Dismissed

Yashwant Dev Bhardwaj and Ors. v. Suneel Sharma and Anr.

Himachal Pradesh HC3 Dec 2024COPC/441/2021

Case brief

AI extract

What is this about?

The High Court dismissed the University's appeal against a writ-court order directing it to count pre-regularization service of clerks for seniority and pension. The Court held that once the University regularized the employees, their earlier daily-wage/adhoc service must be counted, relying on Supreme Court and High Court precedents that treat such service as qualifying service irrespective of th

What did the court decide?

Writ-court order upheld; University directed to count pre-regularization service for seniority and pension with consequential benefits. Contempt petition rendered infructuous.

Yashwant Dev Bhardwaj and Ors. Vs… — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

¶1

¶2

2024:HHC:13351

¶3

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

¶4

LPA No. 3 of 2022 a/w

¶5

COPC No. 441 of 2021 Date of decision: 03.12.2024

¶6

LPA No. 3 of 2022

¶7

Himachal Pradesh University …Appellant Versus Yashwant Dev Bhardwaj & Ors. …Respondents COPC No. 441 of 2021 Yashwant Dev Bhardwaj & Ors. ...Petitioners

¶8

Versus

¶9

Suneel Sharma, Registrar, HPU & Anr. ...Respondents Co ram

¶10

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice.

¶11

The Hon’ble Mr. Justice Satyen Vaidya, Judge.

¶12

Whether approved for reporting? No.

¶13

For the Appellant/
Petitioners:	Mr. N. K. Sood, Sr. Advocate with Ms. Archna Dutt, Advocate for the appellant in LPA No. 3 of 2022
	Mr. Pradeep K. Sharma, Advocate, for the petitioners in COPC No. 441 of 2021.
For the Respondents:	Mr. Pradeep K. Sharma, Advocate, for respondents No. 1, 3 and 5. in LPA No. 3 of 2022.
	Mr. Neeraj Sharma, Sr. Advocate with Mr. Ankit Dhiman, Advocate, for respondent No. 2 in LPA No. 3 of 2022.

¶14

¶15

2024:HHC:13351

¶16

Mr. N. K. Sood, Sr. Advocate with Ms. Archna Dutt, Advocate,for the respondents in COPC No. 441 of 2021.

¶17

Tarlok Singh Chauhan, ACJ (Oral)

¶18

The Original Application that was later transferred to this Court and registered as CWPOA No. 4442 of 2019 was allowed by the learned Writ Court and aggrieved thereby the University has filed the instant appeal. (The parties hereinafter shall be referred to as they were before the learned writ Court).

¶19

Writ petitioners were appointed as Clerks on daily wage basis in the Directorate of Correspondence Courses, Himachal Pradesh University in the year, 1971. On 05.11.1971, respondents decided to hold competitive test of the staff engaged on daily wage basis for the selection of clerks on adhoc basis. Subsequently vide communication dated 18.12.1972, the respondents took a decision to create post of clerks to be filled up on adhoc basis and in the same year, they made appointment to the aforesaid posts of clerks on adhoc basis.

¶20

The University, in principle, agreed to create the posts and its Assistant Registrar was directed to observe necessary codal formalities in that regard. The newly created posts were approved in the budget for the year 1972-73. Since regular vacancies of clerks were available with the

¶21

¶22

2024:HHC:13351

¶23

University, it decided to appoint the existing daily wage clerks on adhoc basis in the regular pay scale of Rs. 110-250/-.

¶24

Further, since the University had not framed any Recruitment and Promotion Rules, it decided to fill up these vacancies on adhoc basis and for this purpose the writ petitioners alongwith similarly situate persons were made to appear before the Selection Board constituted under the Chairmanship of Director, Correspondence Courses.

¶25

As was the prevalent practice and procedure, the regular appointment of clerks were being made by the University on the basis of written test/dictation and interview, as the University had failed to frame Rules for Recruitment/ Promotion and Conditions of Service of Ministerial and Administrative Services of the University.

