The High Court Of Himachal Pradesh ... vs State Of Himachal Pradesh & Others on 10 January, 2020
THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No.2411/2019 a/w
CWPs No. 2446, 2447, 2536,
2537, 2538, 2821 & 2822 of
2019.
.
Reserved on: 18.12.2019
Decided on:10.01.2020
CWP No. 2411/2019:
Jagdish Chand ....petitioner
Versus
State of Himachal Pradesh & Others ...respondents
CWP No. 2446/2019:
....petitioner
Purnima Gupta
Versus
State of Himachal Pradesh & Others
r ...respondents
CWP No. 2447/2019:
....petitioner
Tara Devi
Versus
State of Himachal Pradesh & Others ...respondents
CWP No. 2536/2019:
....petitioner
Prem Lata
Versus
State of Himachal Pradesh & Others ...respondents
CWP No. 2537/2019:
....petitioner
Sneh Latax
Versus
State of Himachal Pradesh & Others ...respondents
CWP No. 2538/2019:
Mohan Dutt ....petitioner
Versus
State of Himachal Pradesh & Others ...respondents
::: Downloaded on - 10/01/2020 20:31:45 :::HCHP
2
CWP No. 2821/2019:
Urmil Thakur ....petitioner
Versus
State of Himachal Pradesh & Others ...respondents
.
CWP No. 2822/2019:
Kanta Sharma ....petitioner
Versus
State of Himachal Pradesh & Others ...respondents
__________________________________________________________
Coram:
Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner(s) : Mr. J.L.Bhardwaj, Advocate.
For the respondent(s) : Mr. Ashok Sharma, Advocate General
with Mr. Ranjan Sharma, Ms. Ritta
Goswami, Mr. Adarsh Sharma, Mr.
Ashwani Sharma and Mr. Nand Lal
Thakur, Additional Advocates
General.
Jyotsna Rewal Dua, J.
These writ petitions involve common question of law and facts, hence are taken up together for adjudication.
2. Facts:-
For convenience and clarity, facts of CWP 2411 of 2019 are being considered.
2(i) Petitioner did his Shastri from H.P. University and became eligible for appointment as Shastri Teacher. State took a decision to appoint all those who were eligible to be appointed as, Trained Graduate Whether reporters of Local Papers may be allowed to see the judgment?
Teachers, OTs, Shastris against the sanctioned vacant posts of Junior Basic Teachers (in short JBTs). Petitioner being eligible also applied for the post of JBT. He eventually emerged successful in the selection .
criteria laid down by the State and was appointed as JBT on contract basis on 7.8.1997 on fixed monthly honorarium. His services were regularized on 10.07.2006 w.e.f. 1.1.2006. The service of the petitioner w.e.f. 7.8.1997 to 10.07.2006 has not been counted for the purposes of pay scale, annual increments, seniority, promotion, pension under CCS(Pension) Rules, 1972, GPF etc. 2(ii) State came up with 'Vidya Upasak Yojna' in 1998. Under this scheme, vacant posts of teachers in Government Primary Schools were filled up in the year 2000 by appointing Vidya Upasaks in accordance with selection criteria laid down in the said scheme. Vidya Upasaks, under the scheme were to be initially recruited for a period of one year, extendable on the basis of performance and approval of competent authority. They were to be paid fixed monthly honorarium.
Services of Vidya Upasaks were regularized as JBTs in 2007 after awarding them special JBT Certificates and they were placed in pay scale of Rs. 4500-7200. Services of Vidya Upasaks w.e.f. their initial dates of appointment till regularization were not counted towards annual increments, pension under CCS(Pension) Rules 1972, promotions, pay scales, seniority etc. 2(iii)(a) CWP No.8953 of 2013 titled as Joga Singh and Others vs. State of H.P. and Others along with connected matters was filed by some Vidya Upasaks, praying that service rendered by them from the date of .
their initial appointment as Vidya Upasaks is required to be counted as qualifying service for purpose of pension under CCS(Pension) Rules 1972, annual increments, seniority, promotions etc. This prayer was opposed by the State on various grounds. One of the contentions raised by the State was that Vidya Upasaks were regularized in 2007, whereas Contributory Pension Scheme was introduced in the State w.e.f.
