IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 1723 of 2008 Date of decision: 01.03.2011 ________________________________________________________________ Balu Ram. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Mr. B.N. Mehta, Advocate. For the respondents: Mr. Anil Jaswal, Deputy Advocate General. V.K. Sharma, J. (Oral). The petition has been filed on the following prayers vide para 17(1) and (2): “17(1) That the petitioner in the facts and circumstances prays that the respondents may be directed to pay the petitioner service pension alongwith interest as admissible w.e.f. 1.3.1988 till final payment after applying rule 13 and 49(3) of the CCS Pension Rules, 1972 and also take one forth of the portion of the period of 28 years spent by the petitioner on part time basis with the respondents. (2) That in the alternative the respondents may be directed for counting the qualifying period w.e.f. 28.3.1978 i.e. the date of first DPC and applying Rule 49(3) of the CCFS Pension Rule, 1972 after putting 28 years of service on part time basis as the petitioner was already in part time service of the respondents and as such his qualifying period of service may be directed to be accounted from 28.3.1978 onwards.” 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... 2. The respondents have taken the following stand vide paras 1 of the preliminary submissions and 13 on merits: “1. That it is respectfully submitted that the petitioner is not eligible for pensionary benefits as he has rendered 8 years and 7 days regular service prior to his retirement on superannuation. Hence, he has not completed regular qualifying service of 10 years for grant of pensionary benefits. The petitioner was promoted as Whole Time Contingent Paid on 14.09.1978 and thereafter he was promoted as regular Class-IV employee on 18.07.1981 and accordingly he joined as such on 01.08.1981. the petitioner was retired on 28.02.1988 on attaining the age of superannuation. It is further submitted that the petitioner has been paid Leave Salary (leave Encashment) amounting to Rs. 6461/- and Service Gratuity amounting to Rs. 7885/-. thereafter, the present petition being devoid of any merits is liable to be dismissed in the interest of justice. 13. That in reply to the contents of this para it is submitted that the petitioner has not completed 10 years of regular services and he was promoted as regular Class-IV Peon in the year 1981 and retired after attaining the age of superannuation in the year of 1988. So far as the case of State of HP Vs Sarab Dayal is concerned it is respectfully submitted that this case is entirely different than that of the petitioner. In the case of Sarab Dayal the matter pertains to Daily Waged employees whereas in the present matter the services of the petitioner were regularized from whole time contingent paid. Hence, the petitioner has no right to service the respondents with the legal notice and thereafter prefer and maintain present Civil Writ Petition and the same is liable to be dismissed in the interest of justice.” 3. The petitioner, who was working as part time contingent paid Peon in the respondent-department since 01.04.1950 was promoted as whole time contingent paid employee at ` 70/- fixed on temporary basis vide Officer Order dated ...3... 04.09.1978, Annexure P-1, on the recommendations of the Departmental Promotion Committee (DPC) held on 28.03.1978 and 24.07.1978. One of the terms and conditions of appointment incorporated in Annexure P-1 at serial No. 2 was as under: “2. He will be entitled to payscale and basic pay will be Rs. 70/- fixed and other allowances admissible as sanctioned by Govt.” 4. The case of the petitioner, who retired on attaining the age of superannuation on 29.02.1988, is that the period of service rendered by him on temporary basis w.e.f. 28.03.1978, i.e., the date of DPC till 02.05.1981, when he was regularized vide Office Order of even date, Annexure P-6 is liable to be counted for the purpose of pension. In this regard he is placing reliance on Rule 13 of the Central Civil Services (Pension) Rules, 1972 (in short 'CCS (Pension) Rules') which defines commencement of qualifying service and is as under: “13. Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he take charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that officiating or temporary service is followed without interruption by substantive appointed in the same or another service or post.” 5. With regard to commencement of the temporary service from 28.03.1978, i.e., the date of DPC and taking into consideration the same for the purpose of pension, the petitioner is ...4... seeking support from Instruction 16.45, Chapter 16 of the Handbook on Personnel Matters, Vol.-I (Second Edition), Government of Himachal Pradesh, Department of Personnel, which is as under: “16.45 Review of cases where adhoc appointments were regularised with retrospective effect. It has been decided that all cases in which adhoc appointments have been regularised with retrospective effect should be reviewed and fresh Departmental Promotion Committee meetings be held to make such appointments on regular basis with prospective effect. In certain cases proper DPCs have been held in the past but the subsequent promotions have been ordered from a date/dates which is/are even earlier than the date of DPC. The dates to be assigned in these cases may be corrected as promotions cannot be ordered from a date earlier than the date of meeting of the Departmental Promotion Committee. In case the above process leads to reversion of officers/officials who were appointed on adhoc basis (except as a purely local arrangement) prior to the attainment of Statehood, such cases may be referred to Personnel Department for advice before reversions are effected. (H.P. Govt. Department of Personnel letter No. 1-13/73-DP (Apptt-II), dated 20th May, 1974-Annexure-16.41)” 6. Thus according to the petitioner, he had rendered temporary and regular service as Peon in the department from 28.03.1978 to 28.02.1988, i.e., for a period of nine years and eleven months, which comes to 9 years and 11 months, i.e., just one month ...5... short of the qualifying service of 10 years, which is liable to be condoned in terms of Rule 49(3) of CCS (Pension) Rules, 1972, which is as follows: “49(3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as completed one half-year and reckoned as qualifying service.” 7. In view of the above, the petition is disposed of with a direction to the respondents/competent authority that subject to the petitioner making a representation alongwith copy of this judgment within a month from today, the said respondents/competent authority shall consider the same and take a final decision in the matter within next two months in accordance with law and the contentions raised by the petitioner, as above, after affording an opportunity of being heard to him, if so desired. 8. The petition stands disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge 1st March, 2011 (virender)