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2025 DAILYLAW 3944 (HP)

Hazari Lal v. State of Himachal Pradesh

2025-12-24

Ranjan Sharma

body2025
JUDGMENT : Ranjan Sharma, Judge Petitioner, Hazari Lal, had initially filed an Original Application No.3675 of 2017 before Himachal Pradesh Administrative Tribunal and upon abolition of Tribunal, the matter stands transferred to this Court as CWPOA No.2527 of 2020, seeking the following relief:- “7(i) That the impugned relieving order dated 31.1.2017, Annexure A-5 may very kindly be quashed and set aside and the Applicant may very kindly be ordered to be reinstated in service alongwith seniority and continuity and all other consequential benefits, in the interest of justice.” 2. Grievance of the petitioner is that petitioner upon due selection was appointed as a Part-time Water Carrier on 18.01.1995 [Annexure A-1/T] in GSSS Kujabalh, District Mandi, Himachal Pradesh. Petitioner continued to serve as a Part-Time Water Carrier since January 1995 and he was upgraded as Whole-Time Contingent Paid Employee in GHS Nalyana, District Mandi, Himachal Pradesh, on 03.08.2012 [Annexure A-2]. Petitioner continued working as Whole-Time Contingent Paid Employee and in terms of the directions given by Principal Secretary Higher Education, Himachal Pradesh, on 22.08.2012 and Corrigendum dated 28.01.2014 [Annexure A-4], petitioner was converted/upgraded as a regular Class-IV Employee with immediate effect. Petitioner joined on the basis of Corrigendum also. It is averred that Principal, GSSS Kujabalh, District Mandi, Himachal Pradesh, issued an order dated 31.01.2017 [Annexure A-5], relieving the petitioner on superannuation, at the age of 58 years, on 31.01.2017. It is in this backdrop that the petitioner has come up before this Court, seeking quashing of his superannuation at the age of 58 years and by claiming a direction for continuity in service upto the age of 60 years i.e. 31.01.2019 with benefits of pay fixation with all admissible retiral benefits. 3. Pursuant to issuance of notice on 03.08.2017, Director of Elementary Education has filed a Reply- Affidavit dated 28.08.2017. 3(i). Perusal of Reply-Affidavit indicates that since the incumbency of Part-Time Water Carriers and Whole-Time Incumbents is regulated by Deputy Director of Higher Education/Director of Higher Education, therefore, Director of Elementary Education has no role in the matter. 4. 3. Pursuant to issuance of notice on 03.08.2017, Director of Elementary Education has filed a Reply- Affidavit dated 28.08.2017. 3(i). Perusal of Reply-Affidavit indicates that since the incumbency of Part-Time Water Carriers and Whole-Time Incumbents is regulated by Deputy Director of Higher Education/Director of Higher Education, therefore, Director of Elementary Education has no role in the matter. 4. At this stage, Learned Counsel for the petitioner, states that the issue as to whether Part- Time Employees who were appointed/engaged prior to 10.05.2001 and were regularized on or after 10.05.2001 were to retire at the age of 58 years or 60 years stands answered by the Full Bench Judgment of this Court in CWP No.2711 of 2017, In Re; Baldev Versus State of Himachal Pradesh and others alongwith connected matter, decided on 22.02.2022, which reads as under:- “5(iv). A vacuum still remained in the notification/clarification about the superannuation age of daily wager engaged prior to 10.05.2001, but regularized after 10.05.2001. To meet this situation, another notification was issued on 21.02.2018, amending F.R. 56(e) yet again. This notification has not been noticed in the reference order dated 28.12.2019. Relevant portion of the notification reads as under:- “Short title and commencement: 1.(1) These rules may be called Fundamental (in their application to the State of Himachal Pradesh) First Amendment, Rules, 2018. Amendment of 2. rule-56.(2)These rules shall come into force from the date of publication in the Rajpatra (e Gazette), Himachal Pradesh. In rule 56 of the FUNDAMENTAL RULES , after the second proviso to clause (e), the following third proviso shall be inserted, namely: “Provided further that a Class IV Government servant appointed on part time/daily wages basis prior to 10-05-2001 and regularized on or after 1005 2001 shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years.” The above amendment inserting third proviso in F.R. 56(e) came into force from the date of publication in the Gazette, i.e. on 22.02.2018. The gist of the amendment was that with effect from 21.02.2018, Class-IV government servants appointed on part- time/daily wage basis prior to 10.05.2001 and regularized on or after 10.05.2001, were to retire on attaining the age of 60 years. The gist of the amendment was that with effect from 21.02.2018, Class-IV government servants appointed on part- time/daily wage basis prior to 10.05.2001 and regularized on or after 10.05.2001, were to retire on attaining the age of 60 years. It was the date of first appointment/ engagement, which was made the basis for their continuation in service till the age of 60 years and not the date of regularization. A corrigendum has also been issued by the State on 10.06.2019 to the effect that for the word ‘appointed’ used in the notification dated 21.02.2018, the word ‘engaged’ shall be substituted. F.R. 56(e) as it stood on 22.02.2018 (with corrigendum) now reads as under:- “(e) A Government servant in Class IV service or post shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided that a Class IV employee of the Secretariat Security Force who initially enters service on or after the 15th day of September, 1969, shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. Provided further that a Class-IV Government servant appointed on or after 10.05.2001 shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years.