Himachal Pradesh High Court
Raksha Devi vs State Of H.P. & Others on 5 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 10681 of 2023
Decided on: 05.01.2024
Raksha Devi
........Petitioner
.
Versus
State of H.P. & Others
.......Respondents
Coram
HON'BLE MR. JUSTICE RANJAN SHARMA, JUDGE
WHETHER APPROVED FOR REPORTING? Yes
of
For the petitioner : Mr. Parkash Sharma, Advocate.
For the respondents : Mr. Vishal Panwar, Additional
Advocate General for respondents
rt No. 1 to 3.
Mr. Chitranjan Kumar Sharma,
Advocate, for respondent No.4-
Accountant General (A&E)
Ranjan Sharma, Judge (Oral)
Notice. Mr. Vishal Panwar, learned Additional
Advocate General and Mr. Chitranjan Kumar Sharma,
Advocate, appear and waive service of notice on behalf of
respondents No. 1 to 3 and respondent No.4, respectively.
2. With the consent of the parties, the instant
writ petition is taken up for disposal, at this stage, in
view of the order(s) intended to be passed hereinafter.
3. The petitioner a Class-IV employee in the
Higher Education Department, has filed the instant
writ petition, seeking the following reliefs:-
i) That the respondents may kindly be directed to
count service as qualifying service of petitioner
towards pension with effect from 26.5.2006
whereby granted whole time status followed
.
by regularization without interruption and
consequently she may be held entitled to
pensionary benefits under CCS(Pension) Rules,
1972, with all consequential benefits;
(ii) That the respondents may kindly be directed to
extend the benefit of Apex Court judgment
of
in Balo Devi vs. State of HP, reported in Latest
HLJ 2022 (Vol-II) (HP) 817 and judgment dated
22.2.2022 in CWP No.2711/2021 titled as Baldev
rt Singh Vs. State of H.P. Consequently the
petitioner may be held entitled for deemed
retirement upto the age of 60 years, with all
consequential benefits;"
4. At the very outset learned counsel for the
petitioner submits that he confines his 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 he
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 petitioner is that the she
was appointed as a Part Time Water Carrier on 19.08.1997.
She was granted Whole Time Status on 22.5.2006,
.
Annexure P-2. On 8.9.2007, Annexure P-3, the respondents
regularized the petitioner and she joined as such on
19.9.2007, and the petitioner retired from service on
attaining the age of 58 years on 30.06.2015.
of
6. In the background of the above facts,
Mr. Parkash Sharma, learned counsel for the petitioner
rt
submits that once the petitioner was appointed as a
Part Time Water Carrier under State Government on
07.08.1997 then, the action of the respondents in
retiring the petitioner as Class-IV Peon, at the age
of 58 years on 30.06.2015 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 and Others, decided
on 22.02.2022.
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)
of
as under:-
"(ii). Inconsistency between Bar Chand and
rt 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,
of
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
rt retirement till deemed dates
retirement. However, they will be entitled
of their
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 petitioner submits that the
petitioner has 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 petitioner shall retire at the age
of 60 years, [on 30.06.2017]; and the impugned order
retiring the petitioner at the age of 58 years [on
30.06.2015] 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
(Annexure P-4), retiring the petitioner at the age of 58 years
[on 30.06.2015] needs to be relooked into.
9. Per contra, Mr. Vishal Panwar, learned
of
Additional Advocate General, submits that the petitioner
was retired at the age of 58 years on 30.06.2015
rt
and he has filed the petition, when, the petitioner is
66 years of age. Therefore, as per him, only notional
benefits can accrue to the petitioner and that too after
examining/verifying the factual aspects.
10. Faced with this situation, learned counsel
for the petitioner fairly submits, on instructions that
she shall file a representation, pointing out all grievances
to the respondent No.2-Director Higher Education,
Himachal Pradesh within 10 days 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. 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 prayed then, the
petitioner shall be deemed to be in service upto 60 years
of
[30.06.2017]; and even if, the petitioner has not actually
worked beyond the age of 58 years (30.06.2015) upto the
age of
rt
deemed service/retirement of 60 years (i.e.
30.06.2017), then also, the petitioner 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 petitioner, in
accordance with law. However, it is clarified that the
present petitioner was filed on 16.11.2023; 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 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.
.
(Ranjan Sharma)
Judge
January 5, 2024
(himani)
of
rt
