Himachal Pradesh High Court
Rameshwar Lal vs Accountant General on 2 March, 2020
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No. 135 of 2019.
Decided on : 2nd March, 2020.
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Rameshwar Lal ...Petitioner.
Versus
Accountant General, H.P. and others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Onkar Jairath, Advocate.
For Respondent No.1: Mr. Rajinder Thakur, CGSC For Respondent No.2: Mr. Hemant Vaid, Addl. A.G. with Mr. Gaurav Sharma, Dy. A.G. For Respondent No.3: Mr. Prashant Chaudhary, Advocate.
Sureshwar Thakur, Judge (Oral).
Through, the, extant writ petition, the writ petitioner has strived to seek, the, rendition, of, a mandamus, upon, the respondents concerned, to release his pension, hence in consonance, with, the Central Civil Services (Pension) Rules, 1972.
2. The writ petitioner was initially appointed, on 1.2.1983, as, a Steno-typist, in the H.P. Agro Industries 1 Whether reporters of the local papers may be allowed to see the judgment?
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Corporation Ltd. On 17.10.2003, he was sent on deputation, to, the H.P. State Election Commission. His services in the latter department became ordered to be permanently, absorbed in the year 2004, inasmuch, as on 31.05.2004.
3. The learned counsel appearing, for, the respondents contend, that since Annexure A-7 makes an echoing, that, the afore Rules relied, upon, by the writ petitioner, were made inapplicable, to all appointments, made, in the State of Himachal on or after 15.5.2003, thereupon, they contend that since, the, permanent absorption of the writ petitioner, in the department, of, H.P. State Election Commission, occurred subsequent thereto, inasmuch, as on 31.05.2004, (i) thereupon, it is construable also, as, an appointment, hence, the claim reared by the writ petitioner, in the extant writ petition, cannot be granted, vis-a-
vis, him. Though, the afore submission, as, made at the bar by Mr. Rajender Thakur, the learned Central Government Standing Counsel, appearing, on behalf of respondent No.1, and, though his afore submission, is, supported by Mr. Prashant Chaudhary, ::: Downloaded on - 04/03/2020 20:24:00 :::HCHP ...3...
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Advocate, appearing on behalf of respondent No.2, however, the afore oral submission, as, addressed by Mr. Rajender Thakaur, CGSC, is, not supported, by the reply furnished, on affidavit, by respondent No.1, (a) wherein, it has been propagated, that, upon, the office of the Accountant General, receiving, the, pension case of the petitioner, only, thereupon, it shall in accordance with the rules, and, instructions, as, become issued, from, the Finance Department of H.P. Government, rather accordingly process, the, pension case, of, the petitioner. The afore reply, on affidavit, as furnished, to the writ petition, by the office of the Accountant General, does not contain, any other contention, than, qua respondent No.1 proceeding to complete, the, processings, of, the, apposite pension paper(s), upon, it receiving them, from, respondent No.3, and, also upon respondent No.2, declaring, the, petitioner qua his becoming entitled, to, the old pension scheme, given his not being covered, by Annexure A-7. Consequently, the afore made submissions are meritless, and, are rejected.
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4. Significantly, hence, the dependence, by respondent No.1, is, made, upon, examination of the pension case, of, the writ petitioner, by respondent No.2. For construing the strength, of, the stand taken, by respondent No.2, it is imperative, to, allude, to, Annexure A-5, wherein, a declaration exists, that, the right, to, count the period of rendition of services, by the petitioner, in Autonomous Body/Bodies, as, the apposite qualifying service, for, the relevant purposes, shall not revive, until, the whole amount, has been refunded to the State Exchequer, and, thereafter it becomes approved, from, Accountant General Officer, H.P. However, thereafter since Annexure A-6, makes an articulation, qua in consonance therewith, rather the writ petitioner, through, treasury challans, hence making refunds, of, certain amounts, received purportedly, as, pension by him, for his rendering service, in, the H.P. Agro Industries Corporation, hence, an Autonomous Body,
(i) thereupon, when the underlinings, as, made in Annexure A-5, are pronounced in Annexure A-6, to be complied with, and, also ::: Downloaded on - 04/03/2020 20:24:00 :::HCHP ...5...
