Himachal Pradesh High Court

_________________________________________________________________ vs State Of H.P. & Ors on 2 May, 2025

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

( 2025:HHC:12139

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.7138 of 2025 Decided on: 2nd May, 2025 _________________________________________________________________ Lachhman Dass Thakur ....Petitioner

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

Coram

Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting?

_________________________________________________________________ For the petitioner: Mr. Bonit Prakash, Advocate.

For the respondents: Mr. Y.P.S.Dhaulta, Additional Advocate General, for respondents No. 1 to 3.

Mr. Tek Ram Sharma, Advocate, for respondent No.4.

Jyotsna Rewal Dua, Judge

Notice. Mr. Y.P.S. Dhaulta, learned Additional

Advocate General and Mr. Tek Ram Sharma, learned

Counsel, appear and waive service of notice on behalf of

respondents No. 1 to 3 and respondent No.4, respectively.

With the consent of learned counsel for the

parties, matter is taken up for disposal at this stage.

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

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2. Petitioner was appointed as Lecturer on contract

basis on 08.01.2010. His services were regularized on

01.07.2015. Petitioner superannuated on 30.11.2020. He had

rendered more than ten years of service on the date of

retirement for the purpose of pension under the Central Civil

Services (Pension) Rules, 1972 [CCS (Pension) Rules, 1972].

3. On 04.05.2023, State Finance Department

notified the Central Civil Services (Pension) (Himachal

Pradesh Fourth Amendment) Rules, 2023, brought into force

w.e.f. 01.04.2023. The notification amended Rule 2 of the

CCS (Pension) Rules, 1972. As per notification, the amended

rules were to apply to those Government servants as well,

who were appointed substantively to the civil services and

posts in connection with the affairs of the State of Himachal

Pradesh during the period 15.05.2003 to 31.03.2023 covered

under Contributory Pension Scheme (National Pension

System) and opted to shift to the CCS (Pension) Rules, 1972.

They were to get pensionary benefits under these rules

subject to deposit of the Government contribution and

dividend/return earned thereon, under the National Pension

System to the State Government.

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Further, as per second proviso to Rule 2(g), the

rules were to apply to the Government servants who had

already retired or died in harness during 15.05.2003 to

31.03.2023, if such retired Government servants or eligible

family members exercise their option to get the pensionary

benefits under these rules from prospective date i.e. w.e.f.

01.04.2023.

Respondents issued another office memorandum

dated 04.05.2023, issuing instructions/SOPs. Clauses (i),(ii),

(iii) and (vii) of the said office memorandum read as under: -

"(i) An employee, who wishes to remain under the National Pension System, shall exercise an option, within sixty days from the date of issuance of these instructions, at Annexure-I, which shall be duly notarized and submitted to the Head of Office. Such employee(s), shall continue to be covered under the National Pension System (also known as Contributory Pension Scheme), The contributions (both employer's and employee's share) under the National Pension System, shall be deposited as per the Pension Fund Regulatory and Development Authority Regulations, till the retirement of employee(s).

(ii) The Government employees who wishes to be covered under the Central Civil Services (Pension) Rules, 1972, also known as Old Pension Scheme, shall exercise an option, within sixty days from the date of issuance of

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these instructions, on the prescribed format at Annexure-II. An undertaking shall also be furnished by such employees on the prescribed format at Annexure-III. The 'option' and 'undertaking' as per the Annexure-II and Annexure-

III, shall be duly notarized and same will be submitted to the Head of Office.

(iii) An Option once exercised by the Government employees, either opting for the Central Civil Services (Pension) Rules, 1972 or the National Pension System shall be final and irrevocable. If an employee fails to exercise an option within the stipulated period, it shall be deemed that he/ she wishes to be continued under the National Pension System.

(iv) to (vi) ....................................

(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 & Recoveries towards pension and other retirement benefit, 01 Civil, 101-Subscriptions and

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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."

4. Petitioner represented to respondent No. 1 to 3 for

release of pension under Old Pension Scheme- the CCS

(Pension) Rules, 1972. Respondents No. 1 to 3, forwarded

petitioner's case to respondent No.4 on 15.07.2024.

Respondent No.4 rejected his case on 23.09.2024 on the

ground that he had failed to exercise the option within the

stipulated period i.e. 60 days from the date of issuance of

office memorandum dated 04.05.2023. Therefore, it was to be

construed that the petitioner wishes to continue under

National Pension Scheme.

Learned counsel for the petitioner submits that

the petitioner is aged 63 years, had retired on 30.11.2020. He

was not aware about the timelines within which he had to

exercise his option for availing pension under the CCS

(Pension) Rules, 1972. He under these circumstances, could

not exercise his option within the stipulated period.

Furthermore, notification dated 04.05.2023 (Annexure P-2),

amending the CCS (Pension) Rules, 1972, did not stipulate

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any timelines for exercise of the option and petitioner was not

aware of the office memorandum issued by the respondents

on 04.05.2023, detailing the procedure for exercise of option

under the notification of even date. It was also submitted

that office memorandum dated 04.05.2023 was not even

published in the official gazette.

Learned counsel for the petitioner also placed

reliance upon decision in Smt. Phoolmati Vs. State of

Himachal Pradesh and others2, where the petitioner

though was eligible for pension and had exercised her option

for availing pension under the Old Pension Scheme-CCS

(Pension) Rules, 1972, but was not released pension on the

ground that option exercised by her was not within the time

set out in office memorandum dated 04.05.2023. The Court

held that rigors of memorandum dated 04.05.2023, qua the

period mentioned therein for the exercise of option cannot be

construed in a harsh manner against the petitioner-Class-IV

employee, as he would hardly be aware that any

memorandum also stands issued by the Government,

whereunder option is to be exercised within some set

timelines. Respondents were directed to process petitioner's

CWP No.7097 of 2024, decided on 31.12.2024.

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option by treating it as validly exercised. Relevant part of the

judgment reads as under: -

"4. Be that as it may, in view of the fact that the petitioner retired as a Class-IV employee, from the Agriculture Department of the Government of Himachal Pradesh, this Court is of the considered view that the rigors of memorandum dated 04.05.2023 qua the period mentioned therein for the exercise of option, cannot be construed in a harsh manner against an incumbent like the petitioner as a Class-IV employee would hardly be knowing that any memorandum also stands issued by the Government and an act has to be performed by her, in the light of said memorandum. The least that is expected from an employer with regard to Class-III and Class-IV employees is that they should inform such like employees of the memorandum and seek their options, within some reasonable time. If they do not do so within reasonable time, then the Department can proceed in the matter, in accordance with law."

Learned counsel for the petitioner has also

brought to notice the stand of the respondents-State taken in

Kamaljeet Kaur Sidhu Vs. State of H.P. and Ors. 3 The

aforesaid was a case where the petitioner, otherwise, eligible

for pension under the CCS (Pension) Rules, had not been

granted pension on the ground of her having exercised

option beyond the timelines stipulated in office memorandum

CWP No. 15312 of 2024 decided on 04.01.2025

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dated 04.05.2023. The respondents-State took a fair stand

that option exercised by the petitioner (therein) even though

belatedly, would be processed and on completion of requisite