IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. –T - No. 3075 of 2008 Date of decision: 22. 6. 2010 K.D. Sharma …..Petitioner Versus State of H.P. and another ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the petitioner: Mr. Adarsh K. Vashisht, Advocate. For the respondents : Mr. J.S. Rana, Assistant Advocate General, for respondent No. 1. Mr. Vinod Thakur, Advocate, for respondent No. 2. Surinder Singh, J (oral). The petitioner filed an Original Application under Section 19 of the Administrative Tribunals Act, 1985 before the Erstwhile Tribunal. The Tribunal was abolished as such the application was transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008, and registered as CWP (T) No. 3075/2008. 2. The grievance of the petitioner is that he was initially appointed as Librarian in Government College, Chamba on 18.3.1960. He continued as such till 5.12.1972. He was placed on deputation with the respondent University, later he was observed along with another employee, namely, Sh. M.S. Garg, who was 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - Assistant Librarian, w.e.f. 9.3.1976 (Annexure A1). The case of the petitioner is that he was entitled to receive prorata pension w.e.f. 26.12.1986 when he completed the age of 55 years which was payable by the State government. Thus, the petitioner exercised his option on 27.12.1987 (A2) for counting of his government service, in H.P. University in accordance with the provisions in this behalf. 3. On his retirement, the petitioner was granted prorata pension without counting his service rendered by him in the Education Department of the State Government because at that time the instructions issued by the Government of India in respect of Central Government employees were not adopted by the State Government. Therefore, the petitioner had no choice but to accept the pension with a specific rider that it should remain in abeyance till the reply of the State Government is received in this behalf. 4. The petitioner was superannuated on 31.12.1991 from the respondent University but the decision on his option was on hold. However, C.P.F. was released in his favour in the year 1992 which, according to him, was accepted under protest. 5. The Finance Department of the State Government issued the memorandum dated 5.7.1996 whereby it was conveyed that the decisions contained in the instructions of Government of India issued with regard to permanent absorption of State Government employees to public Sector Undertakings/Autonomous Bodies and vice-versa, from time to time, were adopted with effect from the date of issue of the said - 3 - orders. (Annexure A3 colly). A perusal of clause 5 (1) (b) of letter dated 12.9.1985 reveals that it was decided that those who have received the permanent benefits or other terminal benefits for their past service will have the option either: (a) to retain such benefits and in that event their past service will not qualify for pension under the autonomous body or the Central Government as the case may be or; (b) to have the past service counted as qualifying service for pension under the new organization in which case the prorate retirement or other terminal benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of those benefits till the date of deposit with the autonomous body or the Central Government as the case may be. The right to count previous service as qualifying service shall not revive until the whole amount has been refunded….. and the option was required to be exercised within one year. 6. Thus the petitioner exercised his option within the stipulated period to get the past service counted as qualifying service in the University. 7. Office memorandum dated 4.3.1996 (A4) reviewed the terms and conditions of absorption of permanent government servants in public Sector Undertaking/Autonomous Bodies and the Central/State Government, the perusal of which shows that the petitioner was not entitled to 100% commutation of pension on his absorption. - 4 - 8. The instructions aforesaid were adopted by the respondent University vide notification No. 3-11/86-HPU (Genl) Vol-II dated 27.8.1996 and the respondent-University vide letter dated 17.10.1996 made the request to the Director Education to the Government of H.P. vide Annexure A-5 to furnish the information with regard to the payment of retirement benefits paid to the petitioner as also the service book of the petitioner with a copy to the petitioner to expedite the matter. Again on 22.3.1997 (Annexure A6) the Registrar of the respondent University requested to furnish the details of amount paid by the Education Department as gratuity, monthly prorata pension and commuted value etc with dates of payments, copy of which was endorsed to the Principal Government College Solan, from where the petitioner was sent on deputation as also the Accountant General, Treasury Officer etc. The information was accordingly supplied to the respondent University by the Principal concerned vide his letter Annexure A7 dated 4.4.1997. The respondent University only released the pension pertaining to University itself pursuant to the writ petition filed by the petitioner in the High Court. 9. Thereafter the petitioner again made representation (Annexure A10) dated 12.2.1998 to the Registrar of the respondent University to decide his pension case counting his previous service rendered in the State government as per rules. 10. In response, respondent University vide his communication dated 16.3.1998 advised the petitioner to apply to the previous employer/Government for making one time payment of pensionery benefits in lump-sum so that service - 5 - rendered by him under the State Government could be counted for determining the pensionery benefits in the University on depositing the same with the University. 11. Surprisingly State Government did not respond to the letter of the Registrar of the University as such the case of the petitioner remained hanging in fire. 12. On the perusal of the record, it transpires that Shri M.S. Garg, who was Assistant Librarian, was accorded benefit of his previous service on depositing the retirement benefits received from the State government. Since the petitioner is also similarly situate, he is also required to be treated equally. 13. Therefore, for the reasons aforesaid, the present petition is allowed. The petitioner is directed to deposit the retrial-benefits received from respondent No. 1-State along with interest @ 8% per annum within a period of one month from today to the Registrar of the respondent University and respondent University is directed to take decision for the grant of retrial benefit by counting previous service of the petitioner rendered with the State Government within two months thereafter. The petition stands disposed of so also the pending application (s) if any. (Surinder Singh, J June 22, 2010 (cm)