Dhani Ram vs Himachal Tourism Development Corporation <BR> Jagat Ram (Since deceased) through his wife Smt. Mati Devi and Others Vs Himachal Tourism Development Corporation and Another

Kuldip Singh, J.—This judgment shall dispose of CWP (T) No. 6279 of 2008 and CWP (T) No. 7306 of 2008.

CWP (T) No. 6279 of 2008.

The pleaded case of the Petitioner is that his date of birth is 15.05.1941 and he was appointed as Waiter in Respondent-Whether the reporters of the local papers may be allowed to see the Judgment? Yes Corporation in the year 1979. He was regularized on 01.04.1980. The Petitioner was lastly transferred to the H.P. Secretariat Canteen where he worked till 30.11.1999 on which date he was illegally superannuated. The Waiter in the Corporation is designated as Class-IV post. On 26.08.1999 the Petitioner and other Waiters mentioned in the Office Order dated 26.08.1999 were given the pay scale of Rs. 3120-5160/- with effect from 01.07.1999. As per F.R. 56 (Class-IV) employee shall retire from service on attaining the age of 60 years. On 30.11.1999 on which date the Petitioner has been arbitrarily retired, he had not attained the 60 years of age. The retirement of Petitioner on 30.11.1999 is wrong, illegal, arbitrary and in violation of Articles 14, 16 of the Constitution. The Petitioner had four months less service to make him eligible for pension which requires 20 years of service. It is the case of the Petitioner that as per F.R. 56, he ought to have been retired on attaining the age of 60 years. The Petitioner amended the petition and in the amended petition the Petitioner has prayed for quashing of Office Order dated 26.08.1999 Annexure R-I vide which Waiters have been given higher pay scale of Rs. 3120-5160/- with effect from 01.07.1999. In the amended petition, a prayer has been made to direct the Respondent to reinstate the Petitioner on the same post from the date when he was illegally ordered to be superannuated on 30.11.1999.

The Respondent has contested the petition and has stated that Petitioner was Class-III employee of the Corporation. It has been stated that earlier post of Waiter on which the Petitioner had been working was class-IV post. The Waiters were given pay scale of Rs. 3120-5160/- with effect from 01.07.1999 and were classified as Class-III category vide order dated 22.11.1999 Annexure R-2. The Waiters before 01.07.1999 were in the pay scale of Rs. 2720-4260/- and were in Class -IV category. The retirement age of Class-III employees in Corporation is 58 years, whereas, it is 60 years for Class-IV employees. The Petitioner being Class-III employee was rightly retired on 30.11.1999 on attaining the age of superannuation. In reply to amended petition, the Respondent has reiterated the same stand and has also pleaded that category of Waiter was classified as Class-III in the pay scale of Rs. 3120-5160/- vide Annexure R-2. The Petitioner would have retired on 31.05.1999 but for the order dated 22.11.1999 effective from 01.07.1999, hence, the Petitioner was retired on 30.11.1999. In the rejoinder the Petitioner has reiterated his stand pleaded by him in the petition.

CWP (T) No. 7306 of 2008.

The petition was filed by Jagat Ram, who died during the pendency of petition and his legal-representatives Petitioners 2 to 4 were brought on record. The pleaded case of Jagat Ram is that he was appointed as Cook in Respondent-Corporation in July, 1986. On 06.09.1997, he was regularized as Commi-IV in the pay scale of Rs. 800-1455/- plus allowances. The Respondent had framed (Staff) Regulation, 1972 then Himachal Pradesh Tourism Development Corporation Recruitment and Promotion (Revised) Rules, 1985. The post of Commi-IV in the Corporation as per 1985 Rules was in the pay scale of Rs. 325-495/-. The Recruitment and Promotion Rules were revised in the year 1997. As per Rule 1(iv) the Respondent-Corporation had classified those posts as Class-IV posts which carry a maximum pay scale less than Rs. 1800/-. As per revised Recruitment and Promotion Rules, the post of Commi-IV was in the pay scale of Rs. 810-1440/-. The Commi-III was in the pay scale of Rs. 950-1800/- and same was to be filled up from amongst Commi-IV.F.R. and S.R. are applicable to the employees of Respondent-Corporation.

The Petitioner was regularized as Commi-IV in the pay scale of Rs. 800-1455/- on 06.09.1997. The Respondent-Corporation revised the pay scale of Petitioner Commi-IV from Rs. 800-1455/- to Rs. 2720-4260/- with effect from 06.09.1997. The Petitioner was expecting that as Class-IV employee, he would work up to the age of 60 years. The Corporation, however, on 16.11.2000 ordered retirement of Petitioner on attaining the age of superannuation 58 years on 31.12.2000. The Corporation has retired the Petitioner on attaining the age of 58 years on 31.12.2000 by wrongly taking the stand that the Petitioner had been given the higher pay scale of Rs. 3120-5160 (un-revised Rs. 950- 1850/-) with effect from 01.07.1999 vide Annexure A-5.

