Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 10 (HP)

PRITHVI RAJ v. STATE OF HP

2003-01-09

NARINDER SINGH THAKUR

body2003
JUDGMENT ORDER Narinder Thakur, Vice Chairman: - The applicants four in number joined service in Animal Husbandry as under"- (1) Applicant No.1 as a mechanic on 2.12.1974. (2) Applicant No. 2 as Dairy Supervisor on 13.7.1975 (3) Applicant No. 3 as a Transport mechanic on 13.2.1976. (4) Applicant No. 4 as a Driver on 10.12.1984 2. After some time they gave their options to join in the Milk Federation. Their services were terminated after sometime by the Milk Federation and they filed a Writ petition before the Honble High Court which was ordered to be transferred as TA No. 880/86 to this Tribunal. The Tribunal gave directions on May 22,1991 (Annexure-A-6) that the period of services rendered by the applicants and other similarly situated persons with the Milk Federation be treated as on deputation period so as to make them eligible for pensionary benefits on completion of 10 years of service These directions were complied with and the applicants were treated to be on deputation with Federation till they completed their ten years of service, so as to make them eligible for pensionary benefits. However, a new controversy was raised to dis-entitle the applicants for pensionary benefits in as-much as it has been contended vide impugned order Annexure-A/1 coupled with A-12 to A-15 that the applicants were not confirmed employee and therefore, they are not entitled for pensionary benefits. So far as the confirmation of an employee on a post where he was served for long spell of service is concerned, the same has been dealt with in the judgments annexed with the original Application and it is quite unholy on the part of the respondents to raise the same objection time and again against each employee separately. It appears from the pleadings that this is not the only hurdle in granting pension to the applicants. But the moot question remains that whether otherwise also are these employees entitled for pensionary benefits on completion of more 10 years of service or are they required to render more service. I am not expressing my views on this aspect of the matter as it is yet to be considered by the competent authority. 3. But the moot question remains that whether otherwise also are these employees entitled for pensionary benefits on completion of more 10 years of service or are they required to render more service. I am not expressing my views on this aspect of the matter as it is yet to be considered by the competent authority. 3. On perusal of reply filed on behalf of respondent No.1, 2 and 4 it has been revealed that the stand of the respondents State is that the applicants cannot be confirmed retrospectively due to non-availability of permanent posts and the stand of respondent No. 4 is that so long an employee is not confirmed in the Govt. Department, he is not entitled for pensionary benefits. 4. During the course of arguments the learned counsel for the parties had referred the various provisions laid down for implementation of pension scheme of CCS Pension Rules, 1972, Rule 2 of CCS Pension Rules, 1972 states in most unambiguous terms that there is no distinction between permanent and temporary employees in the application of pension rules. It has further been laid down in this rule that the confirmation is de-linked from the availability of permanent vacancy in the grade. In other words an officer who has successfully completed the probation may be considered for confirmation and since all the persons who complete probation in the first appointment will be declared as permanent, the present distinction between permanent and temporary employees for the grant of pension and other pensionary benefits will cease to exist. Similar provisions have been mentioned in the Fundamental and Supplementary Rule 13, Civil Service Regulations Article 202 para 4.1 and in other books of Service Rules. The attention of this Court was also drawn to the procedure as laid down in the Hand book on personnel Matters Rule 14.6 volume 1 in which the following instructions have been laid down; "14.6 conversion of temporary post into permanent ones: (i) be from prospective effect. It is made clear that conversion of temporary posts into permanent one is done from the date of issue of orders or of from a prospective date the employees do not suffer on account of administrative delay, reviews to convert temporary posts into permanent one should be undertaken well in time at suitable intervals which should of be of less than a year; (HP. Govt. Finance Deptt. Govt. Finance Deptt. O.A No. 12-46/64 -Fin (R&E)-11 dated 6.9.1979 Annexure 14.3) (ii) Percentage on conversion of posts in permanent offices and establishments; 80% of the posts (Other than class-1V posts and posts relating to educational institutions) which have been in existence for Hot less than three years and are likely to be required on permanent basic can converted into permanent ones. In the case of Class-1v posts, only 50% of such posts which have been in existence for a continuous period of not less than five years (see sub-para below for changed provision from 1.9.1979) and are required for work of permanent nature can be converted and in the case of educational Institutions where the enrolment has stabilized, all the teaching posts can be converted into permanent one; (HP. Govt. Deptt. of Personnel letter No. 8-55/73-DP (Aptt) dated 29.5.1997 (Annexure-14.2). With effect from 1st September, 1979, the criteria of 80% of those posts which have been in existence for a continuous period of not less than three years shall also apply in cases of conversion of class-1V posts into permanent ones. (H.P. Govt. Finance Deptt. O.M. No. 12/46/64-Fin (R&E) 11 dated 6.9.1979) (Annexure-14.3) 5. Relying on the above instructions the learned counsel has argued, that the above instructions required that 80% of the posts (other than class-1V posts and posts relating to educational institutions) which have been in existence for not less than three years were required to be converted into permanent ones. Para 14.6 of these instructions clearly lays stress that this conversion is necessary so that the employees should not suffer on account of administrative delay. Review to convert the temporary posts into permanent one should be undertaken well in time at suitable intervals. Such intervals should not be of less than one year. The applicants had been in continuous and regular service of the respondents for more than 8-9 years when the H.P. Milk Federations came into vogue in the year. 1983 and it was therefore a duty of incumbent upon the respondent 1 and 2 to have taken up the matter for conversion of these temporary posts in-to permanent ones in the year 75-76. 1983 and it was therefore a duty of incumbent upon the respondent 1 and 2 to have taken up the matter for conversion of these temporary posts in-to permanent ones in the year 75-76. the services of the applicants were transferred to Milk Federation on the clear understanding that in the Milk Supply Federation they will not be less advantageous than the terms and conditions applicable to them at the time of transfer of their services and notification number A-7 is an exercise in that very direction. The applicants have completed their ten years service in the year 1984 and 1985 and 1986 which includes the service of the department and on deputation with Milk Supply Federation. Further more Annexure-A/8 to A-11 which are the individual notifications issued in favour of each of the applicant are that the Governor of Himachal Pradesh is pleased to order the permanent absorption of the concerned applicant permanent employee of the Animal Husbandry Department in the H.P. State C-operative Milk Producers Federation Limited an autonomous body with effect from the dates cited against each of the applicant and keeping all these facts in view, there is no force in the communications issued by respondent number 4 attached as Annexure-A/12 to A-15 that the applicants are not the permanent employees of the Animal Husbandry Department and thus not eligible for pensionary benefits on the completion of ten years of service. The present original Application is disposed of with the directions that the respondent. Accountant General will not raise the objection with regards to the confirmation of the applicants in their parent department. They will process the pensionary case of the applicants as if they were confirmed employee, and give them all the admissible pensionary benefits for which they are otherwise eligible under the rules and regulations. In case they are found eligible for arrears of the same for the period three years prior to filing of the present Original Application in accordance with law. These directions will be complied with within two months from this order. With these aforesaid observations and directions the Original Application stands disposed of with no order as to costs.