15.05.2003, therefore, Vidya Upasaks were not entitled to count their services from the dates of their initial appointment as Vidya Upasaks for grant of pension under CCS(Pension) Rules, 1972, annual increments and GPF. All those who were appointed after 15.05.2003, are entitled only to Contributory Provident Funds (CPF). Vidya Upasaks having been regularized in 2007 are also entitled only to CPF.
2(iii)(b) While deciding the writ petition, the Court went through all the contentions raised by the Vidya Upasaks as well as defence of the State Government. It took note of the fact that Vidya Upasaks were discharging same and similar duties being discharged by the regularly appointed teachers; they were appointed under a selection process; their services were continued without any break right from the dates of their appointment as Vidya Upasaks till the date of their regularization; Vidya Upasaks were appointed against the regular posts. Finally, vide judgment dated 15.6.2015, it was held that the entire period from the date of initial appointment as Vidya Upasak till the date of their regularization shall be counted as qualifying service for purpose of .
pension under Central Civil Services (Pension) Rules, 1972 as well as for the purpose of annual increments.
2(iii)(c) Special Leave Petition No. 183/2016 filed against the judgment delivered on 15.6.2015 in CWP No. 8953 of 2013 titled as Joga Singh and Others vs. State of H.P. and Others alongwith connected following order.
"Delay condoned.
matters was dismissed by the Hon'ble Apex Court on 4.1.2016 with We are not inclined to entertain this special leave petition, which is dismissed.
Pending application(s), if any, shall stand disposed of."
Review Petition (c) No.274/2017 preferred by State against dismissal of SLP was also dismissed on 2.3.2017 with following order:-
"The Review Petition is directed against order dated 4.1.2016 whereby special leave petition was dismissed.
There is delay of 300 days in filing the Review Petition for which no satisfactory explanation has been given. Even otherwise, we see no reason to entertain the Review Petition. The Review Petition is dismissed on ground of delay as well as on merits."
The judgment delivered in Joga Singh's case, thus attained finality. Respondent-State on 13.9.2017, conveyed its approval for implementing the decision in Joga Singh's case.
2(iv) Since, Joga Singh and other similarly situated Vidya Upasaks were conferred the benefit of their past service as Vidya Upasks for the purposes of pension under CCS(Pension) Rules, 1972 and annual .
increments, therefore, on the same analogy, petitioner filed his own independent Original Application No.3796 of 2018 before learned erstwhile H.P. State Administrative Tribunal. Learned Tribunal vide its order dated 4.7.2018 disposed of the Original Application by directing the competent authority to grant benefit of Joga Singh's judgment to the petitioner after verifying his claim of being similarly situated. The representation of the petitioner was rejected by the Deputy Director of Elementary Education vide order dated 8.7.2019 on the ground :-
"As per the record received from BEEO Kandaghat shows that the petitioner is not similar situated to CWP No. 8953/2013 titled as Joga Singh and Others Vs. State. The matter is quite different in compare to Joga Singh. However, the petitioner was contract appointee whereas Joga Singh and Others were appointed as Vidya Upasak.
In view of the facts and circumstances explained above the petitioner is not similar situated to CWP No. 8953/2013 titled as Joga Singh and Others Vs. State. So the benefit required cannot be extended to the petitioner at this level stage."
2(v) Since, H.P. State Administrative Tribunal now stand abolished, hence, instant writ petition has been preferred seeking direction to the respondents to count the service rendered by the petitioner on contract basis against the post of JBT w.e.f. 7.8.1997 for the purposes of pension under CCS(Pension) Rules, 1972, annual increments, seniority, promotion and other consequential benefits on the basis of law laid down in Joga Singh's case supra.
3. We have heard learned counsel for the parties and gone .
through the record.
Contentions:-
3(i) Learned counsel for the petitioner made following submissions:-
3(i)(a) Joga Singh and other similarly situated Vidya Upasaks, who were appointed under 'Vidya Upasak Yojna' in the year 2000 were junior to the petitioner and other similarly situated JBTs appointed prior to them, on contract basis.
