Himachal Pradesh High Court
Jagdish Chand vs State Of H. P. & Ors on 6 May, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWPOA No. 7069 of 2020
.
Date of decision: 06.05.2024
Jagdish Chand ...Petitioner
Versus
State of H. P. & Ors. ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No.
For the Petitioner: Mr. Pawnish K. Shukla, Advocate.
For the Respondents: Mr. Anup Rattan, A.G. with Ms. Sharmila
Patial, Addl. A.G. and Mr. Raj Negi, Dy.
A.G.
Tarlok Singh Chauhan, Judge (Oral)
The instant petition has been filed for grant of the following substantive reliefs:-
"(a) That the impugned act of the State not granting the benefit of enhancement of superannuating age from 58 to 60 years to all the categories of disabled government employee as specified under Section 2(i) of the persons with disability (Equal Opportunities, Protection of rights and full participation) Act, 1995 and limiting the same to the blind Government Employee only as per the notification dated 29.03.2013 may kindly be declared illegal, unconstitutional, arbitrary, malafide, against the principle of service jurisprudence, natural justice and legitimate expectation and against the spirit of persons with disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995.::: Downloaded on - 08/05/2024 20:30:56 :::CIS 2
(b) That the impugned act of the respondent department superannuating the application at the age of 58 years on .
30.06.2019 (Annexure A-3) may kindly be declared illegal, arbitrary, unconstitutional and against the Rules of service jurisprudence and may kindly be set aside and quashed in the interest of justice.
(c) That the present original application may kindly be allowed and directing the respondents to modify the notification/office memorandum dated 23.03.2013 and extend the benefit of enhancement of retirement age to all categories of disabled Government Employee as specified under Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
(d) That the respondents may kindly be directed to grant all monetary benefits to the applicant from the due date with interest @ 9% per annum."
2. It is not in dispute that vide notification dated 29.03.2013, the State granted visually impaired persons the benefit of enhancement of superannuation age from 58 to 60 years. The petitioner who was having 50% permanent physical disability of locomotor was not extended the said benefit and aggrieved thereby has filed the instant petition.
3. The issue in question is no longer res integra in view of the judgment rendered by the Division Bench of this Court in CWP No. 1577 of 2018, titled as State of H.P. & Ors. vs. Krishan Chand.
::: Downloaded on - 08/05/2024 20:30:56 :::CIS 34. It shall be apt to reproduce paras 2 to 6 thereof which reads as under:-
.
2. The facts are not in dispute. The respondent was appointed as Junior Engineer in the Public Works Department vide order dated 20.01.1984 in the physically handicapped category. The respondent was subjected to medical examination and as per the "medical certificate for physically handicapped" dated 06.04.2008, he was found suffering with permanent hearing impairment to the extent of 75%. The respondent was subsequently vide order dated 17.10.2014, promoted from the post of Junior Engineer to Assistant Engineer.
3. Meanwhile, the Government of Himachal Pradesh vide memorandum dated 29.03.2013, took a policy decision, whereby the retirement age of blind government employees, was enhanced from 58 to 60 years.
4. The respondent raised a claim that all the differently abled persons constituted one homogeneous class, hence the benefit of enhancement in retirement age should be extended to them including him. As the State Government did not accept the respondent's claim, he approached the Himachal Pradesh Administrative Tribunal. Learned Tribunal relied upon a Division Bench judgment of the Punjab & Haryana High Court in the case of State of Punjab & Others Vs. Bhupinder Singh in LPA No. 1719 of 2011 decided on 25.09.2012, where also an identical issue was raised with reference to the legislative policy of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Court held that all persons suffering one or the other disability as defined in the Act, were entitled to be treated at par and they could not be treated differently for other ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 4 disabled persons, falling within the definition of 2(i) of the Disabilities Act, as all of them form one class and there .
cannot be any sub-classification within the same class.
