Himachal Pradesh High Court

Sarita Sharma vs State Of H.P. And Another on 25 February, 2020

Author:
Tarlok Singh Chauhan

Bench:
Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No. 242 of 2019.

.
Decided on: 25.02.2020.

Sarita Sharma ...Petitioner

Versus
State of H.P. and another ..Respondents
______________________________________________________
Coram

Whether approved for reporting ?1 No
r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

For the Petitioner : Mr. Prem P. Chauhan, Advocate.

For the Respondents : Mr. Ajay Vaidya, Senior Additional
Advocate General, with Mr. Vinod

Thakur, Mr. Desh Raj Thakur, Addl.
Advocate Generals, Mr. Bhupinder
Thakur and Mr. Narinder Thakur,
Deputy Advocate Generals.

Tarlok Singh Chauhan, Judge (oral)

The moot question in this petition is whether the

services of an employee appointed on adhoc basis followed by

regular appointment is to be counted for the purpose of

pensionary benefits.

2. The facts are not in dispute. Pursuant to the interview

held by the duly constituted Selection Committee on 25.6.1983,
Whether reporters of Local Papers may be allowed to see the Judgment ? Yes

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the petitioner came to be appointed as Trained Graduate Teacher

(for short 'TGT) and joined as such on 17.04.1985. Thereafter her

.

services came to be regularised only on 23.08.1994 despite her

appointment having been made against a sanctioned post.
In the

interregnum, some of the aggrieved persons whose adhoc

services were not counted for the purpose of regularisation

approached this Court by way of CWP No. 372 of 1985 titled as

Surinder Kumar and others vs. State of H.P. and another
,

wherein this Court on 04.03.1986 passed the following directions:

"4. The petitioners have claimed that the period of adhoc
service rendered by them should be tagged on to their regular
service in case of regularisation of their services for the

purposes of seniority, fixation of pay etc. The Court does not
propose to issue any directions on this question at the present

stage. Such of the adhoc teachers, whose services may be
regularised, including the petitioners, will be at liberty to make

representation(s) to the State Government in regard to this
matter within a period of four weeks from the date of

regularisation. The representation(s), if and when made, shall
be entertained and decided in accordance with law within a
period of eight weeks thereafter. If the concerned persons are
aggrieved by the decision, they would be at liberty to move the
Court again."

3. In compliance to the above directions, the

respondents acceded to the request of the petitioners therein and

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directed the counting of the adhoc services rendered by the

petitioners therein for all purposes. However, the benefit of this

.

decision was only confined to the petitioners in CWP No. 372 of

1985 and not to the other similarly situated persons, constraining

the petitioner to file the instant petition for the grant of following

substantive reliefs:

(a) To issue a writ of mandamus, appropriate writ, order or
direction in nature thereof, directing the respondent
department to grant the benefits of entire adhoc service

rendered by the petitioner towards her seniority for all purpose

and intents, including for grant of proficiency step ups,
Assured Career Progression Scheme benefits and all other
consequential benefits flowing thereof with arrears and interest

thereon @ 18% p.a.

(b) To issue an appropriate writ, order or direction in nature
thereof to give full justice to the petitioner in the circumstances

of the case and may pass such further writ, order or orders as
this Hon'ble Court may deem fit, proper, just and expedient in

the circumstances of the case."

4. The only ground taken by the respondents to oppose

the claim of the petitioner is that the adhoc services rendered by

the petitioner without break followed by regular appointment is to

be counted towards increments on notional basis and not for

assigning seniority. Therefore, the petitioner is not entitled for the

grant of benefits of adhoc services rendered by her towards her

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seniority for all intents including for the grant of proficiency step

up, Assured Career Progression Scheme benefits etc. and the

.

petitioner will be entitled for seniority and pay fixation only from

the date of regular appointment.

5. The basis for making such averments have not been

set-out in the reply nor could orally explained by the respondents

during the course of arguments.

6.
In fact, the issue posed in this petition is no longer

res integra in view of the decision rendered by learned Single

Judge of this Court in
Paras Ram vs. State of Himachal

Pradesh and others
, Latest HLJ 2009 (HP) 887 wherein it was

laid down that if adhoc service is followed by regular service in

the same post, the said service can be counted for the purpose of

increments.

7. Further a Division Bench of this Court in LPA No. 36

of 2010 titled
Sita Ram vs. State of H.P. and others
, decided on

15.7.2010 after placing reliance upon
Paras Ram
's case (supra)

held that "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

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period may be treated as qualifying service for the purpose of

pension also."

