IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 14598/2025 Decided on: 09.09.2025 Chuni Lal …Petitioner Versus Principal Secretary (Education) & Ors. .…Respondents. ………………………………………………………………………………. Coram Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the petitioner: Mr. Vaibhav Tanwar, Advocate. For the respondents: Mr. Rajat Chaudhary, Assistant Advocate General, for respondents No. 1 to 4. Mr. Tek Ram Sharma, Advocate, for respondent No.5. Jyotsna Rewal Dua , J Notice. Mr. Rajat Choudhary, learned Assistant Advocate General, accepts notice on behalf of the respondents. With the consent of learned counsel for the parties, the matter is heard at this stage. 2. The case set up by the petitioner is that he was made a regular Class-IV employee on 17.11.2003. He retired from service on 31.03.2015 after rendering ten years of regular service. His case for pension has not been considered rather it has been returned by 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 respondent No.5-Principal Accountant General on the ground that he had not exercised option for switching over to pension under the CCS (Pension) Rules, 1972 (Old Pension Scheme) within 60 days i.e. the time limit prescribed under office memorandum/notification dated 04.05.2023. Petitioner feeling aggrieved against the denial of pension to him, preferred this writ petition for grant of following substantive reliefs: - “(i) That a writ of certiorari may kindly be issued to quash and set aside communication dated 14.01.2025 (Annexure P-2) issued by respondent No.4 in the interest of justice. (ii) That a writ of mandamus may kindly be issued directing the respondents to pay pension to the petitioner 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 from the due date, after seeking his option afresh or in view of the option already exercise by the petitioner on 23.11.2024 along with the consequential benefits including arrears @9% per annum.” 3. Petitioner seeks pension under the CCS(Pension) Rules, 1972 (OPS) primarily in view of the decision rendered in Reshmo Devi Vs. State of H.P. & Ors.2 Relevant portion from the said decision reads as under: - “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 2 CWP No. 11004/2025 decided on 10.07.2025 a/w connected matters 3 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. 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 Scheme. A somewhat similar view that has been taken by this Court in a matter 4 coming from the Kerala High Court3, 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 31.03.20164. 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 3 Union of India Vs. A. Majeed Kunju, Writ Appeal No. 1135/2012, order dated 05.03.2013 (Ker.) 4 Regl. Provident Fund Commr. Vs. A. Majeed Kunju, 2016 SCC OnLine SC 1744 5 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 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.” 6 5. In view of above, this petition is disposed of by directing the respondents to consider the case of the petitioner for grant of 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.” Prima-facie, it appears that the facts of the instant case pleaded in the writ petition invite the application of directions issued in Reshmo Devi , however, this is an aspect, which is required to be examined by the respondents. 4. Hence, this writ petition is disposed of with direction to the respondents to consider the facts & case of the petitioner in accordance with law and keeping in view the decision rendered in Reshmo Devi2. In case, facts of petitioner’s case are found to be covered under the aforesaid decision, the directions issued in the 7 said decision shall mutatis mutandis apply to his case as well. The order so passed be also communicated to the petitioner. Pending miscellaneous application(s), if any, shall also stand disposed of. Jyotsna Rewal Dua Judge 9th September, 2025(rohit)