Jyotsna Rewal Dua, J
1. Office memorandum dated 29.03.2013 enhancing the retirement age of the Blind Government Employees from 58 years to 60 years has been
withdrawn by the State vide office memorandum dated 4.11.2019. Aggrieved against this withdrawal, all these petitions have been preferred laying
challenge to the office memorandum dated 4.11.2019. Being connected and involving the same issue, all these petitions are taken up together for
disposal.
2(i) On 29.03.2013, following office memorandum (in short OM) was issued by the respondents/State enhancing the retirement age from 58 to 60
years in respect of Blind Government Employees:Â
“Subject: Regarding enhancement of retirement age from 58 years to 60 years in respect of blind government employees.
The undersigned is directed to refer to the subject cited above and to say that the matter for enhancement in the retirement age from 58 years to 60
years in respect of blind government Employees was under consideration of the Government for some time past. After careful consideration of the
matter, the Governor, Himachal Pradesh is pleased to order that the retirement age of the Blind Government Servants is enhanced from 58 years to 60
years with immediate effect.â€
2(ii) Seeking parity with Blind Government Servants for enhancement of retirement age, certain petitions were preferred by hearing
impaired/locomotor impaired and other State Government Employees with such physical disabilities. One such petition bearing O.A. No.1004 of 2015
filed by a person with ‘impaired hearing’ was allowed by erstwhile H.P. Administrative Tribunal vide judgment dated 10.01.2018, with following
operative directions:Â
“10. Consequently, the original application is allowed and the respondents are directed to modify the memorandum dated 29.03.2013, Annexure
AÂ6, to the extent that the benefit of enhancement of retirement age is also extended to the hearing impaired also to which category the applicant
belongs, from 58 to 60 years as specified under Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995. The applicant is deemed to be in service till the attained age of 60 years with all consequential benefits.â€
2(iii) Writ petition No.1577 of 2018, preferred by the State Government challenging the above extracted decision was dismissed by this Court on
5.11.2018. While dismissing the writ petition, it was observed that all differently abled persons constituted one homogeneous class falling within the
definition of Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. Pursuant to the
office memorandum dated 29.03.2013, as applied to Blind Government Employees as well as to certain other categories of differently abled persons,
many such employees were allowed to remain in service till they attained the age of 60 years.
2(iv) Following OM was issued on 4.11.2019, whereby office memorandum dated 29.03.2013 was withdrawn in public interest with immediate
effect:Â
“The undersigned is directed to refer to this department office Memorandum of even number dated 29th March, 2013 on the above cited subject
vide which retirement age from 58 years to 60 years in respect of blind Government employees was enhanced. Now after careful consideration of the
matter the Governor, Himachal Pradesh is pleased to order that his office Memorandum dated 29.03.2013 be hereby withdrawn with immediate
effect, in public interest.â€
2(v) The result of OM dated 4.11.2019 was that retirement age of blind government employees, which was earlier enhanced to 60 years was again
brought back to 58 years. As a necessary corollary, all categories of differently abled persons, who were either enjoying or intended to seek the
benefit of OM dated 29.03.2013 were also similarly affected. Therefore feeling aggrieved against the withdrawal of office memorandum dated
29.03.2013 by OM dated 4.11.2019 bringing the retirement age from earlier enhanced 60 years back to 58 years, these petitions have been preferred.
3. We have heard learned counsel for the parties and gone through the record.
3(i). At the outset, it may be noticed that OM dated 29.03.2013 was issued by State in exercise of its Administrative/Executive Power. Therefore,
there was no legal embargo upon the respondents/State to withdraw the same by subsequently issuing another office memorandum on 4.11.2019. The
administrative or executive power of the respondents/State to issue OM dated 4.11.2019 cannot be questioned.
