IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 193 of 2024 Date of Decision: August 4, 2025 _________________________________________________________ Narender Kumar ... Petitioner Versus State of Himachal Pradesh and others …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. For the petitioner Mr. Devender Kumar, Advocate. For the respondents Mr. Anoop Rattan, Advocate General with Mr. Rajan Kahol and Mr. B.C. Verma, Additional Advocates General & Mr. Ravi Chauhan, Deputy Advocate General. ________________________________________________________ Sandeep Sharma, J (Oral) By way of present petition filed under Art. 226 of the Constitution of India, petitioner has claimed following main reliefs: “i). That the writ of mandamus may be issued and respondents may kindly be directed to grant the pension, arrear of pension and retirement gratuity to the petitioner from the month of February, 2017 till date along with interest at the rate of 9% per annum. ii) That the respondents may kindly be directed to grant the full amount of arrear on account of the grant of work charge status with effect from 1.1.2000. iii) That the case of petitioner may kindly be decided in light of judgments passed in CWP No. 5323/2019 titled as Viyas Dev - 2 - v/s State of HP & others and CWP No.2258/2023 titled as Vinay Patiyal v/s stat of HP& others.” 2. Brief facts, shorn of unnecessary details are that the petitioner was engaged as daily wager under Chamba Forest Division in January, 1990. He completed 10 years of service with minimum 240 days in each calendar year in 2000 and thus, he became entitled for work charge status on 1.1.2000. Services of the petitioner were regularized as Peon with respondent No.4 with effect from 24.8.2006 and he joined services on 25.8.2006. Copy of order of regularization dated 24.8.2006 is Annexure R-II and copy of joining of the petitioner dated 25.8.2006 is annexed as Annexure R-III with the reply filed by the respondents. 3. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Devender Kumar, learned counsel for the petitioner is that though service rendered by him in work charge capacity is required to be taken into consideration for purpose of qualifying service, but such benefit is not being extended to him, as a result of which he is not being covered under Old Pension Scheme/GPF Rules.. Learned counsel for the petitioner states that since petitioner was appointed in January, 1990 and thereafter, pursuant to order dated 9.8.2015 passed in CWP No. 510 of 2015, titled Narender Kumar v. State of Himachal Pradesh, work charge status was conferred - 3 - upon him with effect from 1.1.2000 and services rendered by him in work charge capacity ought to have been taken into consideration by respondents while calculating qualifying service for the purpose of pension. Since petitioner was regularized on 24.8.2006 and thereafter, he superannuated on 28.2.2017, he cannot be denied pension especially when it is not in dispute, that the petitioner has worked in the respondent Department since January, 1990 and he was conferred work charge status with effect from 1.1.2000. 4. To the contrary Mr. Rajan Kahol, learned Additional Advocate General, while referring to reply filed by respondents, submits that the petitioner was regularized with effect from 25.8.2006 and at that time, he was covered by NPS and PRAN was also allotted in favour of the petitioner, as such, at this stage, he is estopped from praying that services rendered by him in work charge status capacity may be ordered to be taken into consideration for the purpose of calculating qualifying service. He submitted that the petitioner has superannuated on attaining age of superannuation on 28.2.2017 and at that time, all his due retiral benefits i.e. gratuity, leave encashment, GIS etc. have been paid as per rules. He submits that since petitioner was covered under NPS it is wrong to allege that he was entitled to be covered under Old Pension Scheme/GPF Rules. Since GPF Rules were made inapplicable to the employees appointed on or after 15.5.2003 as per Government - 4 - Notification dated 15.9.2006 (Annexure R-V). Mr. Kahol, submits that since petitioner retired during the subsistence of the Notification dated 15.9.2006, he cannot claim to be covered under GPF Rules /Old Pension Scheme. 5. Having heard learned counsel for the parties and perused record, this court finds that precisely the grouse of the petitioner as has been highlighted in the petition and further canvassed by learned counsel for the petitioner is that since petitioner was appointed on daily wage basis in January 1990 and thereafter, he was conferred work charge status with effect from 1.1.2000, service rendered by petitioner in the capacity of work charge ought to have been taken into consideration by respondents, while computing qualifying service for the purpose of pension. He submitted that the petitioner herein superannuated on 28.2.2017, after rendering more than 11 years regular service and six years service on work charge status and in case, both the services are clubbed together, petitioner can be said to have completed more than 17 years of service, whereas, to avail the benefit of pension in terms of Old Pension Scheme, there is a requirement of ten years qualifying service. 6. True, it is that after regularization of service of petitioner with effect from 25.8.2006, petitioner was covered by NPS and PRAN was allotted to him, but once it is not in dispute that pursuant to order - 5 - 9.8.2015 passed in CWP No. 510 of 2015, petitioner herein was granted work charge status with effect from 1.1.2000 and thereafter his services were regularized on 25.8.2006 as Peon, prayer made on behalf of the petitioner for counting of service rendered in work charge capacity for the purpose of qualifying service deserves to be allowed. 7. It is not in dispute that with effect from 15.5.2003, Old Pension Scheme was replaced by New Pension Scheme (as per Notification dated 15.9.2006, Annexure R-V) and as per aforesaid Notification, employees whose services were regularized after afore date, were not eligible for pension. But once it is well settled that services rendered in work charge capacity are required to be taken into consideration for the purpose of qualifying service, coupled with the fact that petitioner’s services were regularized on 25.8.2006, and thereafter, he rendered more than 11 years of service, Notification dated 15.9.2006, therein prescribing that GPF rules shall not be applicable to the employees appointed on or after 15.5.2003, may not have much relevance, so far case of petitioner is concerned. 