Himachal Pradesh High Court

Sh. Ghanshyam Chauhan vs State Of Himachal Pradesh And Ors on 13 September, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. : 3496 of 2020 a/w CWPOA No. 135 of 2019

                                         Reserved on :               06.09.2024

                                         Decided on          :        13.09.2024





     1. CWP No. 3496 of 2020

     Sh. Ghanshyam Chauhan.                                      ....Petitioner.





                                         Versus

     State of Himachal Pradesh and Ors.                          ...Respondents.

     2. CWPOA No. 135 of 2019

     Sh. Rameshwar Lal.                                          ....Petitioner.

                                         Versus


     Accountant General and Ors.                                 ...Respondents.


     Coram

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting? 1 Yes

For the petitioner(s) : Mr. S.S. Sood and Mr. B. Nandan Vashista, Advocates, for the petitioner in CWP No. 3496 of 2020 and Mr. Onkar Jairath, Advocate, for the petitioner in CWPOA No. 135 of 2019.

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

Neutral Citation No. ( 2024:HHC:8530 )

For the respondents : Mr. Sidharth Jalta, Deputy Advocate General for respondents No. 1 and 3 in CWP No. 3496 of 2020 and for respondent

No. 2 in CWPOA No.135 of 2019.

: Mr. Dalip K. Sharma, Advocate, for respondent No. 2 in CWP No. 3496 of 2020 and for respondent

No. 3 in CWPOA No. 135 of 2019.

: Mr. Rangil Singh, Advocate, for respondent No. 4 in CWP No. 3496 of 2020 and for respondent

No. 1 in CWPOA No. 135 of 2019.

Satyen Vaidya, Judge

Both these petitions have been heard and

are being decided together as common question of

facts and law are involved.

2. Certain facts are being noticed in the

tabulated form, as under, for the sake of brevity:-

Sr. Case Petitioner Parent Date of joining Borrowing Date of joining Date of No. No. employer of service with employer of service with absorption

parent employer borrowing employer

1 CWPOA Rameshwar H.P. Agro 01.02.1983 State 17.10.2003 31.05.2004 No. 135 Lal Industries Election of 2019 Corporation Commission

2. CWP No. Ghanshyam H.P. State 26.07.1989 State 02.01.2004 31.05.2004.

3496 of Chauhan Financial Election 2020 Corporation Commission

Neutral Citation No. ( 2024:HHC:8530 )

3. CWPOA No. 135 of 2019 was allowed by this

Court, vide judgment dated 02.03.2020, however, the

said judgment was set-aside by a Division Bench of this

Court, vide judgment dated 31.03.2021, passed in LPA

No. 46 of 2020 and the matter was remanded back to

this Court in following terms:-

"25. Given above, we set aside the judgment

dated 2.3.2020, passed by learned Single Judge, in CWPOA No.135 of 2019 and remand the matter back to learned Single Judge and further direct the Accountant General of

Himachal Pradesh to file a detailed reply within six weeks from today. Furthermore, the

State to file instructions regarding the status of Shri Kuldeep Saraswati, who, before his absorption, was working in H.P. Khadi Board, was sanctioned and granted the pensionary benefits under the old pension scheme,

whereas he had worked in Khadi Board till 2.12.2004, and that how the State could take a different stand for different employees. The observations made are only for the purpose of

this order and shall have no bearing on merits."

4. The Division Bench of this Court while

disposing of LPA No. 46 of 2020 had further ordered to

list CWP No. 3496 of 2020 alongwith CWPOA No. 135 of

2019.

5. Petitioners in both the petitions had initially

joined their respective parent employer as detailed in

Neutral Citation No. ( 2024:HHC:8530 )

above table. The parent employers of both the petitioners

were Autonomous Corporations. The services of the

petitioners in both the petitions were transferred to the

Himachal Pradesh State Election Commission (for short

"SEC"), though on different dates. The services of both of

them were absorbed in SEC on the same date i.e.

31.05.2004.

A common office order dated 31.05.2004, was

issued by SEC, whereby the services of petitioners in

both the petitions were ordered to be absorbed w.e.f.

01.06.2004 (FN.), subject to certain conditions, out of

which following two conditions are relevant to be noticed

for adjudication of the issue involved herein:-

"5) They will have to deposit employer share of CPF into the Government

Account and employees share into GPF Account with interest thereon out of the total amount at credits in their respective CPF accounts.

6) They will deposit all terminal benefits etc. to the Government Account within the prescribed time limit under the rules."

7. Petitioners complied with aforesaid conditions.

On compliance of aforesaid conditions by petitioner in

CWPOA No. 135 of 2019, the SEC acknowledged such

Neutral Citation No. ( 2024:HHC:8530 )

receipt, vide office order dated 26.08.2008, and directed

the services of said petitioner w.e.f. 01.02.1983 to

30.05.2004, to be treated as qualifying service for the

purpose of pension calculation, pay protection, credit of

earned leave etc.. In the case of petitioner in CWP No.

