IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 3073 of 2008. Decided on 21.3.2011 Dr. Man Mohini Sharma ..…Petitioner. Versus State of Himachal Pradesh and others. …. Respondents. _____________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Yudhveer Singh vice Mr.K.D.Shreedhar Advocate. For the respondents : Mr. Anil Jaswal, Deputy Advocate General. V.K. Sharma, Judge (Oral) The petition has been filed on the following prayers vide para 7 (i) and (ii) : “ (i) That the respondents No.1 to 3 be directed to count the service of 15 years 6 months 26 days (with effect from 16.9.1967 to 12.4.1983) rendered by the applicant under the State of Jammu and Kashmir prior to the joining the service of respondents for the purpose of all pensionary benefits and after doing so, necessary instructions be conveyed to the respondent No.3 for taking up the matter with the Pension sanctioning authority for calculating revised pension and gratuity 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 and any other benefit payable to the applicant on this account. (ii) That the applicant may be held entitled to interest at the rate of 18 % per annum on delayed payment of pension and gratuity and respondents may be directed to pay the same forthwith.” 2. In reply on behalf of respondents No.1 to 3, the following stand has been taken vide paras 3 and 6 (iv) to (xi) : (A) to (F) : “ 3. Admitted to the extent that the applicant was appointed as lecturer in the department of Physiology in IGMC, Shimla on 13.4.1983. However, her request for counting of past service rendered under the J & K Govt. was considered in consultation with the Finance Department but the same could be acceded to as the J & K Govt. has not agreed to share the proportionate pensional liability on service share basis in respect of the service rendered by the applicant under the J & K Govt. 6 (iv to xi : A to F) It is submitted that request of the applicant for counting of her past service rendered under the Govt. of J & K Govt. was examined in consultation with the Department of Finance. Apart from other requirements, the main pre requisite for counting of such service as qualifying service for the purpose of pension is that whether the J & K Govt. is also willing for the same and is ready to bear the proportionate pensionary liability in respect of service rendered by the applicant under the J & K Govt. to the 3 extent such service would have been nullified for grant of pension under the rules, on service share basis. Accordingly the Govt. of J & K was requested several time through Principal, IGMC Shimla to give an undertaking to this effect. However, despite repeated request, the J & K Govt. has not agreed to share the proportionate pensionary liability as a result of which the State Govt. of H.P is not in a position to count the said service at its own for the purpose of qualifying service for pension. Regarding clarification of the J & K Govt. annexed at Annexure A-14 with the OA, it is submitted that Govt. of Himachal Pradesh has no reciprocal agreement with the Govt. of J & K for counting of service for pension and gratuity and as such the case of applicant is not covered under the relevant provision of rules referred in above annexure. Therefore, as already made clear the past service of the applicant rendered under the J & K Govt. by the applicant can only be counted as qualifying service for the purpose of pension in case the J & K Govt. is also willing to do the same and is ready to bear the proportionate pensionary liability on service share basis. In the absence of specific undertaking to this effect from the J & K Govt. the State Govt. of Himachal Pradesh is not in position to count the past service for the purpose of pension. Hence the claim of the applicant in this behalf lies with the Govt. of J & K and she should have pursued the matter 4 with the above Govt. for sending the requisite undertaking alongwith other relevant information sought by the replying respondent from them from time to time. Regarding decision conveyed by the replying respondent vide annexure A-9 of the OA, it is submitted that the same was issued inadvertently as the matter was still under process kin consultation with the Finance Department but soon as the discrepancy was noticed, the same was rectified accordingly and there is nothing wrong in withdrawing the orders issued inadvertently. The request of applicant could not be agreed to in view of the foregoing position.” 3. Rejoinder refuting the above stand on behalf of the respondents and reiterating the averments set up in the petition has been filed. 