TaxTMI 
TaxTMI 
TaxTMI 
2020 (1) TMI 1501
X X X X Extracts X X X X
X X X X Extracts X X X X
.... sanctioned vacant posts of Junior Basic Teachers (in short JBTs). Petitioner being eligible also applied for the post of JBT. He eventually emerged successful in the selection criteria laid down by the State and was appointed as JBT on contract basis on 7.8.1997 on fixed monthly honorarium. His services were regularized on 10.07.2006 w.e.f. 1.1.2006. The service of the petitioner w.e.f. 7.8.1997 to 10.07.2006 has not been counted for the purposes of pay scale, annual increments, seniority, promotion, pension under CCS(Pension) Rules, 1972, GPF etc. 2(ii) State came up with 'Vidya Upasak Yojna' in 1998. Under this scheme, vacant posts of teachers in Government Primary Schools were filled up in the year 2000 by appointing Vidya Upasaks in accordance with selection criteria laid down in the said scheme. Vidya Upasaks, under the scheme were to be initially recruited for a period of one year, extendable on the basis of performance and approval of competent authority. They were to be paid fixed monthly honorarium. Services of Vidya Upasaks were regularized as JBTs in 2007 after awarding them special JBT Certificates and they were placed in pay scale of Rs. 4500-7200. Services of Vidya ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not inclined to entertain this special leave petition, which is dismissed. Pending application(s), if any, shall stand disposed of." Review Petition (c) No.274/2017 preferred by State against dismissal of SLP was also dismissed on 2.3.2017 with following order:- "The Review Petition is directed against order dated 4.1.2016 whereby special leave petition was dismissed. There is delay of 300 days in filing the Review Petition for which no satisfactory explanation has been given. Even otherwise, we see no reason to entertain the Review Petition. The Review Petition is dismissed on ground of delay as well as on merits." The judgment delivered in Joga Singh's case, thus attained finality. Respondent-State on 13.9.2017, conveyed its approval for implementing the decision in Joga Singh's case. 2(iv) Since, Joga Singh and other similarly situated Vidya Upasaks were conferred the benefit of their past service as Vidya Upasks for the purposes of pension under CCS(Pension) Rules, 1972 and annual increments, therefore, on the same analogy, petitioner filed his own independent Original Application No.3796 of 2018 before learned erstwhile H.P. State Administrative Tribunal. Learned Tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ements to them has virtually made them seniors to their actual seniors/petitioners and other similarly situated JBTs. This has resulted in discrimination as the senior JBTs (petitioners) have been denied the benefit of counting their past service on contract basis towards pension and annual increments, whereas this benefit has been granted to their juniors (Vidya Upasaks). 3(ii). Learned Advocate General has opposed the prayers of the petitioner on the grounds that :- (a) Original Application No. 3796/2018 filed by the petitioner for counting his entire JBT service for pensionary benefits under CCS(Pension) Rules & annual increments was barred by limitation prescribed under Section 21 of The Administrative Tribunals Act, 1985. Decision by the Competent Authority on the belated representation preferred by petitioner, will not extend the limitation period. (b) It has also been argued that instant writ petition under Section 226 of the Constitution of India also suffers from delay, laches and estoppel. (c) Another contention raised by learned Advocate General is that judgment in Joga Singh's case does not lay down correct law. It is open for the State to question this judgment in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by respondent-State for pension under the Central Civil Services (Pension) Rules, 1972 in view of First Amendment Rule,2003 amending CCS (Pension) Rules, 1972 for State of Himachal Pradesh. Under this amendment, the persons appointed in the State of H.P. after 15.5.2003 were not entitled to pension under CCS (Pension) Rules, 1972. Petitioners as well as Joga Singh and other similarly situated Vidya Upasaks were treated as JBTs appointed in 2006 and 2007 respectively i.e. after the cut off date of 15.5.2003, therefore, they were not entitled to pension under CCS (Pension) Rules, 1972. They could only receive Contributory Provident Funds under Contributory Pension Scheme introduced after 15.5.2003. 4(iv) Joga Singh and other similarly situated Vidya Upasaks approached this Court in CWP No 8953 of 2013 and other connected matters for counting their entire service rendered as Vidya Upasaks as qualifying service for grant of pension under CCS (Pension) Rules, 1972, annual increments, promotion, seniority and other service benefits etc. This Court held that Vidya Upasaks are entitled to count the period of their service rendered as Vidya Upasaks till their regularization as JBTs as qu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng upon (2015) 1 SCC 347, titled as State of Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others, it has been contended by learned Advocate General that the petitioners were fence sitters and therefore, they cannot be allowed to reap the benefit of judgment in Joga Singh's case. Relevant para of this judgment is reproduced as under:- "22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under: 22.1 Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2 H....
