Himachal Pradesh High Court
Decided On: October 12 vs State Of Himachal Pradesh And ... on 12 October, 2023
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1237 of 2022
Decided on: October 12, 2023
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Dr. Kashmir Singh ........... Petitioner
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Versus
State of Himachal Pradesh and others .. Respondents
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Ajay Sharma, Senior Advocate
with Ms. Kavita Kajal, Advocate.
For the respondents :
Mr. Anoop Rattan, Advocate General
with Mr. Rajan Kahol, Mr. Vishal
Panwar and Mr. B.C. Verma,
Additional Advocates General & Mr.
Ravi Chauhan & Ms. Sunaina,
Deputy Advocates General.
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Sandeep Sharma, Judge (oral):
By way of present petition filed under Art. 226 of the Constitution
of India, the petitioner have prayed for following main reliefs:
"a) That impugned act of the respondents which amounts to
executive inaction, may very kindly be quashed and set aside with
directions to the respondents to immediately and forthwith
consider and accordingly prepare the case of the petitioner for
grant of pension and submit the same for grant of pension on and
w.e.f. the date of superannuation of the petitioner, i.e. 31.05.2022.
to secure the ends of law and justice.
b) That in the alternative, it is submitted that Notification issued
by the respondents in the month of May, 2003, on which despite
best efforts petitioner could not lay his hands, whereby pension of
incumbents engaged in service after May, 2003 has been stopped,
may very kindly be quaked and set aside qua the petitioner with
directions to the respondents to grant pension to the petitioner."
Whether the reporters of the local papers may be allowed to see the judgment?
2. Brief facts necessary for adjudication of the petition are that
petitioner was appointed as Medical Officer in the Department of
Health, Government of H.P., on contract basis w.e.f. 1.2.1990. His
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contract employment continued for about ten years, whereafter
services of the petitioner were regularized w.e.f. 22.5.2000. Though,
the initial appointment of the petitioner was on contract basis, but he
was being paid regular pay scale with all allowances admissible to
Medical Officers appointed on regular basis. Petitioner was also paid
increments at par with regularly appointed Medical Officers. Noticeably,
the initial appointment of the petitioner on contract basis was made
after undergoing selection process in which he was interviewed by a
duly constituted selection committee. As many as thirty-four Medical
Officers were appointed on contract basis alongwith petitioner.
3. In 2010, petitioner alongwith similarly situated Medical Officers
were directed by respondents to switch over to Contributory Pension
Scheme, which was introduced, vide notification dated 17.08.2006.
Petitioner alongwith others approached this Court by way of CWP No.
4799 of 2010, raising challenge to the aforesaid direction of the
respondents. By way of an interim order, respondents were restrained
from compelling the petitioner to join Contributory Pension Scheme.
Finally, CWP No. 4799 of 2010 was decided by a Division Bench of this
Court, vide judgment dated 30.11.2010, in following terms:-.
"9. Having regard to the factual matrix and legal position as
referred to above, whereby the appointments though on
adhoc/contractual/tenure basis having been made prior to
15.5.2003 and which appointments having been given effect by
way of regularization with effect from the date of adhoc/tenure
/contractual basis, the contentions as referred to above, assume
significance and force. Therefore, these writ petitions are
disposed of directing the first respondent to consider the case of
the petitioners afresh and take appropriate action in the matter
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expeditiously. Till the orders are passed as above, interim order
passed in this case will continue."
4. Petitioner superannuated on 31.5.2022 and till such date no
decision could be taken by respondents in pursuance to directions
issued by this Court, vide judgment dated 30.11.2010. 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, petitioner is before this Court assailing communication
dated 18.10.2021, Annexure P-5.
5. I have heard learned counsel for the parties and have gone
through the record of the case carefully.
6. It has been contended on behalf of the petitioner that the initial
appointment of the petitioner on contract basis was for three years,
which came to be. extended till expiry of about ten years and was
thereafter followed by regularization of his services. Petitioner was paid
regular pay scale with all admissible allowances and increments as
admissible in the case of regularly appointed Medical Officers. His
contractual appointment was considered for the purposes of seniority.
Even vide judgment dated 30.11.2010, passed by a Division Bench of
this Court in bunch of petitions filed by petitioner and other similarly
situated persons, it was observed that the case of the petitioner
required reconsideration by the State Government as the scheme
introduced, vide notification dated 17.08.2006, would apply to
appointees appointed after 15.05.2003.
