Himachal Pradesh State Election Commission Through Its Secretary And Others vs Rameshwar Lal And Others

Anoop Chitkara, J

LPA No.46 of 2020

Challenging the judgment passed by learned Single Bench of this Court, in CWPOA No.135 of 2019, directing the respondents to process the pension case of the petitioner, in terms of the old pension scheme and also to release all pensionary benefits, the employer (Himachal Pradesh State Election Commission), has come up before this Court.

The employee (petitioner), who is the 1strespondent herein, had filed Original Application (O.A.) No.1230 of 2019 before the erstwhile H.P. State Administrative Tribunal, on 26.3.2019. After the abolition of H.P. State Administrative Tribunal, the matter was transferred to this Court and re-numbered as CWPOA No.135 of 2019.

The employee was initially appointed on 1.2.1983 as a Steno Typist, on regular basis in H.P. Agro Industries Corporation Limited.

Vide communication dated 17.10.2003 (Annexure A-1), the appellant sent him on deputation to H.P. State Election Commission, for a period of one year. This order was passed pursuant to some office communications between H.P. Agro Industries Corporation Limited as well as the appellant, H.P. State Election Commission.

Vide office order dated 31.5.2004 (Annexure A-2), the appellant, State Election Commission, absorbed the employee (1st respondent herein) in its Secretariat w.e.f. 1.6.2004. Vide this office order, another employee Shri Ghanshyam Chauhan (petitioner in CWP No.3496 of 2020), was also absorbed.

Clause 5 and 6 of the office order read as follows:-

"5. They will have to deposit employer's share of CPF into the Government account and employees share in to GPF account with interest thereon out of the total amount at credits in their respective CPF accounts.

They will deposit all terminal benefits etc. to Government account within the prescribed time limit under the rules."

Consequent upon Clause 5 and 6 of office order dated 31.5.2004 (Annexure A-2), the Secretary to HP State Election Commission, appellant herein, passed office order dated 26.8.2008 (Annexure A-6), which reads as under:-

"STATE ELECTION COMMISSION HIMACHAL PRADESH

File No.SEC.SEC(5) 54/99-1297-1304 Shimla-2 Dated: 26 Aug. 2008

OFFICE ORDER

Consequent upon the permanent absorption of Sh. R.K. Sharma as Senior Assistant and Sh. Rameshwar Thakur as Personal Assistant in the State Election Commission from the H.P. Electronic Corporation and H.P. Agro Industries Corpn. Ltd on dates mentioned below and as a resultof remittance of the following terminal benefits by their parent organization to this Commissionwhich were deposited by the Commission in the Govt. treasury as detailed below and also vetted A.G. H.P. vide its letter No.Pen.5/Misc./2008-09/1822 dated 30.7.2008 in view of instructions issued by the Finance (Regulation) Deptt. O.M. No.Fin.(c) A(3)17/76 dated 5.7.1996 the Services rendered by these officials for the period w.e.f. 17.7.73 to 18.5.2000 and 1.2.83 to 3.5.2004 respectively shall be treated as qualifying service for the purpose of pension calculation, pay protection, credit of earned leave as it stood on the day prior to their absorption in the Commission with no credit of half pay leave to be carried forward in the State Election Commission:-

Sr.No

Name of official and Corporation/Board

Date of absorption

Terminal benefits

Treasury challan No. and date

Amount

1.

Sh. R.K. Sharma, Sr. Asstt. H.P. Electronics Corpn 17.7.73 to 18.5.2000

19.5.2000

i) CPF Employer share

ii)Gratuity

iii) Leave encashment

27 dt. 7.9.2K 15 dt. 7.12.07 14 dt. 7.12.07

1,09,474

1,50,903

76,934

2.

Sh. Rameshwar Thakur P.A. H.P. Agro Industries Corp. Ltd. 1.2.83 to 30.5.2004

31.5.2004

i) CPF Employer share

ii) Gratuity

iii)Leave

encashment

108 dt. 21.6.2006

122 dt. 21.4.2008 88 dt.

