Point of Law : Determining the qualifying service for the purpose of pension any benefit as provided in Rule 49 of CCS (Pension) Rules, 1972, has not been taken away and an employee has not been precluded from getting such benefit.

ORDER :

Satyen Vaidya, J.

By way of instant petition, petitioner has prayed for the following substantive reliefs:

“(i) That the writ in the nature of Certiorari or any other appropriate writ, order or directions may kindly be issued, quashing the impugned order dated 01.06.2021 (Annexure P-6), being illegal, arbitrary, discriminatory, unconstitutional and against the settled law of service jurisprudence.

(ii) That the writ in the nature of Mandamus or any other appropriate writ, order or directions may kindly be issued, directing the Respondents to count daily wage service for the purpose of pension in view of the Judgment/order dated 08.03.2018 (Annexure P-3) for the purpose of counting 10 years for pensionary benefits.

(iii) That the respondents may be directed to release all consequential arrears of pension and other retiral benefits alongwith arrears with interest @ 9% p.a. in favour of the petitioner.

(iv) That the respondents may further be directed to pay the gratuity to the petitioner for the service rendered on daily wage basis w.e.f. 01.05.1987 to 31.12.1997 in view of the law laid in State of HP Versus Lashkari Ram {2008 (I) SLC 245}.”

2. The case set-up by petitioner is that he was appointed on daily wage basis as Beldar in Irrigation & Public Health (for short ‘I&PH’) Division Nurpur, District Kangra, H.P. on 01.05.1987. He continued to work as daily wager by rendering services for 240 days in each calendar year. Petitioner was regularised w.e.f. 01.01.1998. Petitioner was superannuated on 31.12.2006. On the strength of these facts, it has been contended on behalf of petitioner that petitioner served the respondent-Department for total period of 19 years including 9 years of regular service, therefore, he was entitled to the benefit of judgment passed by the Hon’ble Supreme Court in the case of Sunder Singh vs. The State of Himachal Pradesh, Civil Appeal No. 6309 of 2017.

3. Petitioner had approached this Court on earlier occasion by way of CWP No. 5067 of 2020, seeking similar relief as in the present case. A Division Bench of this Court vide order dated 02.03.2021 had disposed of CWP No. 5067 of 2020 by permitting the petitioner to make a representation to the respondents with direction to the respondents to consider the case of the petitioner, pass appropriate orders and if found entitled for pensionary benefits, to release such benefit in his favour.

4. In compliance to order dated 02.03.2021 passed in CWP No. 5067 of 2020, petitioner submitted his representation to the respondents, but respondent No.4 rejected the same vide office order dated 01.06.2021 (Annexure P-6), hence the present petition.

5. In response, the respondents have submitted that the judgment in Sunder Singh’s case (supra) was not applicable to the case of petitioner as the petitioner had rendered only 8 years and 8 months service including work charged service. He had worked only for 9 years on daily wage basis which was less than 10 years of daily wage of continuous service before the grant of work charged status/ regularization, as such, he was not entitled to weightage of two years as per the case of Sunder Singh. In alternative, it is submitted that even if the petitioner is allowed the benefit of weightage of one year on the basis of 9 years of daily waged services, his total service including regular service would be 9 years 8 months and will still fall short of 10 years regular services. On such premise, the impugned order dated 01.06.2021 (Annexure P-6) has been tried to be justified.

6. We have heard learned counsel for the parties and have also gone through the records of the case carefully.

7. The perusal of impugned office order dated 01.06.2021 (Annexure P-6) reveals that respondent No.4 has rejected the claim of petitioner by holding as under:

“…And whereas, the applicant was regularized under 9 year policy w.e.f. 01.04.1998 not under 10 year policy i.e. Mool Raj Upadhyaya case. It is, therefore, the applicant was not eligible for the be