Partly allowed

Kanta Devi v. the State of Hp and Others

Himachal Pradesh HC13 Dec 2023CWP/9293/2023

Case brief

AI extract

What is this about?

This Single Judge Writ Petition dealt with a widow's claim for family pension and regularization benefits for her deceased husband, who served as a daily-wage employee before regularization. Applying Supreme Court precedents like Sunder Singh, the court held he qualified for pension upon converting daily wage service to regular service. The petition was disposed of by directing authorities to veri

What did the court decide?

Petition allowed in principle; respondents directed to consider the petitioner's late husband for pension (posthumously w.e.f. 1.1.2018) and her for family pension (w.e.f. 20.1.2019), paying arrears r

Kanta Devi Vs the State of Hp and… — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No. 9293 of 2023 Decided on: 13^th December, 2023 ___________________________________________________________ Kanta Devi ....Petitioner Versus State of H.P. and others ….Respondents ___________________________________________________________

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Coram

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Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting? Yes.

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For the petitioner : Mr. Vijay Kaundal, Advocate. For the respondent(s) : Mr. Rajan Kahol, Additional Advocate General.

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Ranjan Sharma, Judge (Oral)

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Notice. Mr. Rajan Kahol, learned Additional

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Advocate General, appears and waives service of notice on behalf of the respondents.

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With the consent of the parties, the instant writ

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petition, is taken up for disposal at this stage, in view of the orders, intended to be passed herein.

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes

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The petitioner, being the widow has claimed for

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husband and then, the resultant family pension for hereself,

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has filed the instant writ petition, for the following relief(s):-

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“The Hon’ble Court may kindly pass the direction to the respondents to regularize the services of deceased Late Sh. Jagat Ram immediately after completion of 8 year service w.e.f.01.01.2003 and thereafter grant him pension benefit w.e.f.01.06.2011 to till the date of his death i.e.19.01.2019 and thereafter grant family pension to the petitioner w.e.f. 20.01.2019 with all arrears payable to the petitioner.”

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Mr. Vijay Kaundal, learned counsel for the

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petitioner has set up a case that the petitioner’s husband late Sh. Jagat Ram was initially engaged on daily wage basis in the year 1993, under Executive Engineer, HPPWD

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Division Dharampur and his services were brought on work charge establishment/regularization w.e.f. 01.01.2003

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and the petitioner’s husband retired from service on 31.05.2011, after rendering more than eight years and

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five months of regular service. However, on 19.1.2019 the husband of the petitioner died and after his death

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the present petitioner being his widow is claiming Family pension w.e.f. 20.01.2019 and the arrears accruing therefrom till day.

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Learned counsel for the petitioner has placed reliance upon the mandate of Hon’ble Supreme Court, in case, of Sunder Singh Versus State of Himachal Pradesh , in Civil Appeal No.6309 of 2017 , decided on 8.3.2018, the operative part thereof, read as under:-

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“6. Some of the petitioners whose writ petitions were disposed of vide the Division Bench's Judgment dated 31.05.2012 chose to assail the said judgment before the Hon'ble Apex Court by filing Special Leave Petitions. The SLPs were connected and decided on 08.03.2018 under the lead case Civil Appeal No. 6309 of 2017, titled as Sunder Singh vs. State of H.P. and others. It would be pertinent to mention herein that the appellant in the aforesaid case were all retired regular Class-IV employees seeking to count the daily wage service, rendered by them prior to their regularization, towards qualifying service for pension. The Hon'ble Apex Court disposed of the petition with the following order:

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“1. Heard learned counsel for the parties.

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The appellants represent class of Class-IV employees who were recruited initially as

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daily wagers such as Peon/ Chowkidar/ Sweeper/ Farrash/ Malis/Rasoia etc. Their services, thereafter, were regularized pursuant to the decision of this Court in Mool Raj Upadhyaya Vs. State of H.P. and Ors. 1994 Supp(2) SCC 316 under a Scheme. Regularization was after 10 years of service.

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It is undisputed that the postregularization an employee who had served for 10 years is entitled to pension for which work charge service is counted. Earlier, in terms of O.M. dated 14.05.1998, 50% of daily-wage service was also counted for pension after regularization but the rules have undergone change.

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Since the appellants have not rendered the requisite 10 years of service they have been denied pension.

