A Class-IV employee cannot be denied pensionary benefits for failing to exercise an option within a time limit if the employer failed to inform them of such a right, as pension claims constitute a recurring cause of action not barred by limitation.

Jiya Lal Bhardwaj, Judge

(Oral)

The petitioner by way of present petition has prayed for following substantive relief:-

“ i) That a writ of mandamus may very kindly be issued thereby directing the respondents to count the period of service rendered with the respondent No. 5 as qualifying service for the purpose of pension and pension of the petitioner be refixed after taking into account combined service i.e. service rendered with parent Corporation and service rendered with the respondent Department, and all consequential benefits be given to the petitioner alongwith interest at the rate of 12% per annum.”

As per the pleadings in the writ petition, the petitioner was appointed as daily wage Helper with respondent No.5-Corporation on 28.12.1994. Thereafter, on the basis of interview conducted byf respondent No.5 on 17.09.1986, the petitioner was offered appointment to the post of Helper, vide ofÏce memorandum dated 28.03.1987 (Annexure P/1). The petitioner in sequel to the said appointment order joined his duties with respondent No.5-Corporation. The petitioner was declared as surplus by respondent No.5-Corporation along with other employees and on the recommendations of the Departmental Appointment Committee, the petitioner vide ofÏce order dated 17.08.1994 (Annexure P/2) was offered the post of H Peon and was asked to join his duties on or before 30.08.1994. The petitioner in compliance with the ofÏce order dated 17.08.1994, joined as Peon with respondent No.4 on 25.08.1994. A perusal of the ofÏce order dated 17.08.1994 (Annexure P/2) reveals that appointment of the petitioner on the post of the Peon would be afresh and he will not claim any benefit of seniority qua the service rendered by him with respondent No.5. Thereafter the amount of gratuity i.e. ₹8125/- was released to the petitioner, as evident from Annexure P/4.

The petitioner later on made a request by way of letter dated 24.09.2010 (Annexure P/5) andH thereafter on 29.07.2011 (Annexure P/6) to count the past service rendered by him with respondent No.5 as qualifying service for pension after allowing the petitioner to deposit the gratuity, as has been givent on the date of absorption with respondent No. 4-Department along with interest. However, the said requests made by the petitioner were turned down vide communication dated 23.09.2011 passed by respondent No. 4 vide Annexure P/8. The communication datehd 23.09.2011, reads as under:-

“No. 2-15/2011EXN.H.Estt 31126

Excise & Taxation Department,

Himachal Pradesh

H From

Excise & Taxation Department,

Himachal Pradesh

To

Asstt Excise & Taxation Commissioner,

Kangra at Dharamshala

Dated: Shimla 171009 23 September, 2011.

Subject:- Regarding gratuity received from prior appointment authority.

Sir,

Please refer to your ofÏce letter No. EXN/KAN/Estt/2011-12-6933 dated 08.08.2011 on the subject cited above. It is informed that matter has been got examined by the Audit and observation of the Audit is under:-

“As per the instructions the employees who were absorbed in Govt. department from Board or Corporation, had to opt either to retain terminal benefits received from his parent organization, in that even.t the past service will not count qualifying for pension under Govt.; or to have the past service counted as qualifying service for pension under the Govt. in which case the pro-rata retirement benefits, if already received. by them, will have to be deposited along with interest Hthereon from the date of receipt of those benefits till the date of deposit with the Govt. The option was to be exercised with in a period of one year from the date o f absorption.”

Keeping in view above observations the case of Sh. Subhash Chand, Peon retired and other employees of such type is not fit for counting their past service.

You are therefore, advised that pension case of Sh. Subhash Chand, Peon retired may be fo