8.11.2005

1,62,574

1,79,453

1,28,370

Past service is being counted subject to the condition that if any amount will be payable to the Govt. by the officials on audit verification the same will be recovered from them or to be deposited by them in lump-sum.

Secretary

State Election commission

Himachal Pradesh

Endst. No.SEC(5) 54/99 Shimla-2 Dated ---------- Aug, 2008

Copy forwarded for information and necessary action to:-

The Accountant General (Audit) HP, Shimla-3

The Sy. Dy. Account General (A&E) H.P. Shimla-3 w.r.t. above referred letter.

The concerned Officials.

Personal files of the officials.

Guard File.

Secretary

State Election commission

Himachal Pradesh."

After that GPF number was duly allotted to the employee, which regularly received contributions, till the date 30.9.2018, the date of his superannuation.

Vide communication dated 9.1.2019 (Annexure A-8), addressed to the Secretary, State Election Commission, H.P.,the respondent Accountant General, returned the pension case of the 1strespondent. The said communication reads as follows:-

"To

The Secretary,

State Election Commission,

Himachal Pradesh, Shimla-171002.

Subject:- Pension case of Shri Rameshwar Thakur, P.S.

Sir,

I am to refer to your office letter No.SEC-(5)4/2003-3378 Dated 20-12-2018 on the subject cited above and to state that as per earlier letter of this office you were requested to take up the matter with the H.P. Govt. Finance Department, but instead of forwarding the case to Finance Department you have sent it to this office. The pension case of Shri Rameshwar Thakur is again returned alongwith service book with the following observations: -

(1) It may be made clear whether the CCS (Pension) Rules, 1972 are applicable for the services rendered in H.P. Agro Industries Corporation Limited or not.

(2) Shri Rameshwar Thakur has been absorbed in State Election Commission on 31-05-2004i.e. after introduction of New Pension Scheme w.e.f. 15-05-2003.

(3) In case the CCS (Pension) Rules, is/are not applicable to the services rendered in H.P Agro Industries Corporation Limited and New Pension Scheme of H.P. Govt. is applicable w.e.f. 15-05-2003 then how the Pensionary benefits under CCS (Pension) Rules, 1972 can be allowed in this case.

You are, therefore again, requested that the matter may be taken up with H.P. Govt. Finance Department and outcome be intimated to this office Otherwise action with regard to transfer of amount deposited in GPF and Pension head to New Pension Scheme may be taken on priority basis in this case and similar cases also."

Aggrieved by such communication, the petitioner filed the above mentioned O.A. before the erstwhile H.P. State Administrative Tribunal.

Vide order dated 27.3.2019, the erstwhile Tribunal directed the respondents to file instructions. On 12.4.2019, the H.P. State Administrative Tribunal, directed the respondents therein to pay the left-out dues and admissible retiral benefits, subject to final outcome of the application. The respondent, i.e.,the Office of the Accountant General filed a short reply. The stand of the Accountant General Office is that they had not received any proposal from the State Government. After that, the Accountant General never filed a detailed reply. The State Government, through its Additional Chief Secretary (Finance) and The H.P. State Election Commission, the employer, filed a joint reply through the H.P. State Election Commission.

The specific stand of the respondents is that they had issued GPF number to the employee after his absorption and at that time, new pension scheme was not in existence. Their clear-cut stand is that the employee was not eligible for the pension. Paragraphs 7 to 9 of the reply read as follows:-

"7 to 9 That in view of the clarification sought for by the Respondent No.1 and the letter issued by the Respondent No.2 to Replying Respondent, the applicant is not eligible for the pension."

