2026:HHC:22440 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No.4743 of 2020 Decided on: 15th June, 2026 Uploaded on: 16th June, 2026 Inder Dev Negi …Petitioner Versus State of H.P. and others …Respondents Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 For the petitioner: Mr. Guna Nand Verma, Advocate. For the respondents: Mr. Amandeep Sharma, Additional Advocate General. Jiya Lal Bhardwaj, Judge (Oral) The petitioner by way of present petition has prayed for the following substantive relief: “a) That the present OA may kindly be allowed and quash the official communication dated 2-12-2014 contained in annexure A- being illegal, arbitrary and against the CCS(Pension) rule 1972 and further issue direction to the respondent to place the application under old pension scheme instead of new CPF scheme in the present facts and circumstances.” 2. The facts as emerge from the pleadings are that the petitioner was appointed, vide appointment letter dated 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 23.09.1996 (Annexure A-2), as Peon on regular basis in Himachal Pradesh Housing and Urban Development Authority (for short “HIMUDA”). Later on, his services were absorbed with respondent No.2, vide office order dated 05.03.2014 (Annexure A-7). After absorption, the petitioner had made a representation seeking consideration of his case for pensionary benefits under CCS (Pension) Rules, 1972, which request came to be rejected on 02.12.2014 (Annexure A-1) on the ground that he had been absorbed permanently in the Department on 05.03.2014 and as per Finance Department’s letter dated 15.05.2003, an official appointed on or after 15.05.2003, shall be governed under the Contributory Pension Scheme circulated vide HP Government Notification dated 17.08.2006 and, therefore, the petitioner is not eligible to be governed under CCS (Pension) Rules, 1972. 3. It has been averred in the petition that as per office memorandum dated 11.05.2012 (Annexure A-3), an employee who is permanently absorbed of surplus staff deployed on secondment basis by the State Government from the surplus pool is entitled for all the benefits granted to other similarly 3 situated employees. In the case of the petitioner, he was asked to give option, vide office letter dated 10.11.2014 in respect of service/pension and gratuity benefits and the petitioner had given option for transfer of service/pension and gratuity benefit to Excise and Taxation Department and the same was considered by the parent department i.e. HIMUDA and service/pension and gratuity benefits were transferred accordingly. The action on the part of the respondents to deny the benefits of old pension scheme to the petitioner is discriminatory and is violative of Articles 14, 16 and 21 of the Constitution of India. 4. The respondents filed reply to the petition and averred that the petitioner was initially appointed as Peon on regular basis in HIMUDA from 26.09.1996 and thereafter he was deployed with the Excise and Taxation Department on secondment basis vide office order dated 14.07.2011. Since the petitioner had given his option for absorption in the Excise and Taxation Department, he was permanently absorbed in the department vide office order dated 05.03.2014, after completion 4 of all codal formalities as per the terms and conditions mentioned in office memorandum dated 11.05.2012. 5. Before absorption of the petitioner in the Excise and Taxation Department, he was covered under the Contributory Pension Fund Scheme in the parent department. The petitioner was allotted CPF No.HB-419 in HIMUDA and deductions had been made accordingly. It has further been averred that all appointments made in the Government Departments on or after 15.05.2003 have been excluded from the purview of CCS (Pension) Rules, 1972 vide Finance Department Notification No. Fin(Pen)A(3)-1/96 dated 15.05.2003. All employees appointed in the Government Department on or after 15.05.2003 are covered under the Contributory Pension Scheme, which is also called the New Pension System. Hence, the petitioner cannot become eligible to be covered under the Old Pension Rules, 1972 in the Excise and Taxation Department rather, he will be covered under the Contributory Pension Scheme/New Pension System in the Government Department. 6. The petitioner filed rejoinder to the reply and 5 controverted the averments made in the reply 7. I have heard the learned counsel for the parties and also perused the record carefully. 8. It is not in dispute that the petitioner was initially appointed with HIMUDA as Peon on regular basis as per appointment letter dated 23.09.1996 (Annexure A-2) and joined his services on 26.09.1996. It is also not in dispute that the petitioner was deployed on secondment basis vide office order dated 14.07.2011 (Annexure A-4) from surplus pool of HIMUDA. It is also not in dispute that the petitioner was permanently absorbed vide office order dated 05.03.2014 (Annexure A-7), subject to the terms and conditions as mentioned in office memorandum dated 11.05.2012. Since there is a reference of office memorandum dated 11.05.2012, it would be relevant to mention the terms and conditions postulated in the said office memorandum, which read as under:- “No.Fin(C)F(1)2/2012 Government of Himachal Pradesh Finance(Regulations) Department Dated Shimla-171002, the 11th May, 2012 6 OFFICE MEMORANDUM Subject:- Policy regarding permanent absorption of surplus staff taken on secondment basis by the State Government. The undersigned is directed to refer on the subject cited above and to say that the matter regarding framing of a policy for permanent absorption of surplus staff deployed on secondment basis by the State Government from the surplus pool was inviting the attention of Govt. for some time past. After a careful consideration, the State Govt. has decided that the staff taken on secondment basis may be absorbed on permanent basis on following terms and conditions:- 1. The policy shall be applicable in respect of those employees who have been taken on secondment basis in the identical pay scale or post; 2. The permanent absorption of employees on secondment may be considered only after obtaining necessary consent from the lending office/organization and the employee concerned. 3. The permanent absorption shall be strictly in the revised Pay Band + Grade Pay corresponding to the pre-revised pay scale of the post. In case of any official working in higher pay scale in the cadre as a result of grant of benefits under ACPS in the parent Department at the time of his/her absorption, only the basic pay of such employee shall be protected and the difference shall be added in the pay in the pay band and he/she will get their annual increment in a normal course. 