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2023 Supreme(HP) 296
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, Virender Singh, JJ.
Shiv Ram - Petitioner
Versus
State of H. P. & Ors. - Respondents
CWP No. 2610 of 2022
Decided On : 29-05-2023
Advocate Appeared:
For the Petitioner:Mr. R. K. Sharma, Advocate.
For the Respondent:Mr. Anup Rattan, A. G. with Mr. Y. W. Chauhan, Sr. Addl. A.G., Mr. Ramakant Sharma, Ms. Sharmila Patial, Addl. A.Gs., Ms. Priyanka Chauhan, Dy. A.G. and Mr. Rajat Chaun, Law Officer, Mr. Sureder Verma, Advocate, Mr. K. D. Sood, Sr. Advocate with Mr. Het Ram Thakur, Advocate
Point of Law: Once appointment and its nature has been accepted, employee cannot turn around and challenge same.
Headnote:
Fundamental Rules - Rule 56 - Constitution of India, 1950 - Article 12 - Societies Registration Act, 1860 - Retire from service - Age of superannuation - Petitioner on attaining 58 years of age after putting 34 years of service, was sought to be superannuated from service however before that he obtain an interim order – It was clearly stipulated in letter that services of petitioner would be governed by Service Rules of College - Para 14.
Finding of the Court :
Fundamental Rules same are not applicable to staff posted in Hostel Mess of respondent No. 4 and, therefore, retirement age of these workers is 58 years all through and not 60 years as claimed by petitioner - Petitioner has not been appointed through any known process of selection but was appointed only on basis of application - Letter of appointment goes to indicate that it was clearly stipulated in letter that services of petitioner would be governed by Service Rules of College, as is evident from Clause-4 of order of appointment - Thus, it is too late in day for petitioner to claim that services are not governed by service Rules as framed by College or that his conditions of service are to be governed by fundamental rules.
Result: Petition dismissed.
JUDGMENT :
Tarlok Singh Chauhan, J.
The respondent No. 4 is a private college receiving 95% grant-in-aid from the government of Himachal Pradesh. The petitioner had been working therein as a Hostel Helper on regular basis w.e.f. 05.12.1989. The petitioner on attaining 58 years of age after putting 34 years of service, was sought to be superannuated from service on 30.04.2022, however, before that he obtain an interim order on 29.04.2022.
2 According to the petitioner, he is entitled to continue upto 60 years of age as per the amendment carried out by the State Government in Rule 56 of the Fundamental Rules, which provides that Class-IV employees 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 vide Notification dated 21.02.2018 (Annexure P-2).
3. According to the petitioner, the aforesaid Notification was adopted by respondent No. 4-College in regard to the retirement age of Peon/Class-IV vide communication dated 17.12.2021 (Annexure P-3). However, despite this, respondents vide order dated 07.03.2022 have ordered the petitioner to retire from service on attaining the age of superannuation on 58 years w.e.f. 30.04.2022.
4. Further case of the petitioner is that respondent No.4-College is trying to discriminate the petitioner vis-a-vis the other employees and have cited an example of one Padam Kumar, Helper, who according to him was allowed to continue till the 60 years of age and retired only thereafter.
5. It is, in this background, that the petitioner has filed the instant petition for the grant of following substantive reliefs:-
i) That in view of the facts and circumstances mentioned here-in-above in this writ petition, the writ petition may kindly be allowed and the impugned retirement notice dated 07.03.2022 contained in Annexure P-4 may kindly be quashed and set aside.
ii) That the respondent No. 2 may kindly be directed to allow the petitioner to continue till the age of 60 years by enhancing his retirement age from 58 to 60 years in view of the Notification dated 21.02.2018 and a recent judgment passed by this Hon'ble Court alognwith all consequential benefits and salary of extended period i.e. 2 years.
6. Respondent No. 4 has filed its reply wherein certain preliminary objections have been raised to the effect that respondent- College is not a State or authority within the meaning of Article 12 of the Constitution being Society registered under the Societies Registration Act. It is further submitted that the salaries and other emoluments of the Mess and the other Hostel Staff are paid out of the Hostel Fund, for which no grant-in-aid is given by the government. It is further averred that the staff employed in the Mess is not governed by the Rules framed by the Government or the instructions issued from time to time but are governed by the Service Conditions for Domestic Employees House St. Bede's College Rules, that came into effect on 01.07.1982, which the petitioner has accepted and worked accordingly. In terms of these Rules, the petitioner is to retire at the age of 58 years.
7. The petitioner has filed rejoinder, wherein the averments made in the petition have been reiterated and the averments to the contrary in the reply have been denied.
We have heard learned counsel for the parties and have gone through the records of the case.
8. It is not in dispute that in terms of Clause-6 of the Service Conditions for Domestic Employees (supra), the retirement age is fixed 58 years, as is evident from Rule 6(a), which reads thus:-
6 (a). The retirement age shall be on completion of 58 years. The employee may be re-employed thereafter at the discretion of the management on an annual contract which shall not entitle him to any increment nor retirement benefits. Further, h
