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2024 DIGILAW 83 (HP)

Ram Krishan v. State of Himachal Pradesh

2024-01-12

RANJAN SHARMA

body2024
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents. 2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the peculiar facts as borne out from the pleadings. 3. The petitioners being Cloass-IV employees in the Forest Department, have filed the instant writ petition with the following prayers:- “(i) That the respondents may kindly be directed to grant the benefit of two years by considering the petitioners to be superannuated at the age of 60 years in terms of the judgment passed by this Hon’ble Court in Baldev Versus State of H.P. and others. (ii) That the respondents may kindly be directed to grant pension and pensionary benefits to the petitioners by counting two years in his continuous service w.e.f. 1997 and 2001 i.e. after the completed 8 years of continuous daily wage services.” 4. At the very outset learned counsel for the petitioners submits that they confine their 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 they 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 petitioners is that they were appointed as Forest Workers on daily wage basis in the year 1989 and 1993, respectively. In September, 2007, the respondents regularized the petitioners and they retired from service on attaining the age of 58 years on 31.03.2017 and 30.06.2016, respectively. 6. In the background of the above facts, Mr. Archna Dutt, learned counsel for the petitioner submits that once the petitioners were appointed as a Forest Worker under State Government in the years 1989 and 1993 then, the action of the respondents in retiring the petitioners as Class-IV, at the age of 58 years on 31.03.2017 and 30.06.2016 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 & ors., decided on 22.02.2022. 7. 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. 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. 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 petitioners submits that the petitioners have 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 petitioners shall retire at the age of 60 years, [on 31.03.2019 and 30.06.2018]; and the impugned order retiring the petitioners at the age of 58 years [on 31.03.2017 and 30.06.2016] 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 dated 27.06.2016 (Annexure P-1), retiring the petitioners at the age of 58 years [on 31.03.2017 and 30.06.2016] needs to be relooked into. 9. Per contra, Mr. Rajan Kahol, learned Additional Advocate General, submits that the petitioners was retired at the age of 58 years on 31.03.2017 and 30.06.2016 and they have filed the petition, when, the petitioners are 65 & 66 years of age. Therefore, as per him, only notional benefits can accrue to the petitioners and that too after examining/verifying the factual aspects. 10. Faced with this situation, learned counsel for the petitioners fairly submits, on instructions that he shall file a representation, pointing out all grievances to the respondent No.3-Divisional Forest Officer, Churah Foresh Division, Salooni, District Chamba, Himachal Pradesh within two weeks 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. 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 prayer then, the petitioners shall be deemed to be in service upto 60 years [on 31.03.2019 and 30.06.2018]; and even if, the petitioners have not actually worked beyond the age of 58 years (on 31.03.2017 and 30.06.2016) upto the age of deemed service/retirement of 60 years (i.e. on 31.03.2019 and 30.06.2018), then also, the petitioners 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 petitioners, in accordance with law. However, it is clarified that the present petition was filed on 10.01.2024; 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 rival contentions and 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.