Roshan Lal vs State of Himachal Pradesh

Dev Darshan Sud, J.—The petitioner has approached this Court praying for quashing of Annexure P-14, order dated 31st March, 2011, passed by the Director of Industries, Himachal Pradesh, dismissing the representation of the petitioner herein for grant of pensionery benefits under the CCS (Pension) Rules, 1972, further praying that Annexure P-15, the H.P. Civil Services Contributed Pension Rules, 2006, be declared illegal, ultra vires and void and grant of pension to the petitioner along with interest at the rate of 18% per annum from the date of retirement till the date of actual payment after counting his daily wage service from 1972 and service rendered in previous Department from 2.1.1998to 29.7.2002 and from 1.8.2002 to 31.3.2009 as being qualifying service for grant of pension under CCS (Pension) Rules 1972. The case pleaded by the petitioner is that he had approached this Court by way of CWP No. 3253 of 2009where a challenge had been made by the petitioner for quashing Annexure P-7 therein vide which service conditions of the petitioner had been changed by ignoring CCS (Pension) Rules, with a direction to the respondents to consider his service from 1972 till the date of his retirement as qualifying service for pension.

When that writ petition was taken up for consideration, this Court found that representation made by the petitioner, Annexure P-9 therein, was pending consideration and in these circumstances, the representation of the petitioner was ordered to be decided within a time bound period. It is pursuant thereto, that Annexure P-14, which is the order challenged in this writ petition, has been passed. The petitioner pleaded that he worked as a daily wager with the respondents since 1972 in the Mining Project, Kogi in Bilslapur which was a Unit of the Himachal Pradesh General Industries Corporation Limited, Shimla. His services were regularized w.e.f. 1.1.1998 vide order Annexure P-1 dated 2.1.1998. The order recites that he had been regularized as a Driller, his pay scale has been fixed therein and conditions of probation etc. were provided. It is pleaded that there was some rationalization/re-structuring of the Himachal Pradesh General Industries Corporation Limited, Shimla and as a consequence, surplus staff of Mining Project, Bilaspur was deployed on "secondment basis" on usual terms and conditions of the Government of Himachal Pradesh as applicable from time to time. The name of the petitioner figures at Serial No. 4 of the order AnnexureP-2 with this direction that he would report to the General Manager, District Industries Centre, Solan, H.P. Consequently, the petitioner joined duties on 1.8.2002. The petitioner pleads that he had been granted seniority from the date when he was sent on"secondment basis".

Office Order Annexure P-5 dated 11th June, 2004 was passed by the Deputy Director of Industries (Admn.), Himachal Pradesh, stating therein that on the recommendations of the Departmental Absorption Committee for the post of Class-IV in the Department of Industries, Himachal Pradesh and according to the approval conveyed by the Additional Chief Secretary-cum-Secretary (Industries & IT) to the Government of Himachal Pradesh, the surplus Class-IV staff of Mining Project, Kogi, in Bilaspur of Himachal Pradesh General Industries Corporation Limited were taken on "secondment basis" for one year and were absorbed permanently on the terms and conditions as stated therein. One such condition being that "The benefit of past services for the purpose of pay protection and pension etc. Shall be granted in the case if he will deposit the employer share into Consolidated Fund of the State and employee share into General Provident Fund without waiting for one year service condition in accordance with Rule 38 of the CPF Rules." It is this clause which the petitioner invokes to urge that the past service for the purposes of pay protection and pension should be granted to him and in these circumstances, past services would include his service which he has rendered with the Himachal Pradesh General Industries Corporation Limited.

At the outset, I notice that so far as the constitutionality of the Himachal Pradesh Civil Services Contributed Pension Rules, 2006, which have been made applicable w.e.f. 15th May, 2003, are concerned, they cannot be struck down on the grounds as urged in this writ petition. The only point for consideration would be as to whether the petitioner herein would be entitled to pension or not. I have also considered the orders which have been passed by the Director of Industries which I do not find to be in consonance with the order of permanent absorption Annexure P-5. In fact what that order states under the 3rd condition appended supra is that the benefit of past services would be considered for the purposes of grant of pay protection and pension etc. No attention has been made to this aspect by the Director of Industries. In these circumstances, Annexure P-14 is quashed and set aside with this direction to the Ist respondent to reconsider the case of the petitioner in consonance with clause-3 of Annexure P-5, within a period of one month from the date when the copy of this order is produced before him. Needless to say that the consideration will be on the basis of the established legal position. While considering this, the Ist respondent will also take into consideration there commendations of the Departmental Absorption Committee for the purposes of absorption of Class-IV employees, these recommendations obviously would be detailed recommendations. Before parting, I may note that it pains me to send the case for reconsideration again as the petitioner has been fighting tooth and nail since the last more than six years. Petition disposed of. No order as to costs. All miscellaneous applications are disposed of.