2025:HHC:20191 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 6688 of 2021 Reserved on: 20.6.2025 Date of decision : 27.06.2025. Bimla Devi ...Petitioner. Versus State of H.P. & others ...Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Onkar Jairath, Advocate. For the respondents : Mr. Baldev Singh Negi, Addl. A.G., for respondents No. 1 to 3. Mr. Somesh Sharma, Advocate, vice counsel for respondent No.4. Satyen Vaidya, Judge: By way of instant petition, the petitioner has prayed for the following substantive relief: - “That a writ in the nature of mandamus or any other appropriate writ order or directions may kindly be issued directing the respondents to grant family pension to the petitioner under Central Civil Services (Pension) Rules 1972. The respondents may further be directed to release the arrears of pension w.e.f. 11.12.2012 till date under CCS Pension Rules 1972 along with interest @ 9% p.a.” 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- 2. The facts of the case in brief are that the husband of the petitioner (Ranbir Singh) was initially engaged as part time contingent paid employee in GSSS Raipur Maidan, District Una on 7.1.1997. The services of Ranbir Singh were upgraded as whole time contingent paid worker on 14.2.2002. His services were regularized w.e.f. 1.10.2003. Ranbir Singh died on 11.12.2012. 3. The petitioner being wife of Ranbir Singh has staked claim to pensionary benefits under CCS (Pension) Rules 1972 (for short, the “Rules”), however, her claim has been denied by the respondents on following grounds: (a) The services rendered by Ranbir Singh after his regularisation till his death fell short of qualifying service under CCS (Pension) Rules 1972. (b) The rules were made inapplicable to all appointments made in the State of Himachal Pradesh on or after 15.5.2003. According to the respondents, the substantive appointment of Ranbir Singh would commence w.e.f. 1.10.2003 and for -3- such reason, the petitioner would not be entitled to the pensionary benefits under the Rules. 4. In this background, the petitioner is seeking the benefit of service rendered by Ranbir Singh w.e.f. 1.2.2002 as whole time contingent worker towards the qualifying service. It is claimed that on upgradation of service of Ranbir Singh as whole-time contingent worker w.e.f. 1.2.2002, he was allotted ‘GPF’ number and had been contributing towards GPF till 2012. 5. The petitioner would contend that the services rendered by Ranbir Singh as whole-time worker, though were chargeable to contingency, but to deny him the benefit of said service for the purposes of qualifying service will be the case of invidious discrimination. Examples of persons employed on contract; daily wage and even work charge, whose continuous services followed by the regularisation has been held to count toward qualifying service, have been quoted to contend that since the contract, daily wage and work charge services of such employees have been held to qualify for pensionary -4- benefits, there being no qualitative difference in the service rendered by Ranbir Singh as whole time worker, though paid from contingencies, than the services rendered by all above categories, the treatment given to the petitioner is discriminatory. 6. On the other hand, the main plank of the respondents to contest the claim of the petitioner is that the services rendered by Ranbir Singh as contingent paid worker cannot be counted towards qualifying service as per Rules 2, 13 and 14 of the Rules. It is contended that the Rules do not apply to persons paid from contingencies. Reference has also been made to Rule 13 of the Rules to show that the qualifying service would commence from the date government servant takes charge of the post to which he was first appointed either substantively or in an officiating or temporary capacity. As per respondents, since, Ranbir Singh was being paid from contingency till 30.9.2003, such service has to be excluded from the qualifying service. Further reference has been made to sub-Rule (2) of Rule 14, according to which, the expression service has been defined to mean a service under -5- Government and paid by the Government from the Consolidated Fund of India or a local fund administered by that Government excluding service in a non-pensionable service unless such service is treated as qualifying service by that government. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. The question required to be determined is whether the whole time contingent paid service will add towards the qualifying service under the CCS (Pension) Rules? 9. Sh. Onkar Jairath, learned counsel for the petitioner would submit that by judicial pronouncements, CCS (Pension) rules have been interpreted in such a manner that all kinds of temporary services viz. contract, daily wage or even work charge have been held to add towards qualifying service under CCS (Pension) Rules, provided such service was followed by regularization. He has made reference to a judgment passed by the Hon’ble Division Bench of this Court on 15.6.2015 in CWP No. 8953 of 2013, titled as, Joga Singh & others vs. State of -6- H.P. & others along with connected matters, in which Rule 13 of the Rules in the case of Vidya Upasaks appointed under the Vidya Upasak Yojna has been explained asunder:- “11. According to rule 13 of the Central Civil Services (Pension) Rules, 1972, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. In the instant case, petitioners have been appointed by the State Government as per the norms laid down though initially for a period of one year, but their appointments were continued from the year 2000 followed by their appointments on substantive post on 31.10.2007 and 22.11.2007. The service on contract can also be counted under rule 17, which is subsequently followed by substantive appointment in a pensionable establishment. The status of the petitioners was better of than the persons appointed merely on contract basis since they have continuously worked for a period of 7 years without any obstruction and obtained essential qualification of one-year condensed teacher training course.” 10. Sh. Jairath has also placed reliance on judgment passed by another Hon’ble Division Bench of this Court in CWP No. 2384 of 2018, titled as, State of H.P. & others vs. -7- Matwar Singh & another, decided on 18.12.2018, whereby the 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. Similarly in the matter of contract service, judgment passed by the Coordinate Bench of this Court in CWPOA No. 195 of 2019, titled as, Sheela Devi vs. State of H.P. & others, decided on 16.12.2019, the same principle was applied. Lastly, reliance has been placed on the judgment passed by three judges’ bench of Hon’ble Supreme Court in Prem Singh vs. State of U.P. & others, 2019 (10) SCC 516. 