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Himachal Pradesh High Court · body

2023 DIGILAW 41 (HP)

Rama Mahajan v. State of Himachal Pradesh

2023-01-10

SANDEEP SHARMA

body2023
JUDGMENT : Sandeep Sharma, J. Being aggrieved with communication dated 7.11.2017 (Annexure A-11) issued under the signatures of Project Coordinator, Himachal Pradesh State Electronic Development Corporation Limited (hereinafter, ‘Corporation’), whereby request made by the petitioner to allow the benefit of pension provided under Himachal Pradesh Corporate Sector Employees (Pension, Family Pension, Commutation of Pension and Gratuity) Scheme, 1999 (hereinafter, ‘Scheme’) came to be refused, petitioner earlier approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 701 of 2018, which on abolition of the Tribunal, came to be transferred to this Court and re-registered as CWPOA No. 3472 of 2020, praying therein for following main reliefs: “i) That the Respondents may kindly be directed to hold the Applicant entitled to the benefit of grant of Pension under the provisions of Himachal Pradesh Corporate Sector Employees (Pension, Family Pension, Commutation of Pension and Gratuity) Scheme, 1999 which is equivalent to CCS Pension rules, 1972. The Applicant may also be held entitled to GPF and Death-cum-Retirement Gratuity, in the interest of justice. ii) That the impugned rejection of the representation, Annexure A-11 may kindly be quashed and set aside.” 2. For having bird’s eye view, fact, which may be relevant for the adjudication of the case the case at hand are that the petitioner was appointed as Typist-cum-Clerk in the office of respondent No. 3 on 3.9.1992 as is evident from appointment letter, Annexure A-1. Petitioner was promoted in the respondent Corporation as a Junior Assistant on 16.7.1996. By way of Notification dated 29.10.1999 issued by the Government of Himachal Pradesh, the Scheme was formulated (Annexure A-2). Aforesaid Scheme provided by way of clause 1(2) that 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 CCS (Pension) Rules, 1972, the Central Civil Service (Commutation of Pension) Rules, 1981 as amended and adopted by the Himachal Pradesh Government for the State Government employees, save as otherwise provided in this scheme. 3. The Scheme was duly adopted by respondent No.3. In terms of aforesaid Scheme, petitioner was called upon to exercise option on prescribed format by respondent No.3 by way of letter dated 27.11.1999 Annexure A-3. In response to the same, petitioner exercised her option on 29.11.1999 (Annexure A-4). 3. The Scheme was duly adopted by respondent No.3. In terms of aforesaid Scheme, petitioner was called upon to exercise option on prescribed format by respondent No.3 by way of letter dated 27.11.1999 Annexure A-3. In response to the same, petitioner exercised her option on 29.11.1999 (Annexure A-4). By way of said option, petitioner opted for the Scheme, however, vide Notification dated 2.12.2004,aforesaid Scheme was repealed by Government with condition that the employees of Himachal Pradesh Corporate Sector, who retired from services w.e.f. 1.4.1999 to the date of publication of this Notification, shall continue to be governed under the provisions of the scheme so repealed, provided such retired employees have opted for such Scheme and have otherwise become eligible for pension under the Scheme. (Annexure A-5). 4. Petitioner, who was working as a Junior Assistant with respondent No.3, came to be appointed as a Junior Assistant with respondent No.2 on deputation by way of office order dated 23.8.2001 (Annexure A-6) In the office of respondent No.2 petitioner was promoted as a Senior Assistant by way of office order dated 11.1.2002 Annexure A-7. Subsequently vide office order dated 30.10.2004 (Annexure A-8), petitioner was permanently absorbed with respondent No. 2. Technical resignation submitted by petitioner from the post of Junior Assistant in the office of respondent No.3, was from the date of permanent absorption i.e. 30.10.2004. (Annexure A-9). 5. Since the Scheme remained in operation with effect from 1.4.1999 to 2.12.2004 and petitioner had left the pensionable establishment in order to take up job in respondent No.2, she staked her claim for grant of pension in terms of Scheme. However, fact remains that the prayer of the petitioner was not accepted. Though, in the case at hand, petitioner before joining respondent No.2 on deputation had opted for the Scheme and such Scheme stood implemented in respondent No.3 from the date of its promulgation i.e. 1.4.1999, petitioner had become eligible for pension in terms of said Scheme. No doubt, said Scheme was repealed but Notification dated 2.12.2004 clearly provided that the employees of Himachal Pradesh Corporate Sector, who retired from services w.e.f. 1.4.1999 to the date of publication of this Notification, shall continue to be governed under the provisions of the scheme so repealed, provided such retired employees have opted for such Scheme and have otherwise become eligible for pension under the Scheme. 