¶26

However, at subsequent stage, typing test was also introduced in place of dictation test of the candidates having undergraduate qualification. It was eventually on 06.07.1973, that the Himachal Pradesh University Ministerial and Administrative Services (Recruitment, Promotions and Certain Condition of Services) Rules, 1973, came to be framed by the Executive Council of the University. Though the University made appointment to the regularly created posts of the clerks during 1972, however, no steps were taken to regularize the adhoc appointment of the clerks in the

¶27

¶28

2024:HHC:13351

¶29

Directorate of Correspondence Courses despite filing of various representations and initiation of various litigations.

¶30

Eventually, an agreement was entered inter se the Vice-Chancellor of the University and representative of Nonteaching Employees Associations in August, 1973, which was ratified by the Executive Council in its meeting dated 31.08.1973 and it was decided to regularize the services of the petitioners and similarly situate clerks, but again the aforesaid agreement and decision of the Executive Council were not adhered to in as much as no order of regularization was issued for nearly five months and ultimately it was vide order dated 22.01.1974 that the Vice-Chancellor regularized the adhoc appointment of the persons including the present petitioners as clerk in the pay scale of Rs. 110-4-330/5-100/5230/8-250 and granted other allowances as admissible under rules with immediate effect, subject to certain conditions.

¶31

Since some of the petitioners had applied for the post in the University directly and appeared in the test and interview held for the purpose of direct recruitment, as such they were appointed as clerk on 15.04.1973. However, names of such petitioners were left out in communication dated 22.01.1974 without any valid and plausible reason though they were similarly situate to the other petitioners.

¶32

¶33

2024:HHC:13351

¶34

Being aggrieved and dis-satisfied with the decision of University, the left out clerks (other persons) i.e. petitioners, represented to respondent No.1 but the same was rejected without according any reason.

¶35

Since the petitioners despite their regularization were not given benefit of the service rendered by them on adhoc basis while counting their seniority, they approached the respondents and were advised to await the decision of this Court in CWP No.137 of 1975 titled Ranjit Singh Thakur versus Himachal Pradesh University and others. In that case, Ranjit Singh Thakur and others, had also challenged the action of the University, whereby those petitioners had been denied benefit of adhoc service as clerk in the University.

¶36

The aforesaid writ petition came to be disposed of vide order dated 20.11.1978, which reads as under:-

¶37

“I am of the view that in the first instance the petitioners were treated as if they were not regularly appointed then on the date of regularization of their adhoc appointments they have got to be regularized from the date of their initial appointments, therefore, their seniority qua the persons who were subsequently appointed on regular basis shall be drawn. The petition, therefore, is allowed for the reasons stated above and the order annexed as Annexure P-7, P-9 and P-11 were accordingly struck down.”

¶38

Being aggrieved and dis-satisfied with the aforesaid judgment passed by the learned Single Judge,

¶39

¶40

2024:HHC:13351

¶41

respondent-University preferred LPA, however, the same was dismissed on 26.02.1979.

¶42

After the dismissal of the LPA, the petitioners filed CWP No. 265 of 1979, before this Court, however, the same was withdrawn in view of the order dated 24.07.1985, passed in CWP No. 280 of 1985, titled Rajender Dev and Ors. vs. Himachal Pradesh University with liberty reserved to the petitioners to approach the Court again in case they still remained aggrieved.

¶43

It was pursuant to the aforesaid judgment that respondent-University vide memorandum dated 31.01.1986, issued a tentative Seniority List of senior clerks as stood on 31.01.1986, wherein the petitioners were shown below than their actual position. Therefore, they again approached the learned erstwhile Tribunal by filing original application, which was later on transferred to this Court and registered as

¶44

CWP(T) No. 5408 of 2020, titled as Yashwant Dev Bhardwaj & Ors. vs. Himachal Pradesh University & Ors .

¶45

This petition was disposed of with a direction to the respondents to consider the case of the petitioners in light of the judgments passed in Ranjit Singh Thakur and Rajinder Dev’s case (supra) . However, the respondentUniversity vide order dated 24.06.2011 rejected the case of

¶46

¶47

2024:HHC:13351

¶48

the petitioners by holding that they were not similarly situate like those of the petitioners in the aforesaid writ petitions, as they were promoted as clerks from the category-D staff on the recommendations of the Recruitment and Promotion Committee and assigned seniority in the cadre of clerks from the date of promotion orders issued on 16.07.1977 and not from the date of the initial engagement against category-C posts.

