The State Of Himachal Pradesh vs Dr. Virender Pathak & Anr
2025 Latest Caselaw 6830 HP

Himachal Pradesh High Court

The State Of Himachal Pradesh vs Dr. Virender Pathak & Anr on 26 June, 2025

` IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMP(M) No.484 of 2025 in LPA No.324 of 2025 a/w CMP(M) No.467 of 2025 in LPA

.

No.325 of 2025 and CMP(M) No.469

of 2025 in LPA No.326 of 2025 Decided on: 26.06.2025 ____________________________________________________________

LPA No.324 of 2025 The State of Himachal Pradesh & Anr. ...Applicants/Appellants Versus

Dr. Virender Pathak & Anr. ...Respondents

LPA No.325 of 2025

The State of Himachal Pradesh

& Ors. ...Applicants/Appellants Versus Sarvesh Kumar & Ors. ...Respondents

The State of Himachal Pradesh

& Ors. ...Applicants/Appellants Versus

Asha Devi & Ors. ...Respondents

Coram

Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon'ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting?

For the applicants/ Mr. Rakesh Dhaulta, Additional appellants: Advocate General, in all the appeals.

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

G.S. Sandhawalia, Chief Justice [Oral] The present set of appeals, which are patently

barred by limitation are directed against the orders of

.

learned Single Judge in CWPOA No.1509 of 2019, titled

as Dr. Sarvesh Kumar and Ors. vs State of Himachal

Pradesh & Ors. along with CWPOA No.1515 of 2019,

titled as Virender Pathak vs State of Himachal Pradesh &

Ors., decided on 29.04.2024 and CWPOA No.1473 of

2019, titled as Dr. Asha Devi & Ors. vs State of H.P. &

Ors., decided on 14.12.2023, whereby the benefit of ad

hoc service rendered by the employees of the appellant-

department were held to be counted towards the

qualifying service, for the purposes of pension. The

learned Single Judge has restricted the benefit as such to

three years, prior to filing of the writ petition, while

noticing that the position and law as such, is that ad hoc

service followed by regular service in the same post,

could be counted for the purposes of increments and it is

a settled principle of law that if any service that is

counted for the purpose of increments, will be counted

for pension also.

2. The first judgment rendered by one of the

learned Single Judges was passed in CWPOA No.1473 of

2019, titled as Dr. Asha Devi & Ors. Versus State of

H.P. & Ors., decided on 14.12.2023. It is pertinent to

.

note that as many as 17 Veterinary Officers, had claimed

the said benefit, for the purposes of counting their ad hoc

services, rendered by them, as qualifying service for the

purposes of grant of pension, and had worked from

various periods ranging from the year 1993 to 2000,

before they were regularized on 03.05.2005. Apparently

the said judgment was never questioned by the State.

3. The other two CMP(M) No.467 of 2025 [LPA

No.325 of 2025] and CMP(M) No.484 of 2025 [LPA

No.324 of 2025], arise out of the orders dated

29.04.2024, whereby CWPOA No.1515 of 2019, titled as

Dr. Virender Pathak & Ors. Versus State of Himachal

Pradesh & Ors. and CWPOA No.1509 of 2019, titled as

Dr. Sarvesh Kumar & Ors. Versus State of Himachal

Pradesh & Ors., were both decided, following the view

taken in Dr. Asha Devi's case.

4. A perusal of the application for condonation of

delay in Dr. Asha Devi's case, would go on to show that it

was the case of respondents itself, that the judgment was

passed on 14.12.2023 and it only came to the knowledge

of Department on 26.03.2024, when instructions were

sought from the Office of Advocate General, regarding the

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pendency of other matters, namely, Dr. Sarvesh Kumar

and Dr. Virender Pathak.

5. It is the case of appellants-State that the

matter could not be put up inadvertently, for seeking

advice from the Government and the Administrative

Department came to know only on 20.08.2024 from the

Principal Secretary [Finance], thereby, advice was given

to challenge the said judgment, in view of the fact that

the subsequent judgment was passed on 29.04.2024. On

20.08.2024, the Department of Animal Husbandry sent

the matter to the Administrative Department to seek

permission to file the LPA and on 09.09.2024, the matter

was taken up by the Law Department and on 21.09.2024

the Department had sent back the file. Resultantly on

25.09.2024, the Department sent the matter back to the

Director Animal Husbandry, seeking certain clarification.