4. Learned counsel for the petitioner submits that the case of the petitioner is covered under a Division Bench judgment dated 1.12.2010 of this Court in CWP (T) No.33 of 2010, titled Dr. Bharat Bhushan Sharma vs. State of H.P & Others, text whereof is as under : “The petition is filed with the following prayer:- (i) That respondents No. 1 to 3 be directed to count the service of 14 years, 4 months and 4 days (with effect from 15.8.66 to 11.12.80) rendered by the applicant under the State of Jammu and Kashmir prior to the joining the service of 5 respondent No. 1 for the purpose of all pensionary benefits and after doing so, the necessary instructions be conveyed to the respondent No. 4 for calculating revised pension and gratuity and any other benefit payable to the applicant on this account. 2. It is stated in the reply at Paras 6(i) to 6(xii) as follows:- “Matter of record and hence not denied. However, it is stated that the request of Dr. Bharat Bhushan Sharma (applicant) for counting of his past service rendered under the Jammu & Kashmir Govt. is under consideration of the Govt. under the rules with the clear condition/understanding that the doctor concerned was appointed in IG Medical College, Shimla on the basis of his application received through proper channel in the H.P. Public Service Commission and that he was relieved by his parent organization in J&K for joining the new assignment in HP and was governed under GPF rules in his parent organization. From the perusal of copies annexed by the applicant with his application, it is evident that the replying respondent is processing the case for counting his past service rendered under the J&K Govt. on the above lines and will arrive at a decision at the earliest after completion of all formalities. It is wrong to say that the J&K Govt. has supplied the entire information sought by the Replying 6 respondent as alleged by the applicant. In fact, the J&K Govt. has not responded to the specific query raised by the Replying Respondent through Principal IG Medical College Shimla to the effect whether the State Govt. of J&K will bear the proportionate pensionary liability in respect of service rendered by the applicant under the J&K Govt. to the extent such service would have been qualified for the grant of pension under the rules on service share basis. Similarly, the J &K Govt. has not informed whether the amount of GPF alongwith interest thereon was transfferred by the AG J&K to AGHP or not and if yes, the detail of transfer and if not reasons thereof. The Replying Respondent have no objection to the counting of past service rendered by the applicant for pensionary benefits in case the J&K Govt. gives its specific acceptance to bear the proportionate pensionary liability on service share basis. The Principal IGMC in his letter annexed at Annexure RA has informed that reply of the J&K Govt. is awaited and will be supplied as and when received. From the position narrated above, it is evident that request of the applicant is under consideration of the Govt. and appropriate decision will be taken as and when specific information called for is received. The Replying Respondent has again taken up the matter with the J&K Govt. vide copy of letter annexed at R’B’ to expedite the information enabling the Replying Respondent to take a decision at 7 the earliest. The Replying Respondent is keen that the case is processed at the earliest in order to redress the grievances of the applicant under the rules.” 3. Reference is invited to Government of India decision No. 5(2)(b) below Rule 14 of the CCS(Pension) Rules, 1972, which reads as follows:- “The liability for pension including gratuity will be borne in full by the Central/State Department to which the Government servant permanently belongs at the time of retirement. No recovery of proportionate pension will be made from Central/State Government under whom he had served.” 4. It is submitted that the petitioner is entitled to get full pension of the services rendered in Jammu and Kashmir. There will be a direction to the first respondent to take a final decision in the matter and settle the pension case of the petitioner in the light of the Government of India’s decision referred to above, if not already taken, within two months from the date of production of copy of this judgment by the petitioner. Needless to say, eligible benefits, if any, to which the petitioner is entitled, shall be disbursed to him within another one month. The question of interest is left open.” 8 5. In view of the above, if on facts, the case of the petitioner is covered under the judgment dated 1.12.2010 in CWP (T) No.33 of 2010 and the petitioner is similarly situate, she shall also be treated similarly without any discrimination and the benefit of the said judgment shall be extended to her within two months from the date of production of copy of this judgment by the petitioner. 6. The petition stands disposed of, so also pending CMP (s), if any. (V.K. Sharma) Judge 21st March, 2011. cs