The above cited judgment of the Punjab & Haryana High Court was later on affirmed by the Hon'ble Supreme Court in Civil Appeal No. 8855 of 2014 (State of Punjab and Others vs. Bhupinder Singh), decided on 16.09.2014.
5. We thus find that the issue sought to be raised is no longer res-integra and has been effectively answered against the petitioner-State by the High Court of Punjab and Haryana in the afore-cited judgment.
6. No case to interfere with the order passed by the Tribunal is thus made out."
5. Identical issue thereafter came up for consideration before another Coordinate Bench of this Court in CWPOA No. 5333 of 2020, title as Janmej Singh vs. State of H.P. & Ors.
alongwith connected matter, decided on 14.09.2023, wherein too the petitioner(s) like the instant case was locomotor impaired and has sought benefit of the notification dated 29.03.2013, while allowing the petition, it was observed as under:-
6. Learned counsel for the petitioner has submitted that as per Office Memorandum dated 29.03.2013, Blind Government Employees were held entitled to continue in service upto the age of 60 years. As per the provisions of the Act, petitioner, who was suffering from locomotor disability, was also liable to be treated at par with Blind Government Employees. The petitioner was retired by the ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 5 Department on attaining the age of 58 years vide order dated 30.09.2018. Since at the time of retirement of the .
petitioner, Office Memorandum dated 29.03.2013 was still in force, petitioner was entitled to continue in service upto the age of 60 years. In support of this argument, learned counsel has placed reliance on judgment dated 25.05.2011 of the High Court of Punjab & Haryana, in CWP No. 7233 of 2010 titled as Bhupinder Singh vs. State of Punjab and others. It has been submitted by the learned counsel that the said decision was upheld by the Supreme Court.
7. Like case in hand, State of Punjab had issued Circular dated 16.02.1996, raising the age of retirement of Blind State Government Employees from 58 years to 60 years, subject to their being declared physically and mentally fit after the age of 58 years. A similar Office Memorandum was issued on 29.03.2013 by the State of Himachal Pradesh, which reads as under:-
"The undersigned is directed to refer to the subject cited above and to say that the matter for enhancement in the retirement age from 58 years to 60 years in respect of blind government Employees was under consideration of the Government for some time past. After careful consideration of the matter, the Governor, Himachal Pradesh is pleased to order that the retirement age of the Blind Government Servants is enhanced from 58 years to 60 years with immediate effect."
8. Thus, State of Punjab as well as State of Himachal Pradesh had enhanced the retirement age of Blind Government Employees from 58 years to 60 years.
::: Downloaded on - 08/05/2024 20:30:56 :::CIS 69. Bhupender Singh filed CWP No.7233 of 2010 in the High Court of Punjab & Haryana at Chandigarh, alleging that he .
was a Government employee and was suffering from locomotor disability. His age of retirement was also liable to be enhanced from 58 years to 60 years as had been done in the cases of Blind Government employees as there could be no discrimination between the persons suffering from disability in view of the provisions of the Act.
10. It was argued that as per Section 2(i) of the Act, 'disability' means blindness, low vision, leprosy cured, hearing impairment, locomotor disability, mental retardation and mental illness, therefore, all the persons, who had been defined in the term 'disability', were entitled to be treated equally.
11. The writ petition filed by Bhupinder Singh was allowed by the learned Single Judge of High Court of Punjab & Haryana, vide order dated 25.05.2011. Operative part of the order reads as under:
"In my humble opinion the Circulars (Annexures P-2 & P-3) confining the benefit of enhancement of retirement age only to blind persons tends to discriminate between different categories of the persons suffering with disabilities. The benefit of Circular is thus required to be expanded and extended to all physically disabled persons as well. These Circulars are administrative in nature and the Govt. cannot discriminate by its executive or administrative action. In view of the above, this petition is allowed. Respondent-State is directed to suitably modify the Circulars (Annexures P-2 & P-3) and extend the benefit of enhancement of age to all ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 7 categories of disabled Govt. employees as specified under Section 2(i) of the Disability Act in tune and .
spirit of the Act. The petitioner has been retired at the age of 58 years. It is more than one year that the petitioner has retired. I leave it to the wisdom of the State to re-induct the petitioner into service for the rest of period of retirement up to age of 60 years, however, petitioner shall be entitled to emoluments for extended period of retirement. He shall be deemed to have retired at the age of 60 years and will be entitled to all consequential benefits."
