State Of H.P. & Ors vs Balwant Singh & Ors
2024 Latest Caselaw 15966 HP

Himachal Pradesh High Court

State Of H.P. & Ors vs Balwant Singh & Ors on 29 October, 2024

Author: Tarlok Singh Chauhan

Bench: Tarlok Singh Chauhan

( 2024:HHC:10437-DB )

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

LPA No. 57 of 2017 along with CWPOA Nos. 126 of 2019, 7316 of 2020 and 2690 of 2019.

Reserved on : 23rd October, 2024.

Date of Decision : 29th October, 2024.

1. LPA No. 57 of 2017.

State of H.P. & Ors.                            ...Appellants.
                         Versus
Balwant Singh & Ors                             ....Respondents.

2. CWPOA No. 126 of 2019.

Amar Singh                                      ....Petitioner.

                         Versus
State of H.P. & Ors.                            ....Respondents.

3. CWPOA No. 7316 of 2020.

Gian Singh                                      ....Petitioner.

                         Versus
State of H.P. & Ors.                            ....Respondents.

4. CWPOA No. 2690 of 2019.

Ram Singh & Ors.                                ....Petitioners.

                         Versus
State of H.P. & Ors.                            ....Respondents.

Coram:

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice. The Hon'ble Mr. Justice Satyen Vaidya, Judge.

...2... ( 2024:HHC:10437-DB )

Whether approved for reporting? Yes.

For the Appellants/Petitioner(s): Mr. Anup Rattan, Advocate General with Mr. Sidharath Jalta, Deputy Advocate General for the appellants in LPA No. 57 of 2017.

Mr. P. D. Nanda, Advocate for the petitioners in CWPOAs No. 126 of 2019 and 7316 of 2020.

Mr. Karan Singh Parmar, Advocate, for the petitioners in CWPOA No.2690 of 2019.

For the respondents: Mr. Karan Singh Parmar, Advocate, for the respondents in LPA No. 57 of 2017.

Mr. Anup Rattan, Advocate General with Mr. Sidharath Jalta, Deputy Advocate General for respondents No. 1 and 2 in CWPOA Nos. 126 of 2019, 7316 of 2020 and 2690 of 2019.

Ms. Godawari, Advocate, for respondent No.3 in CWPOA Nos. 126 of 2019 and 7316 of 2020.

Mr. Abhishek Nagta, Advocate, for respondent No.3 in CWPOA No. 2690 of 2019.

Satyen Vaidya, Judge.

LPA No. 57 of 2017 along with CWPOA Nos. 126 of 2019,

2690 of 2019 and 7316 of 2020, are being decided by a common

judgment as identical questions of facts and law are involved.

2. Petitioners in above noted writ petitions and respondents in ...3... ( 2024:HHC:10437-DB )

LPA No.57 of 2017 (hereinafter referred to as the "petitioners") were

initially employed as Timber Watchers in Himachal Pradesh State Forest

Corporation (for short "the Corporation").

3. One of the modes of recruitment to the post of Forest

Guards in the department of Forest, Government of Himachal Pradesh is

by way of a limited direct recruitment (for short "LDR").

4. Petitioners were recruited as Forest Guards through LDR in

forest department in a selection process conducted for the said post in

pursuance to communication dated 12.12.2002 of the Principal Chief

Conservator Forest, Shimla. The Managing Director of the corporation

was also informed vide communication dated 20.12.2002 of Principal

Chief Conservator Forest about the decision to fill up the posts of Forest

Guards through LDR from amongst the eligible Class-IV employees of

the Forest Department and the Corporation, as per the criteria laid down

in communication dated 12.12.2002.

5. Evidently, the petitioner were appointed as Forest Guards

after 15.05.2003. The State Government had made the CCS (Pension)

Rules, 1972 (for short " the 1972 Rules") inapplicable to the

appointments made in the State of Himachal Pradesh on or after ...4... ( 2024:HHC:10437-DB )

15.05.2003. The State Government had also framed Himachal Pradesh

Civil Services Contributor Pension Rules, 2006 (for short "the 2006

Rules") under Article 309 of the Constitution of India, which were

notified vide notification dated 17.08.2006. As per the 2006 Rules, the

persons employed in the State after 15.05.2003, were covered under said

Rules (for short "NPS").

