IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P.–T- 3090 of 2008. Reserved on: 16.08.2011. Decided on : 30.08.2011. _____________________________________________________ Dr. Anand Singh Verma. …Petitioner. -Versus- State of Himachal Pradesh and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner : Mr. Dilip Sharma, Advocate. For respondent No. 1. : Mr. R.K. Sharma, Senior Additional Advocate General with Mr. R.P. Singh, Assistant Advocate General. For respondent No. 2. : Mr. Onkar Jairath, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner was offered the temporary post of Civil Assistant Surgeon Grade-1 (G) vide memorandum dated 21.12.1970. He was permitted to cross efficiency bar on 23.10.1981 w.e.f. 01.01.1981. He applied for the post of GDO-1 in Himachal Pradesh Krishi Vishvavidalaya, Palampur. He was offered appointment letter by the Himachal Pradesh Krishi Vishvavidalaya, Palampur on 27.03.1985, pursuant to which he joined his duties on 30.04.1985. His resignation was accepted w.e.f. 30.04.1985 vide letter dated 30.01.1986. Case of the petitioner for terminal pensionary benefits was turned down by the State Government on 31.07.1987. Case of the petitioner was 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. - 2 - favourably recommended by the Director of Health Service, Himachal Pradesh to the Secretary (Health), Government of Himachal Pradesh on 28.12.1988. According to the Director of Health Services, petitioner was eligible for terminal benefits, since he had rendered more than 14 years of service. However, fact of the matter is that the representations made by the petitioners were rejected on 18.05.1989 and 13.05.1993. The Additional Secretary (Health), Government of Himachal Pradesh has issued a letter to the Director, Health Services to verify the services of the petitioner for counting the past service rendered in the parent department, i.e., Health and Family Welfare Department on 16th October, 2001 vide Annexure A-13. Petitioner made a representation on 18th December, 2001, mentioning therein the example of one Shri Sushant Awasthy, Medical Officer, who was also appointed in the Himachal Pradesh Krishi Vishvavidyala, Palampur and his past services were counted. The Registrar has sent a communication to the Chief Medical Officer, Solan on 20.02.2002 vide Annexure A-17 informing him that the services rendered in the department of Health & Family Welfare shall be counted by the University for pension only subject to the remittance of terminal pension liability by the State Government. The Secretary (Health) informed the Chief Medical Officer, Solan, District Solan, copy of which was endorsed to the Registrar, Y.S. Parmar University of Horticulture and Forestry, Nauni that the decision has already been taken on 31.07.1987, 18.05.1989 and 13.05.1993. 2. Mr. Dilip Sharma, learned counsel for the petitioner has strenuously argued that the respondent-University is bound - 3 - to count the services rendered by the petitioner in the parent department before his appointment in the respondent-University, i.e., 30.04.1985. 3. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the case of the petitioner already stood rejected and is not covered under the CCS (Pension) Rules, 1972. He also argued that the services rendered by the petitioner cannot be counted since it was ad hoc service. 4. Mr. Onkar Jairath, learned counsel for respondent No. 2 has vehemently argued that the services of the petitioner rendered in the parent department can be counted if the State Government remits the terminal retirement benefits granted to the petitioner. He has also relied upon Annexure R-8 issued on 3rd March, 1997. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. Petitioner has been appointed as Civil Assistant Surgeon Grade-1 (G) on 21.12.1970. He has continuously worked up to 29.04.1985 in the same capacity. He has rendered more than 14 years service. Petitioner was appointed on temporary basis and not on ad hoc basis, as averred in the reply and argued by Mr. R.K. Sharma, learned Senior Additional Advocate General. He has been permitted to cross efficiency bar on 23.10.1981 w.e.f. 01.01.1981. Thereafter, he was again permitted to cross efficiency bar on 22.02.1985. His resignation was accepted w.e.f. 30.04.1985 vide letter dated 30.01.1986. He was regularized in the respondent-University on 30.07.1987. He has retired on 31.10.2001. Petitioner has been appointed substantively after he - 4 - has held the post of Civil Assistant Surgeon Grade-I on temporary basis from 21.12.1970 till his joining in the University on 30.04.1985. Case of the petitioner stood recommended by the Director of Health Services, Himachal Pradesh as is evident from Annexure A-10, dated 28th December, 1988. 7. It is evident from the language employed in Rule 13 of the CCS (Pension ) Rules, 1972 that the qualifying service of a Government servant shall commence from the date, he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. There is no break in service of the petitioner from 21.12.1970 till 31.10.2001. 8. Now, as far as the case of Shri Sushant Awasthy is concerned, his case stands on a different footing. He was appointed on ad hoc basis on 19.09.1968 and was regularized on 07.12.1972. Mr. Dilip Sharma, learned counsel for the petitioner has drawn the attention of the Court to Annexure R-8, whereby the respondent-University has decided to implement the pension scheme in the University. Pragraph No. 1.11(i) of the scheme reads thus: “The existing employee who has served the Central Govt. or any State Government or Autonomous body established under the Central/State Law, has been absorbed in Dr. Y.S. Parmar University of Horticulture and Forestry service in the public interest or who has come over/joined the University service after rendering service in the Central/State Govt./Autonomous body can get his past service counted towards pension if he refunds alongwith documentary proof thereto the terminal retirement benefits received by him from such - 5 - Govt./Autonomous body for the service rendered there, to this University alongwith compound interest thereon at the rate of 10% per annum from the date of receipt of these benefits till the date of deposit with university.” 9. It is also apparent from the note appended to the rule that these provisions are applicable to the employees who were in service on 1.1.1986 irrespective of the date of their absorption. It is evident from the plain reading of paragraph No. 1.11 (i) that the respondent-University has decided to count the previous service rendered by the employees before joining the University services, if the incumbent refunds alongwith documentary proof thereto the terminal retirement benefits received by him from the State Government alongwith compound interest thereon at the rate of 10% per annum from the date of from the date of receipt of these benefits till the date of deposit in the university. Thus, the case of the petitioner is covered under Annexure R-8, dated 03.03.1997, since he has served in State Government for 14 years and thereafter joined his duties as GDO-I, initially in Himachal Pradesh Krishi Vishvavidyalaya, Palampur and thereafter he became employee of the respondent-University after creation of the respondent-University w.e.f. 30.04.1985. It is clear that the petitioner has not been paid any terminal pension by the respondent-State and his case was repeatedly rejected vide letters dated 31.07.1989, 18.05.1989, 13.05.1993 and 31.12.2002. Thus, there is no question of the petitioner refunding his terminal retirement benefits for the simple reason that he has been paid none by the State. - 6 - 10. Accordingly, the petition is allowed. Annexures A-9, dated 31.07.1987, A-10, dated 28.12.1988, A-11, dated 18.05.1989 and A-18, dated 31.12.2002 are quashed and set aside. The respondent-University is directed to count the previous service of the petitioner as Civil Assistant Surgeon Grade-I w.e.f. 21.12.1970 up to 30.04.1985 for the purpose of pensionary/retiral benefits. The same shall be calculated and paid to the petitioner within a period of twelve weeks from the date of production of a certified copy of this judgment by the petitioner. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma) Judge August 30, 2011. (bhupender) - 7 - `