Allowed

Ghindro Ram v. State of Hp and Ors.

Himachal Pradesh HC14 Aug 2023CWP/2414/2020

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking entitlement to General Provident Fund and pension benefits. It held that work charge status followed by regularization counts as qualifying service, overriding administrative instructions that excluded such periods.

What did the court decide?

Quashed the impugned order; directed enrollment in GPF Scheme considering work charge service; directed refund of CPS accumulation and payment of floating benefits.

Ghindro Ram Vs State of Hp and Ors. — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. :2414 of 2020

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Reserved on :04.08.2023 Decided on :14.08.2023

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Ghindro Ram .…Petitioner.

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Versus

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State of Himachal Pradesh and ors. …Respondent

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Coram

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The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?¹ Yes

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For the petitioner : Mr. Anuj Gupta, Advocate. For the respondents : Mr. Pushpender Jaswal, Additional Advocate General with Mr. Gautam Sood, Mr. Rahul Thakur and Ms. Priyanka Chauhan, Deputy Advocate Generals. : Mr. Rangil Singh, Central Government Counsel, for respondent No. 4.

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Satyen Vaidya, Judge

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By way of instant petition, petitioner has

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prayed for following substantive reliefs:-

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i. That the impugned Annexure P-8 being irrational, illegal and arbitrary may kindly be quashed and set aside.

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1 Whether reporters of the local papers may be allowed to see the judgment?

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ii. That the respondent No.4 may be directed to enroll/subscribe the name of the petitioner to the GPF Scheme instead of CPS and the CPS accumulation of the petitioner be ordered to be refunded to him. The reliefs flowing from the subscription of GPF may also be ordered to be paid to the petitioner forthwith.

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iii. That the respondents may kindly be ordered to release the remaining amount of gratuity to the petitioner which has been wrongly withheld by them. Such amount may be ordered to be paid alongwith interest @ 12% per annum w.e.f. the date of his retirement.

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The facts of the case are not in dispute. The initial engagement of petitioner as daily waged Forest Worker was in the year 1993. He was granted work charge status w.e.f. 01.02.2003 under the orders of this Court, passed in CWP No. 7240 of 2011. The services of the petitioner were regularized w.e.f. 16.08.2007. Petitioner has retired from service on 30.06.2016.

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The issue that has arisen for determination in the instant petition is with respect to the entitlement of petitioner to the benefits of GPF Scheme. As per petitioner, he is entitled for such benefit by considering

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his service on work charge for the purposes of applicability of aforesaid scheme. The respondents, on the other hand, are canvassing against such proposition on the basis of clarification dated 13.01.2016, issued by

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the Department of Finance to the following effect:-

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“ I am directed to refer to your letter No. Fund-1/Imp. Order/2015-16/1340, dated 2.12.2015, on the subject cited above and to say that the matter has been examined in the Finance Department and it is clarified that the employees appointed on work charged basis shall neither be covered under the General Provident Fund Rules/CCS (Pension) Rules, 1972 nor they will be covered under the Contributory Pension Scheme ( also called New Pension System). However, those employees whose services have been regularized after 15.05.2003, they shall be covered under the Contributory Pension Scheme also called New Pension System and will be governed by the H.P. Civil Service Contributory Pension Rules, 2006 notified vide Notification No. Fin.(Pen) A(3)1/96, dated 17.08.2006 and instructions issued there under from time to time. Those employees whose services were regularized after 15.05.2003 against a regular post and work charge status was granted to them on the directions of the Hon’ble Court from the retrospective date i.e. prior to 15.05.2003, shall not be entitled to contribute in the General Provident Fund and the period of work charge status shall not be counted towards the pensionary benefits under CCS (Pension) Rules, 1972.”

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I have heard learned counsel for the parties

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and have also gone through the record of the case carefully.

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The administrative department had in the first instance recommended the case of the petitioner for grant of benefit of GPF Scheme, vide office order, Annexure R-3. The said order was subsequently withdrawn on the basis of clarification dated 13.01.2016, issued by the Finance

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Department, as reproduced above.

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In State of H.P. and others vs. Sukru Ram and another, CMP(M) No. 423 of 201 7, decided by a Division Bench of this Court on 23.5.2017, it was held as under:

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“The issue is no longer res integra, which stands settled by the Hon’ble Supreme Court of India in Punjab State Electricity Board and another v. Narata Singh and another, (2010) 4 SCC 317, as also earlier decision of this Court in CWP No. 2240 of 2008, titled as The State of H.P. and others vs. Sh. Tulsi Ram, decided on 31.5.2012, in which learned Single Judge, while holding the service rendered by the writ petitioner on workcharged basis from 1.4.2001 to 2.4.2017 to be counted for the purpose of pension.”

