Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. Upon consideration of the rival submissions, the following issues fall for our consideration: Whether the benefit of extension of retirement age for the physically disabled category could be confined to persons with visual impairment as provided in the OM dated 29.03.2013 or it should be available to persons suffering from all such disabilities as are specified in the 1995 Act and the 2016 Act? II) Whether such extension could be withdrawn as was done by the OM dated 04.11.2019? If yes, then what would be its effect on the claim of the appellant? Issue I
11. As regards the first issue, the same stand settled by the decision of this Court in Bhupinder Singh (supra), wherein this Court specifically framed the issue, “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” and answered the same in the following terms: “aforesaid issue has been answered by a Division Bench of the Punjab and Haryana High Court in the affirmative. We fully endorse the aforesaid determination rendered by the High Court, and also affirm the reasons recorded in arriving at the aforesaid determination.”
12. It may be noted that in Bhupinder Singh (supra), an argument was raised on behalf of the State, based on a decision of this Court in Union of India v. Devendra Kumar Pant (2009) 14 SCC 546, that all persons with disability are not treated equally or similarly under the Act as different principles relating to non-discrimination apply depending upon the context in which the benefit is extended. This argument was repelled by this Court stating that Devendra Kumar 454 Pant’s (supra) decision was in the context of promotion whereas the High Court order under challenge was in respect of discrimination between persons who are already engaged in government service and there is no challenge to their ability to discharge their duties in which they are engaged.
13. Besides that, in Devendra Kumar Pant (supra), the issue which arose for consideration was whether refusal to give effect to the promotion unless the incumbent obtains fitness certificate in a particular medical category would violate Section 47 (2)1 of the 1995 Act. Interpreting the said provision, this Court held that the aforesaid provision would mean that a person who is otherwise eligible for promotion shall not be denied promotion merely or only on the ground that he suffers from a disability. But if the disability would affect the discharge of functions or performance in a higher post or if the disability would pose a threat to the safety of the co-employees, members of the public or employee himself, or to the assets and equipment of the employer, position would be different. It was thus observed that if the promotion is denied on the ground that it will affect the safety, security and performance, then it is not denial of promotion merely on the ground of his disability, but is denial of promotion by reason of the disability plus something more, that is, adverse effect of the disability upon the employee’s performance of the higher duties or functions attached to the promotional post.
14. In our considered view, the decision in Devendra Kumar Pant (supra) was rightly distinguished in Bhupinder Singh (supra) as there appeared no intelligible basis to confer benefit of age extension to one disabled category and deny it to the other when both are specified in the 1995 Act as well as the 2016 Act. In this view of the matter, if benefit of extension of retirement age is available to visually impaired category, the same ought to be available to other categories of disabilities specified in the 1995 Act as reiterated in the 2016 Act.
15. Besides above, the decision in Bhupinder Singh (supra) has been followed by the High Court of Himachal Pradesh in several of its decisions (i.e., CWP No.7860 of 2021 : The Principal Secretary Section of 47 (2) of 1995 Act: “No promotion shall be denied to a person merely on the ground of his disability.” [2025] 5 S.C.R. Kashmiri Lal Sharma v. Himachal Pradesh State Electricity Board Ltd. & Anr. Health and Family Welfare & Anr. V. Surender Kumar Vashisth, decided on 20.12.2022; and CWP No. 1577/ 2018 -H: State of H.P. & others v. Krishan Chand, decided on November 05, 2018, against which SLP © D. No. 18076 of 2019 was dismissed by this Court on 13.09.2019).
16. For the reasons recorded above, it is held that the benefit of extension of retirement age as provided under the OM dated 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. Issue II
17. The next issue is whether the benefit of the OM dated 29.03.2013 could be withdrawn as was done by the Office Memorandum dated 04.11.2019.
18. In this regard, we observe that the parties have 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. 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 Section 21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws. – Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to like sanction and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. 456 Constitution of India.3 In K. Nagaraj and Others v. State of Andhra Pradesh and another, (1985) 1 SCC 523, a three-Judge Bench of this Court upheld reduction of the age of retirement from 58 years to 55 years. While doing so, this Court observed that “it is not possible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. If the policy adopted for the time being by the Government or the Legislature is shown to violate recognized norms of employment planning, it would be possible to say that the policy is irrational since, in that event, it would not bear reasonable nexus with the object which it seeks to achieve. But such is not the case here.”
19. Now, the question that arises for our consideration is whether the benefit of the OM dated 29.03.2013 would be available to the appellant till he attained the age of 60 years as propounded by it, or till 04.11.2019 only i.e., the date when it stood withdrawn by the OM dated 04.11.2019.
20. In this regard, the record reveals that the OM dated 29.03.2013 by itself did not confer any extension benefit to the appellant as its benefit was confined to visually impaired category. No doubt, denial of its benefit was claimed to be discriminatory and, earlier, a similarly situated employee like the appellant laid a claim before the Himachal Pradesh Administrative Tribunal and the Tribunal, vide order dated 10.01.2018, extended its benefit to the employee who suffered from other specified disability. But this order of the Tribunal was challenged by the State of H.P. before a Division Bench of the High Court through CWP No.1577 of 2018-H, which was dismissed on 05.11.2018 by relying upon earlier decision of this Court in Bhupinder Singh (supra). Thereafter, against the order of the Division Bench (passed in CWP No.1577 of 2018-H), the State of H.P. filed an SLP before this Court which came to be dismissed on 13.09.2019. As a result, the State Government withdrew the OM dated 29.03.2013 vide OM dated 04.11.2019. By that time, there was no judicial order conferring benefit of OM dated 29.03.2013 on the appellant. Hence, in our view, on the date when the OM dated 04.11.2019 was issued, no right vested in the appellant to continue in service up to the age of 60 years. We are therefore of the considered view that the appellant Bishnu Narain Misra v. State of Uttar Pradesh and others, AIR 1965 SC 1567 : 1964 SCC OnLine SC 72 [2025] 5 S.C.R. Kashmiri Lal Sharma v. Himachal Pradesh State Electricity Board Ltd. & Anr. is not entitled to continue in service beyond 04.11.2019 i.e., the date on which the OM dated 29.03.2013 was withdrawn.
21. 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.
22. Accordingly, these appeals are partly allowed. The impugned judgment and order dated 28.07.2021 of the High Court dismissing the Writ Petition of the appellant is set aside. The appellant shall be entitled to the benefit of continuance in service until 04.11.2019. 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.
23. Pending applications, if any, stand disposed of. Result of the case: Appeals Partly allowed. †Headnotes prepared by: Ankit Gyan