Allowed

Ghanshyam Chauhan v. State of Hp and Others

Himachal Pradesh HC13 Sept 2024CWP/3496/2020

Case brief

AI extract

What is this about?

Petitioners absorbed in State Election Commission were denied pension under old scheme. Court held they qualified under Office Memorandum conditions as their parent bodies were governed by old pension rules. Petitions allowed, directing payment of pension arrears from superannuation date.

What did the court decide?

Entitled to pensionary benefits under CCS (Pension) Rules, 1972 from date following superannuation; arrears to be paid within three months.

Ghanshyam Chauhan Vs State of Hp… — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. : 3496 of 2020 a/w CWPOA No. 135 of 2019
Reserved on : 06.09.2024
Decided on : 13.09.2024
1. CWP No. 3496 of 2020
Sh. Ghanshyam Chauhan. .…Petitioner.
Versus
State of Himachal Pradesh and Ors. …Respondents.
2. CWPOA No. 135 of 2019
Sh. Rameshwar Lal. .…Petitioner.
Versus
Accountant General and Ors. …Respondents.
*Coram* *The Hon’ble Mr. Justice Satyen Vaidya, Judge.* Whether approved for reporting?¹Yes
For the petitioner(s) : Mr. S.S. Sood and Mr. B. Nandan Vashista, Advocates, for the petitioner in CWP No. 3496 of 2020 and Mr. Onkar Jairath, Advocate, for the petitioner in CWPOA No. 135 of 2019.

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1 Whether reporters of the local papers may be allowed to see the judgment?

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Neutral Citation No. ( 2024:HHC:8530 )

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For the respondents : Mr. Sidharth Jalta, Deputy Advocate General for respondents No. 1 and 3 in CWP No. 3496 of 2020 and for respondent No. 2 in CWPOA No.135 of 2019.

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: Mr. Dalip K. Sharma, Advocate, for respondent No. 2 in CWP No. 3496 of 2020 and for respondent No. 3 in CWPOA No. 135 of 2019.

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: Mr. Rangil Singh, Advocate, for respondent No. 4 in CWP No. 3496 of 2020 and for respondent No. 1 in CWPOA No. 135 of 2019.

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Satyen Vaidya, Judge

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Both these petitions have been heard and

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are being decided together as common question of facts and law are involved.

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Certain facts are being noticed in the tabulated form, as under, for the sake of brevity:-

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Sr. No.	Case No.	Petitioner	Parent employer	Date of joining of service with parent employer	Borrowing employer	Date of joining of service with borrowing employer	Date of absorption
1	CWPOA No. 135 of 2019	Rameshwar Lal	H.P. Agro Industries Corporation	01.02.1983	State Election Commission	17.10.2003	31.05.2004
2.	CWP No. 3496 of 2020	Ghanshyam Chauhan	H.P. State Financial Corporation	26.07.1989	State Election Commission	02.01.2004	31.05.2004.

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Neutral Citation No. ( 2024:HHC:8530 )

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CWPOA No. 135 of 2019 was allowed by this Court, vide judgment dated 02.03.2020, however, the said judgment was set-aside by a Division Bench of this Court, vide judgment dated 31.03.2021, passed in LPA No. 46 of 2020 and the matter was remanded back to this Court in following terms:-

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“25. Given above, we set aside the judgment dated 2.3.2020, passed by learned Single Judge, in CWPOA No.135 of 2019 and remand the matter back to learned Single Judge and further direct the Accountant General of Himachal Pradesh to file a detailed reply within six weeks from today. Furthermore, the State to file instructions regarding the status of Shri Kuldeep Saraswati, who, before his absorption, was working in H.P. Khadi Board, was sanctioned and granted the pensionary benefits under the old pension scheme, whereas he had worked in Khadi Board till 2.12.2004, and that how the State could take a different stand for different employees. The observations made are only for the purpose of this order and shall have no bearing on merits .”

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The Division Bench of this Court while disposing of LPA No. 46 of 2020 had further ordered to list CWP No. 3496 of 2020 alongwith CWPOA No. 135 of 2019.

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Petitioners in both the petitions had initially joined their respective parent employer as detailed in

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Neutral Citation No. ( 2024:HHC:8530 )

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above table. The parent employers of both the petitioners were Autonomous Corporations. The services of the petitioners in both the petitions were transferred to the Himachal Pradesh State Election Commission (for short “SEC”), though on different dates. The services of both of them were absorbed in SEC on the same date i.e. 31.05.2004.

