State of H.P. & Ors vs Balwant Singh & Ors

Satyen Vaidya, Judge.

LPA No. 57 of 2017 along with CWPOA Nos. 126 of 2019, 2690 of 2019 and 7316 of 2020, are being decided by a common judgment as identical questions of facts and law are involved.

Petitioners in above noted writ petitions and respondents in

LPA No.57 of 2017 (hereinafter referred to as the “petitioners”) were initially employed as Timber Watchers in Himachal Pradesh State Forest Corporation (for short “the Corporation”).

One of the modes of recruitment to the post of Forest Guards in the department of Forest, Government of Himachal Pradesh is by way of a limited direct recruitment (for short “LDR”).

Petitioners were recruited as Forest Guards through LDR in forest department in a selection process conducted for the said post in pursuance to communication dated 12.12.2002 of the Principal Chief Conservator Forest, Shimla. The Managing Director of the corporation was also informed vide communication dated 20.12.2002 of Principal Chief Conservator Forest about the decision to fill up the posts of Forest Guards through LDR from amongst the eligible Class-IV employees of the Forest Department and the Corporation, as per the criteria laid down in communication dated 12.12.2002.

Evidently, the petitioner were appointed as Forest Guards after 15.05.2003. The State Government had made the CCS (Pension) Rules, 1972 (for short “ the 1972 Rules”) inapplicable to the appointments made in the State of Himachal Pradesh on or after

15.05.2003. The State Government had also framed Himachal Pradesh Civil Services Contributor Pension Rules, 2006 (for short “the 2006 Rules”) under Article 309 of the Constitution of India, which were notified vide notification dated 17.08.2006. As per the 2006 Rules, the persons employed in the State after 15.05.2003, were covered under said Rules (for short “NPS”).

Since, the appointments of petitioners as Forest Guards in the department of forest was after 15.05.2003, they were held to be not entitled to the benefits under the 1972 Rules. In this backdrop, the petitioners adverted to legal remedy and in result are before this Court.

Petitioners are claiming the benefit of their past service with the corporation which undisputably was in existence much prior to 15.05.2003. The fact that all the petitioners were in regular service of the corporation is also not disputed.

The respondents have maintained a stand that the petitioners were freshly appointed as Forest Guards after 15.05.2003 and were not entitled to the credit of their past service with the corporation. On such premises, the petitioners are stated to be covered under the 2006 Rules.

We have heard the learned counsel for the parties and have also gone through the entire record carefully.

LPA No. 57 of 2017 is directed against the judgment dated 08.05.2015 passed by the learned Single Judge of this Court in CWP No. 9214 of 2012, whereby the claim of the petitioners therein has been

allowed in following terms:-

“9. Accordingly, the Writ Petition is allowed. The services rendered by the petitioners as Class-IV employees in the Forest Corporation, followed by their appointment as Forest Guards in the Forest Department, shall be counted for all intents and purposes in continuity by including them under the CCS (Pension) Rules, 1972, instead of bringing them under the ambit of Contributory Pension Scheme dated 17.08.2006, made applicable w.e.f. 15.05.2003. The respondents are directed to allow the petitioners to continue subscribing towards General Provident Fund. Pending application(s), if any, shall stand disposed of.”

Learned Single Judge has held that the State Government should have evolved a mechanism at the same time when the instructions were issued on 12.12.2002 and 20.12.2002 to protect the services rendered by the petitioners in the eventuality of their selection and joining the post of Forest Guard in the State Government. On the

premise that the State Government had failed to protect the interest of the petitioners, the learned Single Judge has held the action of respondents/State, to treat the appointments of the petitioner as fresh by not giving them benefit of their past service, as unreasonable and irrational and thus violative of Articles 14 and 16 of the Constitution of India.

The findings recorded by the learned Single Judge cannot be faulted with and require no interference for the reason that it has never been the case of the respondents that there was any break in service of the petitioners, rather it is manifestly clear from the record that the Principal Chief Conservator Forest had offered an opportunity to the petitioners to participate in LDR held for the post of Forest Guards. It is also not the case of the respondents that the petitioners resigned from their jobs in the Corporation to fetch the new employment. It is clearly evident that the transition in service of the petitioner from Timber Watcher in the Corporation to the post of Forest Guards in the department of Forest was a continuous process. Considered alternatively, the said process fulfilled all the ingredients of technical resignation making the petitioners eligible to the benefits of Rule 26(2)

of the 1972 Rules.

