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2020 DIGILAW 362 (HP)

Reena Verma v. State of Himachal Pradesh

2020-06-26

VIVEK SINGH THAKUR

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JUDGMENT Vivek Singh Thakur, J. - Petitioner herein is a compassionate appointee, appointed as Clerk in District Headquarter, Shimla in pursuance to office order dated 8.5.2003. After undergoing medical examination on 15.5.2003, she joined her duties on 17.5.2003. After issuance of her appointment order dated 8.5.2003, but before her joining on 17.5.2003, State Government issued a notification dated 15.5.2003, whereby all appointments made in the State Government of Himachal Pradesh on or before the date of publication of notification in Rajpatra Himachal Pradesh, i.e. 15.5.2003, were excluded from application of the Central Civil Services (Pension) Rules, 1972 (in short CCS (Pension) Rules, 1972) with intention of the Government to notify Contributory Pension Scheme for such Government Servants whose appointments have been made on or after 15.5.2003. Notification dated 15.5.2003 is followed by Himachal Pradesh Civil Services Contributory Pension Rules, 2006, which have been made applicable to all Himachal Pradesh Government Employees appointed on or after 15.5.2003. 2. Grievance of the petitioner is that respondents are thrusting upon her membership of Contributory Pension Scheme by considering her an appointee of a date after 15.5.2003, i.e. 17.5.2003, the date of her joining, whereas she is entitled to be considered an appointee of a date prior to 15.5.2003, i.e. date of issuance of her appointment order dated 8.5.2003 and thus she has approached this Court seeking direction to respondents-Department to consider her to be governed by CCS (Pension) Rules, 1972 for all intends and purposes with declaration that notification dated 15.5.2003 (Annexure P-3) and Himachal Pradesh Civil Services Contributory Pension Rules, 2006 (Annexure P-6) are not applicable to the petitioner. 3. Claim of the petitioner is that her appointment letter was issued on 8.5.2003 and immediately thereafter she had approached the office of Deputy Commissioner on 12.5.2003, whereafter she was subjected to medical examination on 15.5.2003. As 16.5.2013 was a Gazetted Holiday, she joined the office on 17.5.2003 and, therefore, she is an appointee of a date prior to notification dated 15.5.2003 (Annexure P-3) and thus CCS (Pension) Rules, 1972 are applicable to her. 4. As 16.5.2013 was a Gazetted Holiday, she joined the office on 17.5.2003 and, therefore, she is an appointee of a date prior to notification dated 15.5.2003 (Annexure P-3) and thus CCS (Pension) Rules, 1972 are applicable to her. 4. Claim of petitioner has been repelled by respondents-Department on the sole ground that as she had joined her duties on 17.5.2003, she will be governed under new Contributory Pension Scheme, notified vide Department OM No. Fin.(Pen)A(3)-1/96, dated 17.8.2006 (Annexure P-6), by giving reference of notification dated 15.5.2003 (Annexure P-3), whereby all appointments made in State of Himachal Pradesh Government on or after 15.5.2003 have been excluded from application of CCS (Pension) Rules, 1972. 5. A Constitution Bench of the Apex Court in case Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and others, (1975) 3 SCC 503 , has observed that an order of appointment may be of three kinds as it may appoint a person w.e.f. the date he assumes charge of the post, or it may appoint him with immediate effect, or it may appoint him simpliciter without saying as to when the appointment shall take effect. Further that where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment, as it would be then that he is appointed. But in a case of second kind, the appointment would be effective immediately irrespective of as to when the person appointed assumes charge of the post and the date of his appointment in such a case would be the same as the date of order of appointment. In this judgment nature and effect of third kind of appointment has not been elaborated. In my opinion in third kind of appointment, the intention of the Appointing Authority is to be extracted from the language of the order as well as surrounding facts including the genesis of the process of appointment. 6. In present case appointment order dated 8.5.2003 (Annexure P-1) reads as under:- "On the approval of the F.C-cum-Secretary (Revenue) to the Government of Himachal Pradesh, Shimla-2 vide his office letter No. Rev. A(B) 2-1/2003 (Reena) dated 23rd April, 2003, the undersigned hereby appoint Km. Reena Verma D/o Late Sh. 6. In present case appointment order dated 8.5.2003 (Annexure P-1) reads as under:- "On the approval of the F.C-cum-Secretary (Revenue) to the Government of Himachal Pradesh, Shimla-2 vide his office letter No. Rev. A(B) 2-1/2003 (Reena) dated 23rd April, 2003, the undersigned hereby appoint Km. Reena Verma D/o Late Sh. Gian Chand Verma R/o Village Sumni Tehsil Kumarsain District Shimla as Clerk on compassionate grounds in the pay scale of Rs.3120-100-3220-110-3660-120-4200-140-4400- 150-5000-160-5160/- (with initial start Rs.3220/-) Plus other allowances as admissible from time to time from the date of her joining the post and she is posted at District Headquarter on the following terms and conditions." 