Shahsi Frabha vs State of J&K

Tashi Rabstan, J. - In all these three writ petitions, following common question of law has arisen for adjudication:-

Whether the services rendered by an employee while working as ""Anganwari Worker"" prior to his/her substantive appointment to the post of

Supervisor in the Social Welfare Department would count for pensionary benefits in terms of Rule 171-A of the Jammu and Kashmir Civil

Services Regulation ?

The facts are not in dispute. All the three petitioners claim to have been appointed as Anganwari Workers on different dates. They were,

however, later on appointed by way of selection to the post of Supervisor in the Social Welfare Department. All three petitioners have

superannuated while holding posts of Supervisors in Social Welfare Department borne on the Jammu and Kashmir Social Welfare (Non-Gazetted)

Service Recruitment Rules, 1991.

It appears that on the superannuation of the petitioner, Ganesh Kumari, her case for release of post retrial benefits including pension was

processed in the office of Child Development Project Officer, Samba and forwarded to respondent No. 4-Accountant General. The case of

Ganesh Kumari was rejected by office of respondent 4 -Accountant General, on the ground that she had only rendered temporary service of seven

years, as such, pension was not admissible to her as per the Pension Rules. She has, however, been held entitled to terminal gratuity. Though case

of writ petitioner-Ganesh Kumari was processed and rejected, the pension case of other petitioners was not even processed by their employers.

Having faced denial of pensionary benefits at the hands of respondents, petitioners have filed three separate writ petitions. In view of above

common question of law emanating therefrom, all three writ petitions were clubbed together and heard with the assistance of learned counsel

appearing for the parties.

The petitioners, with a view to claim all the benefits of pension, have vehemently relied upon Rule 177-A of J&K CSR. As such, while dealing

with the same, it would be appropriate to reproduce said Rule as under :-

177-A. Notwithstanding anything contained in Article 177, a work charged employee/whole time contingent paid staff including daily rated

worker(s) (excluding casual/seasonal worker(s) who is/are brought on regular establishment and retires/retire without having been declared

substantive or quasi-permanent, shall be allowed to count 50%, of his/her work charged contingent paid service as qualifying for pension together

with the period of service rendered in regular establishment. If the total of two spells is 20 years or more, he will be eligible for pension under the

preceding proviso.

Learned counsel for the petitioner contends that in terms of Rule 177-A of J&K CSR, services rendered by an employee in his/her capacity as

work charged employee/whole time contingent paid staff, including daily rated worker(s) have been allowed to be counted to the extent of 50%

for the purposes of commuting qualifying service for pension, as such, there is no reason or justification to exclude the services rendered by the

petitioners as Anganwari Workers. Learned counsel for petitioners states that if 50% of services rendered by petitioners as Anganwari Workers

are taken into consideration for commuting qualifying service, they would qualify for pensionary benefits. He, therefore, contends that exclusion Of

the services rendered by the petitioners as Anganwari Workers, which cannot be said to be the services in any manner inferior to the work

charged employee/whole time contingent paid staff, including daily rated worker(s), is patently arbitrary and discriminatory. Learned counsel,

therefore, submits that Rule 177-A of J&K CSR is, required to be interpreted in a manner which saves to it from being declared unconstitutional.

Therefore, he submits that Rule 177-A of J&K CSR requires to be interpreted by reading into it service rendered by the employee as Anganwari

Worker, which services in any case are akin to the services rendered by the work charged employee/whole time contingent paid staff including

daily rated worker(s).

Learned counsel for the petitioners has referred to the judgment passed by a Division Bench of this Court in case State of J&K & Ors. v.

Karmo Devi & Anr. reported in 2014 (1) JKJ 209 [HC] and judgment of this Court in case Samitri Devi v. State & Ors. reported in 2014

(2) JKJ 441 [HC].

Per contra, learned counsel for the respondents has submitted that Anganwari Worker is an honorarium worker, as such, does not hold the civil

post under the Statute and services rendered by such worker not holding the civil post cannot be counted towards the pensionary benefits,

therefore, the services rendered by the petitioners as Anganwari Workers do not qualify for pensionary benefits and since petitioners do not have

minimum regular services of 20 years, as such, they would not be entitled to any pensionary benefits. Learned counsel for the respondents has

referred and relied upon a judgment passed by the Hon'ble Supreme Court of India in case titled State of Karnataka v. Ameerbi passed in

Case No. 4953-4957 of 1998, decided on 07.12.2006.

