Facts of the case

The Appellant who has a permanent locomotor disability of 60%, was appointed as an Electrician with the first respondent on 13/3/1985. At the time of his appointment, the retirement age was 58 years. Based on his date of birth (i.e. 19/9/1960) he was due to retire on 18/9/2018. However, in accordance with the prevailing service rules, he was entitled to remain in service until the end of that month, (i.e. 30/9/2018).

On 29^th March 2013, the State government of Himachal Pradesh issued an Office Memorandum (OM) extending the age of superannuation or employees belonging to the physically handicapped (visually impaired) category from 58 years to 60 years.

Prior to his retirement, the Appellant submitted a representation to the authorities requesting that the benefit of the OM be extended to individuals with tother specified physical disabilities as well, including his own condition.

However, the first respondent rejected the Appellant’s request for age extension and issued a retirement notice dated 22/9/2018, stating that he would retire on 30/9/2018. Meanwhile, before reaching the age of superannuation the Appellant, filed Original Application No. (M) 508/2018 before the Himachal Pradesh Administrative Tribunal, seeking an extension of his retirement age from 58 years to 60 years in the light of the OM dated 29/3/2013.

While the Original application was still pending, the State Government, through an Om dated 4/11/2019, withdrew the earlier OM dated 29/3/2013 with immediate effect. As a result, the Original Application which was transferred to the High Court following the abolition of the Himachal Pradesh Administrative Tribunal was dismissed as withdrawn, with liberty granted to the Appellant to file a fresh petition challenging, inter alia, OM dated 4/11/2019.

Exercising this liberty, the Appellant filed a fresh Writ Petition before the High Court which was ultimately dismissed by the impugned order.

Contention of the Petitioner

Shri Subhro Sanyal, learned counsel for the Appellant, argued that limiting the benefit of the OM dated 29/3/2013 exclusively to visually impaired employees is violative of Article 14 of the Constitution of India. He contended that both The Persons with Disabilities (Equal Opportunities, Protection of 3 Rights and Full Participation) Act, 1995 (for short 1995 Act) and the subsequent enactment i.e., The Rights of Persons with Disabilities Act, 2016 (for short 2016 Act) recognise and extend benefits to all specified categories of disabilities from a homogeneous class and should be equally entitled to such benefits, even if reservations may be designated for a particular categories of disability.

It was further submitted that the Right of Persons with Disabilities Act, 2016 does not diminish any rights granted under the earlier 1995 Act, instead, it reinforces and expands those protections. Since locomotor disability under which the Appellant is classified is explicitly recognized in the 2016 Act, the Appellant had consistently pursued his claim for extension of service well before reaching the age of superannuation.

The Appellant argued that he was entitled to the benefit of the OM dated 29/3/2013, and once such a benefit is deemed to have been granted, its subsequent withdrawal would not affect his right to age extension, especially in view of the law laid down by the Supreme Court.

Accordingly, the Appellant prayed for the setting aside of the High Court’s impugned order and requested that he be granted the benefit of enhanced retirement age from 58 to 60 years, along with all consequential service benefits, including continuity of service.

Contentions of the Respondent

On behalf of the first Respondent, learned counsel Ms. Archita Nigam submitted that on the date the Appellant reached the age of superannuation, the OM dated 29.32013 had not been declared discriminatory by ay court. The said OM extended benefits only to employees falling under the visually impaired category, a classification the Appellant does not fall within. As such, the Appellant had no vested right to claim in an extension of service on that basis. Furthermore, since the OM was subsequently withdrawn, no benefit of service extension could be granted. Therefore, the High Court’s decision does not warrant any interference.

It was also submitted that even if the benefit under the OM dated 29.3.2013 were to be considered applicable to Appellant, such benefit could not be extended beyond the date of its withdrawal i.e. 4.11.2019

Discussion and Analysis

The Hon’ble Court, after considering the arguments presented by both sides, identified the following key issues for determination:

1. Whether the benefit of extended retirement age, as provided under the OM dated 29.3.2013, could be restricted solely to individuals with visual impairment, or whether it should also be made applicable to all categories of disabilities as recognized under the 1995 Act and the 2016 Act?
2. Whether the said benefit could be lawfully withdrawn by the subsequent OM dated 4.11.2019 and if so, what would be the legal consequence of such withdrawal on the Appellant’s entitlement?

Court’s Observation

Issue I

With respect to the first issue, the matter stands conclusively settled by the Hon’ble Supreme Court in Bhupinder Singh Vs Union Of India. In that case, the Court specifically examined the question:

“Whether the benefit of extension in service from 58 years to 60 years, granted to blind or visually impaired employee of the State Government, should be extended to persons suffering from other disabilities mentioned under the 1995 Act?”

The Supreme Court answered in affirmative, fully endorsing the decision of the Division Bench of the Punjab and Haryana High Court. The Court also affirmed the reasoning provided in support of the High Court’s conclusion, thereby extending the benefit of retirement age enhancement to all persons with disabilities covered under the 1995 Act.

In Bhupinder Singh, the State relied on the decision in Union of India vs. Devendra Kumar Pant to argue that all persons with disabilities need not be treated alike under the act, as different principles apply based on context in which the benefit is extended. However, the Supreme Court rejected this argument, clarifying that Devendra Kumar Pant dealt with promotions, whereas the issue in Bhupinder Singh is related to unequal treatment among already serving government employees with disabilities, with no question over their ability to perform their duties.