4. The permanent absorbees shall continue to draw their annual increments on normal date(s) of increment(s) which they as usual, used to draw in their own pay scales on the posts they held in the lending office/organization prior to their secondment/absorption in the borrowing office/organization. 7 5. The absorption will be on temporary basis and the absorbed employees shall remain on probation for a period of 2 years. In case their work and conduct is not found satisfactory during their probation period, they are liable for repatriation to their parent Organization/ Corporation/ Department; 6. The officials being absorbed shall be placed at the bottom of their respective grade/cadre and seniority shall be determined on the basis of their absorption in the Department. 7. The pensionary benefits to the officials will be regulated as per the instructions of the State Government issued vide FD's letter No:Fin(Pen)A(3)-1/96, dated 15-05-2003 and as per provision of H.P. Civil Services Contributory Pension Rules 2006 notified by the Department of Finance (Pension) vide Notification No:Fin(Pen)A(3)-1/96, dated 17-08-2006. 8. In the case of those employees who were appointed on or before 14-05-2003 on regular basis and were governed by the CCS (Pension) Rules,1972 in their parent organization then the above Condition No.7 will not be applicable as they shall continue to be governed under aforesaid Rules for pensionery benefits. 9. The employees will be required to accept these terms & conditions before the issuance of final orders of absorption. 10. After absorption, if there is promotion to the next higher post, the incumbent will be promoted as per prevalent R&P rules. 11. The Administrative Department will decide the cases of permanent absorption on the above terms and conditions, and can allow absorption on case to case basis if they are covered under this policy; 12. In cases, where there is a deviation from these terms and conditions, such cases shall be referred to Finance Department through A.D. 8 on case to case basis and the F.D. will examine such cases based on the merits of each case. The above terms and conditions may kindly be brought to the notice of all concerned for strict compliance. Dr. Shrikant Baldi Principal Secretary(Finance) to the Government of Himachal Pradesh.” 9. A perusal of the terms and conditions more particularly condition No.3 clearly reveals that the basic pay of the employee shall be protected and further as per condition No.8, those employees who were appointed on or before 14.05.2003 on regular basis and were governed by the CCS (Pension) Rules, 1972 in their parent department, then the condition No.7 will not be applicable as they shall continue to be governed under the aforesaid rules for pensionary benefits. 10. No doubt, as per the appointment letter dated 23.09.1996, the post held by the petitioner as Peon on regular basis was on non-pensionable establishment, but once the services of the petitioner were taken over by the Excise and Taxation Department, the entire services rendered by him cannot be wiped out only on the plea that the petitioner has been appointed vide office order dated 05.03.2014 after 9 completing all formalities as per the terms and conditions mentioned in office memorandum dated 11.05.2012. The said appointment cannot be considered as fresh appointment. 11. Once the petitioner was appointed prior to 15.05.2003 in HIMUDA, it cannot be construed that his appointment after absorption in the Excise and Taxation Department as per office order dated 05.03.2014, is a fresh appointment and thus, he is not entitled to be covered under the CCS (Pension) Rules, 1972. At the time of absorption of the petitioner, the only condition was that he shall be placed at the bottom of his respective grade/cadre and the seniority shall be determined on the basis of his absorption in the department and there is no stipulation that the service rendered by him in the parent department will not be considered. Once the respondents have not specifically mentioned at the time of passing order dated 05.03.2014 that the past services rendered by the petitioner shall not be counted for the purpose of qualifying service and other service benefits, the rejection of the claim made by the petitioner for being covered under the old 10 pension scheme only on the plea that he was appointed after 15.05.2003, cannot be countenanced. 12. A co-ordinate Bench of this Court in similar facts and circumstances has held that persons, who were earlier working in a non-pensionable establishment are entitled to the pensionary benefits in accordance with the CCS (Pension) Rules, 1972, in CWP No.1061 of 2021, titled, Shishu Pal vs. State of H.P. and others and connected petition. The relevant paras of the judgment read as under: “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 11 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 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 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 12 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 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. “ 13. In the present case too, no doubt the petitioner was not earlier serving in a pensionable establishment, but since he was appointed on regular basis as Peon vide office order dated 23.09.1996 and thereafter his services were absorbed in the Excise and Taxation Department, specifically mentioning therein that his appointment shall be governed by the office memorandum dated 11.05.2012, the past services rendered by the petitioner cannot be ignored, especially when his pay has 13 been protected and further there is no specific condition stipulated in the absorption order that the past services rendered by him will not be counted for the purpose of pensionary benefits. 14. Once the issue raised in the present petition is already answered by a coordinate Bench of this Court in the aforementioned petitions, I am of the considered view that the present petition filed by the petitioner deserves to be allowed. Furthermore, once other employees serving in the respondents are covered under the CCS (Pension) Rules, 1972, denying the same benefit to the petitioner by taking his appointment after 15.05.2003 and not considering the past services rendered by him in HIMUDA w.e.f. 26.09.1996 is violative of Articles 14 and 16 of the Constitution of India. No doubt, the petitioner has been permanently absorbed as per office order dated 05.03.2014, but the same cannot be construed to be a fresh appointment. 15. Consequently, the present petition is allowed and the impugned order dated 02.12.2014 (Annexure A-1) is quashed and set aside and the respondents are directed to place the 14 petitioner under the Old Pension Scheme and grant him all consequential benefits. 16. The petition is accordingly disposed of. No orders as to cost. Pending miscellaneous application(s) if any, also stand disposed of accordingly. 15 th June, 2026 ( Jiya Lal Bhardwaj ) (ankit) Judge