Himachal Pradesh High Court

State Of H.P. Through vs Sh. Bachittar Singh Vide Order Dated ... on 13 May, 2022

Bench:
Ajay Mohan Goel
,
Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 13th DAY OF MAY, 2022

BEFORE

.

HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE

HON'BLE MR. JUSTICE AJAY MOHAN GOEL
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA

Between:-

r to
LETTERS PATENT APPEAL No. 4011 of 2013

1. STATE OF H.P. THROUGH
SECRETARY, PANCHAYATI
RAJ, GOVT. OF H.P., SHIMLA.

2. DIRECTOR OF PANCHAYATI

RAJ, H.P., SHIMLA.
...APPELLANTS
(BY MS. RITTA GOSWAMI, ADDITIONAL

ADVOCATE GENERAL)

AND

SH. BACHITTAR SINGH, S/O SH.
PREM DASS, R/O VILLAGE

SIDHPUR, P.O. BHOTA, DISTT.
HAMIRPUR, H.P. (SINCE
DECEASED) THROUGH HIS
LRs.:-

1(a) MANJEET SINGH, S/O LATE SH.
BACHITTAR SINGH.

1(b) NITU DATYAL, D/O LATE SH.
BACHITTAR SINGH.

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1(c) URMILA DEVI, W/O LATE SH.
BACHITTAR SINGH.

ALL R/O VILLAGE SIDHPUR,
P.O. BHOTTA, TEHSIL BANJAR,

.
HAMIRPUR, H.P.

...RESPONDENTS
(BY SHRI SANJEEV BHUSHAN,

SENIOR ADVOCATE, WITH SHRI
RAKESH CHAUHAN, ADVOCATE)

______________________________________________________
This petition coming on for hearing this day, Hon'ble Mr. Justice

Mohammad Rafiq passed the following:-

r JUDGMENT

This reference stands received from the Division Bench of this

Court in Letters Patent Appeal No. 4011 of 2013, titled as
State of H.P. and

another Vs. Sh. Bachittar Singh
vide order dated 22.10.2019, which reads

as under:-

"During the course of arguments, it

transpired that there is apparent conflict between two

Division Benches' judgments of this Court regarding
interpretation of Rule 49 (3) of the CCS (Pension) Rules,

1972.

2. One of the Division Bench of this Court
(Coram: Hon'ble Mr. Justice Kurian Joseph, Chief
Justice and Hon'ble Mr. Justice Dharam Chand
Chaudary, Judge) in State of Himachal Pradesh
through Principal Secretary (Health) Vs. Joginder
Singh, 2012 (3) Him L.R. (DB) 1288 has held as under:-

"xx xx xx Rule 49(3) of the CCS (Pension)
Rules reads as follows:-

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"In calculating the length of qualifying
service,fraction of a year equal to three months and
above shall be treated as a completed one half year and
reckoned as qualifying service."

.

2. In terms of the above rule a person having

three months service shall be treated to have completed
one half of service for being counted as qualifying
service. Logically, a person having service of six months

and above, should be treated to have completed two half
years for the purpose of qualifying service. In other
words, in the case of a person having service of nine
years and six months, the qualifying service shall be
taken as ten years and thus he shall be entitled to

minimum pension. State has come up in appeal against
the judgment, dated 9th March, 2010 whereby the
learned Single Judge has granted relief to the petitioner
to the effect that he should be deemed to be in service

upto 30th June, 2008, in terms of the letter dated

25.09.2007. That letter pertains to the grant of extension
of 10 months of service to complete 10 years of service.
Subsequently, the same has been withdrawn. Thus
aggrieved, the petitioner filed the writ petition. xx xx"

3. Notably, in the aforesaid case, the petitioner
even though had put in service of nine years, nine

months and five days, yet the Court had specifically held
that a person having service of nine years and six

months, the qualifying service shall be taken as ten
years and thus he shall be held entitled to minimum

pension.(see underlined portion above).

