( 2025:HHC:22879 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 9896/2024 Decided on: 16.07.2025 Hukam Chand …Petitioner Versus State of H.P. & Ors. .…Respondents. ………………………………………………………………………………. Coram Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the petitioner: Mr. Devender Sharma and Mr. C.N. Singh, Advocates. For the respondents: Mr. Rajat Choudhary, Assistant Advocate General, for respondents No.1 to 3. Mr. Rangil Singh, Advocate, for respondent No.4. Jyotsna Rewal Dua , J Petitioner’s grievance is that respondent No.4 i.e. the Accountant General (A&E) to the Government of Himachal Pradesh has authorized pension in his favour by treating his last pay drawn at Rs.46,800/- as on 01.10.2022, whereas, the petitioner had retired on 31.01.2023 and his last pay drawn for the month of January-2023 was Rs.48,200/- (basic pay). Petitioner’s case is that his pension is liable to be fixed by taking Rs.48,200/- as his last pay drawn. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:22879 2. The case 2(i) Petitioner was initially engaged as casual daily wage worker during the year 1984. His services were regularized against the post of Chowkidar w.e.f. 12.01.1998 under order dated 02.03.1998. Petitioner was later on appointed as Peon. Petitioner participated in the Limited Direct Recruitment (LDR) process and was appointed as Forest Guard (Class-III) w.e.f. 08.10.2003 under order dated 24.05.2004. 2(ii) Pursuant to decision in Hukam Chand Vs. State of H.P. & Ors.2 and in light of law laid down in Mool Raj Upadhyaya Vs. State of H.P. & Ors.3, respondents conferred work charge status upon petitioner w.e.f. 01.01.1994 i.e. on his completing 10 years of daily wage service with 240 days in each calendar year under order dated 20.07.2012. Petitioner was promoted to the post of Deputy Ranger on 07.09.2022 vide office order dated 06.09.2022. He superannuated as such on 31.01.2023. 2(iii) Petitioner has placed on record his salary slip depicting emoluments received by him for the month of January-2023 (Annexure P-4). The break up given therein is as under: - Jan, 2023 Rs.63942 Basic Pay Rs. 48200 Dearness Allowance Rs. 14942 House Rent Allowance Rs. 500 2 CWP No. 1740/2012 decided a/w connected matters on 28.03.2012 3 1994 Supp. (2) SCC 316 3 ( 2025:HHC:22879 Compensatory Allowance Rs. 200 Washing Allowance Rs. 30 Special Pay Allowance Rs.100 Gross Pay Rs. 63972 Insurance Fund Rs. 9 Saving Fund Rs. 21 Total Deductions Rs.30 Net Pay Rs. 63942 Petitioner’s salary slip shows basic pay of Rs.48,200/-, dearness allowance of Rs. 14,942/- and Rs.63,972/- as gross pay drawn by him at the time of his superannuation. 2(iv) Petitioner’s grievance is to the pension, which has been sanctioned in his favour by respondent No.4 in view of the recommendations by respondents No.1 to 3-State by taking his last basic pay at Rs.46,800/-. Pension Payment Order (PPO) dated 30.06.2023 issued by respondent No.4 considering petitioner’s last drawn basic pay at Rs. 46,800/- per month has been placed on record at Annexure P-5-colly. 2(v) In the above background, the petitioner has instituted this writ petition claiming that his pension is required to be fixed by taking his last drawn basic pay at Rs. 48,200/- and not Rs. 46,800/-. 3. Submissions 3(i) Learned Assistant Advocate General defended sanction and release of pension to the petitioner by taking his last basic pay at 4 ( 2025:HHC:22879 Rs. 46,800/- on the strength of reply filed by respondents No.1 to 3 as under: -  The petitioner was appointed as Forest Guard on 08.10.2003.  Assured Career Progression (ACP) Scheme (4-9-14) was introduced by the respondents-State on 09.08.2012 vide office letter of even date.  Petitioner was granted benefit of one additional increment on completion of four years of service w.e.f. 27.08.2009. He was granted financial upgradation/enhancement under the Himachal Pradesh Civil Services (Re-revision) Rules, 2012 w.e.f 01.10.2012. This upgradation/enhancement was in-addition to the pay revision carried out in terms of Himachal Pradesh Civil Services (Revised Pay) Rules, 2009. The petitioner was also granted benefit of higher grade pay and an additional increment w.e.f. 08.10.2017 after his completing 14 years of service under ACP Scheme.  