Himachal Pradesh High Court
Government Middle School vs State Of H. P. And on 10 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 10th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 3187 OF 2019
Between:-
KRISHNOO RAM,
BABOO RAM SON OF LATE SHRI
r AGED
YEARS, RESIDENT OF VILLAGE
57
PANJALI KHURD, POST OFFICE
SIKROHA, TEHSIL SADAR
BILASPUR, H.P. PRESENTLY
POSTED AS CLASS IV AT
GOVERNMENT MIDDLE SCHOOL
JAMLA, DISTRICT BILASPUR,
H.P.
...PETITIONER
(BY SH. TARA SING CHAUHAN, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ADDITIONAL CHIEF
SECRETARY (EDU) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-2.
2. DEPUTY DIRECTOR HIGHER
EDUCATION, BILASPUR,
DISTRICT BILASPUR, HIMACHAL
PRADESH.
3. PRINCIPLE GOVERNMENT
SENIOR SECONDARY SCHOOL
NAMHOL, DISTRICT BILASPUR.
...RESPONDENTS
(SH. ASHOK KUMAR, ADVOCATE
GENERAL, SH. SHIV PAL
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2
MANHANS, SH. HEMANSHU
MISRA, ADDITIONAL ADVOCATE
GENERALS AND SH. BHUPINDER
.
THAKUR, DEPUTY ADVOCATE
GENERAL, FOR RESPONDENTS
NO. 1 TO 3.)
This Petition coming on for orders this day, Hon'ble Mr. Justice
Tarlok Singh Chauhan, passed the following:-
ORDER
The instant petition has been filed for the grant of
following substantive reliefs:-
"It is, therefore, respectfully prayed that this writ
petition may kindly be allowed and respondents may
be directed to grant the benefits of enhanced
retirement age of the disabled employees from 58 to
60 years to the petitioner.
2. Annexure P-5 appended with the petition is an office
memorandum dated 29.03.2013, enhancing the retirement age
of the Blind Government servants from 58 to 60 years. That has
now been withdrawn by the State Government vide office
memorandum dated 04.11.2019.
3. This action of the government has already been
upheld by this Court in a batch of petitions lead case being CWP
No. 851 of 2020 titled as Ses Ram vs. State of H. P. and
others, decided on 31.07.2020, wherein it was observed as
under:-
"3(i).At the outset, it may be noticed that OM dated
29.03.2013 was issued by State in exercise of its
Administrative/Executive Power. Therefore, there was no
legal embargo upon the respondents/State to withdraw
.
the same by subsequently issuing another office
memorandum on 4.11.2019. The administrative or
executive power of the respondents/State to issue OM
dated 4.11.2019 cannot be questioned.
3(ii) Learned counsel for the petitioners relied upon
following para of the judgment in (2007) 6 SCC 196 titled
Union of India vs. A.S. Gangoli & others:-
"11. There is considerable force in the submission
of the appellant. Varying periods of weightage are
added to the qualifying service of defence service
officers to compensate for, or offset the
disadvantage of early age of superannuation in
r defence service. The weightage of 7 years for a
Group Captain is because he normally retires
from Air Force Service at a comparatively early
age of 52 years. If a Group Captain is permitted
to prematurely retire so that he can be
permanently absorbed immediately in a public
sector undertaking where the retiring age is 58 or
60, the need to provide weightage disappears.
Further, special provisions were made for such
retirees under the circulars dated 17.3.1986 and
19.2.1987. They directed that premature
retirement, to take up employment under PSUs,
with the permission of the Government, will not
entail forfeiture of service or retirement benefits.
In such cases, the officer is deemed to have
retired from the date of premature retirement
and eligible to receive the retirement benefits,
enumerated in those circulars. Therefore, the
decision not to extend the benefit of weightage to
those who retired prematurely for immediate
permanent absorption in a PSU or autonomous
body is a matter of policy of the government
supported by logical reasons. So long as such
policy is not manifestly arbitrary and does not
violate any constitutional or statutory provision, it
is not open to challenge."
This judgment has no applicability for determining
the point involved in the instant case. Also the judgment
delivered by this Court in CWP No.1577/2018 was in the
backdrop of facts as they existed at that time, where the
State by way of OM dated 29.3.2013 had enhanced the
.
retirement age of its blind employees from 58 to 60
years. Since all persons with physical disabilities
constituted a homogeneous class, therefore, the benefit
of enhancement in the age of superannuation extended
by erstwhile H.P. Administrative Tribunal to certain other
categories of persons with disabilities, was upheld.
Situation in these writ petitions is different. State has now
withdrawn OM dated 29.03.2013. OM dated 29.03.2013
cannot be saved on the strength of judgment delivered in
CWP No.157/2018.
3(iii) A three judge Bench of Hon'ble Apex Court in State
of Uttar Pradesh and others Vs. Hirendra Pal Singh
& others, reported in (2011) 5 SCC 305, quashed the
interim orders of the High Court, which had directed the
Government to restore 62 years as the age of
superannuation for Government pleaders. Hon'ble Apex
Court held that fixation of the retirement age falls within
exclusive domain and competence of the State and that
Courts should not interfere with such decision, unless
they were unconstitutional. Relevant extracts from para-8
are as under:-
"8. ................. So far as the issue of reduction of
age from 62 to 60 years is concerned, it has not
been brought to the notice of the High Court that
it is within the exclusive domain of the State
Government to reduce the age even in
Government services. So in case of purely
professional engagement, the age could validly be
reduced by the State Government unilaterally."