.

8. Adverting to the facts of the case, I have no difficulty

in concluding that even though the appointment of the petitioner

was on adhoc basis but that was in no manner qualitatively

different from the regular employees and particularly when there

was a vacancy and need for the services of the petitioner and she

was ultimately regularized. Once that be so, then obviously it was

unfair on the part of the respondents to take work from the

petitioner on adhoc basis. They ought to have resorted to an

appointment on regular basis.

9. The taking of work on adhoc basis for long amounts

to adopting the exploitative device. Later on, though the services

of the petitioner have been regularized, however, the period spent

by her on adhoc basis, has not been counted towards the

qualifying service. Thus, the respondents have not only deprived

the petitioner from the due emoluments during the period she

served on less salary on adhoc basis but she was also deprived

of counting of the period for pensionary benefits.

10. The respondents have been benefitted by the

services rendered by the petitioner in the heydays of her life on

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less salary on adhoc basis. Therefore, there is no rhyme or

reason not to count the adhoc period in case it has been

.

rendered before regularization. If the same is denied, it would be

highly unjust, impermissible and irrational to deprive such

employees benefit of the qualifying service.

11. The classification cannot be done on the irrational

basis and when the respondents are themselves counting period

spent in such service, it would be highly discriminatory not to

count the service on the basis of flimsy classification. As it would

rather be unjust, illegal, impermissible to make the aforesaid

classification under the Pension Rules and to make Rule valid

and non-discriminatory, the same will have to be read down and

it has to be held that services rendered even prior to

regularisation in the capacity of adhoc shall have to be counted

towards the qualifying service even if such service is not

preceded by temporary or regular appointment in a pensionable

establishment.

12.
In a recent decision rendered by three Judges of the

Hon'ble Supreme Court in
Prem Singh vs. State of Uttar

Pradesh and others
AIR 2019 SC 4390, it was held that the

services rendered on contract basis followed by regular

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appointment have to be counted towards qualifying service for the

purpose of pension. It shall be apposite to refer to the

.

observations made in paras 28 to 34 of the judgment, which read

as under:

"28. The submission has been urged on behalf of the State
of Uttar Pradesh to differentiate the case between work-
charged employees and regular employees on the ground

that due procedure is not followed for appointment of work
charged employees, they do not have that much work
pressure, they are unequal and cannot be treated equally,

work- charged employees form a totally different class, their

work is materially and qualitatively different, there cannot be
any clubbing of the services of the work-charged employees
with the regular service and vice versa, if a work-charged

employee is treated as in the regular service it will dilute the
basic concept of giving incentive and reward to a permanent

and responsible regular employee.

29. We are not impressed by the aforesaid submissions.

The appointment of the work-charged employee in question
had been made on monthly salary and they were required to

cross the efficiency bar also. How their services are
qualitatively different from regular employees? No material
indicating qualitative difference has been pointed out except
making bald statement. The appointment was not made for a
particular project which is the basic concept of the work
charged employees. Rather, the very concept of work-
charged employment has been misused by offering the
employment on exploitative terms for the work which is
regular and perennial in nature. The work-charged employees

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had been subjected to transfer from one place to another like
regular employees as apparent from documents placed on
record.
In
Narain Dutt Sharma & Ors. v. State of Uttar

.

Pradesh & Ors. (CA No. 2019 @ SLP (C) No.5775 of 2018)

the appellants were allowed to cross efficiency bar, after '8'
years of continuous service, even during the period of work-

charged services. Narain Dutt Sharma, the appellant, was
appointed as a work-charged employee as Gej Mapak w.e.f
15.9.1978. Payment used to be made monthly but the

appointment was made in the pay scale of Rs.200- 320.
Initially, he was appointed in the year 1978 on a fixed monthly
salary of Rs.205 per month. They were allowed to cross
efficiency bar also as the benefit of pay scale was granted to

them during the period they served as work-charged

employees they served for three to four decades and later on
services have been regularized time to time by different
orders. However, the services of some of the appellants in

few petitions/ appeals have not been regularized even though
they had served for several decades and ultimately reached

the age of superannuation.

