Himachal Pradesh High Court

Vishwa Nath vs The State Of Himachal Pradesh & ... on 9 October, 2023

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWPOA No.3548 of 2019 Date of Decision: 09.10.2023

_______________________________________________________

Vishwa Nath .......Petitioner Versus

The State of Himachal Pradesh & others ... Respondents _______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 Yes.

For the Petitioners: Mr. Bhuvnesh Sharma, Senior Advocate with Mr. Parav Sharma, Advocate.

For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and r Mr. B.C.Verma, Additional Advocate

Generals with Mr. Ravi Chauhan and Ms. Sunaina, Deputy Advocate Generals.

___________________________________________________________ Sandeep Sharma, Judge(oral):

By way of instant petition filed under Article 226 of the

Constitution of India , petitioner has prayed for following relief:-

"That the letter dated 18.11.2013 Annexure P-4 issued by the 1st respondent rejecting the claim of

the petitioner for pensionary benefits may kindly be quashed and set aside and the petitioner may

kindly be held entitled for pensionary benefits from the due date, in the interest of justice.

2. Precisely, the facts of the case, as emerge from the

record are that after having rendered 26 years service in Indian Air

Force, petitioner retired on 31.10.1992 and thereafter got his name

Whether the reporters of the local papers may be allowed to see the judgment?

registered with Ex-servicemen Employment Cell. Vide communication

dated 30.5.1996, Superintendent of police, Shimla, District Shimla,

HP (Annexure P-1), apprised the petitioner with regard to

sponsorship of his name by the Ex-servicemen Employment Cell for

the post of constable in the District Shimla, Himachal Pradesh. Vide

aforesaid communication authority concerned called upon the

petitioner to report to the office on 4.6.1996 alongwith records

pertaining to Army Service and other certificates issued by the

competent authority i.e. ST/SC/ OBC etc. Though, petitioner reported

in the office of respondent No.3 on the given date, but he was not

given appointment. Ultimately on 21.8.1996, petitioner joined the

duties as Constable in District, Una. After having rendered 9 years,

five months and 10 days service, petitioner retired from the service as

Honorary Head Constable from the Police Department but after

retirement he was denied pension on account of the fact that he has

not completed 10 years qualifying service for pension, he filed

representation to the department but in vain (Annexure P-2).

3. Perusal of communication dated 10.7.2013, issued from

the office of Director General of police, addressed to the office of

Hon'ble Chief Minister reveals that case of the petitioner was

examined at PHQ level, but since there was shortage of three months

and 20 days more service, he could not be granted pension.

However, aforesaid authority requested office of Hon'ble Chief

Minister to take lenient view and grant relaxation in Rule 88 of CCS

Pension Rules on compassionate grounds. However, fact remains

that aforesaid prayer was rejected vide communication dated

12.11.2013, issued under the signature of Deputy Secretary (Home)

to the Government of Himachal Pradesh, whereby it came to be

informed that as per opinion rendered by advisory departments

petitioner is not eligible to get pension under Rule 49(2) read with

Rule 49(3) of CCS (Pension) Rules, 1972. Finally vide communication

dated 17.02.2012, issued from the office Director General of Police,

Himachal Pradesh, petitioner was apprised that there was no delay, if

any, on the part of the department to offer appointment after receipt of

recommendation from Employment Cell, Sainik Welfare Board, but

petitioner despite having received intimation well in time failed to join

in time, as a result thereof, he failed to complete ten years required

period for grant of pension. In the aforesaid background, petitioner

has approached this court in the instant proceedings, praying therein

to set aside aforesaid order and direct respondent to grant him

pension on account of his having rendered qualifying service of more

than 10 years.

4. Pursuant to the notices issued in the instant proceedings,

respondents have filed reply, wherein facts, as have been noticed

hereinabove, have been not disputed, rather stand admitted. Though

respondent in their reply have not disputed factum with regard to

issuance of communication dated 30.5.1996 from the office

Superintendent of police, Shimla (Annexure P-1), but it has been

stated that record stands weeded out and as such, Department is not

in a position to verify the correctness of aforesaid letter. Respondents

have stated that name of the petitioner was also sponsored for the

post of constable against the vacancy of Una District by the Director

Saini Welfare, Hamirpur vide letter dated 17.6.1996, whereafter

respondent No.4 directed the petitioner to appear for medical

examination in his office on 25.07.1996, but petitioner did not turn up

on the scheduled date and ultimately, he came present for his medical

examination on 21.08.1996 and immediately thereafter he was

granted appointment on 21.8.1996. It has been stated that since there

is shortage of 3 months and 20 days in completion of qualifying

services, no illegality can be said to have been committed by the

Department while denying him pension in view of Rule 49(2) and

49(3) CCS (Pension) Rules, wherein it has been clearly provided that

pension can only be granted after completion of qualifying service of

minimum 10 years. Interestingly, in support of aforesaid submissions

no document has been placed on record by the Department

suggestive of the fact apart from communication dated 30.5.1996,

issued Superintendent of Police, Shimla calling upon petitioner to

come present on 4.6.1996, communication dated 17.6.96, if any, was

ever received by the department from Director Sainik Welfare Board.

