| Himachal Pradesh High Court |
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWPOA No. 849 of 2019
Decided on: 15.7.2020
.
__________________________________________________________________
Dr. Kamal Dev Sharma ...........Petitioner
Versus
State of Himachal Pradesh and Ors. ..........Respondents
__________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner : Mr. Onkar Jairath and Mr. Shubham
Sood, Advocates, through Video
Conferencing.
For the Respondents : Mr. Ashok Sharma, Advocate General,
with Mr. Sudhir Bhatnagar & Mr. Arvind
Sharma, Additional Advocates General
and Mr. Kunal Thakur, Deputy Advocate
r General.
__________________________________________________________________
Sandeep Sharma, Judge (oral):
In the instant proceedings filed under Article 226 of the Constitution of India, prayer has been made on behalf of the petitioner to quash and set-aside order dated 9.8.2011 (Annexure P-4), passed by respondent No.1 in purported compliance of order/judgment dated 29.12.2010, passed by the Division Bench of this Court in CWP No. 3561 of 2010, titled Dr. Kamal Dev Sharma v. State of HP and Ors., whereby following directions came to be issued:-
"Having regard to the CCS (Pension) Rules, 1972, having regard to the GPF Rules and having regard to the submissions as above, we are of the view that in Whether the reporters of the local papers may be allowed to see the judgment?
the case of the petitioners, the matter requires fresh consideration by the Government since as the .
amendment introduced w.e.f. 15.5.2003, all appointments made in the State of Himachal Pradesh on or after the date of publication of the notification namely, on 15.5.2003, they alone are not be covered by CCS (Pension) Rules, 1972. It is also to be noted as per the Scheme dated 17.8.2006, the same is only made applicable to the new appointees appointed after 15.5.2003.
Having regard to the factual matrix and legal position as referred to above, whereby the appointments though on adhoc/ contractual/tenure basis having been made prior to 15.5.2003 and which appointments having been given effect by way of regularization with effect from the date of adhoc/tenure/contractual basis, the contentions as referred to above, assume significance and force. Therefore, these writ petitions are disposed of directing the first respondent to consider the case of the petitioners afresh and take appropriate action in the matter expeditiously."
2. Perusal of order dated 9.8.2011 passed by the respondents reveals that representation having been filed by the petitioner in terms of aforesaid order passed by this Court, came to be rejected and as such, he was again compelled to approach this Court in the instant proceedings, praying therein for following reliefs:
"i. to quash and set aside the impugned order Annexure P-4, dated 9th August, 2011, passed by .
respondent No.1, thereby directing the respondents to continue the contribution of petitioner towards GPF account No. Med-16543, which was allotted to the petitioner.
ii. to hold that the Contributory Pension Scheme i.e. Himachal Pradesh Civil Services Contribution Pension Rules, 2006 is not applicable retrospectively to the Government employees including the petitioner."
3. For having bird's eye view, certain undisputed facts, which may be relevant for proper adjudication of the case, are that the petitioner was appointed as Ayurvedic Medical Officer on adhoc basis vide communication dated 23.1.1999 (Annexure P-1). Close scrutiny of aforesaid communication reveals that 50 Ayurvedic doctors including the petitioner were ordered to be appointed in the pay scale of Rs. 7220-
11,660/- on the recommendation of Selection Committee. It is also not in dispute that services of the petitioner were subsequently regularized vide communication dated 25.11.2006 (Annexure P-2). Petitioner after his appointment as Ayurvedic Medical Officer at Ayurvedic Dispensary, Shong, District Kinnaur, H.P, started contributing towards General Provident Fund (GPF) and accordingly, he was allotted GPF number i.e. Med-16543.
4. After regularization of the services of the aforesaid Ayurvedic Officers including the petitioner, respondents directed the .
petitioners to switch over to Contributory Pension Scheme introduced vide notification dated 17.8.2006. However, being aggrieved with the aforesaid decision taken by the respondent-State, petitioner alongwith other Ayurvedic Doctors, approached this Court by way of CWP No. 3561 of 2010, titled Dr. Kamal Dev Sharma v. State of HP and Ors. and CWP No. 1921 of 2008, titled Dr. Deepak Pathania and Ors v. State of HP and Ors., praying therein for reliefs as have been prayed in the instant petition.