The stand of respondents as reflected in Paragraph 14 of the reply, reads as under:-

"14. That in addition to the above the Replying Respondent has been asked/authorized by the Respondent No.2 vide its letter No.Fin(Pen)E(1)-8/2019 dated 08.04.2019, a copy of which is already annexed as Annexure R-3/2, to file reply on behalf of Respondent No.2 also. In this respect submissions are made as under:-

That the Government of Himachal Pradesh vide Notification No.Fin(Pen)A(3)-1/96 dated 15.05.2003 has modified the Central Services (Pension) Rules, 1972 in its application to the State of H.P. and the said Rules were made inapplicable to all appointment made on regular basis in the State of H.P. on or after 15.05.2003. While making CCS (Pension) Rules, 1972 inapplicable to the appointments made on or after 15.05.2003, the intention of the Government was to notify the Contributory Pension Scheme for such Govt. employees. Accordingly, H.P. Civil Services Contributory Pension Rules, 2006 issued under proviso to Article 309 of the Constitution of India were made applicable retrospectively to all H.P. Govt. employees appointed on regular basis on or after 15.05.2003. The retrospective effect from 15.05.2003 has been given to the H.P. Civil Service Contributory Pension Rules, 2006 in order to grant the Govt. employees the benefit of social security in the form of Contributory Pension Scheme retrospectively as the State Govt. employees appointed on or after 15.05.2003 have been excluded from the purview CCS(Pension) Rules, 1972 vide Notification No.Fin(Pen) A(3)-1/96 dated 15.05.2003. If the retrospective effect to the said notification would not have been given, the persons appointed in Govt. service on or after 15.05.2003 and up to 17.08.2006, i.e. the date of notification of H.P. Civil Service Contributory Pension Rules, 2006 would not have been covered either under the CCS(Pension) Rules, 1972 or H.P. Civil Service Contributory Pension Rules, 2003 and the advice tendered by the F.D. on 28.04.2004 (Annexure A-5) and 08.02.2005 were prior to the Notification of the H.P. Civil Service Contributory Pension Rules, 2006. Thereafter, the F.D. had issued detailed instructions on 13.09.2006 and 14.07.2010 on Mobility of Personnel amongst State/ Central and Autonomous Bodies while working under pensionable establishments.

The State Government vide O.M. No.Fin(Pen) A (3)-1/2001 dated 13.09.2006 vide para 2(A) and para 3 has clarified as under:-

The employee who entered into service on or before 14.05.2003 and who are governed by CPF scheme or any pension scheme of the Central or State Government, other than the pension scheme Central Civil Service (Pension) Rules, 1972 on submission of technical resignation to take up new appointment on or after 15.05.2003 cannot be allowed to join the old pension scheme under Civil Service (Pension) Rules, 1972 because entry to the said scheme ceased after 14.05.2003 and no new entry can be allowed in the pension scheme under the above rules. However such employees can seek pensionary terminal benefits, from the previous Organization/ Department, if admissible under the rules of that organization/ department for the period of service rendered under the organization/department.

Para-3 (1)(ii) and 3(b) (ii) of Government of India Office Memorandum No.28.10/84-PU dated 29.08.1984 adopted by the State Government vide Office Memorandum Fin(C)A(3)-17/76-II dated 05.07.1996 may treated as deleted w.e.f. 15.05.2003. Further, the provisions of Govt. of India Office Memorandum No.28.10/84-PU dated 29.08.1984 adopted by the State Government vide Office Memorandum Fin(C)A(3)-17/76-II dated 05.07.1996 or any other related order shall in so far so it provides for any of the matters contained in this office Memorandum, cease to operate.

The State Government vide FD OM No.Fin(Pen)A(3)-1/2001-Loose dated 14.07.2010 has further been clarified that the employees covered under Contributory Provident Fund (CPF) etc. will not be allowed entry into the CCS (Pension) Rules, 1972 or appointment from 15.05.2003.

It has been observed from the perusal of OA filed by Sh. Rameshwar Thakur that he is claiming the benefit of old Pension Scheme. Since Sh. Rameshwar Thakur was initially appointed as Steno Typist on regular basis in the H.P. Agro Industries Corporation Ltd. in the year 1983 and during the year 2003, on demand of the H.P. State Election Commission, the applicant was transferred to the SEC, on Secondment basis as Personal Assistant and subsequently was permanently absorbed on 31.05.2004. Therefore, the CCS (Pension) Rules, 1972 are not applicable in his case, in view of Notification No.Fin (Pen) A(3)-1/96 dated 15.05.2003 and he is governed by the provisions of the H.P. Civil Service Contributory Pension Rules, 2006. Hence his claim for benefits of old pensionary scheme is not covered under the rules."

