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2025 DAILYLAW 3582 (HP)

Panch Ram v. State of H. P.

2025-09-19

Jyotsna Rewal Dua

body2025
JUDGMENT : Jyotsna Rewal Dua, Judge Petitioner, presently aged 63 years, retired on 31.10.2022 after rendering about twenty years of service in the respondent-Technical Education Department. Prior to that, he had also served the State Forest Corporation for about twelve years on daily wage basis. The respondents have declined to grant him pension, hence, the grievances. 2. Heard learned counsel for the parties and considered the case file. 3. The case. 3(i) Petitioner was engaged on daily wage basis in the State Forest Corporation during the year 1990. He continued to serve the State Forest Corporation. It appears that in the year 2002, petitioner, alongwith some other daily wage workers, was declared as surplus. In view of the orders passed by respondent No.1 (Principal Secretary Technical Education, State of Himachal Pradesh) on 20.07.2002 and by the State Forest Corporation on 24.08.2002, petitioner was appointed in the respondent-Technical Education Department under office memo dated 09.09.2002 (Annexure P-1). 3(ii) In terms of office memo dated 09.09.2002, petitioner was appointed as Chowkidar on temporary basis in ITI Shillai in the pay scale of Rs.2640-3120 alongwith all allowances released by the State of Himachal Pradesh. Services of the petitioner were to remain on probation for two years from the date of taking over the charge of the post. Petitioner was to join his duties by 16.09.2002. 3(iii) Petitioner was relieved from the State Forest Corporation on 16.09.2002, the same day he joined the duties in the respondent-Technical Education Department. 3(iv) Petitioner retired from service on attaining the age of superannuation on 31.10.2022. He had rendered more than twenty years’ of service in the respondent-Technical Education Department. He has not been paid pension. The substantive relief prayed by the petitioner reads as under:- “(i) That the respondents may be ordered to pay pension to the petitioner w.e.f. the date he was retired from service, with all consequential benefits.” 3(v) Respondents have justified denying pension to the petitioner on the ground that petitioner had served with them on secondment basis w.e.f. 16.09.2002 to 12.05.2017. According to the respondents, petitioner was permanently absorbed and made regular employee in the respondent- Technical Education Department only on 13.05.2017. Petitioner had served on regular basis w.e.f. 13.05.2017 to 31.10.2022. His regular service fell short of requisite ten years of qualifying service for purpose of pension, hence, pension was not released to the petitioner. According to the respondents, petitioner was permanently absorbed and made regular employee in the respondent- Technical Education Department only on 13.05.2017. Petitioner had served on regular basis w.e.f. 13.05.2017 to 31.10.2022. His regular service fell short of requisite ten years of qualifying service for purpose of pension, hence, pension was not released to the petitioner. In support of above stand, learned Deputy Advocate General also invited attention to an office order dated 25.03.2003 (Annexure R/2), relevant portion of the order reads as under:- “OFFICE ORDER In the supersession of this office letter no. 3007-09 dated 9.9.2002 the services Shri Panch Ram, Chowkidar working in the office of the Divisional Manager, H.P. State Forest corporation Ltd. Forest Working division, Nahan are hereby requisitioned on secondment basis in the Department of Technical Education Vocational & Industrial Training, H.P. Sundernagar at Industrial Training Institute, Shillai against the post of Peon on the following terms and conditions: 1. PERIOD OF SECONDMENT The period of secondment shall be one year commencing from the date of relieving of the official from the parent department and shall further be extended for a period of one year on the request of the borrowing organization no extension in the period of Secondment shall be permissible beyond the period of three year. However the undersigned reserve the right to terminate his secondment without assigning any reason. 2. PAY During the period of secondment Sh. Panch Ram will draw the pay of the post held by him in the parent department. He will not get any other deputation/secondment allowance as per order issued by the Finance Deptt… 3. DEARNESS ALLOWANCES Sh. Panch Ram, will be entitled to DA under the rules of the parent deptt. 4. LOCAL ALLOWANCE LIKE CA & HRA During the period of secondment Sh. Panch Ram, Chowkidar will draw these allowances according to the rules applicable in the borrowing deptt. 5. JOINING TIME, PAY & TRANSFER TRAVELLING ALLOWANCE He will be entitled to transfer TA and joining time both on joining the post on secondment and on reversion there from to the parent deptt. under the rules of the Borrowing Deptt. and the expenditure there to shall be borne by the borrowing deptt. 6. TA FOR JOURNEY ON DUTY DURING THE PERIOD OF SECONDMENT To be regulated under the rules of the borrowing department. 7. under the rules of the Borrowing Deptt. and the expenditure there to shall be borne by the borrowing deptt. 