3(i)(b) Vidya Upasaks were regularized as JBTs in 2007 after awarding them special JBT Certificate, whereas, petitioner appointed as JBT on contract basis was regularized in 2006. Thus, even the regularization of the petitioner as JBT was prior in time to that of Joga Singh and other similarly situated Vidya Upasaks. Petitioner was, thus, senior to Joga Singh and other similarly situated Vidya Upasaks in the cadre of JBTs.
3(i)(c) Counting of entire service of Joga Singh and other similarly situated Vidya Upasaks right from their dates of appointment as Vidya Upasaks for grant of pension and annual increments to them has virtually made them seniors to their actual seniors/petitioners and other similarly situated JBTs. This has resulted in discrimination as the senior JBTs (petitioners) have been denied the benefit of counting their past service on contract basis towards pension and annual increments, .
whereas this benefit has been granted to their juniors (Vidya Upasaks).
3(ii). Learned Advocate General has opposed the prayers of the petitioner on the grounds that :-
(a) Original Application No. 3796/2018 filed by the petitioner for counting his entire JBT service for pensionary benefits under CCS(Pension) Rules & annual increments was barred by limitation prescribed under Section 21 of The Administrative Tribunals Act, 1985.
Decision by the Competent Authority on the belated representation preferred by petitioner, will not extend the limitation period.
(b) It has also been argued that instant writ petition under Section 226 of the Constitution of India also suffers from delay, laches and estoppel.
(c) Another contention raised by learned Advocate General is that judgment in Joga Singh's case does not lay down correct law. It is open for the State to question this judgment in the instant writ petitions, which, in essence are seeking its applicability.
Observations:-
4. Following main points arise for adjudication in these writ petitions:-
(a) Whether Junior Basic Teachers (petitioners) who were initially recruited in 1997 on contract basis as JBTs against regular/sanctioned posts and regularized as such in 2006 are entitled to count their contractual period as qualifying service for purposes of (i) pension under CCS .
(Pension) Rules, 1972 and (ii) annual increments, especialy on the basis of judgment delivered on 15.6.2015 in Joga Singh's case (CWP No. 8953/2013)?
(b) Whether the prayers made in the writ petitions in respect to counting entire contractual service towards qualifying service for the purpose of pension under CCS(Pension) Rules, 1972 as well as for grant of annual increments are barred by limitation under Section 21 of Administrative Tribunals Act and suffer from delay, laches and estoppel?
(c) Whether it is open for the State to question the judgment dated 15.6.2015, delivered in CWP No.8953/2013 and other connected matters, in the instant writ petitions. And if so, whether in the facts of the case contractual service of petitioners can be treated as qualifying service for pensionary benefits under CCS (Pension) Rules, 1972 and increments?
Point No.1:
4(i) Factual matrix of the case is not much in dispute. It may be summarized here. Petitioners were appointed as JBT on contract basis in the year 1997. Their appointments were against regular sanctioned vacant posts of JBTs. Joga Singh and other similarly situated Vidya Upasaks were appointed as Vidya Upasaks in the year 2000 under 'Vidya Upasak Yojna 1998' against the regular posts.
4(ii) Petitioners appointed as JBT on contract basis and Joga Singh & Others appointed as Vidya Upasaks, continued in service without any break till their regularization. Services of the petitioners .
were regularized as JBT on 10.07.2006 w.e.f. 1.1.2006. Services of Joga Singh and other similarly situated Vidya Upasaks were regularized as JBTs on 31.10.2007/22.11.2007 after awarding them special JBT Certificates. Joga Singh and other similarly situated Vidya Upasaks were thus juniors to the petitioners as JBTs.
4(iii) Neither the petitioners nor Joga Singh and other similarly situated Vidya Upasaks after respective regularization of their services in 2006 & 2007 were held entitled by respondent-State for pension under the Central Civil Services (Pension) Rules, 1972 in view of First Amendment Rule,2003 amending CCS (Pension) Rules, 1972 for State of Himachal Pradesh. Under this amendment, the persons appointed in the State of H.P. after 15.5.2003 were not entitled to pension under CCS (Pension) Rules, 1972. Petitioners as well as Joga Singh and other similarly situated Vidya Upasaks were treated as JBTs appointed in 2006 and 2007 respectively i.e. after the cut off date of 15.5.2003, therefore, they were not entitled to pension under CCS (Pension) Rules, 1972.
