Harbinder Singh vs State of Punjab - 2023 Supreme(P&H) 3083

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 3083

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
PANKAJ JAIN, J.
Harbinder Singh & Ors. – Petitioners
Versus
State of Punjab & Ors. – Respondents
CWP-12994 of 2018 (O&M)
Decided On : 16-02-2023

Advocates Appeared:
Mr. K.L.Arora, Advocate; For the Petitioners
Mr. Rajesh Mehta, Addl. A.G., Punjab.
Mr. G.S. Sidhu, Advocate for Respondent No.3 in CWP-12994-2018.
Mr. G.S. Attariwala, Sr. Advocate with Mr. Sawroop Singh, Advocate for Respondent No.3 in CWP-6012-2019

Headnote:(A) Punjab Civil Service Rules - Rule 3.17 - Employees in Municipal Committees regularized post 01.01.2004 claim entitlement under old pension scheme - Prior rights not abrogated despite new pension scheme application to fresh entrants - Resolutions for regularization following 01.01.2004 do not impair prior qualifying service. (Paras 6, 10, 12, 15)

(B) Pension Rights - Employees in service prior to 01.01.2004 should not be treated as fresh entrants subject to new rules. (Paras 6, 15)

Facts of the case:
The petitioners were employees of Municipal Committees regularized post 01.01.2004, challenging the applicability of the new Contributory Pension Fund Scheme instead of the old pension rules due to their employment history.

Findings of Court:
Employees who were in service before 01.01.2004 are entitled to pension benefits under the old rules; newer pension scheme does not apply to them.

Issues: Whether employees regularized post 01.01.2004 are entitled to the old pension scheme based on their employment date.

Ratio Decidendi: Prior qualifying service must be recognized; new contributory scheme does not apply to pre-2004 employees.

Result: Petitions allowed; petitioners entitled to old pension benefits.

Table of Content
1. context of previous employment and pension rules (Para 1 , 2)
2. arguments regarding eligibility for pension benefits (Para 3 , 4)
3. judicial reasoning on qualifying service and pension rights (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15)
4. entitlement to old pension rules (Para 16)
5. conclusion on pension entitlement and interest (Para 17 , 18)

JUDGMENT

Mr. Pankaj Jain, J. (Oral)

By this common order, the bunch of three writ petitions, details of which have been given in the heading, are being disposed off as all the writ petitions having the same question of law and similar facts.

2. The petitioners in these writ petitions are the employees who came in employment of different Municipal Committees prior to 01.01.2004. The services, however, have been regularised post 01.01.2004. The question involved in all the writ petitions relate to as to whether the petitioners would be governed by old PENSION RULES which were invoked prior to 01.01.2004 or would be governed by New Contributory Pension Fund Scheme promulgated by State which came into being on 01.01.2004 and was made appealable to the fresh entrants after 01.04.2004.

3. Counsel for the petitioners has relied upon Division Bench judgment rendered by this Court in ' Harbans Lal v. State of Punjab and others , 2012(3) SCT 362 ', and further judmgent passed by Coordinate Bench passed in CWP-9208-2020 titled as 'Jitpal Singh v. State of Punjab and others' decided on 04.07.2022, wherein relying upon the Harbans Lal's case (supra) the employees who were appointed on daily wages in the year 1993 but were regularised on 21.12.2012, have been held entitled for grant of pensionary benefits under the old pension scheme.

4. Per contra, Mr. Attariwala and Mr. Swaroop Singh, have emphatically opposed the relief claiming that the petitioners were regularised pursuant to order passed by this Court in CWP-13550-2001 (Sukhminder Singh v. State of Punjab and another), wherein a direction was issued to regularised the services of the petitioners in terms of Resolution dated 28.05.2009. The fact remains that the resolutions to regularise the services of the petitioners in all the cases was passed after 01.01.2004.

5. Having heard learned counsel for the parties and having gone through the record of the case.

6. In the considered opinion of this Court, resolution passed by the Municipal Councils/Corporation cannot take away the import of Rule 3.17 of the Punjab Civil Service Rules and the law as laid down in Harbans Lal's case (supra). The fact remains that the petitioners being in service prior to 01.01.2004, cannot be treated as fresh entrants on 01.01.2004.

7. In fact w.e.f. 1st of January, 2004, State of Punjab promulgated Contributory Pension Fund Scheme which was made applicable to all fresh entrants in the government service on or after 1st of January, 2004. Necessary amendment was made in the PUNJAB CIVIL SERVICES RULES , Volume-I, Part-I which reads as under :-

"Government of Punjab

Department of Finance

(Finance Personnel Branch-II)

Date Chandigarh the 2nd March, 2004 No.8/1/2004-

3FPII/2078

-In exercise of powers conferred by proviso to Article 309 read with Clause (3) of Article 187 of the Constitution of India and all other powers enabling him in this behalf, the Governor of Punjab, after consultation is necessary under the aforesaid provisions is pleased to make the following rules further to amend the Punjab Civil Service Rules, Volume-I, Part-I, namely:-

(i) These Rules may be called the Punjab Civil Services (First Amendment) Rules, 2004.

(ii) These shall be deemed to have come into force with effect from the 1st day of January, 2004.

2. In the Punjab Civil Services Rules, Volume-I, Part-I, in rule 1, 2, the following proviso shall be added at the end of sub rule (1):-

"Provided that the rules in Part-I-Pensions in Volume-II of these rules called the Punjab Civil Services Rules, Volume-II shall not apply to the Government employees who are appointed to the