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2014 DIGILAW 1610 (HP)

State of Himachal Pradesh v. Man Mohini Sharma

2014-11-12

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. Since common question of law and fact is involved in both these appeals, the same are taken up together for disposal. 2. The respondents- writ petitioners had worked as Assistant Surgeon and Assistant Professor, respectively, in the department of Health and Medical Education, Jammu and Kashmir. Dr. Man Mohini Sharma served the Government of Jammu and Kashmir from 1967 to 1983, while Dr. Bharat Bhushan served there from 1966 to 1980. Undisputedly, both of them applied through proper channel for the post of Lecturer/ Assistant Professor at Indira Gandhi Medical College (IGMC), Shimla and after being relieved on 12.4.1983 and 10.12.1980 joined immediately on 12.4.1983 and 12.12.1980, respectively. After joining at Shimla, the petitioners made various representations for counting the service rendered by them with the Jammu and Kashmir Government for the purpose of pensionary benefits. Pursuant to which various inquiries were held and Government of Jammu and Kashmir vide letter dated 29.7.1999 unequivocally and unconditionally gave their no objection in case the service of the petitioners rendered by them with the Government of Jammu and Kashmir is counted for the purpose of pension. 3. Thereafter the State Government appears to have sought a clarification from the Principal, Indira Gandhi Medical College to the effect as to whether the resignation tendered by the writ petitioners was required for administrative reasons or for satisfying a technical requirement. The State of Jammu and Kashmir informed that the resignation was on account of administrative reasons for satisfying the technical requirement and not for any other reason. Despite all these communications, when the appellants failed to count the service rendered by the writ petitioners in the State of Jammu and Kashmir for the purpose of pension, they filed the Original Applications before the erstwhile Tribunal. 4. Out of them, one of the petitions being OA No. 1837 of 2008 preferred by Bharat Bhushan Sharma came to be dismissed on 3.5.2006 on the ground that unless and until there was reciprocal arrangement or unless the Government of Jammu and Kashmir agreed for proportionate contributory liability, the services of the petitioners therein could not be counted. 5. 4. Out of them, one of the petitions being OA No. 1837 of 2008 preferred by Bharat Bhushan Sharma came to be dismissed on 3.5.2006 on the ground that unless and until there was reciprocal arrangement or unless the Government of Jammu and Kashmir agreed for proportionate contributory liability, the services of the petitioners therein could not be counted. 5. Against this finding, Civil Review (T) No. 20 of 2008 was preferred by Bharat Bhushan Sharma respondent herein, which came to be allowed on 25.10.2010, wherein this court observed as under:- "Inviting reference to 14(2)(b) of CCS (Pension) Rules, it is submitted that liability is to be borne by the Government under whom the petitioner served at the time of retirement. This aspect of the matter has not been considered in the order. Therefore, the review petition is allowed and the order dated 3.5.2006 is recalled." Upon closure of the Administrative Tribunal, these petitions were transferred to this court and were registered as CWP(T) No. 33 of 2010 and CWP(T) No. 3073 of 2008 respectively. The petition filed by Bharat Bhushan Sharma was disposed of with the following observations:- "The petition is filed with the following prayer:- "(i) That respondents No. 1 to 3 be directed to count the service of 14 years, 4 months and 4 days (with effect from 15.8.66 to 11.12.80) rendered by the applicant under the State of Jammu and Kashmir prior to the joining the service of respondent No. 1 for the purpose of all pensionary benefits and after doing so, the necessary instructions be conveyed to the respondent No. 4 for calculating revised pension and gratuity and any other benefit payable to the applicant on this account." 2. It is stated in the reply at Paras 6(i) to 6(xii) as follows:- "Matter of record and hence not denied. However, it is stated that the request of Dr. Bharat Bhushan Sharma (applicant) for counting of his past service rendered under the Jammu and Kashmir Govt. is under consideration of the Govt. under the rules with the clear condition/understanding that the doctor concerned was appointed in IG Medical College, Shimla on the basis of his application received through proper channel in the H.P. Public Service Commission and that he was relieved by his parent organisation in J and K for joining the new assignment in HP and was governed under GPF rules in his parent organization. From the perusal of copies annexed by the applicant with his application, it is evident that the replying respondent is processing the case for counting his past service rendered under the J and K Govt. on the above lines and will arrive at a decision at the earliest after completion of all formalities. It is wrong to say that the J and K Govt. has supplied the entire information sought by the Replying