Judgment:
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A.No.3835 of 2010 (O&M) Date of decision: February 21, 2013 Punjab State and others .Appellants versus Gurdeep Singh and others .Respondents Coram: Hon'ble Mr.Justice A.N.Jindal Present: Mr.Baljinder Singh Sra, Addl.
A.G.Punjab for the appellants.
Mr.Rajinder Sharma, Advocate for the respondents.
A.N.Jindal, J CM No.11415-C of 2010 Delay condoned.
CM is allowed.
Rs.No.3835 of 2010 Having lost before both the courts, the appellant-defendants have come up with this regular second appeal.
Factual background of the case is that plaintiff- respondent Smt.
Sudesh Prabha (since deceased).(herein referred as, 'the plaintiff') joined as Art & Craft teacher on 22.12.1972 with the District Education Officer, Kapurthala and served at various places.
She retired on 31.8.2003 after attaining the age of superannuation.
The plaintiff came to knot that the appellant-defendants (herein referred as, 'the defendants') have paid the pension and other allied benefits w.e.f.1.4.1977 instead of 22.12.1972 i.e.date of her joining.
There was no occasion to exclude her service rendered from 22.12.1972 to 31.3.1977 and deny the service benefits to her.
The plaintiff is entitled to get her service counted from qualifying service w.e.f.22.12.1972 and to get all the service benefits.
It has been further averred that she had completed 8 years service on 22.12.1980 and 18 years service on 22.12.1990, but she has not been paid the proficiency step ups as per recommendations by the Punjab IIIrd Pay Commission.
Her service record R.S.A.No.3835 of 2010 (O&M) -2- is neat and clean.
She is entitled to fixation/re-fixation of pay.
The retiral benefits due towards G.P.Fund Rs.3,79,711/- which were due on 1.9.2003 were paid vide cheque dated 22.2.2005, which were delayed by 18 months.
It has been further averred that the balance amount of G.P.Fund Rs.4730/- due on 1.9.2003, duly sanctioned for payment by the defendant No.6, has not paid till date.
The amount of missing credits from March, 1982 to August, 1982 and March, 1984 to July, 1984 has not been paid with compound interest.
The suit was contested by the defendants taking the preliminary objections inter alia that the plaintiff has no cause of action to file the present suit as she has never been denied her due claims available under the rules.
It has been stated that the delay in any payment is attributable to the plaintiff herself as she was always not cooperative to prepare any case and even reluctant to put her signatures on the case.
It has been further submitted that the plaintiff has erroneously been paid in excess an amount of Rs.48,895/- due to inadvertent calculations of G.P.Fund final payment which are liable to be recovered from the plaintiff but the plaintiff is not ready to return the same.
On merits, it has been admitted that the plaintiff served in the Department of Education Punjab as an Art and Craft teacher.
It has been further stated that the plaintiff rendered ad hoc service for the period from 22.12.1972 to 31.3.1977 purely as stop gap arrangement.
During this period, she left the service on her own accord on 8.10.1973 and again joined on 5.10.1974.
So she has more than year's gap in this period and hence this period is not countable for computing the pensionary benefits.
Therefore, the pensionary benefits paid to the plaintiff on the basis of the regular service w.e.f.1.4.1977 are legal, genuine and as per rules.
Hence prayed for dismissal of the suit.
From the pleadings of the parties, the trial court framed the following issues :- 1.
Whether the plaintiff is entitled for declaration as prayed for?.OPP 2.
Whether the plaintiff is entitled for mandatory injunction as prayed for?.OPP R.S.A.No.3835 of 2010 (O&M) -3- 3.
Whether the suit is not maintainable?.OPD 4.
Whether the suit is bad for mis joinder of parties?.OPD 5.
Relief.
The trial court decreed and the suit and the appeal preferred by the defendants was dismissed.
The following substantial question of law arises for determination :- “Whether the ad-hoc service of an employee could be counted while extending pensionary benefits?.”.
Learned counsel for the appellant contends that the ad hoc service cannot be counted for granting ACP scales.
However, his precise contention in this appeal is that the ad hoc service w.e.f.22.12.1972 to 31.3.1977 could be considered and counted as qualifying service towards pensionary and other allied benefits (except promotion, seniority and ACP scales).In this regard, learned Additional Advocate General, Punjab has submitted that the pensionary benefits have already been paid to the plaintiff while counting the service w.e.f.1.4.1977.
Learned counsel for the respondent does not dispute this fact, rather he submits that her pensionary benefits are to be re-calculated while adding the service w.e.f.22.12.1972.
In this regard he has placed reliance on the judgment delivered by the Full Bench of this Court in the case of Kesar Chand versus State of Punjab through the Secretary, P.W.D., B & R Chandigarh and otheRs.1988 (2) PLR 223.wherein it was observed as under :- “After the services of a work-charged employee have been regularised he becomes a public servant.
The service is under the Government and is paid by it.
Once the services of work- charged employee have been regularised, there appears to be hardly any logic to deprive him of the pensionary benefits as are available to the other public servants under rule 3.17 of the Rules.
Equal protection of laws must mean the protection of equal laws for all persons similarly situated.
Article 14 strikes at arbitrariness because a provision which is arbitrary involves the negation of equality.
Even the temporary or R.S.A.No.3835 of 2010 (O&M) -4- officiating service under the State Government has to be reckoned for determining the qualifying service.
It looks to be illogical that the period of service spent by an employee in a work-charged establishment before his regularisation has not been taken into consideration for determining his qualifying service.
The classification which is sought to be made among Government servants who are eligible for pension and those who started as work-charged employees and their services regularised subsequently, and the others is not based on any intelligible criteria and therefore, is not sustainable at law.
After the services of work-charged employee have been regularised, he is a public servant like any other servant.
To deprive him of the pension is not only unjust and inequitable but is hit by the vice of arbitrariness, and for these reasons the provisions of sub rule (ii) of rule 3.17 of the Rules have to be struck down being violative of Article 14 of the Constitution.”
The judgment delivered by the Full Bench of this Court in Kesar Chand's case supra has been followed by the Division Bench of this Court in the case of Amarjit Singh and others versus State of Punjab and otheRs.2011 (4) SLR 52.wherein it was observed that though the service rendered on ad hoc/ work-charged basis cannot be counted for the purpose of giving ACP scale to the employee but the same could be counted for providing benefit for granting retiral/pensionary benefits.
As such the substantial question of law as framed above, is answered in favour of the appellant.
In the circumstances, this appeal is partly accepted, the respondent would not be entitled for the counting of ad hoc service towards the grant of ACP scales and the judgment passed by the courts below qua the other relief stands affirmed including the grant of interest and missing credits of G.P.F.February 21, 2013 (A.N.Jindal) deepak Judge