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Even though strictly construing the Rules, the appellants may not be entitled to pension. However, reading the rules consistent with Articles 14, 38 and 39 of the Constitution of India and applying the doctrine of proportionate equality, we are of the view that they are entitled to weightage of service rendered as daily wagers towards

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regular service for the purpose of pension.

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Accordingly, we direct that w.e.f 01.01.2018, the appellants or other similarly placed Class-IV employees will be entitled to pension if they have been duly regularized and have been completed total eligible service for more than 10 years. Daily wage service of 5 years will be treated equal to one year of regular service for pension. If on that basis, their services are more than 8 years but less than 10 years, their service will be reckoned as ten years.

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The appeal as well as special leave petitions are disposed of in above terms.”

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Learned counsel for the petitioner has also relied

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upon the judgment passed by the Hon’ble Supreme Court

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in case of Balo Devi vs. State of Himachal Pradesh and others Latest HLJ 2022(HP)(2) (817) , whereby the judgment

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in the case of Sunder Singh’s case has been clarified as under:-

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“The intent of this Court was quite clear that:-

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(a) The services rendered as a regular

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employee may first be computed.

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(b) To the service as rendered to above, the component at the rate of one year of regular service for every five years of service as daily wager, be added.

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(c) If both the components as detailed in Paras a & b herein above, take the length of service to a level of more than eight years but less than ten years, in terms of last sentence of paragraph 6 of the Order, the services shall be reckoned as ten years.”

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The Division Bench of this Court in Shakuntla

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Devi versus State of H.P. and others in CWP No.736 of 1986 decided on 30.11.1987 reported in ILR 1987 HP 601 while adjudicating the claim-right posthumously regularization and admissibility of petitioner benefit has held as under:

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“3. The State has to have a constitutional goal and a commitment to the socio-economic justice. This flows inevitably from the Preamble and the Directive Principles of State Policy enshrined in the Constitution. Article 38 enjoins upon the State to strive to promote the welfare of the people by securing and protecting as effectively as it

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may a social order in which justice, social, economic and political, shall inform all the institutions of the national life and, in particular, to strive to minimise the inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people engaged in different vocations. Article 39 requires the State to direct its policy towards securing that the citizens, men and women equally, have an adequate means of livelihood and that there is equal pay for equal work for both men and women. Under Article 41, the State is under an obligation to make effective provisions for securing the right to public assistance in cases of old age, sickness and disablement and in other cases of undeserved want and, under Article 42, to make provision for securing just and humane conditions of work. The mandate of Article 43, inter-alia, is that the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, a work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure. The State has apparently failed in the present case to carry out these constitutional mandates

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inasmuch as the deceased husband of the petitioner was unfairly and unjustly denied the benefit of regularisation of his service during the period of his continuous employment for a little over 29 years although a post was available in the very Block where he was employed and he was recommended for being adjusted against the same. Since his dependants have been left in a State of undeserved want, as a result of the consequential denial of the pensionary benefits to them, the injustice is being perpetuated.

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It is not in dispute that if the deceased husband of the petitioner had been regularised prior to his death, the pensionary benefits would have been admissible in the case. Non-regularisation in his case was an event over which he had no control and a consequence which are not of his own making. In conformity with the Constitutional obligation, it was incumbent on the State Government to have taken timely and and affirmative steps to regularise his services and if necessary, to have created even a supernumerary post in order to achieve the purpose, especially when the work load justified his continuous employment

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for a period of almost three decades. Since he is dead, his regularisation now would involve only a paper exercise. But the State still owes a duty of taking remedial measures in accordance with law without undue delay in order to give posthumous justice to him and to secure to his dependants the right to monetary benefits so that they can have adequate means of livelihood.

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For the foregoing reasons, it appears expedient in the interest of justice to direct the State Government to consider in accordance with law and in conformity with the principles of equity, justice and good conscience and in light of the observations hereinabove made the question of granting to the deceased husband of the petitioner the benefit of expost facto regularisation of services and to work out and grant all the monetary benefits including the pensionary benefits due and admissible in accordance with law to the petitioner. Compliance to be reported on or before February 29, 1988.”