(2001 amendment). Provided further that with effect from 21.02.2018 a Class-IV Government servant engaged on part time/daily wages basis prior to 10-05-2001 and regularized on or after 10-05-2001 shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years.(2018 amendment)” 6(ii)(c). In terms of the State notification dated 21.02.2018 carrying out further amendment in F.R. 56(e), with effect from 21.02.2018, all daily wagers appointed prior to 10.05.2001 and regularized on or after 10.05.2001 are to continue to serve till the age of 60 years. This amendment is post the decisions rendered in Bar Chand and Chuni Lal’s cases, supra and has not been noticed in the reference order dated 28.12.2019. While affirming the judgment of ld. Single Judge in Gian Singh’s case, ld. Division Bench though did not notice Chuni Lal’s judgment but held that writ petitioner’s date of regularisation was prior to 10.5.2001 therefore reduced age of 58 years introduced in 2001 amendment would not be applicable to him. 7. While affirming the judgment of ld. Single Judge in Gian Singh’s case, ld. Division Bench though did not notice Chuni Lal’s judgment but held that writ petitioner’s date of regularisation was prior to 10.5.2001 therefore reduced age of 58 years introduced in 2001 amendment would not be applicable to him. 7. There is now no confusion regarding employees falling in para 6(ii)(a) above. These employees can continue to serve till they attain the age of 60 years. However, an anomalous situation has developed amongst the employees falling in para 6(ii)(b) & 6(ii)(c). The employees falling in above para 6(ii)(b) and 6(ii)(c) for all practical purposes belong to the same category and are similarly situated. Both sets of employees were engaged on daily wage basis prior to 10.05.2001 and regularized after 10.05.2001. Such of the employees engaged on daily wage basis prior to 10.05.2001 and regularized after 10.05.2001, if were in service on 21.02.2018, will continue to serve till they attain the age of 60 years. On the other hand, such of the employees, who were engaged on daily wage basis prior to 10.05.2001 and regularized after 10.05.2001, but have retired before the issuance of notification dated 21.02.2018, will not get the benefit of notification dated 21.02.2018. This to our mind is wholly discriminatory. Similarly situated employees are being treated differently. The employees, who were engaged on daily wage basis prior to 10.05.2001 and regularized after 10.05.2001, constitute one homogenous class. Differential treatment to the employees falling in same homogenous class is impermissible. In fact, amendment carried out in F.R. 56(e) on 21.02.2018 suggests that the date of regularization will have no impact upon the superannuation age. Date of engagement is the determinative factor. If a daily wager is engaged prior to 10.05.2021, then he is entitled to serve till 60 years of age irrespective of date of his regularization. This was held so in Bar Chand’s case, decided on 21.10.2010. However, at the time of decision in Bar Chand’s case, the amendment dated 21.02.2018 had not been carried out in F.R. 56(e). Therefore, though later judgment in Chuni Lal’s case dated 22.11.2011, holding the decision in Bar Chand’s case as per incuriam cannot be faulted as it was based upon strict interpretation of F.R. 56(e) as amended by the State at that time. Therefore, though later judgment in Chuni Lal’s case dated 22.11.2011, holding the decision in Bar Chand’s case as per incuriam cannot be faulted as it was based upon strict interpretation of F.R. 56(e) as amended by the State at that time. However, in view of subsequent amendment of F.R. 56(e) on 21.02.2018 in the interregnum, situation has undergone further change. Reference made to the larger Bench is not only to decide about the inconsistency in the decisions referred therein, but also to put at rest related issues coming or likely to arise before different benches. Therefore, we hold that:- (i). There is an apparent inconsistency or conflict between the decisions referred to in the reference order dated 28.12.2019, which lies in a very narrow compass, as noticed in para 6(i) above. In Chuni Lal’s case, the decision rendered in Bar Chand’s case was held to be per incuriam. The decision in Chuni Lal’s case was based upon interpretation of F.R. 56(e) as it existed in the State at that time. But the judgment delivered in Tara Chand’s case did not notice the decision in Chuni Lal’s case. The judgment in Gian Singh’s case in respect of continuation in service was based upon the verdict in Tara Chand’s case. In both these judgments, learned