Kundan Lal Vs State of Hp

“(i). That Annexure P-1 may be set-aside and quashed and the impugned portion of Annexure P-2 may also be read down/ quashed and the applicant may be allowed to continue upto the age of 60 years with all benefits incidental thereof.”

¶13

FACTUAL MATRIX:

¶14

2. Case as set up by Mr. Bonit Thakur,

¶15

Learned vice-counsel for the petitioner is that the

¶16

petitioner was engaged as a Daily Wage [Class-IV] in

¶17

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes

¶18

2024:HHC:15050

¶19

2 -

¶20

March, 1999, and he was regularized on 18.02.2009. On attaining the age of 58 years, the respondents superannuated the petitioner from the post of Class-IV Employee as per the orders dated 29.01.2016 [Annexure P-1] w.e.f. 29.02.2016 from Government Homeopathic Ayurvedic Centre, Bilaspur.

¶21

3. Grievance of the petitioner is that once the petitioner was engaged on daily wage basis prior to 10.05.2001 and was regularized on 18.02.2009, therefore, the petitioner has a right to continue in service upto the age of 60 years upto 28.02.2018 and the action of the Respondents in retiring him at the age of 58 years on 29.02.2016 [Annexure P-1] was illegal, arbitrary and untenable.

¶22

STAND OF RESPONDENTS IN REPLY:

¶23

4. Respondents filed a reply-affidavit dated 12.01.2017 of Director of Ayurveda, Himachal Pradesh. The stand of the State Authorities in the reply-affidavit is that though the petitioner was engaged in the year 1999 and he was regularized on 19.02.2009 after the cut-off date i.e. 10.05.2001, therefore, the petitioner

¶24

2024:HHC:15050

¶25

3 -

¶26

had a right to continue in service upto the age of 58 years upto 29.02.2016. Reply further states that petitioner has neither any right nor any claim for continuity in service beyond the age of 58 years in terms of the Notification dated 10.05.2001 and the Letter dated 22.02.2010 [Annexure R-II] , whereby, the Class-IV Employees who were regularized after 10.05.2001 were to retire at 58 years of age such employees had no right to continue upto the age of 60 years.

¶27

5. Heard Mr. Bonit Thakur, learned vice

¶28

counsel for the petitioner and Mr. Hemant K. Verma, Learned Counsel for the respondents and also gone through the case records.

¶29

6. The subject matter and the claim of the petitioner is no longer res integra , in view of the Full Bench judgment of this Court in CWP No.2711 of 2017 , titled as Baldev versus State of Himachal

¶30

Pradesh & ors. along with connected matter ,

¶31

decided on 22.02.2022, which reads as under:-

¶32

“(i). There is an apparent inconsistency or conflict

¶33

2024:HHC:15050

¶34

4 -

¶35

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.

¶36

(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 ClassIV 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.

¶37

(iii). There cannot be any discrimination amongst similarly situated Class-IV employees belonging to one homogenous class. Therefore the retirement date, of

¶38

2024:HHC:15050

¶39

5 -

¶40

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.

¶41

Reference is accordingly answered. The writ petitions be now placed appropriately before the respective Benches.”

¶42

7. A Co-ordinate Bench of this court in

¶43

CWP No.10268 of 2024 , titled as Joginder Singh versus State of HP & Ors. , decided on 17.08.2024, has extended the benefit of deemed continuity in service upto the age of 60 years to a daily wager [Class IV] who was engaged on November 1996 and was regularized in September 2007 and

¶44

was retired at the age of 58 years on 31.10.2015; in the following terms:

¶45

“2. The petitioner was engaged as a Forest Worker in November, 1996. Services of the

¶46

2024:HHC:15050

¶47

6 -

¶48

petitioner was regularized in September, 2007. Admittedly in the case hand, petitioner was a Class-IV employee. On attending the age of 58 years, the petitioner was retired on 31.10.2015.

¶49

In the aforesaid backdrop, learned counsel appearing on behalf of the petitioner has placed reliance upon the decision dated 22.02.2022, passed in CWP No. 2711 of 2017 , titled Baldev Vs. State of H.P. & Ors.

¶50

In view thereof, petition is allowed. The petitioner is deemed to have retired at the age of 60 years. Since the petitioner has not actually worked beyond the age of 58 years, therefore, the petitioner will not be entitled to actual monetary benefits of wages/salary for the period of service from the date of their actual retirement till deemed dates of his retirement. Consequential benefits granted to the petitioner be released within a period of six months from today, failing which, petitioner shall be entitled to interest thereupon as 6%.

