Decided On : 5Th November vs State Of Himachal Pradesh & Ors
2024 Latest Caselaw 16504 HP

Himachal Pradesh High Court

Decided On : 5Th November vs State Of Himachal Pradesh & Ors on 5 November, 2024

2024:HHC:11018-DB

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No:3253 of 2020 Decided on : 5th November, 2024 __________________________________________________________ Swai Ram (since deceased) ...Petitioners through his LRs.

Versus

State of Himachal Pradesh & ors. ....Respondents

Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting?

For the petitioners : Mr. Kush Sharma and Ms. Prajwal Busta, Advocates.

For the respondents : Mr. Vishav Deep Sharma, Additional Advocate General, for respondents No.1, 2 & 4-State.

Mr. Lokender Paul Thakur, Senior Panel Counsel, for respondent No.3-Accountant General.

Ranjan Sharma, Judge [Oral] Legal heirs of the original petitioner [Swai

Ram], who is stated to have died on 09.02.2024, have

continued with the instant petition, seeking the

following prayers:-

"(i). That the applicant may kindly be held entitled to counting of his service from the appointed dated i.e. 14.10.1961. Further

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes

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the respondents may kindly be directed to modify/correct the date of appointment of the applicant as 14.10.1961 instead of 31.01.1965 in the pension payment order and to re-determine the qualifying service of applicant and consequently revise the pension of applicant.

(ii). That the respondent be directed henceforth to correctly compute the applicant's pension and release the additional pension of the applicant on account of incorrect recording of the date of appointment as 14.101961 instead of 31.01.1965. Further the directions may kindly be issued to make payment of the resultant arrears with interest."

FACTUAL MATRIX:

2. Case set up by Mr. Kush Sharma, Learned

Counsel for the petitioner, is that the original

petitioner, namely Swai Ram joined service as a

JBT Teacher in Basali, Tehsil Una, District Hoshiarpur

[HP], in pay scale of Rs.60/4/80-/5/120, as

Annexure A-1. Post appointment, the petitioner

continued in service and upon allocation of the

respondent-State, he continued in service and he

retired from the post of Block Primary Education

Officer, District Una [HP], on attaining the age of

superannuation of 58 years as on 31.01.1998.

2(i). Grievance of the present petitioners, being

the legal heirs of deceased employee [Swai Ram] is

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that though the original petitioner had served under

the respondents from 14.10.1961 till 31.01.1998,

but a perusal of Pensioner Index Card [Annexure A-3],

issued by District Treasury Officer Una, reveals that

the date of appointment of original petitioner has been

mentioned as 31.01.1965 instead of 14.10.1961 and

Respondents have ignored the period of service

rendered from 14.10.1961 to 31.01.1965 for

calculating and granting pension towards the service

rendered from 31.01.1965 till retirement on

31.01.1998, which resulting in giving less pension to

the original petitioner.

STAND OF RESPONDENTS-STATE AUTHORITIES:

3. Upon issuance of notice, the respondents

filed a reply-affidavit, sworn on 31.03.2018 by

the Director of Elementary Education, Himachal

Pradesh.

3(i). Perusal of reply-affidavit indicates that the

original petitioner joined the respondent-Department

as JBT on 14.10.1961 and after rendering 36 years

service, he retired from the post of Block Primary

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Education Officer on 31.01.1998. It is admitted in

the reply that due to clerical mistake, the date of

appointment of the original petitioner was written as

31.01.1965 instead of 14.10.1961 in Pensioner Index

Card i.e. [Annexure A-3]. It is further averred even if

the petitioner has rendered 36 years service, then also,

as per Rule 49 of the CCS (Pension) Rules, the

full-maximum pension is admissible for 33 years of

qualifying service. It is stated that the petitioner has

already been granted full pension for 33 years of

qualifying service in accordance with Rules and

even if, the period of service from 14.10.1961 till

31.01.1965 is added as qualifying service, then also,

such addition will not confer any right on the

petitioner for higher-increased pension. With these

submissions prayer for dismissing the petition was

made by the Respondents.

