IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 7583/2008 Decided on:22.6.2010 _____________________________________________ Sher Singh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the petitioner : Mr. Ajay Sharma, Advocate. For the Respondents: Mr. P.M. Negi, Dy. Advocate General. _____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner was appointed as Mortar Mate on temporary basis on 15.1.1960. He was confirmed on 22.8.1974. He was promoted to the post of Work Inspector on 29.12.1964 and was confirmed on 6.3.1979. The age of retirement as per old Recruitment and Promotion Rules for the post of Work Inspector was 60 years. State Government framed Recruitment and Promotion Rules under Article 309 of the Constitution of India in respect of 47 categories of work charge/work charge brought on regular cadre in the Department and these Rules were notified on 5.6.1995. However, vide office order dated 25.10.1996 issued by 1 Whether reporters of the local papers may be allowed to see the judgment? 2 the Executive Engineer, Bharwain Division, petitioner was retired from Government service with effect from 31.10.1996. As per Annexure A-2 dated 12.8.1998, the period with effect from 1.7.1995 to 31.10.1996 was to be treated as re-employment and pensionary benefits were to be calculated with reference to the pay on the date of deemed retirement. Petitioner made a representation to the respondents that he ought to have been permitted to work upto the age of 60 years. 2. Mr. Ajay Sharma has strenuously argued that since his client has been permitted to work upto 31.10.1996, the period with effect from 1.7.1995 to 31.10.1996 was also required to be counted towards qualifying service for the release of pensionary benefits. 3. Mr. P.M. Negi, learned Deputy Advocate General has justified the issuance of clarification on the basis of which the period with effect from 1.7.1995 to 31.10.1996 was to be treated as re-employment. 4. I have heard the learned counsel for the parties and have perused the record carefully. 5. Petitioner started working as Mortar Mate on temporary basis with effect from 15.1.1960. He was confirmed on 22.8.1974. He was promoted on 29.12.1964 as Work Inspector and was confirmed on 6.3.1979. His date of birth was 14.6.1937. However, the fact of the matter is that he was permitted to work beyond the age of 58 years upto 31.10.1996. It is not the case of the respondents that petitioner has either misled or misrepresented 3 the authorities on the basis of which he was permitted to work beyond the age of 58 years. Petitioner, for all intents and purposes, has worked with effect from 1.7.1995 to 31.10.1996. State has issued clarification that the period with effect from 1.7.1995 to 31.10.1996 was to be treated as re-employment. This decision of the State is unjustifiable and contrary to service jurisprudence. Once the petitioner has been permitted to work upto 31.10.1996, this period could not be treated as re-employment. The effect of treating this period as re-employment with effect from 1.7.1995 to 31.10.1996 is that this period has not been counted for pensionary benefits. Petitioner has lost 1½ years in this process. 6. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexure A-2 dated 12.8.1998 is quashed and set aside. Respondents are directed to count the period with effect from 1.7.1995 to 31.10.1996 as additional qualifying service for all intents and purposes, including payment of pension and salary etc. The amount of arrears shall carry interest@6% per annum. Needful be done within a period of ten weeks after the production of the certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma), Judge 22.6.2010 *awasthi*