Single Judges did not notice the judgment delivered in Chuni Lal’s case. In Letters patent appeal, the Division Bench while affirming the judgment passed by the ld. Single Judge in Gian Singh’s case though did not notice the judgment rendered in Chuni Lal’s case however the amendment dated 10.5.2001 reducing the superannuation age from 60 to 58 years was held to be not applicable to the writ petitioner, who was held entitled for regularisation prior to 10.5.2001. (ii). Inconsistency between Bar Chand and Chuni Lal now stands, not just resolved, but rather dissolved, in view of notification dated 21.02.2018 amending F.R. 56(e), issued by the State, which has now reinforced and reiterated what was held in Bar Chand’s case, i.e. date of regularization of a class IV daily wager whether prior or after 10.05.2001, will make no difference to the age of his continuing in service. It is the date of engagement, which is the decisive factor. If date of engagement/appointment is prior to 10.05.2001, the Class-IV employee will continue to serve till 60 years of age. It is the date of engagement, which is the decisive factor. If date of engagement/appointment is prior to 10.05.2001, the Class-IV employee will continue to serve till 60 years of age. In case, it is later than 10.05.2001, then restriction in age upto 58 years will apply. (iii). There cannot be any discrimination amongst similarly situated Class-IV employees belonging to one homogenous class. Therefore the retirement date, of such of those employees, who had been engaged on daily wage basis prior to 10.05.2001, but regularized after 10.05.2001 and have actually been retired prior to the issuance of notification dated 21.02.2018 at the age of 58 years, shall be deemed to be the date when they otherwise attained the age of 60 years. Since these employees have not actually worked beyond the age of 58 years, therefore, they will not be entitled to the actual monetary benefits of wages/salary etc. for the period of service from the date of their actual retirement till deemed dates of their retirement. However, they will be entitled to notional fixation of their pay for the period in question for working out their payable pension and payment of consequential arrears of pension accordingly. Reference is accordingly answered. The writ petitions be now placed appropriately before the respective Benches.” Based on the mandate of law of Full Bench in the case of Baldev [supra], it is the date of engagement on Part-Time/Daily Wages [being prior to 10.05.2001], which is determinative of the rights of superannuation of an employee in case such an employee was regularized on or after 10.05.2001. 5. Learned Counsel further submits that in terms of the aforesaid judgment, the petitioner was engaged as Part-Time Water Carrier on 18.01.1995 [Annexure A-1] i.e. prior to 10.05.2001 and was regularized on 28.01.2014 [Annexure A-4], therefore, the petitioner has a right to continue in service upto the age of 60 years and the Impugned Orders dated 31.01.2017 [Annexure A-5] retiring the petitioner at the age of 58 years on 31.01.2017 is not tenable in law. 6. 6. Per contra, Learned State Counsel states that though the mandate of Full Bench Judgment in the case of Baldev [supra] is not in dispute but, since the Director of Higher Education, Himachal Pradesh and Deputy Director Higher Education concerned, have not been pleaded as party respondents, therefore, the matter requires to be looked into on the factual side by the Respondents [who have been impleaded as party respondents No.4 and 5 by this Court today]. 7. Faced with the eventuality, Learned Counsel for the petitioner, on Instructions, states that petitioner may be permitted to make representation to Director of Higher Education, Himachal Pradesh, ventilating his grievance in terms of the Full Bench Judgment of this Court in the case of Baldev [supra]. 8. Learned State Counsel states that in case any such representation is made, the same shall be considered/examined, in accordance with law. 9. In view of the above discussion and statement made by Learned Counsel for the petitioner, this Court disposes of the instant petition, in the following terms:- (i) As prayed, petitioner shall make a representation to the newly impleaded Respondent No.4-Director Higher Education, Himachal Pradesh, ventilating his grievance for continuity in service upto the age of 60 years, within a period of four weeks from today; (ii) Upon making a representation, Respondent No.4-Director Higher Education, Himachal Pradesh, shall examine/consider the matter in the light of mandate of law in the case of Baldev [supra], within a period of four weeks thereafter; (iii) Needless to say, in case of acceptance of claim, since the petitioner has not actually worked, therefore, benefits shall entail “notionally” for the period from 58 years to 60 years; (iv) Upon acceptance of claim, the State Authorities shall release the revised retiral benefits to the petitioner, from due date, with all consequential benefits, within a period of three months thereafter; and (iv) Costs made easy for respective parties. In aforesaid terms, instant petition stands disposed of alongwith pending miscellaneous application(s), if any.