3(ii) Learned counsel for the petitioners relied upon following para of the judgment in (2007) 6 SCC 196 titled Union of India vs. A.S. Gangoli &
others:Â
“11. There is considerable force in the submission of the appellant. Varying periods of weightage are added to the qualifying service of defence
service officers to compensate for, or offset the disadvantage of early age of superannuation in defence service. The weightage of 7 years for a
Group Captain is because he normally retires from Air Force Service at a comparatively early age of 52 years. If a Group Captain is permitted to
prematurely retire so that he can be permanently absorbed immediately in a public sector undertaking where the retiring age is 58 or 60, the need to
provide weightage disappears. Further, special provisions were made for such retirees under the circulars dated 17.3.1986 and 19.2.1987. They
directed that premature retirement, to take up employment under PSUs, with the permission of the Government, will not entail forfeiture of service or
retirement benefits. In such cases, the officer is deemed to have retired from the date of premature retirement and eligible to receive the retirement
benefits, enumerated in those circulars. Therefore, the decision not to extend the benefit of weightage to those who retired prematurely for immediate
permanent absorption in a PSU or autonomous body is a matter of policy of the government supported by logical reasons. So long as such policy is not
manifestly arbitrary and does not violate any constitutional or statutory provision, it is not open to challenge.â€
This judgment has no applicability for determining the point involved in the instant case. Also the judgment delivered by this Court in CWP
No.1577/2018 was in the backdrop of facts as they existed at that time, where the State by way of OM dated 29.3.2013 had enhanced the retirement
age of its blind employees from 58 to 60 years. Since all persons with physical disabilities constituted a homogeneous class, therefore, the benefit of
enhancement in the age of superannuation extended by erstwhile H.P. Administrative Tribunal to certain other categories of persons with disabilities,
was upheld. Situation in these writ petitions is different. State has now withdrawn OM dated 29.03.2013. OM dated 29.03.2013 cannot be saved on
the strength of judgment delivered in CWP No.157/2018.
3(iii) A three judge Bench of Hon’ble Apex Court in State of Uttar Pradesh and others Vs. Hirendra Pal Singh & others, reported in (2011) 5
SCC 305, quashed the interim orders of the High Court, which had directed the Government to restore 62 years as the age of superannuation for
Government pleaders. Hon’ble Apex Court held that fixation of the retirement age falls within exclusive domain and competence of the State and
that Courts should not interfere with such decision, unless they were unconstitutional. Relevant extracts from paraÂ8 are as under:Â
“8. …………….. So far as the issue of reduction of age from 62 to 60 years is concerned, it has not been brought to the notice of the High Court
that it is within the exclusive domain of the State Government to reduce the age even in Government services. So in case of purely professional
engagement, the age could validly be reduced by the State Government unilaterally.â€
In the afore referred judgment, previous judgments in Bishun Narain Misra Vs State of U.P. (AIR 1965 SC 1567, )Roshan Lal Tandon Vs. Union of
India (AIR 1967 SC 1889), K. Nagaraj Vs. State of A.P. (AIR 1985 SC 551), were also noticed as per following extracts:Â
“9. A Constitution Bench of this Court in Bishun Narain Misra v. The State of Uttar Pradesh & Ors., AIR 1965 SC 156 7held that new rule
reducing the age of retirement from 58 to 55 years could neither be invalid nor could be held to be retrospective as the said rule was a method adopted
to tide over the difficult situation which could arise in public services if the new rule was applied at once and also to meet any financial objection
arising in enforcement of the new rule.
10. In Roshan Lal Tandon v. Union of India & Ors., AIR 1967 SC 1889, a similar view has been reiterated by this Court observing that emoluments of
the Government servant and his terms of service could be altered by the employer unilaterally for the reason that conditions of service are governed
by statutory rules which can be unilaterally altered by the Government without the consent of the employee. (See also B.S. Vadera v. Union of India
& Ors., AIR 1969 SC 118; The State of Jammu & Kashmir v. Triloki Nath Khosa & Ors., AIR 1974 SC ;1 B.S. Yadav & Ors. v. State of Haryana
& Ors., AIR 1981 SC 561; and State of Jammu & Kashmir v. Shiv Ram Sharma & Ors., AIR 1999 SC 2012).
