IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 9259 of 2008 Decided on : 7.12.2010. Nanak Chand …Petitioner. Versus State of H.P. & others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. A.G. Kuldip Singh, Judge (Oral) The petitioner has prayed for directions to respondents to regularise the services of the petitioner with effect from the date the petitioner had completed 8 years of regular service with 240 days in every calendar year and calculate the pay and arrears from the said date onwards alongwith interest at the rate of 12% per annum and superannuate the petitioner accordingly. It has also been prayed that the respondents may be directed to grant benefit of daily wage services rendered by the petitioner for purposes of grant of pension. 2. The brief facts of the case are that according to petitioner he was engaged in the year 1978 as Beldar and then as Mate. The petitioner continued as such without any break. The petitioner completed 8 years uninterrupted service in the year 1986. He completed 240 days 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 in each calendar year, therefore, petitioner ought to have been made work charge as per the policy of the Government and directions of the Apex Court. The petitioner was made work charged vide letter dated 27.2.1998 w.e.f. 1.1.1995. The petitioner being almost illiterate accepted the order and served the respondents. The petitioner represented to the respondents for giving him benefit of prior service and for regularisation of his service from earlier date. On 19.3.1998 the petitioner superannuated without giving him retiral benefits. Therefore, the petitioner has filed the petition for the reliefs noticed above. 3. The petition has been contested by respondents No.1 to 3 by filing joint reply. It has been submitted that under Central Civil Services (Pension) Rules, 1972 an employee who has completed 10 years of continuous regular service is only entitled to pensionary benefits. The petitioner was regularised as work charged Beldar w.e.f. 1.1.1995 and retired on 31.3.1998 after attaining the age of superannuation and had barely completed 3 years 3 months qualifying service before the age of superannuation , as such, he was not entitled for grant of pension as the qualifying service for the grant of pension falls short of 10 years. 4. The petitioner had worked on different works w.e.f. 1985 to 1995. The petitioner prior to 1985 had not completed 240 days in each calendar year. The services rendered by the petitioner as daily wager for the purpose of qualifying service cannot be counted under the CCS (Pension) Rules, 1972. The service of the petitioner has been regularised w.e.f. 1.1.1995. The respondents have contested the claim of the petitioner and have prayed for dismissal of the petition. 5. I have heard the learned counsel for the parties. The grievance of the petitioner is two folds (i) regularisation after 8 years of 3 service from 1978 (ii) counting of service rendered by the petitioner on daily wage for the purpose of pension etc. In so far as the regularisation of the petitioner after 8 years of service from 1978 is concerned, the petitioner has not made out any case for this claim. The office order dated 27.2.1998 indicates that the petitioner was appointed Chowkidar w.e.f. 1.1.1995 instead of 1.1.1996. The petitioner was superannuated vide office order dated 19.3.1998 w.e.f. 31.3.1998 on attaining 60 years age of superannuation. 6. The respondents in the reply have stated that petitioner was regularised as work charged Beldar w.e.f. 1995 and was retired on 31.3.1998. The petitioner has not challenged his regularisation w.e.f. 1.1.1995 by the Department. In other words, the petitioner has accepted his regularisation w.e.f. 1.1.1995, therefore, now the petitioner has no claim for regularisation after 8 years from the year 1978 as claimed by him. 7. In addition, the respondents have stated that before 1985 the petitioner has not completed 240 days in each calendar year. The petitioner has not shown that when he had not completed 240 days in each calendar year prior to the year 1985 then under what provision he was entitled to regularisation after 8 years of service from 1978. Therefore, the claim of the petitioner that he is to be regularised on completion of 8 years of service from 1978 is rejected. 8. On behalf of the petitioner, it has been submitted that petitioner is entitled to counting of daily wage service rendered by him for the purpose of pension in terms of State of H.P. and others vs. Sarab Dayal Latest HLJ 2007 (HP) 1292 wherein the Division Bench has held as follows:- 4 “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.” The learned counsel for the petitioner has submitted that High Court in several cases has followed the judgment rendered in Sarab Dayal (supra) for counting daily wage service for pension. It has been submitted that petitioner is also entitled to counting of daily wage service for the purpose of pension as held in Sarab Dayal. 9. The learned Additional Advocate General has submitted that Sarab Dayal judgment has been challenged in the Supreme Court and ultimately the matter will be decided by the Supreme Court. The learned counsel for the petitioner has submitted that the benefit of Sarab Dayal in terms of final judgment of the Supreme Court as and when given by the Supreme Court may be given to the petitioner. There is no difficulty in allowing the prayer made by the learned counsel for the petitioner. In these circumstances, the petition is partly allowed, the petitioner shall be entitled to benefit of Sarab Dayal (supra) in accordance with the final judgment of the Supreme Court in the matter. The respondents shall extend the benefit of Sarab Dayal (supra) to petitioner in terms of final judgment of the Supreme Court without discriminating with the petitioner. The petition is disposed of on above terms. ( Kuldip Singh ), December 7, 2010 Judge. (GR)