IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 8041 of 2008 Judgment reserved on: 18.12.2010 Date of decision: 21.2.2011 Jiwa Nand …Petitioner. Versus State of H.P. and others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Ajay Sharma , Advocate. For the Respondents : Mr. R.K.Bawa, Advocate General with Ms. Ruma Kaushik, Addl. A.G. and Mr.J.S.Rana, Asstt. A.G. for respondents No.1 to 3. Kuldip Singh, Judge The petitioner in the petition has mainly prayed the following reliefs:- (i) Impugned act of the respondents above stated may very kindly be quashed and set-aside with further directions to the respondents to consider and grant full pensionary benefits to the applicant after counting the services rendered by the applicant prior to the provincialisation of his services and calculate and grant the arrears alongwith interest @ 12% per annum. (ii) Directions may very kindly be issued to the respondents to start paying the pensionary benefits to the applicant from 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 the ensuing month by counting the services of 37 years 7 months and 28 days so that the miscarriage of justice caused to the applicant at this stage could be mitigated. 2. The grievance raised by the petitioner in the petition is that respondents have not counted the services of the petitioner for pensionary benefits w.e.f.31.1.1945 to 30.11.1967wrongly, illegally and arbitrarily. The further case of the petitioner is that he joined as Vaccinator in Zila Parishad Kangra at Dharamshala on 31.1.1945 and served as such till 30.11.1965. Thereafter, petitioner served under Zila Parishad, Kullu from 1.12.1965 to 30.11.1967. The services of the petitioner were provincialised from 1.12.1967 vide Government letter dated 24.11.1967. 3. The petitioner was promoted as Superintendent Vaccination vide Government letter dated 5.5.1976 and he joined as such on 31.5.1976. The petitioner retired on superannuation on 31.7.1982. 4. The respondents have counted the services of the petitioner for grant of pensionary benefits from 1.12.1967 i.e. from the date of provincialisation of the services of the petitioner and services of the petitioner prior to 1.12.1967 have not been counted for the purposes of pensionary benefits. The petitioner in fact has rendered total service of 37 years 7 months and 28 days and he is entitled to count this much of service for the purpose of pensionary benefits. The petitioner made representation Annexure A-1 to respondent No.1, the respondent No.3 forwarded the said representation to respondent No.2. The petitioner submitted other representations also. The 3 information asked by respondent No.4 was duly supplied but till date the respondents have not decided the case of the petitioner for grant of full pensionary benefits, hence the present petition seeking the reliefs noticed above. 5. The petition has been contested by respondents No.1 to 3 by filing joint reply. It has been stated that as per letter dated 22.10.1981 Annexure R-1 in the reply of respondent No.4, it is evident that the element of option was essential for extending the benefit of services rendered by the petitioner prior to 1.12.1967 i.e. the date of his provincilization. The extract of Pension Manual dated 18.12.1968 Annexure R-4 to the reply of respondent No.4, indicates that the element of option of surrendering the entire employees contribution to their Provident Funds together with the interest thereon and in lieu thereof counting their services for the purpose of leave, pay and pension was again vital and essential element for having the benefit allowed and released in favour of the employees like the petitioner. The petitioner right from 1.12.1967 to 31.7.1982 when he retired from service never tendered any option nor took steps regarding Contributory Provident Fund as provided in the Pension Manual dated 18.12.1968. The respondents No.1 to 3 have taken the plea of limitation. It has been stated that no action of the respondents No.1 to 3 is illegal inasmuch as counting of the period of services rendered by him with the Zila Parishad w.e.f. 3.1.1945 to 30.11.1967 with the services subsequently rendered by him with the Department upto the date of provincilization i.e. 1.12.1967, all depended on the option which the petitioner had to tender at the time and stage of joining the 4 department of Health and also getting of the employers as well as his own share of contribution transferred towards the Contributory Provident Fund together with the interest thereon into the credit of the Government Revenue and his General Provident Fund respectively, after the date of provincilization, in pursuance to the decision of the Government of India vide letter dated 17.7.1954 as also that of the State Government dated 18.12.1967 which the petitioner factually failed to do in his case. In these circumstances, the petitioner is not entitled to any relief. The petitioner has filed rejoinder to the reply of respondents No.1 to 3 and reiterated his stand. 6. The respondent No.4 has filed the reply and has not denied that the services rendered by the petitioner in Zila Parishad, Kangra from 31.1.1945 to 30.11.1967 has not been taken into account for pensionary benefits in view of non-fulfilling the conditions enumerated in Government of India O. M. dated 17.7.1954. The pension case of the petitioner was finalised after excluding the service rendered by the petitioner prior to 1.12.1967. It has been stated that the employees of the Health Department who were serving in Zila Parishad/Local Bodies and services were taken over by the State Government w.e.f. 1.7.1967 were to be governed under the instructions contained in memo dated 18.12.1967 Annexure R-4. The petitioner has not fulfilled the condition laid down in Memo dated 18.12.1967 read with Government O.M. dated 17.7.1954, the services rendered by the petitioner in Zila Parishad could not be counted towards pensionary benefits. 