5. The Division Bench of this Court after having heard parties and perused record made available to it disposed of the writ petitions, directing therein respondent No.1 to consider the case of the petitioners afresh. In purported compliance of aforesaid direction issued by the Division Bench of this court, respondent No.1 considered the matter afresh and vide speaking order dated 9.8.2011, Principal Secretary (Ayurveda) Government of Himachal Pradesh, concluded that employees appointed on or after 15.5.2003 are governed by the HP Civil Services Contributory Pension Rules, 2006 and are not eligible to subscribe to the General Provident Fund as per Rule 4(4) of the HP Civil Services Contributory Pension Rules, 2006. While drawing aforesaid conclusion, Principal Secretary (Ayurveda), observed in the order that Rule 4 (26) of the HP Civil Services Contributory Pension Rules, 2006 provides that employees appointed on or after 15.5.2003 and who are already contributing .
towards the GPF shall cease to continue to subscribe towards the GPF from the date of notification of Contributory Pension Scheme and the amount deposited in their GPF account, shall be transferred to their respective CPF accounts alongwith interest.
6. Mr. Onkar Jairath, learned counsel representing the petitioner contended that decision dated 09.8.2011 taken by respondent No.1 in purported compliance of judgment rendered by the Division Bench of this Court in earlier case filed by the present petitioner is not sustainable in the eye of law because competent authority while considering case of the petitioner afresh has failed to take note of the observations/directions made/passed by the Division Bench of this court while passing judgment dated 29.12.2010. He further contended that respondents have failed to take note of the fact that petitioner after having joined his duty on 17.2.1999 was allotted GPF number i.e. Med-
16543 on 14.7.1999 and since then, he had been regularly contributing to the GPF from monthly salary and as such, there was no occasion for the respondents to direct the petitioner to switch over from GPF to CPF. Mr. Jairath further contended that once services of the petitioner were ordered to be regularized from the date of his joining as Ayurvedic Medical Officer, Contributory Pension Scheme introduced vide notification dated 17.8.2006 could not be made applicable in the case of .
the petitioner, who was admittedly appointed in the year, 1999 and was regularized on 25.11.2006. Mr. Jairath, further contended that in judgment dated 26.12.2019, passed by the Division Bench of this Court, in case titled Smt. Sheela Devi v. State of HP and Ors in CWPOA No. 195 of 2019 as well as judgment dated 1.1.2020, passed by this Court in CWP No. 3267 of 2019 tilted Ram Krishan Sharma v. The Accountant General (A&E) HP and Ors, it has been categorically held that service rendered by an employee prior to regularization in any capacity are required to be counted towards qualifying service for grant of pension and increment and as such, case of the petitioner is squarely covered with the aforesaid judgments. While concluding his arguments, Mr. Jairath, argued that this Court while rendering judgment in Ram Krishan Sharma's case (Supra) has held that the entire service of an employee is to be counted as qualifying service and his date of appointment will relegate back to his initial date of appointment and as such, he cannot be ousted from the pension scheme by applying the date of regularization.
7. Respondents though have virtually admitted the facts of the case, as have been taken note herein above, but their case is that since petitioner was appointed on regular basis after 15.5.2003, his services have been rightly held to be governed by the HP Civil Services Contributory Pension Rules, 2006. Mr. Arvind Sharma, learned Additional Advocate .
General, contended that as per Rule 4 (26) of the aforesaid Rules, employees appointed on or after 15.5.2003 and who are already contributing towards the GPF shall cease to continue to subscribe towards the GPF from the date of notification of the Contributory Pension Scheme and as such, no infirmity and illegality can be found in the order impugned before this Court in the instant proceedings.
8. Having heard learned counsel for the parties and perused material available on record, this Court finds that respondent No.1 has rejected case of the petitioner on the ground that since his services were regularized on 25.11.2006, he is governed by the Contributory Pension Scheme, but in the instant case, petitioner was appointed as Ayurvedic Medical Officer on adhoc basis in the year, 1999 and his services were regularized on 25.11.2006 i.e. after 15.5.2003.
