Bhupinder Singh vs State of Punjab

Bharat Bhushan Parsoon, J.—Question posing for answer in this petition is, as to whether a driver who hitherto had served Pepsu State before its merger into the State of Punjab, could continue in service till the age of 60 years? The petitioner had joined Director of Health Services, Patiala on 30.5.1955 vide orders of 19.5.1955 and had been serving at Second Touring Dispensary, Kalait, District Sangrur. Later, his services were transferred to the State of Punjab. As per the Pepsu Services Regulation (for short, mentioned as, PSR), services of the petitioner were classified as inferior services. He was thus f|6 retire on 31.8.1997 on attaining the age of 60 years. Services of the petitioner were protected under sub-section 7 of Section 115 of the State Re-organization Act, 1956 which provided a guarantee against the change to detriment of the petitioner wherever in the State he was to be deputed to serve. It is claimed by the petitioner that since his service conditions could not be changed to his detriment, he was to continue for 60 years as per his original conditions of service. He continued serving as driver with the respondents and retired at the age of 58 years. By way of this petition, the petitioner seeks issuance of a writ of mandamus directing the respondents to treat him in continuous service and to grant him all consequential benefits. Operation of impugned orders of 28.8.1995 and 31.8.1995, Annexures P-6 and P-7 respectively, vide which he was asked to retire on the age of 58 years were also sought to be quashed.

The respondents contesting claim of the petitioner had taken a stand that the petitioner having become class-III employee at the time of retirement was to retire at the age of 58 years in terms of Rule 3.26 of the Punjab Civil Services Rules (hereinafter called as the CSR), Volume I, Part-1. It is claimed that even if an employee initially joins a post in class-IV service but moves on class-III service, then retirement age is 58 years and not 60 years. Prayer for dismissal of the petition was made.

I have heard learned counsel for the parties and have gone through the paper book.

Plea of learned counsel for the petitioner is that the petitioner was recruited as driver and continued to be so till his retirement and throughout was holding a class-IV post and thus was to continue in service till attaining the age of 60 years and could not have been retired on completion of 58 years.

Per centra, stand of the respondents is that even if the petitioner had joined as a driver in ''inferior service'' of the Pepsu State and after merger of the Pepsu had continued to be so in the State of Punjab, but when his post was included in class-III services, his age of retirement cannot be taken to be 60 years. Seeking support from Krishan Lal Aggarwal v. State of Punjab, 1995 (1) S.C.T. 382 (P & H), it is urged that all those employees who became members of class-III services after merger of the Pepsu State with the State of Punjab, have no right to continue till age of 60 years.

Learned counsel for the petitioner urges that the judgment cited by learned counsel for the respondents also supports him. He has also cited yet another decision of 31.3.1997 of this Court rendered in C.W.P. No. 16216 of 1997 wherein it was specifically concluded that if an employee having been appointed in the ''inferior service'' continues to be so till his retirement, he is to superannuate at the age of 60 years. In the authority cited by learned counsel for the petitioner, the petitioner retired on completion of age of 58 years whereas his plea was that he should have continued in service till completion of 60 years of age. His plea that he was remained continue in employment till the age of 60 years was accepted.

Contention of learned counsel for the respondents that the petitioner-driver had become member of class-III services and thus had rightly retired at the age of 58 years, does not find support from the material available on the file. Documents of the respondents are annihilative of their case. As per notification (Annexure P-1) of 26.7.1954 of the Pepsu State, age of retirement of class-IV Government servant was fixed at 60 years. The term class-IV Government services was given a new meaning vide a subsequent notification dated 21.1.1956 (Annexure P-2) where the words ''class-IV servants'' were substituted by the words "State employees whose pay (including all elements of the nature of pay) did not or does not exceed Rs. 200/- per mensem".

Yet further clarification came on 26.8.1963 vide notification (Annexure P-3) qua the conditions of service of drivers in the State of Punjab. Vide this clarification, irrespective of the pay drawn by drivers, it was specifically mentioned that they were to continue as members of class-IV employees for all purposes except for purposes of T.A. whereas they were recorded as ministerials (class-III). In case of one Som Dutt, driver, working with Civil Surgeon, Sangrur, a clarification was sought. The Director, Health Services, while communicating to Civil Surgeon, Sangrur had specified that the retirement age of drivers who had been appointed in Pepsu State was 60 years and not 58 years. Relevant portion of letter (Annexure P-4) for ready reference is as under:

Letter No. U963-EI/79/23293 dated 13.9.79 from D.H. to Civil Surgeon, Sangrur.

Subject:- Regarding the service of Sh. Som Dutt, Driver.

In reference to your letter No. E-I/79/52/35 dated 29.8.79 on the subject noted above.

The Drivers who were appointed in Pepsu were to be retired at the age of 60 years instead of 58 years. Necessary action in regard to Sh. Som Dutt Driver be done accordingly.

From letter dated 25.5.1995 (Annexure P-6), it transpires that the petitioner had retired on attaining the age of 58 years i.e. w.e.f. 31.8.1995. To the same effect is a communication of Civil Surgeon, Sangrur addressed to the petitioner on 31.8.1995 (Annexure P-7). When the petitioner-driver had continued to be a driver and as per letter (Annexure P-4) had also continued to be a member of class-IV service, he was to superannuate at the age of 60 years and not at the age of 58 years. Sequelly, not only authority cited by the petitioner but even authority cited by the respondent squarely supports the case of the petitioner.

Consequently, setting aside impugned orders (Annexures P-7 and P-8), it is clarified that the petitioner was to retire on 31.8.1997 but he was superannuated on 31.8.1995. He was denied the right to continue in service upto the age of 60 years for no fault of his. The respondents thus are directed to pay entire salary and allowances to the petitioner which would have been drawn by him had he been in service till 31.8.1997. While releasing the payment, amount paid by way of pension during the said period of two years will be adjusted. His pensionary benefits also need to be recomputed with reference to his salary he was to draw on 31.8.1997 after getting annual increments during the period. Arrears of pension, gratuity, leave encashment (if any) and commuted value of pension also need to be recomputed and disbursed to the petitioner.

As a sequel, monetary benefits due to the petitioner, as mentioned earlier, are to be disbursed to him within a period of two months from the date of receipt of certified copy of this judgment along with interest @ 9% per annum. In case compliance is not made within the stipulated period of two months, the amount would carry interest @ 12% per annum from the date of expiry of that period till the date of actual payment. The writ petition is allowed in the above terms.