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In aforesaid background, the claim of learned counsel for pension w.e.f. 01.01.2018 posthumously,

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for her late husband carries weight in terms of the mandate

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of the Hon’ble Supreme Court in case of Sunder Singh (supra) once the petitioner has completed ten years and five months of regular services, based on “actual regular service rendered of eight years and five months and regular service of two years”, so arrived at, after giving proportional weightage in lieu of daily wage service, i.e. one year regular service for the years of daily wage service and two years regular service for ten years of daily wages service, then as per law, (supra) in case an employee completes eight years of service {based on actual regular service and regular proportional service} then such eight year still be treated as ten years regular service, which all qualify for pension.

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Accordingly, based on the regular service,

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so arrived at, once the petitioner has completed-rendered more than ten years and five months i.e. more than eight years of regular service, therefore, she is eligible and entitled to pension under the CCS (Pension) Rules, 1972, w.e.f. 1.1.2018 notionally; except the past arrears,

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which shall be restricted for a period of three years prior to the filing of writ petition [on 07.11.2023], in terms of

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the settled law, referred to in succeeding paras.

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In instant case, once the petitioner’s husband

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was entitled to pension posthumously w.e.f. 1.1.2018 on

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completion of or having rendered ten years and five months of regular service, in terms of judgement in the case of Sunder Singh (supra) {notwithstanding the clarification in

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case of Balo Devi (supra), which on facts of this case, is not applicable} therefore, after demise of petitioner’s

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husband, the present petitioner-widow, is entitled for Family Pension w.e.f. 20.01.2019 i.e. the next day after the death of her husband alongwith arrears of family pension w.e.f. 20.01.2019 till day.

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Mr. Rajan Kahol, learned Additional Advocate General submits that though the mandate of law in case of Sunder Singh, (supra) is not in dispute, however, in order to verify the eligibility of the petitioner’s late husband for pension and then the eligibility and entitlement of petitioner for Family Pension, in case the present petitioner makes a representation to Respondent No.2Engineer-in-Chief, HPPWD, Himachal Pradesh, Shimla,

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then the matter shall be considered/ examined in accordance

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with the mandate of the judgments passed by the

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Hon’ble Supreme Court in case of Sunder Singh.

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Faced with this situation, learned counsel for the petitioner Mr. Vijay Kaundal, on instructions submits

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that he shall make a representation to Respondent No. 2 - Engineer-in-Chief, (HPPWD) to the Government of Himachal Pradesh, Shimla, within six weeks from today; with further direction(s) to the aforesaid respondent to examine/consider the matter and to pass appropriate orders in the matter within six weeks from the date of receipt of representation. Ordered accordingly.

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The respondents are directed to consider the case of the petitioner (Class-IV retiree) for grant of pension,

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in terms of the mandate of the Hon’ble Supreme Court in

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the case of Sunder Singh, in view of facts in Para No.9 supra, notionally w.e.f. 1.1.2018; and upon consideration, in

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case, the petitioner’s husband, namely, Jagat Ram is held entitled to pension posthumously w.e.f. 1.1.2018 and then, the Family Pension to the petitioner-widow w.e.f. 20.1.2019 from the date next to death of her husband with all attending consequential benefits. However,

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then the actual monetary benefits/arrears shall be confined

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for a period of three years preceding the filing of this writ petition {07.11.2023}, in terms of the mandate of law, in the case of Union of India versus Tarsem Singh (2008) 8 SCC 648 ; Shiv Dass versus Union of India and Others; (2007) 9 SCC 274; State of Madya Pradesh and Others versus Yogendra Shrivastava (2010) 12 SCC 538 ; Asger Ibrahim Amin Versus Life Insurance Corporation of India (2016) 13 SCC 797 , followed in Rushibhai Jagdishchandra Pathak versus Bhavnagar Municipal Corporation CA No.4134 of

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2022 [2022 SCC online SC 641] decided on 18.5.2022, and arrears beyond three years cannot be claimed/granted. The consequential action be taken by the respondents within three months from today.

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In aforesaid terms, the Writ Petition as well as the pending miscellaneous application(s), if any, also stand disposed of, accordingly.

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(Ranjan Sharma) Judge

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December 13, 2023

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Kanta Devi v. the State of Hp and Others

Case brief

What is this about?

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Kanta Devi v. the State of Hp and Others

Case brief

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