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2019 Supreme(HP) 1350
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, Chander Bhusan Barowalia, JJ.
Sheela Devi - Appellant
Versus
State Of H P & Ors. - Respondents
C.W.P.O.A. No. 195 of 2019
Decided On : 26-12-2019
A.K. Gupta, Advocate, Babita, Advocate, Ashok Sharma, Advocate, Vinod Thakur, Advocate, Bhupinder Thakur, Advocate, Narinder Thakur, Advocate, Svaneel Jaswal, Advocate, Divya Sood, Advocate
Services rendered prior to regularisation, including contractual employment, should be counted towards qualifying service for the grant of pension.
Headnote:
Pension Qualifying Service - Contractual Employee - Central Civil Services (Pension) Rules, 1972 - Rule 17 - [Rule 17 of the Central Civil Services (Pension)Rules, 1972] - The judgment discusses the applicability of Rule 17 of the Central Civil Services (Pension) Rules, 1972 to the services of an employee appointed on a contractual basis in a temporary capacity. The court analyzed various decisions and held that the services rendered prior to regularisation in any capacity, including contractual employment, should be counted towards qualifying service for the grant of pension.
Fact of the Case:
The late husband of the petitioner was appointed as an Ayurvedic doctor on a contract basis in a temporary capacity, which was later regularised. The petitioner's request for pension was denied by the respondents on the ground that services rendered on a contract basis cannot be counted for pensionary benefits under the Pension Rules.
Finding of the Court:
The court found that the services rendered by the husband of the petitioner on a contract basis prior to his regularisation should be treated as qualifying service for the grant of pension. The court directed the payment of admissible benefits within three months from the date of the judgment.
Issues: The main issue was whether the services of an employee appointed on a contractual basis in a temporary capacity can be counted towards qualifying service for the grant of pension after regularisation.
Ratio Decidendi: The court relied on Rule 17 of the Central Civil Services (Pension) Rules, 1972 and various judicial decisions to conclude that services rendered prior to regularisation, including contractual employment, should be counted towards qualifying service for the grant of pension.
Final Decision: The petition was allowed, and the services rendered by the husband of the petitioner on a contract basis prior to his regularisation were treated as qualifying service for the grant of pension. The court directed the payment of admissible benefits within three months from the date of the judgment.
JUDGMENT
Tarlok Singh Chauhan, J. - Whether the services of an employee appointed on contractual basis in temporary capacity can be counted towards qualifying service for the grant of pension after his services have been regularised is moot question that is required to be determined in this petition.
However, before doing so, certain minimal facts need to be noticed.
2. The late husband of the petitioner was appointed as Ayurvedic doctor on contract basis in temporary capacity in the year 1999, however, his services were thereafter regularised in the year 2009 and he shortly thereafter expired on 23.01.2011. The request made by the applicant for release of pension has been turned down by the respondents vide order dated 18.6.2018 on the ground that the services rendered by the husband of the applicant on contract basis cannot be counted for pensionary benefits under CCS (Pension) Rules, 1972 (for short ''Pension Rules'') as the same are applicable only to regular government employees appointed in the pensionable establishments in the Government departments on or before 14.05.2003. The Government employees appointed in non-pensionable establishments are covered under the Contributory Provident Fund Rules, 1962. In terms of rule 2 of the Pension Rules, these rules are applicable to the Government employees appointed substantively to civil services and posts in Government departments which are borne on pensionable establishments appointed on or before 14.05.2003. Further, as per rule 2 (g) of the Pension Rules, these Rules are not applicable to the persons employed on contract except when the contract provides otherwise.
3. We have heard learned counsel for the parties and have gone through the records of the case carefully.
4. Rule 17 of the Central Civil Services (Pension)Rules, 1972 reads as under:
17. Counting of service on contract -
"(1) A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may opt either:-
(a) to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service ; or
(b) to agree to refund to the Government the monetary benefits referred to in Clause (a) or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.
(2) The option under sub-rule (1) shall be communicated to the Head of Office under intimation to the Accounts Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable service, or if the Government servant is on leave on that day, within three months of his return from leave, whichever is later.
(3). If no communication is received by the Head of Office within the period referred to in sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract."
5. It is clear from the plain language employed in rule 17 of the Central Civil Services (Pension) Rules, 1972 that if a person is initially engaged by the Government on contract for a specified period and is subsequently appointed to the same or another post in a substantiative capacity in a pensionable establishment without interruption of duty, he may opt either to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service or to agree to refund to the Government the monetary benefit referred to in clause or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.
6. We may at this stage refer to a decision rendered by learned Single Judge of this Court in Paras
