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2025 DAILYLAW 3507 (HP)

Roshan Lal v. State of H. P.

2025-09-17

Satyen Vaidya

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioner has prayed for following substantive relief:- “It is, therefore, respectfully prayed that this application may kindly be allowed with the following reliefs:- 1. By setting aside the impugned annexure P-7 dated 12.03.2009 & P-10 dated 05.11.2012 and the respondents may kindly be directed to grant the pension under the CCS (Pension) Rules, along with all the consequential benefits to the petitioner on the same analogy as has been granted to late Sh. Gurdittu Ram.” 2. The petitioner was an employee of Himachal Pradesh General Industries Corporation Ltd. (HPGIC). From 1972 to 1997, petitioner had rendered services as a Driller on daily wage basis. His services were regularized w.e.f. 01.01.1998. 3. The services of petitioner were taken on secondment basis in the department of Industries (DoI) Himachal Pradesh in the year 2002 and finally he was absorbed permanently in the same department w.e.f. 11.06.2004 against the post of Chowkidar. 4. Petitioner is seeking the benefit of pension under the CCS (Pension) Rules, 1972 by counting his entire regular services with HPGIC. The petitioner is basing his claim on the conditions of his permanent absorption in DoI as detailed in the office order dated 11.01.2004, which reads as under:- “3. The benefit of past services for the purpose of pay protection and pension etc. shall be granted in the case if he will deposit the employer share into Consolidated Fund of the State and employee share into General Provident Fund without waiting for one year service condition in accordance with Rule 38 of the CPF Rules. 4. Any other terminal benefit received by him from his parent office will have also to be deposited into Consolidated Fund of the State.” 5. The petitioner was to retire on 31.03.2009, however, a few days before i.e. on 12.03.2009, the respondents issued office order declining the entitlement of petitioner to the benefits under CCS (Pension) Rules, 1972. 6. The petitioner had challenged the office order dated 12.03.2009 by way of CWP No. 4046 of 2011 before this Court seeking further direction to the respondents to grant pensionary benefits to the petitioner from due date. The said petition was disposed of by this Court on 20.07.2012 in following terms:- “6. 6. The petitioner had challenged the office order dated 12.03.2009 by way of CWP No. 4046 of 2011 before this Court seeking further direction to the respondents to grant pensionary benefits to the petitioner from due date. The said petition was disposed of by this Court on 20.07.2012 in following terms:- “6. In these circumstances, Annexure P-14 is quashed and set aside with this direction to the 1st respondent to reconsider the case of the petitioner in consonance with clause-3 of Annexure P-5, within a period of one month from the date when the copy of this order is produced before him. Needless to say that the consideration will be on the basis of the established legal position. While considering this, the 1st respondent will also take into consideration the recommendations of the Departmental Absorption Committee for the purposes of absorption of Class-IV employees, these recommendations obviously would be detailed recommendations. Before parting, I may note that it pains me to send the case for reconsideration again as the petitioner has been fighting tooth and nail since the last more than six years. Petition disposed of. No order as to costs. All miscellaneous applications are disposed of.” 7. Though, the aforesaid judgment was challenged by the respondents by filing LPA, however, during the pendency of said appeal, the Additional Chief Secretary vide order dated 05.12.2012, Annexure A-10 rejected the case of petitioner, hence this petition. 8. The case of the petitioner is that he had completed tenure of 11 years and three months of regular service before his retirement on 31.03.2009. The petitioner was permanently absorbed in the department of Industries with the condition that he would be granted the benefit of past service for the purpose of pay protection and pension etc., provide he deposited employer share of CPF into Consolidated fund of the State and employees share into General Provident Fund. 9. Petitioner is stated to have complied with all the terms and conditions of the order by which he was permanently absorbed in Industries Department. 10. Respondent No.1 and 3 have filed their joint reply. The factual aspect of the matter has not been denied. 9. Petitioner is stated to have complied with all the terms and conditions of the order by which he was permanently absorbed in Industries Department. 10. Respondent No.1 and 3 have filed their joint reply. The factual aspect of the matter has not been denied. Respondents No.1 and 3 have raised contest on the ground that the date of permanent absorption of petitioner i.e. 11.06.2004 was the initial date of appointment of petitioner and thus, he was disentitled to get benefit of CCS (Pension) Rules, 1972 in terms of H.P. Civil Services Contributory Pension Rules, 2006 notified vide notification dated 17.08.2006 and instructions issued vide Finance (Pension Department) office memorandum dated 13.09.2006. It has been alleged that the aforesaid Rules and notification had retrospective operation w.e.f. 14.05.2003 from which date the CCS (Pension) Rules 1972 had been made inapplicable to the employees appointed after the said date. 11. It is further the case of the respondents that the HPGIC was covered under the Contributory Provident Fund Scheme and thus, the services of the petitioner with the said Corporation could not be counted as qualifying service. 12. I have heard learned counsel for the parties and have also gone through the entire record carefully. 13. Condition Nos. 3 and 4 of the office order whereby the petitioner was permanently absorbed in DoI make it explicitly clear that the services rendered by the petitioner in HPGIC were to be considered for grant of benefit of pay protection and pension etc., subject to certain conditions. It is not the case of the respondents that the petitioner had failed to fulfill the conditions stipulated in the absorption letter. Petitioner has specifically averred that on his absorption; he had deposited the employers share of CPF in the Government Treasury and the employees share in General Provident Fund. He was also allotted GPF number. These averments have not been specifically denied by the respondents in their reply. Rather, it has been sought to be explained that GPF of petitioner was inadvertently deducted. 14. Since, the petitioner was absorbed with specific conditions as detailed above, the respondents are estopped from subsequently revoking the benefits arising therefrom more particularly when the petitioner was placed in irretrievable position. Letter revoking the aforesaid benefit was issued just a few days before the date of retirement of petitioner on 31.03.2009. 15. 14. Since, the petitioner was absorbed with specific conditions as detailed above, the respondents are estopped from subsequently revoking the benefits arising therefrom more particularly when the petitioner was placed in irretrievable position. Letter revoking the aforesaid benefit was issued just a few days before the date of retirement of petitioner on 31.03.2009. 15. Even otherwise, it cannot be said that there was absolute bar for grant of benefits under the CCS (Pension) Rules 1972 to the employees whose services were taken over in the State Government from the establishment in which the 1972 Rules were not applicable. Rule 14(2) of the 1972 Rules 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 above noticed provision clearly reveals that an 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. 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 HPGIC as qualifying service for all intents and purposes. 18. The term qualifying service has been defined in Section 3 (q) of 1972 Pension 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 petitioner in the Department of Industries had expressly agreed to treat his past service as qualifying service, they cannot turn around to say that the services of the petitioner in HPGIC did 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. HPGIC was a government company. 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. HPGIC was a government company. The petitioners being employees of a 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 HPGIC, 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. In light of above discussion, the petition is allowed. Office order dated 12.03.2009, Annexure P-7 and Annexure P-10 dated 05.11.2012 are quashed and set aside. Petitioner is held entitled to pensionary benefits in accordance with CCS (Pension) Rules, 1972 immediately w.e.f. the date of his retirement by taking into account his qualifying service from the date petitioner had joined HPGIC as regular employee; the petitioner shall also be entitled to all consequential benefits. The respondents shall complete the entire exercise for implementing this judgment within eight weeks failing which the petitioner shall be entitled to interest @9% per annum on the arrears, if any, of financial benefits as may accrue to him. 23. Petition is accordingly disposed of, so also, the pending applications, if any.