¶51

The writ petition is disposed of in the aforesaid terms. Pending miscellaneous applications, if any, also stand disposed of.”

¶52

8. Taking into account the entirely of the

¶53

facts and circumstances of the case and the material

¶54

on record and the mandate of the Hon’ble Full Bench

¶55

of this Court in case of Baldev (supra) and the Co-ordinate Bench judgement, in the case of Joginder Singh (supra), the Impugned Order dated 29.01.2016 [Annexure P-I] retiring the petitioner from same at the age of 58 years on 29.02.2016 is set-aside

¶56

2024:HHC:15050

¶57

7 -

¶58

and the State Authorities shall treat the petitioner in deemed service upto the age of 60 years till 28.02.2018, for the following reasons :

¶59

8(i). State Authorities carved out an inconsistency in the date of retirement Class-IV Employees by permitting those who were engaged or appointed before 10.05.2001 and were regularized before 10.05.2001 to continue in service upto 60 the age of years whereas those Class-IV Employees who were engaged before 10.05.2001 but were regularized on or after 10.05.2001 were made to retire at the age of 58 years prescribing or carving out two different date(s)-ages of retirement between one homogeneous class of Class-IV Employees on the basis of the date of regularization of such employees resulted in arbitrariness and hostile discrimination amongst one set of Class-IV employees engaged/appointed before 10.05.2001 which cannot be permitted to operate. 8(ii). Carving out two different dates-ages of retirement amongst one homogenous class of Class-IV Employees who were engaged/appointed prior to

¶60

2024:HHC:15050

¶61

8 -

¶62

10.05.2001 but were regularized before 10.05.2001 by retiring them at the age of 60 years vis-à-vis those Class-IV Employees who were engaged/appointed prior to 10.05.2001 and were regularized on or after 10.05.2001 were to retire at the age of 58 years, stands removed by State Authorities issuing a Notification dated 21.02.2018 , under Fundamental Rules 56 mandating that Class-IV Govt. servants who were engaged/appointed on part time or daily waged before 10.05.2001 and were regularized on or after 10.05.2001 were to retire at the age of 60 years.

¶63

8(iii). It is the date of initial engagement/ appointment as Class-IV, be it as part time or daily wage [being before 10.05.2001] which was determinative as to whether a Govt. servant [be it part-time or daily wager] was to continue in service upto the age of 58 years or 60 years.

¶64

In instant case, once the petitioner was engaged on daily wages before 10.05.2001 [i.e. March 1999] therefore, the petitioner has a right to continue in service upto the age of 60 years i.e. 29.02.2018

¶65

2024:HHC:15050

¶66

9 -

¶67

instead of retiring him at the age of 58 years by issuing the Impugned Orders dated 29.02.2016 [Annexure P-1] . 8(iv). Besides this, once the regularization of a part-time or daily waged government servant is dependant upon a fortuitous circumstance or an unforeseen eventuality of availability of a vacancy or creation of vacancy or allocation of vacancy which was beyond the control of an employee, then, such a fortuitous circumstance or eventuality cannot be permitted to operate so as to carve out two different age(s) of superannuation, between one homogenous class of government servants engaged or appointed before 10.05.2001, as has been done by the respondents in instant case.

¶68

8(v). Mandate of the Full Bench of this Court,

¶69

in the case of Baldev (supra) cannot be permitted to be rendered inoperative by the Respondents.

¶70

8(vi). The operation and applicability of the mandate of the Full Bench Judgment in case of Baldev (supra) cannot be denied to the petitioner when, the petitioner was engaged on daily wages in

¶71

2024:HHC:15050

¶72

10 -

¶73

March, 1998 i.e. prior to 10.05.2001 and when, such

¶74

date of engagement conferred a right on him to continue upto the age of 60 years i.e. upto 28.02.2018 irrespective of the date on which he was regularized.

¶75

In these circumstances, the Impugned Order passed by the Respondents in retiring the petitioner at the age of 58 years on 29.02.2016 cannot stand the test of judicial scrutiny and the same is set-aside.

¶76

8(vii). Even the State Authorities have issued a Communication dated 28.04.2023 [Taken on Record] , directing all the Administrative Authorities to implement the Full Bench Judgement in case of Baldev Versus State of Himachal Pradesh & ors. [CWP No.2711 of 2017] decided on 26.07.2022, in following terms:-

¶77

“No.Fin(C)A(3)-2/2013-L Government of Himachal Pradesh, Finance (Regulations) Department

¶78

From:

¶79

The Chief Secretary to the Government of Himachal Pradesh.

¶80

To

¶81

All the Administrative Secretaries to the Government of Himachal Pradesh.

