Himachal Pradesh High Court
Mahesh Chand vs State Of H.P. & on 6 July, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 6th DAY OF JULY, 2022
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No.
1200 of 2019 ALONGWITH CONNECTED MATTER
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 1200 of 2019
Between:-
1. MAHESH CHAND, S/O ROSHAN
LAL, VILLAGE AND POST
OFFICE PANOH, TEHSIL AND
DISTRICT UNA, AT PRESENT
PEON UNDER THE
ESTABLISHMENT OF DC UNA.
2. DIWAN CHAND, S/O PRABHAT
CHAND, RESIDENT OF
VILLAGE DANGOD, P.O.
RUKSAL, TEHSIL NANGAL,
DISTRICT ROPAR PUNJAB,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
3. RAM MURTI, S/O AMRIT LAL,
VILLAGE AND POST OFFICE
RAIPUR SAHODA, TEHSIL AND
DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
(ORDERED TO BE DELETED
VIDE ORDER DATED
02.08.2021)
4. ASHOK KUMAR, S/O JOG RAJ,
VILLAGE AND POST OFFICE
CHATADA, TEHSIL AND
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2
DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
.
5. RAKESH KUMAR, S/O DHANI
RAM, VILLAGE AND POST
OFFICE JAKHERA, TEHSIL
AND DISTRICT UNA, HP,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
6. SWARAN SINGH, S/O HARNAM
SINGH, VILLAGE AND POST
OFFICE BASDEHRA, TEHSIL
AND DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
7. SUKHDEV SINGH, S/O KISHORI
LAL, VILLAGE AND POST
OFFICE BASDEHRA, TEHSIL
AND DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
HP.
8. JANG BAHADUR, S/O BALDEV
SINGH, VILLAGE AND POST
OFFICE BASDEHRA, TEHSIL
AND DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC, UNA,
H.P.
9. RAMESH KUMAR, S/O BHAG
SINGH, VILLAGE AND POST
OFFICE BASDEHRA, TEHSIL
AND DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
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3
10. KULDIP RAJ, S/O RAM NATH,
VILLAGE AND POST OFFICE
KHANPUR, TEHSIL AND
.
DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
11. KARNAIL SINGH, S/O KARTAR
SINGH, VILLAGE AND POST
OFFICE BASDEHRA, TEHSIL
AND DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P. r
12. PRADEEP KUMAR, S/O DEVI
DAYAL, RESIDENT OF GEETA
COLONY MEHATPUR, TEHSIL
MEHATPUR, DISTRICT UNA,
H.P., OCCUPATION PEON IN
THE ESTABLISHMENT OF DC
UNA, H.P.
13. SATISH KUMAR, S/O GURDASS
RAM, VILLAGE AND POST
OFFICE CHADATGHAD,
TEHSIL AND DISTRICT UNA,
H.P., OCCUPATION PEON IN
THE ESTABLISHMENT OF DC
UNA, H.P.
14. PAWAN KUMAR, S/O KULDEEP
KUMAR, RESIDENT OF
VILLAGE AND POST OFFICE
KALSEDA, TEHSIL NANGAL,
DISTRICT ROPAR, PUNJAB
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC, UNA,
H.P.
15. ASHOK KUMAR, S/O MULLA
RAM, VILLAGE AND POST
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OFFICE MEHATPUR, TEHSIL
AND DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
.
H.P.
16. ASHOK KUMAR, S/O GURDASS
RAM, RESIDENT OF VILLAGE
BANGARH, P.O. JAKEHRA,
TEHSIL AND DISTRICT UNA,
H.P., OCCUPATION PEON IN
THE ESTABLISHMENT OF DC
UNA, H.P.
17. SATISH KUMAR, S/O SHER
DISTRICT
UNA,
SINGH, VILLAGE BANGARH,
PO JAKEHRA, TEHSIL AND
H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
18. ASHWANI KUMAR, S/O
TARSEEM LAL, VILLAGE AND
PO BASDEHRA, TEHSIL AND
DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
19. RAM KISHAN, S/O HARI RAM,
VILLAGE AND PO RAIPUR
SAHODA, TEHSIL AND
DISTRICT UNA, H.P.,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
20. RAJ KUMAR, S/O NANAK
CHAND, VILLAGE AND PO
JAKEHRA BASDEHRA, TEHSIL
AND DISTRICT UNA, H.P.
