IMPORTANT POINT
The date of engagement is the decisive factor for retirement age, and notional fixation of pay is important for pension calculation.

JUDGMENT :

Ranjan Sharma, J.

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

2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the peculiar facts as borne out from the pleadings.

3. The petitioners being Cloass-IV employees in the Forest Department, have filed the instant writ petition with the following prayers:-

“(i) That the respondents may kindly be directed to grant the benefit of two years by considering the petitioners to be superannuated at the age of 60 years in terms of the judgment passed by this Hon’ble Court in Baldev Versus State of H.P. and others.

(ii) That the respondents may kindly be directed to grant pension and pensionary benefits to the petitioners by counting two years in his continuous service w.e.f. 1997 and 2001 i.e. after the completed 8 years of continuous daily wage services.”

4. At the very outset learned counsel for the petitioners submits that they confine their prayer only qua the relief in CWP No.2711 of 2021, titled as Baldev versus State of Himachal Pradesh & Others, decided on 22.02.2022 passed by Full Bench of this Court, in these proceedings. He further submits that they may be granted liberty to claim the relief based on Sunder Singh and Balo Devi, in case, the same is admissible at any subsequent point of time hereinafter.

5. Case of the petitioners is that they were appointed as Forest Workers on daily wage basis in the year 1989 and 1993, respectively. In September, 2007, the respondents regularized the petitioners and they retired from service on attaining the age of 58 years on 31.03.2017 and 30.06.2016, respectively.

6. In the background of the above facts, Mr. Archna Dutt, learned counsel for the petitioner submits that once the petitioners were appointed as a Forest Worker under State Government in the years 1989 and 1993 then, the action of the respondents in retiring the petitioners as Class-IV, at the age of 58 years on 31.03.2017 and 30.06.2016 i.e. contrary to Office Memorandum issued under FR 56(e) as well as 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.

7. The learned counsel submits that the issue as to whether an incumbent, who was engaged on daily wage basis 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 Office Memorandum dated 11.05.2001, the amendments notified on 28.12.2019 and on 21/22-02-2018 under 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, wherein it has been held in Paras 7(ii) & (iii) as under:-

”(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 year