Leela Devi Vs State of Hp and Others

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.8817 of 2024

Date of Decision: 01.08.2025

_______________________________________________________ Leela Devi …….Petitioner Versus State of Himachal Pradesh & Anr. … Respondents Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹

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For the Petitioner:	Mr. Mohit Thakur & Mr. Aman Thakur, Advocates.
For the Respondents:	Mr. Anup Rattan, Advocate General, Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for the respondents-State.
	Ms. Komal Chaudhary, Advocate, for respondents No. 7.
__________________ Sandeep Sharma, Jud	__________________________________ ge (oral):

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Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Mohit Thakur, learned counsel representing the petitioner, is that though the petitioner has rendered 9 years and 30 days regular service upto 31.01.2022 as Peon-cum-Chowkidar, but yet she has not been extended benefits of judgment passed by Hon’ble Apex Court in Civil Appeal No. 4792 of 2022 in Balo Devi Vs. State of Himachal Pradesh & Ors. , whereby Hon’ble Apex Court, while holding that

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

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daily wage employee, who has worked for five years, shall be granted the benefit of one additional year in the calculation of pension. Furthermore, Hon’ble Apex Court also observed that employee, who after adding benefit of one year in lieu of five years daily wage service, completes the regular service of eight years, shall be deemed to have completed 10 years of regular service for pensionary benefits. Mr. Thakur, states that though petitioner herein, besides rendering 9 years and 30 days regular service upto 31.01.2022, also worked on the post of Whole Time Contingent for one year, six months and twelve days w.e.f 20.06.2011 to 01.01.2013, but yet she is being denied pension.

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2. Respondents, in their reply, though have admitted factum with regard to petitioner’s having worked as Whole Time Contingent for one year, six months and twelve days from 20.06.2011 to 01.01.2013, but they have attempted to defeat the claim of the petitioner for giving benefit of ten years of service on the ground that she has rendered 9 years and 30 days regular service upto 31.01.2022 and as such, is not entitled to benefit, in terms of judgment passed by Hon’ble Apex Court in Balo Devi ( supra ).

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3. However, having carefully perused judgment rendered by Hon’ble Apex Court in Balo Devi ( supra ), this Court is persuaded to agree with the contention raised at the behest of the respondents. In

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afore judgment, Hon’ble Apex Court has held that service rendered by

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the regular employee may be computed first, thereafter the component at the rate of one year of regular service for every five years of service as a daily wager, be added and in case, if both the components, as detailed hereinabove, 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. Relevant paras of the afore judgment read as under:-

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“The matter concerning the rights of a person who had rendered service on daily wage-basis in the State of Himachal Pradesh and whether such daily wage service could be counted for pension was considered by this Court in Civil Appeal No.6309 of 2017 (Arising out of SLP(C) No.34038 of 2012). The order passed by this Court on 08.03.2018 disposing of said matter may be extracted hereunder for facility:

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“ 1. Heard learned counsel for the parties.

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2. The appellants represent class of Class-IV employees who were recruited initially as 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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3. It is undisputed that the post-regularization. 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

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counted for pension after regularization but the rules have undergone change.

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

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5. 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 regular service for the purpose of pension.

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

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Mr. M.C. Dhingra, learned advocate appearing for the appellant submits that the length of service rendered by the husband of the appellant as regular employee was six years and two months and prior to such regularization he had rendered ten years of service as a daily wager. It is submitted that in terms of the direction issued by this Court, his service of ten years as a daily wager would be equivalent of two years of regular service; and adding the component of two years of such deemed regular service to the actual regular service put in by the husband of the appellant, the resultant number would be 8.2; and by virtue of last sentence

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appearing in para 6 of the order, such service in excess of eight years but less than ten years had to be reckoned as ten years; and thus the husband of the appellant and after his death the appellant would be entitled to pension.

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On the other hand, according to Mr. P.S. Patwalia, learned Senior Advocate appearing for the state, if after giving benefit of one year of regular service for every completed five years as a daily wager, the resultant component were to cross ten years, only in such circumstances, the benefit as extended by this Court in its order could be made available.

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We find it difficult to accept the submission of Mr. Patwalia. If the submission is accepted, the last line of paragraph 6 would lose any significance or meaning.