¶49

This constrained the petitioners to approach the learned Writ Court for the grant of the following substantive reliefs:-

¶50

i) That the order dated 24^th June, 2011, may very kindly be quashed and set-aside.

¶51

ii) That the petitioners may very kindly be held validly and regularly appointed to the posts of Clerks/Typists from the date of their initial appointments and in the alternative if they were appointed on adhoc basis initially then their adhoc appointments may be held to be regularized from the date of their adhoc appointments.

¶52

iii) That after granting the benefit of adhoc service to the petitioners, the respondent University may be directed to redraw the seniority of Clerks and to grant all consequential benefits to the petitioners.”

¶53

The facts as reproduced above are the admitted facts and, therefore, the moot question is whether the services rendered by the petitioners prior to their regularization ought to have been taken into consideration by

¶54

¶55

2024:HHC:13351

¶56

the University while counting seniority as well as pensionary benefits?

¶57

Here it needs to be noticed that only dispute raised by the respondent for denying the claim of the petitioners is that the they themselves had agreed at the time of their regularization that they would qualify the typing test with typing speed of 30 wpm on a date which will be intimated by the officer in-charge recruitment HPU. They failed to comply with the aforesaid condition, therefore, the services rendered by them prior to their regularization cannot be taken into consideration for the purpose of seniority and pensionary benefits.

¶58

Besides above, the another ground that was raised by the respondent-University before the learned Writ Court was that since the initial appointment of the petitioners as clerk on daily wage as well as adhoc basis was dehors the rules, therefore, the services rendered by them in that capacity cannot be taken into consideration for the purpose of seniority and pensionary benefits.

¶59

In what circumstances, the services rendered prior to regularization is to be counted for the purpose of seniority and pensionary benefits has been a subject matter before the Hon’ble Supreme Court in Direct Recruit Class II Engg. Officers Association vs. State of Maharashtra, AIR 1990

¶60

¶61

2024:HHC:13351

¶62

(SC) 1607, wherein the legal position was summed up as

¶63

under:-

¶64

“44. To sum up, we hold that:

¶65

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

¶66

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

¶67

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.

¶68

(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.

¶69

(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the

¶70

¶71

2024:HHC:13351

¶72

appointees from the other source inducted in the service at a later date.

¶73

(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.

¶74

(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.

¶75

(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.

¶76

(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.

¶77

With respect to Writ Petition No. 1327 of 1982, we further hold:

¶78

(K) That a dispute raised by an application under article 32 of the Constitution must be held to be barred by principles of resjudicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.

¶79

In view of the above and the other findings recorded earlier, we do not find any merit in any of the civil appeals, writ petitions and special leave petitions which are accordingly dismissed. There will be, however, no order as to costs.”

¶80

¶81

2024:HHC:13351

¶82

What is thus evident from the aforesaid judgment is that once the initial appointment of a person to the post in question is not in accordance with the rules, seniority is not to be counted from the date of initial appointment, rather from the date of his regularization.

¶83

Adverting to the facts of the present case, it is not in dispute that at the time of initial appointment of the petitioners as clerk on daily wage basis and subsequently on adhoc basis, there were no Recruitment and Promotion Rules for the post in question. These Rules only came into existence in the year, 1973, by which time the services of the petitioners stood converted from daily wage to adhoc basis.

¶84

That apart, the contention of the University that the appointment of the petitioners was not in consonance with the rules cannot be accepted for the reasons that if it had been so, then where was the occasion for the university to have regularized the services of the petitioners that too against the post in question.

¶85

In the given facts and circumstances, the learned Writ Court is absolutely right in observing that once the University regularized the services of the petitioners, there is a presumption that initial appointment of the petitioners was in accordance with law.

¶86

¶87

2024:HHC:13351

¶88

Undoubtedly, the office order dated 22.01.1974 whereby services of some of the petitioners came to be regularized, suggests that the petitioners as well as similarly situate petitioners whose services had been ordered to be regularized, were required to qualify typing test in July, 1974, failing which their services were to be terminated without any notice. However, again there is nothing on record to suggest that the petitioners had failed to qualify the typing test and as such their services were terminated. Rather the record reveals that after issuance of the aforesaid office order, the respondent-University never insisted upon the persons regularized to pass the typing test and as a matter of fact they all kept on serving the respondent-University being regular employees till their retirement/superannuation. It is, therefore, too late in the day for the respondent University to rake up this issue.