OCCUPATION PEON IN THE
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ESTABLISHMENT OF DC UNA,
H.P.
21. SURINDER SINGH, S/O
.
HOSHIAR SINGH, RESIDENT
OF VILLAGE DADASIBA, PO
SIUL, TEHSIL DEHRA,
DISTRICT KANGRA,
OCCUPATION PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
22. SOHAN LAL, S/O PRITA RAM,
RESIDENT OF VILLAGE AND
POST OFFICE KUNGHAT,
TEHSIL HAROLI, DISTRICT
UNA, H.P., OCCUPATION PEON
IN THE ESTABLISHMENT OF
DC UNA, H.P.
23. JANG BAHADUR, S/O PRITAM
CHAND, RESIDENT OF
VILLAGE AND POST OFFICE
RAIPUR SAHODA, TEHSIL AND
DISTRICT UNA, H.P., AT
PRESENT PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
24. PAWAN KUMAR, S/O RAMESH
CHAND, RESIDENT OF
VILLAGE AND POST OFFICE
MATOLI, TEHSIL AND
DISTRICT UNA, H.P., AT
PRESENT PEON IN THE
ESTABLISHMENT OF DC UNA,
H.P.
...PETITIONERS
(BY SHRI MOHIT THAKUR,
ADVOCATE)
AND
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6
1. STATE OF HIMACHAL
PRADESH THROUGH
ADDITIONAL CHIEF
SECRETARY REVENUE
.
GOVERNMENT OF HIMACHAL
PRADESH.
2. DEPUTY COMMISSIONER, UNA,
H.P.
3. SUB-DIVISIONAL OFFICER
AMB/CONCERNED SUB
DIVISION DISTRICT UNA, H.P.
4. HPGIC (HIMACHAL PRADESH
GENERAL
CORPORATION
THROUGH ITS
r to
INDUSTRIES
LIMITED)
MANAGING
DIRECTOR AT SHIMLA.
...RESPONDENTS
(M/S SUMESH RAJ, DINESH THAKUR
& SANJEEV SOOD, ADDITIONAL
ADVOCATE GENERALS, FOR R-1 TO
R-3.
MS. SUNITA SHARMA, SENIOR
ADVOCATE, WITH MR. DHANANJAY
SHARMA, ADVOCATE, FOR R-4.
CIVIL ORIGINAL PETITION CONTEMPT (TRIBUNAL) No. 79 OF 2019
BETWEEN:-
MAHESH CHAND, S/O ROSHAN
LAL, VILLAGE AND POST
OFFICE PANOH, TEHSIL AND
DISTRICT UNA, AT PRESENT
RETIRED EMPLOYEE,
ESTABLISHMENT OF DC UNA.
...PETITIONER
(BY SHRI MOHIT THAKUR,
ADVOCATE)
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7
AND
1. RAKESH KUMAR PRAJAPATI,
.
PARENTAGE NOT KNOWN AT
PRESENT DEPUTY
COMMISSIONER UNA, DISTRICT
UNA, H.P.
2. H.S. GULERIA, PARENTAGE
NOT KNOWN, AT PRESENT MD
HP GENERAL INDUSTRIES
CORPORATION.
3. AVTAR SINGH RANA,
PARENTAGE NOT KNOWN,
GENERAL MANAGER CLBP
MEHATPUR, DISTRICT UNA,
H.P.
...RESPONDENTS
(M/S SUMESH RAJ, DINESH THAKUR
& SANJEEV SOOD, ADDITIONAL
ADVOCATE GENERALS, FOR R-1.
DR. LALIT KUMAR SHARMA,
ADVOCATE, FOR R-2 AND R-3.
Reserved on: 05.04.2022
Decided on: 06.07.2022
Whether approved for reporting? Yes.