In the afore referred judgment, previous judgments in
Bishun Narain Misra Vs State of U.P. (AIR 1965 SC
1567), Roshan Lal Tandon Vs. Union of India (AIR
1967 SC 1889), K. Nagaraj Vs. State of A.P. (AIR 1985
SC 551), were also noticed as per following extracts:-
.
"9. A Constitution Bench of this Court in Bishun Narain
Misra v. The State of Uttar Pradesh & Ors., AIR 1965 SC
1567 held that new rule reducing the age of retirement
from 58 to 55 years could neither be invalid nor could
be held to be retrospective as the said rule was a
method adopted to tide over the difficult situation
which could arise in public services if the new rule was
applied at once and also to meet any financial
objection arising in enforcement of the new rule.
10. In Roshan Lal Tandon v. Union of India & Ors., AIR
1967 SC 1889, a similar view has been reiterated by
this Court observing that emoluments of the
Government servant and his terms of service could be
altered by the employer unilaterally for the reason that
conditions of service are governed by statutory rules
r which can be unilaterally altered by the Government
without the consent of the employee. (See also B.S.
Vadera v. Union of India & Ors., AIR 1969 SC 118; The
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.,
AIR 1974 SC 1; B.S. Yadav & Ors. v. State of Haryana &
Ors., AIR 1981 SC 561; and State of Jammu & Kashmir
v. Shiv Ram Sharma & Ors., AIR 1999 SC 2012).
11. In K. Nagaraj & Ors. v. State of Andhra Pradesh &
Anr. etc., AIR 1985 SC 551, this Court examined the
amended provisions of Andhra Pradesh Public
Employment (Regulation of Conditions of Service)
Ordinance, 1983 by which the age of retirement was
reduced from 58 to 55 years and this Court upheld the
amended provisions being neither arbitrary nor
irrational. The court further rejected the submission of
the appellants therein that the said amended
provisions would have retrospective application taking
away their accrued rights. (See also State of Andhra
Pradesh etc. etc. v. S.K. Mohinuddin etc. etc., AIR 1994
SC 1474).
12. In view of the above, it is evident that even in
government services where the terms and conditions of
service are governed by the statutory provisions, the
Legislature is competent to enhance or reduce the age
of superannuation. In view of the above, it is beyond
our imaginations as why such a course is not
permissible for the appellant-State while fixing the age
of working of the District Government Advocates."
3(iv) It is well settled that in order for executive
instructions to have the force of statutory rules, it must
be shown that they have been issued either under the
authority conferred on the State Government by some
.
statute or under some provision of the constitution
providing therefore. In the instant case the OMs in
question have not been issued either under the authority
conferred on the State Government by some statute or
under some provision of the constitution, therefore, it has
to be held in the nature of administrative instructions and
not statutory rules. Petitioners have no vested right to
remain in Government employment upto the age of 60
years. Their entitlement to continue upto the age of 60
years was only under OM dated 29.03.2013, which stands
withdrawn vide office OM dated 4.11.2019. Both the office
memorandums were issued by the State in exercise of its
administrative power. In (2004) 1 SCC 592, titled
Sureshchandra Singh and others Vs. Fertilizer
Corporation of India Ltd and other, Hon'ble Apex
Court held that the Courts cannot issue a writ for
enforcement of administrative instruction and that office
memorandums are only administrative directions not
having force of law.
In P.U. Joshi and others Vs. Accountant General and
others (2003) 2 SCC 632, it was held that question
relying to constitution pattern, nomenclature of posts,
cadres, categories, their creation/abolition, prescription of
qualifications and other conditions of service including
avenues of promotions is all within the exclusive
discretion and jurisdiction of the State subject to the
limitation or restriction envisaged in the Constitution of
India.
3(v) Petitioners cannot insist for continuing in service
upto the age of 60 years on the strength of OM dated
29.03.2013. This OM did not create any right much-less
any vested right in their favour. It cannot be enforced in
exercise of writ jurisdiction of this Court. More so when
.
this OM has been withdrawn by the State by issuing
another OM. The respondents/State had the power to
issue the OM as well as the power to withdraw it later by
issuing another OM. It has not demonstrated before us
that OM issued on 4.11.2019 was unconstitutional.
The fixation of retirement age of persons with disabilities
is within the domain of the State Government. Vide
earlier OM dated 29.03.2013 the retirement age for the
blind government employees was enhanced from 58 to 60
years. Benefit of OM dated 29.03.2013 was later accorded
to certain other categories of differently abled persons.
However OM dated 4.11.2019 has withdrawn OM dated
29.03.2013. As of now, age of retirement of persons with
disabilities is 58 years. It is not the case of the petitioners
that they have been discriminated with any other
category. It is not the case of the petitioners that they
have not been paid for the work they did while in service
beyond the age of 58 years. It is also not the case of the
petitioners that recovery of any kind is being effected
from them pursuant to OM dated 4.11.2019. It is not the
case of the petitioners that they have any vested right to
continue in service till the age of 60 years. Petitioners
have failed to point out as to how OM dated 4.11.2019 is
illegal, arbitrary or unconstitutional.
4. Since, the question raised in this petition is no longer
res integra in view of the aforesaid judgment, therefore, we find
no merit in this petition and the same is accordingly dismissed,
so also pending application(s), if any. Parties are left to bear their
own costs.
.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
10 th
August, 2021 Judge
(sanjeev)
r to
