State of Hp and Ors. Vs Satpal

2025:HHC:12250

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMP (M) No.89 of 2025 In LPA No.78 of 2025 Decided on: 04.03.2025

__________________________________________________________ The State of Himachal Pradesh & Ors. ...Applicants/Appellants Versus Satpal ...Non-Applicant/Respondent

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Coram: Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting? Yes

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For the applicants/ : Mr. Arsh Rattan, Deputy Advocate Appellants General. For Respondent : Notice not issued

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Per Ranjan Sharma, Judge

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CMP [M] No.89 of 2025

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Keeping in view the averments made in

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the application, which is duly supported by an

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affidavit, we are of the opinion that sufficient cause

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has been made out to condone the delay. Therefore

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the delay of 29 days in filing the appeal is condoned. In aforesaid terms, the application stands disposed of.

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LPA No.78 of 2025

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2. Appellants-State of Himachal Pradesh has

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come up before this Court, assailing the judgment

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

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passed by the Learned Single Judge in CWP No. 9317 of 2024, titled as Satpal versus State of Himachal Pradesh & Ors., decided on 05.09.2024

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[referred to as Impugned Judgment], wherein, the claim of Respondent-Employee herein, {being the writ petitioner}, was accepted for continuation in service upto the age of 60 years in terms of the mandate of the Division Bench of this Court, in CWP No. 2274 of 2021, titled as Satya Devi vs. State of Himachal Pradesh and others alongwith connected

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matters, decided on 28.05.2024, with directions to Appellants-State Authorities to continue the petitioner in service till he attains the age of 60 years [i.e. upto 30.9.2026].

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CHALLENGE TO IMPUGNED JUDGMENT DATED 05.09.2024 IN INSTANT APPEAL:

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3. Appellants-State Authorities have assailed

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the Impugned Judgment dated 05.09.2024, contending that firstly, the Learned Single Judge had not taken into account the judgment in case of Geeta Devi vs State of Himachal Pradesh & Ors [CWP No.

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2648 of 2024], decided on 20.05.2024 [Annexure A-II], annexed with instant appeal ; and secondly, that the

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respondent-employee was engaged [as Jal Rakshak in Jal Shakti Vibhag through PRI on 18.11.2006 and he was inducted as Pump Attendant on contract on 29.11.2019 and was thereafter regularized on 26.04.2022] and once this regularization was after 10.05.2001 therefore, the Respondent-Employee could

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only serve upto the age of 58 years; thirdly, the Notification dated 10.05.2001 was not even challenged by respondent-employee and lastly, the implementation of the Impugned Judgment dated 05.09.2024 will lead to multiplicity of litigation and will unsettle the settled position.

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IMPUGNED JUDGEMENT DATED 05.09.2024:

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4. Before adverting to the contentions

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Learned State Counsel in the instant appeal, it is necessary to have a recap of Para-5 of Impugned Judgment dated 05.09.2024, passed by the Learned Single Judge, which reads as under:-

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“5. It is stated by the learned counsel on both sides that the issue involved in this petition is covered by the judgment delivered on 28.05.2024 in CWP No 2274 of 2021 (Satya Devi vs. State of H.P and others) and batch of cases.

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Accordingly, the writ petition is disposed of in terms of the aforesaid judgment and

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the respondents are directed to continue the petitioner in service till he attains the age of 60 years.

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CONSENT JUDGEMENT UNASSAILABLE IN LPA:

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5. Para-5 of the Impugned Judgment passed

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by Learned Single Judge reveals that the parties before the writ Court had agreed in principle that the matter in issue is covered by the judgment in CWP No. 2274 of 2021 [Satya Devi vs. State of Himachal Pradesh and others along with connected matters, decided on 28.05.2024].