Additional increment granted to the petitioner w.e.f 08.10.2017 was over and above the three financial upgradations/enhancements/promotions admissible to a regular employee in his entire service career in terms of ACP Scheme. The petitioner could not have been granted this addition benefit. It is for this reason that revised pension case of the petitioner was submitted 5 ( 2025:HHC:22879 by respondents No.1 to 3-State to the office of respondent No.4. Accordingly, mistake committed by the respondents in releasing an additional increment to the petitioner w.e.f. 08.10.2017 was rectified and hence, his basic pay for the purpose of fixation of pension was taken at Rs.46,800/- for the month of January-2023. Consequently, petitioner’s pay was also refixed on 25.04.2023 (Annexure R-VIII), in terms of which, the last pay admissible to the petitioner was fixed at Rs. 46,800/- for the month of Janauary-2023. The reply also records an objection taken by respondent No.5 that work charge status establishment was available only in IPH & PW Departments. Petitioner having been regularly appointed on 12.01.1998, his pay should have been counted from 12.01.1998 & not from 01.01.1994. 3(ii) As against the above, learned counsel for the petitioner submitted that firstly the respondents till date have not communicated any order to the petitioner about his wrong fixation of pay during his service career or refixation of his pay or that his last pay drawn is to be taken at Rs. 46,800/- and not Rs.48,200/-, which he had actually drawn. No orders have been communicated by the respondents to the petitioner before revising his last drawn basic pay from Rs. 48,200/- to Rs. 46,800/-. The actions of the respondents, therefore, are illegal, in-violation of principles of natural justice and otherwise also non-est. Further on merits of the matter, it was 6 ( 2025:HHC:22879 submitted that the respondents have wrongly taken the financial upgradation/enhancement given to the petitioner w.e.f. 01.10.2012 under Himachal Pradesh Civil Service (Re-revision) Rules, 2012 as an additional benefit countable under the three financial upgradations/enhancements admissible under the ACP Scheme (4- 9-14). Placing reliance upon decision rendered in Sanjay Kumar Vs. State of H.P. & Ors.4, it was submitted that the Financial Upgradation-2012, cannot be taken as financial upgradation under the ACP Scheme. That being the legal position, the additional increment granted to the petitioner w.e.f. 08.10.2017 on his completing 14 years of service under the ACP Scheme was within the purview of the scheme, hence, respondents’ action of withdrawing the said benefit from the petitioner that too after his retirement and on that basic reducing his last pay drawn from Rs. 48,200/- to Rs. 46,800/- was illegal and arbitrary exercise. Prayer was accordingly made to direct the respondents to fix the pension of the petitioner by taking into consideration Rs.48,200/- as last pay drawn by the petitioner before his superannuation along with consequential retiral benefits. 4. I have heard learned counsel for the parties and considered the case file. 4 CWPOA No. 5536/2020 decided a/w connected matters on 01.11.2023 7 ( 2025:HHC:22879 4(i) It is a matter of record that the petitioner had participated in Limited Direct Recruitment (LDR) process for the post of Forest Guard. He emerged successful in the selection process and was accordingly appointed as Forest Guard w.e.f. 08.10.2003. 4(ii) It is also a matter of record that under ACP Scheme (4- 9-14), the petitioner was entitled to maximum of three additional increments/financial upgradations/enhancements/promotions. 4(iii) The respondents had released one additional increment to the petitioner on his completing four years of regular service w.e.f. 27.08.2009. The petitioner was granted financial upgradation/enhancement under Himachal Pradesh Civil Service (Re-revision) Rules, 2012 w.e.f. 01.10.2012. This has wrongly been construed by the respondents as an additional increment under the ACP Scheme (4-9-14). In Sanjay Kumar4, the question for determination was as to whether, pay revision or grant of grade pay under the Government order dated 01.10.2012 [Himachal Pradesh Civil Service (Re- revision) Rules, 2012] can be termed to be a financial upgradation so as to deny the benefit of financial upgradation under ACPS. The Court held that financial upgradation, if any, on account of pay revision/revision of grade pay cannot be a ground to deny benefit of financial upgradations under ACPS, which become due after 8 ( 2025:HHC:22879 completion of four, nine and fourteen years as per new ACPS. Relevant portion from the decision reads as under: - “9. Now question which needs to be determined in the instant proceedings as to “whether pay revision or grant of grade pay vide order dated 1.10.2012 can be termed to be a financial upgradation so as to deny the benefit of financial upgradation under ACPS. 10. Careful perusal of communication dated 7th July 2014 whereby old ACP scheme came to be replaced by new ACPS, clearly reveals that annul increment or general pay revision shall not be considered as financial upgradation for the purpose of benefit, if any, under ACPS. If it