6. Since, the appointments of petitioners as Forest Guards in

the department of forest was after 15.05.2003, they were held to be not

entitled to the benefits under the 1972 Rules. In this backdrop, the

petitioners adverted to legal remedy and in result are before this Court.

7. Petitioners are claiming the benefit of their past service

with the corporation which undisputably was in existence much prior to

15.05.2003. The fact that all the petitioners were in regular service of

the corporation is also not disputed.

8. The respondents have maintained a stand that the

petitioners were freshly appointed as Forest Guards after 15.05.2003 and

were not entitled to the credit of their past service with the corporation.

On such premises, the petitioners are stated to be covered under the

2006 Rules.

...5... ( 2024:HHC:10437-DB )

9. We have heard the learned counsel for the parties and have

also gone through the entire record carefully.

10. LPA No. 57 of 2017 is directed against the judgment dated

08.05.2015 passed by the learned Single Judge of this Court in CWP

No. 9214 of 2012, whereby the claim of the petitioners therein has been

allowed in following terms:-

"9. Accordingly, the Writ Petition is allowed. The services rendered by the petitioners as Class-IV employees in the Forest Corporation, followed by their appointment as Forest Guards in the Forest Department, shall be counted for all intents and purposes in continuity by including them under the CCS (Pension) Rules, 1972, instead of bringing them under the ambit of Contributory Pension Scheme dated 17.08.2006, made applicable w.e.f. 15.05.2003. The respondents are directed to allow the petitioners to continue subscribing towards General Provident Fund. Pending application(s), if any, shall stand disposed of."

11. Learned Single Judge has held that the State Government

should have evolved a mechanism at the same time when the

instructions were issued on 12.12.2002 and 20.12.2002 to protect the

services rendered by the petitioners in the eventuality of their selection

and joining the post of Forest Guard in the State Government. On the ...6... ( 2024:HHC:10437-DB )

premise that the State Government had failed to protect the interest of

the petitioners, the learned Single Judge has held the action of

respondents/State, to treat the appointments of the petitioner as fresh by

not giving them benefit of their past service, as unreasonable and

irrational and thus violative of Articles 14 and 16 of the Constitution of

India.

12. The findings recorded by the learned Single Judge cannot

be faulted with and require no interference for the reason that it has

never been the case of the respondents that there was any break in

service of the petitioners, rather it is manifestly clear from the record

that the Principal Chief Conservator Forest had offered an opportunity to

the petitioners to participate in LDR held for the post of Forest Guards.

It is also not the case of the respondents that the petitioners resigned

from their jobs in the Corporation to fetch the new employment. It is

clearly evident that the transition in service of the petitioner from

Timber Watcher in the Corporation to the post of Forest Guards in the

department of Forest was a continuous process. Considered

alternatively, the said process fulfilled all the ingredients of technical

resignation making the petitioners eligible to the benefits of Rule 26(2) ...7... ( 2024:HHC:10437-DB )

of the 1972 Rules.

13. Another undisputed factual aspect of the matter is that the

State Government had floated Himachal Pradesh Corporate Employees

(Pension, Family Pension, Commutation of Pension and Gratuity)

Scheme, 1999 (for short "the 1999 Scheme") with effect from

01.04.1999. The said scheme was made applicable to the employees of

the Corporation also, who had opted to be covered under the scheme. As

per Clause 1(2) of the 1999 Scheme, all pensionary benefits of the

employees of the participating corporate sectors were to be determined

in accordance with the provisions laid down in the 1972 Rules and the

CCS (Commutation of Pension) Rules 1981. The said Clause reads as

under:-

"All pensionary benefits of the employees of the participating H.P. Corporate Sector shall be determined in accordance with the provisions laid down in Central Civil Services (Pension) Rules, 1972, the Central Civil Services (Commutation of Pension) Rules, 1981, as amended and adopted by the H.P. Government for the State Government employees save as otherwise provided in this scheme."

