IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No.3718 of 2008(OA(D) No.293/96 Judgment reserved on 23.6.2009 Date of decision: 14.7.2009 Lahia Ram …….Petitioner. Vs. State of H.P. and Ors ....….Respondents Coram: The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes ------------------------------------------------------------------------------------------- For the Petitioner : Mr. Avinash Jaryal, Advocate. For the Respondents : Mr. Anshul Bansal, Addl. Advocate General with Mr. R.P. Singh, Assistant Advocate General Kuldip Singh, Judge The Petitioner had filed Original Application being OA(D) No.293 of 1996 before Himachal Pradesh Administrative Tribunal which was abolished vide notification dated 8th July, 2008. Thereafter, the Original Application was transferred to this Court in view of the Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008 and was registered as CWP(T) No.3718 of 2008. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 2. The pleaded case of the petitioner is that the petitioner was appointed as part time chowkidar by respondent No.3 in the year 1963 and was later on promoted as chowkidar whole time on Rs.70/- fixed pay plus allowances except interim relief on temporary establishment w.e.f. 5.9.1976. The petitioner had retired whole time chowkidar on attaining the age of superannuation on 30.4.1996 as per office order dated 23.4.1996 Annexure PB. The petitioner was paid fixed salary plus admissible allowances. He was not given benefit of any time-scale and annual increments. The petitioner had made several representations to the respondents but he was not given benefits of regular appointment as was given to others. 3. The petitioner was paid Rs.300/- per month basic pay w.e.f. 1.1.1978 and then Rs.750/- per month w.e.f. 1.4.1989 which was minimum revised time-scales given to other government servants serving with the respondents. The petitioner had been subscribing the General Provident Fund like all other regular employees but he was not treated at par with the other government servants for giving benefits of regular time-scale and annual increments. 4. The petitioner had earlier filed Original Application No.1351/93 in the erstwhile Tribunal which was decided on 21.8.1995. The Tribunal directed the respondents to consider the case of the petitioner in accordance with law with liberty reserved to the petitioner to approach the Tribunal again, if so required. The respondents had not treated the petitioner at par with other government servants for pay scale from the date of his regular appointment as a whole time chowkidar w.e.f. 5.9.1976 till his 3 retirement on 30.4.1996. The petitioner has been thus denied benefits of pension, gratuity etc. vide latter dated 22.3.1996 Annexure PC. It has also been pleaded that many persons who were junior to petitioner and served as chowkidars were given benefits of regular appointments with time-scale but the respondents have ignored the claim of the petitioner. 5. The petition was contested by respondents No.1 to 3 by filing reply, in which, it was pleaded that the petitioner was initially appointed as a part time chowkidar by Divisional Forest Officer, Chamba vide office order dated 6.6.1962 w.e.f. the date of joining . He was promoted to the rank of whole time chowkidar on Rs.70/- fixed plus allowances except interim relief on temporary establishment on 29.9.1976. He was not appointed in the running scale and therefore, he was not given any annual increase. It was pleaded that till the retirement of the petitioner upto 30.4.1996 no post of Class-IV was created and therefore, petitioner could not be regularized. It has been pleaded that petitioner had served the Forest Department as whole time (fixed) chowkidar on regular establishment but he was not working as regular chowkidar in running scale. Therefore, the pensionary benefits were denied to petitioner. The matter for creation of the post of Class-IV remained under correspondence with the government and the case of the petitioner would be considered accordingly. The alleged juniors named by the petitioner were appointed on compassionate grounds and they were not appointed against the vacant posts of Class-IV in the department. 4 6. The petitioner has prayed for a direction to the respondents to treat his entire service period from 5.9.1976 as a qualifying service for the purpose of retiral benefits such as pension, gratuity etc. and to grant these benefits to the petitioner. A prayer has also been made for a direction to the respondents to give regular time scale with benefit of annual increments w.e.f. 5.9.1976 and for refixation of his pay accordingly and for payment of all the arrears of salary and other benefits attached to the post. The respondents in their reply have pleaded that the petitioner was serving in the forest department whole time on regular establishment but he was not working as whole time in running scale. 7 The petitioner was appointed by way of promotion as chowkidar whole time vide office order dated 29.9.1976 Annexure PA. In the affidavit dated 5.6.2009, the Additional Chief Secretary(forests) to the Govt. of Himachal Pradesh has stated that the petitioner was appointed as a daily wager chowkidar and not promoted as wrongly mentioned on fixed pay of Rs.70/- plus allowances vide office order dated 29.9.1976. The office order dated 29.9.1976 is to the effect that the petitioner was promoted as chowkidar whole time and the said office order nowhere gives an indication that petitioner was appointed as daily wage chowkidar. In case the petitioner was appointed as daily wage chowkidar then he was not to be paid other allowances. The petitioner remained subscribing General Provident Fund like other regular employees which indicates that the petitioner was appointed on regular basis and not on daily wage basis. The erstwhile Tribunal in OA No.1351/93 on 21.8.1995 has clearly observed that petitioner was 5 working with respondents since as early as 1963 and was also regularized with fixed pay. The respondents have not indicated when petitioner was regularized. Therefore, it can be safely inferred that petitioner was regularized on 5.9.1976 when he was appointed on promotion as whole time chowkidar. 8. The respondents No.1 to 3 have taken hair splitting plea that though the petitioner was serving in the forest department in whole time (fixed) chowkidar on regular establishment but he was not working as whole time chowkidar in running scale, therefore, he is not entitled to pensionary benefits as per pension rules, 1972. The respondents cannot take benefits of their own wrong for not giving running scale to the petitioner when he was appointed by way of promotion as chowkidar in the forest department on regular establishment. The respondents have placed on record Annexure RA-I dated 26.5.2009 from Addl. Chief Secretary (Forests) to the Government of Himachal Pradesh to Pr. Chief Conservator of Forests, wherein it has been stated that deduction of GPF and its continuance till the retirement of the petitioner give strength that the petitioner was entitled for pensionary benefits for which he is agitating. The department had also sent his pension case to the AG office, as such, there has certainly occurred patent administrative error, which needs rectification. In view of these facts, it can be safely inferred that the petitioner was appointed on regular establishment of the forest department and not as daily wager. 9. The petitioner was not given running scale due to fault of the department that does not mean he is not entitled to pensionary benefits. The petitioner is entitled to running scale of 6 chowkidar from 5.9.1976 with increases made from time to time till his superannuation on 30.4.1996. The petitioner is also entitled to counting his entire service period from 5.9.1976 till his superannuation on 30.4.1996 as qualifying service for the purpose of retiral benefits such as pension, gratuity etc. and the respondents are liable to pay pensionary benefits to petitioner after his superannuation accordingly. The petitioner shall be entitled to arrears of difference of salary for three years only immediately prior to filing of the petition after refixation of his pay in regular scale of chowkidar with time to time increases. The aforesaid arrears of salary, pensionary benefits shall be paid by respondents to petitioner within a period of six months from today, failing which the petitioner shall be entitled and respondents shall be liable to pay interest at the rate of 9% per annum on such arrears. ( Kuldip Singh ) Judge. July 14, 2009 (sks)