Chief General Manager vs Karnail Singh

N. Paul Vasanthakumar, C.J.—Heard Mr. K.K.Pangotra, learned counsel appearing for the appellants and Mr. P.N.Raina, Sr. Advocate

appearing for the respondent.

This appeal is preferred against the order made in SWP No.369/2005 dated 07.12.2006, giving direction to give credit of service rendered by

the respondent w.e.f. April, 1979 to 27th February, 1989 as daily rater worker, in addition to his regular service for computing his qualifying

service for the purposes of pension and grant pension within a period of four weeks, if respondent is having qualifying service.

The case put forth by the respondent before the Writ Court was that he was engaged as Daily rated mazdoor in April, 1979 in the department

of telecommunications and he served in the said capacity up to 27.02.1989. His services were regularised as temporary regular mazdoor w.e.f.

28.02.1989, taking note of his daily rated mazdoor services and he performed his duties in the said capacity until 06.10.1997 where after he met

with an accident and became unfit for the service and he was given retirement on medical grounds. He having been denied pension, filed the writ

petition stating that his services from April, 1979 till 27.02.1989 shall be computed for pension purposes and pension claim was denied on the

ground that after making him as temporary regular mazdoor, if his service is counted he is having only 8 years, 7 months and 6 days in his credit till

his retirement on medical grounds.

Learned Single Judge allowed the writ petition taking note of the Rules 13 and 14 of CCS (Pension) Rules, which states that qualifying service

of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an

officiating or temporary capacity provided he has been substantively appointed in the same or another post without interruption. As per rule 14 (2),

the expression ""service"" means service under the Government and paid by that Government from the Consolidation fund of India or a local fund

administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying

service by that government.

Learned Single Judge also taken notice of the fact that though the writ petitioner’s service was daily rated initially, he was absorbed without

interruption on regular basis and the post on which he was working was also a pensionable post carrying a regular scale. Thus the payment made

to the respondent as daily rated pay be treated as paid from the consolidated fund and could be from the contingency fund.

If a person is paid salary from contingency fund, only 50% of the service can be computed for pension, provided the job shall for which the

person was engaged is a whole time job and not part time and the service paid from contingencies should be in a type of work or job for which

regular posts could have been sanctioned i.e. malis, chowkidars, khalasis etc. The payment should have been made either on monthly or daily rates

computed and paid on monthly basis, which should be followed by absorption in regular employment without any break. The said position is made

clear in Government of India’s decision with referred to Rule 14 by Government of India, Ministry of Finance, O.M. No.F-12(I)-E, V/68

dated 14.05.1968, which reads thus:-

Government of India’s Decisions

(1) Benefit of service rendered under Government in respect of scientific employees-----

(2) Counting half of the service paid from contingencies with regular service. â€" Under Article 368 of the CSRs (Rule 14) periods of service paid

from contingencies do not count as qualifying service for pension. In some cases, employees paid from contingencies are employed in types of

work requiring services of whole-time workers and are paid on monthly rates of pay or daily rates computed and paid on monthly basis and on

being found fit brought on to regular establishment. The question whether in such cases service paid from contingencies should be allowed to count

for pension and if so, to what extent has been considered in the National Council and in pursuance of the recommendation of the Council, it has

been decided that half the service paid from contingencies will be allowed to count towards pension at the time of absorption in regular

employment subject to the following conditions, viz:- -

(a) Service paid from contingencies should have been in a job involving whole-time employment (and not part time for a portion of the day).

(b) Service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned ,e.g. malis, chowkidars,

khalasis etc.

(c) The service should have been one for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and

which though not analogous to the regular scale of pay should bear some relation in the matter of pay to those being paid for similar jobs being

performed by staff in regular establishments.

(d) The service paid from contingencies should have been continuous and followed by absorption in regular employment without break.

(e) Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies will be limited to the period after 1st

January, 1961, for which authentic records of service may be available.

It has been decided that half the service paid from contingencies will be allowed to be counted for the purpose of terminal gratuity as admissible

under the CCS (TS) Rules, 1965, where the staff paid from contingencies is subsequently appointed on regular basis. The benefit will be subject to

the conditions laid down in OM, dated the 14th May, 1968, above………

From the above office memorandum issued by Government of India as early as in the year 1968, it is evident that if a person/daily wage

employee employed in Government Department served on whole time basis and his salary was calculated and paid at the end of the month, if

absorbed without break in service, 50% of his daily rated whole time service shall be taken for counting pensionable service. Thus the

respondent’s 50% service from April, 1979 up to 27.02.1989 shall be added along with regular service of 8 years, 7 months and 6 days for

calculating pensionable service. If 50% of the said service is added along with the regular service, it would be more than 13 years and 6 months.

In such circumstances, the respondent is entitled to get pension from the date of his retirement on medical grounds computing his pensionable

period as 13 years 6 months and 20 days. The appellants are directed to sanction pension to the respondent from the date of his retirement. The

respondent is entitled to get interest 6% per annum on the arrears of pension from the date of the judgment rendered by the learned Single Judge

i.e. 07.12.2006. The said interest is ordered taking note of the fact that on 28.03.2007, this Court while entertaining the appeal without granting

stay ordered that pendency of the appeal shall not come in the way of the appellants to process the case of the respondent for granting pensionary

benefits to him. Let this exercise be completed within a period of three months from the date of receipt of copy of this order.

Order of the learned Single Judge stands modified with the above directions. Appeal is disposed of. No costs.