( 2025:HHC:22072 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 11004 of 2025 alongwith CWP No. 11005 of 2025, CWP No. 11007 of 2025, CWP No. 948 of 2025 and CWP No. 8678 of 2025. Decided on: July 10 , 2025 1. CWP No. 11004 of 2025 Reshmo Devi ...Petitioner Versus State of Himachal Pradesh & Ors. ...Respondents 2. CWP No. 11005 of 2025 Sudershna Devi ...Petitioner Versus State of Himachal Pradesh & Ors. ...Respondents 3. CWP No. 11007 of 2025 Gokal Ram ...Petitioner Versus State of Himachal Pradesh & Ors. ...Respondents 4. CWP No. 948 of 2025 Baldev Singh ...Petitioner Versus State of Himachal Pradesh & Ors. ...Respondents 5. CWP No. 8678 of 2025 Rasan Devi ...Petitioner Versus State of Himachal Pradesh & Ors. ...Respondents 2 ( 2025:HHC:22072 ) Coram: Ms. Justice Jyotsna Rewal Dua, Judge 1Whether approved for reporting? Yes. For the petitioner : Mr. R.L. Verma, Mr. Naresh Verma & Mr. Rajneesh K. Lal, Advocates, for the petitioners in respective petitions. For the respondents : Mr. Anup Rattan, Advocate General with Mr. L.N. Sharma, Additional Advocate General, for respondents-State. Mr. Tek Ram Sharma & Mr. Tara Chand Chauhan, Advocates for respondents- Accountant General Shimla in respective petitions. Jyotsna Rewal Dua, Judge Notice. Mr. L.N. Sharma, learned Additional Advocate General, Mr. Tek Ram Sharma & Mr. Tara Chand Chauhan, Advocates, appear and waive service of notice on behalf of respondents in respective petitions. With the consent of learned counsel for the parties, matters are taken up for disposal at this stage. CWP No. 11004 of 2025 2. Petitioner a retired Class-IV employee seeks a direction to the respondents to pay her pension under the Old Pension Scheme and the Central Civil Services (Pension) Rules, 1972 [in short ‘CCS 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 3 ( 2025:HHC:22072 ) (Pension) Rules, 1972] in accordance with the Notification dated 04.05.2023 and Office Memorandum of even date i.e. 04.05.2023. 3. Petitioner’s grievance is that respondents are not releasing her pension as per Notification dated 04.05.2023 under the Old Pension Scheme/CCS(Pension) Rules 1972 from the due date on the ground that petitioner had not exercised option under the Office Memorandum dated 04.05.2023 within the period stipulated therein. Learned Counsel for the petitioner submitted that petitioner who superannuated years ago was not aware about separate existence of Office Memorandum dated 04.05.2023 apart from Notification dated 04.05.2023 and that she was required to exercise option for claiming pension under the CCS(Pension) Rules, 1972 (Old Pension Scheme) as per Office Memorandum dated 04.05.2023 and that too within some defined time limit. 4. Consideration 4(i) On 04.05.2023, State Finance Department notified the Central Civil Services (Pension) (Himachal Pradesh Fourth Amendment) Rules, 2023, brought into force w.e.f. 01.04.2023. The notification amended Rule 2 of the CCS (Pension) Rules, 1972. As per notification, the amended rules were to apply to those Government servants as well, who were appointed substantively to the civil services and posts in connection with the affairs of the State 4 ( 2025:HHC:22072 ) of Himachal Pradesh during the period 15.05.2003 to 31.03.2023 covered under Contributory Pension Scheme (National Pension System) and opted to shift to the CCS (Pension) Rules, 1972. They were to get pensionary benefits under these rules subject to deposit of the Government contribution and dividend/return earned thereon, under the National Pension System to the State Government. Further, as per second proviso to Rule 2(g), the rules were to apply to the Government servants who had already retired or died in harness during 15.05.2003 to 31.03.2023, if such retired Government servants or eligible family members exercise their option to get the pensionary benefits under these rules from prospective date i.e. w.e.f. 01.04.2023. Respondents issued another office memorandum dated 04.05.2023, issuing instructions/SOPs. Clauses (i), (ii), (iii) and (vii) of the said office memorandum read as under: - “(i) An employee, who wishes to remain under the National Pension System, shall exercise an option, within sixty days from the date of issuance of these instructions, at Annexure-I, which shall be duly notarized and submitted to the Head of Office. Such employee(s), shall continue to be covered under the National Pension System (also known as Contributory Pension Scheme), The contributions (both employer's and employee's share) under the National Pension System, shall be deposited 5 ( 2025:HHC:22072 ) as per the Pension Fund Regulatory and Development Authority Regulations, till the retirement of employee(s). (ii) The Government employees who wishes to be covered under the Central Civil Services (Pension) Rules, 1972, also known as Old Pension Scheme, shall exercise an option, within sixty days from the date of issuance of these instructions, on the prescribed format at Annexure-II. An undertaking shall also be furnished by such employees on the prescribed format at Annexure- III. The 'option' and 'undertaking' as per the Annexure-II and AnnexureIII, shall be duly notarized and same will be submitted to the Head of