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2014 DIGILAW 1771 (HP)

D. K. Tandon v. State of H. P.

2014-11-27

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT : Rajiv Sharma, J. The State Government amended Rule 56 of the Fundamental Rules vide Notification dated 28th May, 2014, whereby the following sub clause (dd) was inserted after clause (d): “56 (dd). A Government servant shall have an option to continue in Govt. service beyond the age of superannuation i.e. 58 years till the attainment of age of 59 years subject to the conditions as mentioned below:- (i) The extension in service shall be allowed only to those Government servants who exercise an option on prescribed 'Proforma' annexed to this Notification. The requisite option shall be submitted to the Head of Office or Head of Department, well before six months of attaining the age of superannuation I.e. 58 years. The option once exercised will be treated as final and shall not be allowed to be withdrawn/ changed in any circumstance. Provided that the Government servants, in whose cases the date of superannuation is before the expiry of six month from the date of commencement of this notification, they may exercise option at any time before the date of their superannuation and after the issue of this Notification. (ii) During the extension, the Government servant shall continue to draw the same pay which was being drawn by him at the time of attaining the age of superannuation i.e. 58 years. Provided that increases in the dearness allowance as may be sanctioned by the Government from time to time shall be admissible during the extension. Provided, further that the Government servant will be considered for promotion in case of availability of promotional post during the extended service. In case of such promotion, pay will be fixed from the date of promotion. (iii) The Government servant will be entitled to receive pensionary benefits on completion of his extended service. (iv) The extension in service will be subject to satisfaction of the State Government and the State Government may withdraw the extension given at any stage." 2. The matter was placed before the Board of Directors of respondent No. 3 in its meeting held on 27.7.2014. The Board took the following decision on item No. 32 (33) as under: “The Board did not agree for the implementation of the scheme of the State Govt. The matter was placed before the Board of Directors of respondent No. 3 in its meeting held on 27.7.2014. The Board took the following decision on item No. 32 (33) as under: “The Board did not agree for the implementation of the scheme of the State Govt. for its employees of extension in service on attaining the age of 58 years in pursuance to FR-56 (dd) of the Fundamental (Amendment) Rules, 2014 to the employees of HIMUDA. The Board, however, felt that individual cases of the employees for extension in service where there is dire necessity & urgency can be considered by the Board.” 3. The petitioner also gave his option for extension of service on 29.5.2014. The petitioner retired on 30.6.2014. The fact of the matter is that the respondent-Board has given extension to one Sh. Desh Raj Gandhi, Asstt. Engineer, vide office order dated 30.8.2014. The respondent-Board has not decided to give extension to the petitioner as per letter dated 14.10.2014. The petitioner also made a representation for extension in service vide Annexure P-6. The case of the petitioner, in a nut shell, is that the Board has not treated him fairly while rejecting his case for extension of service. 4. Mr. P.S.Goverdhan, Advocate, for the petitioner has vehemently argued that Annexure R-3/A is illegal and arbitrary, thus, violative of Articles 14 and 16 of the Constitution of India. He then contended that the respondent- Board has indulged in practice of pick and choose. He lastly contended that the petitioner was more suitable for extension vis-à-vis Mr. Desh Raj Gandhi. On the other hand, Mr. C.N.Singh, Advocate for the Board has supported the issuance of Annexure R-3/A. 5. We have heard the learned Advocates for the parties and gone through the pleadings very carefully. 6. It is true that amendment carried out in Rule 56 of the Fundamental Rules whereby sub clause (dd) was inserted after clause (d) was not binding on the Board dated 28.5.2014. However, the fact of the matter is that the Board of Directors of the respondent-Board has taken a conscious decision that the individual cases of the employees for extension in service where there is dire necessity and urgency can be considered. The petitioner was working at the time of exercising option as Executive Engineer. We have also gone through Annexure R-3/B whereby the extension in service has been given to Mr. The petitioner was working at the time of exercising option as Executive Engineer. We have also gone through Annexure R-3/B whereby the extension in service has been given to Mr. Desh Raj Gandhi for one year after attaining the age of superannuation on 31.8.2014. The decision has been taken by the Board by way of circulation. The reasons assigned for giving extension to Mr. Desh Raj Gandhi is that he was holding additional charge of the Executive Engineer and was looking after construction work of Indoor Stadium at Rohroo, Construction work of Mushroom Unit at Dutt Nagar, Rampur and Construction work of Commercial Complex near Vikas Nagar at Shimla. According to Annexure R-3/B, his case was also recommended by the Superintending Engineer (South). It is also stated in Annexure R-3/B that Sh. Desh Raj Gandhi was very sincere, experienced, hard working and conversant with the prestigious projects being looked after by him. Sh. Desh Raj Gandhi was holding additional charge of Executive Engineer when his case was considered for extension of service. 7. It is amply proved that before the superannuation of the petitioner, he was looking after these projects as Executive Engineer. There is no complaint, whatsoever against the petitioner, as per the reply filed. Sh. Desh Raj Gandhi has been given extension in service as per Annexure P-5, on 30.8.2014 and the case of the petitioner has been rejected on 14.10.2014. The Board has taken the decision though on 27.7.2014, but should have taken into consideration the option exercised by the petitioner on 29.5.2014. The petitioner has not been treated in a just and fair manner by the respondent No. 3. All the parameters were required to be taken into consideration while considering the case of the petitioner for extension of one year service up to the age of 59 years. The discretion is required to be exercised in a judicious manner and not arbitrarily. The Board is a State within the meaning of Article 12 of the Constitution of India. The petitioner has a right to be considered for extension of service as per Articles 14 & 16 of the Constitution of India. The petitioner has been discriminated against by the respondent-Board by denying him the benefit of extension and granting the extension to Mr. Desh Raj Gandhi, who was merely officiating Executive Engineer. 8. Accordingly, the Writ Petition is allowed. The petitioner has been discriminated against by the respondent-Board by denying him the benefit of extension and granting the extension to Mr. Desh Raj Gandhi, who was merely officiating Executive Engineer. 8. Accordingly, the Writ Petition is allowed. Annexure R-3/A dated 14.10.2014 is quashed and set aside. The respondent-Board is directed to consider the case of the petitioner and extend the period by one year w.e.f. 30.6.2014, with all consequential benefits, within three weeks from today. 9. Pending application (s), if any, shall stand disposed of.