REBUTTAL BY PETITIONER-REJOINDER:

4. Original petitioner has not filed any

rejoinder to the reply-affidavit dated 31.03.2018 till

his demise on 09.02.2024. However, the present

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petitioners, being the Legal Heirs of Original petitioner

have filed CMP (M) 821 of 2024, reiterating their

claim for pension, gratuity as leave encashment by

counting the entire service rendered from 14.10.1961

till retirement on 31.03.1998.

5. Heard Mr. Kush Sharma, learned counsel

for the petitioner, Mr. Vishav Deep Sharma, Learned

Additional Advocate General, for the respondents 1, 2

and 4, as well as Mr. Lokender Paul Thakur, Learned

counsel for respondent No.3 and also gone through the

case records.

ANALYSIS:

6. After taking into account the entirety of

the facts and circumstances, as borne out from the

writ petition and the stand of State Authorities in

reply-affidavit, this Court is of the considered view,

that the claim for counting the period of service

from 14.10.1961 till 31.01.1965 by adding this period

towards the service rendered from 31.01.1965 till

retirement on 31.01.1998 so as to enable the original

petitioner-deceased employee [Swai Ram] for higher

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pension based on 36 years service is not tenable, on

facts as well as law, for the reasons that firstly, as

per Rule 49 of the CCS (Pension) Rules the

maximum-full pension is payable for 33 years of

qualifying service which already stands released to

deceased employee; Claim for pension for 36 years

service cannot be granted de hors the provision of Rule

49 of CCS (Pension) Rules, which restricts the pension

for maximum 33 years of qualifying service; and

thirdly, the provision of Rule 49 of the Rules, which

caps full pension for 33 years qualifying service

has not been challenged in these proceedings; and

fourthly, nothing has been placed on record that

pension for qualifying service beyond 33 years service

[i.e. 36 years service] is admissible. In these

circumstances, the claim of original petitioner as well

as the present petitioner-legal heirs for

higher-increased pension for 36 years of qualifying

service does not stand test of judicial scrutiny and

the same is accordingly disallowed

7. At this stage, Learned Counsel for the

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petitioner(s) states that, in case, entire service

is reckoned from 14.10.1961 till retirement

on 31.01.1998 then, the original petitioner

[now deceased] and now the present petitioners, being

legal heirs, are entitled for Enhanced Gratuity

and Leave Encashment.

8. So far as, the claim for Enhanced Gratuity

and Leave Encashment is concerned, this Court is

of the considered view that the original petitioner

(now deceased) has never set up a case, claiming

Enhanced Gratuity and Leave Encashment. Even,

the present petitioner being the legal heirs have

not filed a rejoinder but a bald averment has been

made in the application, for bringing on record legal

heirs of original petitioner, and therefore, this

claim cannot be examined in these proceedings.

9. Faced with this situation, Learned Counsel

for the petitioner(s), fairly submits that the petitioners

shall be satisfied, in case, they are permitted to raise

a claim-grievance for Enhanced Gratuity and Leave

Encashment with the competent authority or

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Respondent No.2.

10. Without commenting on admissibility or right

or entitlement for Enhanced Gratuity and Leave

Encashment, this Court, permits the petitioners-legal

heirs herein, to make a claim for surviving

grievance(s) i.e. Enhanced Gratuity and Enhanced

Leave Encashment by adding he service rendered from

14.10.1961 to 31.01.1965 to Respondent No.2-Director

of Elementary Education, Himachal Pradesh, not

later than 10th of December 2024; with further

directions that in case, any such representation is

received; Respondent No.2-Director of Elementary

Education, Himachal Pradesh, shall examine

the representation and pass appropriate order(s), after

affording a personal hearing to the petitioners, within

six weeks, thereafter.

11. Needless to say that this court has not

averted to the merits of the matter qua the claim

for Enhanced Gratuity and Leave Encashment, which

shall be examined, in accordance with law.

As aforesaid, the instant petition and all

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along with pending miscellaneous application(s), if any

shall also stand disposed of.

(Ranjan Sharma) Judge November 05, 2024 (Shivender)