is so, there appears to be merit in the claim of the petitioners that they are entitled to the benefit of third financial upgradation after their having completed 14 years of service. At this stage, it would be apt to take note of para-5 of the afore letter, which reads as under: - “Moreover, the overriding objective on an assured career progression scheme is to ensure at least three financial up- gradations/ enhancements/ promotions to a regular employee in his entire service career. Therefore, in partial modification of earlier orders on ACP schemes it is directed that, once an employee has already got three enhancements / financial upgradations i.e. grant of progression under the new or old ACPS or promotion or any other financial enhancement except the annual increment or the general pay revision based on the pay commission, in fourteen years or more his/her entire service., thereafter, he will not be entitled for placement in next higher grade pay in the ACPS Scheme introduced vide FD’s instructions dated 9th August 2012. However, it is clarified that after availing three enhancements / upgradation/ promotion, an employee will be eligible to take the benefit of normal promotions available in his service career.” 11. Careful perusal of aforesaid instructions clearly reveals that an employee is granted three 9 ( 2025:HHC:22879 enhancements/upgradations/promotion, he/she shall not be eligible for grant of further benefit, if any, under ACPS, but in the case at hand, petitioners after being appointed as JBT though were given two benefits of financial upgradation under ACPS, first benefit was granted under old ACPS after their having completed eight years service, whereas second benefit was granted in their favour after their having completed nine years service under new ACPS and third benefit in terms of new ACPS, for which petitioners have already opted, is being denied on the ground that vide order dated 26.02.2013 grade pay of the petitioners has been enhanced w.e.f. 1.10.2012. However, as observed hereinabove, financial upgradation, if any, on account of pay revision/revision of grade pay cannot be a ground to deny benefit of financial upgradations under ACPS, which become due after completion of four, nine and fourteen years as per new ACPS. Though, it has been vehemently argued on behalf of the respondents/State that grade pay of the petitioners was enhanced, as a result of which, their pay was enhanced, but as has been taken note above, financial enhancement on account of annual increment or general pay revision, based on pay commission, is not to be considered while considering the case of an employee for grant of benefit of ACPS. Since, in the case at hand pay of the petitioners came to be enhanced on account of grant of grade pay, benefit of financial upgradation in terms of provision contained under ACPS cannot be denied. 12. True, it is that careful perusal of communication 26.02.2023, which has been relied heavily by the respondents, suggests that a government employee after rendering service of 4,9 and 14 years in a post or posts without any financial enhancement in the same cadre/post, if not promoted to higher level on account of non availability of a vacancy or non- existence of promotional avenue in the cadre, shall be granted the grade pay, which is next higher in the hierarchy of grade pay given in the schedule annexed to Revised Pay Rules, 2009 upto maximum grade pay of Rs.8900/- and on placement in the next higher grade pay in the hierarchy of grade pays after service of 4, 9 and 14 10 ( 2025:HHC:22879 years, but such benefit of re-revision of pay shall be treated as financial enhancement for the purpose of granting benefit under 4- 9-14 and 8-16-24-32 but there is nothing to dispute that vide notification dated 7th July 2014 (Annexure P5), it specifically came to be clarified that once an employee has already got three enhancements/ financial up-gradations i.e. grant of progression under the new or old ACPS or promotion or any other financial enhancement, except the annual increment or the general pay revision based on the pay commission, in fourteen years or more during his/her entire service will not be entitled for placement in next higher grade pay in the ACP Scheme introduced vide instructions dated 9th August 2012. It is quite apparent from perusal of aforesaid letter that financial upgradation, if any, on account of pay revision cannot be a ground to deny benefit under ACPS. Since pay of the petitioners came to be enhanced on account of enhancement in grade pay, benefit of financial upgradation in terms of ACPS cannot be denied. 