Swai Ram Vs State of Hp

For the petitioners : Mr. Kush Sharma and Ms. Prajwal Busta, Advocates. For the respondents : Mr. Vishav Deep Sharma, Additional Advocate General, for respondents No.1, 2 & 4-State. Mr. Lokender Paul Thakur, Senior Panel Counsel, for respondent No.3-Accountant General.

¶11

Ranjan Sharma, Judge [Oral]

¶12

Legal heirs of the original petitioner [Swai

¶13

Ram], who is stated to have died on 09.02.2024, have continued with the instant petition, seeking the following prayers:-

¶14

“(i). That the applicant may kindly be held entitled to counting of his service from the appointed dated i.e. 14.10.1961. Further

¶15

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes

¶16

2024:HHC:11018-DB

¶17

2 -

¶18

the respondents may kindly be directed to modify/correct the date of appointment of the applicant as 14.10.1961 instead of 31.01.1965 in the pension payment order and to re-determine the qualifying service of applicant and consequently revise the pension of applicant.

¶19

(ii). That the respondent be directed henceforth to correctly compute the applicant’s pension and release the additional pension of the applicant on account of incorrect recording of the date of appointment as 14.101961 instead of 31.01.1965. Further the directions may kindly be issued to make payment of the resultant arrears with interest.”

¶20

FACTUAL MATRIX:

¶21

2. Case set up by Mr. Kush Sharma, Learned

¶22

Counsel for the petitioner, is that the original petitioner, namely Swai Ram joined service as a JBT Teacher in Basali, Tehsil Una, District Hoshiarpur

¶23

[HP], in pay scale of Rs.60/4/80-/5/120, as Annexure A-1. Post appointment, the petitioner continued in service and upon allocation of the respondent-State, he continued in service and he retired from the post of Block Primary Education Officer, District Una [HP], on attaining the age of superannuation of 58 years as on 31.01.1998.

¶24

2(i). Grievance of the present petitioners, being

¶25

the legal heirs of deceased employee [Swai Ram] is

¶26

2024:HHC:11018-DB

¶27

3 -

¶28

that though the original petitioner had served under the respondents from 14.10.1961 till 31.01.1998, but a perusal of Pensioner Index Card [Annexure A-3], issued by District Treasury Officer Una, reveals that the date of appointment of original petitioner has been mentioned as 31.01.1965 instead of 14.10.1961 and Respondents have ignored the period of service rendered from 14.10.1961 to 31.01.1965 for calculating and granting pension towards the service rendered from 31.01.1965 till retirement on 31.01.1998, which resulting in giving less pension to the original petitioner.

¶29

STAND OF RESPONDENTS-STATE AUTHORITIES:

¶30

3. Upon issuance of notice, the respondents filed a reply-affidavit, sworn on 31.03.2018 by the Director of Elementary Education, Himachal Pradesh.

¶31

3(i). Perusal of reply-affidavit indicates that the original petitioner joined the respondent-Department as JBT on 14.10.1961 and after rendering 36 years service, he retired from the post of Block Primary

¶32

2024:HHC:11018-DB

¶33

4 -

¶34

Education Officer on 31.01.1998. It is admitted in

¶35

the reply that due to clerical mistake, the date of appointment of the original petitioner was written as 31.01.1965 instead of 14.10.1961 in Pensioner Index

¶36

Card i.e. [Annexure A-3]. It is further averred even if the petitioner has rendered 36 years service, then also, as per Rule 49 of the CCS (Pension) Rules, the full-maximum pension is admissible for 33 years of qualifying service. It is stated that the petitioner has already been granted full pension for 33 years of qualifying service in accordance with Rules and even if, the period of service from 14.10.1961 till 31.01.1965 is added as qualifying service, then also,

¶37

such addition will not confer any right on the petitioner for higher-increased pension. With these submissions prayer for dismissing the petition was made by the Respondents.

