The Himachal Pradesh High Court on Thursday held that services of an employee, appointed on contractual basis in temporary capacity, can be counted towards qualifying service for the grant of pension after his services have been regularized.
In the case at hand, the Petitioner's request for disbursement of her deceased husband's salary was declined by the government on the ground that he could not be counted for pensionary benefits under CCS (Pension) Rules, 1972 as the same were applicable only to regular government employees appointed in the pensionable establishments in the Government departments on or before 14.05.2003. Further, as per rule 2 (g) of the Pension Rules, these Rules were not applicable to the persons employed on contract except where the contract provided otherwise.
The Petitioner's husband 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 in January, 2011.
"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," the bench of Justice Tarlok Singh Chauhan and Justice Chander Bhusan Barowalia held.
Reliance was placed on the decision rendered by Single Judge of the high court in Paras Ram v. State of Himachal Pradesh & Anr., 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. This position was subsequently reaffirmed by various division and co-ordinate benches of the high court.
In State of HP & Ors. v. Matwar Singh & Anr., 2018, a coordinate bench had 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.
The court then went on to cite a decision rendered by a division bench the Punjab and Haryana High Court in Rai Singh & Anr. v. Kurukshetra University, Kurukshetra, C.W.P. No.2246 of 2008, wherein it was held that 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. 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.
On this basis, the court remarked,
"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."
Case Title: Sheela Devi v. State of HP & Ors.
Case No.: CWPOA No. 195/2019
Quorum: Justice Tarlok Singh Chauhan & Justice Chander Bhusan Barowalia
Appearance: Advocates AK Gupta and Babita (for Petitioner); Advocate General Ashok Sharma with Addl. AG Vinod Thakur and Deputy Advocate Generals Bhupinder Thakur, Narinder Thakur, Svaneel Jaswal and Divya Sood (for Respondents)
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