3496 of 2020, the SEC had acknowledged the receipt of

terminal benefits in terms of aforesaid conditions, vide

office order dated 02.07.2007, and in a similar manner

the services rendered by said petitioner from 27.07.1989

to 31.05.2004, were ordered to be treated qualifying

service for the purpose of pension calculation, pay

protection, credit of earned leave etc.

8. After the absorption of services of petitioners

in both the petitions with SEC, they were allotted their

respective GPF numbers. Both of them continued to

contribute in GPF till the date of superannuation.

9. Petitioner in CWPOA No. 135 of 2019 retired

on 30.09.2018 and petitioner in CWP No. 3496 of 2020

retired on 31.03.2019.

10. Petitioners in both the petitions have been

denied pensionary benefits under the CCS (Pension)

Neutral Citation No. ( 2024:HHC:8530 )

Rules, 1972 (for short "1972 Rules") by the respondents

on the premise that the Government of Himachal

Pradesh, vide notification dated 15.05.2003, had

amended the 1972 Rules in their application to the

State of Himachal Pradesh and by virtue of such

amendment 1972 Rules were made inapplicable to all

appointments made on regular basis in the State of

further maintained r to Himachal Pradesh on or after 15.05.2003. Respondents

that since the State Government

framed Himachal Pradesh Civil Services Contributory

Pension Rules, 2006 (for short "2006 Rules") under

Article 309 of the Constitution of India and notified said

rules, vide notification dated 17.08.2006, the persons

employed in the State after 15.05.2003, would be

covered under 2006 Rules (for short "NPS") and as the

services of petitioners in both the petitions were

absorbed in SEC after 15.05.2003, they were held to be

not entitled to the benefits under 1972 Rules.

Respondents have also taken a stand that the State

Government, vide office memorandum dated

13.09.2006, had clarified the position in respect of the

Neutral Citation No. ( 2024:HHC:8530 )

incumbents like petitioners and since the services held

by petitioners with their parent employers were not

governed under 1972 Rules, they were not entitled for

benefits under said Rules after their absorption with

SEC w.e.f. 01.06.2004.

11. Aggrieved against the abovesaid decision of

the respondents, petitioners have filed these petitions

Rules.

r to and have claimed the pensionary benefits under 1972

12. I have heard learned counsel for the parties

and have also gone through the record of the cases

carefully.

13. The facts, as noticed above, are not in dispute.

Admittedly, after absorption of petitioners in both the

petitions, the SEC had unequivocally ordered the past

services of these petitioners, with their respective parent

employers, to be treated as qualifying service for the

purpose of pension calculation, pay protection, credit of

earned leave etc. The said declaration was made by the

SEC after accepting the employer's and petitioners'

contributions towards CPF, made while serving the

Neutral Citation No. ( 2024:HHC:8530 )

parent employers, by its deposit in the Government

treasury with the concurrence and under information

to the offices of Accountant General (Audit) and Senior

Deputy Accountant General (A & E), Himachal Pradesh.

14. The abovesaid acceptance was shown by SEC

after framing of 2006 Rules as also issuance of Office

Memorandum dated 13.09.2006. Thus, there was a clear

representation from SEC that notwithstanding framing

of 2006 Rules and issuance of O.M. dated 13.09.2006,

the services of petitioners with their parent employers

would be counted towards qualifying services for the

purpose of pension calculation.

15. Respondents, after the superannuation of

petitioners in both the petitions denied the benefits of

pension to them in either of the schemes i.e. OPS or

NPS. Noticeably, none of the petitioners were registered

under NPS after framing of 2006 Rules by the

respondents. Resultantly, petitioners have been left in a

situation where they are not getting any pension after

retirement.

Neutral Citation No. ( 2024:HHC:8530 )

16. Petitioners, have staked their claims to the

pensionary benefits under 1972 Rules. They have

sought their cases to be covered under Clause 2(i) of

O.M. dated 23.09.2006 ,which reads as 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 r 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."

17. In order to avail the benefits of aforesaid

decision of the State Government, petitioners have set

up factual foundation by making specific averments in

Neutral Citation No. ( 2024:HHC:8530 )

their respective rejoinders with respect to the

applicability of Himachal Pradesh Corporate Sector

Employees (Pension, Family Pension, Commutation of

Pension and Gratuity) Scheme, 1999 (for short "1999

scheme") in their respective parent employers w.e.f.