6. TA FOR JOURNEY ON DUTY DURING THE PERIOD OF SECONDMENT To be regulated under the rules of the borrowing department. 7. LEAVE & PENSION During the period of secondment he will remain subject to pension if available and leave rules applicable to him before proceeding on secondment ” Learned Deputy Advocate General submitted that petitioner’s engagement in the respondent-Technical Education Department had been purely on secondment basis w.e.f. 16.09.2002 to 12.05.2017, hence this period cannot be counted towards qualifying service for the purpose of pension. This is otherwise also the pleaded defence of the respondents. According to the respondents, till the time petitioner served on secondement basis with them, he remained a permanent employee of his parent organization i.e. State Forest Corporation; Petitioner became a permanent employee of respondent-Technical Education Department only on his permanent absorption i.e. 12.05.2017, therefore, petitioner’s claim for pension cannot be forced upon respondents. Relevant portion of reply reads as under:- “iv) That it is respectfully submitted that the petitioner had served in the department w.e.f. 16.09.2002 to 12.05.2017 on secondment basis and 13.05.2017 to 31.10.2022 on regular basis. That the matter in order to grant the pensionary benefits in the similarly situated case of Sh. Mehar Singh, Chowkidar, Govt Industrial Training Institute Delath was taken up with the Government and the Govt vide letter dated 30.09.2023, Annexure R-3 has directed the following:- "The matter has been examined in consultation with the Finance Department. The Finance Department has advised that as per the existing rules/instructions, an employee, who is on secondment with the Govt. Department, remains permanent employees of his parent organization until he is permanently absorbed. Therefore, the past service benefits, till permanent absorption in Government Department, shall be payable by his parent organization in accordance with relevant Bye laws/Service Rules as applicable in the said organization." 4. Consideration I am not in agreement with the defence taken by the respondents for denying pension to the petitioner. 4(i) Firstly, it is to be seen that petitioner was appointed in the respondent-Technical Education Department on 09.09.2002 in a regular pay scale admissible to Class-IV employees. All allowances released by the State of Himachal Pradesh for the post in question were also payable to the petitioner under the appointment order. 4(i) Firstly, it is to be seen that petitioner was appointed in the respondent-Technical Education Department on 09.09.2002 in a regular pay scale admissible to Class-IV employees. All allowances released by the State of Himachal Pradesh for the post in question were also payable to the petitioner under the appointment order. Though the appointment of the petitioner was termed as temporary, but was admittedly against a substantive post. The typed copy of relevant portion of petitioner’s appointment order (Annexure P-1) (as placed on record with the writ petition), reads as under:- “OFFICE OF THE PRINCIPAL INDUSTRIAL TRAINING INSTITUTE NAHAN, DISTT. SIRMOUR, H.P. No. ITI/Nahan (Shillai)Est/2002-3007 Dated: 09.09.02 To Sh. Panch Ram s/o Sh. Tulsi Ram, Vill. Panjha, P.O. Milla, Tehis Shillai, Distt. Sirmour. Subject: Regarding filling up the vacant posts from Surplus pool. Memo On the subject cited above, as per the office letter No.EDN(TE) A(1)5/2002 dated 20.07.2002 issued from the office of Under Secretary and in continuation of letters No.3288-90 and 3301-03 dated 24.08.2002 from the office of Divisional Manager, H.P. State Forest Corporation, Division Nahan, vide which names of surplus employees have been sponsored, you are appointed as Chowkidar on temporary basis in the ITI Shillai, in the pay scale of Rs.2640-3120 alongwith other allowances, on the following conditions: 1. You have to produce your educational/ eligibility certificates and date of birth in original at the time of joining the post and attested copies of the same ate to be given in the office. 2. You can be posted at any place in Himachal Pradesh. 3. You have to do the work as assigned by the competent authority in addition to the duties of Chowkidar. 4. The appointment can be finished without any notice by either of the parties. The undersigned reserves the right to terminate services of the appointee at any time or before one month, without any notice and can repatriate you to your parent department. 5. You will be on probation for two years from the date of taking over the charge of the post and in case any deficiency is found in your work and conduct then the probation period can be extended or you can be sent to the parent department. 6. The conditions of service will be as per the rules and orders issued from time to time. 6. The conditions of service will be as per the rules and orders issued from time to time. In case of acceptance of all the above conditions please submit your joining at ITI Shillai by 16.09.2002 otherwise the appointment will be treated as cancelled. Sd/- Principal ITI Nahan, H.P” Significantly, the above appointment order does not term petitioner’s appointment in the respondent- Technical Education Department to be on secondment basis. Holistically viewed, the appointment order of the petitioner cannot qualify as an appointment on secondment basis. 