They could only receive Contributory Provident Funds under Contributory Pension Scheme introduced after 15.5.2003.
4(iv) Joga Singh and other similarly situated Vidya Upasaks approached this Court in CWP No 8953 of 2013 and other connected matters for counting their entire service rendered as Vidya Upasaks as qualifying service for grant of pension under CCS (Pension) Rules, 1972, annual increments, promotion, seniority and other service benefits .
etc. This Court held that Vidya Upasaks are entitled to count the period of their service rendered as Vidya Upasaks till their regularization as JBTs as qualifying service for the purpose of pension under CCS(Pension) Rules, 1972 and for the purpose of annual increments. It is not in dispute that after the dismissal of SLP (c) No.183/2016 by the Hon'ble Apex Court on 4.1.2016 and subsequent dismissal of Review Petition No.274/2017 on 2.3.2017, the judgment dated 15.06.2015 in Joga Singh's case attained finality and has been implemented qua Vidya Upasaks vide State decision dated 13.9.2017.
4(v) As compared to Joga Singh and other similarly situated Vidya Upasaks, petitioners are at much better footing. Petitioners were appointed as JBT on contract basis in 1997 and regularized as such without any break in service w.e.f. 1.1.2006. Initial appointment of petitioners were against sanctioned regular posts of JBTs. The duties discharged by the petitioner on contract basis were same and similar as discharged by regular JBTs. Joga Singh and other similarly situated Vidya Upasaks were appointed in the year 2000 against the regular posts under 'Vidya Upasak Yojna 1998', i.e. after the appointment of the petitioners on contract basis. Joga Singh and other similarly situated Vidya Upasaks were regularized in 2007 as JBTs after awarding them special JBT Certificates, whereas petitioners were regularized as JBT in 2006. The cadre of contractually appointed JBTs (petitioners) and those appointed as Vidya Upasaks, eventually merged into one, i.e. JBT. They .
all became Junior Basic Teachers. Their initial birth marks vanished after merging into the common cadre. Vidya Upasaks on the basis of their dates of initial appointment as Vidya Upasaks as well as on the basis of their dates of regularization are ranking below the petitioners-
Junior Basic Teachers originally appointed on contract basis. Therefore, benefit granted to Vidya Upasaks essentially has to be granted to petitioners who are in the same cadre and senior to Vidya Upasaks on the basis of dates of initial appointment as well as on the basis of their dates of regularization. The judgment in Joga Singh's case though has been passed in Vidya Upasaks's case, but petitioners are also entitled to benefit thereof they being senior to Joga Singh & others similarly situated persons.
Point No.2:
5. Now we may examine the question as to whether the reliefs prayed by petitioners are barred by limitation or suffer from delay, laches or estoppel.
Contentions:
5(i)(a) Relying upon (2015) 1 SCC 347, titled as State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others, it has been contended by learned Advocate General that the petitioners were fence sitters and therefore, they cannot be allowed to reap the benefit of judgment in Joga Singh's case. Relevant para of this judgment is reproduced as under:-
.
"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
22.1 Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
For denying the relief to the petitioners on their being .
fence sitters, judgment dated 27.8.2019, delivered in CWP No.211/2018 relying upon (2015) 1 SCC 347 titled as State of Uttar Pradesh vs. Arvind Kumar Srivastava. has also been pressed into service.
5(i)(b) Learned Advocate General argued thats no relief can be granted to the petitioners till they challenge their regularization order dated 10.07.2006 and further that petitioners are now estopped from challenging 2006 order as they have accepted the same for the past 13 years. Prayer in this writ petition is not only barred by provisions of Section 21 of the Administrative Tribunals Act, but also suffers from delay and laches. The rejection of petitioner's representation by the competent authority on 8.7.2019 will not revive their cause of action which at best was available to them in 2006 when their services were regularized. In support of his contentions, learned Advocate General relied upon decision of Hon'ble Apex Court in Union of India Vs. C.
