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2021 Supreme(HP) 257
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sureshwar Thakur, J.
Duni Chand, Son of Late Sh. Kanshi Ram – Petitioner
Versus
State of H.P Through Principal Secretary (Horticulture) And Ors. – Respondents
Civil Writ Petition (Original Application) No. 6294 Of 2019
Decided On : 20-08-2021
Point of Law : Exclusion of work charge employees - In Rule 2 of CCS (Pension) Rules, hence makes them amenable to be valid recipients of pension, as the prior thereto application clause, is rather workable, vis-à-vis, them. However, even the afore made submission, cannot be accepted, as the mere non-occurrence of a work charge workman, in the relevant exclusion clause, vis-à-vis, the apposite application clause, rather per-se would not render work done on a work charge establishment, hence by a work charge workmen, to fall within the realm of the relevant application clause, as, carried in Rule 2.
Advocate Appeared :
For the Petitioner : Sh. A.K Gupta, Advocate
For the Respondent : Sh. Ashwani Sharma & Sh. Hemant Vaid, Addl. A.Gs With Mr. Vikrant Chandel & Mr. Gaurav Sharma, Dy.A.Gs., Sh. Balram Sharma, ASGI
Headnote:
Provident Funds and Miscellaneous Provisions Act, 1952 - Section 17 - Substantive post rather become drawn - Salaries of incumbents - Government servants after a continuous service of one year, all re-employed pensioners other than those eligible for admission to the Contributory Provident Fund and all permanent Government Servants shall subscribe to Fund - temporary Government servant, who is borne on an establishment or factory to which provisions of Employees’ Provident Funds Scheme, 1952, framed under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 would apply or would have applied but for the exemption granted under section 17 of said Act - General Provident Fund if he has completed six months’ continuous service or has actually worked for not less than 120 days during a period of six months or less in such establishment or factor or in any other establishment or factory to which said Act applies.
Finding of the Court : Post in State of Himachal Pradesh, rendering the apposite appointees, for, not becoming valid recipients of CCS (pension) Rules - Petitioner becomes rather entitled to all post retiral benefits being purveyed to them in the mode enshrined in Annexure - working against substantive post rather become drawn.
Result : Petition is dismissed
ORDER :
The writ petitioner became conferred the aspired work charge status in the year 2002. The afore factum finds reflection in Annexure P-1. He became allotted General Provident Fund (for short “GPF”) number by the Senior Deputy Accountant General, H.P. However, through Annexure P-2, the writ petitioner was asked to switch over to Contributory Pension Scheme (for short “CPF”), as per rules of 2006, on the ground that his regular appointment took place after May, 2003. Consequently, the writ petitioner becomes aggrieved by the making of Annexure P-2, and, through the institution of the instant writ petition before this Court, he has sought the quashing of Annexure P-2. Moreover, he has also prayed for a mandamus being issued upon the respondent concerned, to, permit him to contribute to GPF.
2. Respondents No.1 and 2, in their reply meted to the writ petition, strived to validate Annexure P-2 through Annexure R-1 as becomes appended with the reply. A perusal of Annexure R-1 appended to their reply, Annexure whereof is a notification issued on 17.8.2006, though does enclose, that vis-a-vis, all appointments made by the Government of Himachal Pradesh on or after 15.5.2003, rather barring the appointees concerned, from drawing the benefits of Central Civil Services (Pension) Rules, 1972. Moreover, it is also spelt therein, that the appointees concerned whose appointments occur after 15.5.2003, would draw pension co-equivalent, to their contribution to the apposite pension fund.
3. However, a reading of Annexure R-1, though prima-facie does not sustain, the reply filed on affidavit filed by respondents No.1 and 2, that vis-à-vis, appointments made after 15.5.2003, the apposite appointees being barred to subscribe to GPF, and, rather all the post retiral benefits becoming governed by Annexure R-1. However, even if assumingly on a deep reading of Annexure R-1, the afore submission is prima-facie incorrect.
4. Nonetheless, a reading of Rule 4 of General Provident Fund (CS) Rules (for short “GPF Rules”), Rule whereof stands extracted hereinafter, makes abundant and clear echoings, that all temporary government servants after a continuous, service of one year, shall become eligible to subscribe to the funds concerned. Moreover, NOTE-3 appended there-under also made be speakings, that the temporary government servants, who have been appointed against regular vacancies, and, who are likely to complete more than a period of one year, may subscribe to GPF any time before completion of one year service.
“4. Conditions of eligibility
All temporary Government servants after a continuous service of one year, all re-employed pensioners (other than those eligible for admission to the Contributory Provident Fund) and all permanent Government Servants shall subscribe to the Fund:
Provided that no such servant as has been required or permitted to subscribe to contributory Provident Fund shall be eligible to join or continue as a subscriber to the Fund, while he retains his right to sub-scribe to such a Fund:
Provided further that a temporary Government servant, who is borne on an establishment or factory to which the provisions of Employees’ Provident Funds Scheme, 1952, framed under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) would apply or would have applied but for the exemption granted under section 17 of the said Act, shall subscribe to the General Provident Fund if he has completed six months’ continuous service or has actually worked for not less than 120 days during a period of six months or less in such establishment or factor or in any other establishment or factory to which the said Act applies, under the same employer or partly in one and partly in the other.
[provided also that nothing contained in these rules shall apply to Government servant appointed on or after the 1st day of January, 2004]
EXPLANATION- For the purposes of this rule “continuous service” shall have the same meaning assigned to it in t