01.04.1999. As per petitioners, under the 1999 scheme

{Clause 1(2)}- all pensionary benefits of the employees of

the participating Corporate Sector were to be determined

in accordance with the provisions laid down in 1972

Rules and the CCS (Commutation of Pension) Rules,

1981. On the strength of above provision, it is sought to

be contended by the petitioners that they qualified the

requirement of Clause 2(i) of Office Memorandum dated

13.09.2006 as the 1999 Scheme was nothing but

adoption of 1972 Rules for Corporate Sector employees

of the State of Himachal Pradesh. Petitioners further

contended that 1999 scheme remained in force till

01.12.2004 and the services of the petitioners had

already been absorbed in SEC prior thereto w.e.f.

01.06.2004.

Neutral Citation No. ( 2024:HHC:8530 )

18. Noticeably, the respondents have not rebutted

the above factual aspect during the entire period of

pendency of these petitions. Petitioner in CWP No.

3496 of 2020, has even placed on record documents

evidencing the adoption on 1999 scheme by his parent

employer, H.P. State Financial Corporation and consent

rendered by him for being treated under said scheme.

Though, petitioner in CWPOA No. 135 of 2019, has not

placed any such documents, but since his specific

averments to that effect have remained uncontroverted,

there is no reason to disbelieve the version of said

petitioner which is supported by affidavit. That being the

position, I am of the considered view that the cases of

petitioners were covered by Clause 2(i) of O.M. dated

13.09.2006 and not by its Clause (ii), as has been

represented on behalf of the respondents. The Clause

2(ii) of aforesaid O.M. reads as under:-

"ii) The employees who entered into service on or before 14.05.2003 and who were governed by CPF scheme or any pension scheme of the Central or State Government other than the pension scheme under the Central Civil Services (Pension) Rules, 1972 on submission of technical resignation to take up new appointment on or after 15.05.2003,

Neutral Citation No. ( 2024:HHC:8530 )

cannot be allowed to join the old pension scheme under Central Civil Services (Pension) Rules, 1972 because entry to the said scheme ceased after

.

14.05.2003 and no new entry can be

allowed in the pension scheme under the above Rules. However, such employees can seek pensionary/terminal benefits, from the previous

Organization/Department, if admissible under the rules of that Organization/Department for the period of service rendered under that organization/Department."

19. The 1999 scheme was notified by the State,

Government, vide notification dated 29.10.1999 and was

made applicable w.e.f. 01.04.1999, Clause 1(2) of the

said scheme 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."

20. Thus by framing of above scheme the State

Government had made all the provisions of CCS

(Pension) Rules, 1972, applicable to the employees of

participating Corporate Sector in the State as were

applicable to the other State Government employees. As a

Neutral Citation No. ( 2024:HHC:8530 )

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 be governed under

Old Pension Scheme under CCS (Pension) Rules, 1972.

In the facts of the cases in hand, petitioners also

qualified other condition as they had been transferred to

the borrowing employer through proper channel. Their

and as such, r allto respective absorption was without any break in services

the requirements of technical

resignation were met out, more particularly, when the

borrowing employer had expressly ordered their past

services with parent employer to be treated as qualifying

service for the purpose of pension etc.

21. In light of what has been discussed above,

the action of respondents denying the pensionary

benefits to the petitioners under 1972 Rules, cannot be

sustained. 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. A

notification to this effect has been issued by the State on

Neutral Citation No. ( 2024:HHC:8530 )

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 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 r 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."

22. In light of such development, the petitioners

in both the petitions have, otherwise, become entitled to

the pensionary benefits under 1972 Rules, subject,

Neutral Citation No. ( 2024:HHC:8530 )

however, to the condition that they will be entitled to

pension w.e.f. 01.04.2023. However, as the petitioners

have already been held to be entitled to benefits to

Clause 2(i) of Office Memorandum dated 13.09.2006,

they would be entitled to the pensionary benefits under

1972 Rules, immediately from the date next to their

respective dates of superannuation. It is further clarified

r to that since the petitioners have already been litigating

qua their rights of pensionary benefits under 1972

Rules on the date of issuance of Notification and Office

Memorandum dated 04.05.2023, the requirements of

making option or submission of undertaking therein

shall not be applicable to the petitioners.

23. In result, both the petitions are allowed.

Petitioners are held entitled to the pensionary benefits

under CCS (Pension) Rules,1972, from the date

immediately following the dates of their respective

retirements. Annexures P-8, P-11 and P-13 in CWP No.

3496 of 2020, are quashed. Respondents are directed to

pay the entire arrears to the petitioners within three

Neutral Citation No. ( 2024:HHC:8530 )

months from the date of the judgment, failing which the

arrears shall entail interest @ 6% per annum.

24. These petitions are, accordingly, disposed of,

so also the pending miscellaneous application(s), if any.






                                                 (Satyen Vaidya)
    13th September, 2024                              Judge
          (sushma)


                r          to