In Devendra Kumar Pant, the Supreme Court considered whether denying promotion due to inability to meet specific medical fitness criteria would violate Section 47(2) of the 1995 Act. The Court held that while a person cannot be denied promotion merely on the ground of disability, the situation changes if the disability adversely impacts the performance of duties in the higher post or poses a risk to the safety of the employee, co-workers, the public, or the employer’s assets. In such cases, denial of promotion is not solely due to the disability, but due to its financial impact and associated risks.

The Supreme Court in its considered view, held that the decision in Devendra Kumar Pant was rightly distinguished in Bhupinder Singh, as there was no rational basis to extend the benefit of increased retirement age to one category of disability (i.e. visual impairment) while denying it to other equally recognised under the 1995 and 2016 Acts. Therefore, if such a benefit is granted to the visually impaired, it must equally apply to all other categories of disabilities listed under both legislations.

Furthermore, the judgement in Bhupinder Singh has been consistently followed by the High Court of Himachal Pradesh in multiple cases including: CWP No. 7860 of 2021decided on 20.12.2022 and CWP No. 1577/2018 decided on 5.11.2018, against which SLP (C) Diary No. 18076 of 2019 was dismissed by the Supreme Court on 13.9.2019.

Based on the reasoning, the Court held that the benefit of extended retirement age under the OM dated 29.3.2013 cannot be restricted solely to individuals with visual impairment. Instead, this benefit must be extended to all persons with benchmark disabilities as recognised under the 1995 Act and reaffirmed under the 2016 Act.

Issue 2

The second issue for consideration was whether the benefit of extended retirement age under the OM dated 29.3.2013 could be validly withdrawn by the subsequent OM dated 4.11.2019

The Court noted that neither party submitted any document to show that the enhancement in retirement age for persons with specified disabilities was incorporated through amendments to service rules, regulations, or any statutory provision. Since the benefit was introduced via executive instructions, and through statutory means, the general principle under section 21 of the General Clauses Act applied namely, the power to issue an order included the power to rescind it. Accordingly, the withdrawal of benefits through the OM dated 4.11.2019 was held to be within the authority’s competence.

Additionally, the Court clarified that an employee does not possess a fundamental right to retire at a particular age. Termination of service upon reaching the prescribed age of superannuation, as per applicable rules, does not amount to “removal” under Article 311(2) of the Constitution.

The Court also referred to the judgment in K. Nagaraj & Ors Vs. State of Andhra Pradesh, (1985) 1 SCC 523, where a three Judge bench upheld the reduction of retirement age from 58 years to 55 years. It was observed that there is no rigid standard declaring one age more reasonable than another unless the policy is shown to violate established norms of employment planning or lacks a rational connection to its intended objective. But such was not the case here.

The crucial question that now arises is whether the Appellant is entitled to the benefit of the OM dated 29.3.2013 until he attended the age of 60 years, as originally provided or only up to 4.11.2019 the date on which the said OM was withdrawn by the subsequent OM.

The record indicates that the OM dated 29.3.2013 did not originally extend its benefits to the Appellant, as it was specifically limited to employees with visual impairment. Although the denial of this benefit was later challenged as discriminatory, and a similarly placed employee secured relief through an order dated 10.1.2018 from the Himachal Pradesh Administrative Tribunal, the order was appealed by the State before the High Court.

The Division bench of the Himachal Pradesh High Court, in CWP No. 1577 of 2018- H, dismissed the challenge on 5.11.2018, relying on the Supreme Court’s decision in Bhupinder Singh. Subsequently, the State’s special leave petition against the High Court’s order was also dismissed by the Supreme Court on 13.9.2019.

Following this, the State Government withdrew the OM dated 29.3.2013 by issuing a new OM on 4.11.2019. Importantly, at the time of this withdrawal, no judicial order was in place granting the benefit of the earlier OM to the Appellant.

Therefore, the Court held that no vested right existed in favour of the Appellant to continue in service until the age of 60. As a result, the Appellant is not entitled to claim service extension beyond 4.11.2019 the date on which the OM was formally withdrawn.

However, as held while deciding issue I, the benefit of the OM dated 29.3.2013 could not have been restricted only to visually impaired individuals. Persons with other disabilities, as recognised under the 1995 Act and the 2016 Acts were equally entitled to its benefits.

Accordingly, the Court held that since the Appellant falls within the category of employees with benchmark disabilities under these Acts he was entitled to the benefit of the OM during the period remained in force. Thus, the Appellant’s entitlement to the extended retirement age remained valid upto 4.11.2019.

The Court held that

The Supreme Court partly allowed the appeals and set aside the High Court’s judgement dated 28.7.2021, which had dismissed the Appellant’s writ Petition. The Court held that the Appellant was entitled to the benefit of continuation in service upto 4.11.2019, the date on which the OM dated 29.3.2013 was withdrawn.

As a result, the Appellant is entitled to receive full wages from 1.10.2018 to 4.11.2019, along with all consequential benefits, including those affecting his pension entitlements.

Credits: Adv. Siddhi Sawant