__________________________________________________________
These petitions coming on for pronouncement of judgment this day, the
Court passed the following:-
JUDGMENT
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 1200 of 2019 By way of this petition, the petitioners have, inter alia, prayed for the following reliefs:-
::: Downloaded on - 24/12/2022 09:30:45 :::CIS 8"(a) That the impugned order dated 24th April, 2017 (Annexure A-1) may kindly be set aside and quashed, wherein, it has been held that the .
applicants are entitled to be considered under the CPF Scheme instead of GPF Scheme after absorption the present department/establishment.
That the respondents may be directed to determine the pensionary benefits of the applicants under only GPF scheme and the matching contribution may be made by the State only as per the provisions of GPF Scheme and not as per CPF Scheme.
(b) That the entire services rendered by the applicants in the parent department HPGIC may be considered for the purposes of Pension, Increments and other Financial Benefits. The applicants may be allowed all consequential benefits on account of such consideration.
(c ) In the alternative if the Hon'ble Tribunal comes to the conclusion that being the absorbed employees under the State the applicants are entitled to be considered only under the CPF Scheme and not under the GPF Scheme in that case the absorption of the applicants in the present establishment of Deputy Commissioner, Una may be declared and held to be illegal as being without consent and further without seeking any mandatory option from the applicants and also of the parent department HPGIC."
::: Downloaded on - 24/12/2022 09:30:45 :::CIS 92. Brief facts necessary for the adjudication of the present petition are that the petitioners were initially appointed as Class-IV employees in .
the Himachal Pradesh General Industries Corporation in between the years 1977 to 1987. They were serving in the said Corporation on regular basis in terms of the averments made in the petition. From the year 2009 to 2012, the petitioners were deployed on secondment basis in the establishment of Deputy Commissioner, Una under the Revenue Department without their consent. In the year 2015, again without their consent, they were permanently absorbed in the establishment of Deputy Commissioner, Una.
Before their absorption in the Department, the consent of HPGIC was also not taken and for this reason, even after their absorption, the contributions continued to be made towards their EPF accounts by the HPGIC. The case of the petitioners is that they stood regularized as employees of HPGIC before the year 2003. While serving in HPGIC, their services were regulated under the provisions of Employees Provident Fund Scheme. The rate of contribution by the employer in the EPF was much higher than compared to CPF Scheme and even after being deployed on secondment basis in the Revenue Department, the petitioners were considered for pensionary entitlements and contributions under the EPF Scheme only. Thereafter, HPGIC suddenly stopped the contribution under the EPF Scheme. Vide letter dated 17th February, 2017, the petitioners were asked to join CPF Scheme.
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3. Feeling aggrieved, petitioners filed an Original Application, i.e., Original Application No. 584 of 2017 before the erstwhile learned Administrative Tribunal. The Original Application was disposed of in terms of order dated 06.03.2017, whereby, respondents were directed to consider the pending representation of the petitioners and pass appropriate orders thereupon. The direction issued by the Tribunal has resulted in the issuance of impugned Annexure A-1, reference whereof has already been given hereinabove.
4. Learned counsel for the petitioner has argued that the petitioners were initially employed in HPGIC, wherein, they were serving on regular basis before the year 2003. It was in the year 2009 when they were sent on secondment basis to the establishment of Deputy Commissioner, Una, whereafter, they were absorbed in the establishment, but without their consent. Learned Counsel further submitted that in view of the fact that the petitioners were serving on regular basis in their parent Organization before the year 2003 and as the service of the employees engaged before the year 2003 in the Revenue Department is pensionable, therefore, the petitioners are entitled for the grant of pension. He submitted that in this background, order dated 24.04.2017 (Annexure A-1), passed by the Deputy ::: Downloaded on - 24/12/2022 09:30:45 :::CIS 11 Commissioner, Una, District Una, H.P. is bad in law and is liable to be quashed and set aside.
.
