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2024 DIGILAW 274 (HP)

Rattan Chand v. State of Himachal Pradesh

2024-04-24

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this writ petition, the petitioner has prayed for the following relief:- “That the impugned order dated 19.07.2021 (Annexure P-19) passed by the respondents being illegal, arbitrary and bad in the eyes of the law, may kindly be quashed and set aside and the respondents may kindly be directed to grant the benefit of enhancement of retirement age from 58 to 60 years, along with all consequential service benefits including the due promotional and monetary benefits with due interest till date, to the petitioner.” 2. The case of the petitioner is that he is physically impaired person with more than 50% permanent orthopedic impaired-ness. He joined the service of the respondent-State as a Clerk, in the year 1979. Vide office memorandum dated 29.03.2013, the respondent-State has enhanced the age of retirement of blind Government employees from 58 to 60 years. Said Office Memorandum was challenged before the erstwhile Tribunal on the ground of discrimination and vide order dated 10.01.2018, passed by the erstwhile Tribunal in O.A. No. 1004 of 2015, titled Krishan Chand Versus State of Himachal Pradesh and others, Office Memorandum dated 29.03.2013 was held to be bad in law and a direction was issued to the State to modify the Memorandum dated 29.03.2013, to the extent that benefit of enhancement of retirement age be extended to the hearing impaired persons also, to which category the original applicant belonged. Thereafter, the petitioner filed O.A. No. 1013 of 2018, titled as Rattan Chand Versus State of Himachal Pradesh and others, before the erstwhile Tribunal, which was disposed of by the learned Tribunal vide order dated 30.11.2018, Annexure P-10, by issuance of a direction to the respondents to consider the case of the petitioner, in light of the adjudication made in Krishan Chand Versus State of H.P. (supra). In terms of Annexure P-19, the case of the petitioner was rejected by the Authority primarily on the ground that as the judgment passed in O.A. No. 1004 of 2015, titled as Krishan Chand Versus State of Himachal Pradesh and others, had not attained finality and not been implemented, therefore, the petitioner could not be conferred the benefit of enhancement of age. 3. 3. In the meanwhile, State challenged the order passed by the erstwhile Tribunal in Krishan Chand Versus State of H.P before this Court, by way of CWP No. 1577 of 2018, titled State of H.P. Versus Krishan Chand, which was dismissed by the Hon’ble Division Bench of this Court vide judgment dated 05.11.2018. Hon’ble Division Bench was pleased to hold that the issue in fact was no more res integra as it stood decided by the Hon’ble Division Bench of the Punjab and Haryana High Court, in LPA No. 1719 of 2011, titled as State of Punjab and others Versus Bhupinder Singh, decided on 25.09.2012, wherein the Court held that all persons suffering from one or other disability as defined in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as ‘the 1995 Act’), were entitled to be treated at par and they could not be treated differently from other disabled persons, falling within the definition of Section 2(i) of the 1995 Act, as all of them were belonging to one Class and there cannot be any sub-classification within the same Class. Hon’ble Division Bench also observed that the judgment of the Punjab and Haryana High Court was affirmed by the Hon’ble Supreme Court in Civil Appeal No. 8855 of 2014, decided on 16.09.2014. 4. The judgment of the Hon’ble Division Bench of this Court was unsuccessfully assailed by the State, before the Hon’ble Supreme Court. The SLP filed was dismissed by the Hon’ble Supreme Court vide Annexure P-11, order dated 13.09.2019. 5. Coming to the facts of this case, the petitioner was promoted to the post of Under Secretary (HPSS) of HP Secretariat vide Annexure P-4, i.e. notification dated 02.06.2016 and he retired as such from service on 31.07.2016. Feeling aggrieved by the fact that the petitioner was not granted the benefit of enhancement of the age of superannuation of 58 to 60 years, he filed Original Application No.1013 of 2018 before the erstwhile Administrative Tribunal. Feeling aggrieved by the fact that the petitioner was not granted the benefit of enhancement of the age of superannuation of 58 to 60 years, he filed Original Application No.1013 of 2018 before the erstwhile Administrative Tribunal. The Original Application was disposed of by the erstwhile Tribunal vide order dated 30.11.2018, in the following terms:- “In view of the above, the original application is disposed of in terms of the aforementioned judgment in CWP No.1577 of 2018-H, with a direction to the respondents/competent authority that subject to the above verification and on finding the applicant to be similarly situate as above, benefit of the said judgment, if the same has attained finality/implemented, shall also be extended to him alongwith consequential benefits, if any, as per law, within three months from the ate of production of certificate copy of this order alongwith copy of the aforesaid judgment before the said authority by the applicant.” 