Girija and others, reported in (2019) 3 SCALE 527.
5(i)(c) Judgment passed by Hon'ble Apex Court in Prahlad Raut vs. All India Institute of Medical Sciences in Civil Appeal No. 6640 of 2019 was also relied upon to contend that cause of action, if any, available to the petitioner is now barred by Section 21 of Administrative Tribunal Act. Relevant paras are as under:-
"37. Be that as it may, the order of dismissal dated 6.1.2000 under Rule 19(i) of CCS (CCA) Rules, 1985 was challenged on 2013 after almost 13 years. Even assuming that the appeal was never decided, the cause of action for filing an application before the Tribunal would have arisen on expiry of six months from the date of filing the appeal, in view of Section 20(2)(b) .
of the Administrative Tribunals Act, 1985.
38. The application to the Tribunal would have to be filed within the period of limitation as prescribed in Section 21(1)(b) of the Administrative Tribunals Act, which would start running from the date of expiry of six months from the date of filing of appeal. The contention of the appellant that the quashing of the first FIR gave rise to a fresh cause of action is completely misconceived.
39. In S.S. Rathore vs. State of Madhya Pradesh (1989) 4 SCC 582, a Constitution Bench of this Court held:" r "21. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Act. Subsection (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under subsection (3). The civil court's jurisdiction has been taken away by the Act and, therefore, as far as government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation."
5(ii). Per contra, learned counsel for the petitioners relied upon (2015) 1 HLR 14, titled as Veena Devi vs. Himachal Pradesh State Electricity Board Ltd. and another, (1995) 5 SCC 628 titled as M.R.
.
Gupta vs. Union of India and Others, (2008) 8 SCC 648, titled as Union of India and Others vs. Tarsem Singh and (2010) 12 SCC 538, titled as State of Madhya Pradesh vs. Yogendra Shrivastava, on merits of the matter as well as to contend that the relief claimed by the petitioners is not barred by limitation, delay, laches or estoppel.
Observations:
5(iii) to Judgment in Joga Singh's case was delivered on 15.6.2015. This judgment was not implemented as it was challenged in the Special Leave Petition (c) No.183/2016. The Special Leave Petition was dismissed on 4.1.2016. Review Petition No. 274/2017 was dismissed on 2.3.2017. It was after the dismissal of the SLP that cause of action virtually arose in favour of the petitioner as his juniors (originally -Vidya Upasaks) were held entitled to count their past service for purpose of pensionary benefits under CCS (Pension) Rules, 1972 as well as for annual increments. Petitioner thereafter preferred Original Application No.3796 of 2018, which was disposed of by directing the competent authority to grant the benefit of Joga Singh's judgment to the petitioner in case he was similarly situated. The competent authority rejected petitioner's representation on 8.7.2019 on the ground that petitioner is not similarly situated to Joga Singh. We have already observed that petitioner was similarly situated to Joga Singh, rather he was senior to Joga Singh.
5(iv) It cannot be said that to claim the benefit of judgment in .
Joga Singh's case, petitioner is required to challenge his regularization order dated 10.07.2006. For counting their service rendered as Vidya Upasaks, towards qualifying service for pensionary benefits under CCS(Pension) Rules, 1972 and for grant of annual increments, Joga Singh and other similarly situated Vidya Upasaks had neither challenged their regularization orders nor these orders were quashed by this Court in judgment dated 15.6.2015. Judgment in Joga Singh's case, directed the respondent-State to count the entire service rendered by Vidya Upasaks from the date of their appointment as Vidya Upasaks as qualifying service for grant of pension under CCS(Pension) Rules 1972 and annual increments. No other benefit of past service was granted.
Regularization orders of Vidya Upasaks were not quashed.
