Himachal Pradesh High Court
State Of Hp And Another vs Sh. Bachittar Singh on 22 October, 2019
Bench: Tarlok Singh Chauhan, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 4011 of 2013
Decided on 22.10.2019.
.
State of HP and another ....Appellants.
Versus
Sh. Bachittar Singh ... Respondent.
................................................................................................
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1
For appellants
r :
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
No.
Mr. Ajay Vaidya, Sr. Additional Advocate
General with Mr. Vinod Thakur, Additional
Advocate General and M/s Bhupender
Thakur, Narinder Thakur and Svaneel
Jaswal, Deputy Advocate Generals.
For respondent : Mr. Sanjeev Bhushan, Sr. Advocate with Ms.
Abhilasha Kaundal, Advocate.
Tarlok Singh Chauhan, J.(Oral)
During the course of arguments, it transpired that there is apparent conflict between two Division Benches' judgments of this Court regarding interpretation of Rule 49 (3) of the CCS (Pension) Rules, 1972.
2. One of the Division Bench of this Court (Coram:
Hon'ble Mr. Justice Kurian Joseph, Chief Justice and Hon'ble Mr. 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 26/10/2019 20:24:12 :::HCHP 2
Justice Dharam Chand Chaudary, Judge) in State of Himachal Pradesh through Principal Secretary (Health) Vs. Joginder Singh, 2012 (3) Him L.R. (DB) 1288 has held as under:-
.
"xx xx xx Rule 49(3) of the CCS (Pension) Rules reads as follows:-
"In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half year and reckoned as qualifying service."
2. In terms of the above rule a person having three months service shall be treated to have completed one half of service for being counted as qualifying service. Logically, a person having service of six months and above, should be treated to have completed two half years for the purpose of qualifying service. In other words, in the case of a person having service of nine years and six months, the qualifying service shall be taken as ten years and thus he shall be entitled to minimum pension. State has come up in appeal against the judgment, dated 9th March, 2010 whereby the learned Single Judge has granted relief to the petitioner to the effect that he should be deemed to be in service upto 30 th June, 2008, in terms of the letter dated 25.09.2007. That letter pertains to the grant of extension of 10 months of service to complete 10 years of service. Subsequently, the same has been withdrawn. Thus aggrieved, the petitioner filed the writ petition. xx xx"
2. Notably, in the aforesaid case, the petitioner even though had put in service of nine years, nine months and five days, yet the Court had specifically held that a person having service of nine years and six months, the qualifying service shall be taken as ten years and thus he shall be held entitled to minimum pension.(see underlined portion above).
3. It was on the basis of the aforesaid judgment that learned Single Judge of this Court, vide impugned order held that the case of ::: Downloaded on - 26/10/2019 20:24:12 :::HCHP 3 the petitioner herein to be covered under the said judgment since he had already rendered nine years, eight months and three days service.
4. However, when an identical question again came up for .
consideration before another Division Bench of this Court (Coram:
Hon'ble Mr. Justice A.M. Khanwilkar, Chief Justice and Hon'ble Mr. Justice Rajiv Sharma, Judge) in CWP No. 7708 of 2012, titled as Prem Sagar Vs. State of H.P. and others decided on 11.6.2013, the Bench categorically held that the benefit under Rule 49(3) could be extended to an employee only if he has put in nine years and nine months of qualifying service, as is evident from para 3 to 5 of the judgment, which reads as under :-
"3. It is not in dispute that the petitioner has put in only nine years and seven months of service. The question is whether Rule 49 (3) of the CCS (Pension) Rules would oblige the respondents to reckon the period of service of the petitioner as complete year for determining the qualifying service. Rule 49 (3) reads thus:
"49. Amount of Pension (1) xxx xxx xxx (2) xxx xxx xxx (3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-
year and reckoned as qualifying service."
4. It would be apposite to also advert to the instructions issued by the Government of India in furtherance of Rule 49 (3),which read thus:
"(2) Three months and above but less than six months treated as one-half year. -The intention of sub-rule (3) of Rule 49 is that, the period of three months and above but less than six months would be treated as a completed one-half year and reckoned as qualifying service for determining of pension. The period ::: Downloaded on - 26/10/2019 20:24:12 :::HCHP 4 of nine months would, therefore, be two half years.
[D.O. No. 28 (15)/83PU, dated the 13th October, 1983, from Shri K.S. Mahadevan, Under Secretary to the Government of India, .
Ministry of Home Affairs, addressed to Shri P. Muthuswamy.] (emphasis supplied)"
5. On conjoint reading of the Rule and the instructions, we have no manner of doubt that unless the employee has put in at least "nine years and nine months" of service, it would not be permissible to treat the person having completed the qualifying service of ten years. The rounding off may not be possible even if there was to be shortfall of one day. The two half years can be reckoned only if the period is nine months or more.
5. In view of the apparent conflict between the two judgments referred to hereinabove regarding the interpretation of Rule 49(3) of the CCS (Pension) Rules, 1972, the matter is required to be decided by a Larger Bench of this Court. Accordingly, the Registry is directed to place the papers before Hon'ble the Chief Justice for appropriate orders.
(Tarlok Singh Chauhan) Judge (Anoop Chitkara) Judge 22nd October, 2019 (Guleria) ::: Downloaded on - 26/10/2019 20:24:12 :::HCHP