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Perusal of writ records reveals that the Respondent-Employee [Satpal], filed a writ petition [CWP No 9317 of 2024] on 31.08.2024 and this petition was listed before Learned Single Judge on 05.09.2024, on which date, the Learned Counsel(s) stated/admitted that the case was covered by the judgment in the case of Satya Devi (supra) and therefore, the petition filed by Respondent-Employee was decided by Learned Single Judge on 05.09.2024 in view of the mandate of law, in the case

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of Satya Devi, as referred to above. Moreover, the judgement passed with consent of parties, through

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respective counsels, cannot be permitted to be assailed in instant appeal by the State Authorities. Further in case, the State Authorities were of the view that no consent was given or such consent was erroneously extended by the State Counsel [ as recorded in Para-5 of Impugned Judgment ] ; then in such an eventuality, the only remedy available with the Appellants-State Authorities herein, was to file review of the judgment which has not been done. Even nothing has been placed on record of the LPA, that the Appellants-State Authorities have disputed the alleged consent. Thus, in these circumstances, the appellants cannot be permitted to re-open or to dispute the findings based on consent as recorded in Para-5 of the Impugned Judgment in instant appeal ; and therefore, challenge to the judgement passed with consent, is rejected.

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CONTENTIONS OF APPELLANTS IN APPEAL:

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6. First contention of Learned State Counsel

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is that while passing the Impugned Judgment on 05.09.2024, the Learned Single Judge has not taken

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into account the judgment, in case of Geeta Devi vs

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State of Himachal Pradesh and others, CWP

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No 2648 of 2024 decided on 20.5.2024, Annexure A-2 annexed with the instant appeal.

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The above contention of the Learned State

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Counsel that the judgment in case of Geeta Devi [supra] was not taken into account while passing the judgement and is misconceived, for the reason, that firstly, a perusal of writ records reveal that the Appellants-State Authorities had neither pleaded nor raised any contention based on judgment in case

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of Geeta Devi [supra] before the Writ Court ; and secondly, nothing has been demonstrated from the records that contention based on Geeta Devi’s case was pleaded/raised before the Writ Court by the Appellants-State Authorities ; and thirdly, the plea based on Geeta Devis’s case, {which is an offshoot of the judgement in the case of K Nagaraj stands distinguished in Para 93 of the judgment in case

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of Satya Devi} has been set up as an afterthought ignoring these aspects ; and fourthly , though the State Government carried out an amendment to FR 56 (a) and (e) that Government Servant in Class-IV

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service or post shall retire from service on attaining the age of 60 years. Likewise, by virtue of the Notification dated 21.02.2018, the third proviso was added to FR 56 (e) that the part-time/daily wagers who were engaged on or before 10.5.2001 and were regularized after 10.5.2001 were also made to retire on attaining the age of 60 years [Para 26 of Satya Devi’s judgment]. However, part-time/daily wagers engaged after 10.05.2001 and/or were regularized thereafter were made to retire at the age of 58 years and thus the cut-off date i.e. 10.05.2001 was questioned in Satya Devi’s case, and since all Class-IV employees formed one homogeneous class and the distinction carved out merely on the basis of date of entry into Government service and therefore, cut-off date in third proviso to Notification dated 21.02.2018 was set aside in Satya Devi’s case; and fifthly, the nature of work and the conditions of service of incumbents engaged prior to 10.05.2001 and those engaged after 10.05.2001 was similar and nothing was brought on record before the Writ Court by State Authorities that

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mode of recruitment, work performed, emoluments and conditions of service of incumbents engaged prior to 10.05.2001 or after 10.5.2001 was different then, the action of State Authorities in prescribing two different age(s) of superannuation amongst one homogenous class of Class-IV, merely on the basis of the date of entry into service was without any rationale and no object was sought to be achieved by such distinction; and sixthly, the prescription of two different ages of superannuation on the basis of date of entry into service {10.5.2001} was contrary to the mandate of Hon’ble Supreme Court in [2014] 10 SCC 432 [Union of India & Ors. versus Atul Shukla and others] ; and seventhly, upon integration as Class-IV E mployees, once all Class-IV incumbents form one homogenous class therefore, State Authorities cannot be permitted to resort to differential treatment by prescribing two different ages of superannuation by retiring those who were engaged before 10.5.2001 and were regularized thereafter to continue upto the age of 60 years whereas those who were engaged and/or were

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regularized after 10.5.2001 to retire at the age of 58 years was impermissible when, the birth mark or source of recruitment cannot be made the

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basis for differential treatment resulting in artificial disparity between equals; and lastly, discrimination

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sought to be carved out on the basis of birth mark or source of recruitment is contrary to the mandate of law in Col. A.S. Iyer & Ors. versus Balasubramanyam & Ors., [1980] 1 SCC 634

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and in C h andan Banerjee & Ors. versus Krishna Prosad Ghosh & Ors., (2022) 15 SCC 453 [Paras 16,

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17 and 28.1] .

