2026:HHC:5575 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No. 3221 of 2019 Decided on : 02.03.2026 ____________________________________________________________ Baldev Ram (since deceased) through his LRs ...Petitioner Versus State of HP and others ...Respondents ____________________________________________________________ Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 Yes For the petitioner: Mr. Vijay Bir Singh, Advocate. For the respondents: Mr. Amit Kumar Chaudhary, Deputy Advocate General, for respondents No. 1, 2, 4 & 6. Mr. Lokender Paul Thakur, Senior Panel Counsel, for respondent No. 3. Mr. Anil Thakur, Advocate, for respondent No. 5. Jiya Lal Bhardwaj, Judge (Oral) The petitioner by way of present petition has prayed for following substantive relief:- “ i) That a writ of mandamus may very kindly be issued thereby directing the respondents to count the period of service rendered with the respondent No. 5 as qualifying service for the purpose of pension and pension of the petitioner be refixed after taking into account combined service i.e. service rendered with parent Corporation and service rendered with the respondent Department, and all 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2026:HHC:5575 consequential benefits be given to the petitioner alongwith interest at the rate of 12% per annum.” 2. As per the pleadings in the writ petition, the petitioner was appointed as daily wage Helper with respondent No.5-Corporation on 28.12.1994. Thereafter, on the basis of interview conducted by respondent No.5 on 17.09.1986, the petitioner was offered appointment to the post of Helper, vide office memorandum dated 28.03.1987 (Annexure P/1). The petitioner in sequel to the said appointment order joined his duties with respondent No.5- Corporation. The petitioner was declared as surplus by respondent No.5-Corporation along with other employees and on the recommendations of the Departmental Appointment Committee, the petitioner vide office order dated 17.08.1994 (Annexure P/2) was offered the post of Peon and was asked to join his duties on or before 30.08.1994. The petitioner in compliance with the office order dated 17.08.1994, joined as Peon with respondent No.4 on 25.08.1994. A perusal of the office order dated 17.08.1994 (Annexure P/2) reveals that appointment of the petitioner on the post of the Peon would be afresh and he will not claim any benefit of seniority qua the service rendered by him with respondent No.5. Thereafter the 3 2026:HHC:5575 amount of gratuity i.e. ₹8125/- was released to the petitioner, as evident from Annexure P/4. 3. The petitioner later on made a request by way of letter dated 24.09.2010 (Annexure P/5) and thereafter on 29.07.2011 (Annexure P/6) to count the past service rendered by him with respondent No.5 as qualifying service for pension after allowing the petitioner to deposit the gratuity, as has been given on the date of absorption with respondent No. 4-Department along with interest. However, the said requests made by the petitioner were turned down vide communication dated 23.09.2011 passed by respondent No. 4 vide Annexure P/8. The communication dated 23.09.2011, reads as under:- “No. 2-15/2011EXN.H.Estt 31126 Excise & Taxation Department, Himachal Pradesh From Excise & Taxation Department, Himachal Pradesh To Asstt Excise & Taxation Commissioner, Kangra at Dharamshala Dated: Shimla 171009 23 September, 2011. Subject:- Regarding gratuity received from prior appointment authority. Sir, Please refer to your office letter No. EXN/KAN/Estt/2011-12-6933 dated 08.08.2011 on the subject cited above. It is informed that matter has been got examined by the Audit and observation of the Audit is under:- “As per the instructions the employees who 4 2026:HHC:5575 were absorbed in Govt. department from Board or Corporation, had to opt either to retain terminal benefits received from his parent organization, in that event the past service will not count qualifying for pension under Govt.; or to have the past service counted as qualifying service for pension under the Govt. in which case the pro- rata retirement benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of those benefits till the date of deposit with the Govt. The option was to be exercised with in a period of one year from the date of absorption.” Keeping in view above observations the case of Sh. Subhash Chand, Peon retired and other employees of such type is not fit for counting their past service. You are therefore, advised that pension case of Sh. Subhash Chand, Peon retired may be forwarded to AG, HP immediately for sanction of pension. Yours faithfully, Addl. Excise & Taxation Commissioner (H.Q.) Himachal Pradesh.” 4. The petitioner has pleaded in the writ petition that as per the instructions of Government of India dated 31.03.1987, those employees, who have been absorbed in the autonomous bodies (also applicable in the departments) having pension scheme, have an option to receive pro-rata retirement benefits or continue to have the benefit of combined service under the Government. Such option should be exercised within six months from the date of permanent absorption. In case no option is exercised within a stipulated period, he or she will be eligible for pension based on combined service. It has been submitted that the petitioner stood superannuated on attaining the age of 5 2026:HHC:5575 superannuation and though he is getting the pension as per his service rendered with respondent No.4, but the past service rendered by him with respondent No.5-Corporation has not been counted towards qualifying service, due to which petitioner is suffering financial loss. 5. Respondents No. 1 to 4 and 6 have filed reply through respondent No.4 and have submitted that the petitioner had to exercise the option as per the instructions of the Government within a period of one year from the date of absorption. Further after the absorption of the petitioner, he has received an amount of ₹8125/- on account of gratuity granted to him by respondent No.5-Corporation and as per the instructions of the Government, the employees who were absorbed in Government Department from Board/Corporation, had to opt either to retain terminal benefits received from his parent organization, in that event the past service will not count qualifying for pension under Government or to have the past service counted as qualifying service for pension under the Government, in which case, the pro-rata retirement benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of those benefits 6 2026:HHC:5575 till the date of deposit with the Government. 6. 6. It has been averred that an employee had to exercise an option within a period of one year from the date of absorption. Since the petitioner did not exercise the option and further not deposited the gratuity amount within a period of one year of his absorption, rather he applied for counting of his previous service on 24.09.2010 after a period of over 16 years with a request that he was willing to deposit the gratuity amount with interest. Since the petitioner had failed to exercise his option within a period of one year from the date of his absorption in the Department of Excise & Taxation, he is not entitled to the benefit of re- fixation of his pension after counting the past service. 