Himachal Pradesh High Court
Randeep Singh vs State Of H.P. & Ors.) on 5 August, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 5th DAY OF AUGUST 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION(ORIGINAL APPLICATION) No. 1059 OF 2019
Between:-
RANDEEP SINGH
S/O SHRI SUNDER SINGH
R/O KATHLA-JOHRI,
PO DARO-DEVRIA, TEHSIL PACHHAD,
DISTRICT SIRMOUR, PRESENTLY POSTED AS
PEON, DFO OFFICE RAJGARH,
DISTRICT SIRMOUR, H.P.
.....PETITIONER
(BY SH. M.L. SHARMA, ADVOCATE)
AND
1. PRINCIPAL SECRETARY (FOREST) TO THE
GOVERNMENT OF HP, SHIMLA- 171002.
2. PRINCIPAL CHIEF CONSERVATOR OF FORESTS,
TALLAND, SHIMLA-2.
3. DIVISIONAL FOREST OFFICER,
FOREST DIVISION RAJGARH,
DISTRICT SIRMOUR, H.P.
.....RESPONDENTS
(BY SH. GOURAV SHARMA, DEPUTY
ADVOCATE GENERAL)
Whether approved for reporting?
__________________________________________________
This petition coming on for admission this day,
the Court passed the following:
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2
ORDER
The petitioner has filed the instant petition for the grant .
of following substantiative relief:-
"1. To quash office order dated 28.12.2011 Annexure-P/5 being arbitrary and illegal and in violation of the principles of natural justice."
2.1. The case of the petitioner is that he had joined the service as Peon on daily wages on 02.08.1990 in Forest Division Rajgarh, District Sirmour, H.P. He completed 10 years of continued service with more than 240 days in each calendar year on 1.1.2001.
The petitioner filed writ petition bearing CWP No.3878/2010, wherein directions were issued to the respondents to accord work-charged status to the petitioner w.e.f. 1.1.2001. Consequently, the petitioner was granted work charged status retrospectively w.e.f. 1.1.2001.
2.2. The further case of the petitioner is that he was to retire on completion of 60 years of age and not on completion of 58 years of age. In respect of this grievance, the petitioner instituted CWP No.8367/2010 and consequent thereto the respondents issued an order dated 8.3.2011 fixing the date of retirement of the petitioner as 31.12.2012 i.e. when he was to complete 60 years of age.
2.3. The grievance of the petitioner is that on 28.12.2011 (Annexure P/5), the date of retirement of the petitioner was preponed ::: Downloaded on - 06/08/2022 20:02:13 :::CIS 3 from earlier fixed date of 31.12.2012 to 31.12.2011 without issuing any show cause notice to him.
.
3. Having heard learned counsel for the petitioner and learned Deputy Advocate General, I am of the considered view that the matter in question is squarely covered by the judgment dated 22.02.2022 passed by a Full Bench of this Court rendered in lead case bearing CWP No.2711/2017 (Baldev Vs. State of H.P. & Ors.) alongwith other connected matter . The operative part thereof reads as under:-
"7. There is now no confusion regarding employees falling in para 6(ii)(a) above. These employees can continue to serve till they attain the age of 60 years. However, an anomalous situation has developed amongst the employees falling in para 6(ii)(b) & 6(ii)(c). The employees falling in above para 6(ii)(b) and 6(ii)(c) for all practical purposes belong to the same category and are similarly situated. Both sets of employees were engaged on daily wage basis prior to 10.05.2001 and regularized after 10.05.2001. Such of the employees engaged on daily wage basis prior to 10.05.2001 and regularized after 10.05.2001, if were in service on 21.02.2018, will continue to serve till they attain the age of 60 years. On the other hand, such of the employees, who were engaged on daily wage basis prior to 10.05.2001 and regularized after 10.05.2001, but have retired before the issuance of notification dated 21.02.2018, will not get the benefit of notification dated 21.02.2018. This to our mind is wholly discriminatory. Similarly situated employees are being treated differently. The employees, who were engaged on daily wage basis prior to 10.05.2001 and regularized after ::: Downloaded on - 06/08/2022 20:02:13 :::CIS 4 10.05.2001, constitute one homogenous class. Differential treatment to the employees falling in same homogenous class is impermissible. In fact, amendment carried out in .
F.R. 56(e) on 21.02.2018 suggests that the date of regularization will have no impact upon the superannuation age. Date of engagement is the determinative factor. If a daily wager is engaged prior to 10.05.2021, then he is entitled to serve till 60 years of age irrespective of date of his regularization. This was held so in Bar Chand's case, decided on 21.10.2010. However, at the time of decision in Bar Chand's case, the amendment dated 21.02.2018 had not been carried out in F.R. 56(e). Therefore, though later judgment in Chuni Lal's case dated 22.11.2011, holding the decision in Bar Chand's case as per incuriam cannot be faulted as it was based upon strict interpretation of F.R. 56(e) as amended by the State at that time. However, in view of subsequent amendment of F.R. 56(e) on 21.02.2018 in the interregnum, situation has undergone further change. Reference made to the larger Bench is not only to decide about the inconsistency in the decisions referred therein, but also to put at rest related issues coming or likely to arise before different benches. Therefore, we hold that:-
(i). There is an apparent inconsistency or conflict between the decisions referred to in the reference order dated 28.12.2019, which lies in a very narrow compass, as noticed in para 6(i) above. In Chuni Lal's case, the decision rendered in Bar Chand's case was held to be per incuriam. The decision in Chuni Lal's case was based upon interpretation of F.R. 56(e) as it existed in the State at that time. But the judgment delivered in Tara Chand's case did not notice the decision in Chuni Lal's case.
The judgment in Gian Singh's case in respect of ::: Downloaded on - 06/08/2022 20:02:13 :::CIS 5 continuation in service was based upon the verdict in Tara Chand's case. In both these judgments, learned Single Judges did not notice the judgment delivered in .
Chuni Lal's case. In Letters patent appeal, the Division Bench while affirming the judgment passed by the ld. Single Judge in Gian Singh's case though did not notice the judgment rendered in Chuni Lal's case however the amendment dated 10.5.2001 reducing the superannuation age from 60 to 58 years was held to be not applicable to the writ petitioner, who was held entitled for regularisation prior to 10.5.2001.
(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 ::: Downloaded on - 06/08/2022 20:02:13 :::CIS 6 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.
Reference is accordingly answered. The writ petitions be now placed appropriately before the respective Benches."
Therefore without going into the merits of the case, the instant writ petition is disposed of by directing the respondents to consider the case of the petitioner in light of the aforesaid judgment within a period of six weeks from today, by passing a reasoned order, which shall be communicated to the petitioner. Pending miscellaneous application(s), if any, shall also stand disposed of.
Jyotsna Rewal Dua Judge 05th August 2022 (rohit) ::: Downloaded on - 06/08/2022 20:02:13 :::CIS