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2025 DAILYLAW 3804 (HP)

Sudarshna Devi v. State of Himachal Pradesh

2025-10-08

Ranjan Sharma

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JUDGMENT : Ranjan Sharma, J. Petitioner, Sudarshna Devi, being widow of Late Sh. Om Parkash has come up before this Court,seeking the following reliefs:- “I. That the respondents may very kindly be directed to consider the services of the deceased husband of the applicant to be regularized with effect from 1.1.1994. II. That the respondents be directed to release pension to the deceased from 1.5.2007 and thereafter family pension to the applicant from the date of death of the husband of the applicant. III. That the respondents be directed to pay all the pecuniary benefits along with interest at the rate of 18% per annum. IV. That the respondents be directed to pay all consequential benefits of regularization with effect from 1.1.1994 to the applicant.” 2. At the very outset, learned counsel for the petitioner, on instructions states that the petitioner shall be satisfied, in case notional family pension is granted to the present petitioner from date of death of husband on 20.09.2015 and actual family pensionary benefits are granted with effect from 01.01.2018, in terms of the principles mandated by the Hon’ble Supreme Court in Civil Appeal No. 6309 of 2017 titled as Sunder Singh versus The State of Himachal Pradesh & Ors along with connected matters, decided on 08.03.2018 reiterated in Civil Appeal No. 4792 of 2022 titled as Balo Devi versus State of Himachal Pradesh & Ors., decided on 18.07.2022 and SLP(c) 1007 of 2024, State of Himachal Pradesh versus Roop Lal decided on 18.03.2025, entitling the Class-III and Class-IV Employees for pension/family pension, based on the regular service and the weightage granted for daily waged service with effect from 01.01.2018. FACTUAL MATRIX: 3. Grievance of the petitioner is that husband of the petitioner, Late Sh. Om Parkash, was engaged as a Beldar on daily wage basis on 01.05.1984. Thereafter he served as a Pipeline man from 01.06.1984 and then as Assistant Fitter 01.04.1998 and then as Fitter 01.01.1989 onwards. It is further averred that the services of her Late husband were regularized from 01.04.1998 and he retired from service on attaining the age superannuation on 30.04.2007 after rendering 09 years of work charge/regular service but neither the pension has been granted to him nor resultant family pension due to the present petitioner namely Surdarshna Devi, being the widow has been granted after the death of her deceased husband on 20.09.2015, [Annexure A-4 with the writ petition]. STAND OF STATE AUTHORITIES IN REPLY- AFFIDAVIT: 4. Respondents have filed the Reply/Affidavit of Superintending Engineer, IPH Circle Una dated 11.05.2016. In Para-4 of the Reply/Affidavit and in Mandays Chart [Annexure R-1], the incumbency of deceased employee, namely Om Parkash, has been detailed by the respondents showing that the deceased employee had served as Beldar on daily wage basis 01.05.1984 and then as Pipeline man 01.06.1984; and then as Assistant Fitter from 01.04.1998 and then as Fitter from 01.01.1989 till his services were dispensed with, which led to the framing of a reference and its adjudication by the Labour Court vide Case 142 of 1990. Mandays Chart further indicates that the deceased employee was regularized with effect from 01.04.1998 and he continued to serve as such till superannuation on 30.04.2007. Reply further indicates that the husband of the petitioner died on 20.09.2015. It is further averred that all the admissible retiral benefits were released to the deceased employee and the pension is not admissible under the CCS (Pension) Rules 1972, as the deceased employee had not rendered 10 years of qualifying service. In this backdrop, prayer was made for dismissing the petition. 5. Heard Mr. Anil Sharma, Advocate appearing for Ms. Archna Dutt, Advocate for the petitioner as well as Mr. Sumit Sharma, Learned Deputy Advocate General for the respondents and have gone through the material on record. ANALYSIS 6. Taking into account the entirety of the facts and circumstances and the material on record, this Court is of the considered view, that the petitioner Sudharshan Devi, being the widow of deceased employee, Late Sh. Om Parkash is entitled for family pension, notionally w.e.f. 20.09.2015 i.e. the date of death of her husband and actual family pension with effect from 01.01.2018, for the following reasons:- 6(i)   The issue regarding admissibility of pension/ family pension to aClass-IV Employee, who had rendered daily wage service followed by regular service stands adjudicated by giving proportionate weightage for daily wage service and by counting such service with regular service has been outlined by the Hon’ble Supreme Court, in Civil Appeal No. 6309 of 2017, titled as Sunder Singh Vs State of Himachal Pradesh and another alongwith connected matters decided on 08.03.2018, entitling the Class-IV Employee for Pension/Family Pension on actual basis w.e.f 01.01.2018, in the following terms: “5. Even though strictly construing the Rules, the appellants may not be entitled to pension. 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. 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.” 6(ii). The judgment in the case of Sunder Singh [supra] was further explained by the Hon’ble Supreme Court in Civil Appeal No. 4792 of 2022 titled as Balo Devi versus State of Himachal Pradesh and another decided on 18.07.2022, in the following terms:- 5(i). The judgment in the case of Sunder Singh [supra] was further explained by the Hon’ble Supreme Court in Civil Appeal No.4792 of 2022, titled as Balo Devi Versus State of H.P. &Ors., decided on 18.07.2022, in the following terms (i). The judgment in the case of Sunder Singh [supra] was further explained by the Hon’ble Supreme Court in Civil Appeal No.4792 of 2022, titled as Balo Devi Versus State of H.P. &Ors., decided on 18.07.2022, in the following terms:- “The intent of this Court was quite clear that: - (a) The services rendered as a regular employee may first be computed. (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. (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. 