6. 6. Since in the case at hand, petitioner had opted for the Scheme coupled with the fact that her technical resignation stood accepted on 30.10.2004 i.e. well before cut-off date of 2.12.2004, she was required to be covered under the Scheme. Petitioner submitted a detailed representation to the respondent No. 3 pointing out her grievance and right to be covered under the pension but respondent No.3 rejected the representation (Annexure A-10) vide letter dated 7.11.2017 (Annexure A-11). In the aforesaid background, petitioner-approached Himachal Pradesh Administrative Tribunal by way of Original Application praying therein for the reliefs, as reproduced herein above. 7. Pursuant to notice issued in the instant proceedings, respondents have filed their replies, perusal whereof reveals that the facts as noticed herein above are not in dispute, rather stand admitted, rather, respondents Nos. 2 and 3 without denying the right of the petitioner are shifting the liability upon each other. 8. Though respondent No.3 has admitted factum with regard to initial appointment of the petitioner with it and exercise of option for the Scheme but claimed that since after having exercised option, petitioner joined respondent No.2 on deputation basis and had been permanently absorbed, pension claim, if any, in terms of Scheme is to be considered by respondent No.2. 9. On the other hand, case of respondent No.2 is that issue with regard to entitlement of pension, if any, in terms of the Scheme is to be decided by parent organization i.e. respondent No.3, especially when petitioner had opted for the Scheme, while she was in service with respondent No.3. 10. It has been claimed by respondent No.2 that entire amount of GPF deposited by petitioner was refunded to parent organization of petitioner and as such, in any eventuality, amount, if any, on account of GPF is to be paid by respondent No.3. Lastly, learned counsel for the respondent No.2 submitted that at no point of time, representation if any, ever came to be made to respondent No.2 by petitioner rather, prayer for release of pensionary benefits in terms of the Scheme was made to respondent No.3 being parent department and no relief, if any, can be granted against respondent No.2. 11. Lastly, learned counsel for the respondent No.2 submitted that at no point of time, representation if any, ever came to be made to respondent No.2 by petitioner rather, prayer for release of pensionary benefits in terms of the Scheme was made to respondent No.3 being parent department and no relief, if any, can be granted against respondent No.2. 11. Having heard learned counsel for the parties and perused the material available on record, this court finds that though the petitioner herein at first instance was appointed as Typist-cum-Clerk with respondent No.3 and then promoted as Junior Assistant in that office itself, but subsequently, she was sent to office of respondent No.2, on deputation, where she was not only promoted to higher post but permanently absorbed. It is not in dispute that while petitioner was in service with respondent No.3, the Scheme came to be formulated and pursuant to that scheme, petitioner exercised her option for pension in terms of said Scheme. 12. After having exercised her option, petitioner was sent on deputation basis to respondent No.2 where, the petitioner in terms of the Scheme and in terms of absorption order continued to subscribe towards GPF. No doubt, the Scheme was repealed vide Notification dated 2.12.2004, but aforesaid Notification clearly provided that all the employees of Himachal Pradesh Corporate Sector, who retired from service with effect from 1.4.1999 to 2.12.2004, shall be continued to be governed under the Scheme, provided that such employees had opted for the Scheme and otherwise had become eligible for the same. 13. In the instant case, petitioner being employee of respondent No.3 exercised option and opted for pension scheme. Besides above, she also started contributing towards GPF, but before issuance of Notification with regard to repealment of said scheme, her service stood transferred to the respondent No.2 on secondment basis where she was not only promoted but permanently absorbed. 