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2017 DIGILAW 543 (HP)

State of H. P. v. Dharam Singh

2017-05-18

SANDEEP SHARMA, SANJAY KAROL

body2017
JUDGMENT : Sandeep Sharma, J. Present appeal is directed against the judgment dated 7.12.2010, passed by learned Single Judge of this Court in CWP No. 2661 of 2009, whereby the writ petition filed by the petitioner-respondent (hereinafter referred to as the ‘writ petitioner’) was allowed, (for short ‘impugned judgment’). 2. While passing the impugned judgment, the learned Single Judge has directed the appellants-respondents (hereinafter referred to as the ‘appellants-State’) to re-engage the writ petitioner immediately, however, he has not been held entitled to any arrears for the period from 29th August, 2009, on which date he was retired, to the date of passing of judgment i.e. 7.12.2010, as he had not worked during this period. 3. In nutshell, case of the writ petitioner was that he was appointed as Beldar on daily waged basis in the year 1996 in Animal Husbandry Department and his services were regularized in the year 2007. It has been averred by the writ petitioner that he was retired on 29.8.2009, on completing the age of 58 years. It has been pleaded by the petitioner that he should be considered for regularization from the date of his engagement as daily waged Belder, i.e. 7.10.1996, with all consequential benefits and further he should be retired from service on completion of age of 60 years, because the age of retirement was reduced from 60 years to 58 years in the year 2001 or say after his initial appointment in the year 1996 and hence the decision did not affect him. The writ petitioner also prayed for issuance of direction that he be given all pensionary benefits after attaining the age of 60 years. 4. Appellants-State, by way of filing reply to the writ petition, stated that the writ petitioner was engaged on daily wage basis and that his services were regularized in the year 2007, on the basis of notification dated 18.6.2007, issued by the State Government. 5. Perusal of impugned judgment suggests that learned Single Judge, on the basis of aforesaid pleadings as well as judgment passed by Division Bench of this Court in CWP No.5749/2011, titled: Lachhi Ram vs. State of H.P. and Others, decided on 25th October, 2010, held that the writ petitioner is entitled to continue to serve up to the age of 60 years and accordingly directed the appellants-State to reengage the writ petitioner immediately. Learned Single Judge, while holding the writ petitioner entitled to remain in service up to the age of 60 years, denied him arrears for the period from 29th August, 2009, on which date he was retired to the date of passing of judgment as he had not worked during this period. Learned Single Judge further directed the appellants-State to grant pensionary and retrial benefits to the writ petitioner, when he retires on attaining the age of 60 years in accordance with rules, instructions and scheme, if any, of the Government and further held that, while calculating qualified service for the purpose of pension and other retrial benefits, period from 29.8.2009 to the date of judgment i.e. 7.12.2010 shall also be counted. 6. Appellants-State, being aggrieved and dissatisfied with the impugned judgment passed by learned Single Judge of this Court, preferred the instant appeal. 7. Mr. J.K. Verma, learned Deputy Advocate General, while inviting the attention of this Court to the impugned judgment, vehemently argued that same is not sustainable in the eyes of law and, as such, same deserves to be quashed and set aside. Mr. Verma also invited the attention of this Court to the judgment dated 30th May, 2012, passed in Civil Review No. 72 of 2011, titled: State of H.P. & Others vs. Lachhi Ram, to demonstrate that judgment passed in CWP No.5749 of 2010, titled: Lachhi Ram vs. State of H.P. & Others, was subsequently reviewed by the Division Bench of this Court and as such impugned judgment passed by learned Single Judge deserves to be quashed and set aside. 8. After having gone through the impugned judgment passed by learned Single Judge, it is ample clear that petition having been filed by the writ petitioner came to be decided in the light of judgment passed by Division Bench of this Court in Lachhi Ram’s case supra, wherein admittedly, persons appointed as workmen on or before 10th May, 2001, were held entitled to remain in service up to the age of 60 years, but judgment dated 30th May, 2012, passed by Division Bench in Civil Review No.72/2011, having been filed by appellants-State, suggests that the judgment dated 25.10.2010, passed in Lachhi Ram’s case supra, was recalled. It would be profitable to reproduce hereinbelow judgment passed by Division Bench in Civil Review filed by appellants-State:- “The respondent State and others in the judgment dated 25.10.2010, in CWP No. 5749 of 2010, has come up in review. It is pointed out that an inadvertent error has crept in, in the judgment whereby this Court has granted continuance of the writ petitioner up to 60 years, based on the Circular. It is submitted that the amendment introduced under FR 56 could not be brought to the notice of this Court and hence the inadvertent error. As per the amendment, those workmen who have been regularized in service after 10.5.2001, are entitled to continue only up to the age of 58 years. This crucial aspect has not been considered in the judgment. Therefore, the review petition is allowed. Judgment dated 25.10.2010 in CWP 5749 of 2010 is recalled.” 9. Division Bench, while allowing Review Petition, has categorically held that amendment introduced under FR 56 could not be brought to the notice of this Court at the time of passing of Lachhi Ram’s case supra, as a result of which, inadvertent error crept in the judgment, whereby Court allowed the writ petitioner to be continued in service up to the age of 60 years. Division Bench of this Court specifically held that as per amendment, those workmen who have been regularized in service after 10.5.2001, are entitled to continue only up to the age of 58 years. 10. In the instant case, as clearly emerged from the record as well as impugned judgment passed by learned Single Judge, services of writ petitioner were regularized on the basis of scheme notified by the Government in the year 2007 and as such he could not be allowed to remain in service up to the age of 60 years. 11. It may be noticed that by way of aforesaid amendment as introduced under FR 56, workmen, who were regularized in service after 10.5.2001, were held entitled to continue only up to the age of 58 years, but fact remains that aforesaid amendment had come into existence prior to passing of judgment in Lachhi Ram’s case supra. Had aforesaid amendment come to the notice of Division Bench, while passing judgment in Lachhi Ram’s case supra, writ petitioner in that case would not have been allowed to continue till the age of 60 years. 12. Had aforesaid amendment come to the notice of Division Bench, while passing judgment in Lachhi Ram’s case supra, writ petitioner in that case would not have been allowed to continue till the age of 60 years. 12. Consequently, in view of the aforesaid discussion, we have no hesitation to conclude that the judgment passed by learned Single Judge deserves to be quashed and set aside. Accordingly, the appeal is allowed and the judgment passed by learned Single Judge is quashed and set aside. All interim orders are vacated and all the miscellaneous pending applications are disposed of. 13. However, before parting, we wish to observe that since case of the writ petitioner was only considered and decided in the light of judgment passed in Lachhi Ram’s case supra and no findings qua grounds raised in the petition were returned, writ petitioner is always at liberty to agitate his claim before appropriate Forum in accordance with law.