CWP/3561/2010 on 29 December 2011

1. CWP No. 3561 of 2010

Dr. Kamal Dev Sharma

...Petitioner.

Versus State of H.P. & others.

…Respondents.

2. CWP No. 1921 of 2008

Dr. Deepak Pathania & others. ...Petitioners.

Versus State of H.P. & others.

…Respondents.

Coram:

The Hon’ble Mr. Justice Kurian Joseph, Chief Justice.

The Hon’ble Mr. Justice V.K. Sharma, J. ------------------------------------------------------------------------------------------

CWP No. 3561 of 2010

For the petitioner: Mr. Rajesh Verma, Advocate.

For the respondents: Mr. R.K. Bawa, Advocate General

with Mr. J. K. Verma, Deputy

Advocate General, for respondents

No. 1 to 3.

Mr. Anup Rattan Central Government Counsel, for respondent No.4.

CWP No. 1921 of 2008

For the petitioners: Mr. Ramakant Sharma, Advocate.

For the respondents: Mr. R.K. Bawa, Advocate General with Mr. J. K. Verma, Deputy Advocate General, for respondents. ----------------------------------------------------------------------------------------- Justice Kurian Joseph,C.J.(Oral):

The petitioners are aggrieved since they have been directed to switch over to the Contributory Pension Scheme introduced as per the notification dated 17-8-2006. It is seen that the said Contributory Pension Scheme was introduced in view of the discontinuance of GPF. in the case of employees appointed by the State Government after 15-5-2003.

2. It is the case of the petitioners that they had been appointed on contract/adhoc/tenure basis prior to 15-5-2003 and from the very initial date of appointment they had been contributing to the GPF. At any rate, it is contended that since they have been regularized in service, they can not be compelled to switch over to the CPF.

3. The Learned Advocate General submits that GPF having been discontinued w.e.f. 15-5-2003, as per the amendment introduced under the CCS (Pension) Rules, 1972 and since the petitioners have been appointed regularly in service after 15-5- 2003, they are not entitled to be subscribers of GPF. It is further submitted that only to provide for the welfare of such employees appointed after 15-5-2003, the State has introduced Himachal Pradesh Civil Services Contributory Pension Rules, 2006. No doubt, it is notified only on 17-8-2006.

4. But the fact remains that CCS(Pension) Rules, 1972 were made inapplicable only as per the amendment referred to above in the case of employees appointed after 15-5-2003. However, on the introduction of CPF, in case any GPF subscription had been made from the employees de horse the amendment to the CCS (Pension) Rules 1972 as referred to above, such subscriptions are to be diverted to the CPF, so that such employees do not face any difficulty. In other words, the employees will get the benefit of the contributory pension scheme with effect from the date of their appointment i.e. after 15-5-2003 and they will also be entitled to the consequential benefits of the subscriptions already made to the GPF Scheme but diverted to the CPF Scheme.

5. It is seen from Annexure P-7 Memorandum dated 5.3.2007 in the matter of regularization of Adhoc/Contractual Medical

Officers that such employees have been regularized in service with the following among other conditions: “7. The pay of Adhoc/Contractual Medical Officers who have been appointed prior to December, 2002 and allowed Regular scale with increments may be protected while adjusting them in the pay scale of Rs.7880-13500.

8. Seniority will be given in the following manner:

i) Date of joining as Adhoc/contractual Medical Officer.

ii) in case of same Date of joining, Date of Birth has been taken as second distinguished criterion.”

6. Therefore, for all practical purposes in the case of these doctors, they have been granted the date of appointment as the date of joining as adhoc/contractual Medical Officers. It is further seen that they have granted increment and seniority w.e.f. the date of joining as adhoc/ contract Medical Officers.

7. In that view of the matter, the submission is that the petitioners are to be deemed to be appointed prior to 15.5.2003 for the purpose of contribution to the GPF and CCS (Pension) Rules, 1972. To what extent CCS (Pension) Rules, 1972 and GPF Rules are interconnected is itself a larger question under Rule 4 of the GPF Rules, then only restriction is that, a contributory to CPF cannot continue GPF.

8. Having regard to the CCS (Pension) Rules, 1972, having regard to the GPF Rules and having regard to the submissions as above, we are of the view that in the case of the petitioners, the matter requires fresh consideration by the Government since as the amendment introduced w.e.f. 15.5.2003, all appointments made in the State of Himachal Pradesh on or after the date of publication of the notification namely, on 15.5.2003, they alone are not to be covered by CCS(Pension) Rules, 1972. It is also to be noted as per the Scheme dated 17.8.2006, the same is only made applicable to the new appointees appointed after 15.5.2003.

9. Having regard to the factual matrix and legal position as referred to above, whereby the appointments though on adhoc/contractual/tenure basis having been made prior to 15.5.2003 and which appointments having been given effect by way of regularization with effect from the date of adhoc/tenure /contractual basis, the contentions as referred to above, assume significance and force. Therefore, these writ petitions are disposed of directing the first respondent to consider the case of the petitioners afresh and take appropriate action in the matter expeditiously.

9. With these observations, the writ petition stands disposed of, so also the pending application(s), if any.

Copy Dasti.

(Justice Kurian Joseph)

Chief Justice

December 29, 2010

( Justice V.K. Sharma), (karan/kck) Judge