¶38

REBUTTAL BY PETITIONER-REJOINDER:

¶39

4. Original petitioner has not filed any

¶40

rejoinder to the reply-affidavit dated 31.03.2018 till his demise on 09.02.2024. However, the present

¶41

5 - 2024:HHC:11018-DB

¶42

petitioners, being the Legal Heirs of Original petitioner have filed CMP (M) 821 of 2024 , reiterating their claim for pension, gratuity as leave encashment by counting the entire service rendered from 14.10.1961 till retirement on 31.03.1998.

¶43

5. Heard Mr. Kush Sharma, learned counsel

¶44

for the petitioner, Mr. Vishav Deep Sharma, Learned Additional Advocate General, for the respondents 1, 2 and 4, as well as Mr. Lokender Paul Thakur, Learned counsel for respondent No.3 and also gone through the case records.

¶45

ANALYSIS:

¶46

6. After taking into account the entirety of

¶47

the facts and circumstances, as borne out from the writ petition and the stand of State Authorities in reply-affidavit, this Court is of the considered view, that the claim for counting the period of service from 14.10.1961 till 31.01.1965 by adding this period towards the service rendered from 31.01.1965 till retirement on 31.01.1998 so as to enable the original petitioner-deceased employee [Swai Ram] for higher

¶48

2024:HHC:11018-DB

¶49

6 -

¶50

pension based on 36 years service is not tenable, on facts as well as law, for the reasons that firstly , as per Rule 49 of the CCS (Pension) Rules the maximum-full pension is payable for 33 years of qualifying service which already stands released to deceased employee; Claim for pension for 36 years service cannot be granted de hors the provision of Rule 49 of CCS (Pension) Rules, which restricts the pension

¶51

for maximum 33 years of qualifying service; and thirdly , the provision of Rule 49 of the Rules, which caps full pension for 33 years qualifying service has not been challenged in these proceedings; and fourthly , nothing has been placed on record that pension for qualifying service beyond 33 years service [i.e. 36 years service] is admissible. In these circumstances, the claim of original petitioner as well as the present petitioner-legal heirs for higher-increased pension for 36 years of qualifying service does not stand test of judicial scrutiny and the same is accordingly disallowed

¶52

7. At this stage, Learned Counsel for the

¶53

7 - 2024:HHC:11018-DB

¶54

petitioner(s) states that, in case, entire service is reckoned from 14.10.1961 till retirement on 31.01.1998 then, the original petitioner [now deceased] and now the present petitioners, being legal heirs, are entitled for Enhanced Gratuity and Leave Encashment.

¶55

8. So far as, the claim for Enhanced Gratuity and Leave Encashment is concerned, this Court is of the considered view that the original petitioner (now deceased) has never set up a case, claiming Enhanced Gratuity and Leave Encashment. Even, the present petitioner being the legal heirs have not filed a rejoinder but a bald averment has been made in the application, for bringing on record legal heirs of original petitioner, and therefore, this claim cannot be examined in these proceedings.

¶56

9. Faced with this situation, Learned Counsel for the petitioner(s), fairly submits that the petitioners shall be satisfied, in case, they are permitted to raise a claim-grievance for Enhanced Gratuity and Leave Encashment with the competent authority or

¶57

2024:HHC:11018-DB

¶58

8 -

¶59

Respondent No.2.

¶60

10. Without commenting on admissibility or right or entitlement for Enhanced Gratuity and Leave Encashment, this Court, permits the petitioners-legal heirs herein, to make a claim for surviving grievance(s) i.e. Enhanced Gratuity and Enhanced Leave Encashment by adding he service rendered from 14.10.1961 to 31.01.1965 to Respondent No.2-Director

¶61

of Elementary Education, Himachal Pradesh, not later than 10^th of December 2024; with further directions that in case, any such representation is received; Respondent No.2-Director of Elementary Education, Himachal Pradesh, shall examine the representation and pass appropriate order(s), after affording a personal hearing to the petitioners, within six weeks, thereafter.

¶62

11. Needless to say that this court has not averted to the merits of the matter qua the claim for Enhanced Gratuity and Leave Encashment, which shall be examined, in accordance with law.

¶63

As aforesaid, the instant petition and all

¶64

2024:HHC:11018-DB

¶65