Rajasthan High Court - Jodhpur
V.K. Sharma Inspector (Cipher) vs Union Of India on 26 April, 2019
Author: G.R. Moolchandani
Bench: G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
D.B. Spl. Appeal Writ No. 525/2019
With
D.B. Civil Misc. Stay Application No.5818/2019
In
S.B. Civil Writ Petition No.5347/2019
V.K. Sharma Inspector (Cipher) S/o Shri Lt. Surendra Bhushan,
aged about 56 years, R/o Sector HQ BSF Jaisalmer, Old Location
quarter no.68 type II Jaisalmer Raj.
----Appellant
Versus
1. Union Of India through Secretary, Home Ministry of India,
North Block Central Secretariat, New Delhi
2. The Director General, HQ, DG, BSF, Force Headquarter, BSF,
New Delhi
3. The Inspector General, BSF, HQ BSF, Jodhpur, Rajasthan
4. The Director, Accounts, PAO, BSF, Pushpa Bhawan, Madangir,
new Delhi
5. The Additional Director General (BSF Comn & IT DTE) CGO
Complex, FHQ, BSF, Lodhi Road, New Delhi - 110 003
6. Director Deputy Inspector General, SHQ, BSF, Jaisalmer,
Ramgarh Road, Jaisalmer, Rajasthan
----Respondents
For Appellant(s) : Mr. Navneet Singh Birkh
For Respondent(s) : Mr. Nrapen Acharya for
Mr. Sanjeet Purohit, Assistant
Solicitor General
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI
Judgment 26/04/2019 This appeal is directed against interim order dated 23.04.2019 passed by the Single Bench dismissing the stay application in S.B. Civil Writ Petition No.5347/2019 filed by the appellant.
The appellant in the writ petition sought a direction to the respondents to continue him in service till he attains the age of 60 (Downloaded on 05/06/2021 at 04:03:11 AM) (2 of 6) [SAW-525/2019] years, i.e., upto 30.04.2022, as per Rule 12 of the Border Security Force, Radio Operator and Radio Mechanic (Non-Gazetted) Cadre Recruitment Rules, 2018 (for short, 'the Rules of 2018'), which provides for power to relax any of the provisions of the Rules with respect to any class or category of persons, and also in accordance with the judgment of the Delhi High Court dated 31.01.2019 in Dev Sharma Vs. ITBP - WP (C) No.1951/2012. The Delhi High Court, in aforesaid judgment, declared Rule 43 of the CRPF Rules, 1955 and other incidental Rules to the extent they provided that a member of the Central and Allied Police Forces (CPFs) including ITBP, the BSF and the CRPF up to the rank of Commandant would retire at 57 years, to be discriminatory and violative of Article 14 of the Constitution of India and directed the Union of India to consider enhancing the age of superannuation of the cadres indicated therein, so as to equalize the same.
The case of the appellant before learned Single Judge was that the Union of India has yet to take a decision on enhancing the age of superannuation beyond 57 years upto 60 years and in the meantime the appellant is due to retire on 30.04.2019 and, therefore, the respondents be directed to continue him in service even after 30.04.2019.
Learned counsel for the appellant has relied on the order of the Madras High Court dated 28.02.2019 in Writ Petition No.4969/2019 filed by an employee of CRPF, which is a clarificatory order of the order dated 22.02.2019, whereby the concerned employee was directed to be continued in service by interim order. Learned counsel further submitted that the Kerala High Court has also passed a similar order on 24.04.2019 in WP (C) 12530/2019 in regard to an employee of BSF, and by interim (Downloaded on 05/06/2021 at 04:03:11 AM) (3 of 6) [SAW-525/2019] order directed his continuation in service. Learned counsel for the respondents has submitted that the Union of India has filed SLPs against the judgment of the Delhi High Court in Dev Sharma as also against the judgment of Madras High Court.