6(iii). (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. 6(iii). Following the mandate of the Hon’ble Supreme Court,  in  the  cases  of  Sunder  Singh  and Balo Devi [supra], the issue regarding the admissibility of Pension/Family Pension to Class-III Employees, came up before this Court in LPA No. 196 of 2022 titled as RoopLal versus State of Himachal Pradesh and others, decided on 11.10.2023 entitling Class–III Employees for Pension/Family Pension, notionally from due date but on actual basis w.e.f. 01.01.2018, on analogy of Class-IV Employees, in the following terms:- 15. The concept of “proportional equality” (egalitarian equality) as distinguished from “formal equality” (even referred to as equality “in law”) expects the States to take affirmative action in favour of disadvantaged sections of the society within the framework of liberal democracy. The  principle  of  proportional equality is attained only when equals are treated equally and unequals unequally. The principle of proportional equality therefore involves an appeal to some criterion in terms of which differential treatment is justified. If there is no significant respect in which persons concerned are distinguishable, differential treatment would be unjustified. 16. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39-A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the “directive principles of State policy”. These articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice—social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life. The afore-stated Constitutional mandate has to be taken into account while dealing with matters pertaining to livelihood of the concerned. 17. The afore-stated Constitutional mandate has to be taken into account while dealing with matters pertaining to livelihood of the concerned. 17. In granting the benefit of counting service rendered on daily wage for the purpose of pension to class IV employees a standard of proportional equality, principles enunciated in the Directive Principles of State Policy were taken into account while considering conditions/circumstances of a class of employees which stood in the way of their access to the enjoyment of basic rights or claims of pension. 18. When it comes to granting the benefit of counting service rendered on daily wage for the purpose of pension to class III employees there is no significant respect in which persons concerned are distinguishable from Class IV employees. As has already been stated supra in the case of Class IV employees Articles 14,38,39 and the Concept of “proportional equality” (egalitarian equality) have been read into the relevant pension rules and only thereafter a benefit of counting service rendered on daily wage for the purpose of pension has beenaccorded to the Class IV employees. Non grant / non extension of benefit of counting service rendered on daily wage for the purpose of pension to Class III employees by not reading Articles 14, 38, 39, the Concept of “proportional equality” (egalitarian equality) into the relevant pension rules would lead to a differential treatment to persons who are in no manner significantly different hence in the facts and attending circumstances would be unjustified. The extension of the same benefit in our considered view cannot be denied. Moreso, especially in view of Rafiq Masih's case 2015 (8) 334 wherein, Class III and Class IV employees on equitable considerations have been treated at par with respect to the right of the State (employer) to recover from them amounts paid de-hors the applicable service rules 19. The claim herein is with respect to counting of service as rendered on daily wage basis before Regularization/ grant of work charge status towards qualifying service for grant of pension. For the said adjudication what is relevant is the period rendered towards daily wage by the concerned employee irrespective of the status of the employee, Class-III/ Class IV. 20. The claim for pension is a recurring cause of action. The petitioner is an employee who belongs to a lower hierarchy in service. For the said adjudication what is relevant is the period rendered towards daily wage by the concerned employee irrespective of the status of the employee, Class-III/ Class IV. 20. The claim for pension is a recurring cause of action. The petitioner is an employee who belongs to a lower hierarchy in service. Delay in filing the present petition would dis-entitle the petitioner for grant of interest but he would definitely be entitled for monetary benefits prospectively. Further on account ofdelay in filing the present petition monetary benefits can be restrictedto three years prior to the filing of the petition. In this respect it would be appropriate to refer to (2008) 8 Supreme Court Cases 648, titled as Union of India and others vs. Tarsem Singh, wherein it has been held that non-grant of pension is a continuing wrong which in spite of delay may be granted as it does not effect the rights of third-parties. In so far as the consequential relief of recovery of arrears for past service is concerned, it has been held therein that principle relating to recurring/successive wrongs would apply. However, the consequential relief relating to arrears shall normally be restricted to a period of three years prior to the date of filing of the writ petition. 21. In view of the aforesaid proposition of law, we are of the considered view that the purpose of pension, the Constitutional mandate contained in Articles 14, 38, 39 of the Constitution of India and the doctrine of proportionate equality would be required to be read into the Rules as has been held by the Apex Court in Sunder Singh's case supra in order to give weightage of service rendered as daily wager towards regular service for the purpose of pension even to Class-III employees. 