2025:HHC:2311 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP Nos. 1061 & 1062 of 2021 Reserved on: 21.6.2025 Date of decision : 17.07.2025. 1. CWP No. 1061 of 2021 Shishu Pal ...Petitioner. Versus State of H.P. & others ...Respondents. 2. CWP No. 1062 of 2021 Subhash Chand Rana ….Petitioner Versus State of H.P. & others ….Respondents Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1Yes For the petitioners : Mr. Dilip Sharma, Sr. Advocate with Mr. Manish Sharma, Advocate. For the respondents : Mr. Anup Rattan, Advocate General with Mr. Amandeep Sharma, Addl. A.G. for respondents No. 1 to 3. Mr. Naveen K. Bhardwaj, Advocate, for respondent No.4. Mr. Tek Ram Sharma, Advocate, for respondent No.5. 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- 2025:HHC:2311 Satyen Vaidya, Judge: These petitions were heard together with CWP Nos. 3057 of 2020, CWP No. 4385 of 2020, CWP No. 5001 of 2020, CWP No. 6304 of 2021 and CWP No. 6842 of 2021 on 21.6.2025. However, these two petitions are being decided separately by a common judgment for the reason that at the time of dictating the judgment, it has been found that the facts in these two petitions are identical and do not involve all the questions similar as in the rest of the bunch. 2. For the sake of brevity, the prayers made by the petitioner in CWP No. 1061 of 2021 only are reproduced hereunder:- “i) That the impugned action of respondent department of denying the benefit of old pension scheme to the petitioner by treating his absorption order dated 17.5.2010 Annexure P-1, as post 15.5.2003 “fresh appointment” and wiping out his pre-absorption service w.e.f. 8.8.1990, may kindly be declared to be illegal and unconstitutional being in violation of his conditions of absorption as also in violation of Articles 14 and 16 of the Constitution of India. ii) That if it is construed that opinion of respondent No.1 reflected in letter dated 8.6.2011, Annexure P- 9, has the effect of denying to the petitioner his pre- -3- 2025:HHC:2311 absorption service, in that event the said opinion may kindly be held to be in violation of the provisions of Article 14 and 16 of the Constitution and down as not applicable the petitioner, not being a post 15.5.2003 “fresh appointment” but having been “absorbed in service” having pre-absorption regular service w.e.f. 8.8.1990. iii) That the petitioner may be held entitled to the pensionary benefits in accordance with CCS (Pension) Rules, 1972 on his retirement w.e.f. 28.2.2019, by taking into account his qualifying service w.e.f. 8.8.1990, with all consequential benefits.” 3. Except for the variations in few dates, the prayers made in CWP No. 1062 of 2021 are peri-metria the same. 4. Brief facts for adjudication of these petitions are that the petitioners were regular employees of H. P. Agro Industrial Packaging India Ltd. (for short ‘AIPIL’). They had been working as Operator (Mechanics) in AIPIL in the pay scale of Rs. 950-1800 since 1990. 5. The services of the petitioners were placed on secondment basis as Junior Technicians in the Directorate of Horticulture, Government of Himachal Pradesh w.e.f. 23.5.2009. The petitioners were permanently absorbed in -4- 2025:HHC:2311 the Department of Horticulture on 17.5.2010. The petitioners retired in the year 2019. 6. The petitioners are claiming the benefits of CCS (Pension) Rules, 1972 (for short ‘1972 Rules), by claiming their entire services, from the date of joining AIPIL, towards qualifying service. 7. The respondents on the other hand have denied the eligibility of petitioners for coverage under 1972 Rules on the premise that their services will be counted from the date of their absorption in the Department of Horticulture. According to the respondents, the 1972 Rules were amended in Himachal Pradesh w.e.f. 15.5.2003 and the said rules were made inapplicable to state government servants appointed after 15.5.2003. It is also the case of the respondents that vide notification dated 17.8.2006, Himachal Pradesh Civil Services Contributory Pension Rules, 2006 (for short, “2006 Rules”) were brought into force with retrospective effect from 15.5.2003 and all such government servants, who were appointed after 15.5.2003 were governed by such rules. The respondents have also placed reliance on Office Memorandum dated 13.9.2006. -5- 2025:HHC:2311 8. The precise defence of the respondents is that the petitioners were appointed on 17.5.2010 i.e. the date of their absorption and hence would be covered by the 2006 Rules. 9. The petitioners, on the other hand have raised a specific plea that as per the terms of their absorption the service rendered by them in AIPIL was to be treated as qualifying service for all intents and purposes in the Department of Horticulture and the terminal benefits will were to be paid by the Horticulture department. 10. According to petitioners, their absorption cannot be construed to be a fresh appointment for absorption is not a mode of appointment and moreover, the absorption orders clearly carried the stipulation, as noticed above. 11. Respondents No. 1 to 3 by way of their reply have submitted that 1972 Rules would not apply to the petitioners as they were permanently absorbed on 17.5.2010. According to the respondents, Notification dated 15.5.2003 amending 1972 Rules and Office Memorandum dated 13.9.2006 bars the petitioners from claiming the benefits under 1972 Rules. It is further -6- 2025:HHC:2311 submitted that the petitioners were deployed on secondment basis in the Horticulture Department in the year 2009. Since they were entitled for benefits under Contributory Pension Rules, 2006, the respondents had allowed the financial benefits under the said scheme to the petitioners. 12. I have heard learned counsel for the parties and have also gone through the record carefully. 