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7. Second contention of Learned State Counsel is that in terms of Notification dated 10.05.2001, Respondent-Employee had a right to serve only upto 58 years of age;, as he was engaged as Jal Rakshak in Jal Shakti Vibhag, through PRI on 18.11.2006 and was inducted as Pump Attendant on contract basis 29.11.2019 and was regularized in Jal Shakti Vibhag on 26.04.2022.

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The above contention of the Learned State

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Counsel, is of no assistance to the Appellants-State

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Authorities, for the reason, that although Notification dated 10.05.2001 enabled a person who was appointed on or after 10.05.2001 to retire from service at

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the age of 58 years but with the passage of time, the State Authorities issued another Notification on 21.02.2018 by amending Fundamental Rule 56 (e) First Amendment Rules [in their application to Himachal Pradesh], by inserting third proviso. Thus, provision of FR 56 (e), after insertion of third proviso thereto as it existed on 12.02.2018 reads as under:-

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F.R. 56(e) as it stood on 22.02.2018 (with corrigendum) now reads as under:

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“(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:

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Provided that a Class IV employee of the Secretariat Security Force who initially enters service on or after the 15^th 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.

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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).

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Provided further that with effect from 21.02.2018 a ClassIV Government servant engaged on part time/daily

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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 (2018 amendment).”

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In terms of the Impugned Judgment dated

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5.9.2024, in Satya Devi’s case [supra], the cut-off date i.e. 10.05.2001 [in Notification dated 21.02.2018]

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was declared arbitrary and was quashed and set aside, so as to mandate that all Class-IV Government Servants shall retire at the age of 60 years in the

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following terms:-

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“108. Like in the decision in B. Prabhakar Rao (14 supra), in the instant case too, after the age of superannuation was reduced from 60 to 58 years vide notification dt.10.5.2001, it appears that the State Government realised that they had taken a step in the wrong direction and that serious wrong and grave injustice had been done to their employees. It therefore sought to reverse the said decision in the notification dt.21.2.2018 by again increasing the age of superannuation to 60 years, but while doing so, it gave such benefit only to such of class-IV employees who had been engaged on part time/ daily wage basis prior to 10.5.2001 and regularized on or after 10.5.2001. It excluded the employees who had been engaged on part time /daily wage basis/appointed after 10.5.2001 and is insisting that they retire on attaining the age of 58 years.

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It has overlooked the fact that all the

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petitioners are class-IV employees once their services are regularized their birthmarks would get obliterated , i.e. date of their initial engagement or date of regularization would stand obliterated on entering into a common pool class-IV employees. They all get fused into or integrated as one common service. Merely because the dates of engagement /regularization /recruitment are different, there cannot be discrimination with regard to their age of superannuation.

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It is not the case of the State that those who are appointed prior to 10.05.2001 possessed some superior quality over and above that which was possessed by those appointed after 2001, in order to justify prescribing different ages of superannuation to those different groups.

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No explanatory statement to the notification dt.21.2.2018 has been filed by the respondents giving the logic behind the decision to exclude the class IV employees engaged after 10.5.2001 and regularized after the said date from the benefit of higher age of superannuation. Not even an attempt was made to provide the “objects and reasons” for the said decision by producing the files relating to the taking of such decision.

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As stated above, the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and that that differentia must have a rational relation to the objects sought to be achieved by the notification dt.21.2.2018. The State has not sought to indicate the differentia or the nexus between differentia of those engaged before 10.05.2001 and the object sought to be achieved. It has not sought to justify that differentia

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has rational relationship to the object sought to be achieved by the notification.

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We agree with the contentions of petitioners that the object sought to be achieved by enhancing the retirement age from 58 years to 60 years is to enable lowly paid Class-IV employees to enjoy benefit of services for longer duration, but imposition of the cut off date frustrates this object.

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Therefore, we are of the considered opinion that distinction sought to be made in the impugned notification dt. 21.2.2018 between class-IV employees engaged prior to 10.05.2001 and those engaged after 10.05.2001 does not stand judicial scrutiny and touch stone of Article 14 of the Constitution of India, and the cut off date of 10.5.2001 in the notification dt.21.2.2018, is arbitrary.