8. A Co-ordinate Bench of this Court, in Viyas Dev v. State of Himachal Pradesh and others, (CWP No. 5323 of 2019), decided on 14.12.2022, taking note of judgment passed by Hon'ble Apex Court in case Prem Singh v. State of H.P. & others (2019) 10 SCC 516, has categorically held that once work charge employment of a person is held - 6 - liable to be counted for the grant of pensionary benefits to him, as a natural corollary, he will be governed under CCS (Pension) Rules, 1972 and Contributory Pension Scheme will not be applicable to him. It would be profitable to reproduce following paragraphs of judgment rendered in Prem Singh supra: “11. Adverting to the facts of the present case, the petitioner was conferred work charge status on 01.01.2001 and was followed by his regularization on 15.09.2006. Thus, the service of petitioner as work charge employee, followed by regular appointment is liable to be counted for the purpose of pension and other retiral benefits, hence the distinction drawn by the respondents on the ground that petitioner was regularized after the cutoff date i.e. 15.5.2003, cannot be sustained. The petitioner had earned the status of work charge employee as a matter of right under the policy of the State Government. 12. It is apt to reproduce the observations made by Hon’ble Supreme Court in para-31 of the judgment rendered in case of Prem Singh vs. State of U.P. & others 2019 (10) SCC 516, which read as under:- “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 period for pensionary benefits as 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”. - 7 - 13. Once the work charge employment of the petitioner is held liable to be counted for the grant of pensionary benefits to him, as a natural corollary, he will be governed under CCS Pension Rules, 1972 and the Contributory Pension Scheme will not be applicable to him. 14. The stand of the respondents with respect to withholding of payable arrears to the petitioner on the basis of the instructions dated 15.12.2011 issued by the Finance Department can also not be countenanced. Petitioner had earned the right to the arrears payable to him on account of service rendered by him on work charge basis, such right cannot be abridged by administrative instructions.” 9. At this stage, Mr. Kahol, learned Additional Advocate General also attempted to argue that the present petition is barred by delay and laches because, petitioner has approached this court after delay of 17 years, after regularization, however, this court is not impressed with aforesaid submission of Mr. Kahol, for the reason that prior to filing of the petition at hand, petitioner had approached this court by way of CWP No. 510 of 2015, which came to be disposed of on 9.8.2015, with a direction to the respondents to grant work charge status to the petitioner with effect from 1.1.2000. Despite there being aforesaid direction issued by this court, respondents kept on sitting over matter till 2018, when vide order dated 14.5.2018, petitioner came to be conferred work charge status with effect from 1.1.2000 and arrear on account of conferment of work charge status came to be released to the petitioner on 14.5.2018. - 8 - 10. Though the petitioner was regularized with effect from 25.8.2006, vide order dated 24.8.2006, but since work charge status was conferred upon the petitioner in 2018, with effect from 1.1.2000, there was no occasion otherwise, for the petitioner to approach this court till the year 2018, where after, he kept on requesting the respondents to take into consideration period of work charge status for the purpose of qualifying service for pension, but once, such request was not accepted, he approached this court in the instant proceedings. Moreover, plea of delay and laches sought to be raised by the respondents in the instant petition may not be available to them, for the reason that on account of non-counting of work charge period, petitioner is suffering continuously and had respondents taken into consideration aforesaid period for qualifying service, petitioner would have received pension immediately after retirement in the year 2017. Since the cause of action of petitioner is recurring, submission made on behalf of petitioner with respect to delay and laches deservers outright rejection. 11. Otherwise the issue of delay and laches in the matter of recurring cause of action is well settled. In this regard, reliance may be placed on judgment rendered by Hon'ble Apex Court in Union of India & ors v. Tarsem Singh, (2008) 8 SCC 648, wherein it has been held as under: - 9 - “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” 12. Above decision has been followed by Hon'ble Apex Court in Asger Ibrahim Amin v. Life Insurance Corporation of India, (2016) 13 SCC 797, holding as under: “4. As regards the issue of delay in matters pertaining to claims of pension, it has already been opined by this Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648 that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the - 10 - claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights. This Court held:” 13. Perusal of above decisions shows that in the matters of recurring cause of action, delay and laches or limitation will not thwart the claim so long as the claim subsists. In the case at hand, the petitioner is suffering recurring losses thus, keeping in view his status and plight, it would be better and just to ignore the delay in filing the petition at hand. 14. Similar observation has been made by a Co-ordinate Bench of this Court in Yashwant Singh v. State of Himachal Pradesh, CWPOA No. 46 of 2020, decided on 22.4.2021, wherein it has been held that where the Court is dealing with one of fundamental rights of poor workman, its role is that of a sentinel for protection of fundamental rights of the weak and down-trodden and cannot, therefore, easily allow itself to be persuaded to refuse the reliefs solely on jejune ground of delay and laches. Learned Single Judge of this Court in order supra, held as under: “It needs to be observed that where the Court is dealing with one of fundamental rights of poor workman, its role is that of a sentinel for protection of fundamental rights of the weak and down-trodden and cannot, therefore, easily allow itself to be persuaded to refuse the reliefs solely on jejune ground of delay and laches or the like. The right seeking of benefits of regularization of service is a right akin to a fundamental right guaranteed to the workman. Therefore, the plea of - 11 - delay should not come in the way of granting relief to the workman, more particularly, when the Court is of the opinion that it is the inaction of the respondents that has formed basis of such delay.” 15. Present petition is allowed. Respondents are directed to take into consideration period of work charge status while calculating qualifying service for the purpose of pension and thereafter, due and admissible pension under Old Pension Scheme be released to expeditiously, preferably within a period of two months, but subject to deposit of NPS amount received by the petitioner, failing which, respondents are liable to pay interest at the rate of 6% per annum. Pending applications, if any, also stand disposed of. (Sandeep Sharma), Judge August 4, 2025 (shankar)