IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.2457 of 2021 Reserved on:04.06.2026 Decided on 30.06.2026 Uploaded on:-30.06.2026 Sh. Raksh Paul Singh …Petitioner Versus State of Himachal Pradesh and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? Yes For the petitioner: M/s Onkar Jairath, Anshul Jairath, Advocates. For the respondents: Mr. Rajpal Thakur, Additional Advocate General, for respondents No.1 to 3. Mr. Vikrant Thakur, Advocate, for respondent No.4. Ajay Mohan Goel, Judge By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs:- “A. That Your Lordships may graciously be pleased to issue the Writ in the nature of Certiorari quashing and setting aside the impugned action of the Respondents, whereby the representation of the Petitioner has been rejected and he has been denied the benefit of CCS (Pension) Rules, 1972. B. That Your Lordships may further graciously be pleased to issue the Writ in the nature of Mandamus directing the respondents to grant the Petitioner the benefit of CCS Pension Rules, 1972 and GPF Rules, 2 1960 with all consequential benefits and the Respondents may kindly be directed to make deductions from his salary towards GPF instead of Contributory Provident Fund in the interest of justice. C. That Your Lordships may further graciously be pleased to issue the Writ in the nature of mandamus directing the respondents to grant the notional benefit of pay and seniority w.e.f. 22.02.2003 i.e. when the name of the Petitioner was recommended for the post of Assistant Advocate General in view of law laid down in Sanjay Dhar Versus J&K Public Service Commission reported in (2000) 8 SCC 182 herein, the Apex Court was pleased to hold that when a candidate is deprived of appointment without their being any fault on his part, he is deemed to have been appointed right from the same date.” 2. Brief facts necessary for the adjudication of this petition are that the petitioner responded to an advertisement i.e., advertisement No.1 of 2002, dated 10.02.2002, inviting application for one post of Deputy Advocate General and four posts of Assistant Advocate General in the office of the Advocate General to the Government of Himachal Pradesh. The posts were advertised on regular basis. The petitioner being fully eligible to participate in the process, applied for appointment against the post of Assistant Advocate General. Screening test for the post of Assistant Advocate General was conducted on 30.10.2002. The result of the screening test was 3 declared by respondent No.4 on 09.12.2002 and the interviews were conducted by respondent No.4 thereafter from 27.12.2002 to 30.12.2002. Result thereof was declared on 22.02.2003. In terms of Annexure P-1, communication dated 04.03.2003, the petitioner received a communication from Secretary Himachal Pradesh Public Service Commission to the effect that his name stood recommended to Additional Chief Secretary-cum- Secretary (Home) to the Government of Himachal Pradesh for appointment against the post of Assistant Advocate General. The appointment was finally offered to the petitioner against the post of Assistant Advocate General vide notification dated 30.12.2008 (Annexure P-5). The delay in their appointments took place for the reason that despite being recommended by the Himachal Pradesh Public Service Commission for being appointed as an Assistant Advocate General, the State abolished seven posts of Assistant Advocate General vide notification dated 09.04.2003 and one post vide notification dated 22.04.2003. This led to litigation and finally on 01.12.2008, respondent No.1 revived the cadre of Assistant Advocate General by creating five posts of Assistant Advocate 4 General in the office of respondent No.3, which was followed by offer of appointment to the petitioner. Thereafter, the petitioner joined as an Assistant Advocate General in the office of respondent No.3 on 30.12.2008. On 29.02.2016, he was promoted against the post of Deputy Advocate General. On 17.02.2020, the Government of India, Department of Pension and PW, issued office memorandum and sought option from employees for coverage under Central Civil Services (Pension) Rules, 1972 in place of the New Pension Scheme. This option was sought from those employees, whose selection process was complete before 01.01.2004 i.e., when the New Pension Scheme came into force for Central Government Employees. On 13.05.2020, the petitioner made a representation to respondent No.1 to extend the said benefit to the petitioner also by adopting the above mentioned notification/office memorandum. The petitioner was informed by respondent No.1 that the office memorandum of the Government of India has not been adopted by the State of Himachal Pradesh. 5 3. Learned counsel for the petitioner argued that in the present case, the petitioner stood recommended for appointment against the post of Assistant Advocate General before 15.05.2003 i.e., the date on which the New Pension Scheme came into force. He submitted that the offer of appointment to the petitioner was not in the hand of the petitioner and the undue delay which took place in this regard cannot act to disadvantage of the petitioner. Learned counsel submitted that in fact this issue is no more res-integra and the Hon’ble Division Bench of this Court in CWP No.3435 of 2020, titled Satish Kumar and others versus State of Himachal Pradesh and another has been pleased to hold that delay in the completion of selection process would not come in the way of the selected candidates and they shall be deemed to be appointed on 01.05.2003 alongwith all consequential benefits that is the date being prayed by the petitioners therein. Said judgment stands implemented by the State qua pensionary benefits. 