IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 6587 of 2010 Date of decision: 06.04.2011 ________________________________________________________________ Tarsem Sharma. .....Petitioner. Versus The State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Mr. P.D. Nanda and Mr. J.R. Gazta, Advocates. For the respondents: Mr. Anil Jaswal, Dy. AG, for respondents No. 1 & 2. Mr. V.B. Verma, Advocate, for respondent No. 3. V.K. Sharma, J. (Oral). The petition has been filed on the following substantive prayers: “(i) That impugned order Annexure P-27 may kindly be quashed and set aside being factually wrong and having been passed against law. (ii) That a writ in the nature of Mandamus may kindly be issued directing the respondents to pay a pro rata pension for the period of service rendered under Government for the period from 27.1.1965 to 28.10.1981 with interest as the same has been illegally with-held. The respondents may further be directed to pay pension for the period of service rendered under the respondent Corporation till his retirement on attaining the age of superannuation on 31.3.2004 in terms of Notification Annexure P-12 and P-14 as well as judgments Annexure P-18 and P-19, of course after adjusting the EPF pension already paid to the petitioner. In the alternative, the respondents may kindly be directed to issue an order 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... of deabsorption of the petitioner as on the date of retirement in view of the decision already taken in the similarly situated cases as referred in Annexure P-25 and P-26 and in the case of one Shri B.S. Bajwa, who was de-absorbed after his retirement. (iii) The leave salary and pension contribution paid by the petitioner under the directions of the respondents may kindly be ordered to be refunded to the petitioner as in view of Rules discussed in the petition, the petitioner feels that the same was not payable. However, in case this Hon'ble Court comes to the conclusion that the same is payable alongwith interest thereon, the respondents may be directed to recover the same from the pensionary benefits payable to the petitioner. (iv) That a sum of Rs. 1773.20 on account of arrear of salary, which is still lying undisbursed with the respondents since 1983 and not adjusted against the leave salary and pension contribution of the petitioner, may also kindly be ordered to be paid to the petitioner with interest.” 2. In reply, respondents No. 1 and 2 have taken the following stand vide paras 2, 6, 13, 15, 17, 18 and 19(d): “2. Admitted to the extent that the petitioner was appointed as Forest Guard on 27.01.1965 in Forest Division Solan and was confirmed in the post of Forest Guard w.e.f. 01.12.1973. 6. the contents of this para are admitted to the extent that the Leave Salary and Pension shall have to be borne by the Govt. servant or by the Central Govt. and mention of this has also been made in the chief Conservator of Forests office order No. 313/83 dated 28.07.1983 Annexure R-I. 13. The contents of this para are admitted to the extent that the petitioner preferred representation to respondent No. 2 but the pension case was to be decided only after the pension and leave salary contribution for the period 13.09.1974 to 31.03.1981 the petitioner served in Pre-Investment Survey of Forest Recourses in Bhutan is recovered from the Central Government or the petitioner. 15. The contents of this para are admitted to the extent that the petitioner has deposited a sum of Rs. 5057/- on account of leave salary & pension contribution with Forest Department. ...3... 17. the contents of this para are admitted to the extent that this Hon'ble Court has taken decision on 21.04.2010 as per annexure P-25, but the same is not applicable to the petitioner. 18. That the contents of this para are admitted to the extent that instruction were issued by respondent No. 1 to respondent No. 2 vide letter dated 31.07.2010. It is denied that there is any contradiction in the instructions under reference. In accordance with rule 307 of Supplementary Rules red with Rule 119(b) of Fundamental Rules an interest on the overdue contribution of Leave Salary and Pension Contribution which remained unpaid for about 21 years is required to be recovered from the petitioner. 19(d) That an amount of Rs. 5056.30 paise being the amount of pension and leave salary which the petitioner paid on 09.05.2008 and the penal interest amounting to Rs. 12588/- is liable to be paid by the petitioner for examining his pension case for the period he served in H.P. Forest Department.” 3. The following averments have been set up on behalf of respondent No. 3 vide paras 10 to 12 of the reply: “10. That in reply to this para it is submitted that the petitioner was permitted to be absorbed permanently with replying respondent Corporation w.e.f. 28.10.1981 as per office order Endst. No. Ft/23/74-X(E-II/ dated 19-10-1987 by the replying respondent. However, the petitioner had joined the replying respondent Corporation on 03.12.1981. 11 & 12. that in reply to these paras it is submitted that the petitioner retired on 31.03.2004 from the service of the replying respondent Corporation after attaining the age of superannuation. The pensionary benefit is available to the petitioner in accordance with the provision of EPF Act, 1952. The State Government vide notification dated 02.12.2004 had repealed its earlier notification dated 29.10.1999 regarding pension scheme to the employees replying respondent Corporation. As policy of State government was incorporated in service Bye Laws of the Corporation by amendment which was well within the knowledge of all employees of the Corporation including petitioner hence the option of the petitioner for pension scheme of 1999 becomes null and void automatically after the issuance of notification dated 02.12.2004. It is further submitted that the earlier notification was repealed on 2nd December 2004 by the State Government and ...4... accordingly the amendment were carried out by the Corporation in its Service Bye Laws. The notification dated 02.12.2004 has been circulated to the Directors/Divisional Manager/General Mangers vide endorsement No. 9587-9628 dated 13-07-2005.” 4. Some undisputed facts may be noticed first. The petitioner was initially appointed as Forest Guard on 27.01.1965 in Forest Division, Solan, in the then State of Punjab. On re- organization of states, he was allocated to the H.P. Forest Department on 01.11.1966. He was subsequently confirmed as Forest Guard on 01.12.1973. Later on, vide Office Order dated 01.01.1975, Annexure P-3, he was selected for the post of Deputy Ranger in Government of India, Preinvestment Survey of Forest Resources in Bhutan with Headquarters at Paro (Bhutan). 