5. The petition is opposed by the State, inter alia, on the ground that the absorption of the petitioners in the Revenue Department was not a routine absorption of an employee on foreign service, but the same was in terms of Office Memorandum dated 11th May, 2012, appended as Annexure R-V with the reply filed by respondents No. 1 to 3, which was the Policy regarding permanent absorption of surplus staff taken on secondment basis by the State Government. Learned Additional Advocate General by referring to the said Office Memorandum submitted that the act of the State of taking on secondment basis the petitioners in the Revenue Department and their subsequent absorption in the said Department was an act undertaken to save the services of the petitioners from termination, as they were rendered surplus in their parent Organization.
6. Learned Additional Advocate General argued that erstwhile learned Himachal Pradesh State Administrative Tribunal while disposing of O.A. No. 584 of 2017, titled Mahesh Chand & others Vs. State of H.P. & others had directed the Deputy Commissioner, Una, respondent No. 2, to take a decision on the representation of the applicants therein, i.e., the present petitioners. The applicants were heard in person by the authority concerned, who thereafter held in terms of Communication dated 11.10.2012 (Annexure R-I) that the petitioners herein were permanent ::: Downloaded on - 24/12/2022 09:30:45 :::CIS 12 employees of Himachal Pradesh General Industries Corporation Limited and were not covered under the CCS (Pension) Rules, 1972. Permanent .
pension account number was to be allotted to them since they were merged in the establishment of Deputy Commissioner Una on the basis of their consent. The petitioners thus fell under the CPF Scheme and were not entitled for subscription under the GPF Scheme. It was further held by the authority that in terms of instructions dated 31.07.2012, issued by the Finance Department, Government of Himachal Pradesh, on completion of 20 years of regular service, one additional increment to all Class-IV employees was to be given, but the same was applicable to the State Government employees and the petitioners were not eligible for special increment after completion of 20 years service, since earlier they were employees of HPGIC. On these basis, learned Additional Advocate General submitted that the petition being devoid of any merit, is liable to be dismissed. He reiterated that the petitioners were absorbed in the establishment of Deputy Commissioner, Una with their consent and they willingly submitted their consents which were appended with the reply as Annexure-VIII and it was on the basis of these consents that they were absorbed in the establishment of Deputy Commissioner, Una. Learned Additional Advocate General also argued that as the service of the petitioners was not pensionable with their erstwhile employer, therefore, ::: Downloaded on - 24/12/2022 09:30:45 :::CIS 13 they were not covered under the CCS (Pension) Rules, 1972 and, thus, they are entitled for the benefits of CPF Scheme but not the GPF Scheme.
.
7. Respondent No. 4 in its reply has stated that the petitioners were initially appointed by the Himachal Pradesh Minerals Industrial Development Corporation Limited (HPMIDC) in the years 1976, 1977, 1978 and 1979 in the Unit Country Liquor Bottling Plant. After the establishment of Himachal Pradesh General Industries Corporation Limited in the year 1988, the Country Liquor Bottling Plant was transferred to Himachal Pradesh General Industries Corporation Limited alongwith its employees.
The petitioners were deployed on secondment basis with respondent No. 2 only after they fell in surplus pool of respondent No. 4 and after the issuance of State Government Notification dated 26.09.2000. The petitioners were deployed on secondment basis on different dates in the year 2011, whereafter, they were relieved of their duties from Country Liquor Bottling Plant, Mehatpur. It is also mentioned in the reply that consents of the petitioners were duly taken before their absorption with respondent No. 2.
8. The petitioners have placed on record by way of CMP-T No. 2009 of 2020 their orders of regularization as well as relieving orders from HPGIC. Letters of absorption with respondent No. 2 have also been appended and documents qua receipt of EPF from HPGIC have also been placed on record.
::: Downloaded on - 24/12/2022 09:30:45 :::CIS 149. The main argument put forth by learned counsel for the petitioners is that as the petitioners after their appointment on secondment .
basis and absorption became permanent employees of the Government of Himachal Pradesh, wherein, the job was pensionable, therefore, they were entitled for grant of pension post their superannuation and Annexure A-1, dated 24.04.2017, in terms whereof said prayer of the petitioners was rejected, was liable to be quashed and set aside.
