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2017 DIGILAW 493 (HP)

S. S. Chaudhary v. State Of Hp

2017-05-09

PREM KUMAR, V.K.SHARMA

body2017
JUDGMENT V.K. Sharma, Chairman (Oral)—M.A. No. 405 of 2017 Reply on behalf of respondent No. 5 stands filed. The remaining respondents do not intend to file any reply to the present miscellaneous application as stated at the bar by the learned Deputy Advocate General and learned Counsel/Vice Counsel for respondents No.3 and 4. 2. Heard. The application which is duly supported by an affidavit and is of formal nature, is allowed in view of the grounds stated therein. Consequently, copy of judgment dated 22nd March, 2017 rendered by the Hon''ble High Court of Himachal Pradesh in LPA No.139 of 2016, titled Himanshu Sharma v. State of HP and others , is ordered to be taken on record, text whereof is as under:- "After hearing for a while, learned counsel for the appellant stated at the Bar that the writ petition has become infructuous by efflux of time for the reason that the petitioner had retired on 31.3.2014 and the writ petition was filed on 24.3.2014. He further stated that by subsequent development, petitioner has to seek some other remedy. His statement is taken on record. Accordingly, the writ petition is dismissed as withdrawn with liberty to seek appropriate remedy. Consequently, the LPA is also dismissed as withdrawn. The impugned Judgment loses its efficacy." 3. The application stands disposed of. O.A. No. 4918 of 2016. 4. Heard at admission stage. 5. The original application has been filed on the following twin substantive prayers vide para 7 (i) and (ii):- 7 (i) "That annexure A-20 dated 17.5.2016 and Annexure A-25, be quashed and set aside. (ii) That the respondents may kindly be directed to retire the applicant at the age of 60 years." 6. As far as the first prayer is concerned, it shall be worthwhile to notice the order dated 28.09.2016 passed by this Tribunal, particularly para 4 thereof, when the matter was taken up for the first time, which reads as under;- "Heard. Notice. 2. Mr. Mohinder Zharaick, learned Deputy AG waives service of notice on behalf of respondents No.1 and 2. Notice on behalf of respondent No.5 is also waived by Mr. Praneet Gupta, learned standing counsel. Separate notice to respondents No.3 and 4 returnable within six weeks to be served through the process serving agency of this Tribunal. 3. Reply on behalf of respondent No. 5 filed, which is taken on record subject to scrutiny by the Registry. Notice on behalf of respondent No.5 is also waived by Mr. Praneet Gupta, learned standing counsel. Separate notice to respondents No.3 and 4 returnable within six weeks to be served through the process serving agency of this Tribunal. 3. Reply on behalf of respondent No. 5 filed, which is taken on record subject to scrutiny by the Registry. Replies on behalf of respondents No. 1 and 2 be filed within six weeks. 4. In the facts and circumstances and the documents brought on record, prayer for interim relief cannot be considered till the outcome of LPA No. 139 of 2016 arising out of judgment dated 30.6.2015, Annexure R-5/8, rendered by the Hon''ble High Court of Himachal Pradesh in CWP No. 1759 of 2014, Himanshu Sharma v. State of Himachal Pradesh and others which as per copy of order dated 23.8.2016 , Annexure R-5/11, is fixed before the Hon''ble High Court for 07.11.2016. 5. However, the impending retirement of the applicant w.e.f. 30.09.2016 shall be subject to the final outcome of the original application." 6. Thus, in view of the above Judgment rendered by the Hon''ble High Court of Himachal Pradesh in LPA No. 139 of 2016, titled Himanshu Sharma v. State of HP and others , prayer (i) does not survive for consideration/adjudication anymore. 7. Now, while adverting to the second prayer, it shall also be pertinent to refer to para 5 of the aforesaid order dated 28.09.2016, vide which the impending retirement of the applicant w.e.f. 30.09.2016 was ordered to be subject to the final outcome of the original application. 8. Admittedly, respondent No.3-Himachal Pradesh State Industrial Development Corporation (HPSIDC) was the parent organization of the applicant, from where he was subsequently transferred to respondent No. 4-Himachal Pradesh General Industries Corporation Ltd. (HPGIC) and thereafter to respondent No. 5-Himachal Pradesh State Electronics Development Corporation Ltd. (HPSEDC). At the time of all these transfers, service conditions of the applicant were protected, vide agreements/memoranda of understanding dated 30th March, 1988, Annexure A-2, 30.3.1988, Annexure A-3, and 20th June, 1988, Annexure A-6. 9. At the time of all these transfers, service conditions of the applicant were protected, vide agreements/memoranda of understanding dated 30th March, 1988, Annexure A-2, 30.3.1988, Annexure A-3, and 20th June, 1988, Annexure A-6. 9. As per copy of resolution No.4 passed in the meeting of the Board of Directors of HPSIDC held on 11.08.1989, Annexure A-9, the applicant, who had joined HPSIDC before 14.6.1989 [letter of appointment dated 3.7.1985 (Annexure A-1)], he was to retire at the age of 60 years as is also apparent from the communication dated 15.2.20 16, Annexure A-16, sent by the General Manager of respondent No.3-HPSIDC to the applicant. 10. Undoubtedly, age of retirement also formed part of the service conditions of the applicant, which could not have been varied to his detriment from 60 years to 58 years despite the fact that as per para-2(vii) of the agreement/memorandum of understanding dated 20th June, 1988, Annexure A-6, on transfer to respondent No.5-HPSEDC, the applicant was to be governed by its service-bye-laws, in which case also his service conditions including age of retirement could not have been varied to his detriment. [Life Insurance Corporation of India and another etc. v. S.S. Srivastava and others, AIR 1987 SC 1527 and Grid Corporation of Orissa and others v. Rasananda Das, (2003) 10 SCC 297 relied.] 11. It being so, ''Clarification regarding retirement age of staff transferred from HPSIDC/T.V. Factory'' dated 30th July, 2005, Annexure A-22, is also of no consequence. 12. The above discussion brings us to hold that the applicant is entitled for relief. The original application is accordingly allowed and the impugned communication dated 17.05.2016, Annexure A-20, sent by the Deputy Manager (P&A) of respondent No.5- HPSEDC to the applicant, pursuant to which he was retired from service at the age of 58 years on and w.e.f. 30th September, 2016, is quashed with a direction to respondent No. 5-HPSEDC, through its Managing Director, to permit the applicant to continue to serve as Senior Manager (Electronics) on its establishment uptil the age of 60 years. As a natural corollary, the applicant would be deemed to be in service as such between the period 01.10.2016 i.e. after his wrongful retirement on 30.09.2016 till he rejoins the service in terms of this order. 13. The original application as also pending miscellaneous application(s), if any, stand disposed of in the above terms.