6. In compliance thereto vide order dated 19.07.2021, the case of the petitioner stands rejected by the authority by assigning the following reasons:- 8. WHEREAS, besides in accordance with the observations made by the Finance Department and in consultation with Learned Advocate General, HP the undersigned has also independently examined the matter of Shri Rattan Chand, HPSS (Retd). After careful examination of the entire matter, the undersigned is of the view that the matter of Shri Rattan Chand, HPSS (Retd) is not similarly placed to Shri Krishan Chand, Assistant Engineer (Retd). The Department of Personnel, Government of Himachal Pradesh, vide Notification No. 6-7/73-DP-Apptt (2015) dated 30.07.2015, notified the date of superannuation of Shri Rattan Chand, Deputy Secretary as 31-7-2016, but he neither filed any representation in accordance with the service norms nor did he approach the Hon'ble Court(s) before his superannuation on 31.07.2016. Evidently he neither challenged the notification ibid nor his resultant superannuation on 31.07.2016. Secondly, the aforesaid, Shri Rattan Chand,raised his claim for the first time after about 2 years of his superannuation, on 12.03.2018, by filing an OA No.1013 of 2018 before the erstwhile Hon’ble Himachal Pradesh State Administrative Tribunal at Shimla whereas, Sh. Evidently he neither challenged the notification ibid nor his resultant superannuation on 31.07.2016. Secondly, the aforesaid, Shri Rattan Chand,raised his claim for the first time after about 2 years of his superannuation, on 12.03.2018, by filing an OA No.1013 of 2018 before the erstwhile Hon’ble Himachal Pradesh State Administrative Tribunal at Shimla whereas, Sh. Krishan Cha(Retd.), had been relatively vigilant in pursuing his claim by filing an OA No.1004 of 2015 on dated 10.05.2015 i.e. before the date of his superannuation on 30.05.2015; Thirdly, Shri Rattan Chand, HPSS (Retd) had not actually worked on the post of Deputy Secretary due to his own acts, inactions and the omissions. 9. WHEREAS, the pay and allowances for the claimed extended period from 1-8-2016 to 31-7-2018 cannot be granted on the principle of no work no pay and Lastly the aforesaid Shri Rattan Chand, Retd (HPSS) is not entitled to arrears of pay and allowances for the claimed extended period from 1-8-2016 to 31-7-2018 in view of the provision of Fundamental Rule 17 (1) which is reproduced here-in-below: "Subject to any exceptions specifically made in these Rules and to the provision of sub-Rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties: Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence." 10. WHEREAS, although on verification of records, it has been found that the applicant, Shri Rabtan Chand, HPSS (Retd) is not similarly placed to the case of Shri Krishan Chand, Assistant Engineer (Retd) 11. NOW THEREFORE, on verification of facts, the case of Shri Rattan Chand, HPSS (Retd), for granting financial benefits alongwith consequential relief w.e.f. 31.07.2016 till the age of retirement at the age of 60 years is hereby rejected, being devoid of merits and not tenable.” 7. Feeling aggrieved, the petitioner has filed this writ petition. 8. I have heard learned counsel for the parties and I have also carefully gone through the pleadings. 9. It is a matter of record that the petitioner indeed is a physically impaired person. Feeling aggrieved, the petitioner has filed this writ petition. 8. I have heard learned counsel for the parties and I have also carefully gone through the pleadings. 9. It is a matter of record that the petitioner indeed is a physically impaired person. He joined the service of the respondent-State as a Clerk in the month of July 1979 and superannuated on 31.07.2016. Though, the respondent-State has taken a stand that the petitioner did not superannuate from the post of Deputy Secretary, but their stand is falsified by (a) notification Annexure P-4, dated 02.06.2016, in terms whereof the petitioner was promoted to the post of Under Secretary HPSS of the Himachal Pradesh Secretariat and (b) averments made to this effect in Para-4 of the writ petition have not been denied in reply filed to this Para of the petition by the respondents. 10. Be that as it may, the fact of the matter is that in terms of the adjudication made by the Courts on memorandum dated 29.03.2013, a direction stood issued to the respondent-State to confer the benefit of enhancement in the age of superannuation to all employees who were physically impaired irrespective of the impairment being suffered by them. That being the case, the denial of the benefit of the age of superannuation to the petitioner in terms of stand taken by the State in impugned order dated 19.07.2021 is not sustainable in law. The petitioner cannot be denied the benefit of enhancement of age on the reasoning as stands assigned in office order dated 19.07.2021, that he did not file any representation or approach the Court before his superannuation. Once the law stands declared that the benefit of office memorandum dated 29.03.2013, was extendable to all physically impaired employees of the Government of Himachal Pradesh, then, the employees, who were covered by this notification are legally entitled to the benefit thereof de-hors of the fact as to whether they make any representation or not. 11. Once the law stands declared that the benefit of office memorandum dated 29.03.2013, was extendable to all physically impaired employees of the Government of Himachal Pradesh, then, the employees, who were covered by this notification are legally entitled to the benefit thereof de-hors of the fact as to whether they make any representation or not. 11. Besides this, here is a case, where the memorandum itself was a beneficial piece of executive order passed by the State and that being the case coupled with the fact that it further stood interpreted by the Courts so as to take within its ambit, all those, who were physically disabled, the State after having lost the upto the Hon’ble Supreme Court of India, was bound as a model employer to extend similar benefit to all similarly situated persons. Further reasoning given in the impugned order that the petitioner is not entitled for the benefit as he has not served from 2016 to 2018, is also not sustainable in law, because, it is the Department, which did not allow the petitioner to serve from 2016 to 2018. Once it retired the petitioner w.e.f. 31.07.2016, for its own act, the Department cannot blame the petitioner. 12. Accordingly, in view of the above discussion, this writ petition is allowed. Order dated 19.07.2021 is held to be bad in law and is hereby quashed and set aside and the respondents are directed to grant the benefit of enhancement of retirement age from 58 to 60 years in favour of the petitioner alongwith all consequential benefits with interest @ 6% per annum. Pending miscellaneous applications, if any, also stand disposed of.