5. The grievance raised by the petitioner pertains to grant of pro rata pension for the period he served in the H.P. Forest Department from 01.11.1966 to 27.10.1981, prior to his absorption in respondent No. 3-Corporation, vide Office Order dated 19.10.1987, Annexure P-11, which has been denied vide letter dated 31.07.2010, Annexure P-27, text whereof is as under: “Since, Shri Tarsem Chand then Forest Guard, was a temporary employee of Forest Department at the time of his absorption in Forest Corporation, as such he was/is not entitled for pensionary benefits under the provision of CCS (Pension) Rules, 1972. The orders of the Hon'ble High Court/HPAT passes in separate cases as referred at N/72/73 of this department file, were to be implemented in individual cases only. The facts of this case are different. However, an interest on the overdue contribution of leave salary and Pension contributions, which remained un-paid for about 21 years, is required to be recovered from Tarsem Chand in accordance with Rule 307 of Supplementary Rules read with Rule 119(b) of ...5... Fundamental Rules. The S.R. 307 provides that if the payment of contribution is not made within stipulated time period, an interest must be paid to the Government on such unpaid contribution at the rate of 2P per day per Rs. 100 from the date till the date on which the contribution is finally paid. Accordingly, this department is advised to work out the actual amount of interest which becomes payable by Tarsem Chand under the above referred provision, in consultation with Accountant General, H.P. and get the same recovered from him and deposit into the Govt. Treasury.” In view of the above you are, therefore, requested to take necessary action immediately under intimation to this department.” 6. The claim of the petitioner has been rejected vide letter dated 31.07.2010, Annexure P-27, mainly on the premise that he “was a temporary employee of Forest Department at the time of his absorption in Forest Corporation, as such he was/is not entitled for pensionary benefits under the provision of CCS (Pension) Rules, 1972”. However, in view of categorical admission on the part of respondents No. 1 and 2, vide para 2 of their reply, that the petitioner was appointed as Forest Guard on 27.01.1965 in Forest Division, Solan, and was confirmed as Forest Guard on 01.12.1973, the very premise on which letter dated 31.07.2010, Annexure P-27, is based, falls flat on the ground. In this view of the matter, the claim of the petitioner could not have been legally rejected. 7. Furthermore, in case where a state government employee is taken on deputation on the establishment of Central Government or vice-versa, no contribution towards leave salary and pension is to be made by the employee and instead the field is covered under Appendix 31 para 7.7 (i) of the Civil Service Regulations, Volume-IV, which is extracted below: ...6... “7.7(i) As at present allocation of leave salary and pension contribution between different Ministries/Departments of Central Government and between Central and State government has been dispensed with. In such cases of deputation from Central Government to State Government and vice-versa, liability for bearing leave salary vests with the department from which the officer proceeds on leave or which sanctions leave and no contributions are payable to the lending organisation. Liability for pension/employee's contribution to CPF will be borne by the parent department, to which the officer permanently belongs at the time of retirement and no proportionate contribution will be recovered.” 8. True it is that the decisions of this Court/the erstwhile H.P. State Administrative Tribunal in like matters, such as CWP No. 385 of 2002, titled State of Himachal Pradesh vs. Ishwar Dass, decided on 02.01.2008 and CWP(T) No. 5377 of 2008 (O.A. No. 2111 of 1998), titled Om Parkash Bhatnagar & others vs. H.P. State Forest Corporation & others, decided on 04.11.2009, were rendered in the respective cases. However, the fact remains that the principle of law governing such cases would also apply in similar cases and persons similarly situate are also liable to be treated similarly without any discrimination and they are also entitled for the benefit flowing from such judgments so as to avoid multiplication of litigation and to avoid putting the concerned employee and the State Government to unnecessary hardship and financial burden. 9. Insofar as the claim of the petitioner for grant of pension for the period he had served the respondent-Corporation from 28.10.1981 till the date of his retirement, on attaining the age ...7... of superannuation on 31.03.2004, in terms of Notifications dated 29.10.1999, Annexures P-12, and 02.12.2004, Annexure P-14, is concerned, the learned counsel for the petitioner submits that the same is covered under judgment dated 16.11.2010 of this Court in CWP(T) No. 6604 of 2008, titled B.S. Himalvi vs. HPTDC. 10. In view of the above, Annexure P-27 is quashed and the petition is disposed of with a direction: (1) to respondent No. 2 to consider the case of the petitioner for grant of pro rata pension for the period 01.11.1966 to 27.10.1981 during which he had served as Forest Guard in H.P. Forest Department within three months from the date of production of copy of this judgment by the petitioner in accordance with law, particularly the law laid down by this Court in the judgment referred to hereinabove in CWP No. 385 of 2002 and the observations made hereinabove in this judgment, alongwith consequential benefits, if any, failing which interest @ 9% per annum shall also be payable; and (2) to respondent No. 3 that, if on facts, the case of the petitioner for grant of pension for the period 28.10.1981 to 31.03.2004 is covered under the judgment referred to hereinabove in CWP(T) No. ...8... 6604 of 2008 and he is similarly situate he shall also be treated similarly without any discrimination and benefit of the said judgment shall also be extended to him within three months from the date of production of copy of this judgment by the petitioner. 11. In view of the above, the petition stands disposed of, so also pending CMP(s), if any. Copy dasti. (V.K. Sharma) Judge 6th April, 2011 (virender)