22. In view of the above discussion, respondent- State is directed to extend benefit of Daily Wage service to the petitioner in terms of Sunder Singh's case, as explained in Balo Devi's case, for calculating qualifying service for the purpose of pension, and to extend all benefits of pension to the petitioner within one month from today. However, the petitioner shall be entitled for monetary benefits three years prior to the date of filing of the petition. Benefits accruing beyond three years prior to filling of the petition, if any, shall be only on notional basis. However, the petitioner shall be entitled for monetary benefits three years prior to the date of filing of the petition. Benefits accruing beyond three years prior to filling of the petition, if any, shall be only on notional basis. 22-A. With respect to the cut-off date from which actual monetary benefits are to be extended, keeping in view the law laid down by Supreme Court in Sunder Singh’s and Balo Devi’s cases, it is further clarified that the petitioner shall be entitled for actual monetary benefits w.e.f. 1.1.2018 and the monetary benefits, if any, prior to 1.1.2018 shall only be on notional basis, but if the three years period, prior to filing of the petition, is subsequent to 1.1.2018, then, the actual benefits shall be granted from such subsequent date. 23. In view of what has said hereinabove, we allow this appeal and set aside the impugned judgment 6(iv). Notably, the judgment in the case  State of Himachal Pradesh and Ors versus Roop Lal [supra] [LPA No. 196 of 2022] was taken by the State Authorities, before the Hon’ble Supreme Court, in Special Leave to Appeal (C) No. 1007 of 2024 titled as State of Himachal Pradesh &Ors. versus Roop Lal and the aforesaid SLP was dismissed on 18.03.2025. After dismissal of SLP, the judgment in the case of Roop Lal [supra] has attained finality, entitling the Class–III Employees for Pension/Family Pension, on the analogy as granted to Class-IV Employees notionally from due date but actual monetary benefits accruing from Pension/Family Pension shall accrue from 01.01.2018. 7. versus Roop Lal and the aforesaid SLP was dismissed on 18.03.2025. After dismissal of SLP, the judgment in the case of Roop Lal [supra] has attained finality, entitling the Class–III Employees for Pension/Family Pension, on the analogy as granted to Class-IV Employees notionally from due date but actual monetary benefits accruing from Pension/Family Pension shall accrue from 01.01.2018. 7. Based on the mandate of law in the cases of Sunder Singh, Balo Devi and Roop Lal [supra] and the principle of proportional equality, once as per the Mandays Chart, [Annexure R-1], the deceased employee, Late Shri Om Parkash had rendered/deemed to have rendered continuous daily waged service for 13 years from 1985 till regularization on 01.04.1998 [which works out to be 2 years regular service after giving weightage of 1 year regular service in lieu of 5 years of daily wages service] and had rendered 9 years of regular service from 01.04.1998 to 30.04.2007 and based on the component of regular service and daily wage services the regular qualifying service comes to more than 11 years vis a vis minimum requirement of 8 years of service, which has to be reckoned as 10 years services; therefore, the deceased employee Late Shri Om Parkash is held entitled for pension notionally with effect from the date of his retirement w.e.f. 01.05.2007. Upon death of aforesaid employee on 20.09.2015 the notional family pension shall accrue to petitioner-widow from 20.09.2015 upto 31.12.2017. However, the actual benefits accruing from Family Pension shall be released to the present petitioner, namely Sudharshna Devi, being the widow of deceased employee, Late Sh. Om Parkash w.e.f 01.01.2018 onwards with all consequential benefits from said date. DIRECTIONS: 8. Upon death of aforesaid employee on 20.09.2015 the notional family pension shall accrue to petitioner-widow from 20.09.2015 upto 31.12.2017. However, the actual benefits accruing from Family Pension shall be released to the present petitioner, namely Sudharshna Devi, being the widow of deceased employee, Late Sh. Om Parkash w.e.f 01.01.2018 onwards with all consequential benefits from said date. DIRECTIONS: 8. In view of the above discussion and for the reasons recorded herein above, the instant petition is allowed, in the following terms: (i)  Deceased Employee, Late Shri Om Parkash, a retired Fitter (Class-III) is held for Pension notionally, with effect from the date of superannuation on 01.05.2007; (ii) Petitioner-Sudharshna Devi, being the widow of  the deceased employee is  held entitled for family pension notionally from the date of death of her Late husband from 20.09.2015 to 31.12.2017 [in terms of Para 22-A in case of Roop Lal supra] and actual pension shall accrue to the petitioner with effect from 01.01.2018, in terms of the mandate the Hon’ble Supreme Court in the case Sunder Singh, Balo Devi and Roop Lal [supra]; (iii) State Authorities are directed to grant/sanction Family Pension to the petitioner-Sudharshna Devi, notionally with effect from 20.09.2015 [i.e date of death of her husband] and to grant actual Family Pension with effect from 01.01.2018 with all consequential benefits, with all arrears accruing therefrom; (iv) State Authorities shall ensure the release of Family Pension to the petitioner as in directions No. (ii) & (iii) above, within three months from today; (v) Failure to release Family Pension shall hold the  Respondents-State  Authorities  liable  for Interest @ 6 per cent per annum; after expiry of three months period as in direction no.(iv), as above; (vi) Parties to bear respective costs. In aforesaid terms, the instant petition and all pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.