4(ii) Secondly, even if, office order dated 25.03.2003 [extracted in para 3(v)] relied upon by the learned Deputy Advocate General, is taken into consideration, then also in terms of said order, period of petitioner’s deployment on secondment basis was to be only for one year, commencing from the date of his relieving from the parent department and further extendable by one year at the request of borrowing organization with no extension permissible in the period of secondment beyond the period of three years. Petitioner was appointed in the respondent-Technical Education Department on 16.09.2002 with approval of respondent No.1. One year period ended on 15.09.2003. It is not the case of the respondents that so called secondment period of the petitioner was ever extended or that petitioner was repatriated to his parent department after three years’ of service. It is an admitted factual position that petitioner continued to render his services with respondent-Technical Education Department eversince 16.09.2002. Therefore, even beyond the period of one year i.e. after 15.09.2003 or beyond the period of three years i.e. after 15.09.2005, petitioner has more than ten years of qualifying service to his credit till his superannuation on 31.10.2022. Respondents cannot refuse paying due and admissible pension to the petitioner by invoking frivolous factual pleas in order to deny pension to an employee who has worked for over twenty years with them. 4(iii) At this stage, it will also be appropriate to refer to Rules 13 & 14 of the Central Civil Services (Pension) Rules, 1972 (Old) on the subjects of ‘Commencement of qualifying service’ and ‘Conditions subject to which service qualifies’:- “13. 4(iii) At this stage, it will also be appropriate to refer to Rules 13 & 14 of the Central Civil Services (Pension) Rules, 1972 (Old) on the subjects of ‘Commencement of qualifying service’ and ‘Conditions subject to which service qualifies’:- “13. Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post: Provided further that— (a) in the case of a Government servant in a Group 'D' service or post who held a lien or a suspended lien on a permanent rendered before attaining the age of sixteen years shall not count for any purpose, and (b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity. (c) the provisions of Clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19. 14. Conditions subject to which service qualifies (1) The service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under conditions determined by the Government. (2) For the purposes of 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. (2) For the purposes of 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. (3) In the case of a Government servant belonging to a State Government, who is permanently transferred to a service or post to which these rules apply, the continuous service rendered under the State Government in an officiating or temporary capacity, if any, followed without interruption by substantive appointment, or the continuous service rendered under that Government in an officiating or temporary capacity, as the case may be, shall qualify: Provided that nothing contained in this sub-rule shall apply to any such Government servant who is appointed otherwise than by deputation to a service or post to which these rules apply.” A bare reading of the above Rules signifies that qualifying service of a Government servant would commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity, provided officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. It would also be in place to notice Rules 14 & 16 of the Central Civil Services (Pension) Rules (amended in the year 2021):- “14. It would also be in place to notice Rules 14 & 16 of the Central Civil Services (Pension) Rules (amended in the year 2021):- “14. Service in autonomous bodies (1) In the case of a person who was initially appointed, on or before 31st December, 2003, in an autonomous body under the Central Government or a State Government having a non-contributory pension scheme similar to these rules and who is subsequently appointed with proper permission to a service or post in the Central Government to which these rules apply, after acceptance of his resignation from the said autonomous body, the service rendered under the said autonomous body in an officiating or temporary or substantive capacity shall qualify, subject to the following conditions, namely :- (a) the appointment of that Government servant in an officiating or temporary capacity in the Central Government is followed without interruption by substantive appointment; (b) the Government servant is not drawing a separate pension from the said autonomous body for the service rendered in that body before acceptance of resignation; and (c) the pension liability is discharged by the said autonomous body by paying in lumpsum the amount of pension or service gratuity and retirement gratuity for the service rendered in the autonomous body; and (d) the lumpsum amount of pension shall be determined with reference to the commutation table laid down in the Central Civil Services (Commutation of Pension) Rules, 1981. (2) The condition for discharge of pension liability by an autonomous body under the State Government having a non-contributory pension scheme similar to these rules shall be binding on that autonomous body in accordance with the reciprocal arrangement entered into by the Central Government with the concerned State Government. EXPLANATION.