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The intent of this Court was quite clear that:-

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(a) The services rendered as a regular 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 a daily wager, be added.

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(c) If both the components as detailed in Paras a & b hereinabove, 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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4. Mr. Vishal Panwar, learned Additional Advocate General,

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attempted to argue that since service rendered by the petitioner as Whole Time Contingent for one year, six months and twelve days is of

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no relevance for giving benefit, if any, of one additional year, coupled with the fact that he has rendered 9 years and 30 days regular service

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upto 31.01.2022, no benefit can be granted to the petitioner, in terms of afore judgment. However, this Court is not persuaded to agree with Mr. Panwar, for the reason that if the judgment passed by Hon’ble Apex Court in Balo Devi (supra) is read in its entirety, it clearly reveals that in case length of regular service is more than eight years but less than ten years, same shall be reckoned as ten years.

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5. Moreover, Coordinate Bench of this Court, vide judgment dated 27.06.2025 in CWP No. 6688 of 2021, titled as Bimla Devi Vs. State of H.P. & others, taking note of judgment passed by Division Bench of this Court in CWP No. 2384 of 2018, titled as State of H.P & Others Vs. Matwar Singh & another , decided on 18.12.2018, whereby work charge status followed by regular appointment was held to be counted as component of qualifying service for the purpose of pension and other retiral benefits, has held that service rendered as Whole Time Contingent Paid Employee shall be counted for the purpose of pension. If it is so, the service rendered by the petitioner as a Whole Time Contingent employee w.e.f. 20.06.2011 to 01.01.2013 (i.e., one year, six months, and 12 days) ought to be added to the regular service of nine years and 30 days rendered by the petitioner and accordingly, his total service exceeds more than ten years and he is necessarily required to be held entitled to pension. Relevant paras of the afore judgment read as under:-

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“15. By applying the principles laid down in Balo Devi, Sheela Devi and Sunder Singh (supra), the case of full-time workers paid from contingency cannot be distinguished merely because it falls in excluding clause of Rule 2. The first proviso to Rule 13 being a substantive provision will be read in the instant case in the similar manner as Rule 17 has been construed in Sheela Devi. The explanation has been carved out in the 1st proviso to Rule 13, as noticed above.

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16. In Prem Singh (supra), the Hon’ble Supreme Court had struck down Rule 3 (8) of U.P. Retirement Benefits Rules, 1961 and had also struck down regulation Civil Services Regulations of U.P., whereby the period of work charge service was excluded from computation of qualifying service for grant of pension. The Hon’ble Supreme Court has considered the factual aspect as under:-

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“33. 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 inbetween 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 benefit of the

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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. 34. 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.”

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16. Applying the same principle, it can be seen that except for payment being made to Ranbir Singh from contingency, all other benefits taken into consideration in Prem Singh (supra), Balo Devi, Sheela Devi, Matwar Singh are found present. Ranbir Singh had rendered continuous full-time service w.e.f. 14.2.2002 till 30.9.2003 and thereafter w.e.f. 1.10.2003, his services were regularized. Admittedly, it was not the case of fresh appointment given to Ranbir Singh w.e.f. 1.10.2003 on the substantive post of Class-IV as a result of some selection process. Undoubtedly, he was given the benefit of regularization by considering his continuance in past service initially as part time contingent paid and w.e.f. 14.2.2002 as full time contingent paid worker. In this view of the matter, to ignore the service of Ranbir Singh as fulltime contingent worker w.e.f. 14.2.2002 will be travesty. He was paid on monthly basis and there

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was no break in his service after upgradation of his service as full time contingent paid worker. Thus, in my considered view, the ratio of judgment in Prem Singh (supra) applies to the facts of the case.

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6. Consequently, in view of the above, this Court finds merit in the present petition and accordingly, the same is allowed. Respondents are directed to consider the case of the petitioner for grant of pension after taking the whole time contingent period w.e.f 20.06.2011 to 01.01.2013 as qualifying service in addition to regular service of 9 years and 30 days and if otherwise found eligible, forward the same to the office of Accountant General, within eight weeks from the date of this order. Pending application(s), if any, stand disposed of.

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August 01, 2025 (Sunil)

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(Sandeep Sharma), Judge

Leela Devi v. State of Hp and Others

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Leela Devi v. State of Hp and Others

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