5(v) Judgment in Joga Singh's case is virtually a judgment in rem in so far as JBT cadre is concerned. Contractually appointed JBTs (petitioners) and Vidya Upasaks (Joga Singh & others) eventually were regularized as JBTs & merged into one cadre of JBT. Petitioners were appointed as JBTs on contract basis prior in time to Joga Singh & others' appointment as Vidya Upasaks. Appointment of both the categories was against sanctioned and regular posts. Petitioners were regularized as JBTs prior in time to regularization of Vidya Upasaks.
Benefits of counting past service granted to all Vidya Upasaks as a category in whole treating it as qualifying service towards grant of pension under CCS (Pension) Rules, 1972 and annual increments cannot .
be denied to the petitioners, who were seniors to Vidya Upasaks.
Hon'ble Apex Court in (2015) 1 SCC 347 titled as State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others has categorically held that non-extension of benefit, accorded in favour of a particular set of employees by the Court, to similarly situated persons violates Article 14 of the Constitution of India as like should be treated alike. This of-course is subject to exception in case of delay, laches and acquiescence on part of those who remain dormant and do not challenge wrongful action in their respective cases merely for the reason that their counterparts have succeeded in their efforts earlier by approaching the Court. In such a situation, they are no better than fence sitters.
However, as observed earlier, the benefit given by the Court, was a judgment in rem intended to give benefit to all similarly situated persons, irrespective of whether they approached the Court or not, this exception, therefore, will not operate.
In Union of India vs. C. Girija 2019 (3) SCALE 527, the Apex Court has categorically held that mere filing of representation for the first time, years after accrual of cause of action and subsequent representations thereafter cannot arrest time as the claim would nonetheless become stale and will be barred by delay and laches.
However, in 2010 (12) SCC 538 titled as State of Madhya Pradesh and Others vs. Yogendra Shrivastava, it was held that:-
"18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by .
limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. (See: M.R. Gupta vs. Union of India and Union of India vs. Tarsem Singh)."
In 2008 (8) SCC 648 titled as Union of India and others vs. Tarsem Singh, it was held that where service claim is based on a continuing wrong in respect of issue of payment, re-fixation of pay or pension then relief can be granted even if there is delay in seeking remedy though consequential benefits like financial benefits can be restricted. Paras 7 & 8 of the judgment are extracted hereinafter:-
"7. To summarize, 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.
8. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances ."
Therefore, we hold that prayers of petitioners for counting their past contractual service as qualifying service towards pensionary benefits under CCS(Pension) Rules, 1972 and annual increments as allowed to Joga Singh & Other Vidya Upasaks under judgment dated 15.6.2015 cannot be denied to them (petitioners) on grounds of limitation, delay, laches or acquiescence, however, financial benefits are to be restricted to them to three years prior to filing of the writ petitions.
6. Point No.3:
6(i) Learned Advocate General has contended that judgment in Joga Singh's case does not lay down correct law, therefore, it is open for the State to question the same in instant writ petitions, which are seeking applicability of the same. In support of the submissions, learned Advocate General relied upon judgment dated 03.01.2019, passed in Civil Appeal No. 12040 of 2018, titled as Union of India vs. Dr. O.P.
Nijhawan, wherein it was held by Hon'ble Apex Court that even where .
the State does not challenge a judgment owing to the fact that financial repercussions are negligible or where the appeal is time barred or on account of wrong legal advice, this would not ipso-facto prevent the State from challenging subsequent decision in similar matters where magnitude of financial implications involved is high.
6(ii) to SLP(c) No. 183/2016 preferred by State against Joga Singh's judgment dated 15.6.2015 was dismissed in limine on 4.1.2016.
Review Petition (c) No. 274/2017 was also dismissed by Hon'ble Apex Court on 2.3.2017.
In (2019) 6 SCC 270 titled as State of Orissa & Another vs. Bhirendra Sunder Das & Others relying upon various previous judgments including Supreme Court Employees' Welfare Associating vs. Union of India (1989) 4 SCC 187 and State of Punjab vs. Davinder Pal Singh Bhulla (2011) 14 SCC 770, well settled principle was reiterated that dismissal of an SLP in limine simply implies that case was not considered worthy of examination by the Supreme Court for a reason, which may be other than the merits of the case. Such in limine dismissal at the threshold without giving any detailed reasons does not constitute any declaration of law or a binding precedent under Article 141 of the Constitution. In 2019 (4) SCC 376, titled as State of Uttar Pradesh vs. Aman Mittal, it was reiterated that an order refusing Special Leave to Appeal does not attract doctrine of merger.