12. The order passed by learned Single Judge in Bhupinder Singh's case was upheld by a Division Bench of Punjab & Haryana High Court in LPA No.1719 of 2011, filed by the State vide order dated 25.09.2012. Operative part of the order reads as under:-
"Thus, with the enactment of the Disability Act, all such disabled persons, irrespective of the nature of their disabilities, are to be treated equally and at par.
The Disability act places responsibility on the society to make adjustments for disabled people so that they overcome various practical, psychological and social hurdles created by their disability. The Act places disabled people at par with other citizens of India in respect of education, vocational training and employment. The Act seeks to establish a coherent and comprehensive framework for the promotion of just and fair policies and their effective implementation. It creates formal procedures, which hasten the process of full and total integration of the disabled in the society. It also aims at facilitating efficient enforcement of policies and permits strong measures against the law-breakers. The main aim of ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 8 PWD Act is also to define the responsibilities of the Central and State Governments with regard to the .
services for disabled persons. The Act aims to ensure full life to a disabled individual so as to enable him to make full contribution in accordance with his disability condition. The aforesaid discussion would amply demonstrate that it is not only the statutory but constitutional right of persons suffering from disabilities to get special treatment recognized by law. In this process, persons suffering from one disability cannot be treated differently from other kind of disability. All disabled persons falling within the definition of Section 2(I) of the Disability Act form one class. There cannot be sub-classification within this same class."
13. Thereafter, State went up in appeal before the Supreme Court and the said Civil Appeal No.8855 of 2014 was dismissed vide order dated 16.09.2014. The said order reads as under:-
"Leave granted. The issue, which raised for consideration in this batch of cases, pertains to the question, whether the benefit of extension in service from 58 years to 60 years granted to blind or visually impaired employees of the State Government, should be extended to persons suffering from other disabilities mentioned under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Disabilities Act'). The aforesaid issue has been answered by a Division Bench of the Punjab and Haryana High Court in the affirmative. We fully endorse the aforesaid determination rendered by the High Court, and also affirm the reasons recorded in ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 9 arriving at the aforesaid determination. All the same, we would record our restriction/limitation to the .
determination rendered by the High Court. On the issue of employment, the Disabilities Act contemplates reservation through Section 33 for three types of disabilities. Firstly, persons suffering from blindness or low vision. Secondly, persons suffering from hearing impairment. And thirdly, persons suffering from locomotor disability or cerebral palsy. For equal opportunity and protection of rights in employment, only the above three categories of disabilities have been recognized by the Disabilities Act. On a reference to the provisions of the Disabilities Act, therefore, equality is sustainable only in respect of the three categories specified in Section 33 of the Disabilities Act. In fact, learned counsel for the respondents also endorse the above position. In order to dissuade this Court from accepting the reasoning expressed in the impugned orders, learned counsel for the appellants invited our attention to a decision rendered by this Court in Union of India vs. Devendra Kumar Pant and others, (2009) 14 SCC 546. The question that arose for consideration in the aforesaid judgment pertains to promotion. That is not the case here. The benefit granted by the High Court pertains to the respective employment in which a disabledrespondents also endorse the above position. In order to dissuade this Court from accepting the reasoning expressed in the impugned orders, learned counsel for the appellants invited our attention to a decision rendered by this Court in Union of India vs. Devendra Kumar Pant and others, (2009) 14 SCC 546. The question that arose for consideration in the aforesaid judgment pertains ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 10 to promotion. That is not the case here. The benefit granted by the High Court pertains to the respective .
