IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.: 3783 of 2008 Date of decision: 11.11.2010 Krishan Dutt … Petitioner. Versus H.P.S.E.B. …Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Dilip Sharma, Advocate. For the respondent: Ms. Anjula Khajuria, Advocate. Deepak Gupta, J.(Oral) 1. The petitioner had filed this petition before the H.P.State Administrative Tribunal and on abolition of the same this original application has been transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008. 2. The petitioner had prayed for the grant of the following amongst other reliefs:- 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 (i) That the orders at Annexure A-2, Annexures A-3 and A-5 may kindly be quashed and set-aside. (ii) That the applicant may be held entitled to terminal gratuity in terms of Rule 10 of 1965 Rules and respondents may be directed to calculate and pay to the applicant gratuity by taking into account 18 years service rendered by him by invoking the provisions of Rule 10(a) and (b). 3. The petitioner died during the pendency of the petition and thereafter his legal representatives were brought on record. The basic dispute is whether the service rendered by the deceased Krishan Dutt on daily wage basis is to be reckoned and taken into consideration for the purpose of grant of gratuity in terms of Rule 10 of the CCS (Temporary Service) Rules. 4. The undisputed facts are that the applicant was engaged on daily wages on 11.10.1977. He was regularly appointed as T- mate on 1.6.1992 and retired on attaining the age of superannuation on 31.5.1995. The 3 stand of the respondent is that the petitioner had rendered less than five year service in his capacity as temporary employee and that the period for which the petitioner worked on daily wages cannot be taken into consideration. 5. Shri Dilip Sharma, learned counsel for the petitioner has drawn my attention to the Govt. of India’s instruction contained in letter dated 10.3.1986, which read as follows:- “(2) Half the service paid from contingencies, followed by regular appointment, counts for Terminal gratuity.- 1. The undersigned is directed to refer to the Ministry of Finance, O.M. No. F.12(1)-E.V/68, dated 14.5.1968 (copy enclosed), allowing the benefit of counting half of the service paid out of contingencies as qualifying service towards pension at the time of absorption in regular employment, subject to the conditions laid down therein. A question has been raised whether half of the service paid out of contingencies may also be allowed to be counted for the purpose of terminal gratuity admissible under the CCS (TS) Rules, 1965 where the staff paid from 4 contingencies is subsequently appointed on regular basis. (2) The matter has been examined in consultation with the Ministry of Finance (Department of Expenditure) and it has been decided that half the service paid from contingencies will be allowed to be counted for the purpose of terminal gratuity as admissible under the CCS(TS) Rules, 1965, where the staff paid from contingencies is subsequently appointed on regular basis. This benefit will be subject to the conditions laid down in the Ministry of Finance O.M. dated the 14th May, 1968, referred to above. (3) These orders would apply to persons who are in service on the date of issue of this order or are appointed thereafter.” 6. Relying upon these instructions he prays that half the daily wage service should be taken into consideration for calculating the qualifying service and the gratuity. On the other hand Ms. Anjula Khajuria, learned counsel for the respondent submits that the petitioner was not a contingency paid employee but a daily waged employee and as such these instructions are not applicable. This question is no longer resintegra. A 5 Division Bench of this Court in State of H.P. and others vs. Sarab Dayal, Latest HLJ 2007(HP) 1292, while dealing with a similar question held as follows:- “23. It would also be pertinent to add that we see no reason for differentiating between daily rated workmen who have been allowed to continue for 10 years or more and employees paid from contingencies. There is no rational nexus in this classification. The classification, if accepted, would be totally arbitrary, invidious and violative of Article 14 of the Constitution of India. In our considered opinion the daily rated workmen who are permitted to continue for 10 long years followed by regularization cannot be denied the benefit of pension on this count. 24. While taking the aforesaid view, we also derive support from the decision of the Apex Court in State of U.P. and others Vs. Ajay Kumar (1997) 4 SCC 88 (supra) wherein the Apex Court clearly held that daily wage appointment is obviously in relation to contingent establishment. This also indicates that daily wage employment is in the nature of a contingency. 25. We are, therefore, of the considered view that 50% of the continuous service rendered by the employees on daily rated basis followed by work charge/regular employment should be taken into account while calculating the qualifying service for purposes of entitlement to and the amount of pension to be paid to them. 7. I am of the considered opinion that the aforesaid law applies with equal force to the present case. Therefore, it is directed that 6 half of the service rendered by the petitioner from 11.10.1977 to 1.6.1992 i.e. 14 years 7 months and 19 days, which works out to 7 years and 4 months approximately, shall be added to his temporary service of three years, which means that he has rendered temporary service of 10 years and 4 months. This means that his qualifying service for calculating gratuity will be 10 year and 4 months. The respondents are directed to work out the gratuity in terms of Rule 10 by taking the qualifying service of the petitioner to be 10 years and 4 months. The amount due and payable shall be paid alongwith interest @ 6% per annum to the widow of the deceased i.e. Claimant No.1 on or before 31st May, 2011 failing which the Board shall be liable to pay interest @ 12% per annum. The petition is disposed of in the aforesaid terms. No order as to costs. 11th November, 2010 ( Deepak Gupta ) ™ Judge.