Dismissed¶19

Om Chand and Others v. State of Hp and Others

Himachal Pradesh HC2 Jan 2025LPA/446/2024

Case brief

AI extract

What is this about?

HHC LPA No. 446 of 2024 (2025:HHC:1109), decided 02.01.2025 by G.S. Sandhawalia, CJ and Satyen Vaidya, J — dismissal of appeal against CWP No. 1223 of 2022; counting of daily-wage service for pension; qualifying service; Sunder Singh, Civil Appeal No. 6309 of 2017, distinguished; Balo Devi, Civil Writ Petition No. 3598 of 2019, distinguished; Rule 49 CCS (Pension) Rules, 1972; service gratuity; writ of mandamus requires legal right under a rule; delay and laches; Jal Shakti Division Baggi; Beldar/Luskar; regularization 1996–1998; retirement 2008.

What did the court decide?

Sunder Singh was passed in peculiar facts and circumstances, on account of equity, where the appellants therein had not rendered 10 years' regular service and had been denied pension; falling back on that judgment is totally uncalled for. ¶12

Om Chand and Others Vs State of Hp and Others — Himachal Pradesh HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the appellants were entitled to addition of two years' daily-wage service towards qualifying service for pension (and commutation of pension) on the strength of Sunder Singh (Civil Appeal No. 6309 of 2017). +1 more

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Court's answer

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Ratio / Principle

The appellants' whole case rested on Sunder Singh; there was no reference to any specific rule supporting counting of the daily-wage period for pension, and no details of the daily-wage period served were given.

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Key takeaways

In the absence of pleadings showing the basis of the claim regarding counting of the daily-wage period for calculating pension and addition of two years' service, the claim does not stem from any rule.ratio¶17
Balo Devi (Civil Writ Petition No. 3598 of 2019) only clarified that post-regularization service of eight years is required to get the weightage of daily-wage service to complete 10 years' service for pension entitlement under Rule 49 of the CCS (Pension) Rules, 1972; that case was accordingly distinguished.ratio¶15

Detailed headnote1 paragraphs

Letters Patent Appeal dismissed. The Division Bench (G.S. Sandhawalia, CJ and Satyen Vaidya, J) upheld the learned Single Judge's refusal (CWP No. 1223 of 2022, decided 02.09.2024) to add two years' daily-wage service to the qualifying service of the appellants (Om Chand & others, erstwhile Beldar/Luskar of Jal Shakti Division Baggi, regularized 1996–1998 and superannuated in 2008 with 10–12 years' regular service, already drawing pension). Sunder Singh (Civil Appeal No. 6309 of 2017) was distinguished as an equitable direction passed in peculiar facts where employees lacked ten years' service after regularization; the learned Single Judge had held, and the Division Bench found no infirmity therein, that the Apex Court nowhere laid down that daily-wage service shall be counted for any purpose other than pension eligibility. Balo Devi (Civil Writ Petition No. 3598 of 2019) was also distinguished, having merely clarified that eight years' post-regularization service is required for weightage of daily-wage service towards the ten-year qualifying service under Rule 49, CCS (Pension) Rules, 1972. The claim did not stem from any rule, no supporting pleadings or details of daily-wage service were furnished, and a writ of mandamus requires a legal right conferred by a rule or a public duty. Appeal dismissed; pending application(s) disposed of.

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2025:HHC:1109 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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LPA No. 446 of 2024 Date of decision: 02.01.2025

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_______________________________________________________ Om Chand & others …..Appellants

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Versus

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State of H.P. & others …Respondents

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______________________________________________________ Coram:_ The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?¹

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_______________________________________________________ For the Appellants: Mr. A.K. Gupta, Advocate.

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For the respondents: Mr. Anup Rattan, Advocate General with Mr. Gobind Korla, Additional Advocate General.

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G.S. Sandhawalia, Chief Justice (Oral)

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The present Letters Patent Appeal is directed against the order of the learned Single Judge, passed in Civil Writ Petition No. 1223 of 2022, decided on 2^nd September, 2024.

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The learned Single Judge rejected the claim as such of the present appellants to add two years’ service rendered by them, on daily wage basis, which was claimed in terms of the law laid down by the Apex Court in Civil Appeal No. 6309 of 2017 , titled

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

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Sunder Singh versus State of Himachal Pradesh & others, and to commute the pension payable to them.

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The learned Single came to the conclusion that the judgment as such in Sunder Singh’s case ( supra) was only passed in the peculiar facts and circumstances of that case, where ClassIV employees were not having ten years’ service after regularization. In such circumstances, it has been ordered that daily wage service of five years will be treated equal to one year of regular service for pension and where services are more than eight years, but less than 10 years, their services will be reckoned as ten years.

