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2025 DAILYLAW 3696 (HP)

Ashok Kumar Jaswal v. State of Himachal Pradesh

2025-09-24

Sandeep Sharma

body2025
JUDGMENT : Sandeep Sharma, J. Since common questions of facts as well as law are involved in all the above-captioned cases, this Court heard them together and the same are now being disposed of vide common judgment. 2. In nutshell, grouse of the petitioners, as has been highlighted in all the petitions and further canvassed by Mr. S.P. Chatterji, learned counsel for the petitioners, is that though in terms of judgment passed by Division Bench of this Court in CWPOA No.195 of 2019, titled as Sheela Devi Vs. State of H.P. and others, decided on 26.12.2019, service rendered on ad hoc basis followed by regular service is required to be taken into consideration for the purpose of qualifying service, but yet respondents have not counted such period for the purpose of pension as well as gratuity. 3. Precisely, the facts of the case, as emerge from the pleadings adduced on record by the respective parties are that petitioners herein though were initially appointed as Instructor in their respective trades, but they all after having rendered more than 20 years of service, retired on 31.12.2016, 30.06.2017, 31.10.2018, 3011.2020 as Principal. Initially petitioners were appointed as Instructor in their respective trades on ad hoc basis, but subsequently they were promoted to the post of Foreman, Group Instructor/ Foreman and Principal after their rendering more than 7 years of service. After there being retired on attaining the age of superannuation, petitioners herein were sanctioned/authorized pension and DCRG by taking into account the regular service rendered by them. Though now in lieu of regular service rendered by the petitioners, they have also been paid gratuity qua afore period, but their precise grouse is that services rendered on ad hoc basis, which were subsequently followed by regularization, have not been taken into consideration for the purpose of pension as well as gratuity. 4. By way of filing reply, respondents have refuted the claim of the petitioners on the premise that ad hoc appointment is not substantive in nature, as such, petitioners herein cannot be granted any benefit qua the same. While referring to CCS (Pension) Rules, 1972, Mr. 4. By way of filing reply, respondents have refuted the claim of the petitioners on the premise that ad hoc appointment is not substantive in nature, as such, petitioners herein cannot be granted any benefit qua the same. While referring to CCS (Pension) Rules, 1972, Mr. Rajan Kahol, learned Additional Advocate General, submitted that afore rules are applicable only to the regular Government servants appointed in the substantive capacity in the service of State Government because in terms of CCS (Pension) Rules, 1972, Government servants appointed substantively to civil services or posts in connection with the affairs of the State Government and are borne on pensionable establishments can be granted pension and gratuity. 5. To the contrary, Mr. S.P. Chatterji, learned counsel for the petitioner, while referring to Rule 13 of CCS (Pension) Rules, 1972, vehemently argued that qualifying service of a Government servant commences from the date he/she takes charge of the post to which he/she is first appointed either substantively, in an officiating or temporary capacity provided that officiating or temporary service is followed by substantive appointment in the same or another service or post. He submitted that since petitioner’s ad hoc service is followed by regular service, the service rendered on ad hoc basis is required to be taken into consideration for the purpose of pensionary benefits in terms of Rule 13 of CCS (Pension) Rules. 6. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, submitted that ad hoc service does not fall under the definition of temporary service in terms of Rules 2(d) of the CCS (TS) Rules, 1965, therefore, ad hoc service is neither officiating nor temporary service in terms of the CCS (TS) Rules, 1965. Lastly, Mr. Rajan Kahol, learned Additional Advocate General, argued that prayer made on behalf of the petitioner cannot be granted on the ground of delay and laches because order, thereby granting pension and gratuity was passed eight years back, but petitioners herein remained silent. Petitioners, after having accepted that order, never laid challenge to the same for more than eight years. 7. Having heard learned counsel for the parties and perused material available on record, this Court is of the view that by now it is well settled that ad hoc service followed by regular service is required to be taken into consideration for counting the qualifying service. 7. Having heard learned counsel for the parties and perused material available on record, this Court is of the view that by now it is well settled that ad hoc service followed by regular service is required to be taken into consideration for counting the qualifying service. Reliance in this regard is placed upon the judgment passed by Division Bench of this Court in CWPOA No.195 of 2019, titled as Sheela Devi Vs. State of H.P. and others, wherein Division Bench of this Court, having taken note of judgments passed by Hon’ble Apex Court on earlier occasion, categorically held that services rendered prior to regularization in the capacity of work- charged employees, contract employees, contingency paid fund employees or non-pensionable establishment shall be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment. Relevant paras of the afore judgment are reproduced herein below:- “17. 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: “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 work-charged 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. 29. 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. 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 work charged 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 had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma & Ors. v. State of Uttar Pradesh & Ors. (CA No. 2019 @ SLP (C) 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 as a 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 work- charged 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 period for pensionary benefits as if no services had been rendered by them. 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. 31. 