Regularization of services and computation of prior service for grant of retiral benefits, Discretion of employees to opt for old or new pension scheme

KULDIP SINGH, J.

1. This order of mine shall dispose of seven connected civil writ petitions bearing numbers CWP-15827-2013, CWP-9845-2014, CWP-10239-2014, CWP-10273-2014, CWP-10407-2014, CWP-11088-2014 and CWP-24434-2014.

2. For the purpose of brevity, the facts have been extracted from leading writ petition bearing No. CWP-15827-2013.

3. The facts of these cases are that the petitioners in all the writ petitions are working as Junior Assistants/Senior Assistants in Punjab School Education Board. The petitioners claim that their services rendered on the basis of contract/ad hoc/daily wages/work charge, prior to their regularization, should be treated as a qualifying service for grant of retiral benefits. They further seek quashing of the Government letter dated 09.12.2011 (Annexure P-8) whereby the Government has directed that the benefit of old pension scheme cannot be given to the petitioners in view of the new ‘Defined CWP-15827-2013 (O&M) and other six connected cases Contributory Pension Scheme’ (Annexure P-9) which came into force w.e.f. 01.01.2004.

4. It comes out that the petitioners were appointed on the basis of contract/ad hoc/daily wages/work charge in the years between 1993 to 1996. One writ petition bearing CWP No. 10047 of 2003 was filed by the petitioners and other co-employees against the State of Punjab and Punjab School Education Board, seeking regularization of their services who were appointed on the basis of contract/ad hoc/daily wages/work charge. During the pendency of the said petition, the petitioners and other employees working with the Board prior to 1998, were regularized and they were given regular pay scales w.e.f. August, 2004 and accordingly the said writ petition was withdrawn on 06.08.2004. The service of the petitioners, who were appointed on contract/ad hoc/daily wages/work charge prior to 1998, were regularized on the basis of Punjab Government’s notification dated 23.01.2001 (Annexure P-2) which was duly adopted by the Board on 13.07.2004. Thereafter, the petitioners demanded the pension. In this regard, various meetings were also held wherein it was decided that the case of the petitioners may be referred to the Punjab Government and further action be taken on receipt of the approval from the Punjab Government. The matter was thereafter referred to the Government for the approval for granting the benefit of pension as per the old pension policy of the Government on 28.11.2011. The Punjab Government vide letter dated 09.12.2011 (Annexure P-8) has declined the said approval.

5. The petitioners now have two claims; first, that their services on the basis of contract/ad hoc/daily wages/work charge should be computed for the purpose of grant of retiral benefits. Second, that since, according to petitioners, their services have been regularized w.e.f. August, 2004, therefore, they are governed by the old pension scheme and not by the new ‘Defined Contributory Pension Scheme’ and the Government letter dated 09.12.2011 (Annexure P-8) is illegal and liable to be quashed.

6. Respondent No. 2 and 3 in the written statement claimed that the services of the petitioners were never regularized. In fact, they were issued fresh appointment letter in August, 2004.

7. While tracing out the history, it is stated that in the year 1993-96 various persons including petitioners were appointed as Clerk on the basis of contract/ad hoc/daily wages/work charge for 89 days. However, in CWP No. 1046 of 1994 titled as Sukhwinder Singh Vs. PSEB, this Court vide order dated 30.05.1994 had directed that the contract appointment will not continue for more than six months or till the appointment to the posts of clerks and peons are made on regular basis, whichever is earlier. It was further stated that ad hoc appointment, beyond advertised posts of Clerk, shall not continue beyond six months. Consequently, on 31.01.1995, the services of 224 ad hoc Clerks were terminated. It was also directed that in case any of the ad