Employee Has No Fundamental Right Regarding Age At Which He Would Retire; Termination Due To Superannuation Is Not Removal From Service: Supreme Court

The two appeals arose from a writ petition filed by the appellant for declaring the retirement order, seeking to retire the appellant at the age of 58, as null and void in view of the Office Memorandum (OM) issued in 2013. A plea was also raised for declaring the OM issued in 2019, withdrawing the 2013 OM as null and void, or, in the alternative, to declare the same as not applicable to the appellant.

The Division Bench of Justice Manoj Misra and Justice K.V. Viswanathan said, “In these circumstances, applying the general principles, as enshrined in Section 212 of The General Clauses Act, the power to issue would include the power to rescind, we are of the view that the OM dated 04.11.2019 was well within the competence of the authority which issued the OM dated 29.03.2013. Consequently, the OM dated 04.11.2019 cannot 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.”

AOR Subhro Sanya represented the Appellant while Senior Advocate Abhinav Mukerji represented the Respondents.

Factual Background

The appellant, being a person with permanent locomotor disability to the extent of 60 per cent was appointed as an Electrician with the Himachal Pradesh State Electricity Board Ltd. (first respondent) in 1985. On the date of his appointment, he would have attained the age of superannuation upon completing 58 years, which, according to his date of birth would have been September 18, 2018. However, by virtue of the extant service conditions, he would have continued in service till the last date of the month in which he attained the age of superannuation i.e., till September 30, 2018.

In 2013, an OM was issued by the State of Himachal Pradesh extending the age of superannuation of the physically handicapped (visually impaired) category of employees from 58 years to 60 years. Claiming that the benefit of the said OM should also be extended to persons suffering from other specified physical disabilities, the appellant, before his retirement, represented to the authorities to grant him the benefit of age extension. The respondent Board, however, did not accept the request for age extension and instead served a notice of retirement in 2018.

However, before the date of attaining the age of superannuation, the appellant had filed an Original Application before the Himachal Pradesh Administrative Tribunal for enhancement of his retirement age from 58 years to 60 years in view of the 2013 OM. While the same was pending, the State withdrew the 2013 OM. As the application was withdrawn, a fresh petition was filed before the High Court, which was dismissed by the impugned order.

Reasoning

The Bench referred to the judgment in Bhupinder Singh vs. State of Punjab and Others (2010) wherein the Court had answered in affirmative on the issue of whether the benefit of extension in service from 58 years to 60 years granted to blind or visually impaired employees of the State Government should be extended to persons suffering from other disabilities mentioned under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. “For the reasons recorded above, it is held that the benefit of extension of retirement age as provided under the OM dated 9 29.03.2013 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 1995 Act and the 2016 Act”, the Bench emphasized.

On the issue of whether the benefit of the 2013 OM could be withdrawn as was done by the 2019 Office Memorandum, the Bench noted that 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.

The Bench was of the view that on the date when the 2019 OM was issued, no right vested in the appellant to continue in service up to the age of 60 years and the appellant was not entitled to continue in service beyond September 4, 2019 i.e., the date on which the 2013 OM was withdrawn. “However, as we have held, while deciding issue I, that persons suffering from other specified disabilities could not have been denied the benefit of the OM dated 29.03.2013, 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”, it stated.

Thus, partly allowing the appeal and setting aside the judgment dismissing the Petition of the appellant, the Bench held that he shall be entitled to the benefit of continuance in service until November 4, 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”, it ordered.

Cause Title: Kashmiri Lal Sharma v. Himachal Pradesh State Electricity Board Ltd. & Anr. (Neutral Citation: 2025 INSC 472)

Appearance:

Appellant: AOR Subhro Sanya

Respondents: Senior Advocate Abhinav Mukerji, Advocates Khushboo Hora, Archita Nigam, AOR Purnima Krishna

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