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when Annexure A-6 carries echoings qua the period, of, rendition of services, by the writ petition w.e.f. 1.2.1983, to, 30.5.2004, shall be treated, as qualifying service, for, the purpose of pension calculation, pay protection, credit of earned leave, as it stood, on the day prior, to, his absorption, in, the commission, (ii) thereupon, even if the services of the petitioner, became permanently absorbed, in, the borrowing department, in, the year 2004, hence, subsequent to 2003, (iii) thereupon, also the petitioner cannot be construed to be appointed subsequent to 2003, nor he can be construed, to be amenable for being axed, from, receiving the benefits, of, all claims, as, reared by him, in, the extant writ petition. The further reason for this Court striking, the, afore conclusion, is, derived, from, the office memorandum, borne in Annexure A-10, Annexure whereof, stands extracted hereinafter:-
"Subject: Counting of past service on submission of technical resignation on or after 15.5.2003 by employees governed by the Central Civil Services (Pension) Rules, 1972.::: Downloaded on - 04/03/2020 20:24:00 :::HCHP
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The various Departments/Autonomous Bodies have .
been seeking clarification from this Department whether the employees appointed on or before 14.5.2003, who were governed by old pension scheme under the Central Civil Services (Pension) Rules, 1972, will be eligible for counting of their past service under Rule 26(2) of the said rules or under the provisions of the Govt. of India, DP & AR's OM NO. 28/10/84-PU dated 29 th August, 1984 as amended from titme to time adopted by the Himachal Pradesh Government for its employees vide Finance Department Office Memorandum No. Fin(C) A(3)-17/76-II dated 5th July, 1996, in the situation where such employees submit technical resignation, on or after 15.5.2003 to take up new appointment in the New Department/State Autonomous Body.
2. The matter has been considered in the Finance (Pension) Department and it is clarified as follow:-
(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 29th August, 1984, adopted by the State Government vide Office Memorandum No.Fin © A(3)-17/76-II dated 5th July, 1996) on or before 14.5.2003 and who were governed by the old ::: Downloaded on - 04/03/2020 20:24:00 :::HCHP ...7...
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 15.5.2003 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 14.5.2003.
(ii) The employees who entered into service on or before 14.5.2003 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 15.5.2003, cannot be allowed to join the old pension scheme under Central Civil Services (Pension) Rules, 1972 because entry to the said scheme ceased after 14.5.2003 and no new entry can be allowed in the pension scheme under the above Rules. However, such employees can seek pensionary terminals benefits, ::: Downloaded on - 04/03/2020 20:24:00 :::HCHP ...8...
from, the previous organization/Department, if .
admissible under the rules of that Organization/Department for the period of service rendered under that organization/Department.
(iii) All the State Government employees who entered State Government service or the service of an Autonomous Body set up by the State Government of Himachal Pradesh, on or before 14.5.2003 and who were governed by the old pension shceme under the Central Civil Services (Pension) Rules 1972 and who submit technical resignation on or after 15.5.2003, to take up new appointment under the Central/other State Government, will be eligible for grant of pro-rata pensionary benefits for the period of State "Government or State Autonomous Body service, on the lines as provided in the Rule 37 of Central Civil Services Rule 1972 & related orders.
3. Paras 3(a) (ii) and 3(b) of Government of India Office Memorandum No.28/10/84-PU dated 29.8.1984 adopted by the State Government vide Office Memorandum No. Fin (C) A(3)-17/76-II dated 5th July 1996 may be treated as deleted w.e.f. 15.5.2003. Further, the provisions of Government ::: Downloaded on - 04/03/2020 20:24:00 :::HCHP ...9...
of India Office Memorandum No.28/10/84-PU .
dated 29.8.1984 adopted by the State Government vide Office Memorandum No. Fin © A(3) 17/76- dated 5th July, 1996 or any other related order shall, in so far as it provides for any of the matters contained in this Office Memorandum case to operate.
By Order Principal Secretary (Finance) to the r Government of Himachal Pradesh."
Thereupon, since the afore memorandum, covers the petitioner's claim, inasmuch, as, it becomes pronounced therein, vis-a-vis, upon, the therein specified alternate, to, the primary condition, as, comprised in the claimant, being in the State government service, inasmuch, as, his entering into service, with, an autonomous body, inasmuch, as, with, H.P. Agro Industries Corporation, upon begetting satiation, thereupon, as declared therein, his becoming entitled, for all pensionary benefits, under, the old pension scheme.
5. Consequently, in the light, of, the afore, the extant writ petition is allowed, and, the petitioner, is, held entitled to receive pension, under, the old pension scheme, and, in ::: Downloaded on - 04/03/2020 20:24:00 :::HCHP ...10...
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accordance, with, Central Civil Services (Pension) Rules, 1972. In sequel, the respondents are directed to process the pension case of the petitioner, in terms, of, the old pension scheme, and, also to release qua him all pensionary benefits, hence within four months from today. All pending applications also stand disposed of.
r to
(Sureshwar Thakur)
Judge
2nd March, 2020.
(jai)
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