IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5541/2008 Reserved on: 14.5.2010 Decided on:17.5.2010 _____________________________________________ Moti Ram. …Petitioner. Versus State of Himachal Pradesh. …Respondent. ____________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1. yes. For the petitioner : Mr. Pawan Gautam, Advocate. For the Respondent : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Anil Jaswal, Dy. A.G. _________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the petitioner was appointed as Moharrer (Octroi Clerk) in Municipal Committee, Nagrota Bagwan, Tehsil and District Kangra in the year 1952. It appears from the record that petitioner was transferred to Municipal Committee, Dharamshala, Tehsil and District Kangra in the year 1962. Respondent-State took a conscious decision to 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 abolish octroi in Himachal Pradesh. Respondent-State took further decision on 5.4.1982 to absorb octroi staff of various Urban Local Bodies in other Government Departments etc. Petitioner was also absorbed and offered temporary appointment as Laboratory Attendant, vide office order dated 15.5.1982. He superannuated on 1.7.1990. He filed a civil suit No. 19/1992 on 14.1.1992. The plaint was returned to the petitioner for presenting the same in proper forum on 19.4.1996. Thereafter petitioner filed OA (D) No. 380/1998 for the redressal of his grievance, which was assigned CWP (T) No. 5541/2008 after the abolition of the learned Himachal Pradesh Administrative Tribunal. Case of the petitioner, in a nutshell, is that he should have been permitted to discharge his duties upto the age of 60 years on the basis of letter dated 17.3.1983 and the entire service, the petitioner has rendered with Municipal Committee in Nagrota Bagwan, be counted for pensionary and other benefits. The precise case of the respondent-State is that petitioner was appointed for the first time in Municipal Committee, Dharamshala on 1.10.1962 and was kept on probation for a period of one year. Consequently, qualifying service could only be counted from 1.10.1962 and not before that. Mr. Pawan Gautam has vehemently argued that the action of the respondent to retire his client at the age of 58 years instead of 60 years is illegal, arbitrary, unjustified and 3 thus violative of Articles 14 and 16 of the Constitution of India. According to him, his client has been discriminated against by the respondent by permitting one Sh. Narinder Lal to continue upto the age of 60 years though he was appointed with his client. He has relied upon letter dated 17.3.1983 for including services rendered by the octroi employees in various Urban Local Bodies in Himachal Pradesh prior to the abolition of the octroi in Himachal Pradesh with effect from 1.4.1982. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the decision of the respondent to retire the petitioner at the age of 58 years is in accordance with law. He then contended that petitioner could not be given the benefit of counting the period he has worked in Municipal Committee, Nagrota Bagwan. According to him, petitioner has misconstrued this letter. He lastly contended that as far as Narinder Lal is concerned, he was treated as Class-IV employee being in the pay scale of Rs. 800-1440 and he was permitted to work upto the age of 60 years, and the petitioner was treated as Class-III employee and was granted the higher pay scale of Rs. 950-1800. I have heard the learned counsel for the parties and have perused the pleadings meticulously. What emerges from the facts enumerated hereinabove is that petitioner was appointed as a Octroi Clerk in Municipal Committee, Nagrota Bagwan in the year 1952. Respondent 4 has not denied/rebutted this averment made in the petition. Thereafter he started working in the same capacity in Municipal Committee, Dharamshala. State Government had taken a conscious decision to abolish the octroi with effect from 1.4.1982. Another conscious decision had also been taken by the State Government to absorb the employees declared surplus. Petitioner, being one of the employees, was absorbed in the Education Department as per Annexure A-3 dated 15.5.1982. Now, the Court will advert to whether the petitioner was required to be permitted to work upto the age of 58 years or 60 years. Mr. R.K. Sharma has argued that one Sh. Narinder Lal, who was appointed with the petitioner had made representation to the Department that he being non- matriculate Laboratory Attendant (Class-IV) in the pay scale of Rs. 800-1440 be permitted to retire from Government service on attaining the age of 60 years. This plea of Narinder Lal was accepted by the Education Department and he was permitted to work upto the age of 60 years. State had taken a decision to divide Laboratory Attendants in two classes, i.e. (i) Laboratory Attendants comprising of Matriculate (Class-III), and (ii) Laboratory Attendants comprising of non-Matriculate (Class-IV). Class-IV Laboratory Attendants were granted pay scale of Rs. 800-1440 and Class-III Laboratory Attendants were granted the higher pay scale of Rs. 950-1800. The age 5 of retirement for Class-IV employees as per FR 56.1 (e) is 60 years. It is in these circumstances, Narinder Lal has been permitted to retire at the age of 60 years. Consequently, petitioner being Class-III employee has rightly been retired at the age of 58 years. Now, the Court will advert to applicability of letter dated 17.3.1983 issued by the respondent-State. State Government had taken the following decision: “The period of service including temporary service rendered by the Octroi employees in various Urban Local Bodies in HP prior to abolition of Octroi in the Pradesh w.e.f. 1.4.1982 will be treated as continued service for all purposes except that these employees will not be given the benefit of previous service towards seniority in the respective Cadre wherever absorbed.” Perusal of letter dated 17.3.1983 reveals that the period of service including temporary service rendered by the octroi employees in various Urban Local Bodies in Himachal Pradesh prior to abolition of octroi in the Pradesh was to be treated as continued service for all purposes except that these employees were not given the benefit of previous service towards seniority. In other words, the period was to be counted for all purposes, including pensionary benefits etc. 6 Mr. R.K. Sharma has argued that in view of the phraseology employed in letter dated 17.3.1983, petitioner’s service rendered in Municipal Committee, Nagrota Bagwan cannot be counted. There is no merit in this submission. What has been excluded is only the benefit of seniority, however, the same is to be treated including temporary service as continuous service for all purposes. Something which is not stipulated in the letter cannot be read, as argued by Mr. R.K. Sharma. Petitioner has worked from 1952 till 1962 in Municipal Committee, Nagrota Bagwan. He is entitled to get this period counted for the purpose of pensionary benefits and other benefits excluding seniority. The reason for excluding the benefit of seniority is not to give undue advantage to the employees of the Municipal Committee, who were declared surplus vis-à-vis regularly appointed in the Government Departments, including Education Department. Mr. R.K. Sharma has also argued that the petition is barred by delay and laches. This contention merits rejection. Petitioner was vigilant by filing civil suit No. 19/1992 for the redressal of his grievance on 14.1.1992. The plaint has been returned to him on 19.4.1996. He has filed the original application on 24.7.1998. Petitioner has sought for counting the service he has rendered in Municipal Committee, Nagrota Bagwan for the grant of pensionary benefits. Pension is a recurring cause of action. He gets the cause of action on 7 every first day of each month. It is not one of those cases where the litigant has slept over his rights. In the instant case, petitioner was vigilant throughout. Rather he had been pursuing his case vigourously. The cause of action had arisen to him when his services rendered by him in Municipal Committee, Nagrota Bagwan were not counted and when according to him Narinder Lal was given undue advantage by the respondent by permitting him to retire at the age of 60 years. Consequently, the petition is partly allowed. Respondent is directed to count the service rendered by the petitioner as Octroi Clerk in Municipal Committee, Nagrota Bagwan, Tehsil and District Kangra from 1952 to 1.10.1962 towards pensionary benefits. The respondent is further directed to release and pay admissible benefits to the petitioner by counting the period of service, as noticed above. The amount payable to the petitioner shall carry interest @ 9% per annum. Needful be done within a period of ten weeks from today No costs. (Rajiv Sharma), Judge. 17.5. 2010 *awasthi*