10. To substantiate his contentions, learned counsel for the petitioners has relied upon judgment dated 19th June, 2013, passed by the High Court of Jharkhand at Ranchi in Bir Kaur Paswan and others Vs. State of Jharkhand and others, W.P. (S) No. 939 of 2012 with I.A. No. 3766 of 2013, judgment of the Hon'ble Supreme Court in The State of Jharkhand Vs. Bir Kaur Paswan and others, Civil Appeal No. 13372 of 2015 and judgment of the High Court of Judicature at Patna in Mukteshwar Prasad Singh and others Vs. The State of Bihar and others, Letters Patent Appeal No. 716 of 2017 in Civil Writ Jurisdiction Case No. 7702 of 2010.
11. I have heard learned counsel for the parties and have also gone through the pleadings as well as the documents on record.
12. Few facts which are not in dispute are enumerated hereinbelow, as they are necessary for the adjudication of present petition.
All the petitioners were initially appointed as Class-IV employees in the Himachal Pradesh General Industries Corporation in between 1977 to ::: Downloaded on - 24/12/2022 09:30:45 :::CIS 15 1987. All the petitioners were regularized in Himachal Pradesh General Industries Corporation in the year 1987, as is evident from the orders of .
regularization which have been placed on record by the petitioners, which are available at Page No. 324 onwards of the paper-book. In terms of Communication dated 07.11.2009, issued by the ACS-cum-FC (Revenue) to the Government of Himachal Pradesh to Divisional Commissioners, Shimla, Mandi and Kangra at Dharamshala, on the subject 'Filling up of vacant posts of Peons (Class-IV Category) in the Revenue Department', which document is available at Page No. 343 of the paper-book as Annexure A-11 with CMP-T No. 2009 of 2020, approval was accorded by the Government to fill up 143 vacant posts of Peons (Class-IV Category) in the establishment of Deputy Commissioners from the surplus pool, inter alia, drawn from Agro Industries Corporation, HPMC, Khadi & V.I. Board, Housing & UD authority, GIC, SIDC and Financial Corporation. Thereafter, in terms of Office Order dated 11.03.2015 (Annexure A-32) with CMP-T No. 2009 of 2020 at Page No. 369 of the paper-book, the petitioners who were deployed on secondment basis in the office of Deputy Commissioner, Una as surplus staff, were absorbed in the establishment against vacant posts of Clerks, Drivers and Peons etc. Before this, in between the years 2009 to 2012, the petitioners were deployed on secondment basis in the office of Deputy Commissioner, Una under the Revenue Department.
::: Downloaded on - 24/12/2022 09:30:45 :::CIS 1613. In a nut-shell, the prayer of the petitioners is that a direction be issued to the respondent-State to the effect that the job of the petitioners .
be considered to be pensionable, as they were already serving HPGIC on regular basis much prior to the year 2003, which is the cut off year as far as the State is concerned for the purpose of grant of pension to its employees.
The petitioners are erstwhile employees of HPGIC. There is no dispute that the job of the employees of HPGIC including the petitioners was not on secondment r basis to pensionable. In between the years 2009 to 2012, the petitioners were deputed in the establishment of Commissioner, Una and they continued to serve as such there till they were Deputy permanently absorbed in the establishment of Deputy Commissioner, Una in the year 2015. Thus, till the time the services of the petitioners were absorbed in the establishment of Deputy Commissioner, Una, in terms of Office Order dated 11.03.2015, for all intents and purposes, they continued to be the employees of HPGIC.
14. At this stage, it is relevant to refer to the terms of Office Order dated 11.03.2015, in terms whereof, the petitioners were absorbed in the office of Deputy Commissioner, Una. A perusal of this Communication demonstrates that the employees whose names were referred therein were absorbed in the establishment against the posts referred against their name and the absorption was on temporary basis, and the employee was to ::: Downloaded on - 24/12/2022 09:30:45 :::CIS 17 remain on probation for a period of two years. This clearly demonstrates that the absorption was prospective.
.
