filed on behalf of respondent No.3. The plea is that the petitioner has not completed 10 years regular service and, hence, is not entitled to pension. It is further stated in the reply that the facts of the case and law laid down in Kesar Chand's case (supra) would not be applicable to the present case. As per the respondents, the past service rendered by the petitioner as a daily wager can not be counted for the purpose of pension as per the rules. Counsel for the petitioner has placed reliance on the provisions of Rule 3.12 of Punjab Civil Services Rules, Volume II, Part 1 (as applicable to Haryana), which lays down the condition necessary for qualification for grant of pension. The Rule reads as under:- “3.12. The service of a Government employee does not qualify for pension unless it conforms to the following three conditions:- First- The service must be under Government, Second- The employment must be substantive and permanent, Third- The service must be paid by Government”. Incidentally, the respondents have also placed heavy reliance on this very Rule to urge that the petitioner does not fulfill these conditions as far as his service rendered on daily wages is concerned. On the contrary, the counsel for the petitioner would submit that these conditions would stand satisfied. Rule 3.12 of the Rules is required to be read in conjunction with Rule 3.17 and Rule 3.17-A. These Rules regulate CIVIL WRIT PETITION NO.800 OF 2009 :{ 4 }: the grant of pension to an employee, who holds temporary post or is paid out of contingencies. Rule 3.17 reads as under:- “3.17 In the case of an officer retiring on or after 5th January, 1961, if he was holding substantively a permanent post on the date of his retirement, his temporary or officiating service under the State Government, followed without interruption by confirmation in the same or another post, shall count in full as qualifying service except in respect of:- (i)Period of temporary or officiating service in non- pensionable establishment; (ii) [Deleted] (iii) Period of service paid from contingencies.” Rule 3.17-A indicates the service which is countable for the purpose of pension. This makes a provision that all interrupted or continuous service followed by confirmation shall be treated as qualifying service, whereas the period of break is to be omitted while working out the aggregate service. This rule reads as under:- “3.17-A (a) All service interrupted or continuous followed by confirmation shall be treated as qualifying service; the period of break shall be omitted while working out aggregate service. (b) Extraordinary leave counted towards increments under rule 4.9(b) (ii) of Punjab Civil Services Rules, Volume-I, Part-I, will be accounted towards service qualifying for pension. (c ) Periods of suspension, dismissal, removal, CIVIL WRIT PETITION NO.800 OF 2009 :{ 5 }: compulsory retirement followed by reinstatement will count for pension to the extent permissible under rule 4.17 of Punjab Civil Services Rules Volume-II read with rule 7.3 of the Punjab Civil Services Rules, Volume-1, Part-I. (d) Resignation from the public service or dismissal or removal from it for misconduct, insolvency, inefficiency, not due to age, or failure or pass a prescribed examination will entail forfeiture of past service in terms of rule 4.19(a) of Punjab Civil Services Rules, Volume- 1I. (e) An interruption in the service of a Government employee caused by willful absence from duly and unauthorized absence without leave will as hitherto entail forfeiture of past service. (f) Employees retiring from Government service without confirmation (as temporary employees) in any post on or after 5th February, 1969 will be entitled to invalid/retiring/superannuation pension and death-cum- retirement-gratuity on the same basis as admissible to permanent employees. In case of death of temporary employee in service his family will also be entitled to similar benefits as are admissible to the families of permanent employees. This concession will, however, not apply to:] [(i) Persons paid from contingencies; provided that half of the period of service of such persons paid from CIVIL WRIT PETITION NO.800 OF 2009 :{ 6 }: contingencies rendered from Ist January, 1973 onwards for which authentic records of service is available will count as qualifying service subject to the following conditions:- (a) Service paid from contingencies should have been in a job involving whole time employment and not part time for a portion of day. (b) Service paid from contingencies should be in a type of work or job for which regular post should have been sanctioned e.g. Malis, chowkidar, Khalasis etc., (c )The service should have been such for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and which though not analogous to the regular scale of pay should bear some relations in the matter of pay to those being paid for similar jobs being performed by staff in regular establishments; and (d) The service paid from contingencies should have been continuous and followed by absorption in regular employment without a break.” Plain reading of these rules would leave hardly any doubt about the services which are to be counted for the purpose of pension. Service of the petitioner was under the Government. The petitioner retired from substantive employment and it was paid by the Government. Which service is to be counted, is given in Rule 3.17 reproduced above. The petitioner has retired after 5th Jan.,1961, when he was holding a permanent post substantively. Thus, his CIVIL WRIT PETITION NO.800 OF 2009 :{ 7 }: service, even if temporary or officiating followed by confirmation in the same post or another, is to count as full as qualifying service with the exception given under the Rule. Rule 3.17A, however, would clarify that all service interrupted or continuous followed by confirmation is to be treated as qualifying service. The issue has also been considered by this court in number of cases, reference to which is made by the counsel for the petitioner. Reference is, thus, made to Hari Chand Vs. Bhakra Beas Management Board and others, 2005 (2) RSJ 373. Indeed, Division Bench of this Court, after relying upon some other judgments, has clearly held that the service rendered as a daily wager will be counted towards qualifying service for pensionary benefits. It is noticed that Rule 3.17-A has recently been incorporated in the Punjab Civil Services Rules, Volume II, Part 1 (as applicable to Haryana) in pursuance to the judgment of the Full Bench in the case of Kesar Chand (Supra). Thus, it is now provided that all service interrupted or continuous followed by confirmation is required to be treated as qualifying service for pension and the period of breaks is to be emitted while working out aggregate service. Another Division Bench of this Court in the case of Kashmir Chand Vs. Punjab State Electricity Board and others, 2005(4) SCT 298 has taken a similar view and has held that daily wage service followed by regular service would count towards qualifying service for pension. While deciding the case of Kashmir Chand (supra), the Division Bench has relied upon number of other judgments in the cases of Joginder Singh Vs. State of Haryana, 1998 (1) SCT 795, Hazura Singh Vs. State of Punjab and another, 2003 (4) RSJ 336 and Nasib Singh Vs. State of Punjab and another, 1999 (4) SCT CIVIL WRIT PETITION NO.800 OF 2009 :{ 8 }: 233. In Hazura Singh's case (supra), period of adhoc and temporary service prior to regularisation was held liable to be counted for the purpose of gratuity and pension while condoning interruption in the service. Reference here may also be made in this regard to the case of Mohan Singh Vs. State of Haryana, 1991 (3) Services Cases Today 147, where it was held that it is incumbent upon the authorities to count service rendered by the petitioner therein as a daily wager towards qualifying service. In Joginder Singh's case (supra), the authorities were directed to sanction pension in favour of the petitioner by counting such service. Thus, there are more than one precedent to cover the issues involved in the petition. Counsel for the respondents could not show anything to the contrary. Thus, following the principle of precedents, the writ petition is allowed and directions are hereby issued to the respondents to count the service rendered by the petitioner on daily wages with his regular service by treating the same as qualifying service for grant of pension by excluding the period of breaks, if any. The pension and arrears of the petitioner be accordingly calculated and released to him within three months from the date of receipt of copy of the order. August 20,2009 ( RANJIT SINGH ) khurmi JUDGE