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Himachal Pradesh High Court · body

2025 DIGILAW 887 (HP)

Ayodhya Dass v. State of H. P.

2025-05-02

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, Judge Notice. Mr. Y.P.S. Dhaulta, learned Additional Advocate General and Mr. Tek Ram Sharma, learned Counsel, appear and waive service of notice on behalf of respondents No. 1 to 4 and respondents No.5 and 6, respectively. With the consent of learned counsel for the parties, matter is taken up for disposal at this stage. 2. Petitioner was engaged on part-time basis in the respondent-Education Department. His services were regularized in the year 2003. He retired from the service on attaining the age of superannuation in October 2012 at the age of 58 years, after rendering nine years of regular service. It is the case of the petitioner that respondents gave him benefit of Baldev Singh Vs. State of H.P. and others, CWP No.2711 of 2017, decided alongwith connected matter on 22.02.0222 and held him to have retired at the age of 60 years. In this manner, the petitioner was treated to be in possession of qualifying service required for the purpose of pension under the Central Civil Services (Pension) Rules, 1972 [CCS (Pension) Rules, 1972] to become eligible for pension. 3. On 04.05.2023, State Finance Department notified the Central Civil Services (Pension) (Himachal Pradesh Fourth Amendment) Rules, 2023, brought into force w.e.f. 01.04.2023. The notification amended Rule 2 of the CCS (Pension) Rules, 1972. As per notification, the amended rules were to apply to those Government servants as well, who were appointed substantively to the civil services and posts in connection with the affairs of the State of Himachal Pradesh during the period 15.05.2003 to 31.03.2023 coveredunder Contributory Pension Scheme (National Pension System) and opted to shift to the CCS (Pension) Rules, 1972. They were to get pensionary benefits under these rules subject to deposit of the Government contribution and dividend/return earned thereon, under the National Pension System to the State Government. Further, as per second proviso to Rule 2(g), the rules were to apply to the Government servants who had already retired or died in harness during 15.05.2003 to 31.03.2023, if such retired Government servants or eligible family members exercise their option to get the pensionary benefits under these rules from prospective date i.e. w.e.f.01.04.2023. Respondents issued another office memorandum dated 04.05.2023, issuing instructions/SOPs. Respondents issued another office memorandum dated 04.05.2023, issuing instructions/SOPs. Clauses (i),(ii), (iii) and (vii) of the said office memorandum read as under: - “(i) An employee, who wishes to remain under the National Pension System, shall exercise an option, within sixty days from the date of issuance of these instructions, at Annexure-I, which shall be duly notarized and submitted to the Head of Office. Such employee(s), shall continue to be covered under the National Pension System (also known as Contributory Pension Scheme), The contributions (both employer's and employee's share) under the National Pension System, shall be deposited as per the Pension Fund Regulatory and Development Authority Regulations, till the retirement of employee(s). (ii) The Government employees who wishes to be covered under the Central Civil Services (Pension) Rules, 1972, also known as Old Pension Scheme, shall exercise an option, within sixty days from the date of issuance of these instructions, on the prescribed format at Annexure-II. An undertaking shall also be furnished by such employees on the prescribed format at Annexure-III. The 'option' and 'undertaking' as per the Annexure-II and Annexure- III, shall be duly notarized and same will be submitted to the Head of Office. (iii) An Option once exercised by the Government employees, either opting for the Central Civil Services (Pension) Rules, 1972 or the National Pension System shall be final and irrevocable. If an employee fails to exercise an option within the stipulated period, it shall be deemed that he/ she wishes to be continued under the National Pension System. (iv) to (vi) ……………………………… (vii) Employees, who were covered under the National Pension System (NPS) and have already retired/ died, between the period 15.05.2003 to 31.03.2023 and who fulfil the eligibility criteria under the Central Civil Services (Pension) Rules, 1972, such retired employee and eligible family member of deceased employee, shall be entitled to pension from prospective date i.e. with effect from01.04.2023, on exercising an option for the same on the prescribed format at Annexure-II and submission of an undertaking at Annexure-III, subject to deposit of the Government contribution and dividend/ return, till the date of withdrawal, to the State Government. The amount of Government contribution and dividend/return shall be deposited under the Receipt Head "0071 Contribution & Recoveries towards pension and other retirement benefit, 01 Civil, 101-Subscriptions and Contributions, 03-Accumulated Pension Wealth in respect of National Pension System Subscribers and 04-Accumulated dividend on Government Contribution of National Pension System employees converted into Old Pension Scheme." 