14. Mr. 13. In the instant case, petitioner being employee of respondent No.3 exercised option and opted for pension scheme. Besides above, she also started contributing towards GPF, but before issuance of Notification with regard to repealment of said scheme, her service stood transferred to the respondent No.2 on secondment basis where she was not only promoted but permanently absorbed. 14. Mr. Neeraj Gupta, Senior Advocate with Vedhant Ranta, Advocate for the petitioner argued that though Scheme was repealed but since the petitioner had opted for such scheme and was making contribution towards GPF, while in service with respondent No.3 or during her service with respondent No.2, she continued to be governed by the Scheme in view of clarification given in Notification dated 2.12.2004, wherein it is provided that employees of Himachal Pradesh corporate sector, who retired from services with effect from 1.4.1999 to the date of publication of the Notification dated 2.12.2004, shall continue to be governed under the provisions of the Scheme so repealed, provided such retired employees have opted for such Scheme and have otherwise become eligible for pension under the Scheme. Mr. Gupta states that since at the time of her absorption, petitioner tendered technical resignation as is evident from Annexure A-8 and same was duly accepted by respondent No.3 and thereafter, petitioner was absorbed permanently by respondent No.2 on 30.10.2004, she is entitled to be given benefit of proviso to Notification dated 2.12.2004 especially when there is no dispute that the petitioner had tendered technical resignation on 30.10.2004 and was absorbed in respondent No.2 on 30.10.2004 i.e. much prior to 2.12.2004 i.e. date of repeal. Mr. Gupta, learned senior counsel invited attention of this court to clause 5 of Annexure A-8, which reads as under: “5. The employer’s contribution of CPF will be credited to the Government account and employees subscription will be credited to employees GPF account to be opened immediately on absorption, without waiting for one year service condition, in accordance with Rule 35-A of GPF Rules read with Rule 36 of GPF Rules. She will be entitled to GPF and not the CPF in the Commission subject, however, to the approval of the HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004. 15. She will be entitled to GPF and not the CPF in the Commission subject, however, to the approval of the HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004. 15. As per absorption order, employer’s contribution of CPF is/was to be credited to the Government account and employees subscription is/was to be credited to employees GPF account to be opened immediately on absorption, without waiting for one year service condition, in accordance with Rule 35-A of GPF Rules read with Rule 36 of GPF Rules. 16. Careful perusal of Clause 5 clearly reveals that petitioner was entitled to GPF and not CPF in the respondent No. 2, subject to approval of HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004. 17. Annexure A-12, dated 18.4.2013, issued by Himachal Pradesh State Electricity Regulatory Commission clearly provides that from the date of appointment on absorption after 15-5-2003, all employees shall automatically be covered under the Himachal Pradesh Civil Services Contributory Pension Rules, 2006 unless other terms and conditions have been given in their absorption orders. Clause (iv) of the aforesaid annexure reads as under: “(iv) From the date of appointment on absorption after 15-5-2003, all employees shall automatically be covered under the Himachal Pradesh Civil Services Contributory Pension Rules, 2006 unless other terms and conditions have been given in their absorption orders.” 18. While inviting attention of this court to clauses contained in Notification dated 18.4.2013, learned senior counsel appearing for the petitioner argued that there is nothing contrary contained in the absorption order Annexure A-8 therefore, the petitioner is governed under the absorption order, Annexure A-8. 19. Having carefully perused the absorption order, Annexure A-8 and Notification dated 18.4.2013, Annexure P-12, this court finds merit in the submission of Mr. Neeraj Gupta, learned senior counsel for the petitioner. 20. Careful perusal of absorption order clearly reveals that immediately after absorption, while issuing absorption order, it was made clear that the petitioners contribution of CPF will be credited to the Government account and employees subscription will be credited to employees GPF account to be opened immediately on absorption, without waiting for one year service condition, in accordance with Rule 35-A of GPF Rules read with Rule 36 of GPF Rules. However, same was subject to approval of HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004. 