Pension | Qualifying Service Of Regular Employee Starts From Day They Take Charge Of First Post, Whether Temporary Or Substantive: HP High Court

The Himachal Pradesh High Court on Wednesday ruled that a regular government employee's qualifying service starts from the day (s)he takes charge of their first post, whether it's temporary, officiating or substantive, in terms of the Rule 13 of the Civil Service and Pension Rules 1972.

The pronouncement to this effect was made by a bench comprising Acting Chief Justice Sabina & Justice Satyen Vaidya while hearing a plea in terms of which the petitioner had sought quashing of the impugned communication in terms of which his claim for considering his case under the old pension scheme came to be rejected by the State.

The petitioner accordingly had sought appropriate writ, order or direction upon the respondents to govern the services of the petitioner under Old Pension Scheme i.e. Scheme which was prevalent prior to the Contributory Pension Scheme.

The petitioner was appointed as a Medical Officer on a contract basis, and his services were regularized after 10 years. He was paid a regular pay scale and all allowances admissible to Medical Officers appointed on a regular basis, as well as increments at par with regularly appointed Medical Officers.

In 2010, the petitioner and similarly situated Medical Officers were directed by respondents to switch over to the Contributory Pension Scheme, which they challenged in court. The court issued an interim order restraining respondents from compelling the petitioner to join the Contributory Pension Scheme.

The petitioner superannuated on December 31st 2020, and till then, no decision was taken by respondents in pursuance of the court's directions and on October 18th 2021 a communication was sent rejecting the petitioner's case, which the petitioner was now challenging in court, seeking pension under the Old Pension Scheme from the date of his superannuation along with arrears and interest at 12% per annum.

In his plea the petitioner submitted that he had served the respondents continuously for about ten years prior to the date of regularisation of his services and therefore, he will be discriminated in case his service, for the purposes of grant of pension, is calculated only from the date of his regularisation.

Contesting the plea the respondents argued that the case of the petitioner was rightly considered under the Himachal Pradesh Civil Services Contributory Pension Rules 2006 since, the services of the petitioner were regularized w.e.f. 05.03.2007, his date of appointment was to be considered from such date.

After considering the rival contentions the bench observed that a perusal of Rule-13 of CCS (Pension) Rules, 1972, clearly reveals that the qualifying service of a government servant commences from the date he takes charge of the post to which he has first appointed either substantively or in an officiating or temporary capacity. It is further provided that an officiating or temporary service should be followed without interruption by substantive appointment in the same or another service or post, the bench explained.

In the given facts of the case, the initial appointment of the petitioner, though, in temporary capacity continued for about ten years and was followed without interruption by substantive appointment on the same post and hence the contract service of the petitioner is liable to be counted towards qualifying service for the purposes of applicability of CCS (Pension) Rules, 1972, the bench underscored.

Referring to a catena of judgments the bench emphasised the legal position on the subject that even the work charge status followed by regular appointment to be counted as a component of qualifying service for the purposes of pension and other retiral benefits.

In view of the said legal position the the court directed the Respondents to consider the contractual service of the petitioner as a component of qualifying service for the purpose of pension under CCS (Pension) Rules, 1972 and to grant him pension strictly in terms of CCS (Pension) Rules, 1972, with effect from the date of his superannuation alongwith arrears within six weeks, failing which arrears shall entail interest @ 12% per annum, till the date of actual payment.

Case Title: Dr Umesh Kumar Vs State of Himachal Pradesh.

Citation: 2023 LiveLaw (HP) 29

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