Leaving everything aside, there is no denial, if any, on the part of the

Department with regard to issuance of communication dated

30.5.1996 by Superintendent of police, Shimla, District Shimla,

Himachal Pradesh, wherein he called upon petitioner to come present

on 4.5.1996. Though, petitioner came present on 4.6.1996, but he

was not offered appointment within stipulated time.

5. Precisely, the grouse of the petitioner as has been

highlighted in the petitioner and further canvassed by Mr. Parav

Sharma, learned counsel representing the petitioner, is that in terms

of circular letter No. 8-34/73 OP (Apptt.II) Vol. 6 dated 31.03.1990

(Annexure PR-1) annexed with the rejoinder, Department concerned

is/ was under obligation to offer appointment to the petitioner within a

period of 15 days of the date of receipt of proposal from the

Employment Cell, Sainik Welfare Board. Learned counsel for the

petitioner stated that since in the case at hand Superintendent of

Police, Shimla, after having received requisition from employment cell

called upon petitioner vide communication dated 30.5.1996 to report

in his office on 4.6.1996 and petitioner reported on 4.6.1996,

aforesaid authority ought to have issued appointment letter on

4.6.1996 itself i.e. within a period of 15 days from the date of

sponsorship, as result of which, petitioner would have completed 10

years qualifying service. Learned counsel for the petitioner submitted

that since for no fault of the petitioner, he was offered appointment on

21.8.1996 i.e. after four months of the receipt of proposal from

employment cell, he failed to complete requisite qualifying service of

10 years, as result of which, he is deprived of the benefit of pension.

6. Mr. B.C.Verma, learned Additional Advocate General

while refuting aforesaid submission made on behalf of learned

counsel for the petitioner, vehemently argued that record clearly

reveals that petitioner joined department on 21.8.1996 and if

thereafter period of qualifying service is counted, it comes out to be 9

years, five months and 10 days, which is short by three months 20

days as far as qualifying service of 10 years is concerned and as

such, no illegality can be said to have been committed by the

respondent while rejecting the case of the petitioner. While making

this court peruse Rule 49 of CCS (Pension) Rules, learned Additional

Advocate General vehemently argued that minimum qualifying service

of 10 years is required for grant of pension. However, he was unable

to point out any document adduced on record suggestive of the fact

that name of the petitioner was not sponsored by the Employment

Cell prior to 30.5.1996, rather same was sponsored vide

communication dated 17.6.1996. He was also unable to dispute

correctness and genuineness of communication dated 30.5.1996,

issued by the office Superintendent of police, Shimla, perusal whereof

clearly reveals that same was issued after sponsorship of the name of

the petitioner by Exservicemen Employment Cell.

7. Having heard learned counsel for the parties and perused

the material available on record, this Court clearly finds that there is

no dispute that vide communication dated 3.5.1996 (Annexure P-1)

office of the Superintendent of police, Shimla apprised petitioner with

regard to sponsorship of his name by Exservicemen Employment Cell

and called upon him to report in the office on 4.6.1996.

Communication dated 10.4.1996 (Annexure PR-2) placed on record

alongwith the rejoinder clearly reveals that officer on Special Duty

Directorate of Sainik Welfare Exservicemen Employment Cell

sponsored the name of the petitioner to Superintendent of police,

Shimla, District ,Shimla. Name of the petitioner figures at Sr. No. 12

of the list annexed with the aforesaid communication. If it is so,

grounds set up by the defendants in the written statement that name

of the petitioner was received vide communication 17.6.1996 falls to

the ground. Similarly, there is no specific denial on the part of the

respondent that pursuant to communication 30.5.1996 petitioner failed

to come present on 4.6.1996. It has been categorically stated by the

petitioner on the affidavit that on 4.6.1996, he reported in the office of

Superintendent of police, Shimla, but yet was not offered

appointment. Petitioner was offered appointment on 21.8.1996 as

result thereof, he was unable to complete qualifying service of 10

years, which would have certainly made him eligible for grant of

pension after his retirement. At this stage, it would be apt to take note

of circular letter No. 8-34/73 OP(Apptt.II) Vol. 6 dated 31.03.1990

(Annexure PR-1), perusal whereof clearly reveals that vide aforesaid

communication, respondent-State addressed to all the Secretaries,

Heads of the Departments, clarified that Exservicemen, nominated by

Exservicemen Cell aforesaid against the posts reserved for ex-

servicemen, be given appointment letter within 15 days. In the

aforesaid communication, all the departments were made aware of

the instructions contained in Hand Book on Personnel Matters Vol.1

page 806, which provides that in case of ex-servicemen as soon as

the nomination is received from the Cell aforesaid the appointment

letters be issued to those nominees within 15 days.