¶89

As regards the counting of service rendered by the petitioners prior to the regularization, this issue is no longer res integra in view of the judgment rendered by one of us (Justice Tarlok Singh Chauhan, ACJ.) in Sheela Devi vs. State of H.P. & Ors, which has been affirmed up to the Hon’ble Supreme Court, therein this Court had held that the services rendered prior to regularization in any capacity be it workcharge employees, contingency paid fund employees or non-

¶90

¶91

2024:HHC:13351

¶92

pensionable establishment had to be counted towards qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.

¶93

It shall be apt to reproduce paras 2 to 19, which

¶94

read as under:-

¶95

“2. The late husband of the petitioner was appointed as Ayurvedic doctor on contract basis in temporary capacity in the year 1999, however, his services were thereafter regularised in the year 2009 and he shortly thereafter expired on 23.01.2011. The request made by the applicant for release of pension has been turned down by the respondents vide order dated 18.6.2018 on the ground that the services rendered by the husband of the applicant on contract basis cannot be counted for pensionary benefits under CCS (Pension) Rules, 1972 (for short ‘Pension Rules’) as the same are applicable only to regular government employees appointed in the pensionable establishments in the Government departments on or before 14.05.2003. The Government employees appointed in non-pensionable establishments are covered under the Contributory Provident Fund Rules, 1962. In terms of rule 2 of the Pension Rules, these rules are applicable to the Government employees appointed substantively to civil services and posts in Government departments which are borne on pensionable establishments appointed on or before 14.05.2003. Further, as per rule 2 (g) of the Pension Rules, these Rules are not applicable to the persons employed on contract except when the contract provides otherwise.

¶96

We have heard learned counsel for the parties and have gone through the records of the case carefully.

¶97

¶98

2024:HHC:13351

¶99

Rule 17 of the Central Civil Services (Pension)Rules, 1972 reads as under:

¶100

Counting of service on contract – “(1) A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may opt either:-

¶101

(a) to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service ; or

¶102

(b) to agree to refund to the Government the monetary benefits referred to in Clause (a) or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.

¶103

(2) The option under sub-rule (1) shall be communicated to the Head of Office under intimation to the Accounts Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable service, or if the Government servant is on leave on that day, within three months of his return from leave, whichever is later.

¶104

(3). If no communication is received by the Head of Office within the period referred to in sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract.

¶105

It is clear from the plain language employed in rule 17 of the Central Civil Services (Pension) Rules, 1972 that if a person is initially engaged by the Government on contract

¶106

¶107

2024:HHC:13351

¶108

for a specified period and is subsequently appointed to the same or another post in a substantiative capacity in a pensionable establishment without interruption of duty, he may opt either to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service or to agree to refund to the Government the monetary benefit referred to in clause or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.

¶109

We may at this stage refer to a decision rendered by learned Single Judge of this Court in Paras Ram vs. State of Himachal Pradesh and another, 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.

¶110

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 in 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 period may be treated as qualifying service for the purpose of pension also.”

¶111

A co-ordinate Bench of this Court (Coram: Mr. Justice Rajiv Sharma, J. and Mr. Justice Sureshwar Thakur, J.) while dealing with an identical issue in CWP No. 5400 of 2014 titled Veena Devi Vs. Himachal Pradesh State Electricity Board and another, decided on 21.11.2014 and after interpreting the provisions of Rule 17, directed the respondents therein to count the services of the petitioner therein on contract basis as Clerk/Typist with effect from 16.11.1988 to 21.3.2009 for the purpose of qualifying service for pensionary benefits.

¶112

¶113

2024:HHC:13351

¶114

Likewise, the same Bench issued similar directions in CWP No. 8953 of 2013 titled Joga Singh and others vs. State of H.P. and others and connected matter, decided on 15.6.2015 by directing the period of service rendered on contract basis as qualifying service for the purpose of pension under the Pension Rules.