4. It was on the basis of the aforesaid
judgment that learned Single Judge of this Court, vide
impugned order held that the case of the petitioner
herein to be covered under the said judgment since he
had already rendered nine years, eight months and three
days service.

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5. However, when an identical question again
came up for consideration before another Division Bench
of this Court (Coram: Hon'ble Mr. Justice A.M.

.

Khanwilkar, Chief Justice and Hon'ble Mr. Justice Rajiv

Sharma, Judge) in CWP No. 7708 of 2012, titled as

Prem Sagar Vs. State of H.P. and others
decided on

11.6.2013, the Bench categorically held that the benefit
under Rule 49(3) could be extended to an employee only
if he has put in nine years and nine months of qualifying

service, as is evident from para 3 to 5 of the judgment,
which reads as under :-

"3. It is not in dispute that the petitioner has put

in only nine years and seven months of service. The
question is whether Rule 49 (3) of the CCS (Pension)

Rules would oblige the respondents to reckon the period
of service of the petitioner as complete year for
determining the qualifying service. Rule 49 (3) reads
thus:

"49. Amount of Pension
(1) xxx xxx xxx
(2) xxx xxx xxx

(3) In calculating the length of qualifying service,
fraction of a year equal to three months and above

shall be treated as a completed one half-year and
reckoned as qualifying service."

4. It would be apposite to also advert to the
instructions issued by the Government of India in furtherance
of Rule 49 (3),which read thus:

"(2) Three months and above but less than six
months treated as one-half year. -The intention of
sub-rule (3) of Rule 49 is that, the period of three
months and above but less than six months would be
treated as a completed one-half year and reckoned
as qualifying service for determining of pension. The
period of nine months would, therefore, be two half
years.

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[D.O. No. 28 (15)/83PU, dated the 13th October,
1983, from Shri K.S. Mahadevan, Under Secretary to
the Government of India, Ministry of Home Affairs,
addressed to Shri P. Muthuswamy.]

.

(emphasis supplied)"

5. On conjoint reading of the Rule and the
instructions, we have no manner of doubt that unless

the employee has put in at least "nine years and nine
months" of service, it would not be permissible to
treat the person having completed the qualifying
service of ten years. The rounding off may not be
possible even if there was to be shortfall of one day.

The two half years can be reckoned only if the period
is nine months or more.

6. In view of the apparent conflict between the two
judgments
r referred to hereinabove regarding the

interpretation of Rule 49(3) of the CCS (Pension) Rules,
1972, the matter is required to be decided by a Larger Bench
of this Court. Accordingly, the Registry is directed to place

the papers before Hon'ble the Chief Justice for appropriate
orders."

2. The Division Bench of this Court has thus made a reference

with regard to the interpretation of Rule 49 (3) of the CCS (Pension)

Rules,1972, in view of the two conflicting judgments on the same by the

Division Benches of this Court in State of H.P. Versus Joginder Singh,

[2012] (3) Him. L.R. 1288 and CWP No.7708 of 2012, titled Prem Sagar

Versus State of H.P. & others, decided on 11.06.2013.

3. We have heard Ms. Ritta Goswami, learned Additional

Advocate General for the appellants and Shri Sanjeev Bhushan, learned

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Senior Counsel, assisted by Shri Rakesh Chauhan, learned counsel, for the

respondents.

4. Rule 49 (3) of the CCS (Pension) Rules reads as under:-

.

"(3) In calculating the length of qualifying
service, fraction of a year equal to three months and

above shall be treated as a completed one half-year
and reckoned as qualifying service."

5. Similarly, the Government of India's decision in terms of D.O.

No. 28 (15)/83-PU, dated the 13th October, 1983, from Shri K.S.

Mahadevan, Under Secretary to the Government of India, Ministry of Home

Affairs, addressed to Shri P. Muthuswamy reads as under:-

"(2) Three months and above but less than six
months treated as one-half year.- The intention of

sub-rule (3) of Rule 49 is that, the period of three
months and above but less than six months would be
treated as completed one-half year and reckoned as

qualifying service for determining of pension. The

period of nine months would, therefore, be two half
years."