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. 32. 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 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. 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 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. 33. 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. 34. 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.” 18. 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 not preceded by temporary or regular appointment in a pensionable establishment. 19. Once that be so, obviously no discrimination can be made qua the employees, who rendered services prior to regularization in the capacity of contractual employees and were regularized 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. 8. Reliance is also placed upon the judgment passed by Coordinate Bench of this Court in CWP(T) No.7712 of 2008, titled as Paras Ram Vs. 8. Reliance is also placed upon the judgment passed by Coordinate Bench of this Court in CWP(T) No.7712 of 2008, titled as Paras Ram Vs. State of Himachal Pradesh and another, wherein it came to be held that ad hoc services rendered by the petitioner before his regularization is required to be taken into consideration for the purpose of annual increments. Division Bench of this Court in LPA No.36 of 2010, titled as Sita Ram Vs. State of HP & ors, held that though this Court in Para Ram’s case had laid down the law that if ad hoc service is followed by regular service in the same post, the said service could be counted for the purpose of increments, but it is also settled principle of law that any service that is counted for the purpose of increment, will also count for pension also. Relevant para of the afore judgment is reproduced herein below:- “2. According to the learned counsel for the petitioner-appellant, the petitioner having been recruited through the same recruitment process, he is entitled to have seniority also in respect of the period of ad hoc service. We are afraid that contention cannot be appreciated. It is not in dispute that initial recruitment was only for ad hoc service. However, this court in Paras Ram’s case had laid down the law that if ad hoc service is followed by regular service in the same post, the said service could be counted for the purpose of increments. 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. However, so far as the seniority is concerned, the basic norms of seniority will be counted on the date of appointment in regular service, qua those who are already in regular service as on that date. If the claim of the petitioner-appellant is to be accepted, it will unsettle the settled seniority of those regular teachers. It may also not be out of context to note that none of the affected teachers is before us. Be that, as it may. If the claim of the petitioner-appellant is to be accepted, it will unsettle the settled seniority of those regular teachers. It may also not be out of context to note that none of the affected teachers is before us. Be that, as it may. Since the petitioner-appellant under law is entitled only for counting the ad hoc service, followed by regular service for the purpose of increments and pension, there is no merit in the appeal and the same is dismissed subject to the above modification that the period that is counted for the purpose of increment, will count for pension also.” 9. Division Bench of this Court in CWP No.4550 of 2010, titled as Ravi Kumar Vs. State of H.P. and another along with connected cases, held that as far as ad hoc appointment followed by regular appointment is concerned, there is no dispute that said ad hoc period is liable to be counted for the purpose of increments and that position has become final in view of the decision in LPA No. 36 of 2010. Most importantly, in afore judgment, Division Bench held that “Qualifying service” for the purpose of CCS (Pension) Rules, 1972 means a service which qualifies for the purpose of pension and gratuity. The service counted for the purpose of increments will be considered qualifying service for the purpose of pension, since a person is granted increment in a scale only when that person is entitled to count that service as qualifying service in terms of Rule 13 of the CCS (Pension) Rules. Relevant para of the aforesaid judgment shall be read as under:- “7. A conjoint reading of the above provisions would make the position clear that a person first appointed in officiating or temporary capacity and in whose case such appointment is followed by a substantive appointment either in the same or subsequent post such period of temporary service without break is liable to be counted as qualifying service. Qualifying service for the purpose of CCS (Pension) Rules, 1972 means a service which qualifies for the purpose of pension and gratuity. Qualifying service for the purpose of CCS (Pension) Rules, 1972 means a service which qualifies for the purpose of pension and gratuity. The service counted for the purpose of increments will be qualifying service for the purpose of pension since a person is granted increment in a scale only when that person is entitled to count that service as qualifying service in terms of Rule 13 of the CCS (Pension) Rules, unless and otherwise carved out by specific agreement or contract. Contract service as such is not defined in any of the Rules. However, there is one reference to count contract service as qualifying service towards pension under Rule 17 of the CCS ( Pension) Rules which reads as follows:- “(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; or (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 that 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 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.” 