13. Consequently, in view of the discussions made hereinabove, this Court finds merit in the instant petitions and accordingly same are allowed. Office order dated 3.08.2018 (Annexure A-8) is quashed and set aside and the respondents are directed to consider the case of the petitioners for grant of financial upgradation under ACPS (4-9-14) time scale/enhancement after their having completed 14 years of service at par with their counterparts from the due date. Since petitioners have been fighting for their rightful claim for years together, this Court hopes and trusts that needful shall be done in terms of the directions contained in the instant judgment expeditiously, preferably within a period of six weeks. Pending applications, if any, also stands disposed of.” In the instant case, the respondents had correctly understood the rule position and therefore had not taken into consideration the financial upgradation granted to the petitioner 11 ( 2025:HHC:22879 under Himachal Pradesh Civil Service (Re-revision) Rules, 2012 for considering and releasing the additional increment to him w.e.f. 08.10.2017 on completion of 14 years of service under ACP Scheme. 4(iv) Factual assertions of the petitioner of his having not been supplied with any order by the respondents taking away the benefit of additional increment granted to him w.e.f. 08.10.2017 has not been denied by the respondents. Record placed in the case file does not demonstrate any order/communication/office letter ever issued to the petitioner notifying him that his last pay drawn was wrongly fixed; is required to be refixed or that it has been reduced from Rs. 48,200/- actually drawn by the petitioner, to Rs.46,800/-. In this regard, it will be relevant to take note of Dulu Devi Vs. State of Assam & Ors.5 where in context of an uncommunicated dismissal/termination order, it was held that mere passing of an order of dismissal or termination would not be effective unless it is published and communicated to the officer concerned. If the order is passed, but merely kept in file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated. Relevant paras from the decision are as under: - 5 (2016) 1 SCC 622 12 ( 2025:HHC:22879 “15. The Constitution Bench Judgment of this Court in the case of State of Punjab vs. Amar Singh Harika,6, considered this aspect of the matter. Writing the judgment, His Lordship (Gajendragadkar, C.J.) held that mere passing of an order of dismissal or termination would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passes an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case on a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. The order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that mere passing of order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. 16. Similar view has been taken by this Court in the case of Union of India vs. Dinanath Shantaram Karekar7 where this Court observed: “9. Where the services are terminated, the status of the delinquent as a government servant comes to an end and nothing further remains to be done in the matter. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated.” Admittedly, the respondents had not communicated any order withdrawing additional increment given to the petitioner on completion of 14 years of service. Another significant factor is that all the aforesaid actions viz. withdrawing additional increment given to the petitioner on 08.10.2017, reduction in petitioner’s last pay drawn 6 AIR 1966 SC page 1313 7 (1998) 7 SCC 569 13 ( 2025:HHC:22879 etc. have been carried out by the respondents’ post-retirement of the petitioner. The petitioner stood retired on 31.01.2023. It is, thereafter, the respondents have carried out this entire exercise of withdrawing the additional increment given to him w.e.f. 08.10.2017 on completion of 14 years of service and then refixed his pay accordingly. Such actions cannot be said to be in consonance with the settled legal position and also the principles of natural justice. 5. In view of above, the writ petition is allowed. The respondents are directed to fix the pension of the petitioner by taking his last pay drawn for the month of January-2023 strictly in consonance with Annexure P-4 i.e. Rs.48,200/-, which the petitioner had actually drawn at the time of retirement. All retiral benefits including pension be also released to the petitioner by taking his last pay drawn for the month of January-2023 @ Rs. 48,200/-. This exercise be carried out within a period of six weeks. The due amount of payment, if delayed beyond six weeks, shall be paid with interest at the rate of 5% per annum till the date of its actual payment. The present writ petition is disposed of in above terms. Pending miscellaneous application(s), if any, shall also stand disposed of. Jyotsna Rewal Dua Judge 16th July, 2025(rohit)