6. While interpreting the above provisions, the Division Bench in

State of H.P. Versus Joginder Singh
(supra) held that in the case of a person

having service of nine years and six months, the qualifying service shall be

taken as ten years and thus, he shall be entitled to minimum pension as, in

terms of Rule 49 (3) of the CCS (Pension) Rules, if a person having three

months service, shall be treated to have completed one-half of service for

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being counted as qualifying service, logically a person having service of six

months and above should be treated to have completed two-half years for

the purpose of qualifying service.

.

7. In the said case, the facts were to the effect that the

petitioner/employee was having nine years nine months and five days of

qualifying service, yet as he was not having the qualifying service of ten

years, he was denied pension by the Department which decision of the

Department was held to be bad by the learned Single Judge in the writ

petition filed by Joginder Singh.

8. Feeling aggrieved, the Department had filed a Letters Patent

Appeal, which was finally disposed of by the Division Bench in the following

terms:-

"4. During the pendency of the appeal, it
was noted on facts that the writ petitioner had

otherwise service of 9 years, 9 months and 5 days
and, therefore, this Court issued a direction as to

whether in terms of Rule 49 sub rule (3) of CCS
(Pension) Rules, 1972, the same could be taken as

10 years. Now, the administrative department after
consultation with the Finance Department has filed
affidavit, dated 6th June, 2012, wherein it has been
clarified that the period of 9 years and 9 months and
above should be treated as 10 years in terms of sub
rule (3) of Rule 49 of CCS (Pension), Rules, 1972,
as qualifying service of 10 years for the pension. In
that view of the matter, it has become unnecessary

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to go into the merits of the writ petition. Therefore,
the judgment under appeal is set aside, with a
direction to the appellants to work out th relief in

.

terms of Annexure-C, dated 2nd June, 2012 and

grant eligible benefits within a period of two months
from the date of production of the copy of this

judgment by the petitioner before the Director of
Health Services, failing which the petitioner will be
entitled to interest @ 12% per annum from the date

of filing of the writ petition and the officer(s)
responsible for the delay shall be personally liable
for the same. In the event of interest thus being paid,

the matter shall be report to the Accountant General

for further action."

9. In Prem Sagar Versus State of H.P. & others, CWP No.7708

of 2012-A, decided on 11.06.2013, the petitioner therein had nine years and

seven months of service and the question was whether Rule 49 (3) of the

CCS (Pension) Rules would oblige the respondents to reckon the said

period of service of the petitioner as complete years for determining the

qualifying service.

10. The Division Bench after taking into consideration the

provisions of Rule 49 (3) of the CCS (Pension) Rules as well as the

instructions issued by the Government of India in furtherance of Rule 49(3)

held that the petitioner having completed only nine years and seven months

of service would not qualify for the benefit of Rule 49 (3) so as to be treated

having qualifying service for the reason that the plain language of Rule 49

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(3) read with the instructions issued by the Government of India did not

permit such construction.

11. For completion of record, it is necessary to mention that CWP

.

No. 7708 of 2012-A, titled as
Prem Sagar Vs. The State of H.P. and others

was earlier allowed vide judgment dated 3 rd January, 2013 by the Division

Bench by relying upon the judgment in LPA No. 285 of 2010, titled as
State

of H.P. and another Vs. Joginder Singh
, decided on 22.06.2012.

However, a

review petition, i.e., Review Petition No. 4004 of 2013, titled as
State of H.P.

& others Vs. Prem Sagar
preferred against
the said judgment
by the State

was allowed by the Division Bench on 11th June, 2013 and the writ petition

was ordered to be restored to the file. Pursuant thereto, the matter was

heard afresh and the writ petition was dismissed in terms of judgment dated

11.06.2013, already referred to hereinabove.

