HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. : 1781 of 2002. Alongwith CWP No. : 1785 of 2002. CWP No. : 1797 of 2002. Decided on: 4.7.2008. CWP No.1781 of 2002 Principal Secretary (AH), to the Govt. of H.P. & another ……… Petitioners. Versus Mohan Lal ………Respondent. CWP No.1785 of 2002 Principal Secretary (AH), to the Govt. of H.P. & another ……… Petitioners. Versus Dagu Ram ………Respondent. CWP No.1797 of 2002 Principal Secretary (AH), to the Govt. of H.P. & another ……… Petitioners. Versus Dina Nath ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioners: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondents: Ms.Urmila Thakur, Advocate. Whether reporters of local newspapers may be allowed to see the judgment? Yes. Deepak Gupta, J (Oral): This judgment shall dispose of the aforesaid three writ petitions filed by the State since common question of law and fact arises in all the three petitions. Briefly stated the facts of the case are that all the employees in the aforesaid three petitions were appointed on temporary posts by the State of Himachal Pradesh in the Animal Husbandry Department. It is not disputed that all the employees had completed 10 years of service in the said Department. In the year 1984, the State of Himachal Pradesh decided to hive off the functional activities of the dairy development schemes being run by the Animal Husbandry Department. A Corporate Body known as The Himachal Pradesh State Cooperative Milk Producers Federation Ltd. (hereinafter referred to as the Milk Fed.) was constituted. It was decided that the employees working in the Animal Husbandry Department in the dairy development scheme would be sent on deputation to the Milk Fed. Thereafter, all the employees were given option to join the Milk Fed. The respondents, in the present petitions, opted to join the Milk Fed. In fact they had no other option because their posts no longer existed in the Animal Husbandry Department and in case they had not agreed to join service in Milk Fed., they would have been without job. All the employees approached the learned H.P. State Administrative Tribunal (hereinafter to be referred as the Tribunal) by filing separate original applications praying that since they had put in more than 10 years of service before being sent on deputation to the Milk Fed., pensionary benefits be granted to them in terms of CCS (Pension) Rules, 1972. These applications were allowed by the learned Tribunal. The learned Tribunal, while allowing the applications, has relied upon an earlier judgment of the Tribunal rendered in T.A. No.880 of 1986, titled E.B. Patil and others v. State of H.P. and others. In E.B. Patil’s case, the claim of the original applicants was that before they are absorbed in the Milk Fed., they may be permitted to complete 10 years service in the Animal Husbandry Department so that they could get the benefit of pension. This application was allowed and the orders of termination of the services w.e.f. April/January, 1984 were quashed and the State was directed to treat them on deputation to the Milk Fed. till they had put in 10 years qualifying service in the Animal Husbandry Department. With due respect to the learned Tribunal, we are unable to comprehend how the judgment in the said case was applicable to the present cases. In Patil’s case the question whether temporary service rendered in Government service followed by substantive appointment in a Government undertaking entitles the employee to pension or not, did not arise for consideration. We have heard Shri Rajesh Mandhotra, learned Deputy Advocate General for the petitioner, and Ms.Urmila Thakur, learned vice counsel for the respondents. Mr.Mandhotra has urged that the employees had not been confirmed in the Animal Husbandry Department and they were temporary employees till their services were terminated and finally they were absorbed in the Milk Fed. He, therefore, contends that the employees cannot be permitted to count this service for the purpose of grant of pension. On the other hand, Ms.Urmila Thakur has drawn our attention to Rule 37(1) of the CCS (Pension) Rules, which reads as follows: “37. Pension on absorption in or under a corporation, company or body (1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a Body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption and subject to sub- rule(3) he shall be eligible to receive retirement benefits if any, from such date as may be determined, in accordance with the orders of the Central Government applicable to him. …………… …………… …………………” A bare perusal of this Rule makes it clear that a government servant who is absorbed in service or post under Corporation owned or controlled by the Government shall be deemed to have retired from the service from the date of such absorption. Therefore, from the date when the employees were absorbed in the Milk Fed., they will be deemed to have retired from the government service. The question to be decided is whether the employees who had so retired and had not been confirmed in their posts and were temporary servants could be held entitled to pension or not. In this behalf, our attention has been drawn to Rule 13 of the CCS (Pension) Rules, which reads as follows: “13. Commencement of qualifying service Subject to the provisions of these rules, 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: Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post:” A perusal of this Rule clearly shows that the date from which a person is appointed either substantively or in officiating capacity or even in temporary capacity shall be the date from which his qualifying service has to be reckoned. The first proviso to this Rule, however, lays down that the temporary service must be followed without interruption by substantive appointment in the same or another service or post. Rule 14(3) of the CCS (Pension) Rules reads as follows: “(3) In the case of a Government