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Judgment
Nidhi Gupta, J.
Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for the issuance of a writ especially in the nature of Certiorari for quashing the impugned order 06.07.2015 (Annexure P/11) passed by respondent no.2, vide which claim of the petitioner for pension and pensionary benefits for the period of service rendered by him in the Irrigation department from 05.09.1957 to 31.03.1970 has been rejected illegally, arbitrarily, unlawfully; and ignoring the facts that similar benefits has been granted to similarly situated employee i.e P. R Malhotra vide letter dated 10.07.2013 (Annexure P/5); and further a writ in the nature of Mandamus directing the respondents to release the pension and pensionary benefits to the petitioner for the period of service rendered by him in the Irrigation Department from 05.09.1957 to 31.03.1970 by regularizing the same as has been done by the respondents in the similar case of similarly situated employees i.e P.R Malhotra vide office order dated 19.10.2012 (Annexure P/4); and further direction to the respondents to release the arrears/benefits alongwith interest on the delayed payments.
Brief sequence of events in chronological order is as follows:–
05.09.1957: The petitioner was appointed as Electrician in the Irrigation Department on 05.09.1957.
10.06.1959: Petitioner was promoted as E.H Chargeman on 10.06.1959.
17.02.1970: Petitioner was further promoted as F/Man on 17.02.1970.
01.04.1970: On 01.04.1970, Haryana State Minor Irrigation and Tubewell Corporation (hereinafter referred to as ‘HSMITC’) was incorporated. Services of the petitioner was transferred in HSMITC enblock alongwith other staff.
28.09.1972: Vide order dated 28.09.1972, HSMITC further promoted the petitioner as F/man (H.Duty). Services of the petitioner were regularized in HSMITC on 03.11.1972.
31.03.1995: Thereafter, petitioner retired from the services on 31.03.1995 after attaining the age of superannuation i.e. 58 years.
Learned counsel for the petitioner submits that in view of the above facts, petitioner is entitled to pension and pensionary benefits for the period 05.09.1957 to 31.03.1970 as qualifying service rendered by him in Irrigation Department. Petitioner had made several requests in this regard, and it was incumbent upon the respondents to grant pension and other pensionary benefits to the petitioner as per the entitlement. However, no response was received from the respondents.
Learned counsel contends that petitioner is entitled to the said relief also, in view of the fact that vide order dated 19.10.2012 (Annexure P-4), services of a similarly situated employee, namely, Sh. P.R.Malhotra were regularized in the respondent-Department, in compliance of order dated 14.09.2011 passed by this Court in CWP-16852-1991 titled as P.R.Malhotra vs. State of Haryana and others (Annexure P-1). Learned counsel submits that after regularization of Sh. P.R.Malhotra vide order dated 19.10.2012 (Annexure P-4), the respondents after detailed consultation with C.E.A.O of the Department, had also granted pension and other pensionary benefits to Sh. P.R.Malhotra vide letter dated 10.07.2013 (Annexure P-5). It is contended that therefore, petitioner too is entitled to the same benefits, which have been accorded to Sh. P.R.Malhotra.
It is submitted that in passing the impugned order rejecting the claim of the petitioner, the respondents have discriminated between the petitioner and Sh.P.R.Malhotra which is violative of Articles 14 and 16 of the Constitution of India. It is further submitted that even though, petitioner had pointed out the incident of Sh. P.R.Malhotra to the respondents in the representation submitted by the petitioner, yet no reason whatsoever has been given in the impugned order for differentiating the case of the petitioner from the said Sh. P.R.Malhotra.
In support, learned counsel for the petitioner relies upon a judgment of the Hon’ble Supreme Court passed in Asger Ibrahim Amin vs. Life Insurance Corporation of India, Law Finder Doc Id# 714119; a 3-Judge Bench of this Court in CWP-14874-1995 titled as Saroj Kumari vs. State of Punjab, decided on 04.05.1998; and a Coordinate Bench judgment of this Court in Kanwar Singh vs. State of Haryana (Pb & Hry.) 2024(4) SLR, decided on 10.10.2023.