- A Government servant shall be deemed to have been appointed in the Government with proper permission if he had applied for the service or post in the Government with previous permission of the Autonomous Body and the order of the Autonomous Body clearly indicates that the employee is resigning to join the post in the Government with proper permission of the autonomous body. (3) Service rendered in a public sector undertaking, including nationalized bank and financial institution, before appointment in the Central Government shall not count as qualifying service for the purpose of these rules. 16. (3) Service rendered in a public sector undertaking, including nationalized bank and financial institution, before appointment in the Central Government shall not count as qualifying service for the purpose of these rules. 16. Counting of service on probation Service on probation against a post if followed by confirmation in the same or another post shall qualify.” In the given case, even if the argument of respondents is to be accepted that petitioner was appointed on temporary basis on 16.09.2002, then also petitioner’s such so called temporary service continued and was followed without interruption by his substantive appointment on the same post as per the stand taken by the respondents in their reply. Thus, the service rendered by the petitioner w.e.f. 16.09.2002 till his superannuation on 31.10.2022, is liable to be counted as qualifying service for the purpose of pension. 4(iv) The last argument raised by learned Deputy Advocate General that petitioner’s services had been absorbed/ regularized on 13.05.2017 and he had served as a regular employee only for about five years till his superannuation on 31.10.2022 and, therefore, was not in possession of requisite qualifying service of ten years, cannot be countenanced. Respondents cannot be permitted to take advantage of their own lapses and faults. In case, according to the respondents, the petitioner’s appointment on 16.09.2002 was only on secondment basis, then also under order dated 25.03.2003 (Annexure R/2), the secondment in no circumstance could have exceeded the period of three years. It was for the respondents to have passed appropriate order for regularization/ absorption of the petitioner at the appropriate stage i.e. in the year 2005. It is not their case that petitioner was repatriated to his parent department in 2005. Lapse on part of respondents in not issuing the appropriate order as they project in their reply, cannot be attributed to the petitioner for denying him the benefits of pension for the service, which he rendered for more than twenty years in the respondent-Technical Education Department. State of Gujarat and others Vs. Lapse on part of respondents in not issuing the appropriate order as they project in their reply, cannot be attributed to the petitioner for denying him the benefits of pension for the service, which he rendered for more than twenty years in the respondent-Technical Education Department. State of Gujarat and others Vs. Talsibhai Dhanjibhai Patel, SLP(C)No.1109 of 2022 decided on 18.02.2022 holds that State cannot be permitted to take benefits of its own wrong; To take services continuously for thirty years and thereafter to contend that an employee, who has rendered thirty years of continuous service is not eligible for pension, is nothing but unreasonable; As a welfare State, such stand ought not to be taken by the State. It is well settled that even service rendered on work charge basis is liable to be counted towards pension [Reference:- Prem Singh Vs. State of UP, (2019) 10 SCC 516 and Uday Pratap Thakur and Another Vs. State of Bihar, AIR 2023 SC 2971 ]. Bimla Devi Vs. State of H.P. & others, CWP No.6688 of 2021 decided on 27.06.2025 holds that whole time contingent paid service is to be considered as qualifying service for the purpose of pension. Jaya Bhattacharya Vs. State of West Bengal & Ors., Civil Appeal Nos. 3254-3256 of 2025 decided on 25.02.2025 holds that pensionary benefits can be denied to an employee provided there is such enabling rule in existence. Director General, Doordarshan Prasar Bharti Corporation of India & Anr. Vs. Smt. Magi H Desai, Civil Appeal No.1787 of 2023, decided on 24.03.2023 while noticing Rules 13 &14 of Central Civil Services (Pension) Rules, 1972, inter-alia, holds that service rendered on a substantive post or service rendered as officiating or temporary service shall be treated as qualifying service provided the same is followed without interruption by substantive appointment in the same or another service or post. Relevant portion of the judgment