IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 9320/2008 Decided on:30.6.2010 _____________________________________________ Ramesh Chand. …Petitioner. Versus Himachal Road Transport Corporation. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. M.R. Verma, Advocate. For the Respondent : Mr. H.S. Rawat, Advocate. ____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner submitted notice on 5.1.1996 seeking volunteer retirement under the provisions of sub-rule (2) of rule 3 of the Himachal Pradesh Civil Services (Premature Retirement) Rules, 1976. The notice was accepted with effect from 29.2.1996. He was retired with effect from 29.2.1996. Petitioner made a representation for the release of pensionary benefits vide representation Annexure A-2. He also gave reference to Head Office memo No. HO-9E-22/91 (A) dated 26.7.1994. Case of the petitioner was rejected by the Financial Advisor and CAO vide Annexure A-3 on 18.3.2003 on the ground that the petitioner was 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 not confirmed during his entire service period. Respondents have filed reply to the petition and it is averred therein that since the petitioner was neither confirmed nor completed minimum qualifying service, he was not entitled for pension. Mr. M.R. Verma has strenuously argued that the case of his client was required to be considered on the basis of rule 49 of the Central Civil Services (Pension) Rules, 1972 and office order dated 6.10.1995 read in conjunction with Himachal Pradesh Civil Services (Premature Retirement) Rules, 1976 as amended from time to time. Mr. H.S. Rawat has reiterated the stand taken in the reply filed by the respondent-corporation. 4. I have heard the learned counsel for the parties and have perused the record carefully. 5. Petitioner submitted notice seeking volunteer retirement as per sub-rule (2) of rule 3. It was accepted on 29.2.1996 from this date. Petitioner has worked in the respondent-corporation for seventeen long years. It can safely be presumed that the petitioner was appointed as Driver on probation period and after the completion of probation period satisfactorily, he would have been deemed to be confirmed. The corporation has also issued instructions on 26.7.1994 on the basis of office memo dated 28.3.1988 whereby the process of confirmation has been simplified and it has been delinked from the availability of the permanent post. 3 Mr. M. R. Verma has also drawn the attention of the Court to Head Office memo No. HO-9E-22/91 (A) dated 26.7.1994 incorporated in Annexure A-2 whereby petitioner has made representation to the Managing Director of the respondent- corporation. It reads thus: “Since all the persons who complete probation in the first appointment will be declared as permanent, the present distinction between permanent and temporary employees for grant of pension and other pensionary benefits cease to exist.” It is thus evident from Head Office memo No. HO-9E- 22/91 (A) dated 26.7.1994 that the incumbents who had completed probation period on the first appointment were to be declared permanent and the distinction between permanent and temporary employees for grant of pension and other pension benefits had ceased to exist. The matter is required to be considered from another angle. Respondent-corporation vide office order dated 6.10.1995 has sanctioned pension to its employees and officers with effect from 5.6.1995 after its approval from the State Government. It is clearly mentioned in office order dated 6.10.1995 that Central Civil Service (Pension) Rules, 1972 stood adopted by the Himachal Pradesh Road Transport Corporation. Rule 49 of the Central Civil Service (Pension) Rules, 1972 reads as under: “2 (b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, 4 the amount of pension shall be proportionate to the amount of pension admissible under clause (a) and in no case the amount of pension shall be less than (Rupees three hundred and seventy five) per mensem.” Respondent has not taken into consideration rule 49 of the Central Civil Services (Pension) Rules, 1972 while rejecting the case of the petitioner. Mr. M.R. Verma has drawn the attention of the Court to amendment carried out in the Himachal Pradesh Civil Services (Premature Retirement) Rules, 1976 by Himachal Pradesh Civil Services (Premature Retirement) (Fourth Amendment) Rules, 1987. Amended proviso to sub-rule (2) of rule 3 reads thus: “Provided that any Government servant with satisfactory service record may, after giving notice of not less than three months in writing to the appropriate authority retire from service on completion of 20- years of service or 45 years of age after such notice has been accepted by the appropriate authority.” Similarly, after sub-rule (3) of rule 3, sub-rule (4) has been inserted, which reads thus: “(4) The qualifying service as on the date of retirement of Government servant retiring under sub-rule (2) (a), sub rule (2) (b) or first proviso to sub-rule (2) of rule 3 of the said rules shall be increased by the period not exceeding 5 years subject to the condition that the total qualifying service of the Govt. servant does not in any case exceed 33 years and it does not take him beyond the date of superannuation. The weightage of 5 years qualifying service as provided in this sub-rule 5 shall not be admissible in case of those Government servants who are pre-maturely retired in the public interest under sub-rule (1) of rule 3.” According to newly added proviso below sub-rule (2) of rule 3, a Government servant with satisfactory service record, after giving notice of not less than three months in writing to the appropriate authority can retire from service on completion of 20 years of service or 45 years of age after such notice has been accepted by the appropriate authority. As per newly added sub- rule (4) below sub-rule (3) of rule 3, a person who prefers application seeking retirement under sub-rule (2) (a), sub-rule (2) (b) or first proviso to sub-rule (2) of rule 3 of these rules, qualifying service is to be increased by period not exceeding five years subject to the condition that the total qualifying service does not exceed 33 years and does not take him beyond the date of superannuation. Petitioner date of birth is 15.10.1949. He had attained the age of 45 years at the time of acceptance of notice for premature retirement. He had worked for seventeen years with the respondent-corporation on the date of acceptance of his notice. In view of this, his qualifying service was to be increased by five years. What emerges from the discussion made hereinabove is that petitioner was deemed to have been confirmed as Driver and his case was required to be considered by the respondent- corporation strictly as per the Himachal Pradesh Civil Services (Premature Retirement) Rules, 1976 amended from time to time. 6 Since the petitioner, as per findings recorded hereinabove, was entitled to get additional qualifying service of five years, his pensionary benefits are to be calculated on the basis of 22 years qualifying service for all intents and purposes. Consequently, the petition is allowed. Annexure A-3 dated 18.3.2003 is quashed and set aside. Respondent is directed to release pensionary/retiral benefits to the petitioner within a period of ten weeks after the production of certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma), Judge. 30.6.2010 *awasthi*