IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 9191 of 2008 Judgment reserved on: 9.12.2010 Date of decision: 21.2.2011. Purshotam Dass …..Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General, for respondents No.1& 2. Kuldip Singh, J. The petitioner has prayed for quashing of memo dated 26.2.2001 Annexure A-5 with a direction to the respondents to count the period rendered by petitioner as O.T. on temporary basis for the purpose of pensionary benefits. It has also been prayed that respondents may be directed to revise the pensionary benefits of the petitioner and thereafter to pay all arrears to petitioner alongwith interest allowed at the rate applicable in the Nationalized Bank. 2. The brief facts of the case are that the petitioner joined as O.T. (Oriental Teaching) teacher on 28.8.1962. He was given breaks and was again appointed as O.T. teacher on 12.10.1962 till Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 31.3.1963. The petitioner continued to serve with respondents department as O.T. teacher till 2.12.1964 when petitioner was appointed as O.T. teacher on regular basis. The petitioner on his regularization was allowed increments by calculating his service w.e.f. 28.8.1962. On regularization of the petitioner his pay was fixed by allowing him increments after completion of one year service by calculating the working days. The petitioner has been given revised pay scales from time to time. The petitioner improved his qualifications and obtained B.Ed. degree. He was promoted as Trained Graduate Teacher against the quota fixed for such promotion. The petitioner has retired from service on 30.6.1996. 3. The petitioner was expecting that pensionary benefits of petitioner would be calculated on the basis of pay fixation made qua the petitioner. However, the respondents had granted pensionary benefits to petitioner from the date of his regular appointment as O.T. teacher and the period which the petitioner had rendered as O.T. teacher on temporary basis has not been counted. 4. The petitioner had submitted a representation to the competent authority regarding his grievance. On 28.5.1999 some information was sought from respondent No.2 by respondent No.1 which was supplied on 23/24.7.1999. The representation dated 26.2.2001 of the petitioner was rejected by the department vide Annexure A-5. It was observed that period of contractual appointment does not qualify for pension as per provisions of CCS …3… Pensions Rules, 1972. The petitioner has submitted that action of respondents not to count the period from 28.8.1962 to 2.12.1964 for the purpose of pensionary benefits etc. is wrong, illegal and violative to Articles 14 and 16 of the Constitution. The department has counted the period of working days on temporary basis for the purpose of pay fixation. The petitioner has been given all other service benefits by counting entire temporary period for which the petitioner worked with the respondents. The working period of the petitioner on temporary basis comes to 21 months and has been counted for grant of other benefits including annual increments, hence this petition. 5. The respondents No.1 and 2 have contested the petition and filed joint reply. It has been stated that petitioner has joined his duty on 28.8.1962 as O.T. teacher on temporary and contractual basis. Thereafter he had been taken on job till 2.12.1964 but his services were terminated between these period. The break during this period had not been regularized by the competent authority, hence the petitioner is not entitled to pensionary benefits of this period. The petitioner was appointed on regular basis on 2.12.1964. The increments for contract service prior to regularization of the petitioner were allowed by the Principal Govt. Senior Secondary School, Jandiala-Guru ( Amritsar) who was not competent to allow the same. The respondents No.1 and 2 defended their decision taken in …4… Annexure A-5. The petitioner has filed rejoinder to the reply of respondents No.1 and 2 and has reiterated his stand. 6. The respondent No.3 has filed separate reply and has stated that Annexure A-5 dated 26.2.2001 has been issued by respondent No.2. It has been stated that if pension case of the petitioner after counting the temporary service is again forwarded by the respondent department, the respondent No.3 will consider the case of the revision of pensionary benefits, if otherwise, the case is found in order. 7. I have heard learned counsel for the parties. The short dispute between the parties is of counting 21 months in between 28.8.1962 to 2.12.1964 for the purpose of pensionary benefits of petitioner. The case of the petitioner is that he was appointed in Punjab as O.T. teacher on 28.8.1962. He was given breaks and was appointed on regular basis on 2.12.1964 as O.T. teacher. The actual period of his working of 21 months in between 28.8.1962 to 2.12.1964 has been counted for the purpose of increments and pay fixation. The petitioner was allocated to Himachal Pradesh on reorganization of State of Punjab in the year 1966. The petitioner is claiming counting of 21 months for the purpose of pensionary benefits of service which he rendered in between 28.8.1962 to 2.12.1964. The respondents have taken the stand that the service of such 21 months cannot be counted as there were breaks in the service and increment was given to the petitioner by “unauthorized officer” who was not …5… competent to give increment to petitioner by counting his service prior to 2.12.1964. He is claiming for counting only actual service of 21 months which he had rendered in between 28.8.1962 to 2.12.1964 for the purpose of pensionary benefits. It is not in dispute that petitioner had worked for 21 months in between 28.8.1962 to 2.12.1964. On 2.12.1964 the petitioner was appointed on regular basis. The service of 21 months of the petitioner had already been counted for giving him increments. The department had counted the actual period of working of petitioner prior to 2.12.1964 for granting him increments and pay fixation. There is no substance in the case projected by respondents No.1 and 2 that increments were given by “unauthorized officer”. Assuming the increments were given by the “unauthorized officer” by counting actual period of service rendered by petitioner prior to 2.12.1964, but it is not the case of respondents No.1 and 2 that the increments granted by “unauthorized officer” were later on withdrawn when it was found that the increments have been granted by “unauthorized officer” to petitioner by wrongly counting period of service rendered by petitioner prior to 2.12.1964. Once the respondents No.1 and 2 had counted the service of the petitioner prior to 2.12.1964 for the purpose of increments and pay fixation, the respondents cannot be heard to say that actual service rendered by petitioner prior to 2.12.1964 cannot be counted for pensionary benefits of petitioner. The Principal Govt. Girl Senior Secondary School, Hamirpur vide letter dated 23/24.7.1999 had recommended …6… that 21 months of service rendered by the petitioner is required to be counted as qualifying service for pensionary benefits. In LPA No.36 of 2010, titled, Sita Ram v. State of H.P. & Ors. decided on 15.7.2010, it has been held that it is also settled principle of law that any service that is counted for the purpose of increment, will count for pension also. Thus, the respondents No.1 and 2 have erred in not counting the actual service rendered by petitioner prior to 2.12.1964 for the purpose of pensionary benefits, accordingly memo dated 26.2.2001 Annexure A-5 is quashed. 8. In view of above discussion, petition is allowed. The respondents are directed to count the actual service rendered by the petitioner prior to 2.12.1964 for the purpose of pension, within a period of four months from the date of supply of copy of judgment by petitioner to the competent authority, with a further direction to respondents to release the arrears to the petitioner within same period, failing which, respondents shall be liable to pay interest at the rate of 9% per annum till actual payment. February 21, 2011 ( Kuldip Singh ), (sks) Judge.