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A common office order dated 31.05.2004, was issued by SEC, whereby the services of petitioners in both the petitions were ordered to be absorbed w.e.f. 01.06.2004 (FN.), subject to certain conditions, out of which following two conditions are relevant to be noticed for adjudication of the issue involved herein:-

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“5) They will have to deposit employer share of CPF into the Government Account and employees share into GPF Account with interest thereon out of the total amount at credits in their respective CPF accounts.

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6) They will deposit all terminal benefits etc. to the Government Account within the prescribed time limit under the rules.”

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7. Petitioners complied with aforesaid conditions.

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On compliance of aforesaid conditions by petitioner in CWPOA No. 135 of 2019, the SEC acknowledged such

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Neutral Citation No. ( 2024:HHC:8530 )

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receipt, vide office order dated 26.08.2008, and directed the services of said petitioner w.e.f. 01.02.1983 to 30.05.2004, to be treated as qualifying service for the purpose of pension calculation, pay protection, credit of earned leave etc.. In the case of petitioner in CWP No. 3496 of 2020, the SEC had acknowledged the receipt of terminal benefits in terms of aforesaid conditions, vide office order dated 02.07.2007, and in a similar manner the services rendered by said petitioner from 27.07.1989 to 31.05.2004, were ordered to be treated qualifying service for the purpose of pension calculation, pay protection, credit of earned leave etc.

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After the absorption of services of petitioners in both the petitions with SEC, they were allotted their respective GPF numbers. Both of them continued to contribute in GPF till the date of superannuation.

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Petitioner in CWPOA No. 135 of 2019 retired on 30.09.2018 and petitioner in CWP No. 3496 of 2020 retired on 31.03.2019.

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Petitioners in both the petitions have been denied pensionary benefits under the CCS (Pension)

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Neutral Citation No. ( 2024:HHC:8530 )

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Rules, 1972 (for short “1972 Rules”) by the respondents on the premise that the Government of Himachal Pradesh, vide notification dated 15.05.2003, had

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amended the 1972 Rules in their application to the State of Himachal Pradesh and by virtue of such amendment 1972 Rules were made inapplicable to all appointments made on regular basis in the State of Himachal Pradesh on or after 15.05.2003. Respondents further maintained that since the State Government framed Himachal Pradesh Civil Services Contributory Pension Rules, 2006 (for short “2006 Rules”) under Article 309 of the Constitution of India and notified said rules, vide notification dated 17.08.2006, the persons employed in the State after 15.05.2003, would be covered under 2006 Rules (for short “NPS”) and as the services of petitioners in both the petitions were absorbed in SEC after 15.05.2003, they were held to be not entitled to the benefits under 1972 Rules. Respondents have also taken a stand that the State Government, vide office memorandum dated 13.09.2006, had clarified the position in respect of the

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Neutral Citation No. ( 2024:HHC:8530 )

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incumbents like petitioners and since the services held by petitioners with their parent employers were not governed under 1972 Rules, they were not entitled for benefits under said Rules after their absorption with SEC w.e.f. 01.06.2004.

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Aggrieved against the abovesaid decision of the respondents, petitioners have filed these petitions and have claimed the pensionary benefits under 1972 Rules.

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I have heard learned counsel for the parties

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and have also gone through the record of the cases carefully.

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The facts, as noticed above, are not in dispute. Admittedly, after absorption of petitioners in both the petitions, the SEC had unequivocally ordered the past services of these petitioners, with their respective parent employers, to be treated as qualifying service for the purpose of pension calculation, pay protection, credit of earned leave etc. The said declaration was made by the

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SEC after accepting the employer’s and petitioners’ contributions towards CPF, made while serving the

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Neutral Citation No. ( 2024:HHC:8530 )

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parent employers, by its deposit in the Government treasury with the concurrence and under information to the offices of Accountant General (Audit) and Senior Deputy Accountant General (A & E), Himachal Pradesh.

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The abovesaid acceptance was shown by SEC after framing of 2006 Rules as also issuance of Office Memorandum dated 13.09.2006. Thus, there was a clear representation from SEC that notwithstanding framing of 2006 Rules and issuance of O.M. dated 13.09.2006, the services of petitioners with their parent employers would be counted towards qualifying services for the purpose of pension calculation.