The Petitioner was appointed as Commi-IV workman (skilled or un-skilled) in the Respondent-Corporation which is an industrial establishment. The Petitioner had right to continue in service up to the age of superannuation 60 years till 31.12.2002. The retirement of the Petitioner at the age of 58 years is wrong and illegal.

The Petitioner was not promoted as Commi-III. As per revised Recruitment and Promotion Rules, 1973, Commi-IV is a feeder post for promotion to Commi-III. The Petitioner was not promoted from Commi-IV to Commi-III. Therefore, his retirement at the age of 58 years on 31.12.2002 by treating the Petitioner as Commi-III is arbitary.

The grant of higher pay scale will not change the status of the Petitioner from Commi-IV to Commi-III merely on the ground that Petitioner was given the revised pay scale of Rs. 950-1800/3120-5160/-. The Commi-IV post was not upgraded in status to Commi-III. The Commi-III were also given higher scale from Rs. 950-1800/3120-5160/-to Rs. 3320-6200/-. Therefore, unless the Petitioner was promoted as Commi-III in the pay scale of Rs. 3320-6200/-, he could not be treated as Class-III employee.

The Petitioner has prayed for quashing of order dated 16.11.2000 Annexure R-4 retiring the Petitioner at the age of 58 years with effect from 31.12.2000 with further prayer to allow the Petitioner to work as Commi-IV up to the age of 60 years i.e. till 31.12.2000. The Petitioner has prayed for consequential benefits like arrears of salary along with interest at the rate of 18% per annum. No. reply has been filed by the Respondent.

I have heard Mr. Dushyant Dadwal, Advocate, in CWP (T) No. 6279 of 2008 and Mr. Ranjan Sharma, Advocate, in CWP (T) No. 7306 of 2008 and Mr. Naresh Kaul, Advocate, representing the Respondent (s) in both the petitions. The learned Counsel for the Petitioner(s) have submitted that Petitioner in CWP (T) No. 6279 of 2008 and Jagat Ram in CWP (T) No. 7306 of 2008 were workmen and they would have retired on attaining the age of 60 years. They were wrongly retired by Corporation after attaining the age of 58 years. The Petitioner(s) have relied State of Orissa and Others Vs. Adwait Charan Mohanty and Others, on the point that expressions ''higher skilled, skilled, semi-skilled or un-skilled'' artisan are to be understood in common parlance in a wider sense and not narrowly. The learned Counsel for the Respondent has submitted that Division Bench in CWP No. 1721 of 2009 titled Sh. Rajinder Parshad v. HRTC and anr. decided on 17.06.2009 has held that object of F.R. 56(b) is to bring artisan workmen governed by statutory Rules at par with Class-IV employees and only such artisan workmen are required to retire on completion of 60 years but not Class-III government servant or above. He has also submitted that Division Bench has held that conductor is not an artisan.

In CWP (T) No. 6279 of 2008 Petitioner and other Waiters vide Office Order dated 26.08.1999 were placed in the revised pay scale of Rs. 3120-5160/- with effect from 01.07.1999 in pursuance of order dated 09.07.1989. As per Office Order dated 22.11.1999 Waiter/Assistant Barman, Senior Floor Assistant, Assistant Receptionist, Commi-IV in the pay scale of Rs. 3120-5160/- were classified as Class-III with immediate effect in pursuance of decision No. 99/4 of the Board of Directors. According to Dhani Ram Petitioner, he was regularized as Waiter on 01.04.1980. The post of the Petitioner was designated as Class-IV post. He was placed in the revised pay scale of Rs. 3120-5160/- with effect from 01.07.1999 on which date he had not attained the age of 60 years. Dhani Ram Petitioner in the amended petition has prayed for quashing of Office Order dated 22.11.1999 Annexure R-1, a copy of which has also been placed on record as Annexure R-2. There is No. foundation in the petition laying challenge to the placing of Waiter/Assistant Barman in Class-III category as per Office Order dated 22.11.1999. F.R. 56(b) refers to a workman, who shall retire from service on attaining the age of 60 years. The workman mentioned in F.R. 56(b) means highly skilled, skilled, semi-skilled or un-skilled artisan employed on monthly rated pay in an industrial or work charged establishment. There is No. averment in CWP (T) No. 6279 of 2008 that employment of the Petitioner with the Respondent-Corporation was that of highly skilled, skilled, semi-skilled or un-skilled artisan. In absence of pleadings of highly skilled, skilled, semi-skilled or un-skilled artisan in the petition, it is not possible to record a finding that Petitioner as a Waiter had been performing the job of highly skilled, skilled, semi-skilled or un-skilled artisan workman while in the employment of the Respondent-Corporation. In Rajinder Parshad (supra), it has been held that the object appears to bring artisan workman governed by statutory Rules at par with Class-IV employees and only such artisan workmen are required to retire on completion of 60 years, but No. Class-III government servant or above.