It is accordingly prayed that the present Writ Petition be
allowed; and “the impugned order dated 06.07.2015 (Annexure P-11) be set aside; and further a writ in the nature of Mandamus directing the respondents to release the pension and pensionary benefits to the petitioner for the period of service rendered by him in the Irrigation Department from 05.09.1957 to 31.03.1970 by regularizing the same as has been done by the respondents in the similar case of similarly situated employees i.e. P.R Malhotra vide office order dated 19.10.2012 (Annexure P/4) and further direction to the respondents to release the arrears/benefits alongwith interest on the delayed payments.”
Per contra, learned State Counsel has opposed submissions advanced on behalf of the petitioner and referred to the averments made in the written statement dated 15.09.2022; wherein it is stated that all benefits granted by the respondents to Sh. P.R.Malhotra stood withdrawn.
It is further submitted that petitioner was only a work charged employee in the respondent-Department. His services were never regularized by the Irrigation Department. As such, petitioner is not entitled to pension and pensionary benefits from the respondent-Department. She accordingly prays for dismissal of the present Writ Petition.
No other argument has been raised on behalf of learned counsel for the parties. I have heard learned counsel and perused the case file in detail. I find no merit in the submissions of the petitioner.
To briefly recapitulate, it is an admitted fact that the petitioner has rendered 12 years 6 months and 26 days service from 05.09.1957 to 31.03.1970 on work charged basis with the respondent-Irrigation Department. The services of the petitioner were incorporated with HSMITC w.e.f 01.04.1970; and the services of the petitioner were regularized from 03.11.1972 in HSMITC. Admittedly, services of the petitioner were never regularized in the Irrigation Department. In this regard, it has been submitted on behalf of the petitioner that when the case of Shri P.R Malhotra Retd. as Junior Specialist was considered by the respondents in compliance of order by this Court in CWP No. 16852/1991 dated 14.09.2011 and services of said Shri P.R Malhotra was also regularized by the respondents vide order dated 19.10.2012 (P-4) after consultation with C.E.A.O of the department in view of Govt. of Haryana instructions dated 24.03.1987 (Annexure P-12); and thereafter, pension and pensionary benefits were also sanctioned to said Shri P.R Malhotra vide letter dated 10.07.2013 (P-5), therefore, it is also incumbent upon the respondents to regularize the services of the petitioner also in the same way as has been done in case of similarly situated person Shri P.R Malhotra; and thereafter, Department is also under obligation to release the pension and pensionary benefits to the petitioner also in the same way as Shri P.R Malhotra has been granted the said benefits vide letter dated 10.07.2013 (P-5).
However, the said argument of the petitioner is inherently flawed. Firstly, petitioner is in error in claiming parity with Shri PR Malhotra as admittedly, Engineer-In-Chief, Irrigation and Water Resource Department vide letter dated 29.05.2020 (Annexure R-1) has directed to withdraw the pensionary benefits wrongly granted to Sh.P.R.Malhotra. Pursuant thereto, vide order dated 09.09.2022 (Annexure R-2), the Superintending Engineer, YWS Circle, Karnal had accordingly withdrawn pensionary benefits wrongly granted to Sh. P.R.Malhotra. It has further come on record that Sh.P.R.Malhotra had expired on 26.01.2015; and after his death, Pension Payment Orders had been stopped by the Accountant General (A&E) vide letter dated 04.06.2015 (Annexure R-4). Thus, petitioner is an error in claiming parity as the said benefits stood withdrawn.
Moreover, petitioner cannot claim negative parity with Sh. P.R.Malhotra. In this regard, it is to be noted that the second contention of the petitioner is that his service of 12 years, 6 months and 26 days on work charged basis from the period 05.09.1957 to 31.03.1970 in the Irrigation Department, Haryana be regularized. However, admittedly after 31.03.1970, petitioner had not worked with the Irrigation Department; and was an employee of HSMITC; where his services were regularized w.e.f. 03.11.1972. Clearly therefore, Service Rules of HSMITC will apply to the petitioner. Further, he cannot claim the benefit of rule 3.17 A (g) of CSR Vol.II (Attached at Annexure R-6) for claiming/counting his services as work charged employee for the purpose of Pension/Retiral benefits as his services were never regularized in Irrigation Department, Haryana.