5 7. I have heard the learned counsel for the parties. There is no dispute that the petitioner joined as Vaccinator in Zila Parishad, Kangra on 31.1.1945 and served under Zila Parishad, Kangra at Dharamshala till 30.11.1965. Thereafter, petitioner served under Zila Parishad, Kullu from 1.12.1965 to 30.11.1967. On 1.12.1967 the services of the petitioner were provincialised. The letter dated 17.7.1954 refers to instructions contained in paragraph No.2(b) of the Ministry of Finance Office Memorandum dated 20.3.1952, wherein it was stated that orders regarding the counting towards pension of the previous service of an ex-State employee who was previously subscribing to a contributory provident fund and who has been brought on to Central Government scales of pay and allowances and other conditions of service and the disposal of the balance at his credit in that fund would issue separately. In that connection, the President was pleased to decide as referred to in the O.M. dated 17.7.1954. The memo dated 17.7.1954 refers to an ex-State employee who was previously subscribing to a contributory provident fund and who has been brought on to Central Government scales, the Memo dated 17.7.1954 does not cover the case of employee who was not ex- State employee. 8. The Note-I of Government of Himachal Pradesh memo dated 18.12.1968 is as follows:- “Note-I: The matter to determine the terms and conditions of the staff working in Medical and Public Health Institutions under the Zila Parishad/Local Bodies, which have been taken over by this Deptt. with effect from 1.7.1967 respectively has been under the consideration of Himachal Govt. for some time past and it has now been decided that these employees may be allowed the option of surrendering the entire employees contribution to their 6 provident funds together with the interest thereon and in lieu thereof count their service for the purpose of leave, pay and pension. As regards seniority these employees will be entitled to have benefit of the same from the date(s) of provincialisation of the institution(s). This issues with the prior concurrence of Finance Department obtained vide their U.O. No. 14370, dated 12.12.1968. (Authority: Secretary to the Govt.of H.P. Memo No.3-358/68- Med.I, dated 18-12-68).” 9. The grievance of respondents No.1 to 3 is that petitioner has not given his option in terms of memo dated 18.12.1968 and, therefore, he is not entitled to any relief claimed in the petition. It is not the case of the respondents No.1 to 3 that the option of petitioner in terms of memo dated 18.12.1968 was called, nor it has been projected that petitioner was made aware the requirement of option as per memo dated 18.12.1968. As per memo dated 18.12.1968, in order to determine the terms and conditions of the staff working in Medical and Public Health Institutions under the Zila Parishad/Local Bodies, which were taken over by the Deptt. with effect from 1.7.1967, was under the consideration of Himachal Govt. It has been decided that these employees may be allowed the option of surrendering the entire employees contribution to their provident funds together with the interest thereon and in lieu thereof count their service for the purpose of leave, pay and pension. In the present case, the services of the petitioner were taken over by Govt. on 1.12.1967. There is no reason why the norms provided in the letter dated 18.12.1968 should not apply to the case of the petitioner whose services were taken over by the Government on 1.12.1967 when other similar type of employees whose services were taken over on 1.7.1967, they were given the 7 benefits of memo dated 18.12.1968. Therefore, petitioner is entitled to counting of his services from 31.1.1945 to 30.11.1967 and from 1.12.1967 to 31.7.1982 his date of superannuation in terms of O.M. dated 18.12.1968, noticed above. 10. In view of the above, the petition is allowed. The respondents are directed to count the services of the petitioner for the purpose of pensionary benefits from 31.1.1945 to 30.11.1967 and from 1.12.1967 to 31.7.1982 the date of superannuation of the petitioner in terms of O.M. dated 18.12.1968 and communicate the decision to the petitioner in three months from the date of supply of copy of this judgment by the petitioner to the competent authority. In case the petitioner complies the terms and conditions of the office memo dated 18.12.1968 and comply the decision to be communicated to him as directed in one month from the date of communication of the decision of the competent authority to the petitioner, the respondents shall release the pensionary benefits to the petitioner in another two months, failing which the petitioner shall be entitled to interest at the rate of 9% per annum on such arrears till payment. In case petitioner shall not comply the decision of competent authority, terms and conditions of memo dated 18.12.1968 as directed above, the petition shall stand dismissed after expiry of period indicated above without reference to the Court. ( Kuldip Singh ), February 21, 2011 Judge. (GR)