STATE OF J. & K. Vs. KARMO DEVI

JUDGEMENT

(1.) This is an appeal under clause 12 of Letters Patent preferred by the State of Jammu and Kashmir and its officer challenging the view taken by the learned Writ Court in its order dated 08.05.2008, holding that the services rendered by a Daily Wager before his regularization in the regular pay scale would also qualify for pension. Brief facts of the case are that the husband of the writ petitioner-respondent was initially engaged as a daily wager in the year 1969. He was thereafter transferred to the department of Flood Control where he continuously worked from 01.09.1972 to 15.08.1985. Thereafter he was shifted to regular temporary establishment on 16.08.1985 in the pay scale of Rs. 345-460. Eventually he superannuated from service on 31.12.1991. On the ground that Article 177 of the Jammu and Kashmir Civil Service Regulations Vol. 1 does not permit reckoning of such service for pension the claim made by the employee was rejected. The regulation shows that if an employee at the time of his retirement holds a post on substantive basis than the services rendered by him on temporary basis or quasi permanent basis, which is without any interruption, was to be counted for the purposes of pension. The objection filed by the Accountant General-respondent No. 5 was that the husband of the writ petitioner-respondent did not render sufficient service which could earn him any pension. According to the Accountant General the husband of the writ petitioner-respondent had rendered only 3 years 4 months and 15 days quasi permanent service. The aforementioned stand of the Accountant General did not find favour with the learned writ Court for the reason that the husband of the writ petitioner-respondent was holding a substantive post at the time of his superannuation and had already been placed in the regular scale of pay. He had 22 years uninterrupted service before he superannuated on 31.12.1991. The learned Writ Court placed reliance on a Full Bench judgment of Punjab and Haryana High Court rendered in the case of Kesar Chand v. State of Punjab and Ors., 1988 AIR(P&H) 265and proceeded to hold that any service rendered by a worked charged employee preceding to the date of his regular appointment would qualify for pension. If any contrary view was to be taken than it would be arbitrary and violative of the provisions of Article 14 of the Constitution.

(2.) We have heard the learned counsel for the parties at a considerable length and are of the view that the learned Writ Court has taken correct view by holding that period of service paid on work charged establishment would also qualify for pension. The exception carved out by proviso to Article 177 of the Jammu and Kashmir Civil Service Regulations Volume-1 would not satisfy the requirement of Article 14 of the Constitution. According to the aforesaid provision it is only temporary officiating including temporary service on temporary establishment or quasi permanent service without interruption etc. which was to come in full as qualifying service and period of service paid on work charged establishment was to be excluded. Similar view was incorporated in Punjab Civil Service Rules which excluded the period of service paid on work charged establishment from being reckoned as qualifying service for the purposes of pension. Article 177, as applicable to the employees of Jammu and Kashmir State, would read thus:-

(3.) A perusal of the aforesaid provision would show that it carves out two sets of employees. In the first set the service has been considered as qualifying service. In other words, if an employee at the time of superannuation was holding a substantive office on a permanent establishment then his preceding temporary officiating service including temporary service on temporary establishment or quasi permanent service followed without interruption by confirmation, was to count as qualifying service. In other words, this set of employees would enjoy the benefit of pension by reckoning the service rendered by them prior to the date of their shifting to a substantive office on a permanent establishment. The other set of employees contemplated and accepted by the provision is those who also hold the substantive office on the date of their superannuation but the period of their service paid on work charge establishment or paid from contingencies was to be excluded. In the present case we are concerned with the period of service paid on work charge establishment. There is no rational basis to create such a hostile classification because the set of employees who are grouped together for grant of benefit are not different than the one who are grouped together for depriving those benefits. The nature of services rendered by both prior to coming over to the permanent establishment by holding a substantive office is not different in content. It refers to temporary officiating including temporary service in a temporary establishment or quasi permanent services followed without interruption by confirmation. If temporary officiating service has to qualify for pension there is no reason why the period of service paid on work charge establishment would not qualify. It was in the aforesaid facts and circumstances that the Full Bench of Punjab & Haryana High Court in the case of Kesar Chand considered a similar rule and reached the conclusion which is extracted below from the head note of the report.