9. At this stage, it may be noticed that this Court while dealing with cases of Ayurvedic Medical Officers, as is the case of the petitioner, have already held that service of an employee appointed on contract basis in temporary capacity or on adhoc is to be counted towards qualifying service for grant of pension and increment.
10. In Sheela Devi's case (supra), husband of the petitioner was also appointed as Ayurveda Doctor on contract basis in temporary .
capacity in the year, 1999 and his services were thereafter regularized in the year, 2009. Since husband of the petitioner expired on 23.1.2011, petitioner being his wife made a request for release of pension, but same was turned down by the respondents vide order dated 18.6.2018 on the ground that services rendered by the husband of the petitioner on contract basis cannot be counted towards pensionary benefits under CCS Pension Rules, 1972 as the same were applicable only to regular employees appointed in the government department on or before 4.5.2003. However, as has been taken note herein above, coordinate Bench of this court while placing reliance upon various judgments rendered by the Hon'ble Apex Court as well as this Court rejected the aforesaid contention of the department that since services of the husband of the petitioner were regularized after 14.5.2003, he cannot be held entitled for pension.
11. Bare perusal of judgment rendered by this Court in Ram Krishan Sharma's case supra suggests that contention of respondent department, that since services of the petitioner in that case were regularized in the year, 2006, his date of appointment to the regular post is to commence from the date of his regularization, was rejected outrightly.
In the aforesaid judgment, it has been specifically held by this Court that by no stretch of imagination, regularization can be said to be form of .
appointment. Rather, regularization would mean conferring the quality of permanence on the appointment which was initially made on temporary, ad-hoc or contract basis.
12. In Sheela Devi's case (supra), it has been held as under:-
"2. The late husband of the petitioner was appointed as Ayurvedic doctor on contract basis in temporary capacity in the year 1999, however, his services were thereafter regularised in the year 2009 and he shortly thereafter expired on 23.01.2011. The request made by the applicant for release of pension has been turned down by the respondents vide order dated 18.6.2018 on the ground that the services rendered by the husband of the applicant on contract basis cannot be counted for pensionary benefits under CCS (Pension) Rules, 1972 (for short 'Pension Rules') as the same are applicable only to regular government employees appointed in the pensionable establishments in the Government departments on or before 14.05.2003. The Government employees appointed in non-pensionable establishments are covered under the Contributory Provident Fund Rules, 1962. In terms of rule 2 of the Pension Rules, these rules are applicable to the Government employees appointed substantively to civil services and posts in Government departments which are borne on pensionable establishments appointed on or before 14.05.2003. Further, as per rule 2 (g) of the Pension Rules, these Rules are not applicable to the persons employed on contract except when the contract provides otherwise.
3. We have heard learned counsel for the parties and have gone through the records of the case carefully.
4. Rule 17 of the Central Civil Services (Pension)Rules, 1972 reads as under:
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 ; 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 r 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 benefits payable or paid to him on account of service rendered on contract."
5. It is clear from the plain language employed in rule 17 of the Central Civil Services (Pension) Rules, 1972 that if a person is initially engaged by the Government on contract for a specified period and is subsequently appointed to the same or another post in a substantiative capacity in a pensionable establishment without interruption of duty, he may opt either to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service or to agree to refund to the Government the monetary benefit referred to in clause 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.
6. We may at this stage refer to a decision rendered by learned Single Judge of this Court in Paras Ram vs. State of Himachal Pradesh and another, Latest HLJ 2009 (HP) 887, wherein it was laid down that if adhoc service is followed by regular service in the same post, the said service can be counted for the purpose of increments.
7. Further a Division Bench of this Court in LPA No. 36 of 2010 .
titled Sita Ram vs. State of H.P. and others, decided on 15.7.2010 after placing reliance in Paras Ram's case (supra) held that "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."
8. A co-ordinate Bench of this Court (Coram: Mr. Justice Rajiv Sharma, J. and Mr. Justice Sureshwar Thakur, J.) while dealing with an identical issue in CWP No. 5400 of 2014 titled Veena Devi Vs. Himachal Pradesh State Electricity Board and another, decided on 21.11.2014 and after interpreting the provisions of Rule 17, directed the respondents therein to count the services of the petitioner therein on contract basis as Clerk/Typist with effect from 16.11.1988 to 21.3.2009 for the purpose of qualifying service for pensionary benefits.
