Class IV servants engaged part-time/daily wages prior to 10.05.2001 and regularized after retire at 60 years based on engagement date; retrospective notional benefits for pension to those retired early at 58.

JUDGMENT :
Ranjan Sharma, Judge

Petitioner, Hazari Lal, had initially filed an Original Application No.3675 of 2017 before Himachal Pradesh Administrative Tribunal and upon abolition of Tribunal, the matter stands transferred to this Court as CWPOA No.2527 of 2020, seeking the following relief:-

“7(i) That the impugned relieving order dated 31.1.2017, Annexure A-5 may very kindly be quashed and set aside and the Applicant may very kindly be ordered to be reinstated in service alongwith seniority and continuity and all other consequential benefits, in the interest of justice.”

2. Grievance of the petitioner is that petitioner upon due selection was appointed as a Part-time Water Carrier on 18.01.1995 [Annexure A-1/T] in GSSS Kujabalh, District Mandi, Himachal Pradesh. Petitioner continued to serve as a Part-Time Water Carrier since January 1995 and he was upgraded as Whole-Time Contingent Paid Employee in GHS Nalyana, District Mandi, Himachal Pradesh, on 03.08.2012 [Annexure A-2]. Petitioner continued working as Whole-Time Contingent Paid Employee and in terms of the directions given by Principal Secretary Higher Education, Himachal Pradesh, on 22.08.2012 and Corrigendum dated 28.01.2014 [Annexure A-4], petitioner was converted/upgraded as a regular Class-IV Employee with immediate effect. Petitioner joined on the basis of Corrigendum also. It is averred that Principal, GSSS Kujabalh, District Mandi, Himachal Pradesh, issued an order dated 31.01.2017 [Annexure A-5], relieving the petitioner on superannuation, at the age of 58 years, on 31.01.2017.

It is in this backdrop that the petitioner has come up before this Court, seeking quashing of his superannuation at the age of 58 years and by claiming a direction for continuity in service upto the age of 60 years i.e. 31.01.2019 with benefits of pay fixation with all admissible retiral benefits.

3. Pursuant to issuance of notice on 03.08.2017, Director of Elementary Education has filed a Reply- Affidavit dated 28.08.2017.

3(i). Perusal of Reply-Affidavit indicates that since the incumbency of Part-Time Water Carriers and Whole-Time Incumbents is regulated by Deputy Director of Higher Education/Director of Higher Education, therefore, Director of Elementary Education has no role in the matter.

4. At this stage, Learned Counsel for the petitioner, states that the issue as to whether Part- Time Employees who were appointed/engaged prior to 10.05.2001 and were regularized on or after 10.05.2001 were to retire at the age of 58 years or 60 years stands answered by the Full Bench Judgment of this Court in CWP No.2711 of 2017, In Re; Baldev Versus State of Himachal Pradesh and others alongwith connected matter, decided on 22.02.2022, which reads as under:-

“5(iv). A vacuum still remained in the notification/clarification about the superannuation age of daily wager engaged prior to 10.05.2001, but regularized after 10.05.2001. To meet this situation, another notification was issued on 21.02.2018, amending F.R. 56(e) yet again. This notification has not been noticed in the reference order dated 28.12.2019. Relevant portion of the notification reads as under:-

“Short title and commencement: 1.(1) These rules may be called Fundamental (in their application to the State of Himachal Pradesh) First Amendment, Rules, 2018.

Amendment of 2. rule-56.(2)These rules shall come into force from the date of publication in the Rajpatra (e Gazette), Himachal Pradesh. In rule 56 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 a