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The learned Single Judge further held that in the aforesaid judgment, the Apex Court has nowhere laid down that daily wage service shall be counted for any other purpose except rendering a person eligible for the receipt of pension so as to create a fiction that service rendered by the incumbent should be treated as ten years’ service by giving him the benefit of one year for a daily wage service of five years for the purpose of pension.

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The learned Counsel for the appellants/petitioners has only relied upon the observations of the Apex Court.

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We have gone through the writ petition filed by the appellants/petitioners. Their whole case is based upon the judgment in Sunder Singh’s case ( supra) and there is no reference to any specific rule on the basis of which, they claim the counting of the daily wage period for the purposes of getting pension, and neither any details have been given of the period of daily wage service they had put in.

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The specific stand of respondents No 1 to 4 in the writ petition as such was that the petitioners were regular employees of the respondents-Department, who attained the age of superannuation from Jal Shakti Division Baggi on the post of Beldar or Luskar etc. after rendering 10 or 12 years regular service. The date of regularization and the date of retirement was tabulated accordingly, as under:

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Sr. No	Name of Petitioner	Date of regularization	Date of retirement	Total Service
1.	Sh. Om Chand	01.01.1998	31.12.2008	11 Years
2.	Sh. Hukam Cahnd	01.01.1996	31.08.2008	12 Years 8 Months
3.	Sh. Lab Singh	01.01.1996	31.07.2008	12 Years 7 Months
4.	Sh. Dhoom Ram	01.01.1996	31.10.2008	12 Years 10 Months

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Specifically the case of respondents No. 1 to 4 in the writ petition was that the engagement is purely contractual and the period spent as a daily wage employee is no ‘service’ recognized as a part of qualifying service under the Rules. It is further submitted by them that as per the provisions of CCS (Pension) Rules, only regular service is considered as qualifying service for the purpose of pension and a daily rated service cannot be held at par with the regular service under any stretch of imagination. It is also mentioned that the petitioners stood retired from Government service in the year 2008, whereas the present petition has been filed after the lapse of more than 13 years and thus the petition is liable to be dismissed on the ground of delay and laches.

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Reply filed on behalf of respondent No. 5 to the writ petition would also go to show that they have rendered more than 10 years of qualifying service and superannuated at the age of 60 years during the year 2008 and their pension cases were forwarded to the office of the replying respondent and they were drawing 50% of last pay drawn at the time of their retirement, as pension.

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In the rejoinder filed by the present appellants in the writ petition, again there was no reference made to any rule, apart from re-iterating Sunder Singh’s case ( supra).

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In such circumstances, the learned Single Judge has denied the benefit as such.

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Perusal of Sunder Singh’ case would go to show that it is more than on account of equity as such, the Supreme Court had stepped in to direct that five years of regular service should be treated equal to one year of regular service, as the appellants in that case had not rendered 10 years’ regular service and they had been denied pension. The order was passed in peculiar facts and circumstances of that case to grant benefit to the persons, who had rendered considerable service, but unfortunately, were short of the qualifying service for the entitlement of pension and, therefore, the the fall back on aforesaid Sunder Singh’s judgment is totally uncalled for.

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We have also gone through order dated 25.11.2021 (Annexure P-2), which was subject matter of challenge before the learned Single Judge.

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The specific stand as such was taken as to under what circumstances, the order was passed in Sunder Singh (supra) and the fact that petitioners were already getting pension as per the CCS (Pension) Rules, 1972.

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The Apex Court in the judgment in Civil Writ Petition No. 3598 of 2019, Balo Devi Vs. State of H.P. & others has only clarified that post regularization service of eight years is required to get the weightage of daily wage service in order to become entitled for pension to complete 10 years service, as required under Rule 49 of CCS (Pension) Rules, 1972, and therefore, the case has been distinguished.

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Rule 49 of CCS (Pension) Rules, provides as to how the amount of service gratuity is to be calculated, if the Government servant is retiring before completion of qualifying service of 10 years.

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In the absence of any pleadings as such in the writ petition as on what basis, the claim could have been raised regarding counting of the daily wage period for calculating the pension and for addition of two years’ service, the claim does not stem from any rule as such.

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It is settled principle that writ of mandamus can only be issued where there is any legal right given by a rule or there is a public duty, which is to be complied with by any Authority. In the absence of any such rule referred to, we are of the considered

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opinion that the order of the learned Single Judge does not suffer

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from any infirmity which would warrant interference.

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