.
6(iii) However, we are inclined to accept the law laid down in Joga Singh's case. While directing the State to count service rendered by petitioners therein as Vidya Upasaks towards qualifying service for pensionary benefits under CCS(Pension) Rules, 1972 and annual increments, it was justly observed:-
(a) Vidya Upasaks were appointed after undergoing a selection criteria laid down under 'Vidya Upasak Yojna'.
(b) There was no break in their service from date of their initial appointment in 2000 till date of their regularization in 2007.
(c) They were appointed against regular posts and at the time of their regularization, posts were lying vacant.
(d) Rule 13 of CCS(Pension) Rules, 1972 stipulates that 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 service provided such officiating or temporary service is followed without interruption by substantive appointment in same or another service or post.
(e) Rule 17 of CCS(Pension) Rules, 1972 provides that contractual service followed by substantive appointment in a pensionable establishment can also be counted towards qualifying service for grant of pension.
In backdrop of facts of the case, it was thus held that though Vidya Upasaks were not entitled to regular pay scale at par with regular appointments, but they were certainly entitled to count the period from 2000 to 2007 towards annual increments and qualifying service for pension.
Petitioners herein, as already observed, are situated at .
much better footing than the petitioners in Joga Singh's case. They were appointed as JBT on contract basis against regular JBT posts in 1997 and were regularized as such w.e.f. 1.1.2006. Rule 17 of CCS (Pension) Rules, 1972 permits counting contractual service towards qualifying service for grant of pensionary benefits. This rule is extracted hereinafter:-
"17.
r to 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 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. "
Petitioners' contractual service was followed by substantive appointment without any break in pensionable establishment.
.
6(iv) In a recent pronouncement reported in (2019) 10 SCC 516 titled as Prem Singh vs. State of Utter Pradesh, Hon'ble Apex Court while reading down Rule 3(8) of U.P. Retirement Benefit Rules 1961 has relied upon Full Bench Judgment of Punjab & Haryana High Court renderd in Kesar Chand vs. State of Punjab AIR 1988 P & H 265, which was upheld by Apex Court in Punjab State Electricity Board vs. Narata Singh (2010) 4 SCC 317, to hold that services rendered by a workman on work charge basis are to be counted towards qualifying service for the purposes of pension. Relevant extracts from the judgments are:-
"29. 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.
30. 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 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.
.
(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.
31. 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.
32. 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.
33. The question arises whether the imposition of rider that such service to be counted has to be rendered in between two spells of temporary or temporary and permanent service is legal and .
proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularization. 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."
Hon'ble Apex Court held that service rendered in work-
charged establishment shall be treated as qualifying service for grant of pension. However, arrears of pension were confined to three years before the date of retirement. Benefit of Judgment for the purpose of pension was extended even to the retired work-charged employees who during their service career were not even regularized.
Relying upon above judgment, a Division Bench of this Court in CWPOA No. 195 of 2019, titled as Smt. Sheela Devi Vs. State of H.P., decided on 26.12.2019 has held that service of an employee .
appointed on contractual basis in temporary capacity can be counted towards qualifying service for grant of pension after regularization of his service.
In view of above discussion, the service rendered by the petitioners on contractual basis deserves to be counted towards 1972 and for annual increments.
r to qualifying service for pensionary benefits under CCS(Pension) Rules Accordingly, these writ petitions are allowed. The contractual service rendered by the petitioners as Junior Basic Teachers shall be counted towards qualifying service for the purpose of pension under CCS (Pension) Rules, 1972 as well as for annual increments. The consequential financial benefits shall however be restricted to three years prior to filing of the writ petitions. The due and admissible benefits be released to the petitioners within a period of three months from today.
(L. Narayana Swamy) Chief Justice (Jyotsna Rewal Dua) Judge January 10, 2020 (reena)
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