Partly allowed

Onkar Singh v. State

Himachal Pradesh HC11 Dec 2009CWPOA/829/2008

Case brief

AI extract

What is this about?

In this Writ Petition, the High Court of Himachal Pradesh addressed the payment of salary to a petitioner who worked under an interim order after reaching the statutory retirement age. The court held that although the claim for continued service was dismissed based on the retirement amendment notification, the petitioner is entitled to salary for the period served.

What did the court decide?

Directing respondents to pay the petitioner salary from 1.5.2008 till the date of the judgment equivalent to April 2008 salary; vacationing the interim order dated 22.4.2008.

Onkar Singh Vs State — Pension and Retirement Benefits | Himachal Pradesh HC (2009)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP(T) No. 829 of 2008 (OA No. 1033 of 2008)

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Judgment reserved on: 7.12.2009

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Date of decision: 11.12.2009

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Onkar Singh ….. Petitioner.

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Vs.

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State of H.P. and others …. Respondents.

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Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?¹ Yes

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For the Petitioner : Mr. Onkar Jairath, Advocate.

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For the Respondents : Mr. A.K. Bansal, Addl. Advocate General with Mr. R.P. Singh, Assistant Advocate General.

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Kuldip Singh, Judge .

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The material facts relevant for disposal of this petition are that the petitioner was regularized as temporary regular beldar vide office order dated 22.12.2006 Annexure A-1 issued by respondent No.2. The grievance of the petitioner is that respondent No.1 vide notification dated 10.5.2001 in exercise of the powers conferred by proviso to Article 309 of the Constitution of India had amended Fundamental Rules-56 in its application to the State of Himachal Pradesh and reduced the age of retirement of workman

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Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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…2…

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from 60 to 58 years. The petitioner was born on 10.4.1950 and he will complete 60 years of age on 10.4.2010 and under the unamended fundamental rule-56 his date of retirement is on 30.4.2010. It has been submitted that petitioner was surprised when respondent No.3 informed him that he will retire on 30.4.2008 afternoon on completion of 58 years in the month of April, 2008. The decision to retire petitioner is based upon the amendment of fundamental rule-56 by respondent No.1.

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2. It is the case of the petitioner that notification dated 10.5.2001 is applicable to those employees who are appointed on or after the date of publication of notification dated 10.5.2001. It is also the case of the petitioner that petitioner has been ordered to be abruptly retired on 30.4.2008 without following the principle of nature justice. In the petition the petitioner has ultimately prayed that action of respondents for retiring the petitioner on 30.4.2008 may be quashed and he may be allowed to continue in service upto the age of 60 years with all consequential benefits.

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3. The reply has been filed by respondents and it has been submitted that notification dated 10.5.2001 is statutory. The notification dated 10.5.2001 is self explanatory. The petitioner has failed to establish as to how and why the notice is arbitrary and discriminatory. The petitioner has been retired at the age of 58 years. The notification is as per rules. The prayer was made for vacation of interim order dated 22.4.2008 and for dismissal of the petition.

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…3…

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4. The learned counsel for the petitioner has stated that the case of the petitioner regarding the age of superannuation is covered by the judgment dated 12.11.2009 of Division Bench in CWP No.2390 of 2008. It has also been submitted that in view of judgment dated 12.11.2009, the petitioner has no case for challenging notification dated 10.5.2001 whereby age of superannuation of a workman was reduced from 60 to 58. The learned counsel for the petitioner has however, submitted that on 22.4.2008 the erstwhile Tribunal had ordered that petitioner shall not be superannuated till the next date. It has been submitted that the respondents in their reply have also prayed for vacation of interim order dated 22.4.2008.

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5. The Tribunal had ordered that the petitioner shall not be superannuated till the next date but till now according to learned counsel for petitioner the respondents have not passed any order of superannuation concerning petitioner. The petitioner continued to serve the respondents. It has been submitted that in similar several cases the Tribunal had granted interim orders and the petitioners in those cases were paid salary on the basis of interim orders. However, in the present case, the respondents have not paid any salary to the petitioner after his completion of 58 years. The learned counsel for the petitioner has confined the claim of the petitioner only to the extent for payment of salary for the work the petitioner has done under interim order of the Tribunal. The learned counsel for the petitioner has relied Keshav Tripathi vs. State of U.P. and others 1997(5) SLR 181 and Municipal Committee, Karnal vs. Lal Chand 1998(2) SCT 358.

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…4…

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6. In Keshav Tripathi a Division Bench of Allahabad High court has observed that Supreme Court in Dr. Ramaji Dwivedi v. State of U.P. 1983 UPLBEC 426( AIR 1984 SC 1506) has held that if a teacher has worked on the basis of interim order of the Court even though his appointment was not valid he is entitled to payment of salary for the period during which he has worked. In Municipal Committee , Karnal supra a learned Single Judge of Punjab and Haryana High Court has held that it is settled principle of law that if an employee under the order of the Court or otherwise has actually worked and received salary, it will not be fair or just to direct repayment of the salary even if later on the relief to that person is declined.

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7. It has not been denied on behalf of the respondents that in pursuance of order dated 22.4.2008, the petitioner continued to perform his duty. The respondents cannot be heard to say that even though the petitioner had worked but they will not pay him anything. The petitioner had worked even though under the Court order therefore, he is entitled to payment of salary from 1.5.2008 till today in lieu of service rendered by him to the respondents equivalent to his salary of the month of April, 2008 when he reached the aged of 58 years.

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8. In view of above, the petition is disposed of with the directions that respondents shall pay the salary to the petitioner w.e.f. 1.5.2008 till today, if not already paid earlier at the rate and equivalent to his salary of the month of April 2008 payable in May 2008. The petitioner shall be entitled to his other service benefits only upto

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…5…

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30.4.2008. The remaining claim of the petitioner is dismissed and the petition is disposed of on the above terms. The interim order dated 22.4.2008 shall stand vacated.

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December. 11, 2009 ( Kuldip Singh ) (sks) Judge.

Onkar Singh v. State

Case brief

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Onkar Singh v. State

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