Summary
An electrician with 60 per cent locomotor disability was retired at 58 on 30.09.2018 and denied the benefit of a Himachal Pradesh Office Memorandum of 29.03.2013 that raised the retirement age to 60 for visually impaired employees; the OM was withdrawn on 04.11.2019. The Supreme Court held, following State of Punjab v. Bhupinder Singh, that the benefit could not be confined to the visually impaired and extended to all benchmark disabilities specified in the 1995 and 2016 Acts, but that the OM was validly withdrawn and no right had vested in the appellant by then; he was therefore entitled to continue in service only till 04.11.2019 with full wages from 01.10.2018 and consequential pensionary benefits.
Issues
- Whether the benefit of extension of retirement age from 58 to 60 under the OM dated 29.03.2013 could be confined to visually impaired employees or had to extend to employees with all disabilities specified in the Persons with Disabilities Act, 1995 and the Rights of Persons with Disabilities Act, 2016.
- Whether the extension could be withdrawn by the OM dated 04.11.2019, and if so, what effect the withdrawal had on the appellant's claim.
Provisions considered
- Article 14, Constitution of IndiaThere was no intelligible basis for conferring the age-extension benefit on one category of disability and denying it to another when both are specified disabilities under the 1995 and 2016 Acts; confining the OM to the visually impaired was discriminatory. (¶¶ 5, 14, 16)
- Sections 33 and 47(2), Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995Bhupinder Singh limited the equality principle to the three categories for which Section 33 contemplates reservation in employment, including locomotor disability. Section 47(2), which bars denial of promotion merely on the ground of disability, was construed in Devendra Kumar Pant in the context of promotion and was rightly distinguished since the present case concerns employees already in service whose ability to discharge their duties is not in doubt. (¶¶ 6, 12, 13, 14)
- Section 21, General Clauses Act, 1897Applying the general principle that the power to issue includes the power to rescind, the authority which issued the OM of 29.03.2013 was competent to withdraw it by the OM of 04.11.2019, there being no amendment of service rules or statutory provisions enhancing the retirement age. (¶ 18)
- Article 311(2), Constitution of IndiaAn employee has no fundamental right to a particular retirement age, and retirement on reaching the age of superannuation under the rules is not removal from service within Article 311(2). (¶ 18)
Held
- The question whether an extension of service from 58 to 60 years granted to visually impaired government employees must extend to employees with other disabilities under the 1995 Act stands settled by State of Punjab v. Bhupinder Singh, which endorsed the Punjab and Haryana High Court's affirmative answer, confined to the categories recognised for reservation under Section 33. Union of India v. Devendra Kumar Pant, decided in the context of promotion and disability affecting performance or safety, was rightly distinguished. (¶¶ 11, 12, 13, 14)
- The benefit of extension of retirement age under the OM dated 29.03.2013 could not be confined to the visually impaired category; it had to be available to persons with all benchmark disabilities specified in the 1995 Act and reiterated in the 2016 Act, there being no intelligible basis for the distinction. (¶¶ 14, 15, 16)
- Since the retirement age had been raised only by executive instruction and not by amendment of service rules, the authority that issued the OM could rescind it on the principle in Section 21 of the General Clauses Act; the OM dated 04.11.2019 was within competence. An employee has no fundamental right to the age at which he retires, and retirement on superannuation is not removal under Article 311(2); K. Nagaraj upheld even a reduction of the retirement age. (¶¶ 17, 18)
- The OM of 29.03.2013 by itself conferred no benefit on the appellant, and no judicial order had extended it to him before its withdrawal; hence no right vested in him on 04.11.2019 to continue till 60, and he cannot continue in service beyond that date. However, as persons with other specified disabilities could not be denied the OM's benefit while it was operative, the appellant was entitled to it until 04.11.2019. (¶¶ 19, 20, 21)
Result
Appeals partly allowed. High Court order dated 28.07.2021 dismissing the writ petition set aside; appellant held entitled to continuance in service until 04.11.2019, with full wages from 01.10.2018 to 04.11.2019 and all consequential benefits affecting pension. Pending applications disposed of.