7. The aforesaid order is neither of the first kind nor of second kind, but appears to be of third kind referred supra wherein no date to give effect to the appointment has been indicated specifically but date from which salary and allowances would be admissible, has been mentioned. In it, place of posting has been mentioned as District Headquarter, which indicates that appointment has been considered to be absolutely complete on the date of issuance of Office Order dated 8.5.2003, but subject to fulfilling certain terms and conditions mentioned in the order itself including fitness certificate. 8. From the contents of appointment order (Annexure P-1), it is evident that decision to appoint petitioner was approved by F.C.- cum-Secretary (Revenue) to the Government of Himachal Pradesh in April, 2003, which was communicated to Deputy Commissioner, Shimla vide office letter No. Rev. A(B) 2-1/2003 (Reena) dated 23.4.2003 and in sequel to the said approval, Deputy Commissioner, Shimla has issued the appointment letter dated 8.5.2003 clearly declaring that he thereby appointed petitioner as Clerk on compassionate grounds without giving any other date with respect to commencement of date of appointment, but with specific place of her posting i.e. District Headquarter. This order contains clear reference with respect to admissibility of pay scale and allowances from time to time from the date of her joining the post. Therefore, in no uncertain terms, this appointment order indicates intention of the Appointing Authority to appoint the petitioner with immediate effect. The only rider is that appointee shall be entitled for pay and allowances from the date of joining the post. Otherwise also when two interpretations are possible, interpretation beneficial to employee should be preferred. 9. Therefore, in no uncertain terms, this appointment order indicates intention of the Appointing Authority to appoint the petitioner with immediate effect. The only rider is that appointee shall be entitled for pay and allowances from the date of joining the post. Otherwise also when two interpretations are possible, interpretation beneficial to employee should be preferred. 9. The nature of order as well as intention of respondent is also reflected in the forwarding letter No. SML-EA(03)/01-Misc-1879 dated 15.5.2003 (Annexure P-2), issued from the office of Deputy Commissioner to the Chief Medical Officer, Shimla, whereby petitioner was sent for Medical Examination. In this letter it has been unambiguously stated that Kumari Reena Verma (petitioner) has been appointed as Clerk in the office of Deputy Commissioner. 10. Though not pleaded in the reply, however, submitted by learned Deputy Advocate General during arguments that in condition No. 11 in the office order dated 8.5.2003 (Annexure P-1), it is mentioned that seniority of candidate will be reckoned from the date of her joining at the concerned office and thus date of joining is to be considered her date of appointment. He has further pointed out that in the last para of this office order, it has been clearly mentioned that if the offer of appointment was acceptable to the petitioner, she had to report within 15 days from the date of issuance of order, failing which cancellation of offer was to ensue and, thus, it was not an office order of appointment, but an offer of appointment, which was accepted by petitioner by joining on 17.5.2003. Therefore, date of appointment would be 17.5.2003. 11. So far as seniority is concerned, the State may notify that the same shall be reckoned from the date of joining of the candidate, particularly, when the appointment order is an appointment order of a single candidate. However in cases of appointments of large number of persons by issuing single appointment office order, their seniority is reckoned from the date of appointment order, but not from the date of joining. Though, in last para of appointment order, this order has been termed as an offer of appointment. However in cases of appointments of large number of persons by issuing single appointment office order, their seniority is reckoned from the date of appointment order, but not from the date of joining. Though, in last para of appointment order, this order has been termed as an offer of appointment. But from the opening para of this order it is evidently clear that request of petitioner was pending before the State Government to appoint her on compassionate grounds which was accepted by State by approving the same and in sequel thereto office order of appointment was issued. Therefore, use of words offer of appointment in office order dated 8.5.2013 doesn't change its nature of letter of appointment in response to the request of the petitioner. 