Point of Law : 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.

ORDER :

Mohammad Rafiq, J.

A Division Bench of this Court observed ‘apparent conflict’ in the decisions rendered by different Benches of this Court regarding interpretation of Rule 56 of Fundamental Rules (in short ‘F.R.’) vis-à-vis notification dated 10.05.2001 amending this Fundamental Rule in the State of Himachal Pradesh as well as circular dated 22.02.2010 clarifying the amendment and its applicability. For authoritative pronouncement on the subject, the matter has been referred to the Larger Bench vide following order dated 28.12.2019:

“Apparently there appears to be a conflict in the decisions rendered by different Benches of this Court with regard to the interpretation of FR 56.

2. In LPA No. 196 of 2010, titled Bar Chand vs. State of H.P. & others, decided on 21.10.2010, it was observed that all those who had been appointed even if on daily waged service prior to 10.05.2001, would be entitled to continue upto the age of 60 years.

3. However, the aforesaid judgment has later on been distinguished, as one rendered per incuriam, since the position under the Rules was not considered in that case and this was so stated clearly by a Division Bench (Coram: The Hon’ble Mr. Justice Kurian Joseph, Chief Justice {as his Lordship then was} and The Hon’ble Mr. Justice Sanjay Karol, Judge, {as his Lordship then was}) in LPA No. 298 of 2011, titled State of H.P. & others vs. Chuni Lal Beldar, decided on 22.11.2011, relevant paras whereof reads as under:

“The State has come up in appeal against the judgment dated 24th February, 2011. The issue pertains to continuance of Class IV employee upto the age of 60 years. There is no dispute on the question of law that all those who have been appointed in regular service as Class IV employee prior to 10.5.2011, they are entitled to continue upto the age of 60 years. In LPA No. 196 of 2010 titled as Bar Chand vs. State of H.P. and others decided on 21st October, 2010, this Court had observed that all those, who have been appointed even if on daily waged service prior to 10.5.2001 would be entitled to continue upto the age of 60 years. That judgment has been later distinguished as one rendered per incurium since the position under the Rules was not considered in that case. What was considered in that case was the Notification issued by the Government. As per the amendment in FR 56, only those who have been regularly appointed/regularized in service prior to 10.5.2001, they alone will be entitled to continue upto 60 years.

2. Learned Single Judge in the judgment under appeal has followed LPA No. 196 of 2010, which is no more a good law in view of the position under law that being a judgment rendered per incurium it has no precedential value and it is no more binding. As far as the facts of the case of the petitioner are concerned, it is an admitted fact that he had entered regular service only in the year 2007, though he was on daily waged service prior to 2001. Only in case the writ petitioner entered regular service before 10.5.2001, he would be entitled to continue upto the age of 60 years.”

4. Similar issue came up before one of us (Justice Tarlok Singh Chauhan, J.) in CWP No. 7140 of 2012, titled Gian Singh vs. State of H.P. and others, decided on 24.09.2014, wherein after placing reliance upon a decision rendered by a Coordinate Bench of this Court (Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge, as his Lordship then was) in CWP No. 1837 of 2012, titled Tara Chand vs. State of H.P. & others, decided on 21.08.2014, the age of retirement was held to be 60 years.

5. The Judgment rendered in Gian Singh’s case (supra) has been affirmed by learned Division Bench of this Court in LPA No. 194 of 2015, titled State of H.P. & others vs. Gian Singh, decided on 03.12.2015 and it has been held that daily wagers appointed prior to the amendments carried out in the FR 56, have right to continue till the age of 60 years and they would not retire at the age of 58 years.

6. This judgment apparently is in direct c