Rajiv Sharma, J.Petitioner was appointed as a Clerk in the respondent-Board on contract basis on 16.11.1988. Petitioner had been working continuously with effect from 16.11.1988. She was legitimately expecting that her services would be regularized by the respondents taking into consideration her interrupted services with effect from 16.11.1988. Petitioner approached erstwhile Himachal Pradesh Administrative Tribunal by way of O.A(D) No. 414/1998 seeking regularization. The Tribunal was pleased to direct the respondent-Board to regularize the services of the petitioner as a Clerk/Typist from the day she completed ten years of continuous service on contract basis and grant all the consequential benefits, i.e. annual increments alongwith interest @ 10%. Order dated 29.6.2001 was assailed by the Board before this Court by way of CWP No. 1134/2001. It was disposed of by this Court on 4.8.2008. The matter was ordered to be placed before the Board of Directors of the Board, who on its own was permitted to consider the case of the petitioner for regularization of service as a special case. In sequel to the judgment rendered by this Court, the Board regularized the services of the petitioner vide letter dated 21.3.2009. The Board though has regularized the services of the petitioner vide letter dated 21.3.2009, however, the services rendered by the petitioner with effect from 16.11.1988 on contract basis have not been taken into consideration towards qualifying service for pension.

2. Rule 17 of the Central Civil Services (Pension) Rules, 1972 reads as under:

17. Counting of service on contract-

"(1) A person who is initially engaged by the Government on a contract for a specified period and is subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, may opt either:-

(a) to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service; or

(b) to agree to refund to the Government the monetary benefits referred to in Clause (a) or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.

(2) The option under sub-rule (1) shall be communicated to the Head of Office under intimation to the Accounts Officer within a period of three months from the date of issue of the order of permanent transfer to pensionable service, or if the Government servant is on leave on that day, within three months of his return from leave, whichever is later.

(3) If no communication is received by the Head of Office within the period referred to in sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract."

3. It is clear from the plain language employed in rule 17 of the Central Civil Services (Pension) Rules, 1972 that if a person is initially engaged by the Government on contract for a specified period and is subsequently appointed to the same or another post in a sustentative capacity in a pensionable establishment without interruption of duty, he may opt either to retain the Government contribution in the Contributory Provident Fund with interest thereon including any other compensation for that service or to agree to refund to the Government the monetary benefit referred to in clause or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits may have been payable.

4. Mr. Adarsh Vashista submitted at the Bar that the deductions were made from the salary of the petitioner towards contributory fund and his client is ready and willing to refund the same and in lieu thereof to count the services rendered on contract basis as qualifying service for pensionary benefits.

5. The Board is a State within the meaning of Article 12 of the Constitution of India. The Board, on its own, should have counted the services with effect from 16.11.1988 to 21.3.2009 towards qualifying service instead of compelling the petitioner to approach this Court for the redressal of her grievance. The services rendered by the petitioner with effect from 16.11.1988 to 21.3.2009 cannot be obliterated. The Board is a pensionable establishment. Petitioner has already made a representation, but the same was not decided.

6. The Board should show sensitivity while dealing with the matters pertaining to pensionary/retiral benefits. The Board must act as model employer. The action of respondents not to count the qualifying services with effect from 16.11.1988 to 21.3.2009 would also amount to unfair labour practice. The Board cannot be permitted to exploit the situation by not regularizing the services of the incumbents rendered on contract basis for years together and thereafter not counting the services rendered on contract basis for the purpose of pensionary/retiral benefits after the regularisation.

7. Accordingly, in view of the analysis and discussion made hereinabove, the writ petition is allowed. Respondents are directed to count the services of the petitioner rendered on contract basis as Clerk/Typist with effect from 16.11.1988 to 21.3.2009 for the purpose of qualifying service for pensionary benefits. The Petitioner is directed to refund the contributory fund made by the Board within a period of eight weeks from today. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.