Working As Deputy vs State Of H.P. And Others As
2021 Latest Caselaw 5571 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                 ON THE 4th DAY OF DECEMBER, 2021




                                                        .
                              BEFORE





           HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
                               &





                 HON'BLE MR. JUSTICE SATYEN VAIDYA
           CIVIL WRIT PETITION (ORIGINAL APPLICATION )
                         NO. 4912 OF 2020
     Between:-




     MANDI
                    r      to
     SHRI PAWAN KUMAR S/O LATE
     SH. BANSI RAM, R/O VILLAGE
     DHAR, POST OFFICE RAKHOH,
     TEHSIL SARKAGHAT, DISTRICT
              (H.P.), PRESENTLY

     WORKING       AS    DEPUTY
     DIRECTOR OF HORTICULTURE,
     HAMIRPUR,          DISTRICT
     HAMIRPUR (H.P.)


                                                      ...PETITIONER
     (BY SH. K. K. VERMA, ADVOCATE)

     AND




1.   STATE OF HIMACHAL PRADESH
     THROUGH       ITS   PRINCIPAL





     SECRETARY (HORTICULTURE) TO
     THE      GOVERNMENT        OF
     HIMACHAL PRADESH, SHIMLA-





     171002 (H.P.)
2.   DIRECTOR OF HORTICULTURE,
     HIMACHAL      PRADESH,   NAV
     BAHAR, SHIMLA-171002 (H.P.)
                                          ...RESPONDENTS
     (SH. ASHOK KUMAR, ADVOCATE
     GENERAL,   SH.   SHIV  PAL
     MANHANS,    SH.  HEMANSHU
     MISRA, ADDITIONAL ADVOCATE
     GENERALS AND SH. BHUPINDER
     THAKUR, DEPUTY ADVOCATE
     GENERAL.)




                                       ::: Downloaded on - 31/01/2022 23:23:11 :::CIS
                                         2




    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 relief:-

"(i) The respondents may kindly be directed to enhance the retirement age of the applicant from 58 to 60 years in the light of the judgment dated

02.07.2019 passed by the Hon'ble High Court of Himachal Pradesh in CWP No. 881 of 2019 titled as Desh Raj versus State of H.P. and others as

contained in Annexure A-1.

2. Annexure R-1 appended with the reply of 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

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 r 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 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)
            th
           4     December, 2021                                 Judge
                 (sanjeev)