6 4. On the other hand, learned Additional Advocate has argued that in the present case as the petitioner was actually appointed to the office after 15.05.2003 i.e., after the New Pension Scheme had come into force,. the petitioner is not entitled for the reliefs being prayed for. He submitted that what is important is not the date of participation in the process or the recommendation of the Public Service Commission. He submitted that herein the offer of appointment was made to the petitioner only in the year 2008 and, therefore, the petitioner is now governed under the New Pension Scheme, though, he can otherwise opt for the Old Pension Scheme, but, he is not entitled to be treated as an incumbent who had joined the service before the New Pension Scheme came into force. No other point was urged. 5. I have heard learned counsel for the parties and have also carefully gone through the pleadings as well as the documents on record. I have also carefully perused the judgment of the Hon’ble Division Bench relied upon by the learned counsel for the petitioner. 7 6. A perusal of the judgment of the Hon’ble Division Bench demonstrates that in the said judgment the Education Department on 18.06.2002 sent a requisition for the recruitment of TGT. The Board set in motion the selection process and written test was conducted on 26.09.2002. Result was declared on 30.10.2002 and panel of meritorious candidates was thereafter sent to the concerned respondent for issuance of appointment letter. However, despite the process being put in motion, the selected candidates were not issued appointment letters, which resulted in various litigations. During the pendency of these litigations, the respondent-Department took a conscious decision on 16.06.2008 that Medical Trained Graduate Teachers may be appointed if they withdraw the cases. As a result thereof, the incumbents withdrew their cases and they were offered appointment but not from the due date. The act of the Department was assailed before the Court as the petitioners therein were aggrieved by the fact that they were offered appointment on contract basis and that too prospectively. 8 7. In the backdrop of these facts, Hon’ble the Division Bench held as under:- “We have heard the learned counsel for the parties and have gone through the material placed on record. At the outset, it needs to be noticed that the respondents have not disputed the fact that as against the posts required to be filled up by way of promotion (25%), the vacancies were filled up vide Office Order dated 23.04.2002 on the basis of DPC held on 26.02.2002. It is also not in dispute that the respondent- department had sent a requisition to the Board for recruitment of Trained Graduate Teachers on the basis of direct recruitment vide its letter dated 18.06.2002. Yet again, it is not in dispute that the Board had set in motion the selection process by conducting written test on 26.09.2002. The result whereof was declared on 30.10.2002 i.e. much prior to the cut-off date on 15.05.2003 fixed by the respondents in the Rules2006. Once, the recommendations of the Board had been received by the respondents, it was incumbent upon them to have promptly offered the appointments to the selected candidates in terms of the recommendations so made and in case they have failed to do so, then the petitioners have every right to file the instant petition. For, it is more than settled that the candidate who is wrongly not appointed is to be given benefit of notional seniority from the date he should have been appointed. Reference in this regard can conveniently be made to the following judgments:- (i) (2020)5 SCC 230, titled as, Jayachandran vs. State of Kerala; (ii) (2000) 8 SCC 182, titled as, Sanjay Dhar vs. J&K Public Service Commission; (iii) (2014) 2 SCC 158, titled as, Sasidhar Reddy Sura vs. State of A.P.; (iv) (2014) 13 SCC 393, titled as , Lakshmana Rao Yadavalli vs. State of A.P.; (v) (2008) 7 SCC 728, titled as, Balwant Singh Narwal vs. State of Haryana, and; (vi) (1996) 8 SCC 637, titled as, Pilla Sitaram Patrudu vs. Union of India. As observed above, the result of the selection 9 was duly declared by the Board on 30.10.2002 and the said recommendations forwarded to respondent No.2, who was simply to issue the appointment letters. Even if, this selection process was to be delayed for any reason, the same could not have been delayed beyond six months and, therefore, in the given circumstances, the petitioners would be deemed to have been appointed at least on and with effect from 1st May, 2003. Once that be so, obviously, the provisions of the Rules of 2006 would not come in the way of the petitioners. There is yet another reason to grant this benefit to the petitioners as it is not in dispute that the process for filling up 25% posts by way of promotion was initiated about the same time and completed on 23.04.2002 pursuant to the recommendations of the DPC on 26.02.2002. In such circumstances, it will be totally unfair, unjust and otherwise illegal to deprive the petitioners of their right being appointed. In the given facts and circumstances, we find merit in this petition. The impugned Officer Orders dated 05.04.2018 (Annexures A-14 and A-15) are quashed and set aside. The petitioners shall be deemed to be appointed on 1 st May, 2003, along with all consequential benefits. However, since, the petitioners have not worked on the posts, therefore, they will not be entitled to any monetary benefits from the deemed date of their appointments. The petition is allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.” 