HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. : 541 of 2002 Decided on: 22.7.2008. State of H.P. ……… Petitioner. Versus Roshan Lal Acharya ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.R.M. Bisht and Mr.Rajesh Mandhotra, Deputy Advocate Generals. For the respondent: Mr.Anand Sharma, Advocate. Deepak Gupta, J.(Oral): The short question which arises in this case is whether the respondent can take the benefit of counting the service rendered by him as a teacher in a privately managed school before it was taken over by the State Government for computing the qualifying service for the purposes of pension and other retiral benefits. The respondent the joined Sanatan Dharam High School, Baijnath as Trained Graduate Teacher on 23rd September, 1956. On 16th April 1970, this School, alongwith the services of the respondent, was taken over by the State Government. Thereafter, the petitioner served the State of Himachal Pradesh. He was promoted as Principal and retired from the State service on ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - 28th February, 1990. The Government paid him pension by reckoning his qualifying service w.e.f. 16.4.1970 to 28.2.1990. The respondent filed an Original Application before the learned H.P. State Administrative Tribunal in May, 1996 being O.A. No.(D) 132/1996. This Original Application was allowed and it was held that the petitioner was entitled to count the service rendered by him before the take over of the School for the purpose of computing the qualifying service for pensionary benefits. However, the payment of arrears was restricted to a period of 3 years prior to the filing of the Original Application. Aggrieved by this order of the learned Tribunal, the State filed the present petition. On 6th May, 2002, the operation of the order of the learned Tribunal was stayed. The question which has arisen in this writ petition need not delay us for long since it is squarely covered by the judgment of the Apex Court in State of Bihar v. S.A. Hassan and another, (2002) 3 Supreme Court Cases 566, wherein the Apex Court held as follows: “Rules 58 is clear that a government servant does not qualify for pension unless he conforms to three conditions viz. (1) his service must be under the Government, (2) the employment must be substantive and permanent, and (3) service must be paid by the Government. In view of this Rule the respondents cannot claim the period of their service before the College was taken over as they were neither under the employment of the Government nor were their salaries paid by the Government. Under the specific Rule 58 the past service rendered by the respondents in the College while it was under the private management cannot be counted.” In the present case, nothing has been pointed out to us either in the terms of the order taking over of the School or in any other document which would evince that the State, in any manner, was considering the counting of the service rendered under the privately managed school for the purpose of - 3 - considering the pensionary benefits. Therefore, the order of the learned Tribunal being against the law laid down by the Apex Court has to be set aside and the writ petition is accordingly allowed. No orders as to costs. (Deepak Gupta), Judge. July 22, 2008. (V.K. Ahuja), (TILAK) Judge.