12. In the petition it is stated that petitioner had approached the office of Deputy Commissioner on 13.5.2003, whereas in the representation (Annexure P-7) submitted by her, this date is 12.5.2003. The said date has been endorsed by Deputy Commissioner in communication sent by him to the Government. Possibility of typographical error in petition with respect to date cannot be ruled out. However, it does not make any difference if it is even taken as 13.5.2003 as 12 and 13 both are prior to 15.5.2003. Therefore, plea of State that offer was accepted on 17.5.2003, is also not tenable for the reason that petitioner had approached the respondents immediately after receiving the letter well before 15.5.2003, i.e. on 12.5.2003 or 13.5.2003, which definitely connotes the acceptance of offer of appointment before 15.5.2003 and thus even if plea of learned Deputy Advocate General is accepted that order dated 8.5.2003 was an offer of appointment, the said offer stands accepted by the petitioner on 12.5.2003 or 13.5.2003 and this fact stands established on record, particularly when averments, with respect to approaching the State immediately after receiving office order (Annexure P-1) by the petitioner, have not been controverted or disputed by respondent-Department either in reply or otherwise. These averments are further fortified by Annexure P-2 which is dated 15.5.2003, whereby petitioner was referred for Medical Examination as this letter was issued after petitioner had approached the office of Deputy Commissioner. 13. Notification dated 15.5.2003 excludes all appointments from CCS (Pension) Rules, which were made on or after 15.5.2003. These averments are further fortified by Annexure P-2 which is dated 15.5.2003, whereby petitioner was referred for Medical Examination as this letter was issued after petitioner had approached the office of Deputy Commissioner. 13. Notification dated 15.5.2003 excludes all appointments from CCS (Pension) Rules, which were made on or after 15.5.2003. It does not say that candidates appointed prior to 15.5.2003 are also excluded, if their date of joining is on or after 15.5.2003. 14. Petitioner had approached the authority on 12.5.2003 or say on 13.5.203. It is for inefficiency on the part of administration or to say result of bad governance that petitioner was not medically examined on 12.5.2003 or 13.5.2003 or within a day thereafter, but was referred for medical examination on 15.5.2003, causing the petitioner to join her duties on 17.5.2003 as 16.5.2003 was gazetted holiday. Had her medical examination been done immediately on 12.5.2003 or within a day or two thereafter, she would have been able to join her duties well before 15.5.2003. The petitioner cannot be made to suffer for inefficiency or bad governance on the part of State or its functionaries. 15. In large number of cases of appointments by State, the date of issuance of appointment letter as well as date of medical examination and date of joining is one and the same date, despite the fact that office of issuing the appointment letters and place of the incumbents appointed thereby are situated hundreds kilometers away from each other. In some cases joining is accepted first subject to medical fitness certificate and thereafter candidate is referred for Medical Examination. Had petitioner been well connected with higher ranks of the Government, she would have also been able to receive the office order on the same date i.e. on the date of issuance and would have managed to join her duties on the very same date even after undergoing Medical Examination. 16. It is also noticeable that appointment of petitioner was approved by the Government in April, 2003 and was communicated to Deputy Commissioner vide letter dated 23.4.2003, whereas appointment order of appointment of petitioner was issued about two weeks thereafter. Here again there is laxity on the part of office of Deputy Commissioner in issuing the office order immediately after receiving the approval of Government. 17. Here again there is laxity on the part of office of Deputy Commissioner in issuing the office order immediately after receiving the approval of Government. 17. Joining of petitioner after 15.5.2003 is on account of acts to be performed by others i.e. office of Deputy Commissioner which were beyond her control and thus she is not to be made to suffer for that for no fault on her part. 18. For the discussion made herein above, it is concluded that date of appointment of petitioner, for all intends and purposes, except for seniority and payment of salary and allowances, regarding which there is specific mention in the office order, is 8.5.2003 and thus she is not excluded from application of CCS (Pension) Rules, 1972 vide notification dated 15.5.2003 (Annexure P-3) and thereby she is not covered under Himachal Pradesh Civil Services Contributory Pension Rules, 2006, but is to be governed by CCS (Pension) Rules, 1972. 19. Accordingly, the petition is allowed, in aforesaid terms, with direction to the respondents to consider the petitioner as appointee of 8.5.2003, entitled for application of CCS (Pension) Rules, 1972 for all intends and purposes and thereby extend all consequential benefits to the petitioner by taking necessary steps for the said purpose, including continuation of deduction of GPF, within one month from the date of passing of this judgment.