Office. (iii) An Option once exercised by the Government employees, either opting for the Central Civil Services (Pension) Rules, 1972 or the National Pension System shall be final and irrevocable. If an employee fails to exercise an option within the stipulated period, it shall be deemed that he/ she wishes to be continued under the National Pension System. (iv) to (vi) ……………………………… (vii) Employees, who were covered under the National Pension System (NPS) and have already retired/ died, between the period 15.05.2003 to 31.03.2023 and who fulfil the eligibility criteria under the Central Civil Services (Pension) Rules, 1972, such retired employee and eligible family member of deceased employee, shall be entitled to pension from prospective date i.e. with effect from 01.04.2023, on exercising an option for the same on the prescribed format at Annexure-II and submission of an undertaking at Annexure-III, subject to deposit of the Government contribution and dividend/ return, till the 6 ( 2025:HHC:22072 ) date of withdrawal, to the State Government. The amount of Government contribution and dividend/return shall be deposited under the Receipt Head "0071 Contribution & Recoveries towards pension and other retirement benefit, 01 Civil, 101-Subscriptions and Contributions, 03-Accumulated Pension Wealth in respect of National Pension System Subscribers and 04- Accumulated dividend on Government Contribution of National Pension System employees converted into Old Pension Scheme." 4(ii). In Smt. Phoolmati Vs. State of Himachal Pradesh and others2, the petitioner though was eligible for pension and had exercised her option for availing pension under the Old Pension Scheme-CCS (Pension) Rules, 1972, but was not released pension on the ground that option exercised by her was not within the time set out in office memorandum dated 04.05.2023. The Court held that rigors of memorandum dated 04.05.2023, qua the period mentioned therein for the exercise of option cannot be construed in a harsh manner against the petitioner-Class-IV employee, as he would hardly be aware that any memorandum also stands issued by the Government, whereunder option is to be exercised within some set timelines. Respondents were directed to process petitioner’s option 2 CWP No. 7097 of 2024, decided on 31.12.2024. 7 ( 2025:HHC:22072 ) by treating it as validly exercised. Relevant part of the judgment reads as under: - “4. Be that as it may, in view of the fact that the petitioner retired as a Class-IV employee, from the Agriculture Department of the Government of Himachal Pradesh, this Court is of the considered view that the rigors of memorandum dated 04.05.2023 qua the period mentioned therein for the exercise of option, cannot be construed in a harsh manner against an incumbent like the petitioner as a Class-IV employee would hardly be knowing that any memorandum also stands issued by the Government and an act has to be performed by her, in the light of said memorandum. The least that is expected from an employer with regard to Class-III and Class-IV employees is that they should inform such like employees of the memorandum and seek their options, within some reasonable time. If they do not do so within reasonable time, then the Department can proceed in the matter, in accordance with law.” Kamaljeet Kaur Sidhu Vs. State of H.P. and Ors.3 was a case where the petitioner, otherwise, eligible for pension under the CCS (Pension) Rules, had not been granted pension on the ground of her having exercised option beyond the timelines stipulated in office memorandum dated 04.05.2023. The respondents-State took a fair stand that option exercised by the petitioner (therein) even 3 CWP No. 15312 of 2024 decided on 04.01.2025 8 ( 2025:HHC:22072 ) though belatedly, would be processed and on completion of requisite formalities by both the parties, due and admissible pension shall be released to her. 4(iii) Petitioner a Class-IV employee had superannuated on 31.05.2016 that is much prior to the issuance of Notification dated 04.05.2023 and Office Memorandum dated 04.05.2023. She cannot reasonably be expected to be aware about the existence of Notification dated 04.05.2023 and Office Memorandum dated 04.05.2023 or that she is required to exercise option under the Office Memorandum dated 04.05.2023 for staking claim upon pension which otherwise had become admissible to her under the CCS (Pension) Rules, 1972 in view of Notification dated 04.05.2023. Furthermore, pension is right bestowed upon the petitioner for the service rendered by her. Once such right gets activated by issuance of Notification dated 04.05.2023, the benefits flowing therefrom cannot be denied to the petitioner for want of her having exercised option within 60 days from the date of issuance of Office Memorandum dated 04.05.2023. 