employment in which a disabled employee has been engaged. In that view of the matter, the judgment relied upon by the learned counsel for the appellants is not applicable to the facts and circumstances of this case. Our above view is based on the fact, that the issue of discrimination adjudicated upon by the High Court, relates to employees who were already engaged in government service. There is no dispute about their ability to discharge their duties, against the posts on which they were employed. The benefit if extended to the categories of disabilities for which reservation in employment has been contemplated under the Disabilities Act would not cause any administrative inconvenience to the appellants. For the reasons recorded hereinabove, the instant appeals are disposed of in the above terms, with no order as to costs."
6. Thus, on the basis of the notification dated 29.03.2013, it can conveniently be held that the petitioner would normally have been held entitled to continue to the age of 60 years, but the above said notification now stands withdrawn on 04.11.2019, therefore, on the basis of the ratio of the judgment as cited above, the petitioner is entitled to continue only up till 04.11.2019 and not till the completion of 60 years, as has authoritatively been held by this Court in a batch of petition lead case whereof CWP No. 851 of 2020, titled as Ses Ram vs. ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 11 State of H.P. & Ors., decided on 31.07.2020, as held in Janmej Singh case (supra).
.
7. It shall be apt to reproduce the relevant observations as contained in paras which reads as under:-
17. Accordingly, the petitioner is held entitled for continuation in service till attaining the age of 60 years.
18. It is an admitted fact that petitioner stands retired on 30.09.2018, on attaining the age of 58 years, whereas in terms of the Office Memorandum dated 29.03.2023 and pronouncements of Courts, petitioner was entitled for serving up till the age of 60 years, i.e., 30.09.2020.
19. It is apt to notice and record that Office Memorandum dated 29.03.2013 was withdrawn vide Office Memorandum dated 04.11.2019, and clarificatory Office Memorandum dated 22.2.2020 was also issued in this regard. These Office Memorandams read as under:
Office Memorandum dated 29.3.2013: "No.Fin(C)-A(3)-2/2013 Government of Himachal Pradesh Finance (Regulations) Department Dated Shimla-171002 29th March, 2013 OFFICE MEMORANDUM Subject: Regarding enhancement of retirement age from 58 years to 60 years in respect of blind government employees.
The undersigned is directed to refer to the subjected cited above and to say that the mater for enhancement in the retirement age from 58 years to 60 years in respect of ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 12 blind government Employees was under consideration of Government for some time past. After careful .
consideration of the matter, the Governor, Himachal Pradesh is pleased to order that the retirement age of the Blind Government Servants is enhanced from 58 years to 60 years with immediate effect.
Special Secretary (Fin) to the Government of Himachal Pradesh"
Office Memorandum dated 4.11.2019:
"No.Fin(C)-A(3)-2/2013 Government of Himachal Pradesh Finance (Regulations) Department Dated Shimla-171002, the 4th Nov., 2019 OFFICE MEMORANDUM Subject: Regarding retirement age in respect of blind Government employees of the State Government.
The undersigned is directed to refer to this department Office Memorandum of even number dated 29th March, 2013 on the above cited subject vide which retirement age from 58 years to 60 years in respect of blind Government employees was enhanced. Now after careful consideration of the matter the Governor, Himachal Pradesh is pleased to order that this Office Memorandum dated 29.03.2013 be hereby withdrawn with immediately effect, in public interest.
Special Secretary (Fin) to the Government of Himachal Pradesh"
Office Memorandum dated 22.2.2020:
"No.Fin(C)-B(15)-14/2014 Government of Himachal Pradesh ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 13 Finance (Regulations) Department Dated Shimla-171002, 22.02.2020 .
OFFICE MEMORANDUM Subject: Clarification to regulate the cases of retirement age of blind government employees after issuance of OM No. Fin(C)- A(3)-2/2013 dated 04-11-2019.