Vide judgment dated 2.3.2020, passed in CWPOANo.135 of 2019, the learned Single Judge of this Court, allowed the petition and directed to process the pension of the employee in terms of the old pension scheme and also to release all pensionary benefits within a period of four months.

Challenging the aforesaid judgment, the employer, The H.P. State Election Commission, came up before this Court by filing an Intra Court Appeal under Clause 10 of the Letters Patent constituting the High Court of Judicature at Lahore, the 21st March 1919, as extended to the High Court of Himachal Pradesh.

We have taken up this matter along with CWP No.3496 of 2020, and heard learned Counsel for the parties and gone through the records.

Mr. Ashok Sharma, learned Advocate General, argued that before the employee's absorption in H.P. State Election Commission, w.e.f. 31.5.2004, he claimed to have worked with H.P. Agro Industries Corporation Limited w.e.f. 1.2.1983 till October 2003. He further argued that H.P. Agro Industries Corporation Limited employees were not governed under the Central Civil Services (Pension) Rules, 1972, and that is why the previous employer did not allot him any GPF number; and it was the H.P. State Election Commission, who, after absorption of the employee, allotted the GPF number to the employee. He contends that the cutoff date to claim the pensionary benefits under the pension rules was 15.5.2003, and in the present case, his absorption was w.e.f. 1.6.2004, i.e., after the cutoff date. Learned Advocate General drew our attention to the judgment passed by learned Single Judge and stated that this point was unfortunately not brought to the notice of learned Judge, and that is why learned Single Judge could not answer this question. Mr. Ashok Sharma further submitted that the decision, in this case, has a massive fallout because a large number of employees who had worked in H.P. Agro Industries Corporation and other similarly placed organizations would claim similar benefits, and it would be contrary to law. He also contended that the employees, who had joined even on 15.5.2003, cannot get the benefits of the old pension scheme, which had been terminated in 2003. Thus, he seeks to set aside this judgment. In the alternative, learned Advocate General prays that this matter be remanded back to learned Single Judge because the State did not file any reply to CWP No.3496 of 2020, they be afforded an opportunity to file its response given the enormous financial liability that the State would incur for some officer(s) lapse in all probabilities occurred due to COVID-19 Pandemic.

Mr. Onkar Jairath, learned counsel for the employee, argued that vide office order dated 26.8.2008 (Annexure A-6), the H.P. State Election Commission, after the notification dated 13.9.2006, had terminated the old pension scheme w.e.f. 14.5.2003. It would not have applied to the employees who got the government jobs, w.e.f. 15.5.2003 onwards, whereas in the present case, the petitioner had joined the H.P. Agro Industries Corporation Limited w.e.f. 1.2.1983. He further argued that vide office order dated 26.8.2008 (Annexure A-6), the services rendered by the employee w.e.f. 1.2.1983 to 13.5.2004 was treated as qualifying service for pensionary calculations and pay protection etc. He stated that the Department is bound by its admissions and cannot take the contrary stand. He also drew our attention to his rejoinder wherein it was explicitly mentioned that one Shri Kuldeep Saraswati, who, before his absorption, was working in H.P. Khadi Board, was sanctioned and granted the pensionary benefits under the old pension scheme. However, such an employee had worked in Khadi Board till 2.12.2004. He further stated that the State could not take different stand for different employees. Learned counsel, strongly opposed the prayer of the learned Advocate General for remanding of the matter.