The Corporation has taken the stand that in June, 1999, a section of employees including Waiters went on strike demanding higher pay scale along with other demands. The management accepted some of the demands and allowed higher pay scale of Rs. 3120-5160/- to the Waiters category and placed them in Class-III. The Corporation took policy decision to place Waiters in Class-III category on the basis of their pay scale. The Office Order dated 22.11.1999 indicates that not only Waiter/Assistant Barman, Senior Floor Assistant, Assistant Receptionist and Commi-IV, who all are in the pay scale of Rs. 3120-5160/- were placed in Class-III category. In these circumstances, it cannot be said that Office Order dated 22.11.1999 of Respondent-Corporation to put the Waiter in the Class-III category is arbitrary. The category of Waiter in the Corporation is Class-III, therefore, to such category F.R. 56(b) is not applicable in view of Rajinder Parshad (supra). There is No. merit in CWP (T) No. 6279 of 2008.

In CWP (T) No. 7306 of 2008, Jagat Ram, predecessor-in-interest of the Petitioners No. 2 to 4, was appointed as a Cook in July, 1986. He was regularized on 06.09.1997 as Commi-IV. It has been contended by learned Counsel on behalf of the Petitioners that as per Annexure-1 to Himachal Pradesh Tourism Development Corporation Limited (Staff) Recruitment and Promotion (Revised Rules), 1985, Commi-IV was in the pay scale of Rs. 325-495/- and Commi-III in the pay scale of Rs. 400-600/-. Commi-IV is a feeder post for promotion to Commi-III against the promotion quota. He has stated that amendment in the Recruitment and Promotion Rules was carried out in the year 1997 and posts having maximum of the pay scale of which is less than Rs. 1800/- were put in Class-IV category. Similarly, the posts having maximum of the pay scale of which is not less than Rs. 1800/- were placed in the Class-III category. Commi-IV were placed in the pay scale of Rs. 810-1440/- and Commi-III in the pay scale of Rs. 950-1800/-. He has submitted that Commi-IV was again made a feeder post for Commi-III, 100% by promotion. According to learned Counsel for the Petitioners as per amendment carried out in the year 1997 both Commi-III and Commi-IV were in Class-IV category.

In the petition Annexure A-3 has been alleged to be Recruitment and Promotion Rules, 1997, but actually these Rules are of 1985 which is clear from SECTION-I GENERAL of Annexure A-3. But this makes No. difference. The question is whether Jagat Ram, predecessor-in-interest of the Petitioners No. 2 to 4 was Class-III or Class-IV employee of the Corporation. In CWP (T) No. 7306 of 2008, a prayer has been made for quashing order dated 16.11.2000 retiring the Petitioner at the age of 58 years on 31.12.2000. A prayer has also been made to allow Jagat Ram to work as Commi-IV till the age of 60 years i.e. 31.12.2002 with all consequential benefits along with interest. It has also been prayed that action of Corporation in treating Jagat Ram as Commi-III without promoting him as such or without upgradation of Jagat Ram as Commi-III be declared illegal and arbitrary.

In CWP (T) No. 6279 of 2008, it has come on record that on 21.11.1999 Waiter/Assistant Barman, Senior Floor Assistant, Assistant Receptionist and Commi-IV in the pay scale of Rs. 3120-5160/-were classified as Class-III with immediate effect. It was not the case of Jagat Ram that he was not given pay scale of Rs. 3120-5160/- with effect from 01.07.1999. Once Jagat Ram was given the pay scale of Rs. 3120-5160/- as Commi-IV, his category became Class-III as per Office Order dated 22.11.1999. It was not necessary that only on promotion from Commi-IV to Commi-III Jagat Ram would have come in category-III. The nomenclature as Commi-III or Commi-IV is not relevant for application of F.R. 56(b), what is relevant is the Class/Category. The Respondent-Corporation on the basis of pay scale has put Commi-IV in the pay scale of Rs. 3120-5160/- in Class-III category vide Office Order dated 22.11.1999. There is No. prayer in the petition for quashing of Office Order dated 22.11.1999. In the absence of prayer for quashing of Office Order putting Commi-IV in the pay scale of Rs. 3120-5160/- in Class-III category, the Petitioners are not entitled to benefit of F.R. 56(b) in view of Rajinder Parshad (supra). There is No. merit in the petition and, therefore, the same is liable to be dismissed.

In view of above discussion, both petitions being CWP (T) No. 6279 of 2008 and CWP (T) No. 7306 of 2008 are dismissed with No. order as to costs.