Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 982 (HP)

Ayodhya Devi v. State of H. P.

2025-05-09

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, Judge Pursuant to order dated 08.05.2025 passed in this writ petition, learned Additional Advocate General has placed on record instructions dated 08.05.2025 from Director of Agriculture, Himachal Pradesh. 2 . Ayodhya Devi vs. State of H.P. & Ors., CWP No.12218 of 2024 decided on 04.11.2024 was instituted by the petitioner seeking directions to the respondents to count the daily wage service rendered by her towards pensionary benefits, certain other consequential reliefs were also prayed therein. The writ petition was disposed of with direction to the respondents to consider therepresentation preferred by the petitioner for redressal of her above grievances in accordance with law. Respondents considered petitioner’s representation and vide office order dated 07.04.2025 rejected the same with the following reasoning:- “AND WHEREAS, in pursuance to Office Memorandum dated 04.05.2023, the petitioner has submitted her option for NPS instead of OPS on 09.06.2023 which diarized on 20.06.2023 bearing diary No. 2967. As per the clause (iii) the 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. Therefore, second option for OPS is not considerable.” Petitioner feels aggrieved against the above office order and therefore has preferred this writ petition for following substantive reliefs:- “i). That the respondents may be directed to add services rendered by the petitioner on Daily wage basis towards the pensionary benefits and pension after taking into account the aforesaid services may be ordered to be granted to the petitioner on her attaining the age of superannuation and order dated 27.04.2025 i.e., Annexure P- 10 whereby rejecting the case of the petitioner is liable to be quash and set aside in the light of the judgement passed by Hon’ble Apex court in Sunder Singh vs. State of HP & others in Civil Appeal 6309 of 2017 i.e., Annexure P-12. ii). That by Applying the ratio of the Apex Court judgment in Civil Appeal No. 4792 of 2022 titled as Balo Devi Vs State of H.P. & others, as petitioner has rendered more than 8 years of regular service i.e., though less than 10 years of service and for such reason her services may be ordered to be reckoned as 10 years, which makes her qualified for pensionary benefits and she may be held entitled to all retiral benefits i.e. leave encashment, gratuity, commutation etc. after superannuation.” 3 . Heard learned counsel for the parties and considered the case file. 4. Following factual position pertaining to the services particulars of the petitioner has been admitted by the respondents in the impugned office order dated07.04.2025:- 4(i) . Service of the petitioner was converted as daily wager on 20.07.2009 from part-time worker (Class-IV employee). Petitioner rendered daily wage service from 20.07.2009 onwards till her regularization on 09.10.2017. 4(ii) . Petitioner had rendered 8 years 2 months and 22 days of daily wage service. She had also rendered 7 years 10 months and 21 days of regular service on the date of passing of the impugned office order. 5 . Petitioner’s claim in her previous writ petition for counting her daily wage service towards pension in accordance with law laid down in Sunder Singh Versus The State of Himachal Pradesh & Ors., Civil Appeal No. 6309 of 2017 decided on 08.03.2018 and Balo Devi & Ors. vs. State of Himachal Pradesh & Ors., Civil Appeal No. 4792 of 2022 decided on 18.07.2022. , has not been disputed by the respondents while considering her representation under impugned office order dated 07.04.2025. The respondents have rejected the case of the petitioner claiming pensionary benefits on the ground that petitioner had submitted her option for National Pension System (‘NPS’) instead of Old Pension Scheme (‘OPS’) on 09.06.2023. That in terms of Clause (iii) of office memorandum dated 04.05.2023, the option once exercised by the Government employees, either opting for the Central Civil Services (Pension) Rules, 1972 or the National Pension System shall be treated as final and irrevocable, therefore second option for OPS cannot be considered. 6 . The reason assigned by the respondents for rejecting petitioner’s representation under office order dated 07.04.2025 is not tenable. Petitioner’s pleaded case is that she had exercised option for coming over to the CCS (Pension) Rules, 1972 (OPS) on 29.05.2023 (Annexure P-6). Learned counsel for the petitioner submits that subsequently the petitioner was made to understand by the officials of the respondents that she would not be entitled to OPS therefore should opt for NPS. It was under this mistaken belief that the petitioner furnished her option on 09.06.2023 for NPS. Be that as it may, the fact remains that petitioner is still serving as Class-IV employee and is set to retire on 31.08.2025. It was under this mistaken belief that the petitioner furnished her option on 09.06.2023 for NPS. Be that as it may, the fact remains that petitioner is still serving as Class-IV employee and is set to retire on 31.08.2025. Pension under the CCS (Pension) Rules, 1972, becomes admissible to an employee on completion of requisite service. Once that eligibility is not disputed, then pension should not be refused merely on the ground that the employee had belatedly exercised the option more so in the given case where petitioner is still in service. 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. TheCourt 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. 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. 7. In view of the above discussion, impugned office order dated 07.04.2025 is quashed. The respondents are directed to re-consider the case of the petitioner afresh for grant of pension to her under notification dated 04.05.2023, keeping in view the facts and the case set-up by the petitioner as noticed in para above. This exercise be undertaken within six weeks from today. The decision so taken be also communicated to the petitioner. Pending miscellaneous application(s), if any, also to stand disposed of.