X X X X Extracts X X X X
X X X X Extracts X X X X
....entation by the competent authority on 8.7.2019 will not revive their cause of action which at best was available to them in 2006 when their services were regularized. In support of his contentions, learned Advocate General relied upon decision of Hon'ble Apex Court in Union of India Vs. C. Girija and others, reported in (2019) 3 SCALE 527. 5(i)(c) Judgment passed by Hon'ble Apex Court in Prahlad Raut vs. All India Institute of Medical Sciences in Civil Appeal No. 6640 of 2019 was also relied upon to contend that cause of action, if any, available to the petitioner is now barred by Section 21 of Administrative Tribunal Act. Relevant paras are as under:- "37. Be that as it may, the order of dismissal dated 6.1.2000 under Rule 19(i) of CCS (CCA) Rules, 1985 was challenged on 2013 after almost 13 years. Even assuming that the appeal was never decided, the cause of action for filing an application before the Tribunal would have arisen on expiry of six months from the date of filing the appeal, in view of Section 20(2)(b) of the Administrative Tribunals Act, 1985. 38. The application to the Tribunal would have to be filed within the period of limitation as prescribed in Section 21(1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....use of action virtually arose in favour of the petitioner as his juniors (originally -Vidya Upasaks) were held entitled to count their past service for purpose of pensionary benefits under CCS (Pension) Rules, 1972 as well as for annual increments. Petitioner thereafter preferred Original Application No.3796 of 2018, which was disposed of by directing the competent authority to grant the benefit of Joga Singh's judgment to the petitioner in case he was similarly situated. The competent authority rejected petitioner's representation on 8.7.2019 on the ground that petitioner is not similarly situated to Joga Singh. We have already observed that petitioner was similarly situated to Joga Singh, rather he was senior to Joga Singh. 5(iv) It cannot be said that to claim the benefit of judgment in Joga Singh's case, petitioner is required to challenge his regularization order dated 10.07.2006. For counting their service rendered as Vidya Upasaks, towards qualifying service for pensionary benefits under CCS(Pension) Rules, 1972 and for grant of annual increments, Joga Singh and other similarly situated Vidya Upasaks had neither challenged their regularization orders nor these orders were q....
X X X X Extracts X X X X
X X X X Extracts X X X X
....after cannot arrest time as the claim would nonetheless become stale and will be barred by delay and laches. However, in 2010 (12) SCC 538 titled as State of Madhya Pradesh and Others vs. Yogendra Shrivastava, it was held that:- "18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances." Therefore, we hold that prayers of petitioners for counting their past contractual service as qualifying service towards pensionary benefits under CCS(Pension) Rules, 1972 and annual increments as allowed to Joga Singh & Other Vidya Upasaks under judgment dated 15.6.2015 cannot be denied to them (petitioners) on grounds of limitation, delay, laches or acquiescence, however, financial benefits are to be restricted to them to three years prior to filing of the writ petitions. 6. Point No.3: 6(i) Learned Advocate General has contended that judgment in Joga Singh's case does not lay down correct law, therefore, it is open for the State to question the same in instant writ petitions, which are seeking applicability of the same. In support of the submissions, learned Advocate General relied upon judgment dated 03.01.2019, passed in Civil Appeal No. 12040 of 2018, titled as Union of India vs. Dr. O.P. Nijhawan, wherein it was held by Hon'ble Apex Court that even where the State does not challenge a judgment owing to the fact that financial repercussions are negligible or where the app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....des that contractual service followed by substantive appointment in a pensionable establishment can also be counted towards qualifying service for grant of pension. In backdrop of facts of the case, it was thus held that though Vidya Upasaks were not entitled to regular pay scale at par with regular appointments, but they were certainly entitled to count the period from 2000 to 2007 towards annual increments and qualifying service for pension. Petitioners herein, as already observed, are situated at much better footing than the petitioners in Joga Singh's case. They were appointed as JBT on contract basis against regular JBT posts in 1997 and were regularized as such w.e.f. 1.1.2006. Rule 17 of CCS (Pension) Rules, 1972 permits counting contractual service towards qualifying service for grant of pensionary benefits. This rule is extracted hereinafter:- "17. Counting of service on contract - (1) A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may opt either :- a) to retain the Government contrib....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and reward to a permanent and responsible regular employee. 30. We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma & Ors. v. State of Uttar Pradesh & Ors. (CA No.______2019 @ SLP (C) No.5775 of 2018) the appellants were allowed to cross efficiency bar, after '8' years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej M....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularization. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not ....