Another undisputed factual aspect of the matter is that the State Government had floated Himachal Pradesh Corporate Employees (Pension, Family Pension, Commutation of Pension and Gratuity) Scheme, 1999 (for short “the 1999 Scheme”) with effect from 01.04.1999. The said scheme was made applicable to the employees of the Corporation also, who had opted to be covered under the scheme. As per Clause 1(2) of the 1999 Scheme, all pensionary benefits of the employees of the participating corporate sectors were to be determined in accordance with the provisions laid down in the 1972 Rules and the CCS (Commutation of Pension) Rules 1981. The said Clause reads as under:-

“All pensionary benefits of the employees of the participating H.P. Corporate Sector shall be determined in accordance with the provisions laid down in Central Civil Services (Pension) Rules, 1972, the Central Civil Services (Commutation of Pension) Rules, 1981, as amended and adopted by the H.P. Government for the State Government employees save as otherwise provided in this scheme.”

The State Government had also issued office memorandum dated 13.09.2006. Clause 2(i) of the said office memorandum reads as

under:-

“i) All the employees who entered into State Government service or in the service of an Autonomous Body set up by the State Government (satisfying the conditions laid down in para-4 of Government of India OM No. 28/10/84- PU dated 20th August, 1984, adopted by the State Government vide Office Memorandum No. Fin.(C) A(3)-17/76-II dated 5th July, 1996) on or before 14.05.2003 and who were governed by the old pension scheme under Central Civil Services (Pension) Rules, 1972 will continue to be governed by the same pension scheme and same rules for the purpose of counting of their past service under the said rules or under the Government of India OM No. 28/10/84-PU, dated 29th August, 1984, adopted by the State Government vide its Office Memorandum dated 5th July 1996 as amended from time to time, if such employees submit technical resignation on or after 15.05.2003 to take up new appointment in another Department of the State Government or an Autonomous Body set up by the State Government, in which the pension scheme under Central Civil Services (Pension) Rules, 1972 already exists for the employees who entered into service on or before 14.05.2003.”

Thus, by framing the above scheme, the State Government had made provisions of the 1972 Rules applicable to the employees of participating corporate sectors in the State as were applicable to the other State Government employees. As a necessary corollary, this amounted to compliance with Clause 2(i) of O.M. dated 13.09.2006 which required the employees under parent employer to the governed by the 1972 Rules.

As held above, since, the services of petitioners as Forest Guards was in continuity of their services as Timber Watchers in the Corporation, petitioners are entitled to be covered under the 1972 Rules as they were beneficiaries under the 1999 Scheme, which in fact was nothing but the extension of the 1972 Rules to the employees of corporate sector of the State Government.

Additionally, it can be seen that during the pendency of these petitions, the State Government has again made the 1972 Rules applicable even to those of its employees who were appointed after 15.05.2003 and a notification to this effect has been issued by the State on 04.05.2023. As a sequel, vide Office Memorandum of the same date i.e. 04.05.2023, instructions/SOPs have also been issued. Clause (vii) of

said Office Memorandum reads as under:-

“(vii) Employees, who were covered under the National Pension System (NPS) and have already retired/died, between the period 15.05.2003 to 31.03.2023 and who fulfil the eligibility criteria under the Central Civil Services (Pension) Rules, 1972, such retired employee and eligible family member of deceased employee, shall be entitled to pension from prospective date i.e. with effect from 01.04.2023, on exercising an option for the same on the prescribed format at Annexure II and submission of an undertaking at Annexure III, subject to deposit of the Government contribution and dividend/return, till the date of withdrawal, to the State Government. The amount of Government contribution and dividend/return shall be deposited under the Receipt Head “0071- Contribution and Recoveries towards pension and other retirement benefit, 01-

Civil,101-Subscritptions and Contributions, 03-Accumulated Pension Wealth in respect of National Pension System Subscribers and 04- Accumulated dividend on Government Contribution of National Pension System employees converted into Old Pension Scheme.”

In light of above discussion, LPA No. 57 of 2017 is dismissed and CWPOA Nos. 126 of 2019, 2690 of 2019 and CWPOA No. 7316 of 2020 are allowed. Petitioners are held entitled to the benefits of CCS (Pension ) Rules 1972 and CCS (Commutation of Pension ) Rules. The respondents are directed to release all the

permissible retiral benefits to the retired petitioners within a period of eight weeks from the date of production of copy of this judgment failing which interest @ 9% per annum shall entail the amount of arrears.

Pending applications, if any, also stand disposed of.