The main legal point established is that the nature of the appointment order, the intention of the appointing authority, and circumstances beyond the employee's control are crucial in determining the applicability of pension rules and benefits.

JUDGMENT

Vivek Singh Thakur, J. - Petitioner herein is a compassionate appointee, appointed as Clerk in District Headquarter, Shimla in pursuance to office order dated 8.5.2003. After undergoing medical examination on 15.5.2003, she joined her duties on 17.5.2003. After issuance of her appointment order dated 8.5.2003, but before her joining on 17.5.2003, State Government issued a notification dated 15.5.2003, whereby all appointments made in the State Government of Himachal Pradesh on or before the date of publication of notification in Rajpatra Himachal Pradesh, i.e. 15.5.2003, were excluded from application of the Central Civil Services (Pension) Rules, 1972 (in short CCS (Pension) Rules, 1972) with intention of the Government to notify Contributory Pension Scheme for such Government Servants whose appointments have been made on or after 15.5.2003. Notification dated 15.5.2003 is followed by Himachal Pradesh Civil Services Contributory Pension Rules, 2006, which have been made applicable to all Himachal Pradesh Government Employees appointed on or after 15.5.2003.

2. Grievance of the petitioner is that respondents are thrusting upon her membership of Contributory Pension Scheme by considering her an appointee of a date after 15.5.2003, i.e. 17.5.2003, the date of her joining, whereas she is entitled to be considered an appointee of a date prior to 15.5.2003, i.e. date of issuance of her appointment order dated 8.5.2003 and thus she has approached this Court seeking direction to respondents-Department to consider her to be governed by CCS (Pension) Rules, 1972 for all intends and purposes with declaration that notification dated 15.5.2003 (Annexure P-3) and Himachal Pradesh Civil Services Contributory Pension Rules, 2006 (Annexure P-6) are not applicable to the petitioner.

3. Claim of the petitioner is that her appointment letter was issued on 8.5.2003 and immediately thereafter she had approached the office of Deputy Commissioner on 12.5.2003, whereafter she was subjected to medical examination on 15.5.2003. As 16.5.2013 was a Gazetted Holiday, she joined the office on 17.5.2003 and, therefore, she is an appointee of a date prior to notification dated 15.5.2003 (Annexure P-3) and thus CCS (Pension) Rules, 1972 are applicable to her.

4. Claim of petitioner has been repelled by respondents-Department on the sole ground that as she had joined her duties on 17.5.2003, she will be governed under new Contributory Pension Scheme, notified vide Department OM No. Fin.(Pen)A(3)-1/96, dated 17.8.2006 (Annexure P-6), by giving reference of notification dated 15.5.2003 (Annexure P-3), whereby all appointments made in State of Himachal Pradesh Government on or after 15.5.2003 have been excluded from application of CCS (Pension) Rules, 1972.

5. A Constitution Bench of the Apex Court in case Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and others, (1975) 3 SCC 503 , has observed that an order of appointment may be of three kinds as it may appoint a person w.e.f. the date he assumes charge of the post, or it may appoint him with immediate effect, or it may appoint him simpliciter without saying as to when the appointment shall take effect. Further that where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment, as it would be then that he is appointed. But in a case of second kind, the appointment would be effective immediately irrespective of as to when the person appointed assumes charge of the post and the date of his appointment in such a case would be the same as the date of order of appointment. In this judgment nature and effect of third kind of appointment has not been elaborated. In my opinion in third kind of appointment, the intention of the Appointing Authority is to be extracted from the language of the order as well as surrounding facts including the genesis of the process of appointment.