Chuni Lal vs State of H.P. and Others

V.K. Sharma, J.—By an order dated 17.6.2010 passed by a Division Bench of this Court, the present petition was ordered to be posted along with CW Ps No. 2639 and 2865 of 2010. However, neither these petitions have been listed for today nor shown in the Cause List. It was in such circumstances that the records of the said petitions were called for and perused and it is revealed that both the petitions (CWP No. 2639 of 2010, Bar Chand v. State of H.P. and othersand CWP No. 2865 of 2010, Chhape Ram v. State of H.P. and others) have since been disposed of. CWP No. 2639 of 2010, Bar Chand v. State of H.P. and others, was dismissed vide judgment dated August 4, 2010 rendered by a learned Single Judge of this Court. However, the matter having been carried in appeal, by way of Letters Patent Appeal No. 196 of 2010, Bar Chand v. State of H.P. and others, has since been decided vide judgment dated October 21, 2010, text whereof is as follows:

Whether reporters of the local papers may be allowed to see the judgment? No.

Whether a daily wager engaged prior to 2001 is entitled to continuance in service up to 60 years is the issue to be considered in this case.

The appeal is at the instance of the Petitioner in the writ petition. The issue pertains to the claim regarding the continuance up to the age of 60 years.

The undisputed factual position is that the Petitioner was engaged as daily waged Beldar on 5.9.1994. His service was regularized w.e.f. 21.7.2007. However, he was retired on attaining the age of 58 years. According to the Petitioner since he was engaged prior to 2001, he is entitled to the benefit of circular dated 22.2.2010 regarding the age limit for disengagement of daily wager. The circular reads as follows:

I am directed to say that consequent upon amendment in Rule-56 of the Fundamental Rules vide Government of Himachal Pradesh, Finance (Regulations) Department Notification No. Fin (C) A (3)-3/98 dated 10th May, 2001, the issue of fixing the age of disengagement of a daily wager in all the Departments had also been engaging the attention of the Government for sometime past. After careful consideration, the Government has now decided that the people who are engaged on daily wages they will also be governed by the same set of age restriction of disengagement as is applicable to regular government employees. As such, the Class-IV daily wager engaged prior to 2001 i.e. when said notification of limiting the age of Class-IV Employees was reduced from 60 to 58 years will cease to be in the employment at the age of 60 years and no daily wager deployed after the reduction of the age limit in 2001 will be retained after attaining the age of 58 years. Similarly, all Class-III and above employees if working on daily wage will cease to be employed at the age of 58 years. There should be no ambiguity in this matter and all departments are to follow this age restriction.

The learned Single Judge took the view that since the Petitioner has been regularized in service after 2001, he is entitled to continue only up to 58 years. But, as clearly stated in the circular, no distinction whatsoever is made as to regular service.

In fact the expression used is daily wager engaged prior to 2001. Admittedly, the Petitioner was engaged as Beldar in 1994. The restriction up to the age of 58 years would apply only in the case of those engaged on daily wages after 2001 when the retirement age was reduced to 58 years. In view of the above circumstances, we set aside the judgment of the learned Single Judge, allow the writ petition with the direction that the Petitioner shall be permitted to continue up to the age of 60 years. He shall be engaged forthwith with continuity of service at any rate within a period of one week from the date of production of copy of this judgment. It is made clear that the period during which the Petitioner was kept out of service shall be treated as duty for all purposes except the actual wages. In other words, there shall be continuity of service for all purposes except the actual wages since the Petitioner has not actually worked during the period.

As far as regularization is concerned, in case any person engaged on daily wages after the Petitioner has been regularized before the Petitioner, he shall also be regularized with effect from that date. In any case, in view of the judgment in Rakesh Kumar v. State of H.P. ( CWP No. 2735 of 2010), the Petitioner shall be first conferred work charge status. The consequential benefits shall be disbursed to the Petitioner within two months.

It appears that since CWP No. 2865 of 2010, Chhape Ram v. State of H.P. and otherswas decided by a Division Bench of this Court vide judgment dated 6.12.2010, Letters Patent Appeal against the same was not maintainable.

The learned Counsel for the Petitioner submits at the very outset that the case of the Petitioner is covered under the aforesaid judgment dated October 21, 2010 in LPA No. 196 of 2010, Bar Chand v. State of H.P. and others.

In view of the above, if on facts the case of the Petitioner is covered under the aforesaid judgment dated October 21, 2010 in LPA No. 196 of 2010, Bar Chand v. State of H.P. and othersand he is a similarly situate person, he shall also be treated similarly without any discrimination and the benefit of the said judgment shall also be extended to him forthwith on production of copy of this judgment by the Petitioner. As a natural consequence, office order dated 27.2.2010, Annexure P-1, shall stand quashed. Needless to say those consequential benefits, if any, would follow.

The petition stands disposed of in the above terms, so also pending application(s), if any.