An advice as such was given on 28.10.2024 to file the

LPA and it is not disputed that even the certified copies

as such had not been received till 12.11.2024 and was

only received on 26.11.2024, apparently, having been

applied on 13.11.2024. Thereafter the appeal was

prepared and filed, which had led to the delay of 433

.

days.

6. It is thus apparent that the State was total

remiss in prosecuting the first appeal in question and no

effort had been made as such, even to send the same for

opinion to the concerned quarters to ascertain, as to

whether the same would have a policy effect. It is only on

account of the disposal of the other two cases at the

subsequent point of time on 29.04.2024, the State has

woken up out of its slumber and therefore is directly hit

by the principles laid down by the Apex Court in

Postmaster General and Ors. vs. Living Media India

Limited and Anr., reported in (2012) 3 SCC 563, which

read as under:-

"25. We have already extracted the reasons as mentioned in

the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in Office of the Chief Postmaster v. Living Media India Ltd. as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified

copy was applied only on 08.01.2010, i.e. after a period of nearly four months.

26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person incharge has filed any explanation for not applying the certified copy within the

.

prescribed period. The other dates mentioned in the

affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is

no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in

prosecuting the matter to this Court by taking appropriate steps.

27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including

the prescribed period of limitation for taking up the matter

by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a

question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or

deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of

various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government."

7. As noticed in the application, certified copy

was only applied on 13.11.2024, which is almost a year

after the decision. In such circumstances, we are of the

considered opinion that no sufficient cause is made out

to condone the delay. In the connected applications also,

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it is to be noted that there is a delay of 248 days and the

certified copy was applied on 02.05.2024, regarding the

judgment dated 29.04.2024 but the laxity by the

Department would go on to show that on 20.08.2024,

when the Department sent the matter to the

Administrative Department to file the appeals, the advice

as such, was only given two months later on 28.10.2024

to file the LPA. Thereafter also, it has taken as much as

four months' for filing the appeals, which was done only

on 20.02.2025. Therefore, even the other two appeals

could also suffer from same ailment regarding the lack of

sufficient cause as such, in spite of the fact that the

decision in Dr. Asha Devi's case had already been

rendered and no cogent steps have been taken, still the

Department chose to drag its feet and took the matter in

a very casual way, for which no indulgence can be

granted.

8. However, keeping in mind the merits as

such, it is also to be observed that the learned Single

Judge recorded that while granting the benefit of

regularization back on 03.05.2005, seniority had been

given to the employees in question and reference was

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made to Condition No.11 as contained in the notification,

which reads as under :-

"11. With respect to determination of seniority of the ad hoc employees as are regularized shall be determine din accordance with the date of joining the post on ad hoc basis, if the date of joining the post(s) on ad hoc basis by such ad hoc employees was the same, then the elder employees shall

rank senior to an employee younger in age."

9. r Apparently, it is only thereafter that the

benefit of pension was not granted dehors the ad hoc

period, the employees were forced to approach the

Court to challenge the order dated 21.12.2012

[Annexure P-10]. Once the State itself had granted the

benefit of seniority to the petitioners being ad hoc

employees, the learned Single Judge rightly kept in mind,

the law regarding the aspect that ad hoc period is liable

to be subsumed into the regular period, for the purpose

of grant of pension and in such circumstances also, we

are of the considered opinion that the relief which has

been granted by the learned Single Judge as such, is not

liable to be interfered with.

10. Resultantly, we dismiss the present set of

appeals along the application(s) for condonation of

delay, for want of sufficient cause. Pending

miscellaneous application(s), if any, shall also stand

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disposed of.

     -                                       (G.S. Sandhawalia)
                                                Chief Justice


                                              (Ranjan Sharma)




                                                   Judge
     June 26, 2025
     [Chiranjeev/Himani]