The date of engagement and regularization determines the entitlement to continue in service beyond the age of 58, as per the Office Memorandum and subsequent amendments.

JUDGMENT :

Ranjan Sharma, J.

Notice. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents.

2. The petitioner has filed the instant petition for the following relief:

“That the retirement of the petitioner at the age of 58 years, may kindly be set aside and he may be held to be in service upto the age of 60 years with all consequential benefits as directed in the case of Baldev Vrs. State of H.P. & others.”

3. Case of the petitioner, in brief, is that the petitioner was engaged a Part-Time Water Carrier in the Department of Education, in March, 1997 and was regularized in September, 2007 and he retired from service on attaining the age of superannuation of 58 years on 31.08.2015.

4. The learned counsel submits that the issue as to whether the petitioner, who was engaged on Part-Time/Daily Wage basis w.e.f. 01.01.1994 i.e. prior to 10.05.2001 and was regularized on or after 10.05.2001 is entitled to continue in service upto the age of 60 years, as per the Office Memorandum dated 11.05.2001, the amendment dated 28.12.2019 and the amendment dated 21/22-02-2018 Fundamental Rule 56(e) stands adjudicated by the Full Bench of this Court in CWP No.2711 of 2017, titled as Baldev versus State of Himachal Pradesh & ors. decided on 22.02.2022 (Annexure P1). Learned counsel for the petitioner refers to Paras 7(ii) & (iii) thereof.

“(ii). Inconsistency between Bar Chand and Chuni Lal now stands, not just resolved, but rather dissolved, in view of notification dated 21.02.2018 amending F.R. 56(e), issued by the State, which has now reinforced and reiterated what was held in Bar Chand’s case, i.e. date of regularization of a class IV daily wager whether prior or after 10.05.2001, will make no difference to the age of his continuing in service. It is the date of engagement, which is the decisive factor. 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.

(iii). There cannot be any discrimination amongst similarly situated Class-IV employees belonging to one homogenous class. Therefore the retirement date, of such of those employees, who had been engaged on daily wage basis prior to 10.05.2001, but regularized after 10.05.2001 and have actually been retired prior to the issuance of notification dated 21.02.2018 at the age of 58 years, shall be deemed to be the date when they otherwise attained the age of 60 years. Since these employees have not actually worked beyond the age of 58 years, therefore, they will not be entitled to the actual monetary benefits of wages/salary etc. for the period of service from the date of their actual retirement till deemed dates of their retirement. However, they will be entitled to notional fixation of their pay for the period in question for working out their payable pension and payment of consequential arrears of pension accordingly.”

5. Based on the Full Bench Judgment of this Court, learned counsel for the petitioner submits that once the petitioner has been appointed/engaged by the Respondent-Department prior to 10.05.2001, therefore, the petitioner is entitled to be treated to be in deemed service beyond the age of 58 years (on 31.08.2015) till the age of deemed retirement on attaining the age of 60 years (on 31.08.2017) and even if the petitioner has not actually worked beyond the age of 58 years (31.08.2015) upto the age of deemed service/retirement of 60 years (i.e. 31.08.2017), therefore, the petitioner shall only be entitled to notional fixation of pay for working out the pension and payment of consequential arrears of pension, which accrues/becomes payable to the petitioner.

6. Per contra, Mr. Rajan Kahol, learned Additional Advocate General, submits that the petitioner was retired at the age of 58 years on 31.08.2015 and he has filed the petition, when, the petitioner is 68 years of ag