For the purpose of record, it is

also pertinent to mention that before the abovementioned review petition

was allowed, another Division Bench of this Court in CWP No. 8786 of

2012-I, titled as
Lashkari Ram Vs. State of H.P. and others
, decided on 8th

May, 2013, while following the earlier judgment passed by the Division

Bench in
Prem Sagar Vs. State of H.P. and others
, decided on 3rd January,

2013, held that an incumbent, who had put in 9 years and 8 months service,

would be deemed to have rendered 10 years service, which qualifies him for

pension.

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12. Before proceeding further, it is necessary at this stage to refer

to Rule 49 (1) of the CCS (Pension) Rules also. This sub-rule deals with the

amount of pension and the same reads as under:-

.

"(1) Final amount of service gratuity to be
rounded off to the next higher rupee- With a view

to simplifying the procedure for payment of service
gratuity as admissible under Rule 49(1) of the CCS
(Pension) Rules, 1972, it has been decided that the

amount of service gratuity as finally calculated
should be rounded off to the next higher rupee."

13. A plain reading of the said Rule demonstrates that sub-rule (1)

thereof stipulates that in the case of a Government servant retiring in

accordance with the provisions of CCS (Pension) Rules, before completing

qualifying service of ten years, the amount of gratuity payable to such

Government servant, shall be calculated at the rate of half months

emoluments for every completed six monthly period of qualifying service.

Thus, the period of six monthly qualifying service is taken as one unit to

calculate the service gratuity. It is in continuation thereof, that sub-rule (3) of

Rule 49 provides that in calculating the length of of qualifying service,

fraction of a year equal to three months and above shall be treated as

completed one-half year and reckoned as qualifying service. If one has to

correctly understand the import of Rule 49 (3), then one has to read it

harmoniously with Rule 49 (1). Sub-rule (3) only clarifies as to how fraction

of a year equal to three months and above has to be construed while

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reckoning the qualifying service for the purpose contemplated under Rule

49. It states that for the purposes of taking into consideration the service put

in by an incumbent which does not amount to one full calendar year, how

.

said period has to be calculated for determining the qualifying service. All

that this sub-section provides is this that fraction of a year equal to three

months and above shall be treated as completed one-half year and

reckoned as qualifying service. To understand it better, the following four

illustrations are given:-

"1. Candidate 'A' superannuates after putting in nine

years two months and twenty nine days of service;

2. Candidate 'B' superannuates after putting in nine
years three months of service;

3. Candidate 'C' superannuates after putting in nine

years eight months and twenty eight days of service;
and

4. Candidate 'D' superannuates after putting in nine

years and nine months of service."

14. In the case of the first candidate who has put in nine years two

months and twenty nine days of service, for the period of qualifying service

of nine years, the gratuity shall be calculated by taking each six months as a

unit, meaning thereby that for nine years, the petitioner gets eighteen six

monthly period/units. In addition to the nine years of service, such a

candidate has also put in two months and twenty nine days of service.

However, as this service rendered by the candidate does not amount to

fraction of a year equal to three months and above, therefore, he does not

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get any benefit of this service rendered by him and for the purposes of

calculating the gratuity etc., his service has to be construed as having put in

eighteen six monthly period/units with the Department.

.

15. Now, coming to the second candidate who has completed nine

years and three months of service, he will get eighteen six monthly

period/units for nine years of service and as thereafter, he has put in three

months of service, the same shall be treated as a completed one-half year

and reckoned as qualifying service, meaning thereby that for the purpose of

calculating gratuity etc., such an incumbent would be deemed to have put in

nineteen six monthly period/units of qualifying service. However, still such

an incumbent cannot get the benefit of pension because even by giving him

this benefit, in all, he gets only nineteen blocks of six monthly period of

qualifying service, which do not constitute ten years.

16. Now, coming to the third candidate, who has completed nine

years eight months and twenty eights days of service, such an incumbent

will get nineteen six monthly period of qualifying service for having put in

nine years and six months of service but for the remaining period of two

months and twenty eight days, he will not get any benefit as this does not

amount fraction of a year more than three years. Therefore, such an

incumbent also cannot be held entitled for service for want of completed

qualifying service.