30. In the aforesaid facts and circumstances, it was unfair

on the part of the State Government and its officials to take
work from the employees on the work-charged basis. They

ought to have resorted to an appointment on regular basis.
The taking of work on the work- charged basis for long
amounts to adopting the exploitative device. Later on, though
their services have been regularized. However, the period
spent by them in the work-charged establishment has not
been counted towards the qualifying service. Thus, they have
not only been deprived of their due emoluments during the
period they served on less salary in work charged
establishment but have also been deprived of counting of the

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period for pensionary benefits as if no services had been
rendered by them. The State has been benefitted by the
services rendered by them in the heydays of their life on less

.

salary in work- charged establishment.

31. In view of the note appended to Rule 3(8) of the 1961
Rules, there is a provision to count service spent on work

charged, contingencies or non pensionable service, in case, a
person has rendered such service in a given between period
of two temporary appointments in the pensionable

establishment or has rendered such service in the
interregnum two periods of temporary and permanent
employment. The work-charged service can be counted as
qualifying service for pension in the aforesaid exigencies.

32. The question arises whether the imposition of rider that

such service to be counted has to be rendered in-between
two spells of temporary or temporary and permanent service
is legal and proper. We find that once regularization had been

made on vacant posts, though the employee had not served
prior to that on temporary basis, considering the nature of

appointment, though it was not a regular appointment it was
made on monthly salary and thereafter in the pay scale of

work-charged establishment the efficiency bar was permitted
to be crossed. It would be highly discriminatory and irrational

because of the rider contained in Note to Rule 3(8) of 1961
Rules, not to count such service particularly, when it can be
counted, in case such service is sandwiched between two
temporary or in-between temporary and permanent services.
There is no rhyme or reason not to count the service of work-
charged period in case it has been rendered before
regularisation. In our opinion, an impermissible classification
has been made under Rule 3(8). It would be highly unjust,
impermissible and irrational to deprive such employees

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benefit of the qualifying service. Service of work-charged
period remains the same for all the employees, once it is to
be counted for one class, it has to be counted for all to

.

prevent discrimination. The classification cannot be done on

the irrational basis and when respondents are themselves
counting period spent in such service, it would be highly

discriminatory not to count the service on the basis of flimsy
classification. The rider put on that work-charged service
should have preceded by temporary capacity is discriminatory

and irrational and creates an impermissible classification.

33. As it would be unjust, illegal and impermissible to make
aforesaid classification to make the Rule 3(8) valid and non
discriminatory, we have to read down the provisions of Rule

3(8) and hold that services rendered even prior to

regularisation in the capacity of work-charged employees,
contingency paid fund employees or non- pensionable
establishment shall also be counted towards the qualifying

service even if such service is not preceded by temporary or
regular appointment in a pensionable establishment.

34. In view of the note appended to Rule 3(8), which we
have read down, the provision contained in Regulation 370 of

the Civil Services Regulations has to be struck down as also
the instructions contained in Para 669 of the Financial

Handbook."

13. It would be clearly evident from the aforesaid

judgment of the Hon'ble Supreme Court that the services

rendered prior to regularisation in any capacity be it work-charged

employees, contingency paid fund employees or non-pensionable

establishment or adhoc has to be counted towards qualifying

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service even if such service is not preceded by temporary or

regular appointment in a pensionable establishment.

.

14. Once that be so, obviously no discrimination can be

made qua the employees, who rendered services prior to

regularisation in the capacity of adhoc employees.

15. Similar reiteration of law can be found in a judgment

rendered by a co-ordinate Bench of this Court in CWP No.3267 of

2019, titled Ram Krishan Sharma vs. The Accountant General

(A&E), HP and Ors., decided on 01.01.2020 and a very recent

judgment rendered by this Court in CWP No. 537 of 2018, titled

Kedar Singh Negi vs. H.P. High
Court and others, decided on

07.01.2020.

16. In view of the aforesaid discussion, I find merit in this

petition and the same is accordingly allowed. The respondents

are directed to grant the benefit of entire adhoc service rendered

by the petitioner towards her seniority for all intents and purposes

including grant of proficiency step-up, Assured Career

Progression Scheme benefits and all other consequential benefits

flowing thereof within a period of three months from today, failing

which, the respondents shall be liable to pay an interest of 9%

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per annum, which initially shall be paid by the department, to be

recovered from the erring official(s).

.

17. For compliance, list on 26.05.2020.

18. The petition is disposed of in the aforesaid terms, so

also the pending application(s) if any, leaving the parties to bear

their own costs.

th
25 February, 2020.

(GR)
r to (Tarlok Singh Chauhan)
Judge

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