In the above facts, it would be apposite to refer to a Full Bench judgment passed by this Court in Lakha Singh v. State of Punjab (P&H)(FB) : Law Finder Doc Id # 723488, the relevant extract of which reads as under:-
“14.The somewhat similar issue has been examined by another Full Bench of this Court in Union of India & another v. Ram Pal & others 2013(3) S.C.T. 220 : (2013) 1 ILR P&H 943, wherein the regularisation of the employees engaged by the contractor under the Contract Labour (Regulation and Abolition) Act, 1970 was considered. The Bench held that the direction to regularise the employees is not tenable, as the High Court will not give any direction for creation of posts or to frame a scheme for regularization. It has been held to the following effect :
‘13. There is yet another reason for setting aside the order of the Tribunal, following the decision in Kiran Pal & others v. Union of India & others OA No. 800/CH/2001 (which was upheld by this Court on 24.05.2003 and thereafter by the Supreme Court on 20.04.2010), the direction given is to regularise the respondents herein. Even if we presume that introducing the contractor in between is a camouflage (though such aspect can be raised only by means of industrial dispute and can be adjudicated upon by the Industrial Tribunal, at the most) it would mean that respondents are employees of the petitioners. However, they are engaged only on daily-wage basis. It would not follow automatically that they are entitled to regularisation as well. These directions are impermissible. It is not permissible for this Court or for the CAT to either give directions for framing of scheme for regularisation or to create supernumerary posts. The law in this regard stands settled by the 7- Member Bench of the Supreme Court in Uma Devi's case (supra). Again, in a recent judgment in the case of State of Rajasthan & others v. Daya Lal & others 2011(1) S.C.T. 795 : (2011) 2 SCC 429, the Supreme Court has reemphasized that the High Courts will not give any direction for creation of posts or to frame a scheme for regularisation and such a direction can only be given by the Supreme Court in its powers under Articles 142 of the Constitution. This is so declared in the following manner by the Supreme Court in that case :
"8.We may at the outset refer to the following well settled principles relating to regularisation and parity in pay, relevant in the context of these appeals :
(i)High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularisation of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii)Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'. Even temporary, ad hoc or daily wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii)Even where a scheme is formulated for regularisation with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv)Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part time temporary employees.
(v)Part time temporary employees in Government run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with Government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."
The nature of binding precedent of Uma Devi's case (supra) is impressed upon by the Supreme Court much strongly in the subsequent judgment in the case of Official Liquidator v. Dayanand & others (2008) 10 SCC 1, in the following words : xx xx xx"
Thus, we find that a work-charged employee is not entitled to be regularised by creating posts for him and that without regularization, a work charged employee would not be entitled to pension or his legal heirs, the family pension. XX XX XX
16.Consequently, we hold that the work-charged employee cannot get pension unless his or her services were regularized. Similarly, the legal heirs of a deceased also cannot get family pension unless the services of the work-charged employee were regularized.” (Emphasis added)
Thus, in view of the above unequivocal position in law, service of petitioner cannot be regularised. Even otherwise, claim of the petitioner is barred by delay. The petitioner had retired in 1995; whereas the present Writ Petition has been filed in the year 2019. Learned counsel for the petitioner has contended that pension is a recurring cause of action as held by Hon’ble Supreme Court in Asger Ibrahim Amin supra; and by a Full Bench of this Court in Saroj Kumari supra; and, therefore, Writ Petition cannot be dismissed on grounds of delay and laches. There can be no dispute with the aforesaid position in law. However, the petitioner is not merely claiming pensionary benefits. Petitioner is first seeking regularisation; and thereafter seeking pensionary benefits from the respondent Department. As such, the aforesaid judgments are not applicable to the petitioner. The judgment passed in Kanwar Singh’s case (supra) as relied upon by learned counsel for the petitioner is also distinguishable on facts and law in-as-much as the said petitioner therein, had not been transferred from Parent Department to the Corporation.
The present Writ Petition is accordingly dismissed.
Pending application(s) if any also stand(s) disposed of.