¶115

Another Co-ordinate Bench of this Court {Coram: Hon’ble Mr. Justice Surya Kant, Chief Justice (as his Lordship then was) and Hon’ble Mr. Justice Ajay Mohan Goel, J.} in CWP No. 2384 of 2018 titled State of Himachal Pradesh and others vs. Matwar Singh and another, decided on 18.12.2018, held that 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. Therefore, the executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/ struck down, in light of the decisions rendered in CWP No. 6167 of 2012, titled Sukru Ram vs. State of H.P. and others, decided on 6th March, 2013 and a Full Bench of Punjab and Haryana High Court in Kesar Chand vs. State of Punjab through the Secretary PWD (B&R) Chandigarh and others, (1988) 94 (2) PLR 223, the relevant para-3 of the judgment reads as under:

¶116

“3. 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 light of view taken by this Court in CWP No. 6167 of 2012, titled Sukru Ram vs. State of H.P. and others, decided on 6th March, 2013. A Full Bench of Punjab and Haryana High Court in Kesar Chand vs. State of Punjab through the Secretary PWD (B&R) Chandigarh and others, (1988) 94 (2) PLR

¶117

¶118

2024:HHC:13351

¶119

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.”

¶120

As regards the counting of work period rendered on work charged basis followed by regular appointment, the issue is otherwise no longer res integra in view of the judgment of the Hon’ble Supreme Court in Punjab State Electricity Board vs. Narata Singh AIR 2010 SC 1467, Habib Khan vs. The State of Uttarakhand (Civil Appeal No. 10806 of 2017) decided on 23.8.2017 and 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.

¶121

It is by now settled law 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 and even adhoc service in terms of Paras Ram’s case (supra) followed by regular service in the same post has to be counted for the purpose of increments and in turn for pension as held by the Division Bench of this Court in LPA No. 36 of 2010 titled Sita Ram’s case (supra), can the benefit be denied to the employees appointed on contract basis followed by regular appointment.

¶122

Even though the issue in question is squarely covered by the judgments rendered by this Court in Veena Devi and Joga Singh cases (supra). However, we may at this stage make note of an unreported decision of the Division Bench of the Punjab and Haryana High Court in Rai Singh

¶123

¶124

2024:HHC:13351

¶125

and another vs. Kurukshetra University, Kurukshetra, C.W.P. No.2246 of 2008, decided on August 18, 2008 wherein the Court after taking into consideration the Full Bench judgment in Kesar Chand case (supra) held that once the employees have been regularised and are now held entitled to pension by counting adhoc service, exclusion of service “on contract basis” will be discriminatory. It was further held that appointment on contract basis is a type of adhoc service. Mere fact that nominal breaks are given or lesser pay is given or increments are not given, is no ground to treat the said service differently. Beneficial provision for pension having been extended to adhoc employees, denial of the said benefit to employees working on contract basis, who also stand on same footing as employees appointed on adhoc basis cannot be held to be having any rational basis and the judgment in Kesar Chand (supra) is fully applicable. It shall be apposite to refer to the necessary observations as contained in paras 4 to 8 of the judgment, which read as under:

¶126

“4. Learned counsel for the petitioners relies upon a Full Bench judgment of this Court in Kesar Chand v. State of Punjab and others, 1988 (2) PLR 223, wherein validity of Rule 3.17 (ii) of the Punjab Civil Services Rules, Volume II was considered, which provided for temporary or officiating service followed by regularization to be counted as qualifying service but excluded period of service in work charge establishment. It was held that if temporary or officiating service was to be counted towards qualifying service, it was illogical that period of service in a work charge establishment was not counted.

¶127

As held in Kesar Chand (supra), pension is not a bounty and is for the service rendered. It is a social welfare measure to meet hardship in the old age. The employees can certainly be classified on rational

¶128

¶129

2024:HHC:13351

¶130

basis for the purpose of grant or denial of pension. A cut off date can also be fixed unless the same is arbitrary or discriminatory. In absence of valid classification, discriminatory treatment is not permissible.

¶131

Once the employees have been regularised and are held entitled to pension by counting adhoc service, exclusion of service “on contract basis” will be discriminatory. Appointment on contract basis is a type of adhoc service. Mere fact that nominal breaks are given or lesser pay is given or increments are not given, is no ground to treat the said service differently. Beneficial provision for pension having been extended to adhoc employees, denial of the said benefit to employees working on contract basis, who also stand on same footing as employees appointed on adhoc basis cannot be held to be having any rational basis. Judgment of this Court in Kesar Chand (supra) is fully applicable.