10. In CWPOA No.242 of 2019, titled as Sarita Sharma Vs. State of H.P. and another, Coordinate Bench of this Court held that taking of work on ad hoc basis for long amounts to adopting the exploitative device. In CWPOA No.242 of 2019, titled as Sarita Sharma Vs. State of H.P. and another, Coordinate Bench of this Court held that taking of work on ad hoc basis for long amounts to adopting the exploitative device. Though in afore case, services of the petitioner was regularized, but period spent by her on ad hoc basis was not counted towards the qualifying service. Coordinate Bench of this Court further held that the respondents have not only deprived the petitioner from the due emoluments during the period she served on less salary on ad hoc basis, but she was also deprived of counting of the period for pensionary benefits. The respondents are/were benefitted from the services rendered by the petitioner in the heydays of her life on less salary on ad hoc basis, therefore, there is no rhyme or reason to not count the ad hoc period in case it has been rendered before regularization. Relevant paras of the afore judgment shall be read as under:- “8. Adverting to the facts of the case, I have no difficulty in concluding that even though the appointment of the petitioner was on adhoc basis but that was in no manner qualitatively different from the regular employees and particularly when there was a vacancy and need for the services of the petitioner and she was ultimately regularized. Once that be so, then obviously it was unfair on the part of the respondents to take work from the petitioner on adhoc basis. They ought to have resorted to an appointment on regular basis. 9. The taking of work on adhoc basis for long amounts to adopting the exploitative device. Later on, though the services of the petitioner have been regularized, however, the period spent by her on adhoc basis, has not been counted towards the qualifying service. Thus, the respondents have not only deprived the petitioner from the due emoluments during the period she served on less salary on adhoc basis but she was also deprived of counting of the period for pensionary benefits. 10. The respondents have been benefitted by the services rendered by the petitioner in the heydays of her life on less salary on adhoc basis. Therefore, there is no rhyme or reason not to count the adhoc period in case it has been rendered before regularization. 10. The respondents have been benefitted by the services rendered by the petitioner in the heydays of her life on less salary on adhoc basis. Therefore, there is no rhyme or reason not to count the adhoc period in case it has been rendered before regularization. If the same is denied, it would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. 11. The classification cannot be done on the irrational basis and when the 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 non-discriminatory, 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 adhoc shall have to be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment. 11. It is quite apparent from the aforesaid judgments taken into consideration that ad hoc service rendered by an employee before his regularization is necessarily required to be taken into consideration for the purpose of pensionary benefits. It is also well settled that pensionary benefits also include gratuity. Moreover careful perusal of Rule 13 of CSS (Pension) Rules itself suggests that qualifying service of a Government servant commences from the date he/she takes charge of the post to which he/she is first appointed either substantively or in an officiating or temporary capacity provided that officiating or temporary service is followed by substantive appointment in the same or another service or post. Petitioners herein are on better footing because their initial appointment is on ad hoc basis. It is also not in dispute that ad hoc services were followed by regularization. If it is so, in terms of aforesaid Rules, petitioners herein are entitled for counting of afore period for the purpose of pensionary benefits. At this stage, it would be apt to take note of Rule 13 (1) (q) and 13 of CCS (Pension) Rules, 1972:- “Qualifying Service” means service rendered while on duty or otherwise which shall be taken into account for the purposes of pension and gratuities admissible under these Rules. And 13. At this stage, it would be apt to take note of Rule 13 (1) (q) and 13 of CCS (Pension) Rules, 1972:- “Qualifying Service” means service rendered while on duty or otherwise which shall be taken into account for the purposes of pension and gratuities admissible under these Rules. And 13. Commencement of qualifying service:- Subject to the provisions of these rules, 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: (a) in the case of a Government servant in a Group ‘D’ service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and (b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity. (c) the provisions of Clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19.” 12. A conjoint reading of both the afore provisions clearly reveals that a person first appointed in officiating or temporary capacity and in whose case such appointment is followed by a substantive appointment either in the same or subsequent post, such period of temporary service without break is liable to be counted as qualifying service. The service counted for the purpose of increments will be qualifying service for the purpose of pension, since a person is granted increment in a scale only when that person is entitled to count that service as qualifying service in terms of Rule 13 of the CCS (Pension) Rules, 1972. Qualifying service for the purpose of CCS (Pension) Rules, 1972 means a service which qualifies for the purpose of pension and gratuity as has been held by Division Bench of this Court in Sita Ram and Para Ram (supra). 13. Consequently, in view of the above, present petitions are allowed and letters dated 09.05.2024, 13.05.2024 and 15.06.2024 annexed with the respective writ petitions are hereby quashed and set aside. 13. Consequently, in view of the above, present petitions are allowed and letters dated 09.05.2024, 13.05.2024 and 15.06.2024 annexed with the respective writ petitions are hereby quashed and set aside. Respondents are directed to take into consideration service rendered by the petitioners on ad hoc basis prior to their regularization for the purpose of pensionary benefits, which shall include gratuity also. Though petitioners herein are in receipt of pension regularly and they have also received gratuity qua period rendered by them on regular service, but in terms of judgment passed by this Court, they shall also be entitled to pension and gratuity for the period they rendered services on ad hoc basis. Respondents are further directed to revise the pension payment order and pay consequential benefits to the petitioners, on account of arrears expeditiously, preferably within six months, failing which petitioners would be entitled to interest @ 6% per annum from the date such amount fell due. Pending applications, if any, stand disposed of.