9 ( 2025:HHC:22072 ) It is well settled that pension is not a bounty. In R.C. Gupta & Ors. vs. Regional Provident Fund Commissioner, EPFO & Ors.4 the appellant-employees’ employer had contributed 12% of their actual salary (not restricted to the statutory ceiling) to the Provident Fund, and the employees sought pension benefits on this higher salary. The authorities denied this, citing a cut-off date under the proviso to Clause 11(3) of the Pension Scheme. The Hon’ble Supreme Court in paragraph 7, clarified that the dates mentioned in the proviso – such as the scheme’s commencement or when salary exceeds the ceiling – are only for calculating pensionable salary, not as cut-off dates for exercising the option to contribute on a higher salary. The Court emphasized that a beneficial social welfare scheme should not be defeated by technicalities, especially where actual salary contributions had already been made, thereby upholding the welfare intent of the scheme. The Court held as under:- “7. Reading the proviso, we find that the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut-off dates to determine the eligibility of the employer-employee to indicate their option under the proviso to Clause 11(3) of the Pension 4 (2018) 14 SCC 809 10 ( 2025:HHC:22072 ) Scheme. A somewhat similar view that has been taken by this Court in a matter coming from the Kerala High Court5, wherein the Special Leave Petition (C) No.7074 of 2014 filed by the Regional Provident Fund Commissioner was rejected by this Court by order dated 31.03.20166. A beneficial Scheme, in our considered view, ought not to be allowed to be defeated by reference to a cut-off date, particularly, in a situation where (as in the present case) the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of Rs.5,000/- or Rs.6,500/- per month, as the case may be. 8. A further argument has been made on behalf of the Provident Fund Commissioner that the appellant-employees had already exercised their option under paragraph 26(6) of the Employees' Provident Funds Scheme. Paragraph 26(6) is in the following terms: 26. Classes of employees entitled and required to join the fund . – (1) – (5) xxx xxx xxx (6) Notwithstanding anything contained in this paragraph, an officer not below the rank of an Assistant Provident Fund Commissioner may, on the joint request in writing, of any employee of a factory or other establishment to which this Scheme applies and his employer, enroll such employee as a member or allow him to contribute more than six thousand five hundred rupees of his pay per month if he is already a member of the fund and thereupon such employee shall be entitled to the benefits and shall be subject to the conditions of the fund, provided that the employer gives an undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employee. 9. We do not see how exercise of option under paragraph 26 of the Provident Fund Scheme can be 5 Union of India vs. A. Majeed Kunju, Writ Appeal No. 1135 of 2012, order dated 5.3.2013(Ker). 6 Regl. Provident Fund Commr. vs. A. Majeed Kunju, 2016 SCC OnLine SC 1744. 11 ( 2025:HHC:22072 ) construed to estop the employees from exercising a similar option under paragraph 11(3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under paragraph 26 of the Provident Scheme is inevitable. Exercise of the option under paragraph 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated. 10. The above apart in a situation where the deposit of the employer's share at 12% has been on the actual salary and not the ceiling amount, we do not see how the Provident Fund Commissioner could have been aggrieved to file the L.P.A. before the Division Bench of the High Court. All that the Provident Fund Commissioner is required to do in the case is an adjustment of accounts which in turn would have benefitted some of the employees. At best what the Provident Commissioner could do and which we permit him to do under the present order is to seek a return of all such amounts that the concerned employees may have taken or withdrawn from their Provident Fund Account before granting them the benefit of the proviso to Clause 11(3) of the Pension Scheme. Once such a return is made in whichever cases such return is due, consequential benefits in terms of this order will be granted to the said employees.” 5. In view of above, this petition is disposed of by directing the respondents to consider the case of the petitioner for grant of 12 ( 2025:HHC:22072 ) pension under the Old Pension Scheme and the CCS (Pension) Rules, 1972 in terms of Notification dated 04.05.2023 and Office Memorandum dated 04.05.2023 within a period of four weeks. While considering the case, observations made above shall be kept in view. The case of the petitioner for grant of pension under the Old Pension Scheme shall not be rejected only for the reason that she could not exercise her option within the cut-off period mentioned in the Office Memorandum dated 04.05.2023. Copy of decision so taken be communicated to the petitioner. CWP Nos. 11005, 11007, 948 and 8678 of 2025 Learned counsel for the petitioners appearing in these matters submitted that their cases are covered by the decision rendered in the above writ petition being CWP No. 11004 of 2025 (Reshmo Devi vs. State of Himachal Pradesh & Ors.) . Hence, there shall be a direction to the respondents to consider the cases of the petitioners in light of directions issued in the aforesaid writ petition. In view of the above, all the writ petitions stand disposed of. Pending miscellaneous application(s), if any, also stand disposed of. Jyotsna Rewal Dua, Judge July 10 , 2025 (PK)