IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. :2414 of 2020

Reserved on :04.08.2023

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Decided on :14.08.2023
Ghindro Ram .…Petitioner.

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Versus

State of Himachal Pradesh and ors. …Respondent

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Coram

The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting? 1 Yes
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For the petitioner : Mr. Anuj Gupta, Advocate.
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For the respondents : Mr. Pushpender Jaswal,
Additional Advocate General with
Mr. Gautam Sood, Mr. Rahul
Thakur and Ms. Priyanka
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Chauhan, Deputy Advocate

Generals.
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: Mr. Rangil Singh, Central

Government Counsel,
for respondent No. 4.
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Satyen Vaidya, Judge

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By way of instant petition, petitioner has

prayed for following substantive reliefs:-

i. That the impugned Annexure P-8 being irrational,

illegal and arbitrary may kindly be quashed and
set aside.

1 Whether reporters of the local papers may be allowed to see the judgment?

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ii. That the respondent No.4 may be directed to

enroll/subscribe the name of the petitioner to the
GPF Scheme instead of CPS and the CPS

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accumulation of the petitioner be ordered to

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be refunded to him. The reliefs flowing from the
subscription of GPF may also be ordered to be

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paid to the petitioner forthwith.

iii. That the respondents may kindly be ordered to

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release the remaining amount of gratuity to the
petitioner which has been wrongly withheld by
them. Such amount may be ordered to be paid
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date of his retirement.
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2. The facts of the case are not in dispute. The
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initial engagement of petitioner as daily waged Forest

Worker was in the year 1993. He was granted work

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charge status w.e.f. 01.02.2003 under the orders of this

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Court, passed in CWP No. 7240 of 2011. The services of

the petitioner were regularized w.e.f. 16.08.2007.

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Petitioner has retired from service on 30.06.2016.

3. The issue that has arisen for determination in

the instant petition is with respect to the entitlement of

petitioner to the benefits of GPF Scheme. As per

petitioner, he is entitled for such benefit by considering

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his service on work charge for the purposes of

applicability of aforesaid scheme. The respondents, on

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the other hand, are canvassing against such proposition

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on the basis of clarification dated 13.01.2016, issued by

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the Department of Finance to the following effect:-

“ I am directed to refer to your letter No. Fund-1/Imp.

of
Order/2015-16/1340, dated 2.12.2015, on the subject
cited above and to say that the matter has been
examined in the Finance Department and it is clarified
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that the employees appointed on work charged basis
shall neither be covered under the General Provident
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Fund Rules/CCS (Pension) Rules, 1972 nor they will be
covered under the Contributory Pension Scheme ( also
called New Pension System). However, those employees
whose services have been regularized after 15.05.2003,
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they shall be covered under the Contributory Pension

Scheme also called New Pension System and will be
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governed by the H.P. Civil Service Contributory Pension

Rules, 2006 notified vide Notification No. Fin.(Pen) A(3)-
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1/96, dated 17.08.2006 and instructions issued there

under from time to time. Those employees whose
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services were regularized after 15.05.2003 against a

regular post and work charge status was granted to
them on the directions of the Hon’ble Court from the
retrospective date i.e. prior to 15.05.2003, shall not be
entitled to contribute in the General Provident Fund and
the period of work charge status shall not be counted
towards the pensionary benefits under CCS (Pension)
Rules, 1972.”

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4. I have heard learned counsel for the parties

and have also gone through the record of the case

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carefully.

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5. The administrative department had in the first

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instance recommended the case of the petitioner for grant

of benefit of GPF Scheme, vide office order, Annexure R-3.

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The said order was subsequently withdrawn on the basis

of clarification dated 13.01.2016, issued by the Finance

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Department, as reproduced above.
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6. In State of H.P. and others vs. Sukru Ram

and another, CMP(M) No. 423 of 2017, decided by a

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Division Bench of this Court on 23.5.2017, it was held as

under:
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“The issue is no longer res integra, which stands settled

by the Hon’ble Supreme Court of India in Punjab State
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Electricity Board and another v. Narata Singh and

another, (2010) 4 SCC 317, as also earlier decision of
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this Court in CWP No. 2240 of 2008, titled as The State

of H.P. and others vs. Sh. Tulsi Ram, decided on
31.5.2012, in which learned Single Judge, while holding
the service rendered by the writ petitioner on work-
charged basis from 1.4.2001 to 2.4.2017 to be counted
for the purpose of pension.”

