The Division Bench of Himachal Pradesh while considering the writ petition noted that the contract services of an employee before the regularisation of his services have to be considered while calculating the time period of employment for the purposes of pension, especially when the initial contractual employment is not for a short or limited period.
Brief Facts:
The Current petitioner was appointed as a medical officer in the Department of Health, Government of H.P., on a contract basis w.e.f. 31.01.1997. His contract of employment continued for ten years then the services of the petitioner were regularized. Although initially the petitioner was appointed on a contractual basis, he was paid on a regular pay scale with all allowances to medical officers appointed on a regular basis.
Then later on, in 2010 the petitioner along with similarly situated medical officers was directed by the respondents to switch over to a contributory pension scheme, then the petitioner along with others approached this court to challenge that order, and then through an interim order the court restrained the respondents from compelling the petitioner to join Contributory Pension Scheme and then the case was decided with the directions to the respondents to consider the case of the petitioners afresh and to take appropriate actions.
The petitioner retired on 31.12.2020 and till now, the respondents have not taken any decision with regard to the directions to the above-mentioned order. Then on 18.10.2021, a communication was sent from the office of respondent No. 1 to respondent No. 2 informing that the case of the petitioner had been rejected. Thus, the petitioner is before the court with regard to this communication dated 18.10.2021.
Contentions of the Petitioner:
The petitioner side has contended that the initial appointment of the petitioner was on a contract basis for three years which was then extended for ten years and later his services were regularised. It was further contended that even in the previous petition filed by the petitioner, the division bench of this court had directed reconsideration of the petitioner’s case. Further, it was also submitted that the petitioner has served the respondents continuously for about ten years prior to the date of regularisation of his services, therefore, he will be discriminated against in case his service, for the purposes of grant of pension, is calculated only from the date of his regularisation.
Contentions of the Respondent:
The respondent has contested that the State Government through the Himachal Pradesh Civil Services Contributory Pension Rules, 2006, which is applied retrospectively, and the employees appointed after 15.05.2003, were to be governed by Contributory Pension Scheme. Then when the case of the petitioner was considered and since his services were regularised w.e.f. 05.03.2007 his date of appointment was to be considered from that date. Thus he was entitled to the addition of his contractual service towards qualifying service under CCS (Pension) Rules,1972.
Observations of the Court:
The Hon’ble Court first noted the facts of the case and then Rule-13 of CCS (Pension), Rules 1972 which talks about the commencement of qualifying service. Accordingly, it was concluded that the qualifying service of a government servant commences from the date he takes charge of the post to which he has first been appointed either substantively or in an officiating or temporary capacity and then it was concluded that in the current matter, the contract service of the petitioner is liable to be counted towards qualifying service for the purposes of applicability of CCS (Pension) Rules, 1972 and it was concluded that the initial appointment of the petitioner was for a short period or for a limited purpose.
The Decision of the Court:
The petition was allowed and the impugned communication was quashed and set aside and the respondents were directed to take necessary steps.
Case Title: Dr. Umesh Kumar v. State of Himachal Pradesh and Anr.
Coram: Chief Justice Sabina; Justice Satyen Vaidhya
Case No.: CWP No. 3841 of 2022
Advocates for the Petitioners: Mr. Sanjeev Bhushan, Sr. Advocate, with Mr. Rajesh Kumar, Advocate
Advocate for the Respondents: Mr. Mohinder Zharaick, Additional Advocate General.
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