Madhya Pradesh High Court
J.K. Sarsar vs State Of Madhya Pradesh on 25 March, 2021
Author: Vishal Dhagat
Bench: Vishal Dhagat
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
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Shri Vipin Yadav, Shri G.S. Thakur, Shri G.P. Kekre, Shri
Aviral Vikas Khare, learned counsel for the petitioners.
Shri Shobhitaditya, learned counsel for the respondent No.2
and 3.
Single Bench : Hon'ble Shri Justice VISHAL DHAGAT.
(O R D E R) 25/03/2021 Petitioners have filed this batch of writ petitions challenging communication made to them regarding their superannuation. The issue between petitioners and respondents is "whether petitioners are rightly being superannuated on attaining the age of 60 years?".
2. Counsel appearing for petitioners submitted that rules applicable to employees of State Government are also applicable to employees of respondents Corporation. Honourable Governor of Madhya Pradesh has promulgated Ordinance on 31.03.2018. By said Ordinance, fundamental Rule 56 was amended and age of superannuation was enhanced to 62 years. It is submitted that Corporation has already sent a proposal for enhancement age of 4 WP No.7796/2019 AND BUNCH CASES superannuation to 62 years. Said proposal is yet to be approved, but as Rules and Regulations applicable to employees of State Government are applicable in case of employees of Corporation, therefore, after issuance of Ordinance employees of Corporation ought to have been retired on attaining the age of 62 years and communication informing petitioners that they will superannuate on attaining age of 60 years is bad in law. It is further submitted by counsel for petitioners that identical issue has already been decided by this Court and order passed by Single Bench has been confirmed by Division Bench in WA No.748/2019. The matter is squarely covered by said judgement and petitions may be disposed off in light of said order.
3. Learned Single Judge in Writ Petitions No.8393/2019, 9431/2019 and 8767/2019 in its order dated 06.06.2019 held as under:-
"The State Government has promulgated ordinance to increase the age of retirement to the Class-I, Class-II officers and Class-III employees from 60 years to 62 years. Hence, by virtue of application of the Madhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu) Sanshodhan Adhyadesh, 2018 published in Madhya Pradesh Gazette (Madhya Pradesh Ordinance No.4 of2018) on 31/03/2018 (Annexure P/2) by which amendment incorporated in section 2 of Principal Act, in rule 56 of the Fundamental Rules for the words "sixty years" occurring twice, the words "sixty two years" shall be substituted by the Government of Madhya Pradesh thereunder shall apply on all force to the facts of the instant case."
Said order passed by learned Single Judge has been affirmed in Writ Appeal No.1088/2019 by Division Bench of this Court vide judgement dated 15.11.2019.
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4. Considered the judgement passed by Single Bench. Learned Single Judge quashed the communication of superannuation of petitioners on attaining age of 60 years in said writ petition. Petitioners were held to be entitled for all service benefits including monetary benefits accrued to him on the relevant post treating him to be in continue in service up to 62 years of age. Said judgement was affirmed by Division Bench. Division Bench held that Board of Directors of M.P. Warehousing Corporation by virtue of resolution No.7 on 05.03.1979 has fixed age of superannuation of Class-IV employees to be 58 years or as may be prescribed by the State Government from time to time for its employees. A Class-IV employee shall retire on attaining age of 60 years. Thus, the entire body of rules applicable on Government Servant by reference has been made applicable to employees of Corporation. The words "time to time" were introduced as to make retirement age of Government servant automatically applicable to Corporation employees. Division Bench relied in the case of Nagar Nigam Harijan Karmachari Sangh and another Vs. Municipal Corporation, Jabalpur [1974, MPLJ 588].
5. In Bunch of writ petitions and in writ appeal, which have been decided by this Court, regulation framed by MP Warehousing Corporation was relied upon. Order was passed in reference to words "time to time" which were introduced to make age of retirement of Government Servant automatically applicable to Corporation employees. It is to be seen whether there is any such provision in rules and regulations framed by Department of Food and Civil Supplies Corporation Ltd.