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We therefore hold that that there ought to be same age of superannuation prescribed for all class-IV employees i.e 60 years.

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Therefore, for all the aforesaid reasons we strike down the words “appointed on part time/daily wage basis prior to 10.5.2001 and regularized on or after 10.5.2001” in the notification dt. 21.02.2018 and declare that all class-IV Government servants irrespective of their initial date of engagement or the date of their regularization would retire on the last day of the month in which they attain the age of their superannuation of 60 years.”

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8. Third contention of Learned State Counsel

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is that the respondent-employee had not assailed

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the Notification dated 10.05.2001 and therefore, the impugned judgment passed by Learned Single Judge suffers from infirmity.

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The above contention of Learned State

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Counsel, is devoid of any merit, for the reason, that there has to be one date of retirement of all ClassIV Employees and no distinction can be carved out on the basis of either the source of recruitment or birth mark. In order to effectuate equity and social justice to all the Class-IV Employees, including Respondent-Employee-Writ petitioner herein, all such Class-IV Government Servants were held entitled to retire from Government service on attaining the age of 60 years. In these circumstances, once the cut-off date 10.5.2001 has been set-aside, by mandating all Class-IV employees, alike the Respondent-Employee herein, to continue upto 60 years therefore, the plea of Learned State Counsel being devoid of merit is turned down.

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9. Last contention of Learned State Counsel

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is that implementation of judgment dated 10.05.2024 will lead multiplicity of litigation and will unsettle

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the settled position.

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Above contention, has been raised knowing the same to be, without merit, for the reason, that once the cut-off date has been held to be arbitrary in case of Satya Devi’s case [supra], so as to ensure uniform date of retirement i.e. 60 years for all Class-IV Government Servants including the Respondent-Employee is entitled for continuation in service upto the age of 60 years as mandated by the Learned Singh judge, based on the mandate of the judgement in Satya Devi’s case (supra).

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10. Learned State Counsel has contended that the State Authorities have assailed the judgment in Satya Devi’ case [CWP No.2274 of 2021], in SLP [C] No.20496 of 2024 before the Hon’ble Supreme Court. On query by this Court, Learned State Counsel states that no interim orders have been passed in the said SLP. It is contended that in another SLP [C] Diary No.2668 of 2025 , titled as H.P. Vidhan Sabha versus Bhagwan Chand the operation of impugned order dated 01.01.2025 passed by Learned Single Judge was stayed by

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the Hon’ble Supreme Court on 07.02.2025. While dealing with a similar eventuality and after noticing the above factual matrix, the Division Bench of this Court in LPA No.63 of 2025 [State of Himachal Pradesh Versus Bindra Devi, decided on 28.02.2025] directed the State authorities that since there is no interim orders/stay in the SLP filed assailing the judgment in the case of Satya Devi [supra] [SLP [C] No. 20496 of 2024], therefore, the State Authorities-Appellants should take back the employees in service, so as to enable the employees to perform his/her duties, subject to outcome of the pending SLP in the following terms:-

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“6. In the present case, as noticed above, the main writ petition has been decided on the strength of judgment which has been passed by the Coordinate Bench. We have gone through the said decision and in the absence of any interim order passed in SLP No. 20496 of 2024, we do not find any reason to take a different view as such also in favour of an employer. It would only benefit State on payment of wages if she performs the duty and in case the SLP is dismissed, the State would not

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have to give equivalent amount without taking work from the employee in question.

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In such circumstances, we are of the considered opinion that being bound by the judgment of the Coordinate Bench, there is no scope taking a different view on account of absence of any interim order being passed in the SLP.”

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11. In view of the above discussion and for

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reasons recorded hereinabove, this Court does not find any infirmity or illegality or perversity in the Impugned Judgment dated 05.09.2024, In Re: Satpal versus State of Himachal Pradesh and others , which is accordingly upheld.

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12. Needless to say, that the directions passed herein, shall abide by any further orders/directions passed by the Hon’ble Supreme Court in the pending SLP i.e. [SLP [C] No. 20496 of 2024], titled

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as State of Himachal Pradesh & Ors vs Satya Devi [supra].

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13. Accordingly, the instant letters patent appeal is dismissed and all the pending miscellaneous

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