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Respondents, after the superannuation of petitioners in both the petitions denied the benefits of pension to them in either of the schemes i.e. OPS or NPS. Noticeably, none of the petitioners were registered under NPS after framing of 2006 Rules by the respondents. Resultantly, petitioners have been left in a situation where they are not getting any pension after retirement.

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Neutral Citation No. ( 2024:HHC:8530 )

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Petitioners, have staked their claims to the pensionary benefits under 1972 Rules. They have sought their cases to be covered under Clause 2(i) of O.M. dated 23.09.2006 ,which reads as under:-

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“i) All the employees who entered into State Government service or in the service of an Autonomous Body set up by the State Government (satisfying the conditions laid down in para-4 of Government of India OM No. 28/10/84PU dated 20^th August, 1984, adopted by the State Government vide Office Memorandum No. Fin.(C) A(3)-17/76-II dated 5^th July, 1996) on or before 14.05.2003 and who were governed by the old pension scheme under Central Civil Services (Pension) Rules, 1972 will continue to be governed by the same pension scheme and same rules for the purpose of counting of their past service under the said rules or under the Government of India OM No. 28/10/84PU, dated 29^th August, 1984, adopted by the State Government vide its Office Memorandum dated 5^th July 1996 as amended from time to time, if such employees submit technical resignation on or after 15.05.2003 to take up new appointment in another Department of the State Government or an Autonomous Body set up by the State Government, in which the pension scheme under Central Civil Services (Pension) Rules, 1972 already exists for the employees who entered into service on or before 14.05.2003.”

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In order to avail the benefits of aforesaid

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decision of the State Government, petitioners have set

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up factual foundation by making specific averments in

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Neutral Citation No. ( 2024:HHC:8530 )

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their respective rejoinders with respect to the applicability of Himachal Pradesh Corporate Sector Employees (Pension, Family Pension, Commutation of Pension and Gratuity) Scheme, 1999 (for short “1999 scheme”) in their respective parent employers w.e.f. 01.04.1999. As per petitioners, under the 1999 scheme {Clause 1(2)}- all pensionary benefits of the employees of the participating Corporate Sector were to be determined in accordance with the provisions laid down in 1972

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Rules and the CCS (Commutation of Pension) Rules, 1981. On the strength of above provision, it is sought to be contended by the petitioners that they qualified the requirement of Clause 2(i) of Office Memorandum dated 13.09.2006 as the 1999 Scheme was nothing but adoption of 1972 Rules for Corporate Sector employees of the State of Himachal Pradesh. Petitioners further contended that 1999 scheme remained in force till 01.12.2004 and the services of the petitioners had already been absorbed in SEC prior thereto w.e.f. 01.06.2004.

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Neutral Citation No. ( 2024:HHC:8530 )

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Noticeably, the respondents have not rebutted

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the above factual aspect during the entire period of pendency of these petitions. Petitioner in CWP No. 3496 of 2020, has even placed on record documents evidencing the adoption on 1999 scheme by his parent employer, H.P. State Financial Corporation and consent rendered by him for being treated under said scheme. Though, petitioner in CWPOA No. 135 of 2019, has not placed any such documents, but since his specific averments to that effect have remained uncontroverted, there is no reason to disbelieve the version of said petitioner which is supported by affidavit. That being the position, I am of the considered view that the cases of petitioners were covered by Clause 2(i) of O.M. dated 13.09.2006 and not by its Clause (ii), as has been represented on behalf of the respondents. The Clause 2(ii) of aforesaid O.M. reads as under:-

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“ii) The employees who entered into service on or before 14.05.2003 and who were governed by CPF scheme or any pension scheme of the Central or State Government other than the pension scheme under the Central Civil Services (Pension) Rules, 1972 on submission of technical resignation to take up new appointment on or after 15.05.2003,

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Neutral Citation No. ( 2024:HHC:8530 )

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cannot be allowed to join the old pension scheme under Central Civil Services (Pension) Rules, 1972 because entry to the said scheme ceased after 14.05.2003 and no new entry can be allowed in the pension scheme under the above Rules. However, such employees can seek pensionary/terminal benefits, from the previous Organization/Department, if admissible under the rules of that Organization/Department for the period of service rendered under that organization/Department.”

