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2025 DIGILAW 564 (HP)

Shobhni Devi v. State of Himachal Pradesh

2025-04-01

SATYEN VAIDYA

body2025
JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioner has prayed for following substantive reliefs: - (a) That the impugned action of the respondent whereby the petitioner has been retired at the age of 58 years may be held illegal. The petitioner may be held entitled from retirement on 31.12.2019 instead of 31.12.2017 in terms of judgment passed in CWP No. 2711 of 2017 with all the consequential benefits in terms of the judgment; (b) That the respondent department may be directed to count half of the contingent paid service of the petitioner w.e.f. 25.08.2008 to 15.07.2010 towards qualifying service. By applying the instructions issued by the Government, the petitioner shall be having qualifying service of ten years and four months and the petitioner may be held entitled to receive pension and other terminal benefits in terms of the CCS (CCA) pension Rules. (c) That the petitioner may be held entitled to receive the terminal benefits as per the pension scheme applicable to the government employees prior to the year 2003. 2. The facts, as are relevant for adjudication of the instant petition and as have emerged from the pleadings of the parties, documents filed on the file and instructions placed by respondents on record, are that the petitioner was engaged as part time Water Carrier in the respondents/Department w.e.f. 29.07.1997 and continued to work in the same capacity till 13.07.2008. The services of the petitioner were brought as whole time contingent paid worker w.e.f. 14.07.2008. Petitioner continued in the same capacity till 16.07.2010. The services of the petitioner were regularized as Class-IV employee w.e.f. 17.07.2020. petitioner retired at the age of 58 years on 31.12.2017. 3. Since, the petitioner was not granted pensionary benefits after her retirement, the petitioner approached erstwhile State Administrative Tribunal by way of O.A. No. 5133 of 2018 with following prayers:- “(i) That the impugned action of the respondent whereby the applicant has been retired at the age of 58 years may be held illegal. The applicant may be ordered to be reinstated in service and allowed to continue in service till she attains the age of 60 years, in terms of notification dated 21.02.2018. The applicant may be ordered to be reinstated in service and allowed to continue in service till she attains the age of 60 years, in terms of notification dated 21.02.2018. (ii That in case the applicant is not reinstated in service the applicant may be held entitled to receive the salary and other monetary benefits from the date of her retirement i.e. 31.12.2018 till the age of 60 years. (iii) That the applicant may be held entitled to receive the terminal benefits as per the pension scheme applicable to the Government employees prior to the year 2003.” 4. The O.A. No. 5133 of 2018 filed by the petitioner was transferred to this Court after abolition of State Administrative Tribunal and is registered as CWPOA No. 5137 of 2020 i.e. the instant petition. 5. Petitioner amended the petition and the prayers made thereafter in the petition have already been noticed above. 6. The grievance of the petitioner is that despite completion of qualifying service under CCS (CCA) Pension Rules, the respondents have denied her pensionary benefits. Petitioner submits that she has completed regular service for a period of seven years five months and fifteen days. Petitioner also claims to be entitled to additional period of two years in terms of the notification dated 21.02.2018, issued by the State Government, whereby FR 56 has been amended as under:- “In rule-56 of the Fundamental Rules, after the second proviso to clause (e), the following third proviso shall be inserted, namely:- “Provided further that a Class IV Government servant appointed on part time/daily wages basis prior to 10.05.2001 and regularized on or after 10.05.2001 shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years.”. 7. Petitioner by amending the petition has pleaded that the benefits of aforesaid notification dated 21.02.2018 will be available to petitioner also in terms of the judgment passed by Hon’ble Full Bench of this Court on 22.02.2022 in CWP No. 2711 of 2017, titled as Baldev Singh Vs. State of H.P. and Ors. In addition, petitioner also claims to be entitled for addition of another period of one year i.e. 50% of the service as whole time contingent paid worker. 8. Respondents No. 1 and 2 filed reply to O.A. No. 5133 of 2018. State of H.P. and Ors. In addition, petitioner also claims to be entitled for addition of another period of one year i.e. 50% of the service as whole time contingent paid worker. 