11. No doubt, Rule 2 of the CCS (Pension) Rules excludes the applicability of such rules to the person paid from contingency. Noticeably, the person in casual and daily rated employment also stands excluded. Further, by taking into consideration the first proviso to Rule 13 of the Rules it has been interpreted in such a manner that the service rendered by a person on daily wage, work charge or contract basis has been considered on temporary service and when it is followed without interruption by substantive appointment in the same or another post, such service has -8- been held to add towards qualifying service. This conclusion has been drawn from the judgment noticed above. 12. In Balo Devi Vs State of Himachal Pradesh 2022 SCC Online SC 2430 Hon’ble Supreme Court explaining its earlier judgment on CA 6309/2017 titled Sunder Singh Vs State of Himachal Pradesh has held that if the regular service of class IV employee is less than eight years and by counting his previous daily wage service of five years equal to one year, the total service exceeds eight years, it will be considered as total ten years of qualifying service. 13. Hon’ble 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 has held that the work charge status followed by regular appointment will be counted as component of qualifying service for the purpose of pension and other retiral benefits. 14. In State of H.P. and another Vs Sheela Devi 2023 SCC Online SC 1272, while considering the issue of counting of contract service before regularisation as component of qualifying service, Hon’ble Supreme Court -9- after considering the plea of the State regarding exclusions under Rule 2 of the CCS(Pension) Rules, 1972 has held as under: “7. The State, in justification of its appeal contends through the Learned Advocate General that the High Court's reasoning is erroneous. It is submitted that Rule 17 of the CCS Pension Rules, 1972 (hereafter called the Pension Rules) is inapplicable, having regard to the exclusionary definition in Rule 2(g). It is further stated that one of the express terms of contract which the employees voluntarily entered into, was that barring specified statutory rules, no other service rules applicable to the regular or permanent employees were applicable to them. 8. At the outset, it would be necessary to extract Rules 2 and 17 of the CCS (Pension) Rules, 1972 (hereinafter “Pension Rules”) which reads as follows:— “2. Application-Save as otherwise provided in these rules, 1[these rules shall apply to Government servant appointed on or before the 31st day of December, 2003] including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to- (a) railways servants; (b) person in casual and daily rated employment; (c) persons paid from contingencies; (d) persons entitled to the benefit of a Contributory Provident Fund; (e) members of the All India Services; (f) persons locally recruited for service in diplomatic, Consular or other Indian establishments in foreign countries; -10- (f) persons employed on contract except when the contract provides otherwise; and (h) persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force. 17. 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- (a) to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service; (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. (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 the day, within three months of his return from leave, whichever is later. (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 benefit payable or paid to him on account of service rendered on contract. -11- 9. The Learned Advocate General is correct in his interpretation, inasmuch as a facial reading of Rule 2(g) would indicate that contractual employees are excluded from the pale of Pension Rules. However, what is significant is that the rule itself in its opening terms saves the application of other provisions of the pension rules: “Save as otherwise provided in these rules”. If the opening phrase of Rule 2 were to be understood in this context, any interpretation of Rule 17 as is urged by the State would render such substantive provision redundant. Rule 17 was engrafted essentially to cater to the eventuality, where the employees working on contract basis were regularized at a later stage. It is only for the purposes of pension that the past service as a contractual employee is to be taken into account.” 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. 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 -12- 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:- “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 in-between 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 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 -13- 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.” 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 -14- 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 full- time contingent worker w.e.f. 14.2.2002 will be travesty. He was paid on monthly basis and there 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. 17. Once the full time contingent paid service of Ranbir Singh qualifies for pension, he completes ten years qualifying service. Simultaneously, his inclusion in terms of the CCS (Pension) Rules, as amended in the State of Himachal Pradesh w.e.f. 15.5.2003 will not have relevance by application of first proviso to Rule 13 of the Rules. 18. At the time of hearing, Learned Additional Advocate General had raised an objection that the petitioner was not entitled to relief on account of delay and laches. Needless to say, that denial of claim of pension is a -15- continuing wrong. Moreover, the husband of petitioner being only a class IV employee, who died in harness, must have left lots of woes for petitioner and for such reason also she cannot be non-suited on the issue of delay in her claim for pension. 19. In result, the petition is allowed. The service rendered by Ranbir Singh w.e.f. 14.2.2002 as full time contingent paid worker till his regularization is held eligible to be counted towards qualifying service. Consequently, the respondents are directed to consider and decide the case of the petitioner for grant of family pension, in light of what has been held above, within eight weeks from the date of passing of this judgment. 20. The petition is accordingly disposed of. Pending applications, if any, also stand disposed of. (Satyen Vaidya) 27th June, 2025. Judge (kck)