reads as under:- “7. Rule 13 of the 1972 Rules provides for commencement of qualifying service. As per Rule 13, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. It further provides that such officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. As per Rule 13, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. It further provides that such officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Therefore, the services rendered on a substantive post or services rendered as officiating or temporary service shall be treated as qualifying service. Service rendered as casual/contractual cannot be said to be officiating or temporary service. Even the services rendered as temporary service can be considered as qualifying service provided that the officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. Service rendered as casual/contractual cannot be said to be service rendered on a substantive appointment.” It may also be in place to take note of office memorandum dated 02.10.2022, issued by Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners’ Welfare, that provides for reckoning the service rendered in the State Government in an officiating or temporary or substantive capacity as qualifying service for purposes of pension, if the same was followed without interruption by substantive appointment in the State/Central Government. The office memorandum reads as under:- “No. - 28/90/2022-P&PW(B)/8297 Government of India Ministry of Personnel, Public Grievances and Pensions Department of Pension and Pensioners' Welfare *** 3rd Floor, Lok Nayak Bhavan, Khan Market, Now Delhi, Dated the 2nd October, 2022 OFFICE MEMORANDUM Subject: Counting of service rendered in State Governments as qualifying service for pension and gratuity under the Central Civil Services (Pension) Rules, 2021. The undersigned is directed to say that Department of Pension and Pensioners’ Welfare has notified the Central Civil Services (Pension) Rules, 2021 in supersession of the Central Civil Service (Pension) Rules, 1972. The undersigned is directed to say that Department of Pension and Pensioners’ Welfare has notified the Central Civil Services (Pension) Rules, 2021 in supersession of the Central Civil Service (Pension) Rules, 1972. In accordance with Rule 13 of the Central Civil Services (Pension) Rules, 2021, if a State Government employee, who was initially appointed in a pensionable establishment of the State Government on or before 31st December, 2003, is permanently transferred or is appointed with proper permission after acceptance of his resignation from the service of State Government, to a service or post to which the Central Civil Services (Pension) Rules, 2021 are applicable, the continuous service rendered by him in the State Government shall qualify for pension and gratuity from the Central Government. The service rendered in the State Government in an officiating or temporary or substantive capacity shall qualify if that service is followed without interruption by substantive appointment in the State Government or the Central Government. 2 The liability for pension and gratuity in such cases shall be borne by the Central Government and no recovery of proportionate pension and gratuity shall be made from the State Government. 3. All Ministries/Departments are requested that the above provisions regarding counting of service rendered in State Governments as qualifying service for pension and gratuity under the Central Civil Services (Pension) Rules, 2021 may be brought to the notice of the personnel dealing with the pensionary benefits in the Ministry/Department and attached/subordinate offices thereunder, for strict implementation. Sd/- (S. Chakrabarti) Under Secretary to the Govt. of India” There was no break in petitioner’s service which he rendered w.e.f. 1990 to 15.09.2002 in the State Forest Corporation and w.e.f. 16.09.2002 till his superannuation on 31.10.2022 in the respondent-Technical Education Department. Respondents are welfare wing of the State Government and not expected to exploit the petitioner by denying him pension, disregarding more than twenty years of service rendered by him. No other point was urged. 5. In view of above, this writ petition is allowed. Service rendered by the petitioner in the respondent- Technical Education Department is liable to be counted as qualifying service towards pension. Petitioner is held to be in possession of more than requisite ten years of qualifying service for the purpose of pension. He is accordingly held entitled to pension from the date of his superannuation under the Central Civil Services (Pension) Rules, 1972. Petitioner is held to be in possession of more than requisite ten years of qualifying service for the purpose of pension. He is accordingly held entitled to pension from the date of his superannuation under the Central Civil Services (Pension) Rules, 1972. Necessary orders in this regard be issued by the respondents within four weeks and admissible pension and arrears thereof, be released in his favour within two weeks thereafter, failing which, amount shall carry interest @ 5% per annum. Pending miscellaneous application(s), also to stand disposed of.