Phoolan Devi vs HIMUDA & Ors

Sushil Kukreja, J

Petitioner has filed the petition under Article 226 of the Constitution of India, seeking following substantive reliefs:­

“(a). That a writ in the nature of certiorari may kindly be issed for quashing the impugned action (Annexure P­4) on the part of the respondents whereby the petitioner is proposed to be retired on 31.01.2023.

(b). That a writ in the nature of mandamus may kindly be issued directing the respondents to allow the petitioner to perform her duties in respondent organization upto the age of 60 years i.e. up to 31.01.2025, in the interest of justice.”

The grievance of the petitioner is that she was appointed by the respondent­Department as a Sweeper, Class­IV employee on part time basis on 01.08.1993 and thereafter she was brought on daily wages w.e.f. 25. 02.2006. Her services were regularized by the respondent­Department on 12.03.2018. The State of Himachal Pradesh had issued Notification dated 21. 02.2018, whereby F.R. 56 was amended and it was provided that a Class­IV Government servant appointed on part time/daily wages basis prior to 10.05.2001 and regularized on or after 10.05.2001 shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. However, the respondents are going to retire the present petitioner on 30.01.2023 vide order (Annexure P­4) at the age of 58 years, whereas, the petitioner is entitled to be continued in service upto the age of 60 years.

Today, the learned vice counsel for the respondents has placed on record copy of Agenda Item regarding enhancement of retirement age of Class­IV employees from 58 to 60 years in HIMUDA, wherein Chairman HIMUDA has approved that instead of adopting the notification of Government dated 21.02.2018, they may deploy all such Class­IV employees for 2 years after retirement on outsource basis on the fixed consolidated pay to the interested incumbents.

The aforesaid Agenda item is reproduced as under:­

“It is submitted that in HIMUDA, approximately 104 Class­IV employees of various categories were engaged on daily wage/muster roll basis prior to 10.05.2001 and regularized after 10.05.2001 and as per Notification No. Fin (C)­A (3) ­2/2013­L, dated 21.02.2018 issued by the State Government relating to the retirement age of Class­IV employees in various departments of the Government wherein “In Rule­56 of the Fundamental Rules, after the second proviso to clause (e), the following third proviso shall be inserted, namely: “Provided further that a Class­ IV Government servant appointed on part­ time/daily wages basis prior to 10.05.2001 and regularized on or after 10.05.2001 shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years.

Further Hon’ble Chairman HIMUDA has approved that instead of adopting the notification of Government dated 21.02.2018, we may deploy all such Class­IV employees for 2 years after retirement on outsource basis on the fixed consolidated pay to the interested incumbents.

In view of above the matter is placed before the BOD for kind consideration and approval please.”

At this stage, learned counsel for the petitioner has submitted that the petitioner will move a representation before the respondents to consider her case for deploying her for a period of two years after retirement on outsource basis, on fixed consolidated pay and the petitioner would be satisfied in case the respondents are directed to consider and decide the representation, to be filed by her, in a time bound manner.

Therefore, without adverting to the merits of the case, this petition is disposed of with a direction to the respondents to consider and decide the representation of the petitioner, to be filed by her, for deploying her for a period of two years after retirement on outsource basis, on fixed consolidated pay, expeditiously in accordance with law, preferably within a period of four weeks from the date of filing of the representation by the petitioner.

Pending miscellaneous application(s), if any, shall also stand disposed of.

For compliance, to come up on 17th March, 2023.