15. This absorption was in terms of Office Memorandum dated 11th May, 2012, issued by the Finance (Regulations) Department, Government of Himachal Pradesh, on the subject 'policy regarding permanent absorption of surplus staff taken on secondment basis by the State Government'. This Policy/Office Memorandum is available at Pages No. 80 and 371 of the paper-book. A perusal of this Office Memorandum demonstrates that a decision was taken in terms thereof by the Stage Government to absorb the staff taken on secondment basis on the terms and conditions spelled out in the said Office Memorandum, which inter alia, included the following three conditions:-
"7. The pensionary benefits to the officials will be regulated as per the instructions of the State Government issued vide FD's letter No. Fin (Pen)A(3)-1/96, dated 15.05.2003 and as per provision of H.P. Civil Services Contributory Pension Rules 2006 notified by the Department of Finance (Pension) vide Notification No.:Fin(Pen)A(3)-1/96, dated 17.08.2006.
8. In the case of those employees who were appointed on or before 14.05.2003 on regular basis and were governed by the CCS (Pension) Rules, 1972 in their parent organization then the above Condition No. 7 will not be applicable as they ::: Downloaded on - 24/12/2022 09:30:45 :::CIS 18 shall continue to be governed under aforesaid Rules for pensionary benefits.
9. The employees will be required to accept .
these terms & conditions before the issuance of final orders of absorption."
16. At this stage, it is also relevant to refer to the order in terms whereof, the petitioners were sent on secondment basis initially. Said document is at Page No. 343 of the paper-book and a perusal thereof demonstrates that those employees of the establishments like HPGIC were sent on secondment basis in the Revenue Department, who were in surplus pool. This clearly demonstrates that the purpose of sending them on secondment basis to the Revenue Department was to save their jobs. Now, as far as the contention of learned counsel for the petitioners that no consent was taken from the petitioners when they were sent on secondment basis is concerned, all that this Court can observe is this that there is nothing on record from which it can be inferred that the petitioners were forced to go on secondment basis. Be that as it may, to counter the contention of the petitioners that they were absorbed without either seeking their options or obtaining their proper consents, respondents No. 1 to 3 alongwith their reply have placed on record as Annexure R-VII, the consents which were given by the petitioners for their permanent absorption, which belies the fact that no such consents were taken from them.
::: Downloaded on - 24/12/2022 09:30:45 :::CIS 1917. Still this Court will venture to adjudicate the issue raised by the petitioners before this Court as to whether the rejection of their claim of .
pension by the respondents is sustainable in law or not. From the facts as they have been enumerated hereinabove, it is apparent and evident that the petitioners were regular employees of the Himachal Pradesh General Industries Corporation Limited. Their jobs in HPGICL were not pensionable.
For some reason, they were placed in the surplus pool of employees of HPGICL. In between the years 2009 to 2012, they were sent on secondment basis to Revenue Department, which placement on secondment basis was accepted by them without any protest. Their consents were taken before their permanent absorption in the establishment of Deputy Commissioner, Una and as the petitioners gave their consents for absorption, it was thereafter that services of the petitioners were absorbed as such.
18. Now, at this stage it is important to again refer to the terms and conditions of Office Memorandum dated 11th May, 2012, i.e., Policy regarding permanent absorption of surplus staff taken on secondment basis by the State Government. Clause-7 of the same provides that pensionary benefits to the officials will be regulated as per the instructions of the State Government issued by the FD's letter dated 15.05.2003 and as per provisions of H.P. Civil Services Contributory Pension Rules, 2006 notified by the Department of Finance (Pension) vide Notification dated 17.08.2006.
::: Downloaded on - 24/12/2022 09:30:46 :::CIS 20Clause-8 thereof provides that in the case of those employees who were appointed on or before 14.05.2003 on regular basis and if they were .
governed by the CCS (Pension) Rules, 1972 in their parent organization, then the above Condition No. 7 will not be applicable, as they shall continue to be governed under the aforesaid Rules for pensionary benefits.