8. Since in the case at hand, petitioner was sponsored by

Ex- servicemen Cell vide communication dated 10.4.1996 (Annexure

PR-2) and pursuant to communication dated 30.5.1996, issued by

Superintendent of police, Shimla, petitioner had made himself

available in his office on 4.6.1996, petitioner ought to have been

offered appointment on or before 25.4.1996. Had department issued

appointment to petitioner on or before 25.4.1996, he would have

certainly completed minimum qualifying service of 10 years. On the

account of the delay caused by respondent in offering appointment to

the ex-servicemen, who was otherwise entitled to be offered

appointment within 15 days from the receipt of sponsorship from the

Ex-servicemen Cell, petitioner could render service of 9 years, 5

months and 10 days. Pension has been denied to the petitioner on

account of shortfall of three months and 20 days, which otherwise

would not have occurred, had department offered appointment to the

petitioner well within 15 days from the date of receipt of sponsorship

from the Employment Cell. Since it stands duly established on record

that petitioner's name was sponsored vide communication dated

10.4.1996 and pursuant to information given by the department vide

communication dated 30.5.1996, he had reported on 4.6.1996, he

ought to have been offered appointment on or before 25.4.1996.

Since in the case at hand delay in offering appointment is on the part

of the department, petitioner cannot be allowed to suffer for no fault of

him.

9. No doubt under Rule 49 of CCS (Pension) Rule, an

employee can claim pension only if he has completed 10 years

qualifying service, but in the case at hand on account of delay

caused by the department in offering appointment petitioner was

prevented from completing minimum qualifying service of 10 years as

result of thereof, he is being denied pension, which action of the

respondent by no stretch of imagination can be said to be legal,

rather same being totally illegal deserves to be quashed and set

aside. In similar facts and circumstances co-ordinate bench of this

Court in CWP No. 2059 of 2010, titled as Hirdya Prakash versus

State of H.P. and another alongwith connected matters, directed

respondents to grant appointment to the petitioner within a period of

15 days from the receipt of their sponsorship/nomination from the Ex-

servicemen Cell, entitling them for the benefits under the

CCS(Pension) Rules, 1972 with all consequential benefits as they

were entitled prior to issuance of notification dated 15.5.2003,

whereafter admittedly new pension scheme came to be notified. At

this stage, it would be profitable to take note of relevant para No. 8 to

10 of aforesaid judgment hereinbelow:-

"8. I have perused the said letter. It does not apply to the petitioners. The Government only decided that ongoing

selection process, interviews etc. shall be stopped and results if not declared shall be withheld. But in the instant case, neither ongoing selection process was going on nor any interview was required to be held since the petitioners having been nominated by the Ex-servicemen Cell of the State, thus their appointment was required to be made in accordance with circular aforesaid issued by the State Government dated 31.3.1990.

9. Further Annexure P-3 dated 28.8.2003 sent by the Principal Secretary (Education) to the Government of Himachal Pradesh on the reference of the respondent-Director conveys that the approval of the Government stood already conveyed to him

.

vide Department letter dated 24.4.2003 with respect to the

appointment of ex-servicemen. Therefore, he was directed to take immediate and necessary steps. This also makes it abundantly clear that the respondentState never intended to

stop the appointments of the ex-servicemen against the reserved ex-servicemen quota. Therefore, no fault can be attributed to the petitioners. The respondents were required to issue the appointment letters within the stipulated time as per

the instructions aforesaid. This delay has resulted in severe civil consequences to them, on 15.5.2003 the respondent-State has issued notification whereby CCS (Pension) Rules, 1972

stood amended by making the pensionary benefits inapplicable

to the incumbents appointed after the issuance/publication of the said notification in the Rajpatra. Thus, the inaction on the part of the respondent-Department has resulted into the deprivation of the pensionary benefits to the petitioners, which

is required to be reversed.

10. Therefore, for the reasons aforesaid, the petitions are allowed. The petitioners are deemed to have been appointed

with effect from within 15 days from the receipt of their sponsorship/nomination from the Ex-servicemen Employment

Cell, entitling them for the benefits under the CCS (Pension) Rules, 1972 with all consequential benefits as they were

entitled prior to notification dated 15.5.2003 referred to above.

10. Though, at this stage learned Additional Advocate

General vehemently argued that present petition is not maintainable

on account of delay and latch, but aforesaid plea deserve out

rejection for the reason that immediately after retirement petitioner

approached authorities with a representation clarifying therein that

there was delay on the part of the department to grant appointment as

such, he was prevented from completing minimum qualifying service.

Though department at one point of time realizing its mistake

recommended to government to condone the shortage in the

qualifying service, but government rejected the proposal citing Rule

49 of CCS(Pension) Rules, which certainly makes an employee

entitled for pension after his/her having completed 10 years