8. Respondents No. 1 and 2 filed reply to O.A. No. 5133 of 2018. Respondents defended their action to retire the petitioner at the age of 58 years by placing reliance on notification published in Rajpatra, dated 11.05.2001. According to respondents, by way of notification dated 10.05.2001 all those Class IV employees, who were appointed on or after said date i.e. 01.05.2001, were to retire at the age of 58 years. It was stated that since, the petitioner had retired on 31.12.2017 i.e. before issuance of subsequent notification dated 21.02.2018, the said notification was to apply prospectively and petitioner was not entitled to its benefit. 9. After the amendment of the petition despite repeated opportunities, respondents No. 1 and 2 have not filed any reply. It is only the respondent No. 3 i.e. Deputy Director of Elementary Education, who has filed a short reply dated 30.08.2024. He has stated that since the grievance of the petitioner pertained to Deputy Director of Higher Education and Director of Higher Education, the said officers had nothing to say in the matter. Thus, eventually, the averments made in the amended petition have remained uncontroverted. 10. I have heard learned counsel for the parties and have also gone through the record. 11. During the proceedings of the case, a communication dated 07.03.2025, issued by the Deputy Director of Higher Education, Shimla, H.P. to the Director of Higher Education, Shimla, in the context of the case of the petitioner has been placed on record. The contents of aforesaid communication reveal an admission of the fact that the petitioner had been granted the benefit of judgment passed by Hon’ble Full Bench of this Court in CWP No. 2711 of 2017, titled as Baldev Singh Vs. State of H.P. and Ors. and she had also been allowed the benefit of 50% of the service rendered by petitioner as whole time contingent paid. Thus, the total qualifying service of the petitioner has been calculated at ten years five months and sixteen days. 12. Still, the respondents have not granted the pensionary benefits to the petitioner. 13. State of H.P. and Ors. and she had also been allowed the benefit of 50% of the service rendered by petitioner as whole time contingent paid. Thus, the total qualifying service of the petitioner has been calculated at ten years five months and sixteen days. 12. Still, the respondents have not granted the pensionary benefits to the petitioner. 13. The communication dated 07.03.2025, referred hereinabove, further mentioned that the petitioner had not exercised option for opting for the Old Pension Scheme (OPS) in compliance to Government Notification dated 04.05.2023 and for such reason her case was not liable to be considered for granting of pensionary benefits under CCS (CCA) Rules, 1972. At the time of hearing also, learned State counsel raised the same contention. 14. It is the admitted case of the respondents now that the petitioner has completed qualifying service as required under CCS (CCA) pension Rules, for making her eligible for grant of pension under the said rules. The only ground raised by the respondents to deny the petitioner benefit of aforesaid rules is her alleged omission to submit option in terms of the government notification dated 04.05.2023. 15. There is nothing on record that petitioner was being considered for National Pension Scheme (NPS) or the petitioner had been enrolled or registered under the said scheme at any point of time. It is also not shown by the respondents that the petitioner has received any benefit under NPS. That being so, the Government Notification dated 04.05.2023, cannot be used to the detriment of petitioner as the option required thereunder was to be exercised by the retired employees who were covered under the NPS. Even otherwise, petitioner had availed the legal remedy immediately after her retirement in the year 2018 by filing O.A No. 5133 of 2018. In such view of the matter also, since the matter raised by the petitioner was sub-judice she had valid reasons to have omitted to make option in terms of the Government Notification dated 04.05.2023. 16. In view of above discussion, this Court is of the considered view that the respondents have withheld the pensionary benefits to the petitioner without any legitimate reason. 17. In result, the petition is allowed. Respondents are directed to grant the pensionary benefits to the petitioner in accordance with CCS (CCA) Pension Rules, 1972, from the date of her retirement i.e. 01.01.2018. 17. In result, the petition is allowed. Respondents are directed to grant the pensionary benefits to the petitioner in accordance with CCS (CCA) Pension Rules, 1972, from the date of her retirement i.e. 01.01.2018. Petitioner shall also be entitled to all consequential benefits as she had taken recourse to her legal remedy with sufficient promptitude. 18. The petition is, accordingly, disposed of, in aforesaid terms, so also the pending miscellaneous application, if any.