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Synopsis

The Supreme Court has said that an employee has no fundamental right as regards the age at which he would retire and moreover, termination of service of an employee on account of reaching the age of superannuation in accordance with law or rules regulating the conditions of service does not amount to his removal from service within the meaning of Article 311(2) of the Constitution.

Dealing with a plea by an employee with locomotor disability, a bench of Justices Manoj Misra and K V Vishwanathan said the benefit of extension of retirement age as provided under the OM issued by the Himachal Pradesh government on March 9, 2013 could not have been confined to visually impaired category. 

Rather, it should be available to persons suffering from all such benchmark disabilities as are specified in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rights of Persons with Disabilities Act, 2016, the bench said. 

No intelligible basis to confer benefit of age extension to one disabled category and deny it to the other when both are specified in the 1995 Act as well as the 2016 Act. In this view of the matter, if benefit of extension of retirement age is available to visually impaired category, the same ought to be available to other categories of disabilities specified in the 1995 Act as reiterated in the 2016 Act, the court added.

The appellant, Kashmiri Lal Sharma, sought the benefit of an OM of September 29, 2013 issued by the State of Himachal Pradesh extending the age of superannuation of physically handicapped (visually impaired) category of employees from 58 years to 60 years.  

His counsel said the appellant had been pressing his claim for extension of service since much before attaining the age of superannuation. Hence, the benefit of the OM should have been made available to the appellant; and once the benefit of that OM is accorded, its withdrawal would not curtail the extension, which would be deemed to have been granted in the light of the law laid down by the top court. He asked the court to set aside the impugned order of the high court and grant the benefit of extension of retirement age from 58 to 60 years, with all consequential benefits including continuity of service.   

The state counsel said the OM conferred benefits only on employees belonging to visually impaired category, to which the appellant did not belong, therefore, there could be no vested right for seeking extension of the age of retirement, and once the OM stood withdrawn, the appellant could not have been granted any benefit of extension of service. Accordingly, the decision of the high court called for no interference.

The court examined the issue of whether the benefit of extension of retirement age for the physically disabled category could be confined to persons with visual impairment as provided in the 2013 OM or it should be available to persons suffering from all such disabilities as are specified in the 1995 Act and the 2016 Act.

Referring to State of Punjab and Others Vs Bhupinder Singh (2014), the bench said, if benefit of extension of retirement age is available to visually impaired category, the same ought to be available to other categories of disabilities specified in the 1995 Act as reiterated in the 2016 Act.

The court held that the benefit of extension of retirement age as provided under the OM could not have been confined to the visually impaired category. Rather, it should be available to persons suffering from all such benchmark disabilities as are specified in the 1995 Act and the 2016 Act.     

It examined the next issue, whether the benefit of the OM of March 29, 2013 could be withdrawn as was done by the Office Memorandum of November 04, 2019.

The court noted the parties had not brought on record any document to canvass that the retirement age of persons suffering from specified physical disabilities was enhanced by amending the service rules or regulations or statutory provision and therefore, change in service conditions could not have been made by way of office memorandums or executive instructions.

It felt that the 2019 OM was well within the competence of the authority that issued the 2013 OM. Consequently, the 2019 OM could not be faulted for lack of competence. 

Otherwise also, an employee has no fundamental right as regards the age at which he would retire. Moreover, termination of service of an employee on account of reaching the age of superannuation in accordance with law or rules regulating the conditions of service does not amount to his removal from service within the meaning of Article 311(2) of the Constitution of India, the bench said, citing K Nagaraj and Others Vs State of Andhra Pradesh and another, (1985).

The court then came to the question of whether the benefit of the 2013 OM would be available to the appellant till he attained the age of 60 years as propounded by it, or till November 04, 2019 only i.e., the date when it stood withdrawn by the OM.  

Since it has been held that persons suffering from other specified disabilities could not have been denied the benefit of the 2013 OM, the bench said, "We are of the view that till the date the said OM was operative, the appellant was entitled to its benefit as, admittedly, he fell in the category of employee suffering from such disabilities as are specified in the 1995 Act and the 2016 Act".

Accordingly, the court allowed the appeal and set aside the impugned 2017 judgment of the high court. "The appellant shall be entitled to the benefit of continuance in service until 04.11.2019. In consequence, he shall be entitled to full wages from 01.10.2018 to 04.11.2019, with all consequential benefits that may impact his pension," the bench ordered.

Case Title: Kashmiri Lal Sharma Vs Himachal Pradesh State Electricity Board Ltd & Anr