IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 12458 of 2008 Date of decision: 25.08.2011 ________________________________________________________________ Subhash Chand. .....Petitioner. Versus H.P. State Electricity Board & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Mr. Ranjan Sharma, Advocate. For the respondents: Mr. Shashi Shirshoo, Advocate. V.K. Sharma, J. (Oral). The petitioner after having served Indian Navy from 17.12.1963 to 30.04.1975 was appointed as Junior Engineer in the respondent-Board vide Memorandum dated 12.05.1977, Annexure A-2. He served as such and ultimately retired from civil service on attaining the age of superannuation on 28.02.2006. Thus he had rendered 11 years and 4 months service in Indian Navy and thereafter had served the respondent-Board in civil post for another period of 28 years and 9 months. Thus, in all, he had rendered more than 40 years of Navy and civil service. However, during his entire civil service, though persons junior to him were confirmed, he was not confirmed for the reason that whereas in his matriculation certificate, Annexure RA-3, his name is recorded as Subhash Chand, the name in the Technical qualification/Diploma, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... Annexure RA-4, is Subhash Chander. 2. Against the above backdrop the petition has been filed on the following prayers: “i) That the respondent board may be directed to give the benefit of military service as qualifying service towards the civil service rendered as a JE in the Board, for retiral benefits, as per Rule 19 of the CCS (Pension) rules, forthwith. ii) That the respondent board may be directed to give the benefit of military service and then to give the benefit of qualifying service of 33 years, for the purpose of retiral benefits, forthwith. iii) That the action of the respondent board in intending to give the benefit of qualifying service from 31.5.1977 till 28.2.2006 i.e. of only 28 years & 9 months for the purpose of giving retiral benefits and in not counting and adding the benefit of military service of 11 years & 9 months, so as to deprive the applicant of the maximum benefit upto 33 years, may be declared illegal, arbitrary and unconstitutional. iv) That the respondent board may be directed to invite and call for an option, from the applicant, forthwith.” 3. In reply, the respondents have taken the following stand vide para 6(vii) on merits: “6(vii) The contents of these paras are not correct, hence denied. In reply it is submitted that in the DPC meeting held during 1992 in the office of Chief Engineer (OP) South, HPSEB, Shimla, the then authority maintaining the cadre, the name of the applicant was considered for his confirmation w.e.f. 26.9.89 subject to the production of Diploma Certificate duly got corrected from the competent authority for which the applicant was requested through his Circle office vide letters Nos. 200131/Contd. SE/CC/JE/S2000-2626-776 dated 6.4.2000 and letter No. 200131/Part File/CC/JE(E)/RMS/S/2001-5680-5730 dated 16.6.2001 annexed as Annexure RA-5 and RA-6 to submit the same, but the same was not made available to the respondent board by the applicant till to date, as such no confirmation orders in respect of the applicant has been issued by the replying respondents.” ...3... 4. Rejoinder refuting the above stand on behalf of the respondents and reiterating the averments set up in the petition has been filed. 5. The grievance raised by the petitioner is that though he had rendered more than 40 years of Navy and civil service, yet the respondent-Board has not granted the benefit of Navy service to him for the purpose of pension in terms of Rule 19 of the Central Civil Service (Pension) Rules, 1972 (in short 'the Pension Rules') only for the reason that there was a slight variance in the aforesaid two certificates qua his name. However, in view of Instruction at Serial No. (1) appended to Rule 19 of the Pension Rules, relevant portion whereof is extracted below, it is immaterial whether the petitioner was confirmed or not and the benefit of said rule is liable to be extended to him even if he was not formally confirmed in the aforesaid post in civil service: “It has been decided that all those Government servants who retire on superannuation or invalidation without confirmation after rendering not less than ten years of combined military and civil service shall be entitled to the benefit of counting of service under Rule 19(1). The provision of Rule 19(1) may be deemed to have been modified accordingly. Necessary amendment to the Rule will be issued in due course.” 6. Even otherwise it is by now fairly settled that confirmation is a mere formality and once the period of initial probation is over, the incumbent would be deemed to have been confirmed against the post he is holding, even there being no formal order confirming him against the said post, subject only to ...4... the condition that substantive post is available against which the incumbent is to be confirmed. Furthermore, eligibility with regard to educational qualification etc. is required to be looked into at the time of entry in service and not at a belated stage, such as in the present case, as laid down in Instruction 14.3 of Chapter 14, at pages 456 and 457 of Handbook on Personnel Matters, Vol-I (Second Edition), Government of Himachal Pradesh, Department of Personnel. Still further, indisputably the petitioner had already been granted pension for the civil service rendered by him in the respondent-Board. Thus, there is absolutely no lawful cause or basis for the respondent-board to have denied him the benefit of Navy service for the purpose of pension under Rule 19 of the Pension rules. 7. In view of the above, the petition is allowed with a direction to the respondents/competent authority to consider the case of the petitioner for grant of benefit of the service rendered by him in Indian Navy for the purpose of pension and gratuity alongwith consequential benefits, if any, in civil service in terms of Rule 19 of the Pension rules within three months from the date of completion of the requisite formalities by the petitioner and production of copy of this judgment by him before respondent No. 1. 8. The petition stands disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge 25th August, 2011 (virender)