8. In the present case, the process of recruitment stood completed much before 15.05.2003 and the Himachal Pradesh Public Service Commission forwarded its recommendations to the Department on 22md February, 2003, in terms of Annexure P-5. In fact the petitioner was informed by 10 the Himachal Pradesh Public Service Commission about his name being recommended for appointment against the post of Assistant Advocate General as far back as on 04.03.2003. Thereafter, obviously, it was for the Department concerned to have issued the appointment letter, but rather than, issuing any appointment letter, the posts in issue were abolished. As observed hereinabove also this resulted in litigation and the posts were ultimately revived only in the year 2008 and thereafter, the appointment was offered to the petitioner. In all this process, the petitioner not only lost five years of service, but his right under the Old Pension Scheme, which was there when the process was put into motion was also taken away from him for no fault to him. 9. In the present case, as the process for selection of Assistant Advocate General was put into motion in the year 2002 and at that relevant time, the New Pension Scheme had not yet come into vogue, the petitioner legitimately expected that once appointed under the said process, he would be governed by the Old Pension Scheme which was in vogue at the time when the advertisement was issued. Not only this, 11 pursuant to the issuance of the advertisement, the entire process of recruitment was completed in the month of February, 2003 itself and Public Service Commission also sent its recommendation to the Department in the month of February, 2003. Communication was also sent to the petitioner to this effect by the Himachal Pradesh Public Service Commission. 10. Therefore, in the considered view of this Court, the delay in the issuance of the appointment letter for the acts of omission and commission of the Department cannot be taken advantage of by the Department in denying the petitioner the right to be governed under the pension scheme which was in vogue at the time when the advertisement was issued and the selections were made. In the light of the fact that the Public Service Commission had recommended to the Department the candidates, vide office order dated 22.02.2003 which is evident from Annexure P-5 who were hardly four, maximum a month could have been taken by the Department to issue the appointment letters as from the date when Public Service Commission informed the petitioner about his name being 12 recommended. However, what happened thereafter is now history, but then, at the cost of repetition, this Court observes that the same cannot act to the deterrent of the petitioner. 11. As far as the post of Deputy Advocate General is concerned, Shri J.K. Verma was recommended for appointment against the said post by the Himachal Pradesh Public Service Commission in the year 2002 itself and he was offered appointment to the said post by the State on 21.08.2002. In other words, Sh. J.K. Verma was offered appointment within a week from the date of recommendations and after joining against the post in issue, obviously, he was covered under the Old Pension Scheme. 12. Thus, here is a case, where by way of same advertisement, one post of Deputy Advocate General and four posts of Assistant Advocate General were advertised and, whereas, the post of Deputy Advocate General was filled by way of appointment of the incumbent on 21.08.2002, person like the petitioners were appointed as Assistant Advocate General in the year 2008. As the other incumbent appointed against the post of Deputy Advocate General is duly covered 13 under the Old Pension Scheme, at least same and similar benefit is required to be given to the present petitioner also in the light of the fact that even for the post of Assistant Advocate General, the process of recruitment stood completed by the Himachal Pradesh Public Service Commission as far back as in the month of February/March, 2003. 13. Therefore, in the light of the above observations, this writ petition is allowed and the petitioner shall be deemed to have been appointed against the post of Assistant Advocate General w.e.f. 15.04.2003, but this will only be for the purpose of bringing him under the ambit of the Old Pension Scheme which was existing at that relevant time and no other benefits shall accrue to the petitioner on account of this judgment passed by this Court regarding seniority or pay fixation and arrears. 14. With these observations, the petition stands disposed of, so also pending miscellaneous applications, if any. (Ajay Mohan Goel) Judge June 30, 2026 (Vinod)