Dhani Ram vs State Of H.P. & Others

Sandeep Sharma, J

Department of Social, Women and SC Welfare, H.P. (hereinafter referred to as "Department") had invited applications for filling up 33 vacant posts of Clerks on secondment basis from desirous Government employees working under different Government Departments/Corporations etc. through proper channel on their existing pay scales.

Pursuant to aforesaid request, petitioner, who at that relevant point of time, was working as Clerk in H.P. State Handicraft & Handloom Corporation at Arki (hereinafter referred to as "Corporation") submitted his application through proper channel for considering him for the appointment as Clerk in the Department on secondment basis. The Department vide Office Order dated 8.1.2003 selected the applicant for the post of Clerk on secondment basis initially for one year with other candidates on his pay scale which he was getting in his parent department i.e. H.P. State Handicraft & Handloom Corporation.

Subsequent to appointment of the petitioner on secondment basis in the Department, State Government formulated Policy for permanent absorption of surplus staff taken on secodment basis in various departments vide Office Memorandum dated 11.5.2012 and option was sought from all the Clerks, including the petitioner, working on secondment basis in the Department for giving their consent for permanent absorption in light of the terms and conditions set out in the aforesaid policy for absorption. Department, after having received consent of the petitioner, referred the matter to the Government for according permission for his absorption and the Government vide letter dated 28.3.2013 gave the approval to absorb surplus staff taken on secondment basis in the Department strictly as per the policy framed by the Finance Department. No Objection Certificate from the lending office/organization i.e. H.P. Handloom Corporation for absorption of the petitioner was also obtained.

Pursuant to aforesaid approval given by the Government of Himachal Pradesh, petitioner with other officials working on secondment basis, was finally absorbed as Clerk in the Department vide Office Order dated 4.6.2013, as per the terms and conditions contained in the absorption policy of Government in vogue at that relevant point of time and since then petitioner had been rendering his services in Department continuously till his superannuation on 31.3.2015.

Petitioner after his retirement was allotted PPO No.1115123288 by the Respondents -Department and he had been continuously getting pension w.e.f. 31.3.2015 to 1.5.2018, when his pension came to be stopped vide order dated 8.5.2018 issued by the Senior Accounts Officer, who directed the District Treasury Officer, District Bilaspur to withhold the pensionary benefits of the petitioner. Vide order dated 28.5.2018, Senior Accounts Officer directed the District Welfare Officer, District Bilaspur to review the admissibility of pension benefits of the petitioner in light of the terms and conditions of absorption on permanent basis as laid down in the H.P. Government Notification dated 11.5.2012. Since despite repeated representations pension of the petitioner was not restored, he was compelled to approach this Court by way of filing this writ petition under Article 226 of the Constitution of India praying therein for the following relief amongst others:-

"(i) That writ in the nature of mandamus may kindly be issued all the respondents and the respondent No.5 i.e. Senior Deputy Accountant General (A&E), Himachal Pradesh H.P. may be directed to release the pension of the present petitioner as well as also release the consequential pensionary benefits of the petitioner which was withhold by the respondent No.5 w.e.f. 01.05.2018 to till date and other benevolence amount along with the interest @ 12% till payment to the petitioner."

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that the petitioner, working on secondment basis in the Department, was permanently absorbed in light of terms and conditions set out in policy circulated by the State Government for permanent absorption of surplus staff taken on secondment basis. Necessary approval for permanent absorption of petitioner in the Department came to be accorded by the State Government after receipt of consent of petitioner, whereby he agreed for his permanent absorption in light of terms and conditions set out in the policy formulated by the Government of Himachal Pradesh for absorption of surplus staff.

Terms and conditions of the order of absorption of petitioner, if perused, clearly reveals that the pensionary benefits to the official so absorbed were to be regulated as per instructions of the State Government issued vide FD's letter No: Fin(Pen)A(3)-1/96, dated 15.05.2003 and as per the provisions of H.P Civil Services Contributory Pension Rules 2006 notified by the Department of Finance (Pension) vide Notification No: Fin(Pen)A(3)-1/96, dated 17.08.2006. It was categorically provided in the aforesaid policy that in the case of those employees who were appointed on or before 4.05.2003 on regular basis and were being governed by the Central Civil Services (Pension) Rules, 1972 (for short "CCS (Pension) Rules, 1972) in their parent organization shall continuously be governed by the aforesaid Rules for pensionary benefits.