14. The State Government had also issued office memorandum

dated 13.09.2006. Clause 2(i) of the said office memorandum reads as ...8... ( 2024:HHC:10437-DB )

under:-

"i) All the employees who entered into State Government

service or in the service of an Autonomous Body set up by the

State Government (satisfying the conditions laid down in

para-4 of Government of India OM No. 28/10/84- PU dated

20th August, 1984, adopted by the State Government vide

Office Memorandum No. Fin.(C) A(3)-17/76-II dated 5th

July, 1996) on or before 14.05.2003 and who were governed

by the old pension scheme under Central Civil Services

(Pension) Rules, 1972 will continue to be governed by the

same pension scheme and same rules for the purpose of

counting of their past service under the said rules or under

the Government of India OM No. 28/10/84-PU, dated 29th

August, 1984, adopted by the State Government vide its

Office Memorandum dated 5th July 1996 as amended from

time to time, if such employees submit technical resignation

on or after 15.05.2003 to take up new appointment in another

Department of the State Government or an Autonomous Body

set up by the State Government, in which the pension scheme

under Central Civil Services (Pension) Rules, 1972 already

exists for the employees who entered into service on or before

14.05.2003."

...9... ( 2024:HHC:10437-DB )

15. Thus, by framing the above scheme, the State Government

had made provisions of the 1972 Rules applicable to the employees of

participating corporate sectors in the State as were applicable to the

other State Government employees. As a necessary corollary, this

amounted to compliance with Clause 2(i) of O.M. dated 13.09.2006

which required the employees under parent employer to the governed by

the 1972 Rules.

16. As held above, since, the services of petitioners as Forest

Guards was in continuity of their services as Timber Watchers in the

Corporation, petitioners are entitled to be covered under the 1972 Rules

as they were beneficiaries under the 1999 Scheme, which in fact was

nothing but the extension of the 1972 Rules to the employees of

corporate sector of the State Government.

17. Additionally, it can be seen that during the pendency of

these petitions, the State Government has again made the 1972 Rules

applicable even to those of its employees who were appointed after

15.05.2003 and a notification to this effect has been issued by the State

on 04.05.2023. As a sequel, vide Office Memorandum of the same date

i.e. 04.05.2023, instructions/SOPs have also been issued. Clause (vii) of ...10... ( 2024:HHC:10437-DB )

said Office Memorandum reads as under:-

"(vii) Employees, who were covered under the National Pension System (NPS) and have already retired/died, between the period 15.05.2003 to 31.03.2023 and who fulfil the eligibility criteria under the Central Civil Services (Pension) Rules, 1972, such retired employee and eligible family member of deceased employee, shall be entitled to pension from prospective date i.e. with effect from 01.04.2023, on exercising an option for the same on the prescribed format at Annexure II and submission of an undertaking at Annexure III, subject to deposit of the Government contribution and dividend/return, till the date of withdrawal, to the State Government. The amount of Government contribution and dividend/return shall be deposited under the Receipt Head "0071- Contribution and Recoveries towards pension and other retirement benefit, 01-

Civil,101-Subscritptions and Contributions, 03- Accumulated Pension Wealth in respect of National Pension System Subscribers and 04- Accumulated dividend on Government Contribution of National Pension System employees converted into Old Pension Scheme."

18. In light of above discussion, LPA No. 57 of 2017 is

dismissed and CWPOA Nos. 126 of 2019, 2690 of 2019 and CWPOA

No. 7316 of 2020 are allowed. Petitioners are held entitled to the

benefits of CCS (Pension ) Rules 1972 and CCS (Commutation of

Pension ) Rules. The respondents are directed to release all the ...11... ( 2024:HHC:10437-DB )

permissible retiral benefits to the retired petitioners within a period of

eight weeks from the date of production of copy of this judgment failing

which interest @ 9% per annum shall entail the amount of arrears.

19. Pending applications, if any, also stand disposed of.

(Tarlok Singh Chauhan) Acting Chief Justice.

(Satyen Vaidya) Judge 29th October, 2024.

(jai)