In Case of Purely Professional Engagement in the Public Sector, the Court Cannot Interfere in the Orders Unless It Is Unconstitutional: Himachal Pradesh High Court

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Excerpt

A petition was filed in the Court challenging the action of the State in relation to an order passed by the government. The order passed, related to the increase in age of retirement of employees with disabilities working in the state government. The Court rejected the Petition. The High Court upheld the decision of the State.

Brief Facts

The Petitioner, an orthopedically handicapped employee of the Respondent, prayed for substantive reliefs through the present writ petition. While all the reliefs were allowed by the Court, one of the reliefs prayed for, raised an issue. In the relief prayed, the Petitioner asked for the grant of the writ of Mandamus. This was to direct the Respondent authorities to grant him retirement with pension benefits after attaining the age of sixty years, from the year 2022.

In 2013, the State government raised the retirement age of people with visual disabilities from fifty-eight to sixty years. Later, the State extended this rule to employees having disabilities similar to the Petitioner. This memorandum was withdrawn in 2019.

The issue before the Court pertained to the effect of the subsequent memorandum issued. Further, the Petitioner challenged the withdrawal of the memorandum.

Issues Raised

Whether the government can enhance or reduce the age of superannuation? In doing the same, whether it should restore the memorandum that was withdrawn?

Arguments before the Court

The Petitioners allege that the withdrawal is wrongful. The Petitioners have prayed through this petition, for the restoration of the Order.
Whereas, the Respondent has opposed these arguments, claiming that the Respondent has the power to exercise such powers. Thus, withdrawal is completely accurate.

Observations of the Court

The High Court observed that the aforementioned question and challenge to the action of the State to withdraw the order has been answered by the High Court in the case of Ses Ram vs. State of H.P. and others. The Petitioner relied on the judgment given in the case Union of India vs. A.S. Gangoli & others (2007) 6 SCC 196. In this case, the Apex Court considered the issue of the retirement age of persons in Air force service.

The High Court held that the facts and situation of the aforementioned case are very different. The High Court held that the ratio in the said case cannot be used to support their stand in the present case. Thus, the petition cannot be saved based on the strength of judgment delivered in the said case.

The High Court mentioned several precedents which dealt with synonymous matters.

The High Court quoted the case of State of Uttar Pradesh and others Vs. Hirendra Pal Singh & others, reported in (2011) 5 SCC 305. A three-judge bench of the Supreme Court ordered the reversal of an order given by the lower court. The lower Court passed an order increasing the age of retirement when the same reduced by the State. The Supreme Court held that the Court cannot interfere in the workings of the government unless it is unconstitutional.

The Apex Court further observed that, in the public sector, the terms and conditions of service are governed by the statutory provisions. Therefore, the Legislature is qualified to change the age of retirement.

The precedents affirmed that the High Court cannot issue a writ in such matters as they are only administrative orders, relating to professional engagement. The High Court cannot direct the State to reduce and increase the age of superannuation. These decisions lie entirely in the preference and jurisdiction of the State.

Judgment

As per the aforementioned facts and exposition of the law, the High Court held that the Petitioner has no right to remain in Government employment up to the age of sixty years. Their entitlement to continue up to the age of sixty years was only under the former order dated 29.03.2013. This order was later withdrawn on 4.11.2019. Thus, the Petitioner is bound to follow the present order wherein the retirement age is fifty-eight.


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