1. The respondent No. 4 is a private college receiving 95% grant-in-aid from the government of Himachal Pradesh. The petitioner had been working therein as a Hostel Helper on regular basis w.e.f. 05.12.1989. The petitioner on attaining 58 years of age after putting 34 years of service, was sought to be superannuated from service on 30.04.2022, however, before that he obtain an interim order on 29.04.2022.
2 According to the petitioner, he is entitled to continue upto 60 years of age as per the amendment carried out by the State Government in Rule 56 of the Fundamental Rules, which provides that Class-IV employees appointed on part-time/daily wages basis prior to 10.05.2001 and regularized on or after 10.05.2001 shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years vide Notification dated 21.02.2018 (Annexure P-2).
3. According to the petitioner, the aforesaid Notification was adopted by respondent No. 4-College in regard to the retirement age of Peon/Class-IV vide communication dated 17.12.2021 (Annexure P-3). However, despite this, respondents vide order dated 07.03.2022 have ordered the petitioner to retire from service on attaining the age of superannuation on 58 years w.e.f. 30.04.2022.
4. Further case of the petitioner is that respondent No.4-College is trying to discriminate the petitioner vis-a-vis the other employees and have cited an example of one Padam Kumar, Helper, who according to him was allowed to continue till the 60 years of age and retired only thereafter.
5. It is, in this background, that the petitioner has filed the instant petition for the grant of following substantive reliefs:-
i) That in view of the facts and circumstances mentioned here-in-above in this writ petition, the writ petition may kindly be allowed and the impugned retirement notice dated 07.03.2022 contained in Annexure P-4 may kindly be quashed and set aside.
ii) That the respondent No. 2 may kindly be directed to allow the petitioner to continue till the age of 60 years by enhancing his retirement age from 58 to 60 years in view of the Notification dated 21.02.2018 and a recent judgment passed by this Hon'ble Court alognwith all consequential benefits and salary of extended period i.e. 2 years.
6. Respondent No. 4 has filed its reply wherein certain preliminary objections have been raised to the effect that respondent-College is not a State or authority within the meaning of Article 12 of the Constitution being Society registered under the Societies Registration Act. It is further submitted that the salaries and other emoluments of the Mess and the other Hostel Staff are paid out of the Hostel Fund, for which no grant- in-aid is given by the government. It is further averred that the staff employed in the Mess is not governed by the Rules framed by the Government or the instructions issued from time to time but are governed by the Service Conditions for Domestic Employees House St. Bede's College Rules, that came into effect on 01.07.1982, which the petitioner has accepted and worked accordingly. In terms of these Rules, the petitioner is to retire at the age of 58 years.
7. The petitioner has filed rejoinder, wherein the averments made in the petition have been reiterated and the averments to the contrary in the reply have been denied. We have heard learned counsel for the parties and have gone through the records of the case.
8. It is not in dispute that in terms of Clause-6 of the Service Conditions for Domestic Employees (supra), the retirement age is fixed 58 years, as is evident from Rule 6(a), which reads thus:-
6 (a). The retirement age shall be on completion of 58 years. The employee may be re-employed thereafter at the discretion of the management on an annual contract which shall not entitle him to any increment nor retirement benefits. Further, he will only be entitled to sick and casual leave.
9. Therefore, it is, thus, clear that the petitioner is to retire at the age of 58 years and not at 60 years as claimed by him.
10. Now, as regards the allegations of the petitioner being discriminated against one Padam Kumar, Helper, the respondent No. 4-College has conceded that it was on account of oversight that the age of Padam Kumar (supra) was mentioned as 60 years and he was permitted to work till the age of 60 years.
11. As regards, the Fundamental Rules, the same are not applicable to the staff posted in Hostel Mess of respondent No. 4- College and, therefore, the retirement age of these workers is 58 years all through and not 60 years as claimed by the petitioner.
12. That apart, it would be noticed that the petitioner has not been appointed through any known process of selection but was appointed only on the basis of the application submitted by him to this effect, which read thus:-
"APPENDIX-Z
JESUS AND MARY INSTITUTIONS DOMESTIC EMPLOYEES FORM OF APPLICATION (RULE-1)
To,
Sister Superior
Convents of Jesus and Mary, St. Bede's College,
Shimla.
Dear Sister,
I understand that there is a vacancy of a Waiter post in your establishment and I beg to apply for the same.
A full statement of my particulars is attached.