7. It is further submitted that the petitioner has served the
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respondents continuously for about ten years prior to the date of
regularisation of his services, therefore, he will be discriminated in case
his service, for the purposes of grant of pension, is calculated only from
the date of his regularisation.
8. On the other hand, learned Additional Advocate General, has
contested the claim of the petitioner, on the ground that the State
Government, vide notification dated 17.07.2006, made Himachal
Pradesh Civil Services Contributory Pension Rules, 2006, applicable
retrospectively and as per said rules, the employees appointed after
15.05.2003, were to be governed by Contributory Pension Scheme.
The case of the petitioner was also considered and since, the services
of the petitioner were regularized w.e.f. 22.5.2000, his date of
appointment was to be considered from such date. Thus, he was not
entitled for addition of his contractual service towards qualifying service
under CCS (Pension) Rules,1972. Respondents have sought to defend
impugned communication dated 18.10.2021, Annexure P-5, on the
aforesaid grounds.
9. The facts are not in dispute. It is not in dispute that petitioner
was duly qualified and was appointed on contract basis after he had
undergone the selection process in which thirty-four other Medical
Officers were selected. All of them had appeared before duly
constituted selection committee and were finally appointed on
recommendations of such committee. The continuance of petitioner on
contract basis for about ten years is also a fact which has not been
disputed. The grant of pay scale, allowances and increments etc. to the
petitioner at par with Medical Officers appointed on regular basis, have
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also not been denied.
10. Rule-13 of CCS (Pension) Rules, 1972, reads as under:-
"13. Commencement of qualifying service Subject to the
provisions of these rules, 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 that officiating or temporary service is followed without
interruption by substantive appointment in the same or another
service or post :
Provided further that -
(a) in the case of a Government servant in a Group `D' service
or post who held a lien or a suspended lien on a permanent
pensionable post prior to the 17th April, 1950, service rendered
before attaining the age of sixteen years shall not count for any
purpose, and
(b) in the case of a Government servant not covered by clause
(a), service rendered before attaining the age of eighteen years
shall not count, except for compensation gratuity.
(c) the provisions of clause (b) shall not be applicable in the
cases of counting of military service for civil pension under Rule
19."
11. Thus, qualifying service of a government servant commences
from the date he takes charge of the post to which he has first
appointed either substantively or in an officiating or temporary capacity.
It is further provided that an officiating or temporary service should be
followed without interruption by substantive appointment in the same or
another service or post. In the given facts of the case, the initial
appointment of the petitioner, though, in temporary capacity continued
for about ten years and was followed without interruption by
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substantive appointment on the same post. In such view of the 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. Admittedly, it is not a case where the initial appointment
of the petitioner was for a short period or for limited purpose.
12. In CWP No. 5400 of 2014, titled as Veena Devi Vs. Himachal
Pradesh State Electricity Board Ltd. & Anr., decided on 21.11.2014, a
Division Bench of this Court had held that the contract service followed
by regular appointment was required to be counted for the purpose of
pension. Similarly in CWP No. 8953 of 2013, titled as Joga Singh &
Ors. Vs. State of H.P. & Ors., decided on 15.06.2015, the same
proposition was reiterated by a Division Bench of this Court. In CWP
No. 2384 of 2018, titled as State of Himachal Pradesh & Ors. Vs. Sh.
Matwar Singh and Anr., decided on 18.12.2018, another Division
Bench of this Court held even the work charge status followed by
regular appointment to be counted as a component of qualifying
service for the purposes of pension and other retiral benefits.
13. In light of above discussion, this petition deserves to be allowed
and is accordingly allowed. The impugned communication dated
18.10.2021, Annexure P-5, is quashed and set aside. Respondents
are directed to consider the contractual service of the petitioner as a
component of qualifying service for the purpose of pension under CCS
(Pension) Rules, 1972 and to grant him pension strictly in terms of
CCS (Pension) Rules, 1972, with effect from the date of his
superannuation alongwith arrears within six weeks from today, failing
which arrears shall entail interest @ 12% per annum, till the date of
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actual payment.
14. The petition is accordingly disposed of, so also the pending
miscellaneous application(s), if any.
(Sandeep Sharma)
Judge
October 12, 2023
Vikrant
r to