Heard and considered.

It is not in dispute that all the petitioners were holding the post of Supervisors on substantive basis on the date of superannuation. Prior to their

substantive appointment to the post of Supervisors, petitioners were working in the Department of Social Welfare Department as Anganwari

Workers and if 50% of the services rendered by petitioners as Anganwari Workers are reckoned as service qualifying for pension on the analogy

of Rule 177-A of J&K CSR, all the petitioners would qualify for pensionary benefits.

It is true that Rule 177-A of J&K CSR does not per se provide for reckoning of services rendered by an employee as Anganwari Worker but

the fact remains that such services cannot be said to be in any manner different from or inferior to the services rendered by an employee in his/her

capacity as work charged employee/whole time contingent paid staff including daily rated worker(s). Rule 177-A was recast vide

Notification/SRO 154, dated 28th April 1997. Explanation to Rule 177-A was inserted vide Notification/SRO 328, dated 24th November 1998.

It provides that ""Whole time contingent paid worker means a worker other than casual/worker, brought on regular establishment and paid on

permanent in a graded scale by debit to contingencies, who shall be eligible for pensionary benefits under rules."". The Explanation inserted to Rule

177-A, therefore, provides that whole time contingent paid worker means a worker, who is brought on regular establishment and is paid on

permanent basis in a grade scale, who shall also be eligible for pensionary benefits under rules. It is pertinent to point out here that the provision of

pension is beneficial in nature, which ought to receive a liberal interpretation so as to serve the object underlying pension scheme. However, if

benefits of counting 50% service is only restricted to work charged employee/whole time contingent paid staff including daily rated worker(s) then

Rule 177-A of J&K CSR would have to be declared as arbitrary, discriminatory and unconstitutional. As rightly pointed out by learned counsel for

the petitioners and which has support of judgment referred to by learned counsel for the petitioners, services rendered as Anganwari Worker are

required to be treated at par with the services rendered by an employee as work charged employee/whole time contingent paid staff including daily

rated worker(s) for the purposes of counting 50% thereof as qualified for pension so as to save the provisions of Rule 177-A of J&K CSR from

being declared unconstitutional.

Viewed thus, I hold that the services rendered by the petitioners as Anganwari Workers in the Social Welfare Department before being

substantively appointed to the civil post of Supervisor shall be deemed to have been provided under Article 177-A of J&K CSR and term

Anganwari Worker"" shall be read into along with ""work charged employee/whole time contingent paid staff including daily rated worker(s)"". In

that view of the matter, services rendered by the petitioners as Anganwari Workers cannot be ignored and if 50% of the services rendered by the

petitioners are counted as qualifying for pension, all the petitioners would qualify for pension. The question as to whether Anganwari Worker holds

the civil post under the Statute may not, therefore, be gone into, though, Hon'ble Supreme Court has held that such workers not holding the civil

post but under the Jammu and Kashmir Social Welfare (Non-Gazetted) Service Recruitment Rules, 1991, the post of Anganwari Worker has

been encadred and shown in the Schedule appended thereto. Anganwari Worker post is a feeding cadre for the post of Supervisor in respondent

department.

Be that as it may, this Court would not go into this question for the reason that the petitioners would succeed on other accounts discussed here

in above.

Viewed thus, all these three petitions are allowed. Respondents are directed to count 50% of the Civil Services rendered by the petitioner's as

Anganwari Workers as qualified for pension together with the period of' services rendered in the regular establishment. In case total of two spells

of service rendered by the petitioners qualifies for the requisite requirement then they would be eligible for pension and other post retrial benefits

admissible to the employee of the State. Respondents are, therefore, directed to process the case of all the three petitioners for grant of pensionary

benefits in light of the observations made here in above within a period of one month from the date of passing of this order and respondent No. 4

would release the pension and other benefits in favour of the petitioners within a period of one month thereafter.

Disposed of as above along with connected MP(s).