21. However, same was subject to approval of HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004. 21. Vide Notification dated 18.4.2013, Annexure P-12, whereby HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004, came into existence, clearly provided that from date of appointment/absorption from 15.5.2003 all employees shall be covered under Himachal Pradesh Civil Services Contributory Pension Rules, 2006, unless other terms and conditions are given in their absorption order. Since there are no other terms and conditions given in the absorption order, rather, there is clear cut mention of terms and conditions of service (Annexure A-8), clause 5, the HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004, that the petitioner would be entitled to GPF and not CPF, case of the petitioner is/was required to be considered for pension in terms of absorption order (Annexure A-8). 22. Office Memorandum dated 8.4.2016, issued by Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, speaks about effect of tendering technical resignation, specifically deals with effect of technical resignation on applicability of pension scheme. Clause 2.6 of scheme reads as under: “2.6 Applicability of Pension Scheme In cases, where Government servants, who had originally joined Government service prior to 01.01.2004, apply for posts in the same or other Departments and on selection they are asked to tender technical resignation, the past services are counted towards pension if the new post is in a pensionable establishment in terms of Rule 26(2) of CCS(Pension) Rules, 1972.” 23. Careful perusal of aforesaid provisions reveals that Government servants, who had originally joined Government service prior to 01.01.2004, apply for posts in the same or other Departments and on selection they are asked to tender technical resignation, the past services are counted towards pension if the new post is in a pensionable establishment in terms of Rule 26(2) of CCS(Pension) Rules, 1972. 24. Rule 26.2 of CCS (Pension) Rules, 1972, provides that the technical resignation does not entail forfeiture of service rather, past services are to be counted towards pension, if new post is in pensionable establishment. 25. 24. Rule 26.2 of CCS (Pension) Rules, 1972, provides that the technical resignation does not entail forfeiture of service rather, past services are to be counted towards pension, if new post is in pensionable establishment. 25. In the case at hand, as has been discussed above, though petitioner was appointed initially with respondent No.3 but after having exercised option in terms of Scheme, she joined office of respondent No.2 that too after tendering technical resignation, which was accepted and petitioner was permitted to join in the office of respondent No.2 26. Apart from above, there is on dispute that respondent No.2 after permitting the petitioner to join the Department, also allowed her to continue to make subscription towards GPF as was being done by her in parent department, respondent No.3 prior to her absorption in respondent no.2 office. Moreover, careful perusal of Annexure P-14, dated 3.9.2015, annexed with CMP No. 929 of 2022, reveals that consequent upon Notification of HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004, as per regulation 7 of the said regulations, staff absorbed permanently in commission was ordered to be governed under Central Civil Services (Pension) Rules 1972. Perusal of same reveals that vide aforesaid office order amount of leave encashment received by them from parent Department and interest thereupon from time to time was ordered to be credited into account of the petitioner. Annexure of said communication reveals that Rs. 1,69,073 was released to the petitioner on account of leave encashment. Communication issued on 20.12.2017 issued by Secretary of respondent No.2 suggests that consequent upon Notification of HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004, it was decided that Government employees covered under new Pension System shall be eligible for the benefit of retirement gratuity and death gratuity on the terms and conditions as are applicable to the employees covered under CCS (Pension) Rules, 1972 subject to a maximum of 12 ½ times of the emoluments (i.e. 25 years qualifying service). In terms of said office order, gratuity to the tune of Rs. 94,586/- already stands released to the petitioner. 27. In terms of said office order, gratuity to the tune of Rs. 94,586/- already stands released to the petitioner. 27. Since gratuity and leave encashment are components of pension in terms of clause (o) of rule 3(1) of Central Civil Services (Pension) Rules, 1972, it does not in lie in the mouth of the respondents to claim at this stage that petitioner is not entitled to pension in terms of the scheme. 