9. Likewise, the same Bench issued similar directions in CWP No. 8953 of 2013 titled Joga Singh and others vs. State of H.P. and others and connected matter, decided on 15.6.2015 by directing the period of service rendered on contract basis as qualifying service for the purpose of pension under the Pension Rules.
10. Another Co-ordinate Bench of this Court {Coram: Hon'ble Mr. Justice Surya Kant, Chief Justice (as his Lordship then was) and Hon'ble Mr. Justice Ajay Mohan Goel, J.} in CWP No. 2384 of 2018 titled State of Himachal Pradesh and others vs. Matwar Singh and another, decided on 18.12.2018, held that work charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits. Therefore, the executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/ struck down, in light of the decisions rendered in CWP No. 6167 of 2012, titled Sukru Ram vs. State of H.P. and others, decided on 6th March, 2013 and a Full Bench of Punjab and Haryana High Court in Kesar Chand vs. State of Punjab through the Secretary PWD (B&R) Chandigarh and others, (1988) 94 (2) PLR 223, the relevant para-3 of the judgment reads as under:
"3. It is by now well settled that the work charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose .
of pension and other retiral benefits. Executive instructions, if any, issued by the Finance Department to the contrary, are liable to be ignored/ struck down, in light of view taken by this Court in CWP No. 6167 of 2012, titled Sukru Ram vs. State of H.P. and others, decided on 6th March, 2013. A Full Bench of Punjab and Haryana High Court in Kesar Chand vs. State of Punjab through the Secretary PWD (B&R) Chandigarh and others, (1988) 94 (2) PLR 223, also dealt with an identical issue where Rule 3.17 (ii) of the Punjab Civil Services Rules excluded the work charge service for the purpose of qualifying service. Setting aside the said Rule being violative of Articles 14 and 16 of the Constitution of India, it was held that the work charge service followed by regular appointment will count r towards qualifying service for the purpose of pension and other retiral benefits. The aforesaid view was also confirmed by the Hon'ble Apex Court."
11. As regards the counting of work period rendered on work charged basis followed by regular appointment, the issue is otherwise no longer res integra in view of the judgment of the Hon'ble Supreme Court in Punjab State Electricity Board vs. Narata Singh AIR 2010 SC 1467, Habib Khan vs. The State of Uttarakhand (Civil Appeal No. 10806 of 2017) decided on 23.8.2017 and recent decision rendered by three Judges of the Hon'ble Supreme Court in Prem Singh vs. State of Uttar Pradesh and others AIR 2019 SC 4390.
12. It is by now settled law that the work-charge status followed by regular appointment has to be counted as a component of qualifying service for the purpose of pension and other retiral benefits and even adhoc service in terms of Paras Ram's case (supra) followed by regular service in the same post has to be counted for the purpose of increments and in turn for pension as held by the Division Bench of this Court in LPA No. 36 of 2010 titled Sita Ram's case (supra), can the benefit be denied to the employees appointed on contract basis followed by regular appointment.
12. Even though the issue in question is squarely covered by the judgments rendered by this Court in Veena Devi and Joga Singh cases (supra). However, we may at this stage make note of an unreported decision of the Division Bench of the Punjab and Haryana High Court in Rai Singh and .
another vs. Kurukshetra University, Kurukshetra, C.W.P. No.2246 of 2008, decided on August 18, 2008 wherein the Court after taking into consideration the Full Bench judgment in Kesar Chand case (supra) held that once the employees have been regularised and are now held entitled to pension by counting adhoc service, exclusion of service "on contract basis" will be discriminatory. It was further held that appointment on contract basis is a type of adhoc service. Mere fact that nominal breaks are given or lesser pay is given or increments are not given, is no ground to treat the said service differently. Beneficial provision for pension having been extended to adhoc employees, denial of the said benefit to employees working on contract basis, who also stand on same footing as employees appointed on adhoc basis cannot be held to be having any rational basis and the judgment in Kesar Chand (supra) is fully applicable. It shall be apposite to refer to the necessary observations as contained in paras 4 to 8 of the judgment, which read as under:
"4. Learned counsel for the petitioners relies upon a Full Bench judgment of this Court in Kesar Chand v. State of Punjab and others, 1988 (2) PLR 223, wherein validity of Rule 3.17 (ii) of the Punjab Civil Services Rules, Volume II was considered, which provided for temporary or officiating service followed by regularization to be counted as qualifying service but excluded period of service in work charge establishment. It was held that if temporary or officiating service was to be counted towards qualifying service, it was illogical that period of service in a work charge establishment was not counted.
