1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.373 of 1999 Date of decision 5.11.2008 N.N. Diwan …Petitioner Vs. State of H.P …Respondent Coram: The Hon’ble Mr. Justice R.B. Misra,J. The Hon’ble Mr. Justice Surjit Singh, J. Whether approved for reporting?1 For the Petitioner: Mr. Ashwani K. Sharma, Advocate. For the Respondent: Mr. P.K. Sharma, Addl. A.G. Per Surjit Singh, J (Oral) Petitioner has sought judicial review of order dated 8.7.1999 of H.P. State Administrative Tribunal, by means of the present writ petition, under Articles 226 and 227 of the Constitution of India, whereby his Original Application No. 427/1998, which he filed against Respondent-State of H.P, seeking issuance of a direction to it (the respondent) to pay pro-rata pension and other pensionary benefits for the service rendered by him under the State of Himachal Pradesh from 1.7.1961 to 2.7.1971, i.e. for a period of 10 years and 2 days, before his absorption in Himachal Pradesh State Financial Corporation, has been dismissed. 2. Facts necessary for the disposal of the writ petition may be noticed. Petitioner was appointed as an Assistant in the Council Secretariat of the then Himachal Pradesh Territorial 1 Whether reporter of local papers are allowed to see the judgment ? No. 2 Council on 1.7.1961. Later on, Territorial Council was abolished and the services of the writ petitioner were taken over by the Government of Union Territory of Himachal Pradesh. Vide order dated 31st March, 1969, his services were placed at the disposal of Himachal Pradesh Financial Corporation on deputation basis. On and with effect from 3.7.1971, he was absorbed as an employee of the Himachal Pradesh Financial Corporation and thus his services under the State of H.P., i.e. respondent herein, came to an end, with effect from 2.7.1971. He was paid a sum of Rs. 4710/- on account of terminal benefits. He superannuated from the service of Himachal Pradesh Financial Corporation on 30.11.1995. On 25th June, 1997, he made a representation to the respondent that he be paid pro-rata pension for the service rendered by him under it and other pensionary benefits be also made available to him. That representation was rejected and decision was conveyed to the petitioner vide letter dated 13.2.1998(Annexure PG). Petitioner then filed an Original application before the Tribunal seeking issuance of direction to the respondent, to the aforesaid effect. 3. Respondent took the plea that the Original Application was barred by time inasmuch as the cause of action accrued to the petitioner in the year 1971, when he was permanently absorbed in the service of State Financial Corporation and that limitation for filing application before the Tribunal was only one year. On merits, it was stated that the petitioner had been paid an amount of Rs. 4710/-, on account of terminal benefits and this amount was paid to him in lieu of gratuity as also pension and so he was not entitled to any pension. Another plea taken by the respondent was that the petitioner had not 3 put in 10 years service which was the minimum prescribed qualifying service for eligibility and entitlement to pension. 4. Learned Tribunal dismissed the original application holding that the same was barred by time. Merits of the case were not touched by the Tribunal. 5. We have heard the learned counsel for the petitioner as also learned Additional Advocate General. Petitioner has sought grant of pension under CCS (Pension) Rules, 1972. The said rules are not applicable in his case. He was absorbed in the service of Himachal Pradesh Financial Corporation in the year 1971 when the CCS (Pension) Rules had not come into force. At the relevant time, Liberalised Pension Rules were in force. These rules appear in Appendix 41 in compilation of the Civil Service Regulation Volume-II by Lakhi Singh Chaudri. According to Government of India, Ministry of Finance Memo No. F.24(12)-E.V./66, dated 16th June, 1967 appearing below section VII-Miscellaneous a person having put in 10 years or more service, under the government and then having been absorbed in some public undertaking, is entitled to pro-rata pension and gratuity according to table given in Annexure ‘A’ to Government of India, Ministry of Finance Memo No. 20(2)-EV/56 dated 22nd May, 1957, but the pension becomes payable on and with effect from the date when he would have retired, on attaining the age of superannuation, had he remained in government service. That means, according to the aforesaid letter of Government of India, Ministry of Finance, which was then applicable, petitioner was to have become entitled to receive pension for the service rendered by him under the government only on attaining the age at which he would have retired, had he remained in government service. 4 Admittedly, he superannuated on 30.11.1995. That means he became entitled to receive pension, as per his claim, after 30.11.1995. He made representation to the Government on 25th June, 1997 which was rejected in February, 1998. That means cause of action accrued to him, when his representation was rejected. He filed Original application in the year 1998 itself or say within one year of the rejection of his representation and thus his Original Application was well within limitation. So the order of the Tribunal dismissing his application on the ground of limitation is not legally sustainable. 6. State Administrative Tribunal has since been abolished and, therefore, we proceed to decide the matter on merits, which otherwise was required to be decided by the Tribunal, had it remained in existence. 7. As regards the merits, Liberalised Pension Rules and the Government of India Memorandum dated 16th June, 1967, as referred to here-in-above, provide for pro-rata pension in a case where an employee puts in 10 years or more of qualifying service and is then absorbed in a public undertaking and the pension is payable only after he attains the age at which he would have superannuated had he continued to serve the government. Plea taken by the respondent is that the petitioner had not put in 10 years of service under the State Government and, therefore, he is not entitled to pension. Admittedly, the writ petitioner joined service in the Himachal Pradesh Territorial Council as an Assistant on 1.7.1961. On the abolition of the Territorial Council in 1963, he became an employee of the State Government. He remained an employee of the State Government until he was absorbed in the service of Himachal Pradesh State Financial Corporation. This 5 absorption took place on 3.7.1971. The aforesaid Government of India, Ministry of Finance Memo dated 16th June, 1967 says that a government employee absorbed in a public undertaking shall be deemed to be an employee of the government up to the date of his absorption for the purpose of pensionary benefits. Thus the petitioner was an employee of the government from 1.7.1961 to 2.7.1971 before he was absorbed in the service of Himachal Pradesh Financial Corporation. In another words, he had put in more than 10 years of service under the respondent before he was absorbed as an employee of the Himachal Pradesh Financial Corporation. Therefore, he is entitled to pension under the Liberalised Pension Rules and the above referred to Government of India, Ministry of Finance Memo dated 16th June, 1967. 8. Plea taken by the respondent that an amount of Rs. 4710/- was paid to the petitioner, on account of gratuity and pensionary benefits, is not correct. We find on record a statement, Annexure A-16, which the respondent prepared soon after the petitioner was absorbed in the services of the Financial Corporation. As per this statement, the amount of Rs 4710/- was the proposed amount of his gratuity only and it did not include anything on account of lump-sum payment, in lieu of pension. So, the plea is rejected. 9. In view of the above stated position, writ petition is allowed. Impugned order of the State Administrative Tribunal is set aside and the respondent is directed to pay monthly pension to the petitioner and also to give him all other pensionary benefits in accordance with the Liberalised Pension Rules and the Government of India, Ministry of Finance Memorandum dated 16th June, 1967, as referred to here-in-above, on and with effect from the date next 6 following the date of his retirement from the service of Himachal Pradesh Financial Corporation i.e. 30.11.1995. We give four months’ time to the respondent to comply with this direction. ( R.B. Misra ), J. ( Surjit Singh ), J. 5th November, 2008 (sl)