28. In view of above, this court finds merit in the claim of the petitioner as such, prayer made on her behalf for issuing direction to the respondents to grant her pension under Scheme deserves to be allowed. As noted above, no specific denial with regard to entitlement of the petitioner pension under Scheme has been made by respondent Nos. 2 and 3, but dispute inter se them is with regard to liability to pay. As per respondent No.2 liability to pay pension under the Scheme is of respondent No.3 being parent department of the petitioner, whereas claim of respondent No.3 is that petitioner rendered majority of service with respondent No.2, and after having exercised option in terms of Scheme, she was absorbed in respondent No.2 and it was stipulated in absorption order that she would be covered as per absorption order, in terms of HPERC (Terms and Conditions of Services of Officers and Employees) Regulations, 2004 and as such, pension if any is to be given by respondent No.2. Since respondent No.2, while permanently absorbing petitioner in its establishment specifically ordered that she will be entitled to pension under Scheme (Annexure A-8) and the employer’s contribution of CPF will be credited to the Government account and employees subscription will be credited to employees GPF account to be opened immediately on absorption, without waiting for one year service condition in accordance with Rules 35-A and 36 of GPF Rules. Pursuant to the aforesaid order, petitioner kept on subscribing towards GPF, which was subsequently stopped abruptly by respondent No.2 on the pretext that since the petitioner is not covered under the Scheme. However, aforesaid plea set up by respondent No.2 is not tenable. Liability, if any to pay pension is of respondent No.2 especially, when it is not in dispute that respondent No.2 ordered for permanent absorption of petitioner in its organization, after having accepted her technical resignation. 29. However, aforesaid plea set up by respondent No.2 is not tenable. Liability, if any to pay pension is of respondent No.2 especially, when it is not in dispute that respondent No.2 ordered for permanent absorption of petitioner in its organization, after having accepted her technical resignation. 29. At the cost of repetition, it may be observed that as per Clause 2.6 of Office Memorandum dated 8.1.2016 issued by Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, in cases, where Government servants, who had originally joined Government service prior to 01.01.2004, apply for posts in the same or other Departments and on selection they are asked to tender technical resignation, the past services are counted towards pension if the new post is in a pensionable establishment in terms of Rule 26(2) of CCS(Pension) Rules, 1972. 30. Since, it is not in dispute that Scheme is in vogue in respondent No.2 corporation, case of the petitioner for grant of pensionary benefits in terms of the same, deserves to be considered by respondent No.2, however, contribution made to GPF while in service with respondent No.2 which has been claimed to be refunded to parent department, respondent No.3 as per annexure 2/A is required to be refunded to respondent No. 2 by respondent No.3 enabling it to continue GPF account of the petitioner in terms of directions contained in the instant judgment. 31. Consequently in view of above, present petition is allowed and respondent No.2 is directed to grant pension to the petitioner from due date in terms of Scheme, 1999. Respondent No.2 is also directed to revive the GPF account of petitioner from the date, it was closed in terms of Notification dated 17.2.2007, Annexure R-2/A (p.45) and amount if any received by respondent No.3 on count of GPF/EPF of petitioner, if any refunded by the respondent No.2 be refunded back to the respondent No.2 enabling it to reopen the account of GPF of the petitioner. NPS fund lying under NPS is directed to be transferred to GPF with all benefits accrued thereupon from the date of closure of GPF account. 32. Since the petitioner has been fighting for her rightful claim for so many years, this court hopes and trusts that needful shall be done by respondents. expeditiously, preferably within a period of eight weeks. list thereafter. 33. 32. Since the petitioner has been fighting for her rightful claim for so many years, this court hopes and trusts that needful shall be done by respondents. expeditiously, preferably within a period of eight weeks. list thereafter. 33. The petition stands disposed of in the afore terms, alongwith all pending applications.