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The 1999 scheme was notified by the State, Government, vide notification dated 29.10.1999 and was made applicable w.e.f. 01.04.1999, Clause 1(2) of the said scheme reads as under:-

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“All pensionary benefits of the employees of the participating H.P. Corporate Sector shall be determined in accordance with the provisions laid down in Central Civil Services (Pension) Rules, 1972, the Central Civil Services (Commutation of Pension) Rules, 1981, as amended and adopted by the H.P. Government for the State Government employees save as otherwise provided in this scheme.”

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Thus by framing of above scheme the State

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Government had made all the provisions of CCS (Pension) Rules, 1972, applicable to the employees of participating Corporate Sector in the State as were applicable to the other State Government employees. As a

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Neutral Citation No. ( 2024:HHC:8530 )

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necessary corollary, this amounted to compliance with Clause 2(i) of O.M. dated 13.09.2006, which required the employees under parent employer to be governed under Old Pension Scheme under CCS (Pension) Rules, 1972. In the facts of the cases in hand, petitioners also qualified other condition as they had been transferred to the borrowing employer through proper channel. Their respective absorption was without any break in services and as such, all the requirements of technical resignation were met out, more particularly, when the borrowing employer had expressly ordered their past services with parent employer to be treated as qualifying service for the purpose of pension etc.

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In light of what has been discussed above, the action of respondents denying the pensionary benefits to the petitioners under 1972 Rules, cannot be sustained. Additionally, it can be seen that during the pendency of these petitions, the State Government has again made the 1972 Rules applicable even to those of its employees who were appointed after 15.05.2003. A notification to this effect has been issued by the State on

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Neutral Citation No. ( 2024:HHC:8530 )

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04.05.2023. As a sequel, vide Office Memorandum of the same date i.e. 04.05.2023, instructions/SOPs have also been issued. Clause (vii) of said Office Memorandum reads as under:-

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“(vii) Employees, who were covered under the National Pension System (NPS) and have already retired/died, between the period 15.05.2003 to 31.03.2023 and who fulfil the eligibility criteria under the Central Civil Services (Pension) Rules, 1972, such retired employee and eligible family member of deceased employee, shall be entitled to pension from prospective date i.e. with effect from 01.04.2023, on exercising an option for the same on the prescribed format at Annexure II and submission of an undertaking at Annexure III, subject to deposit of the Government contribution and dividend/return, till the date of withdrawal, to the State Government. The amount of Government contribution and dividend/return shall be deposited under the Receipt Head “0071Contribution and Recoveries towards pension and other retirement benefit, 01-Civil,101-Subscritptions and Contributions, 03- Accumulated Pension Wealth in respect of National Pension System Subscribers and 04Accumulated dividend on Government Contribution of National Pension System employees converted into Old Pension Scheme .”

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In light of such development, the petitioners

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in both the petitions have, otherwise, become entitled to the pensionary benefits under 1972 Rules, subject,

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Neutral Citation No. ( 2024:HHC:8530 )

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however, to the condition that they will be entitled to pension w.e.f. 01.04.2023. However, as the petitioners have already been held to be entitled to benefits to Clause 2(i) of Office Memorandum dated 13.09.2006, they would be entitled to the pensionary benefits under 1972 Rules, immediately from the date next to their respective dates of superannuation. It is further clarified that since the petitioners have already been litigating qua their rights of pensionary benefits under 1972 Rules on the date of issuance of Notification and Office Memorandum dated 04.05.2023, the requirements of making option or submission of undertaking therein shall not be applicable to the petitioners.

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In result, both the petitions are allowed. Petitioners are held entitled to the pensionary benefits under CCS (Pension) Rules,1972, from the date immediately following the dates of their respective retirements. Annexures P-8, P-11 and P-13 in CWP No. 3496 of 2020, are quashed. Respondents are directed to pay the entire arrears to the petitioners within three

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Neutral Citation No. ( 2024:HHC:8530 )

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months from the date of the judgment, failing which the arrears shall entail interest @ 6% per annum.

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These petitions are, accordingly, disposed of,

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so also the pending miscellaneous application(s), if any.

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(Satyen Vaidya) 13^th September, 2024 Judge

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(sushma)

Ghanshyam Chauhan v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

Ghanshyam Chauhan v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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Coram

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