6. As held in Kesar Chand (supra), pension is not a bounty and is for the service rendered. It is a social welfare measure to meet hardship in the old age. The employees can certainly be classified on rational basis for the purpose of grant or denial of pension. A cutoff date can also be fixed unless the same is arbitrary or discriminatory. In absence of valid classification, discriminatory treatment is not permissible.
7. Once the employees have been regularised and .
are held entitled to pension by counting adhoc service, exclusion of service "on contract basis" will be discriminatory. Appointment on contract basis is a type of adhoc service. Mere fact that nominal breaks are given or lesser pay is given or increments are not given, is no ground to treat the said service differently. Beneficial provision for pension having been extended to adhoc employees, denial of the said benefit to employees working on contract basis, who also stand on same footing as employees appointed on adhoc basis cannot be held to be having any rational basis. Judgment of this Court in Kesar Chand (supra) is fully applicable.
8. Accordingly, we allow this writ petition and declare that the contractual employees who have rendered r continuous service (ignoring nominal breaks) followed by regularization in a pensionable establishment, will be entitled to be treated at par with adhoc employees in such establishment, for counting their qualifying service for pension."
13. Adverting to the facts of the case, we have no difficulty in concluding that even though the appointment of the husband of the petitioner was contractual but that was in no manner qualitative different from the regular employees and once there was need for doctors in the State as is evident from the fact that the services of the husband of the petitioner ultimately stood regularised, then it was unfair on the part of the State Government to take work from the employee on contract basis. They ought to have resorted to an appointment on regular basis.
14. The taking of work on contractual basis for long amounts to adopting the exploitative device. Later on, though the services of the husband of the petitioner as observed above, were regularised. However, the period spent by him on contractual basis, has not been counted towards the qualifying service. Thus, the respondents have not only deprived the deceased husband of the petitioner from the due emoluments during the period he served on less salary on contractual basis but he was also deprived of counting of the period for pensionary benefits.
15. The State has been benefitted by the services rendered .
by the deceased husband of the petitioner in the heydays of his life on less salary on contractual basis. Therefore, there is no rhyme or reason not to count the contract period in case it has been rendered before regularization. If same is denied, it would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service.
16. 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. 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 work-charged employees, contract employees, contingency paid fund employees or nonpensionable establishment shall be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
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 workcharged 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. Rather, the very concept of workcharged 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 13 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 14 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. 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.
r 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 regularisation in the capacity of contractual employees and .
were regularised 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."
13. In Ram Krishan Sharma's case (supra), it has also been held as under:-
8.Though in the aforesaid case, husband of the petitioner was appointed as Ayurveda Officer in temporary capacity in the year, 1999 on contract basis, but careful perusal of judgment rendered by the Hon'ble Apex court in Prem Singh v. State of Uttar Pradesh and Ors, AIR 2019 SC4390, which has been otherwise taken note of by the coordinate Bench while passing the judgment in Sheela Devi's case (supra) suggests that service rendered prior to regularization in any capacity is to be counted towards qualifying service even if such service is not proceeded by temporary or regular appointment in a pensionable establishment.
9.In view of the aforesaid law laid down by the Hon'ble Apex Court, admittedly no discrimination can be made inter-se the employees, who renders/rendered services prior to regularization in the capacity of contractual employees and were subsequently regularized. Needless to say, employees, who render services on ad-hoc basis are definitely on better footing than persons, who render/rendered services in the temporary capacity or on contractual basis.