11. In K. Nagaraj & Ors. v. State of Andhra Pradesh & Anr. etc., AIR 1985 SC 551 ,this Court examined the amended provisions of Andhra
Pradesh Public Employment (Regulation of Conditions of Service) Ordinance, 1983 by which the age of retirement was reduced from 58 to 55 years
and this Court upheld the amended provisions being neither arbitrary nor irrational. The court further rejected the submission of the appellants therein
that the said amended provisions would have retrospective application taking away their accrued rights. (See also State of Andhra Pradesh etc. etc. v.
S.K. Mohinuddin etc. etc., AIR 1994 SC 1474).
12. In view of the above, it is evident that even in government services where the terms and conditions of service are governed by the statutory
provisions, the Legislature is competent to enhance or reduce the age of superannuation. In view of the above, it is beyond our imaginations as why
such a course is not permissible for the appellantÂState while fixing the age of working of the District Government Advocates.â€
3(iv) It is well settled that in order for executive instructions to have the force of statutory rules, it must be shown that they have been issued either
under the authority conferred on the State Government by some statute or under some provision of the constitution providing therefore. In the instant
case the OMs in question have not been issued either under the authority conferred on the State Government by some statute or under some provision
of the constitution, therefore, it has to be held in the nature of administrative instructions and not statutory rules. Petitioners have no vested right to
remain in Government employment upto the age of 60 years. Their entitlement to continue upto the age of 60 years was only under OM dated
29.03.2013, which stands withdrawn vide office OM dated 4.11.2019. Both the office memorandums were issued by the State in exercise of its
administrative power. In (2004) 1 SCC 592, titled Sureshchandra Singh and others Vs. Fertilizer Corporation of India Ltd and othe, rHon’ble Apex
Court held that the Courts cannot issue a writ for enforcement of administrative instruction and that office memorandums are only administrative
directions not having force of law.
In P.U. Joshi and others Vs. Accountant General and others (2003) 2 SCC 632, it was held that question relying to constitution pattern, nomenclature
of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions is all
within the exclusive discretion and jurisdiction of the State subject to the limitation or restriction envisaged in the Constitution of India.
3(v) Petitioners cannot insist for continuing in service upto the age of 60 years on the strength of OM dated 29.03.2013. This OM did not create any
right muchÂless any vested right in their favour. It cannot be enforced in exercise of writ jurisdiction of this Court. More so when this OM has been
withdrawn by the State by issuing another OM. The respondents/State had the power to issue the OM as well as the power to withdraw it later by
issuing another OM. It has not demonstrated before us that OM issued on 4.11.2019 was unconstitutional.
The fixation of retirement age of persons with disabilities is within the domain of the State Government. Vide earlier OM dated 29.03.2013 the
retirement age for the blind government employees was enhanced from 58 to 60 years. Benefit of OM dated 29.03.2013 was later accorded to certain
other categories of differently abled persons. However OM dated 4.11.2019 has withdrawn OM dated 29.03.2013. As of now, age of retirement of
persons with disabilities is 58 years. It is not the case of the petitioners that they have been discriminated with any other category. It is not the case of
the petitioners that they have not been paid for the work they did while in service beyond the age of 58 years. It is also not the case of the petitioners
that recovery of any kind is being effected from them pursuant to OM dated 4.11.2019. It is not the case of the petitioners that they have any vested
right to continue in service till the age of 60 years. Petitioners have failed to point out as to how OM dated 4.11.2019 is illegal, arbitrary or
unconstitutional.
Therefore we find no merit in these writ petitions and the same are dismissed accordingly. The parties are left to bear their own costs. Pending
application(s), if any, shall also stand disposed of.