servant belonging to a State Government, who is permanently transferred to a service or post to which these rules apply, the continuous service rendered under the State Government in an officiating or temporary capacity, if any, followed without interruption by substantive appointment, or the continuous service rendered under that Government in an officiating or temporary capacity, as the case may be, shall qualify: Provided that nothing contained in this sub-rule shall apply to any such Government servant who is appointed otherwise than by deputation to a service or post to which these rules apply.” A perusal of these two Rules shows that temporary service followed by substantive appointment in the same or in other service under the Government shall be counted for the purposes of reckoning the pension. Our attention has been drawn by the learned counsel for the petitioner to the circular issued by the Government of India, Department of Personnel and Administrative Reforms, on 31st March, 1982. This circular provides as follows: “(6) Counting of temporary service under the State/Central Governments. – 1. The Government of India have been considering in consultation with the State Governments, the question of sharing on a reciprocal basis, the proportionate pensionary liability in respect of those temporary employees who had rendered temporary service under the Central Government/State Governments prior to securing posts under the various State Governments/Central Government on their own volition in response to advertisements or circulars, including those by the State/Union Public Service Commissions and who are eventually confirmed in their new posts. It has since been decided in consultation with the State Governments that proportionate pensionary liability in respect of temporary service rendered under the Central Government and State Governments to the extent such service would have qualified for grant of pension under the rules of the respective Government, will be shared by the Governments concerned, on a service share basis, so that the Government servants are allowed the benefit of counting their qualifying service both under the Central Government and the State Governments for grant of pension by the Government from where they eventually retire. The gratuity, if any, received by the Government employee for temporary service under the Central or State Governments will, however, have to be refunded by him to the Government concerned.” A bare reading of this circular makes it ample clear that the Government has decided that temporary service rendered in Government service following by absorption in another Government service has to be counted. Appendix 11 to the CCS (Pension) Rules deals with the grant of retiral benefits to government servants permanently transferred to Public Sector Undertakings, Autonomous Bodies etc. Clause 4 (i) of the Appendix reads as follows: “(4) (i) Resignation from Government service with a view to secure employment in a Central Public enterprise with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the Government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organization.” A perusal of the aforesaid clause also shows that an employee who resigns from government service with a view to get employment in Public Sector Undertaking will not forfeit the service rendered by him for the purpose of retirement/terminal benefits. A combined reading of the Rules, instructions etc. quoted hereinabove clearly shows that the intention of the Government is that a government employee shall not lose the benefit of the service rendered by him in government service if he is sent or even voluntarily joins a Public Sector Undertaking or an autonomous body, owned and controlled by the Government. Therefore, we are of the view that even temporary service followed by absorption and substantive appointment in a Government Undertaking would entitle the employee to claim pension for the period he rendered services in the Government Department. In the present cases, the respondents had rendered long service for more than 10 years in the Animal Husbandry Department. In natural course, they would have been regularized and would have got substantive appointment in the said Department. They would have been entitled to count their temporary service for the purposes of computing the qualifying service in terms of Rule 13 of the Rules. We see no reason why they should be denied this benefit merely on account of the fact that they were sent to a Government Undertaking and absorbed there. It was the Government which decided to form the Milk Fed. It was the Government which decided that the employees working in the dairy development scheme would be sent on deputation to the newly created Federation. No doubt, an option was sought from the employees. However, as observed by us above, in case any employee had refused to join the Milk Fed., he would have lost the job. Therefore, we feel that the words “substantive appointment or post in same or another service”, as used in Rule 13 of the Rules, will include any substantive appointment either in Government service or in public sector undertaking or autonomous body owned and controlled by the Government. The employees in such cases would be entitled to count their service including temporary service rendered in Government service for the purpose of calculating their qualifying service. In view of the above discussion, we are of the considered opinion that the employees are entitled to claim benefit of the temporary service rendered by them in the Animal Husbandry Department of the State of Himachal Pradesh for the purposes of pension. Therefore, for reasons other than those taken by the learned Tribunal, we uphold the order of the learned Tribunal. The writ petitions are accordingly dismissed with no order as to costs. (Deepak Gupta), Judge. (V.K. Ahuja), July 4, 2008. (TILAK) Judge.