ANALYSIS AND DISCUSSIONS

The employee was previously working in H.P. Agro Industries Limited. Under the Central Civil Services (Pension) Rules, 1972, the pensionary benefits were not applicable, and probably for that reason, such Corporation did not allocate any GPF number to the employee. A perusal of Office order dated 26.8.2008 (Annexure A-6) also reveals that the previous organization, i.e., H.P. Agro Industries Limited, had transferred the CPF number, gratuity, leave encashment to the new employer from the date of joining of the employee till 31.5.2004. A perusal of this office order further reveals that there is no mention of the notification issued by the Finance Department vide which the Government had restricted the pension scheme under the Central Civil Services (Pension) Rules, 1972 till 14.5.2003. Furthermore, the respondents' stand that once this notification had been issued in 2006, then under what circumstances the Election Commission issued notification dated 26.8.2008 (Annexure A-6), has not been discussed.

Paragraphs No.7 to 9 of the joint reply filed by 2nd and 3rdrespondent are again extracted as follows: -

"7 to 9. That in view of the clarification sought for by the Respondent No.1 and the letter issued by the Respondent No.2 to Replying Respondent, the applicant is not eligible for the pension."

A perusal of this response reveals that the respondents' stand is that applicant-employee is not eligible for pension. It just cannot be. The limited question is whether he is entitled to a pension under the old scheme or a contributory pension. Furthermore, the respondents had to be specific that if the Department had not deducted the employee's share in the contributory pension, how would such expenditure be met. For this, a detailed reply of the Accountant General's office was required. A perusal of the records reveals that the Accountant General's officehad filed only a short reply and did not file any response on merits at all.

The arguments of the learned Advocate General, that the judgment passed by the learned Single Judge would have much significance on a large number of employees and more particularly when the effect of the cutoff date of the pension was not discussed at all, are also significant. After all, the pension is paid from the money collected from the taxpayers, including those who pay taxes on life-saving drugs, from the poorest of the poor, from Armed forces personnel, and so many. Thus, every penny needs to be spent very carefully and strictly as per the rules.

In Roma Sonkar v. Madhya Pradesh State Public Service Commission, (2018) 17 SCC 106, the Division Bench of the High Court was not quite happy with the learned Single Judge's order moulding the relief and consequently remitted it to Single Judge. When the issue came up before the Hon'ble Supreme Court, the Court held that the Single Judge and the Division Bench exercise the same jurisdiction. To avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the High Court's power, but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the Intra Court Appeal, primarily to consider the correctness or otherwise of the Single Judge's view. Hence, per Hon'ble Supreme Court's opinion, the Division Bench needed to consider the appeal(s) on merits by deciding on the correctness of the learned Single Judge's judgment, instead or remitting the matter to the learned Single Judge.

In the present case, a detailed response from the Office of Accountant General was required for proper adjudication, which was not filed. Thus, without going through the stand of the Accountant General, the legal aspects of the matter could not have been answered. As such, the ratio of judgment of Roma Sonkar (supra) will not apply in the facts of the present case.

Co-ordinate Benches of this Court have also decided somewhat similar matters, a few of which are CWP 9945/2014, CWP 537/2018, CWPOA1502/2019, wherein services of the employee were merged after 14 May 2003, and the old pension scheme was not applicable in previous employment. However, because in the present case, the response of the State and the reply of the Accountant General is required, as such, at this stage, there is no need to refer to these judicial pronouncements.

Given above, we set aside the judgment dated 2.3.2020, passed by learned Single Judge, in CWPOA No.135 of 2019 and remand the matter back to learned Single Judge and further direct the Accountant General of Himachal Pradesh to file a detailed reply within six weeks from today. Furthermore, the State to file instructions regarding the status of Shri Kuldeep Saraswati, who, before his absorption, was working in H.P. Khadi Board, was sanctioned and granted the pensionary benefits under the old pension scheme, whereas he had worked in Khadi Board till 2.12.2004, and that how the State could take a different stand for different employees. The observations made are only for the purpose of this order and shall have no bearing on merits.

In view of the above, the present appeal (LPA No.46 of 2020), stands disposed of.

CWP No.3496 of 2020

Given the order passed in LPA No.46 of 2020, the present petition is admitted and ordered to be listed alongwith CWPOA No.135 of 2019. The respondents therein are directed to file their separate replies within a period of six weeks, and the petitioner may file rejoinder within two weeks thereafter.