13. The terms and conditions of absorption of the petitioners in Directorate of Horticulture, issued vide office order dated 17.5.2010 read as under:- “1. The pay of the officials in the Department of Horticulture will be Fixed in accordance with the pay scale (Pre-revised) shown against their names. However, the pay last drawn in AIPIL will be protected, provided they opt for the same. 2. The service rendered by the employees in AIPIL will be treated as qualifying service for all intents and purpose in the department of Horticulture based on option and terminal benefits will not be paid by the parental employer and will be passed on to the department. 3. The employer's contribution of CPF will be credited to the Government account by invoking the provisions of CPF of (India) Rules -7- 2025:HHC:2311 and employee's subscription will be credited to employee's GPF account to be opened in Government Department immediately on appointment without waiting for one-year service conditions. 4. The official concerned will have no right to claim seniority in the Department on the basis of service rendered is AIPIL and their seniority in the Department of Horticulture will be determined afresh. 5. The unutilised earned Leave /Half Pay Leave in the previous institute shall be credited into the account of concerned employee. 6. After absorption in the Department of Horticulture the services of the officials shall be governed and regulated under relevant Rules/regulation in Govt. 7. The permanent absorption of these employees shall take effect from the date of submitting the fresh joining report in the Department. In case the above terms and conditions are acceptable to them they may submit joining report in the department of Horticulture on the above posts and scales, within one month.” (Emphasis added) 14. Condition No.2, as reproduced above makes it explicitly clear that the services rendered by the petitioners in AIPIL were to be treated as qualifying service for all intents and purposes in the Department of Horticulture -8- 2025:HHC:2311 and payment of terminal benefits would also be the liability of said department. 15. Learned Advocate General would contend that the services of the petitioners in AIPIL were not governed under the 1972 Rules and since the AIPIL was not a pensionable establishment, therefore, they are not entitled for benefits of such rules by application of Rule 14 (2) of 1972 rules, which reads as under:- “For the purposes sub-rule (1), the expression “Service” means service under the Government and paid by that Government from the Consolidated Fund of India or a Local Fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government.” 16. The contention so raised cannot be accepted for the reason that Rule 14 (2) of 1972 Rules also does not exclude the service in a non-pensionable establishment absolutely. The exception has been carved out in respect of the service in a non-pensionable establishment to be treated as qualifying service at the option of the government. -9- 2025:HHC:2311 17. In the facts of instant case, the government absorbed the services of the petitioners by exercising its option to treat the services of the petitioners in AIPIL as qualifying service for all intents and purposes. 18. The term qualifying service has been defined in Section 3 (q) of 1972 Rules. Qualifying service means service rendered while on duty or otherwise, which shall be taken into account for the purpose of pension and gratuity admissible under 1972 rules. 19. Thus, when the respondents while absorbing the petitioners in the Department of Horticulture had expressly agreed to treat their services in AIPIL as qualifying service, they cannot now turn around to say that the services of the petitioners in AIPIL do not qualify for pension and gratuity. 20. Even otherwise by implications of section 4 of 1972 Rules, a government servant transferred permanently to a service or post to which the said rules apply from a post or service to which the rules do not apply becomes subject to these rules automatically unless such government servant opts otherwise. AIPIL was a government company. The petitioners being employees of a -10- 2025:HHC:2311 government company can be termed to be government servant because one who is paid by the government is a government servant and in case of a government company like AIPIL, it cannot be said that its employees were not being paid by the government. 21. In view of the express terms and conditions of the absorption of the petitioners, the respondents are not justified in applying the provisions of notification dated 15.5.2003 and Office Memorandum dated 13.9.2006 in the case of the petitioners. 22. Learned Advocate General has also contended that the claims of the petitioners were barred by delay and laches. This contention also needs to be rejected for the reason that the petitioners retired in the year 2019 and the instant petitions were preferred by them in the year 2020. Even otherwise, being a claim for pensionary benefits, the petitioners have recurring cause of action. 23. In light of above discussions, the petitions are allowed. The action of the respondents in denying the benefits of 1972 Rules to the petitioners is held violative of Articles 14 and 16 of the Constitution of India. The -11- 2025:HHC:2311 petitioners are held entitled to the pensionary benefits in accordance with CCS Pension Rules 1972 immediately w.e.f. the date of their respective retirement, by taking into account their qualifying service from the date they joined AIPIL as regular employees. The petitioners shall also be entitled to all consequential benefits. The respondents No. 1 to 3 shall complete the entire exercise for implementing this judgment within eight weeks, failing which, the petitioners shall be entitled to interest at the rate of 9% per annum on the arrears of financial benefits, as have accrued to them. 24. The petitions are disposed of. Pending applications, if any, also stand disposed of. (Satyen Vaidya) 17th July, 2025. Judge (kck)