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TMI Blog2025 (5) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ents to hold a meeting of the DPC for promotion of the petitioners to the post of Director. 3. The facts are not in dispute that petitioner Vishal Sharma in CWP No. 231 of 2025 has superannuated on 31.01.2025 and fell in the zone of consideration for appointment to the post of Director, in case the post would have been filled up in accordance with the Recruitment and Promotion Rules. Likewise, the other petitioner is still continuing in service and falls within the zone of consideration for appointment to the post of Director. 4. It is averred that impugned Notification dated 02.01.2025, whereby re-employment has been granted to respondent No. 4 on the post of Director is contrary to the provisions of law and deserves to be quashed and set aside. It is averred that respondent No. 4 before granting the re-employment was necessarily obliged and duty bound to have followed the provisions contained in Chapter 22 of Hand Book on Personal matters, Government of H.P., which contains the provisions with respect to extension and re-employment and is mandatory as held by this Court in CWPIL No. 201 of 2017. 5. The official respondents No. 1 to 3 have filed their j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate govt.) decides on the age limit for different posts. F.R. 56 contains detailed provisions about the specific age of superannuation. 22.2 Distinction between Extension and Reemployment The term "extension" is quite different from the term/ expression "reemployment". Extension in service- The extension in service is continuance in service and the officer/official does not superannuate or retires on reaching the date of superannuation. Further, the period of extension in service counts for qualifying service for the purpose of pension, gratuity and other retirement benefits, besides entitling the incumbent to full pay and allowances and increments etc. In addition, the concerned officer/officials in whose favour extension in service is granted remains a member of service if he/she was so appointed and will be bound by the specific rules governing the service. Re-employment- The employment after actual superannuation or retirement is called "reemployment". The re-employment may be from the date following the date of superannuation or after some period. A re-employed officer/official gets pension and his/her pay is fixed under special orders. A reemployed officer/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f scientific/technical personnel. This should not be construed to mean that extensions of service/reemployment can be granted to non-scientific 'non-technical personnel' upto the age of 60 years and to scientific/technical personnel upto the age of 62 years more or less as a matter of course. The overriding consideration for the grant of extension of service/reemployment is that it must be clearly in the public interest and in addition satisfy one of the following two conditions:- (i) that other officers are not ripe enough to take over the job: or (ii) that the retiring officer is of outstanding merit. Test (i) would be satisfied only if there is shortage in particular specialisation or if it is not possible to find a suitable successor or if the officer is engaged on a work or project of vital importance which is likely to produce results in a year or two. If officers in the next lower post are not eligible for promotion on the ground that they have not put in the minimum service in the lower grade prescribed under the rules, no promotions can be made to the higher grade, unless such officers put in the requisite length of service. But officers who are eligible for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly followed. The State Government in the Department of Personnel reiterated that the extension/re-employment beyond the age of retirement/superannuation has to be allowed in very rare and exceptional circumstances and strictly in accordance with provisions provided under Chapter-22 of the Hand Book on Personnel Matters Vol-II (2nd edition) and the provisions of FR 56 (d). Extension in service/re-employment given if any, in government service without observance of the above prescribed provisions of rules will be construed as contempt of the Court and the concerned Administrative Department shall solely responsible for such violation. (H.P. Govt. Department of Personnel letter No. Per(AP.B)E(3)-56/2017 dated 08-02- 2018- Annexure 22.2) 12. It would be clear from the aforesaid provisions that this Court while disposing of CWPIL No. 201 of 2017 had passed specific directions that "henceforth no employee shall be given extension or be re-employed beyond the age of superannuation/retirement save and except, in accordance with the Chapter-22 of the Hand Book on Personnel Matters Vol-II (2nd Edition) and the provisions of Fundamental rules 56(d). Letter and spirit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r necessary action in the matter as per observations of the Honourable Chief Minister under intimation to this office as well as quarter concerned." 16. It is thereafter that the department processed the file in purported compliance to Chapter 22 and the relevant noting reads as under:- Dy. No. 2110308/AP-I/21.12.2024 Ps/29-31:- The AD (Animal Husbandry) has forwarded a U. O. note from the Special Secretary to the Chief Minister along-with representation of Shri Chander Kumar, Hon'ble Minister of Agriculture & Animal Husbandry, HP which is regarding extension-in-service/re-employment in favour of Dr. Pradeep Kumar Sharma, Director, Animal Husbandry, HP who is due to retire on 31.12.2024 on attaining the age of superannuation. The Hon'ble Chief Minister has observed as under: - "Approved on six months" The proposal for extension/re-employment beyond the age of retirement has to be considered in accordance with the provisions mentioned in Chapter-22 of the Hand Book of Personnel Matters, Volume-II and in accordance with the provisions of FR 56(d). Point 1 and 2 of Para 22.4 of Chapter 22 of Handbook on Personnel Matters, Volume-II (P/32-33) provides as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the affidavit and as such, petition is disposed of with a direction henceforth no employee shall be given extension or be reemployed beyond the age of superannuation/retirement save and except, in accordance with the Chapter-22 of the Handbook on Personnel Matters, Volume-II (2nd Edition) and the provisions of the Fundamental Rules, 56(d). Letter and spirit of the criteria prescribed and the rules framed be strictly followed. 