¶132

Accordingly, we allow this writ petition and declare that the contractual employees who have rendered continuous service (ignoring nominal breaks) followed by regularization in a pensionable establishment, will be entitled to be treated at par with adhoc employees in such establishment, for counting their qualifying service for pension.”

¶133

Adverting to the facts of the case, we have no difficulty in concluding that even though the appointment of the husband of the petitioner was contractual but that was in no manner qualitative different from the regular employees and once there was need for doctors in the State as is evident from the fact that the services of the husband of the petitioner ultimately stood regularised, then it was unfair on the part of the State Government to take work from the employee on contract basis. They

¶134

¶135

2024:HHC:13351

¶136

ought to have resorted to an appointment on regular basis.

¶137

The taking of work on contractual basis for long amounts to adopting the exploitative device. Later on, though the services of the husband of the petitioner as observed above, were regularised. However, the period spent by him on contractual basis, has not been counted towards the qualifying service. Thus, the respondents have not only deprived the deceased husband of the petitioner from the due emoluments during the period he served on less salary on contractual basis but he was also deprived of counting of the period for pensionary benefits.

¶138

The State has been benefitted by the services rendered by the deceased husband of the petitioner in the heydays of his life on less salary on contractual basis. Therefore, there is no rhyme or reason not to count the contract period in case it has been rendered before regularization. If same is denied, it would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service.

¶139

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. As it would rather be unjust, illegal, impermissible to make the aforesaid classification under the Pension Rules and to make Rule valid and nondiscriminatory, 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 work-charged employees, contract employees, contingency paid fund employees or nonpensionable establishment shall be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.

¶140

¶141

2024:HHC:13351

¶142

In taking this view, we are fortified by the judgment rendered in Prem Singh’s case (supra), more particularly observations made in paras 28 to 34 of the judgment, which read as under:

¶143

“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 workcharged 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.

¶144

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 workcharged 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 13 had been subjected to transfer from one place to another like

¶145

¶146

2024:HHC:13351

¶147

regular employees as apparent from documents placed on record. In Narain Dutt Sharma & Ors. v. State of Uttar Pradesh & Ors. (CA No. 2019 @ SLP © 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 asa 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 workcharged 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 14 period for pensionary benefits as

¶148

¶149

2024:HHC:13351

¶150

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.

¶151

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.

¶152

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 workcharged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It

¶153

¶154

2024:HHC:13351

¶155

would be highly unjust, impermissible and irrational to deprive such employees 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.

¶156

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.

¶157

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.”

¶158

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 has to be counted towards qualifying service even if such service is

¶159

¶160

2024:HHC:13351

¶161

not preceded by temporary or regular appointment in a pensionable establishment.

¶162

Once that be so, obviously no discrimination can be made qua the employees, who rendered services prior to regularisation in the capacity of contractual employees and were regularised only because they had put in the requisite number of years of service on contractual basis like their counterparts who had rendered services in the capacity of work charged employees, contingency paid fund employees or non-pensionable establishment, of course, for that matter even on adhoc basis.”

¶163

In addition to the above, this issue is otherwise squarely covered by the judgment rendered by a Coordinate Bench of this Court in CWP(T) No. 6785 of 2008, titled as Narender Singh Naik vs. State of H.P. & Ors. , decided on 14.09.2010, wherein the authorities were directed to consider the case of the employee by counting the period he had worked on contract basis till his regularization with all consequential benefits in view of the principles laid down in Direct Recruit’s case (supra).

¶164

Once the legal position is clear, we really fail to understand why the University has filed the instant appeal.

¶165

Though, this would be a fit case where heavy costs ought to be imposed, however, it is only after taking into consideration the persuasive submissions of Mr. N. K. Sood, Sr. Advocate, assisted by Ms. Archna Dutt, Advocate, that we desist from doing so, with a clear direction and warning to the

¶166

¶167

2024:HHC:13351

¶168

University not to waste public money and indulge in frivolous litigation in future.

¶169

In view of the aforesaid discussion and for the reasons stated above, we do not find any merit in this appeal and the same is accordingly dismissed, so also pending applications, if any.

¶170

COPC No. 441 of 2021

¶171