State Government vide Notification dated 2.12.2004 repealed the Himachal Pradesh Corporate Sector Employees (Pension, Family Pension, Commutation of Pension and Gratuity) Scheme, 1999 and, as such, services of the petitioner were not being governed under CCS (Pensions) Rules, 1972 in his parent Corporation. Since services of the petitioner were being governed by EPF/New Pension Scheme notified by the State Government vide Notification dated 17.8.2006 in his lending/parent organization, he continued to be governed under the said Scheme after his absorption in this Department as per the provisions and instructions of the absorption policy of the Government i.e. condition No.7 of the said policy. However, in the case at hand, it appears that respondent No.5 inadvertently sanctioned the pension in favour of the petitioner that too without any recommendation and office papers submitted by the District Welfare Officer, District Bilaspur, but, the same was stopped, when similar matter of Shri Gareeb Dass, Junior Assistant, working under the Directorate of Women and Child Development, who had filed an Original Application before the erstwhile H.P. State Administrative Tribunal, was received in the office of respondent No.5 for consideration and the concerned Treasury Officer was asked by respondent No.5 to stop the payment of pension to the petitioner vide letter dated 8.5.2018. Further, respondent No.5, having noticed aforesaid mistake, directed the District Welfare Officer, Bilaspur to review the admissibility of pension benefits of the petitioner under CCS (Pensions) Rules, 1972 and as per the terms and conditions of absorption on permanent basis as laid down in the H.P. O.M. No.Fin.(C)F.(1)2/2012 dated 11.5.2012.

Respondents No.1 to 3 have categorically stated in their reply that when, at no point of time, the District Welfare Officer had forwarded the case of the petitioner to respondent No.5 for sanctioning retirement pension under CCS (Pension) Rules, 1972, there was no question for him to review the admissibility of pension so wrongly granted in favour of the petitioner by the concerned pension sanctioning authority and it is to be reviewed by respondent No.5.

Having carefully perused the pleadings adduced on record, this Court finds that since the services of the petitioner were not being governed by CCS (Pension) Rules, 1972 in his parent Corporation, he has been rightly not held entitled to pension on his superannuation from the Department, which otherwise was wrongly sanctioned in his favour.

Learned counsel representing the petitioner was unable to dispute that prior to permanent absorption of petitioner in the Department, services of the petitioner were not being governed by CCS (Pension) Rules 1972, whereas, his services were being governed by EPF/New Pension Scheme notified by the State Government vide Notification dated 17.8.2006, and as such, no fault, if any, can be found with the action of respondents in as-much-as withholding the pension which admittedly came to be sanctioned in favour of the petitioner dehors the Rules.

Respondent No.5 in his reply has stated that pension case of the petitioner was received in this office from District Welfare Officer Bilaspur vide letter No.877 dated 6.7.2015 and accordingly pensionary benefits were given/authorized by the office of respondent No.5 on 22.7.2015 within a reasonable period of time. Respondent No.5 has stated that since Department from where pension case of the petitioner was received in his office is a pensionable establishment, pension was authorized inadvertently in favour of petitioner ignoring the fact that before absorption petitioner was working in Corporation, which was governed by EPF/New Pension Scheme. But once such fact had come to the knowledge of respondent No.5, it passed order withholding the pension of the petitioner till the matter with regard to pension authorized as per terms and conditions of absorption policy on permanent basis circulated by Government vide O.M. dated 11.5.2012 is not reviewed by the Department. Though respondent No.5 in his reply has stated that till date no response from the respondent department has been received but once it is not in dispute that prior to his permanent absorption in the Department, services of the petitioner were being governed by EPF/New Pension Scheme notified by the State Government vide notification dated 17.8.2006, pension of the petitioner has been rightly withheld on account of condition No.7 contained in the policy framed by the Government of Himachal Pradesh for permanent absorption of surplus staff taken on secondment basis in various departments.

Consequently, though in view of detailed discussion made hereinabove, this Court finds no illegality and infirmity in the decision of the respondents to withhold/stop the pension and as such action of respondents is upheld. However, having taken note of the fact that at no point of time petitioner misrepresented and the pension came to be sanctioned in favour of the petitioner by way of an order passed by respondent No.5 that too on the basis of pension case forwarded by the respondent department, this Court is of the view that the amount, already paid to the petitioner, cannot be recovered from him as has been held in case titled as State of Punjab vs. Rafiq Masih, (2015)14 SCC 334.

The writ petition is disposed of, accordingly.

All the interim orders are vacated. All miscellaneous applications are disposed of.