Learned Single Judge of this court in the impugned order has relied on the subsequent clarificatory order of Delhi High Court passed on 04.02.2019 in Ram Chander Kasania and Another Vs. Union of India and Others - W.P. (C) 695/2019, in a facts situation when the concerned employee was due to retire on 28.02.2019. He raised a grievance that no pension payment orders are being issued to those like him, who are either superannuated during pendency of the decision of the writ petition in Dev Sharma Vs. ITBP, supra, stating that it would have to await a consequential steps taken pursuant to the said decision. The Delhi High Court in its order dated 04.02.2019 in Ram Chander Kasania and Another Vs. Union of India and Others - W.P. (C) No.695/2019, passed the following clarificatory order:-
"5. In order to ensure that till such time the Respondents take the consequential steps for implementing the above judgment, no inconvenience is caused to such of those members of the CAPFs who superannuate in terms of the Rules as they existed prior to the judgment in Dev Sharma v. ITBP (supra), it is clarified that the Respondents will continue to issue PPOs in respect of such members of the CAPFs as and when they superannuate on the basis of Rules as they stood prior to the judgment. However, in the event that the Respondents decide, by way of implementation of the judgment, that the uniform age of superannuation would be 60 years or any age beyond 57 years, then depending on the date from which the change will take effect, the direction of this Court in para 72 of the judgment that it would not have the effect of reinstatement of those who have already retired would not come in the way of the Respondents deciding to reinstate such of those members of the CAPFs who would not have reached the uniform age of superannuation as determined. The Respondents will issue appropriate consequential orders at that stage. With the above clarification, the petition and application are disposed of in (Downloaded on 05/06/2021 at 04:03:11 AM) (4 of 6) [SAW-525/2019] terms of the judgment dated 31st January, 2019 Dev Sharma v. ITBP (supra). This clarification would apply to all those covered by the judgment of this Court in Dev Sharma v. ITBP (supra)."
Learned Single Judge has also taken note of the order passed by the Madras High Court dated 28.02.2019 in W.P. No.4969/2019 and observed that though the said court noticed passing of order dated 04.02.2019, ignoring the said order, which is in the nature of clarification of order dated 31.01.2019, has simply relied on the order dated 31.01.2019 by only observing that it was not bound by any order passed by the Delhi High Court. The Madras High Court has ignored the clarificatory order of the Delhi High Court dated 04.02.2019.
With regard to the order passed by the Tripura High Court dated 03.04.2019 in WP (C) No.519/2019, the learned Single Judge has observed that the said order does not take into considering anything and the order has been passed for continuation of the petitioner therein in the office. We have also perused the order passed by the Kerala High Court as also the Tripura High Court. Neither of the two orders passed by the Delhi High Court have been taken note of by the Tripura High Court in its order. We have looked into the order passed by the Madras High Court as well. The Delhi High Court in the order, extracted above, has clearly observed that the respondents shall continue to issue PPOs in respect of such employees when they superannuated on the basis of the Rules stood prior to the judgment in their case. It was further clarified that in the event the respondents deciding to introduce the uniform age of superannuation of 57 years, which could be even 60 years, then depending on the date from which the change will take effect, the (Downloaded on 05/06/2021 at 04:03:11 AM) (5 of 6) [SAW-525/2019] direction of this court in para 72 of the judgment that it would not have the effect of reinstatement of those who have already retired would not come in the way of the Respondents deciding to reinstate such of those members of the CAPFs who would not have reached the uniform age of superannuation as determined. In other words, the Delhi High Court meant by showing that the cases of the employees who already stood retired prior to judgment in Dev Sharma, supra, cannot be opened but even if any employee retired subsequently the respondents, if they decide to introduce the age of superannuation beyond 57 years, the uniform age of superannuation being 57 years, the respondents could reinstate such employees for remainder of their service period.
We have examined the order dated 28.02.2019 passed by the Madras High Court, which, in its para 10, held that if the order of retirement is not stayed, there would be an irreparable loss to the concerned employee and that prima facie and balance of convenience also laid in his favour and therefore it was persuaded to pass the interim order in favour of the concerned employee. We are however not inclined to agree with that view because in our considered view if eventually the respondents decide to enhance the age of superannuation they could not only recall such employees, whose tenure of service still remains and have still not completed the age of superannuation so determined, but even otherwise they could be compensated in terms of the arrears of salary and other consequential benefits provided the writ petition finally succeeds.
We are therefore inclined to hold that the appellant would not suffer any irreparable loss or any such loss which at any rate would not be compensated in terms of money. Moreover, we are (Downloaded on 05/06/2021 at 04:03:11 AM) (6 of 6) [SAW-525/2019] also not persuaded to pass any interim order in favour of the appellant taking into consideration the cardinal principle applicable for grant of interim relief in such matters that no such interim relief should be granted at interlocutory stage which has the effect of granting final relief.
In view of the above, we do not find any merit in this appeal and the same is accordingly dismissed. However, it is made clear that the said observations will not in any manner affect the case of either parties in pending writ petition before the learned Single Judge.
This also disposes of the stay application.
(G.R. MOOLCHANDANI),J (MOHAMMAD RAFIQ), Acting CJ //Jaiman//1-1/-
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