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2024 DIGILAW 29 (HP)

Raksha Devi v. State of H. P.

2024-01-05

RANJAN SHARMA

body2024
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Vishal Panwar, learned Additional Advocate General and Mr. Chitranjan Kumar Sharma, Advocate, appear and waive service of notice on behalf of respondents No. 1 to 3 and respondent No.4, respectively. 2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the order(s) intended to be passed hereinafter. 3. The petitioner a Class-IV employee in the Higher Education Department, has filed the instant writ petition, seeking the following reliefs:- i) That the respondents may kindly be directed to count service as qualifying service of petitioner towards pension with effect from 26.5.2006 whereby granted whole time status followed by regularization without interruption and consequently she may be held entitled to pensionary benefits under CCS(Pension) Rules, 1972, with all consequential benefits; (ii) That the respondents may kindly be directed to extend the benefit of Apex Court judgment in Balo Devi vs. State of HP, reported in Latest HLJ 2022 (Vol-II) (HP) 817 and judgment dated 22.2.2022 in CWP No.2711/2021 titled as Baldev Singh Vs. State of H.P. Consequently the petitioner may be held entitled for deemed retirement upto the age of 60 years, with all consequential benefits;” 4. At the very outset learned counsel for the petitioner submits that he confines his prayer only qua the relief in CWP No.2711 of 2021, titled as Baldev versus State of Himachal Pradesh & Others, decided on 22.02.2022 passed by Full Bench of this Court, in these proceedings. He further submits that he may be granted liberty to claim the relief based on Sunder Singh and Balo Devi, in case, the same is admissible at any subsequent point of time hereinafter. 5. Case of the petitioner is that the she was appointed as a Part Time Water Carrier on 19.08.1997. She was granted Whole Time Status on 22.5.2006, Annexure P-2. On 8.9.2007, Annexure P-3, the respondents regularized the petitioner and she joined as such on 19.9.2007, and the petitioner retired from service on attaining the age of 58 years on 30.06.2015. 6. In the background of the above facts, Mr. She was granted Whole Time Status on 22.5.2006, Annexure P-2. On 8.9.2007, Annexure P-3, the respondents regularized the petitioner and she joined as such on 19.9.2007, and the petitioner retired from service on attaining the age of 58 years on 30.06.2015. 6. In the background of the above facts, Mr. Parkash Sharma, learned counsel for the petitioner submits that once the petitioner was appointed as a Part Time Water Carrier under State Government on 07.08.1997 then, the action of the respondents in retiring the petitioner as Class-IV Peon, at the age of 58 years on 30.06.2015 i.e. contrary to Office Memorandum issued under FR 56(e) as well as Full Bench of this Court, in CWP No. 2711 of 2017, titled as Baldev versus State of Himachal Pradesh and Others, decided on 22.02.2022. 7. The learned counsel submits that the issue as to whether an incumbent, who was engaged on daily wage basis prior to 10.05.2001 and was regularized on or after 10.05.2001 is entitled to continue in service upto the age of 60 years, as per Office Memorandum dated 11.05.2001, the amendments notified on 28.12.2019 and on 21/22-02-2018 under Fundamental Rule 56(e), stands adjudicated by the Full Bench of this Court in CWP No.2711 of 2017, titled as Baldev versus State of Himachal Pradesh & ors. decided on 22.02.2022, wherein it has been held in Paras 7(ii) & (iii) as under:- “(ii). Inconsistency between Bar Chand and Chuni Lal now stands, not just resolved, but rather dissolved, in view of notification dated 21.02.2018 amending F.R. 56(e), issued by the State, which has now reinforced and reiterated what was held in Bar Chand’s case, i.e. date of regularization of a class IV daily wager whether prior or after 10.05.2001, will make no difference to the age of his continuing in service. It is the date of engagement, which is the decisive factor. If date of engagement/appointment is prior to 10.05.2001, the Class-IV employee will continue to serve till 60 years of age. In case, it is later than 10.05.2001, then restriction in age upto 58 years will apply. (iii). There cannot be any discrimination amongst similarly situated Class-IV employees belonging to one homogenous class. If date of engagement/appointment is prior to 10.05.2001, the Class-IV employee will continue to serve till 60 years of age. In case, it is later than 10.05.2001, then restriction in age upto 58 years will apply. (iii). There cannot be any discrimination amongst similarly situated Class-IV employees belonging to one homogenous class. Therefore the retirement date, of such of those employees, who had been engaged on daily wage basis prior to 10.05.2001, but regularized after 10.05.2001 and have actually been retired prior to the issuance of notification dated 21.02.2018 at the age of 58 years, shall be deemed to be the date when they otherwise attained the age of 60 years. Since these employees have not actually worked beyond the age of 58 years, therefore, they will not be entitled to the actual monetary benefits of wages/salary etc. for the period of service from the date of their actual retirement till deemed dates of their retirement. However, they will be entitled to notional fixation of their pay for the period in question for working out their payable pension and payment of consequential arrears of pension accordingly.” 8. Notably once the petitioner submits that the petitioner has been appointed/engaged by the Respondent-Department prior to 10.05.2001, therefore, in terms of the Full Bench judgment of this Court in the case of Baldev Singh (supra), the petitioner shall retire at the age of 60 years, [on 30.06.2017]; and the impugned order retiring the petitioner at the age of 58 years [on 30.06.2015] does not conforms to the mandate of law refer to above. Accordingly, on the basis of the facts and discussion made hereinabove, the impugned order (Annexure P-4), retiring the petitioner at the age of 58 years [on 30.06.2015] needs to be relooked into. 9. Per contra, Mr. Vishal Panwar, learned Additional Advocate General, submits that the petitioner was retired at the age of 58 years on 30.06.2015 and he has filed the petition, when, the petitioner is 66 years of age. Therefore, as per him, only notional benefits can accrue to the petitioner and that too after examining/verifying the factual aspects. 10. Faced with this situation, learned counsel for the petitioner fairly submits, on instructions that she shall file a representation, pointing out all grievances to the respondent No.2-Director Higher Education, Himachal Pradesh within 10 days from today. Therefore, as per him, only notional benefits can accrue to the petitioner and that too after examining/verifying the factual aspects. 10. Faced with this situation, learned counsel for the petitioner fairly submits, on instructions that she shall file a representation, pointing out all grievances to the respondent No.2-Director Higher Education, Himachal Pradesh within 10 days from today. In case, any such representation is made, this Court directs the aforesaid respondent, to decide the representation and pass appropriate order(s), in the light of the Full Bench’s Judgment passed by this Court, in the case of Baldev Singh, (supra) and to extend the similar benefits as extended to other similar incumbents, within six weeks from today. 11. Upon consideration of the matter, in view of the mandate of law, in the case of Baldev Singh (supra), in case, the respondents accede to the prayed then, the petitioner shall be deemed to be in service upto 60 years [30.06.2017]; and even if, the petitioner has not actually worked beyond the age of 58 years (30.06.2015) upto the age of deemed service/retirement of 60 years (i.e. 30.06.2017), then also, the petitioner shall only be entitled to notional fixation of pay, for working out the pension and payment of consequential arrears of pension, which accrues or becomes payable to the petitioner, in accordance with law. However, it is clarified that the present petitioner was filed on 16.11.2023; therefore, in case, the prayer is acceded to then, actual monetary benefit shall accrue for a period three years prior to the filing of the instant petition. 12. Needless to say that, this Court has not adverted to the merits of the matter and all Questions of facts and law are left open. In aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.