4. Petitioner on 20.09.2024 opted/represented to respondent No. 1 to 4 for release of pension under the Old Pension Scheme-the CCS (Pension) Rules, 1972. Respondents No. 1 to 4, forwarded petitioner’s case to respondent No.6 on 21.09.2024. Respondent No.6 rejected his case on 19.12.2024 on the ground that he had failed to exercise the option within the stipulated period i.e. 60 days from the date of issuance of office memorandum dated 04.05.2023. Therefore, it was to be construed that the petitioner wishes to continue under National Pension Scheme. Learned counsel for the petitioner submits that the petitioner is aged 72 years, had retired on 30.10.2012. He was not aware about the timelines within which he had to exercise his option for availing pension under the CCS (Pension) Rules, 1972. He under these circumstances, could not exercise his option within stipulated period. Furthermore, notification dated 04.05.2023 (Annexure P-2), amending the CCS (Pension) Rules, 1972, did not stipulate any timelines for exercise of the option and petitioner was not aware of the office memorandum issued by the respondents on 04.05.2023 detailing the procedure for exercise of option under the notification of even date. It was also submitted that office memorandum dated 04.05.2023 was not even published in the official gazette. Learned counsel for the petitioner also placed reliance upon decision in Smt. Phoolmati Vs. State of Himachal Pradesh and others, CWP No.7097 of 2024, decided on 31.12.2024 , where the petitioner though was eligible for pension and had exercised her option for availing pension under the Old Pension Scheme-CCS (Pension) Rules, 1972, but was not released pension on the ground that option exercised by her was not within the time set out in office memorandum dated 04.05.2023. The Court held that rigors of memorandum dated 04.05.2023, qua the period mentioned therein for the exercise of option cannot be construed in a harsh manner against the petitioner-Class-IV employee, as he would hardly be aware that any memorandum also stands issued by the Government, whereunder option is to be exercised within some set timelines. The Court held that rigors of memorandum dated 04.05.2023, qua the period mentioned therein for the exercise of option cannot be construed in a harsh manner against the petitioner-Class-IV employee, as he would hardly be aware that any memorandum also stands issued by the Government, whereunder option is to be exercised within some set timelines. Respondents were directed to process petitioner’s option by treating it as validly exercised. Relevant part of the judgment reads as under: - “4. Be that as it may, in view of the fact that the petitioner retired as a Class-IV employee, from the Agriculture Department of the Government of Himachal Pradesh, this Court is of the considered view that the rigors of memorandum dated 04.05.2023 qua the period mentioned therein for the exercise of option, cannot be construed in a harsh manner against an incumbent like the petitioner as a Class-IV employee would hardly be knowing that any memorandum also stands issued by the Government and an act has to be performed by her, in the light of said memorandum. The least that is expected from an employer with regard to Class-III and Class-IV employees is that they should inform such like employees of the memorandum and seek their options, within some reasonable time. If they do not do so within reasonable time, then the Department can proceed in the matter, in accordance with law.” Learned counsel for the petitioner has also brought to notice the stand of the respondents-State taken in Kamaljeet Kaur Sidhu Vs. State of H.P. and Ors., CWP No. 15312 of 2024 decided on 04.01.2025. The aforesaid was a case where the petitioner, otherwise, eligible for pension under the CCS (Pension) Rules, had not been granted pension on the ground of her having exercised option beyond the timelines stipulated in office memorandum dated 04.05.2023. The respondents-State took a fair stand that option exercised by the petitioner (therein) even though belatedly, would be processed and on completion of requisite formalities by both the parties, due and admissible pension shall be released to her. 5. In view of above discussion, this petition is disposed of by directing the respondents to consider the case of the petitioner afresh for grant of pension to him under notification dated 04.05.2023, keeping in view the facts and the case set up by the petitioner as noticed in para-4 above. 5. In view of above discussion, this petition is disposed of by directing the respondents to consider the case of the petitioner afresh for grant of pension to him under notification dated 04.05.2023, keeping in view the facts and the case set up by the petitioner as noticed in para-4 above. This exercise be undertaken within three weeks from today. The decision so taken be also communicated to the petitioner. Pending miscellaneous application(s), if any, also to stand disposed of.