respondent as alleged by the applicant. In fact, the J and K Govt. has not responded to the specific query raised by the Replying Respondent through Principal IG Medical College Shimla to the effect whether the State Govt. of J and K will bear the proportionate pensionary liability in respect of service rendered by the applicant under the J and K Govt. to the extent such service would have been qualified for the grant of pension under the rules on service share basis. Similarly, the J and K Govt. has not informed whether the amount of GPF alongwith interest thereon was transferred by the AG J and K to AGHP or not and if yes, the detail of transfer and if not reasons thereof. The Replying Respondent have no objection to the counting of past service rendered by the applicant for pensionary benefits in case the J and K Govt. gives its specific acceptance to bear the proportionate pensionary liability on service share basis. The Principal IGMC in his letter annexed at Annexure RA has informed that reply of the J and K Govt. is awaited and will be supplied as and when received. From the position narrated above, it is evident that request of the applicant is under consideration of the Govt. and appropriate decision will be taken as and when specific information called for is received. The Replying Respondent has again taken up the matter with the J and K Govt. vide copy of letter annexed at R'B' to expedite the information enabling the Replying Respondent to take a decision at the earliest. The Replying Respondent is keen that the case is processed at the earliest in order to redress the grievances of the applicant under the rules." 3. vide copy of letter annexed at R'B' to expedite the information enabling the Replying Respondent to take a decision at the earliest. The Replying Respondent is keen that the case is processed at the earliest in order to redress the grievances of the applicant under the rules." 3. Reference is invited to Government of India decision No. 5(2)(b) below Rule 14 of the CCS(Pension) Rules, 1972, which reads as follows:- "The liability for pension including gratuity will be borne in full by the Central/State Department to which the Government servant permanently belongs at the time of retirement. No recovery of proportionate pension will be made from Central/State Government under whom he had served." "4. It is submitted that the petitioner is entitled to get full pension of the services rendered in Jammu and Kashmir. There will be a direction to the first respondent to take a final decision in the matter and settle the pension case of the petitioner in the light of the Government of India's decision (No. 5(2)(b) below Rule 14 of the CCS (Pension) Rules, 1972), if not already taken, within two months from the date of production of copy of this judgment by the petitioner. Needless to say, eligible benefits, if any, to which the petitioner is entitled, shall be disbursed to him within another one month. The question of interest is left open." 6. In compliance to the aforesaid orders of this court, the appellants after reproducing the orders of this court, decided the matter in the following terms:- "FD observes that the H.P. Govt. do not have any reciprocal agreement with J and K Govt. for sharing person and leave salary contribution and J and K Govt. has refused to bear proportionate pensionary liabilities of both these doctors." 7. Aggrieved yet again by the orders passed by the appellants, the petitioners approached this court by filing CWP Nos. 4295 & 4296 of 2012 challenging the orders passed by the appellants. The learned single Judge allowed these petitions by observing as under:- "6. This is no decision in the eyes of law. The only ground urged by the State is to deny pension to the petitioners on grounds which are untenable and against the very provision of the Pension Regulations. The learned single Judge allowed these petitions by observing as under:- "6. This is no decision in the eyes of law. The only ground urged by the State is to deny pension to the petitioners on grounds which are untenable and against the very provision of the Pension Regulations. I find it extremely distressing that the direction issued by this Court should be left to the judgment of some lower rank Clerk in the secretariat who recommends to the Secretary (Health) to the Govt. of H.P. that there is no agreement with Jammu and Kashmir Government for sharing proportionate pensionary liability of both doctors. Rule 14(2)(b) clearly provided that: "2............................................................. (a)............................................................ (b) Pension: The liability for pension including gratuity will be borne in full by the Central/State Department to which the Government servant permanently belongs at the time of retirement. No recovery of proportionate pension will be made from Central/State Government under whom he had served" 7. Learned counsel appearing for the petitioner relies upon the decision in Prof. Dr. R.R. Sharma (Retd.) v. Post Graduate Institute of Medical Education and Research, Chandigarh, 2000 (1) SCT 565, holding: "12. The writ petition is allowed. The Post Graduate Institute is directed to pay to the petitioner the full amount of pension and the full amount of gratuity counting his qualifying and continuous combined service from September 25, 1954. This shall be done without any more waiting for the receipt of the proportionate amount from the Uttar Pradesh Government and the Karnal Institute. The arrears shall be paid to the petitioner within three months from the date of this order with interest at the rate of 12% per annum from November 1, 1991 till the date of payment. The Post Graduate Institute shall be at liberty to recover the amount of proportionate liability from the Uttar Pradesh Government and the Karnal Institute. It is further ordered that the Uttar Pradesh Government and the Karnal Institute shall pay the proportionate amount towards pension and gratuity to the Post Graduate Institute within three months from the date of this order." 8. It is further ordered that the Uttar Pradesh Government and the Karnal Institute shall pay the proportionate amount towards pension and gratuity to the Post Graduate Institute within three months from the date of this order." 8. It is against this judgment that the appellants are before this court and alleged that the findings recorded by the learned single Judge are contrary to the provisions of CCS (Pension) Rules, 1972, which were inapplicable to the case of the petitioners, since they were erstwhile employees of the Jammu and Kashmir Government and governed by Jammu and Kashmir Civil Service Regulations. We have heard the learned counsel for the parties and gone through the records. 9. It is extremely distressing to note that despite the repeated observations of the court, the respondents have again rejected the claim of the writ petitioners only on account of their being no reciprocal arrangement with Jammu and Kashmir Government for sharing person and leave, salary contribution and that the Government of J and K had refused to bear proportionate pensionary liability of both these writ petitioners. What is more shocking is that this opinion is not even that of the employer i.e. Secretary (Health) who was to decide the case, but is in fact an opinion of the Finance Department. 10. Admittedly, the appellants herein did not challenge the findings recorded in the review petition which have attained finality and are now therefore clearly estopped from rejecting the claim of the writ petitioners on a ground which was already held to be not tenable. 11. Having said so, we still proceed to test the argument of the appellants that the writ petitioners were not entitled to counting of service rendered by them in the State of Jammu and Kashmir in view of CCS (Pension) Rules not being applicable to them and they being governed by the Jammu and Kashmir Civil Services Regulations. 12. We find no merit in the contention raised by the appellants for more than one reason. 12. We find no merit in the contention raised by the appellants for more than one reason. Firstly, the appellants were required to comply with the directions passed by the Division Bench of this Court in CWP(T) No. 33 of 2010, wherein after taking into consideration the respective stand of the parties, this court had issued specific direction to the appellants to settle the pension case of the writ petitions in light of the Government of India's decision contained in decision No. 5(2)(b) below Rule 14, which reads thus:- "The liability for pension including gratuity will be borne in full by the Central/ State Department to which the Government servant permanently belongs at the time of retirement. No recovery of proportionate pension will be made from Central/ State Government under whom he had served." Once this is the position, it was not open to the appellants to have rejected the claim of the writ petitioners on any other ground and the decision was required to be taken strictly in accordance with the directions so issued. 13. Secondly, this very plea of the appellants had already been negated by this court while allowing Civil Review (T) No. 20 of 2008. 14. Thirdly, decision No. 5(2)(b) of Rule 14 of CCS (Pension) Rules, 1972 categorically provides that liability for pension including gratuity will be borne in full by the Central/ State Government to which the Government servant permanently belongs at the time of retirement and no recovery of proportionate pension will be made from Central/ State Government under whom he has served. The provisions of the rule are absolutely clear and unambiguous and do not contemplate any reciprocal agreement between two States for sharing persons and leave, salary contribution. Even otherwise the State of Himachal Pradesh is always at liberty to recover the proportionate liability from the State of Jammu and Kashmir. The mere fact that the State of Himachal Pradesh has not been able to recover the proportionate liability from the State of Jammu and Kashmir or that the State of Jammu and Kashmir has refused to bear proportionate pensionary liabilities of the respondents cannot be a ground to deny the benefit of the rule to the respondents. 15. Accordingly, we find no merit in these appeals and the same are dismissed, leaving the parties to bear their own costs. Appeals dismissed.