I am directed to invite a reference to this Department O.M. No. Fin(C)-A(3)-2/2013 dated 04-11-2019 vide which the retirement age of blind Government servant(s) enhanced from 58 years to 60 years vide O.M. No. Fin(C)-A(3)-2/2013 dated 29-03-2013, has been withdrawn with immediate effect.
2. The Finance Department is receiving various references seeking clarification with regard to retirement of blind employees who have not been retired from services till date, after attaining the age of 58 years, in pursuance to OM No. Fin(C)-A(3)-2/2013 dated 04-11-2019.
3. In this regard, it is clarified that such incumbents shall be deemed to have retired from Government service on 04-11-2019 i.e. from the date of issuance of O.M. dated 04-11-2019. Those blind Government servants who are still in service even after 04-11-2019 shall be treated as re-employed w.e.f. 05-11-2019 onwards till the issuance of these instructions or till the termination of services, whichever is earlier. The pay of incumbent(s) for this period shall be regulated in terms of this Department's OM No.Fin(C)B(7)13/2009 dated 23-03-2017 and 25-03- 2017, as the case may be.
4. This clarification may be brought to the notice of all concerned for compliance.
Under Secretary (Finance) to the Government of Himachal Pradesh"::: Downloaded on - 08/05/2024 20:30:56 :::CIS 14
20. Admittedly, Office Memorandum dated 29.3.2013 was withdrawn vide Notification dated 4.11.2019 with .
immediate effect. Thereafter, Office Memorandum dated 22.2.2020 was issued by the Finance (Regulations) Department of the State Government whereby it was clarified that benefit of enhanced service after the age of 58 years, extended vide Office Memorandum dated 29.3.2013, shall be available upto withdrawal of Office Memorandum dated 29.3.2013, vide Office Memorandum dated 4.11.2019. It was further clarified vide Office Memorandum dated 22.2.2020 that the persons continuing in service even after 4.11.2019, in furtherance to Office Memorandum dated 29.3.2013, shall be considered as re-
employed by the Department w.e.f. 5.11.2019 till issuance of Office Memorandum dated 22.2.2020 or till the termination of services, whichever is earlier.
21. Therefore, right of employees, like petitioner, for continuing in service as per Office Memorandum dated 29.3.2013, read with pronouncements of the Courts, was in existence till 4.11.2019 and it stands extinguished with issuance of Office Memorandum dated 4.11.2019.
Therefore, petitioners shall be entitled for benefit of continuation in service, after age of 58 years, only till 4.11.2019.
8. Now the moot question which remains for consideration is whether the principle of no work and no pay is applicable to the present case, as it is vehemently contended by the learned Advocate General.
9. Even this question has been answered in Janmej case (supra), wherein it has clearly laid down that this principle ::: Downloaded on - 08/05/2024 20:30:56 :::CIS 15 of no work no pay would not apply as the petitioner had been prevented by the act of the respondents from serving up till 60 .
years of age or up to 04.11.2019.
10. It shall be apt to reproduce relevant observations which read as under:-
22. In present case, petitioner has been prevented by the act of respondents from serving up till 60 years of age or upto 04.11.2019, despite the fact that he was ready and willing to serve, therefore, principle of 'no work no pay' shall not be applicable in the present case as held in Union of India and others vs. K.V. Janki Raman, AIR 1991 SC 2010: (1991) 4 SCC 109: (1931) 3 SCR 790.
23. In view of the above, petitioner shall be entitled for full wages from 30.09.2018 till 04.11.2019 with all consequential benefits having impact on his pension.
11. In view of the aforesaid discussion, the present petition is allowed and the impugned order dated 04.06.2019 (Annexure A-3) is quashed and set aside. The petitioner shall be entitled for full wages from 01.07.2019 up to 04.11.2019, with all consequential benefits having impact on his pension.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
6 th
May, 2024 Judge
(sanjeev)
::: Downloaded on - 08/05/2024 20:30:56 :::CIS