6. As per circular dated 15.07.1985, it is laid down that M.P. Civil Services Classification Control and Appeal Rules, 1966 and MP Civil Services Condition of Services Rules, 1961 are made applicable to all the employees of MP State 6 WP No.7796/2019 AND BUNCH CASES Civil Supplies Corporation Ltd. It was further laid down that except recruitment and promotion rules, no separate rules have been framed for employees of Corporation and, therefore, rules which are framed by State Government will remain applicable on employees of Corporation. Another order was issued by Managing Director on 04.10.1985, wherein it has been held that until rules are framed by the Corporation, rules which are framed by State Government will remain applicable. Thereafter, Governor of State of Madhya Pradesh has promulgated amended Ordinance of 2018 by which date of superannuation of State Government employees was increased from 60 to 62 years.
7. A clarification dated 22.04.2018 was issued by Finance Department of Government of Madhya Pradesh. In said clarification, it was stated therein that Board, Corporation etc. may make amended Ordinance dated 31.03.2018 applicable keeping in view their financial position and need after obtaining recommendation from related Administrative Department. Said clarification points out that concerned Corporation can make amended Ordinance applicable to their Corporation after seeking recommendation/permission from concerned Administrative Department and adopting it in their service rules.
8. On going through the circulars dated 15.07.1985 and 04.10.1985, it is clear that rules which have been enacted and in force for employees of State Government will be applicable on employees of MP State Civil Supplies Corporation Limited. Said circulars do not give any reference to rules, regulation or ordinance which may be enacted by State Government in future. Said Circulars refer to rules, regulation and ordinance which are in force at present. Circulars dated 15.07.1985 and 14.10.1985 are not parimateria with circular, resolution dated 05.03.1979 of MP Warehousing Corporation and, therefore, the 7 WP No.7796/2019 AND BUNCH CASES case of petitioner is not covered by judgement passed in bunch of writ petitions and in writ appeal No.1088/2019.
9. It is stated by counsel for petitioner that in 217th meeting of Board of Directors, in Agenda No.217/2019, there was a proposal to increase superannuation age of employees of Corporation from 60 to 62 years.
10. On said proposal, a resolution was passed and it was held that as per circular of Finance Department dated 27.04.2018, recommendation is to be taken from Administrative Department. Petitioner has not filed any documents to show that recommendation from Administrative Department has been received and amended Ordinance of 2018 is adopted by MP Civil Supplies Corporation.
11. Learned counsel for respondents has relied on Madhya Pradesh Fundamental Rule 7, which is quoted as under:-
"F.R. 7. No powers may be exercised or delegated under these rules except after consultation with the Finance Department. It shall be open to that department to prescribe, by general or special order, cases in which its consent may be presumed to have been given, and to require that its opinion on any matter on which it has been consulted shall be submitted to the Council of Ministers or Chief Minister in Co-ordination by the consulting department.
S.R. The Finance Department has declared, under Fundamental Rule 7, that its consent may be presumed to have been given to the exercise, by the authorities to whom they are delegated, of the powers delegated by Appendix II Part I."
Board of Directors in his resolution has resolved to get the recommendation of concerned Administrative Department. The action of Board of Directors is in consonance with Fundamental Rule 7. There is only a proposal existing at present to increase age of superannuation from 60 to 62 years. No 8 WP No.7796/2019 AND BUNCH CASES recommendation/permission has been obtained from concerned Administrative Department in consultation with Finance Department and amended Ordinance of 2018 is yet to be adopted in the rules of Corporation.
12. In view of same, it cannot be said that amended Ordinance of 2018 will automatically become applicable on employees of MP Civil Supplies Corporation Limited.
13. Writ petitions filed by the petitioners are dismissed.
14. A copy of this order be kept in the records of other connected matters.
(VISHAL DHAGAT) JUDGE shabana Digitally signed by SHABANA ANSARI Date: 2021.03.26 11:51:31 +05'30'