I feel I have the requisite skills, aptitude and motivation and if appointed, I agree to abide by the terms of appointment and Rule and Regulations of your establishment.
Sd/- Yours faithfully
From:
Address- Shiv Ram Pujar, Village Mangoo, Post Office Mangoo, Teh. Arki, Distt. Solan, (H.P.) Dated:18.03.1989
Particulars of ….............
Personal
Date of Birth : 13.04.64 Thirteen April Sixty four
Place of Birth: - Mangoo Dhar
Language spoken: - Hindi
Language written: - English & Hindi
Height: 5 ½ Five foot six inch
Weight 50 Fifty
Permanent Address: St. Bedes College, Shimla-2
Present Address: Shiv Ram Pujar, Village Mangoo Dhar
Educational
General: 9th Under Matric
Technical: -
Work Experience
Where Waiter Chandigarh 1 year in what capacity dates
Reference: Special Interest References:
Attached
Sd/-
Signature of Applicant
Birth Certificate, Medical, Letters of references"
13. The petitioner thereafter was appointed on 05.12.1989, simply on the basis of the application, and the same reads thus:-
"St. Bede's College, Shimla-171002 Letter of Appointment
Dear Shiv Ram
With reference to your application, we have pleasure in appointing you as a IV employee in our establishment. This appointment shall begin on 1.10.1988 on the following terms and conditions:
1. You will receive a Basic Salary of 810-20, 950-25-1200- 30-1350.
2. During your service with the establishment you will comply with the Rules and regulations of the establishment in force from time to time diligently, faithfully and exclusively employ yourself on the business of the establishment, using your best endeavour to promote the interest of the establishment.
3. You will be on probation for a period of 2 years and your confirmation will be subject to your showing the necessary aptitude and ability for work assigned to you. If you fail to show the necessary aptitude and ability on the job. Your services will be terminated without notice and without assigning any reason.
4. You will be governed generally by our service rules applicable to the employees of your rank from time to time.
5. You will treat as strictly confidential all the work on which you may be engaged during the period of your service with the establishments and all business of the establishment which may come to your knowledge.
6. Your duties will be as assigned to you by the Management from time to time.
We are enclosing a copy of the service Rules of this establishment.
Please sign the duplicate of this letter as acceptance of the above terms and conditions of service.
We hope that your period of service with us will be both pleasant and productive.
Sd/- Principal"
14. The perusal of the aforesaid letter of appointment goes to indicate that it was clearly stipulated in the letter that the services of the petitioner would be governed by the Service Rules of the College, as is evident from Clause-4 of the order of appointment. Thus, it is too late in the day for the petitioner to claim that the services are not governed by the service Rules as framed by the College or that his conditions of service are to be governed by the fundamental rules, more particularly, Rules 56 thereof.
15. In State of Maharashtra and others vs. Anita and others (2016) 8 SCC 293, Hon'ble three judges Bench of the Hon'ble Supreme Court held that once the appointment and its nature has been accepted, the employee cannot turn around and challenge the same. It shall be apt to reproduce paras 14 and 15 of the same, read as under:-
15. It is relevant to note that the respondents at the time of appointment have accepted an agreement in accordance with Appendix 'B' attached to Government Resolution dated 15.09.2006. The terms of the agreement specifically lay down that the appointment is purely contractual and that the respondents will not be entitled to claim any rights, interest and benefits whatsoever of the permanent service in the government. We may usefully refer to the relevant clauses in the format of the agreement which read as under:-
“1. The First Party hereby agrees to appoint Shri/Smt. (Party No. II) as a on contract basis for a period of 11 months commencing from to (mention date) on consolidated remuneration of Rs. (Rupees only) per month, and said remuneration will be payable at the end of each calendar month according to British Calendar. It is agreed that IInd party shall not be entitled for separate T.A. and D.A. during the contract period….
2. ….......
3. …......
4. …........
5. Assignment of 11 months contract is renewable for a further two terms of 11 months (i.e. total 3 terms), subject to the satisfaction of Competent Authority, and on its recommendations.
6. The Party No. II will not be entitled to claim any rights, interest, benefits whatsoever of the permanent service in the Government.”
16. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the government. The appointments of respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the Government initiated a fresh process of selection. Conditions of respondents’ engagement is governed by the terms of agreement. After having accepted contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria.
16. Consequently, we find no merit in this petition and the same is accordingly dismissed, so also pending applications, if any. Interim order dated 29.04.2022 is vacated.
17. Parties are left to bear their own costs.