19. As has been held by me hereinabove also, the petitioners were not governed by the CCS (Pension) Rules, 1972 before 14.05.2003 in their capacity as employees of HPGICL. That being the case, but natural, the pensionary benefits to the petitioners, post absorption, are to be governed in terms of Clause-8 of Office Memorandum dated 11th May, 2012. It is pertinent to mention that there is no challenge per se to this Office Memorandum with regard to its legal validity in the petition. In this background, this Court is of the considered view that as the job of the petitioners in their parent Department as on 14.05.2003 was not governed by the CCS (Pension) Rules, 1972, therefore, they after their absorption in the establishment of Deputy Commissioner, Una, that too, in the year 2015, which absorption is prospective, cannot stake a claim to be governed by the CCS (Pension) Rules, 1972, simply on the ground that they were in job before 14.5.2003. It is reiterated that their being in job before 14.05.2003 for the purpose of being governed by the CCS (Pension) Rules, 1972 would have been of relevance only if they were governed by the CCS (Pension) Rules, 1972 in their parent Organization also, which admittedly, they were ::: Downloaded on - 24/12/2022 09:30:46 :::CIS 21 not. This renders the contention of the petitioners qua quashing of Annexure A-1 and also qua issuance of a mandamus to the respondents to .
treat the petitioners to be governed by the CCS (Pension) Rules, 1972 to be unacceptable in law. During the course of arguments, it could not be substantiated by the petitioners before this Court that their service conditions have been altered to disadvantage by taking away their right to receive pension under the CCS (Pension) Rules, 1972, to which they were entitled to under their erstwhile employer.
20. Now coming to the judgments referred by learned counsel for the petitioners of the Hon'ble High Court of Jharkhand at Ranchi. In all these cases, the job of the petitioners was pensionable in the erstwhile Department. It is evident from the perusal of the judgment by the High Court Jharkhand at Ranchi in Bir Kaur Paswan & Ors. Vs. State of Jharkhan & Ors, W.P. (S) No. 939 of 2012 with I.A. No. 3766 of 2013 that the very case of the petitioners therein was that they were employees of Government undertaking/Corporation and their services were pensionable from the date of joining their service, but by the impugned Resolution, the respondents were denying the said valuable right by bringing them under the New Pension Scheme, which was implemented recently. It is in this background that the Hon'ble High Court held the New Pension Scheme as well as denial of legitimate demand of the petitioners therein as wholly arbitrary, unjust and illegal. Hon'ble Supreme Court upheld these findings in The State of ::: Downloaded on - 24/12/2022 09:30:46 :::CIS 22 Jharkhand Vs. Bir Kaur Paswan & Ors, Civil Appeal No. 13372 of 2015.
Similarly, in Mukeshwar Prasad Singh and others Vs. The State of Bihar .
and others (supra), the Hon'ble Division Bench therein, taking into consideration the fact that the petitioners were similarly situated as the petitioners in Bir Kaur Paswan's case (supra), who after creation of the new State of Jharkhand, had been allocated to the State of Jharkhand, allowed the writ petitions in view of the adjudication in Bir Kaur Paswan's case (supra). This Court is of the considered view that the judgments relied upon by learned counsel for the petitioners are of no assistance to them, because therein the services of the petitioners were already pensionable in their erstwhile Departments and the prayer of the petitioners was that the service so rendered by them in their erstwhile Departments should be taken into consideration while determining their pensionary benefits. In the present case, as has been discussed in detail hereinabove, admittedly, service of the petitioners in the erstwhile Organization, i.e., their parent Organization, was not pensionable. Therefore, the above judgments are of no help to them.
21. Accordingly, in view of the discussion made hereinabove, as this Court finds no merit in the present petition, the same is dismissed.
Miscellaneous applications, if any, also stand disposed of.
::: Downloaded on - 24/12/2022 09:30:46 :::CIS 23CIVIL ORIGINAL PETITION CONTEMPT (TRIBUNAL) No. 79 OF 2019 .
22. In view of the adjudication of the main writ petition, these proceedings are ordered to be closed. Notices stand discharged.
(Ajay Mohan Goel) Judge July 06,2022 (bhupender) ::: Downloaded on - 24/12/2022 09:30:46 :::CIS