7. Respondent No.3 has filed a separate reply. A preliminary objection has been taken that in accordance with Rule 18(2) (a) (b) of CCS Pension Rules, 1972 and Appendix 18 of CCS (Pension) Rules, 1972, every Government servant will have to exercise option within six months/three months of his absorption/re-employment for either to receive monthly pension and retirement gratuity under the usual Government arrangement or to draw lumpsum payment in lieu of pension. If no option is 7 2026:HHC:5575 exercised within the aforesaid period, the Government servant shall be deemed to have opted to draw/continue pension or retain the gratuity sanctioned for earlier service and therefore previous service shall not be counted as qualifying service. Since in the present case, no option was exercised by the petitioner, as per the recommendations of respondent No.6-Department, respondent No.3 authorized the pension and gratuity only for re-employed service of the petitioner without counting the previous service. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. It is not in dispute that no option was sought from the petitioner. The petitioner has categorically mentioned in para 11 of the petition, that he was not made aware of the provision of seeking option, neither by his earlier employer nor by respondent No.4-Department, where he joined his services in the year 1994. The petitioner would have definitely deposited the gratuity amount received by him if respondent No.4-Department had apprised him that the past service rendered by him can only be counted for pension if the amount of gratuity received by him is deposited. The amount received by the petitioner 8 2026:HHC:5575 was only a sum of ₹8125/- which he had agreed to deposit along with interest. Respondent No.4 at the time of offering the appointment letter to the petitioner ought to have informed him in writing to exercise the option and also to bring to his notice procedure of exercising the option. 10. It is not the case of the respondents that the period of service rendered in the earlier establishment by the petitioner cannot be counted. The only impediment shown is that the petitioner did not exercise the option within the time frame of one year. The only amount of terminal benefits received by the petitioner is the amount of gratuity of ₹8125/-. The respondents have pleaded in the reply that the petitioner cannot be allowed to plead ignorance regarding the Rules pertaining to exercise any petition, within a specified period. 11. This Court vide order dated 07.10.2025, had given specific directions to the respondents-State to file supplementary affidavit, as to whether at the time of absorption of the petitioner in the Excise and Taxation Department, the availability of the right to exercise an option for counting past service was disclosed to the petitioner in terms of Annexure P/8 dated 23.09.2011 or 9 2026:HHC:5575 such like communication was in force during the year 1994. 12. In compliance with the directions passed by this Court, the respondents-State had filed the supplementary affidavit and submitted that there is no such correspondence found at the time of absorption of the petitioner in the Excise and Taxation Department or such like communication in force in the year 1994. 13. Admittedly, the petitioner was appointed with respondent No.4-Department as Peon vide office order dated 17.08.1994. One of the conditions in the appointment order only says that the service rendered by the petitioner in the corporation/board shall not be counted for the purpose of seniority. This office order does not say that the service rendered with the Board-Corporation will not be counted for the purpose of pension. The petitioner, being Class-IV employee, did not know that he had to exercise the option within one year as mentioned in the reply. It was incumbent upon the appointing authority to disclose this fact to the petitioner. However, neither it was done by the Corporation, where the petitioner was earlier employed, nor by respondent No.4-Department, where he had joined in sequel to the office order dated 17.08.1994. The plea raised 10 2026:HHC:5575 by respondent No.3 that the petitioner had to exercise the option in terms of Rules mentioned above is concerned, it was incumbent upon the employer to ask the employee to give his option and in case the employee was not given such option, his interest cannot be jeopardized by non- exercise of such option within the stipulated period. The petitioner in the representation dated 24th September, 2010 (Annexure P/5) had agreed to deposit the amount of gratuity of ₹8125/- received by him along with interest, however, the said prayer was not acceded to. 14. The petitioner being a Class-IV employee cannot be allowed to suffer due to technicalities, more particularly, when the respondents themselves have admitted that there is no record available with respect to an option being given to the petitioner. By not counting the past services rendered by the petitioner with the previous organization, pension of the petitioner had been affected every month, which was a recurring cause of action. 15. The Hon’ble Supreme Court in State of Madhya Pradesh and others versus Yogendra Shrivastava, (2010) 12 SCC 538, has held that where the issue relates to payment or fixation of salary or any allowances, the 11 2026:HHC:5575 challenge is not barred by limitation or the doctrine of laches. The relevant para of the judgment is reproduced hereunder: “18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. (See M.R. Gupta v. Union of India and Union of India v. Tarsem Singh.)” 16. In view of the law laid down by the Hon’ble Supreme Court, it is clear that the cause is recurring and thus, I am of the considered view that the impugned rejection vide communication dated 23.09.2011 is not justified. 17. Consequently, the writ petition is allowed and the respondents are directed to count the period of service rendered by the petitioner with respondent No.5- 12 2026:HHC:5575 Corporation as qualified service for the purpose of pension and further the pension of the petitioner be re-fixed accordingly. However, before releasing the financial benefits, the petitioner shall deposit an amount of ₹8125/- along with interest at the rate of 6 % per annum within two months from today from the date of his having received the said amount. It is made clear that in case the arrears of pension after re-fixation are not paid within three months from today, it shall carry interest at the rate of 6% per annum from due date till its realization. No orders as to costs. Pending application(s), if any, also stand disposed of. 02 nd March, 2026 ( Jiya Lal Bhardwaj ) (Anurag) Judge