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7. Later in State of H.P. & others vs. Matwar

Singh & another, CWP No. 2384 of 2018, decided by a

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Division Bench of this Court on 18.12.2018, it was held

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as under:-

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“It is by now well settled that the work charge status
followed by regular appointment has to be counted as a
component of qualifying service for the purpose of

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pension and other retiral benefits. Executive
instructions, if any, issued by the Finance Department
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the light of view taken by this Court in CWP No.6167 of
2017, titled Sukru Ram vs. State of H.P. & others,
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decided on 6th March, 2013. A Full Bench of Punjab
and Haryana High Court in Keshar Chand vs. State of
Punjab through the Secretary P.W.D. B & R Chandigarh
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and others, (1988) 94(2) PLR 223, also dealt with an

identical issue where Rule 3.17 (ii) of the Punjab Civil
Services Rules excluded the work charge service for the
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purpose of qualifying service. Setting aside the said

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Rule being violative of Articles 14 and 16 of the

Constitution of India, it was held that the work charge
service followed by regular appointment will count
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towards qualifying service for the purpose of pension

and other retiral benefits. The aforesaid view was also
confirmed by the Hon’ble Apex Court.”

8. Similarly, in CWP No. 2956 of 2019, titled as

Uttam Sain Vs. State of H.P. & Ors. alongwith

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connected matter, decided on 13.7.2021, another

Division Bench of this Court observed as under:-

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“It has also been contended by respondents that the

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petitioners were granted work charge status only vide
order dated 13.10.2015 and the expression used

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therein was “work charge regularization”. In any case,
be it conferment of work charge status or regularization
in favour of petitioner vide office order dated

of
13.10.2015, the same will not affect the outcome of this
petition. In view of the law laid down by this Court in
CWP No. 6167 of 2017, titled Sukru Ram vs. State of
rtH.P. & Ors., CWP No. 2384 of 2018 titled State of
Himachal Pradesh & Ors. Vs. Matwar Singh and also
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by Hon’ble Supreme Court in Prem Singh Vs. State of
H.P. (2019) 10 SCC 516, the work charge status
followed by regular appointment has to be counted as a
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component for qualifying service for the purpose of

pension and other retiral benefits.”
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Thus, it is more than settled now that work

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charge status followed by regular appointment has to be

counted as a component for qualifying service for the

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purpose of pension and other retiral benefits.

9. Adverting to the facts of the present case, the

petitioner was conferred work charge status on

01.02.2003 and was followed by his regularization on

16.08.2007. Thus, the service of petitioner as work

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charge employee, followed by regular appointment is

liable to be counted for the purpose of pension and other

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retiral benefits, hence the distinction drawn by the

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respondents on the ground that petitioner was

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regularized after the cutoff date i.e. 15.5.2003, cannot be

sustained. The petitioner had earned the status of work

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charge employee as a matter of right under the policy of

the State Government.

10.
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It is apt to reproduce the observations made by
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Hon’ble Supreme Court in para-31 of the judgment

rendered in case of Prem Singh vs. State of U.P. &

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others 2019 (10) SCC 516, which read as under:-

“In the aforesaid facts and circumstances, it was unfair

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on the part of the State Government and its officials to

take work from the employees on the work-charged
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basis. They ought to have resorted to an appointment

on regular basis. The taking of work on the work-
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charged basis for long amounts to adopting the

exploitative device. Later on, though their services have
been regularized. However, the period spent by them in
the work-charged establishment has not been counted
towards the qualifying service. Thus, they have not only
been deprived of their due emoluments during the
period they served on less salary in work-charged
establishment but have also been deprived of counting
of the period for pensionary benefits as if no services

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had been rendered by them. The State has been

benefitted by the services rendered by them in the
heydays of their life on less salary in work charged

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establishment”.

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11. Once the work charge employment of the

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petitioner is held liable to be counted for the grant of

pensionary benefits to him, as a natural corollary, he will

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be governed under CCS Pension Rules, 1972 and the

Contributory Pension Scheme will not be applicable to

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him.
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12. The stand of the respondents with respect to

withholding of payable arrears to the petitioner on the

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basis of the instructions dated 13.01.2016 issued by the

Finance Department can also not be countenanced.

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Petitioner had earned the right to the arrears payable to

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him on account of service rendered by him on work

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charge basis, such right cannot be abridged by

administrative instructions.

13. For the aforesaid reasons, the present petition

is allowed. Impugned Annexure P-8, is quashed and

set-aside. The respondents are directed to

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enroll/subscribe the name of the petitioner to the GPF

Scheme by taking into account his service on work

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charge. Respondents are further directed to grant all

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reliefs flowing from the subscription of GPF to the

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petitioner and to refund the CPS accumulation of the

petitioner. The entire exercise be completed within a

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period of eights weeks from today.

14. The petition stands disposed of in the

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aforesaid terms, so also the pending application(s), if any.
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(Satyen Vaidya)
14th August, 2023 Judge
(sushma)
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