2. It is, therefore, reiterated that the extension is service/re-employment beyond the age of retirement/superannuation has to be allowed in very rare and exceptional circumstances and strictly in accordance with provisions provided under Chapter-22 of the Handbook on Personnel Matters, Volume-II (2nd Edition) and the provisions of FR 56 (d)." In this regard, it is submitted that the AD (Animal Husbandry) has also furnished proposal to convene the DPC meeting for filling up the post of Director, Animal Husbandry, HP as the present incumbent Dr. Pradeep Kumar Sharma is going to retire on 31.12.2024 (A/N). The proposal is being put up on separate file. The AD has furnished particulars of 4 eligible Joint Directors and Dr. Vishal Sharma, Joint Director is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promotion to the post of Director, AH. He has further submitted that he hails from Scheduled Caste community and it is the primary duty of the State to safeguard the career aspects of the officers/officials belonging to weaker/deprived sections of the society. He has submitted that the extension in service to any predecessor above to him in the department hierarchy, shall be construed as denial of opportunity to him and he will be compelled to take recourse to every administrative/legal remedy for such denial to any person belonging to weaker sections of the society. Therefore, he has requested to consider his representation and to consider him for promotion to the post of Director, AH w.e.f. 01.02.2025." 19. The matter after being processed at the level of Secretary Personnel was then placed before the Chief Secretary, who appended the following note:- "May take a view keeping in view the position at N/19 to 21. 20. Finally, when the matter was placed before the Hon'ble Chief Minister on 30.12.2024, he observed in writing as under:- "May be re-employed for six months". 21. Consequent thereupon that respondent No. 4 came to be appointed on the post of Director vide N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployment to Government employees beyond the age of superannuation. 1. Designation of Post. 2 Duration of the post: 3. Scale and terms of the post and perquisite attached, if any: 4. Whether financial sanction for the creation of post/continuance of post for the duration shown at (2) has been obtained: 5. Method of recruitment: 6. Name and the terminal date of appointment of the outgoing incumbent of the post: 7. Name of the officer proposed for appointment and the service to which he belongs: 8. Full service particulars of the officer with date of birth and pay drawn: 9. Names of other officers considered: 10. If promotion post, whether copies of proceedings of a D.P.C are being enclosed? If not, why not? 11. Whether character roll of the officers proposed and those considered are being sent. If not, why not? 12 (i) If the proposal involves extension/re-employment, please indicate: 13 (a) Whether the post is scientific/technical or non scientific/non-technical: (b) Whether the officer is to be granted extension of service or re-employment: c) Periods of extension/reemployment granted earlier to the officers, if any: d) Date from wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re statutory, the policy guidelines are relatable to the executive power of the Chandigarh Administration. It is axiomatic that having enunciated a policy of general application and having communicated to it all concerned including the Chandigarh Engineering College, the Administration is bound by it. It can, of course, change the policy but until that is done, it is bound to adhere to it." 27. A policy/policy decision/policy matter is made by Government after considering all the points from different angles in framing the policy the Government also takes into consideration the administrative efficiency and other incidental matters. Once the Government issues administrative orders, executive instructions, it is obligatory on its officials to execute the same in its letter and spirit. The rule of law casts a duty on the administrative functionaries to act within the framework of the law, be it law made by the legislature, subordinate legislation or executive orders issued under Article 73 and 162 of the Constitution. They are also obliged to follow the circulars/memos and instructions issued by the Government. 28. In the matter of policy decision of the Government, it is trite th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Chand Shyam Lal vs. Union of India and others, 1976 SC 789 and Chandra Kishore Jha vs. Mahabir Prasad and others, J.T. 1999 (7) 256. Suffice it, therefore, to observe that State Government is obligated to abide by its own instructions as contained in Chapter-22. 34. Moreover, in addition to the existence of extraordinary circumstances, the re-employment can only be made in public interest. The State has to consider the need for reemployment in the larger public interest of public as well as the department and its decision ought not to be sponsored by private or political interests. 35. The Government is obliged to balance the need for re-employment in public interest on the one hand and its obligation to consider the cases of other eligible candidates or their non-availability on the other. This approach alone would be in accordance with the specific instructions issued by the Government itself. The decision of the Government in reemploying a Government servant, thus, must stand the acid test of duel criteria afore referred. 36. As already observed above, the sole ground for extension/re-employment was the recommendation of the Hon'ble Minister, upon which, the Hon'ble Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n public grounds and it is for this precise reason that the respondents, in their wisdom, provided for a proper procedure for processing cases of extension in service/re-employment. 41. It is more than settled that extension in service/reemployment, is only to be made in exceptional circumstances, whereas the instant case, is one "spoil system" as the reemployment has been made illegally. Merely because the recommendation has come from an elected representative, would not justify the extension/re-employment, in absence of satisfaction recorded. 42. Since, the respondents have failed to follow the procedure as contemplated in Chapter 22 of the Hand Book on Personal Matters, which as per directions of this Court passed in CWPIL No. 201 of 2017 titled as Court on its own motion vs. State of H.P and another, decided on 19th December, 2017, have been held to be binding on the State Government and further directed to be followed in letter and spirit. Therefore, the re-employment granted to respondent No. 4 cannot be countenanced and the same is required to be quashed and set aside. 43. In view of the discussion made hereinabove, both the writ petitions are allowed. The re-em ..... X X X X Extracts X X X X X X X X Extracts X X X X
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