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7. Later in State of H.P. & others vs. Matwar

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Singh & another, CWP No. 2384 of 2018 , decided by a

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Division Bench of this Court on 18.12.2018, it was held as under:-

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“ It is by now well settled that the work charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits. Executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/struck down, in the light of view taken by this Court in CWP No.6167 of 2017, titled Sukru Ram vs. State of H.P. & others, decided on 6th March, 2013. A Full Bench of Punjab and Haryana High Court in Keshar Chand vs. State of Punjab through the Secretary P.W.D. B & R Chandigarh and others, (1988) 94(2) PLR 223, also dealt with an identical issue where Rule 3.17 (ii) of the Punjab Civil Services Rules excluded the work charge service for the purpose of qualifying service. Setting aside the said Rule being violative of Articles 14 and 16 of the Constitution of India, it was held that the work charge service followed by regular appointment will count towards qualifying service for the purpose of pension and other retiral benefits. The aforesaid view was also confirmed by the Hon’ble Apex Court.”

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Similarly, in CWP No. 2956 of 2019 , titled as

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Uttam Sain Vs. State of H.P. & Ors. alongwith

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connected matter, decided on 13.7.2021, another

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Division Bench of this Court observed as under:-

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“It has also been contended by respondents that the petitioners were granted work charge status only vide order dated 13.10.2015 and the expression used therein was “work charge regularization”. In any case, be it conferment of work charge status or regularization in favour of petitioner vide office order dated 13.10.2015, the same will not affect the outcome of this petition. In view of the law laid down by this Court in CWP No. 6167 of 2017, titled Sukru Ram vs. State of H.P. & Ors., CWP No. 2384 of 2018 titled State of Himachal Pradesh & Ors. Vs. Matwar Singh and also by Hon’ble Supreme Court in Prem Singh Vs. State of H.P. (2019) 10 SCC 516, the work charge status followed by regular appointment has to be counted as a component for qualifying service for the purpose of pension and other retiral benefits.”

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Thus, it is more than settled now that work

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charge status followed by regular appointment has to be counted as a component for qualifying service for the purpose of pension and other retiral benefits.

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Adverting to the facts of the present case, the petitioner was conferred work charge status on 01.02.2003 and was followed by his regularization on 16.08.2007. Thus, the service of petitioner as work

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charge employee, followed by regular appointment is liable to be counted for the purpose of pension and other retiral benefits, hence the distinction drawn by the respondents on the ground that petitioner was regularized after the cutoff date i.e. 15.5.2003, cannot be sustained. The petitioner had earned the status of work charge employee as a matter of right under the policy of the State Government.

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It is apt to reproduce the observations made by Hon’ble Supreme Court in para-31 of the judgment rendered in case of Prem Singh vs. State of U.P. &

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others 2019 (10) SCC 516 , which read as under:-

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“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 workcharged 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 period for pensionary benefits as if no services

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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 ”.

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Once the work charge employment of the petitioner is held liable to be counted for the grant of pensionary benefits to him, as a natural corollary, he will be governed under CCS Pension Rules, 1972 and the Contributory Pension Scheme will not be applicable to him.

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The stand of the respondents with respect to withholding of payable arrears to the petitioner on the basis of the instructions dated 13.01.2016 issued by the Finance Department can also not be countenanced. Petitioner had earned the right to the arrears payable to him on account of service rendered by him on work charge basis, such right cannot be abridged by administrative instructions.

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For the aforesaid reasons, the present petition is allowed. Impugned Annexure P-8, is quashed and set-aside. The respondents are directed to

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enroll/subscribe the name of the petitioner to the GPF Scheme by taking into account his service on work charge. Respondents are further directed to grant all reliefs flowing from the subscription of GPF to the petitioner and to refund the CPS accumulation of the petitioner. The entire exercise be completed within a period of eights weeks from today.

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The petition stands disposed of in the aforesaid terms, so also the pending application(s), if any.

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(Satyen Vaidya) 14^th August, 2023 Judge (sushma)

Ghindro Ram v. State of Hp and Ors.

Case brief

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Ghindro Ram v. State of Hp and Ors.

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