WRIT PETITION 805 of 2009 on 31 December 2012

1. State of HP through Secretary, Panchayati Raj, Govt. of HP, Shimla.

2. Director of Panchayati Raj, HP, Shimla.

…Respondents.

……………………………………………………………………………..

Civil Writ Petition under Article 226 of the Constitution of India.

Coram:

The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?[1] No.

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For the petitioner : Mr. Sanjeev Bhushan, Advocate. For the respondents : Mr. J.S. Guleria, Assistant Advocate General.

---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral):

Petitioner was appointed as Panchayat Secretary in the respondent-Department on 28.04.1998. He was promoted to the post of Panchayat Auditor on 24.05.2004. His date of superannuation was 31.10.2007. The qualifying service for entitlement of pension is 10 years. Petitioner made a representation that in order to permit him to complete 10 years of service, he may be granted extension. In sequel thereto, the petitioner was granted extension of service up to 30.04.2008 on 21.06.2007. However, vide order, dated 02.01.2008, the order, dated 21.06.2007 was superseded and the petitioner was retired from service on 31.10.2007. The petitioner has approached this 1Whether the reporters of the local papers may be allowed to see the judgment? No.

Court by way of CWP No. 805 of 2009, which was decided on 22.07.2011. In sequel to the judgment, dated 22.07.2011, rendered by this Court in CWP No. 805 of 2009, the petitioner made a representation to the Principal Secretary (Panchayati Raj), Government of Himachal Pradesh. The representation made by the petitioner was rejected by the Principal Secretary (Panchayati Raj) on 18.11.2011.

2. Mr. Sanjeev Bhushan, learned counsel for the petitioner has vehemently argued that the petitioner has not been issued any show cause notice before the issuance of letter, dated 02.01.2008, whereby the order, dated 21.06.2007, was superseded. He then argued that in view of the interpretation given by a Division Bench of this Court to Rule 49 of Sub-rule (3) of the CCS(Pension) Rules, 1972, the petitioner has qualified service of ten years.

3. Mr. J.S. Guleria, learned Assistant Advocate General, has supported the order, dated 18.11.2011. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully.

5. The extension was granted to the petitioner on 21.06.2007 up to 30.04.2008. The order, dated 21.06.2007 stood superseded vide letter, dated 02.01.2008. The petitioner has not been heard before the issuance of letter, dated 02.01.2008. He has suffered civil and evil consequences. He was required to be issued a notice before the decision was taken to supersede letter, dated 21.06.2007. The whole exercise was undertaken by the respondent-department to give extension to the petitioner to enable him to complete 10 years qualifying service. The order, dated 02.01.2008 is bad in law for non-compliance with the principles of natural justice.

6. A Division Bench of this Court in State of H.P.

through Principal Secretary (Health)Vs. Joginder Singh, 2012 (3) Him L.R. (DB) 1288, while interpreting Sub-rule (3) of Rule 49 of the CCS (Pension) Rules, 1972 has held as under:

“Whether the service of nine years and nine months can be rekoned as qualifying service of ten years for the purpose of pension is the question arising for consideration in this case. Rule 49(3) of the CCS (Pension) Rules reads as follows:- “In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half year and reckoned as qualifying service.”

2. In terms of the above rule a person having three months service shall be treated to have completed one half of service for being counted as qualifying service. Logically, a person having service of six months and above, should be treated to have completed two half years for the purpose of qualifying service. In other words, in the case of a person having service of nine years and six months, the qualifying service shall be taken as ten years and thus he shall be entitled to minimum pension. State has come up in appeal against the judgment, dated 9[th] March, 2010 whereby the learned Single Judge has granted relief to the petitioner to the effect that he should be deemed to be in service up to 30[th] June, 2008, in terms of the letter dated 25.09.2007. That letter pertain to the grant of extension of 10 months of service to complete 10 years of service. Subsequently, the same has been withdrawn. Thus aggrieved, the petitioner filed the writ petition.”

7. In view of the definitive law laid down by a Division Bench of this Court, the case of the petitioner was covered since he has already completed 9 years, 8 months and 3 days service, even on 31.10.2007. The petitioner was entitled to minimum pension and the same has been denied to him arbitrarily. The Principal Secretary (Panchayati Raj), Government of Himachal Pradesh, while rejecting the case of the petitioner ought to have taken into consideration the true import of Sub-rule (3) of Rule 49 of the CCS (Pension Rules), 1972.

8. When the decision has been taken by the respondents to give extension to the petitioner, all the relevant factors are supposed to have been taken into consideration, including the outstanding merit of the petitioner.

9. Accordingly, the writ petition is allowed. Annexure P-6, dated 18.11.2011, is quashed and set aside. The respondents are directed to grant pension to the petitioner, within a period of two months from the date of production of a copy of this judgment by the petitioner before the respondent No. 2, failing which, the petitioner will be entitled to interest @ 12% per annum from the date of filing of the writ petition and the officer(s) responsible for the delay shall be personally liable for the same. The pending application(s), if any, also stands disposed of. No costs.

(Rajiv Sharma) Judge

December 31, 2012 (bhupender)