IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 2070 of 2009 Date of decision: 11.07.2011 ________________________________________________________________ Raj Gopal Pathania. .....Petitioner. Versus 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. T.C. Sharma, Advocate. For the respondents: Mr. Anil Jaswal, Dy. AG. V.K. Sharma, J. (Oral). The petition has been filed on the following prayer: “That the respondents may kindly be directed to count the adhoc/tenure services of the petitioner rendered as JBT/PET from Dec.,82/1-6-85 to 31.3.1994 onwards qualifying service for the purpose of pension, retrial and other consequential benefits.” 2. There is no reply. However, the learned counsel for the petitioner submits that as far as the case of the petitioner for the grant of benefit of increments on the basis of ad hoc service rendered by him in the department is concerned, the matter is squarely covered under judgment in LPA No. 36 of 2010, titled Sita Ram vs. Sate of H.P. & others, decided on 15.7.2010, text whereof is as under: “Petitioner is the appellant. The petitioner approached this court seeking the benefit of ad hoc service, rendered by him, prior to his regular service. Learned Single Judge granted the benefit of increment 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... and permitted other service benefits , except the seniority. Learned Single Judge followed the judgment of this court in Paras Ram Vs. State of H.P. and another Latest HLJ 2009 (HP) 887 in granting the relief, as above. 2. According to the learned counsel for the petitioner-appellant, the petitioner having been recruited through the same recruitment process, he is entitled to have seniority also in respect of the period of ad hoc service. We are afraid that contention cannot be appreciated. It is not in dispute that initial recruitment was only for ad hoc service. However, this court in Paras Ram’s case had laid down the law that if ad hoc service is followed by regular service in the same post, the said service could be counted for the purpose of increments. It is also settled principle of law that any service that is counted for the purpose of increment, will count for pension also. To that extent the appellant is justified in making submission that period may be treated as qualifying service for the purpose of pension also. However, so far as the seniority is concerned, the basic norms of seniority will be counted on the date of appointment in regular service, qua those who are already in regular service as on that date. If the claim of the petitioner-appellant is to be accepted, it will unsettle the settled seniority of those regular teachers. It may also not be out of context to note that none of the affected teachers is before us. Be that, as it may. Since the petitioner-appellant under law is entitled only for counting the ad hoc service, followed by regular service for the purpose of increments and pension, there is no merit in the appeal and the same is dismissed subject to the above modification that the period that is counted for the purpose of increment, will count for pension also.” 3. With regard to the claim for pension for the period of ad hoc service, it is stated that the matter is covered under judgment in CWP No. 58312 of 2010, titled Narbada Devi vs. State of H.P. & others, decided on 16.12.2010, which is extracted below: The writ petition is filed with the following prayer: “(i) That the respondents may kindly be directed to count the ad hoc/tenure services of the petitioner rendered as JBT from 23rd Oct., 86 to 4th Oct.,93 towards qualifying service for the ...3... purpose of pension, retiral and other consequential benefits which may kindly be ordered to be released with interest in a time bound manner.” 2. According to the petitioner, she had rendered service as a JBT on ad hoc/tenure basis between 23rd October, 1986 to 4th October, 1993 and it was followed by regular service. It is submitted that during the said period of October, 1986 to October, 1993, the petitioner had been given increments in the scale. The grievance, however, is that the period counted for increments is not counted for the purpose of pension. Therefore, the question is whether the service counted for the purpose of increments can be counted for the purpose of pension. Qualifying service is defined under Rule 3(1)(q) of the CCS (Pension) Rules, 1972, which reads as follows: “(q) ‘Qualifying Service’ means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules.” 3. Rule 13 of the Rules provides for the commencement of the qualifying service, which reads as follows: “13. Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post: Provided further that- (a) In the case of a Government servant in a Group ‘D’ service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and (b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity. (c) The provisions of Clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19.” ...4... 4. On a conjoint reading of Rules, the emerging and clear position is that the service rendered by an employee in an officiating or temporary capacity followed without interruption by substantive appointment in the same or another service or post, shall be counted for the purpose of pension. The petitioner has been granted increments, under this provision only. An employee appointed in temporary or officiating service and put on the scale attached to the post and having been granted increments in the scale and in case that appointment is followed by a regular appointment in the post without break is entitled to count the period as qualifying service for the purpose of pension. 5. In the case of the petitioner, it is seen from Annexure P-1, order of appointment that the petitioner has been appointed on tenure basis in the grade of '480-880 with the basic pay of ` 480/-. It is also submitted that being a running grade, the petitioner has been granted increments also. If the petitioner has been granted increments in the running grade pursuant to Annexure P-1, appointment order, for the said period from 1986 to 1993, there is no justification in not counting the said period as qualifying service for the purpose of pension. 6. There will be a direction to the second respondent to do the needful in the light of what is held above within a period of three months from the date of production of a copy of this judgment by the petitioner. The consequential benefits to which the petitioner if found eligible shall also be disbursed to her within another one month.” 4. In view of the above, if on facts, the case of the petitioner is covered under the judgments referred to hereinabove, in LPA No. 36 of 2010, titled Sita Ram vs. Sate of H.P. & others and CWP No. 58312 of 2010, titled Narbada Devi vs. State of H.P. & others, and he is similarly situate, he shall also be treated similarly without any discrimination and benefit of the said judgments shall be extended to him within three months from the date of production of copy of this judgment by the petitioner, failing which interest @ 9% per annum shall also be payable. ...5... 5. In view of the above, the petition stands disposed of, so also pending CMP(s), if any. Copy dasti. (V.K. Sharma) Judge 11th July, 2011 (virender)