17. Now, when we come to the fourth incumbent, who has

completed nine years and nine months of service, such a candidate will get

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nineteen six monthly units of qualifying service and in addition as he has put

in three months of service thereafter, this fraction of a year of three months

shall be treated as a completed one-half year and reckoned as a qualifying

.

service so as to take the completed six monthly units of qualifying service of

said incumbent to be twenty in numbers. As these six monthly period of

qualifying service become twenty in numbers and each group comprises of

six monthly period, then, but natural, the incumbent will be held entitled to

receive pension as twenty complete six monthly period of qualifying service

means ten years of service.

18. Therefore, it is evident that in terms of the provisions of Rule 49

(3) of the CCS (Pension) Rules, an incumbent can get the benefit of

qualifying service for the fraction of a year equal to three months and above

for pension provided such an incumbent has put in more than nine years

and nine months of service.

19. Hon'ble Supreme Court of India in Union of India and others

Versus Gandiba Behera, 2019 SCC Online SC 1444, while dealing with a

similar situation, has been pleased to hold that on a plain reading of the

Rule 49 (3) of the CCS (Pension) Rules, it was evident that the Rule

contemplated one time benefit in case of service of more than three months

in fraction of a year and it rejected the contention that if within a period of

one year an employee has served more than six months, then employment

term ought to be computed as twice the period and one year in two

branches and one year ought to be added to the service. This contention

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was rejected by the Hon'ble Supreme Court while holding that the provisions

of Rule 49 (3) of the CCS (Pension) Rules contemplated one time benefit in

case of service of more than three months in fraction of a year.

.

20. It is relevant to refer to the provisions of the Swamy's Hand

Book, 2018 in this regard, which also refer to 'rounding off' and provides as

under:-

"8. Rounding off- Qualifying service of pension/gratuity

is calculated and expressed in completed half-years.
Fractions equal to three months and above shall be
treated as one half-year. Fraction of less than 3 months

will be ignored, e.g.-

Period of Service Six- Period of Service Six-

Years Month Day monthly Years Months Day monthly
s s periods s periods

9 8 29 19 9 9 00 20
19 8 20 39 18 9 00 40
24 7 15 49 24 10 00 50

32 5 25 65 32 9 00 66

(Swamy's Hand Book, 2018, Section 24 Clause-III)

21. Thus, it is evident from what has been discussed hereinabove,

that Rule 49 (1) of the CCS (Pension) Rules has to be construed

harmoniously with Rule 49 (3) thereof and when one reads the said

provisions with the clarifications which have been given by the Department

of Personnel, dated 13.10.1983, the only conclusion which can be drawn is

that an incumbent who has not completed ten years of service and is thus

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not qualified for receiving pension, can be held to be entitled to the said

benefit only if such an incumbent has put in more than nine years nine

months of service in the respondent-Department. Any view taken to the

.

contrary will do injustice with the letter and spirit of the provisions of Rule 49

(1) and Rule 49 (3) of the CCS (Pension) Rules.

22. Accordingly, we hold that the view which has been taken by the

Division Bench in CWP No.7708 of 2012, titled
Prem Sagar Versus State

of H.P. & others
(supra) is the correct view with regard to the interpretation

of Rule 49(3) of the CCS (Pension) Rules, 1972, whereas, the view which

has been expressed by the Division Bench in State of H.P. Versus

Joginder Singh, [2012] (3) Him.

L.R. 1288 (supra), so also in CWP No.

8786 of 2012-I, titled as
Lashkari Ram Vs. State of H.P. and others
, decided

on 8th May, 2013 cannot be treated as the right precedent, especially in view

of the judgment of the Hon'ble Supreme Court in Union of India and

others Versus Gandiba Behera, 2019 SCC Online SC 1444. Reference is

answered accordingly.

(Mohammad Rafiq)
Chief Justice

(Ajay Mohan Goel)
Judge

(Jyotsna Rewal Dua)
Judge
May 13, 2022
(bhupender)

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