¶82

All the Heads of Departments in H.P.

¶83

2024:HHC:15050

¶84

11 -

¶85

Dated Shimla-2, the 25th April, 2023.

¶86

Subject Clarification regarding retirement age of Class-IV employees engaged prior to 10-05-2001.

¶87

Sir/Madam,

¶88

I am directed to invite your attention to the subject cited above and to say that the State Government, vide notification dated 30th July, 1998, amended the Rule-56 of the Fundamental Rules to the extent that 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. Thereafter, an amendment was carried out vide notification dated 10th May, 2001 to the effect that all ClassIV Government servants 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. Vide notification dated 21.02.2018, further amendment in Rule 56 of the Fundamental Rules was carried out and proviso was inserted that a ClassIV Government servant, appointed on part time/daily wages basis prior to 10052001 and regularized on or after 10052001, shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. Later on, vide corrigendum dated 10/06/2019, the word 'appointed' was substituted with 'engaged '.

¶89

The category of Class-IV Government employees, who had been engaged on part time/ daily wages basis prior to 10-05-2001 and regularized on or after 10-05-2001, but had retired before the issuance of notification dated 21.02.2018, approached the High Court and claimed the benefit of notification dated 21.02.2018. One employee, Shri Baldev filed CWP in the Hon'ble High Court, seeking the benefit of notification dated 21.02.2018. The Hon'ble High Court of HP decided the CWP No.2711 of 2017 along with CWP(OA) No.2208 of 2020 on 22.02.2022 in his favour and observed as under:-

¶90

2024:HHC:15050

¶91

12 -

¶92

"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 deemen 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."

¶93

These Court orders have been implemented by the A.D. (Forests) in consultation with the advisory departments.

¶94

It has come to the notice of this department that there are other cases belonging to ClassIV wherein petitions have been filed in the Hon'ble High Court drawing parity with Sh. Baldev and claiming similar benefits. The Hon'ble High Court has already directed to give the benefit on the basis of the order in the case of Sh. Baldev.

¶95

4. After careful consideration, it has been decided that all such cases may be examined by the AD in the light of the ratio laid down in the Baldev's case and if found similar situated, the same may be settled accordingly.

¶96

These instructions may be brought to the notice of the all concerned for compliance.

¶97

Yours faithfully,

¶98

Sd/-

¶99

Joint Secretary (Finance) to the Government of Himachal Pradesh.

¶100

2024:HHC:15050

¶101

13 -

¶102

8(viii). Consequent upon the quashing of the

¶103

Impugned Order dated 29.01.2016 [Annexure P-1] retiring the petitioner at age of 58 years on 29.02.2016; the petitioner is entitled to be “treated to be in deemed service of the Respondents upto the age of 60 years i.e. upto 28.02.2018”. However, since the petitioner has not actually worked between 29.02.2016 to 28.02.2018 then, the petitioner shall not be entitled to actual monetary benefits, but the petitioner shall be entitled to notional benefits for deemed service rendered from 29.02.2016 to 28.02.2018 for all service benefits. Petitioner shall be entitled to pension w.e.f. 01.03.2018 [if otherwise eligible thereto] and other revised retiral benefits with all arrears. Denial of continuity in service upto the age of 60 years and denial of service benefits and consequential retiral benefits amounts to withholding these benefits, which are the legal entitlements of the petitioner. Thus, the denial or withholding of these benefits is without any authority of law is arbitrary, punitive and the same is quashed

¶104

2024:HHC:15050

¶105

14 -

¶106

and set-aside.

¶107

9. CONCLUSION & DIRECTIONS:

¶108

(i). Impugned Order dated 29.01.2016 [Annexure P-1] retiring the petitioner at the age of 58 years w.e.f. 28.02.2016 is quashed and set aside;

¶109

(ii). Respondents-State Authorities are directed to treat the petitioner in deemed service upto the age of 60 years i.e. upto 22.02.2018 notionally for pay fixation and other service benefits accruing therefrom;

¶110

(iii). Based on notional pay fixation for the deemed service w.e.f 29.02.2016 to 28.02.2018, the State AuthoritiesRespondents shall release all admissible Revised Retiral Benefits i.e. Revised Leave Encashment, Revised Gratuity, Revised Commuted Pension; and Revised Pension w.e.f. 01.03.2018 with all consequential benefits and arrears accruing therefrom to the petitioner on or before 31.12.2024;

¶111

(iv). In case monetary benefits as in (iii) are not released, then Respondents shall be liable for interest @ 6% per annum thereafter till realization;

¶112