10. Leaving everything aside, in the case at hand, services of the petitioner were regularized in the year, 2006 i.e. after completion of seven years that too on batch wise basis. If documents available on record are read/scanned in its totality, it clearly emerges that even out of 50 officers as detailed in notification dated 23.1.1999, 25 incumbents were regularized after .
three years of issuance of aforesaid notification dated 23.1.1999 whereas remaining including petitioner were regularized subsequently on batch wise basis in the years 2006 and 2009 respectively. Once 50 Ayurveda doctors were appointed as Ayurvedic Medical Officer, Grade-II in the same pay scale of Rs. 7,000-10,980/- by way of one notification dated 23.1.1999, it is not understood that how only 25 doctors out of 50 could be regularized in the year, 2003 and remaining 25 in the year, 2006 and 2009 respectively. Careful perusal of notification dated 29.6.1992 available at page 57 of the paper book reveals that at the time of promulgation of recruitment and Promotion Rules for appointment to the post of Ayurveda Officer, 563 posts were available in the department i.e. 50 percent by way of direct recruitment and 50 percent on batch wise basis, but in the instant case, department by only regularizing 25 doctors out of 50 as detailed in notification dated 23.1.1999 though enabled 25 doctors to avail benefit of CCS (Pension) Rules, 1972, whereas remaining 25 were left in lurch without any fault of them.
11.Otherwise also, it is none of the case of the respondent that petitioner herein was not appointed in the year, 1999 rather there specific case is that since his services were regularized in the year, 2006 and as such, his date of appointment to the regular post is to commence from the date of his regularization, which argument/submission is not legally tenable and deserves outright rejection. By no stretch of imagination, regularization can be said to be form of appointment. Rather, regularization would mean conferring the quality of permanence on the appointment which was initially made on temporary, ad-hoc or contract basis.
12.Hon'ble Apex Court in case titled R. N. Nanjundappa v. T. Thimmiah and Anr, 1972 (1) SCC 409 has held that regularization cannot be said to be mode of recruitment and to accede to such proposition, would mean to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. Relevant para of .
the aforesaid judgment is reproduced herein below:
"The contention on behalf of the State that a rule under Article 309 for regularisation of the appointment of a person would be a form of recruitment read with reference to power under Article 162 is unsound and unacceptable. The executive has the power to appoint. That power may have its source in Article 162. In the present case the rule which regularised the appointment of the respondent with effect from 15 February, 1958 notwithstanding any rules cannot be said to be in exercise of power under Article 162. First, Article 162 does not r speak of rules whereas Article 309 speaks of rules. Therefore, the present case touches the power of the State, to make rules under Article 309 of the nature impeached here. Secondly, when the Government acted (1) [1966] 1 S.C.R. 994 under Article 309 the Government cannot be said to have acted also under Article 162 in the same breath. The two Articles operate in different areas. Regularisation cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article
309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with .
procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
14. It is quite apparent from the aforesaid exposition of law laid down by the coordinate Bench of this Court as well as this Court that service rendered prior to regularization in any capacity be it work charged employees, contingency paid fund employees or non-
pensionable establishment is to be counted towards qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.
15. If aforesaid analogy is applied in the case of the petitioner, his initial date of appointment after regularization will be the date on which he was initially appointed on adhoc basis in the year, 1999 and as such, he cannot be said to be covered under the HP Civil Services Contributory Pension Rules, 2006, which specifically provides that employees appointed on or after 15.5.2003, are not eligible to subscribe for GPF.
16. Aforesaid Rules provide that employees appointed on or after 15.5.2003 and who are already contributing towards the GPF, shall .
cease to continue to subscribe towards the GPF from the date of notification of Contributory Pension Scheme, but in the instant case, petitioner cannot be said to be appointed on or after 15.5.2003, rather for the reasons stated herein above petitioner's date of appointment will relegate back to his initial date of appointment i.e. 1999 and as such, he cannot be estopped from contributing towards GPF.
17. Consequently, in view of the aforesaid discussion as well as law relied upon, present petition is allowed and impugned order dated 9.8.2011 (Annexure P-4) is quashed and set-aside. It is further held that the HP Civil Services Contributory Pension Rules, 2006 is not applicable retrospectively in the case of the petitioner and he is entitled to contribute towards GPF qua which he has been already allotted GPF No. i.e. Med-
16543. In the aforesaid terms, present petition is disposed of, so also pending application(s), if any.
15th July, 2020 (Sandeep Sharma),
manjit Judge
https://indiankanoon.org/doc/180604280/ 
