Gauhati High Court
Barun Ch. Das & Anr vs The State Of Assam And Ors on 10 December, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 4699/2014
WP(C) No. 3161/2012
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
10.12.2015
Heard Mr. C. Deka and Mr. A. M. Barbhuiya, learned
counsel for the petitioners, Mr. P. S. Deka, learned Govt. Advocate,
Assam and Ms. A. Verma, learned Standing Counsel, Finance
Department.
2. Since the subject matter of both the writ petitions is
identical, those have been heard together and are being disposed of
by this common order.
WP(C) No.3161/2012
3. By filing this petition under Article 226 of the
Constitution of India, petitioners seek quashing of orders dated
29.02.2012 and 31.05.2012 issued by the Deputy Project
Engineer, Assam Police Housing Corporation Ltd. releasing the
petitioners from service w.e.f. 29.02.2012 and 31.05.2012
respectively on retirement on attaining the age of superannuation.
Further prayer made is for a direction to the respondents to allow
them to continue their service upto 60 years of age. Petitioners have also challenged the legality and validity of resolution No. 5 of the Board of Directors of Assam Police Housing Corporation Ltd. dated 17.03.2008 whereby the Board of Directors raised the retirement age of its employees from 59 years to 60 years following circular of Assam Government except Work Charged employees.
4. Case of the petitioners may be briefly noticed at the outset.
WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 1 of 135. Assam Police Housing Corporation Ltd. (Corporation) is a Government of Assam undertaking where the Government of Assam has deep and pervasive control. Corporation does not have any service rule of its own. It follows the service rules, instructions and guidelines of the Govt. of Assam issued from time to time. All employees of the Corporation including Work Charged employees are drawing pay scales and allowances at par with the State Government employees.
6. Though initially retirement age of Government servant was 55 years the same was enhanced to 58 years, thereafter to 59 years and finally to 60 years. In tune with the Government decision, Board of Directors of the Corporation vide its resolution No. 5 dated 17.03.2008 had raised the retirement age of its employees from 59 to 60 years except Work Charged employees.
7. It may be mentioned that petitioner No. 2 had approached this Court earlier seeking continuation of his service upto 60 years of age which was registered as WP(C) No. 1144/2012 in tune with the Government decision. This Court by order dated 24.05.2012 noted that Board of Directors had already adopted resolution on 17.03.2008 enhancing the retirement age of its employees to 60 years except the Work Charged employees. While disposing of the writ petition, the Board granted liberty to the petitioner to challenge the said resolution of the Board, if so advised.
8. Petitioner No. 1, Sri Barun Ch. Das was appointed as Work Charged Godown Chowkidar by the Managing Director of the Corporation on 18.04.1985. Though the said order described his WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 2 of 13 appointment as Work Charged Godown Chowkidar, he was paid the regular scale of pay of Godown Chowkidar and he continued his service since his initial appointment. Petitioner No. 2, Sri Jyotirmoy Mazumdar was likewise appointed by the Managing Director of the Corporation on 12.11.1984 as Work Charged Section Assistant alongwith 10 others. He was also provided regular pay scale and he has continued his service since then without any break.
9. At this stage, it may be mentioned that a termination notice dated 02.02.2001 was issued by the Corporation terminating the services of the Work Charged employees. The two petitioners along with 54 other Work Charged employees of the Corporation then moved this Court against the termination notice and seeking regularization of their services by filing WP(C) No. 1990/2001. It appears that the writ petition was disposed of on 28.08.2003 declining to grant the reliefs to the petitioners but providing for some compensation. Thereafter, Review Petition No. 105/2003 was filed by the petitioners which was allowed by the Court by quashing the termination order and by directing the Corporation to absorb/appoint the petitioners according to their seniority against existing vacancies and if vacancies were not available, to carry forward their absorption/appointment against vacancies which would arise in the next 5 years. Option was also given to the employees to avail compensation in lieu of service or to avail the voluntary retirement scheme as offered by the Corporation. Notwithstanding the same, services of the petitioners were continued on Work Charged basis. Not only that, at the age of 58 years both were released from service on retirement vide the two impugned orders dated 29.02.2012 and 31.05.2012.
WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 3 of 1310. Aggrieved, present writ petition has been filed.
11. Finance Department has filed affidavit. Stand taken is that Corporation is a semi-Government undertaking and its employees are appointed by the Managing Director of the Corporation. Employees of the Corporation are not Government employees. Service conditions admissible to Government employee are not automatically extended to the employees of the Corporation. Service conditions meant for Government employees become applicable to Corporation employees only when and to the extent Board of Directors of the Corporation decides to adopt them. It is for the Board of Directors of the Corporation to decide on the service conditions of its employees. It is further stated that as regards Work Charged employees of the State Government are concerned those whose services have been regularized are eligible for service period upto the age of retirement on superannuation, in other words upto 60 years of age. Since Board of Directors of the Corporation has taken a decision to enhance the age of superannuation of its employees to 60 years except Work Charged employees, Finance Department would have no comments to offer in this regard, being an internal decision of the Corporation.
12. An affidavit has also been filed by respondent No. 3. Stand taken in this affidavit is that petitioner No. 1 was appointed as Work Charged Chowkidar on 18.04.1985. Because of financial constraint, termination notice was issued to the petitioners on 02.02.2001. Petitioners and others challenged the legality and validity of the termination notice before this Court by filing WP(C) No.1990/2001. Initially an interim order was passed on 21.03.2001 staying the termination notice dated 02.02.2001. Consequently, petitioners were retained in service. However, by the WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 4 of 13 final order dated 28.08.2003, prayer for quashing the termination notice was not entertained. Thereafter, petitioners and others filed a review petition which was registered as Review Petition No. 105/2003. The review petition was allowed by the Court vide order dated 09.03.2006 by quashing the termination notice dated 02.02.2001 and directing absorption or appointment of the petitioners against existing vacancies as per their seniority or against vacancies that would arise in the next five years. Those employees who were not willing to continue in the Corporation and who were interested in compensation were given liberty to avail compensation of Rs.1,00,000.00. It is stated that none of the employees had accepted compensation and consequently they were all allowed to continue in service till 58 years as per existing rules of the State Government as applicable to Work Charged temporary employees. It is further stated that following the order dated 09.03.2006, Corporation had prepared a gradation list in respect of Work Charged Chowkidar and Work Charged Section Assistant. In the said list, petitioner No. 1 was placed at Sl. No. 3 and petitioner No. 2 at Sl. No. 29. In compliance to the order of this Court, services of three numbers of Section Assistant were regularized against retirement vacancies on 25.04.2007, 19.02.2009 and 05.01.2011 respectively besides regularizing one Work Charged Chowkidar against an existing vacancy on 16.03.2010. Since petitioners were placed at Sl. Nos. 3 and 29 in the gradation list they could not be considered for regularization. Thus it is stated that service of the petitioners could not be regularized due to non- availability of sanctioned vacancies in the Corporation and also due to inability to create additional posts on account of financial stringency. Justifying the decision of the Corporation to exclude Work Charged employees from extension of service till 60 years of age, it is stated that because of a tight financial situation, further WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 5 of 13 extension of service of Work Charged employees including that of the petitioners could not be considered.
WP(C) No.4699/201413. The second case i.e. WP(C) No. 4699/2014 seeks similar relief. Petitioner in this case was appointed as Work Charged Section Assistant on 17.01.1983 and has continued as such since then. In addition to regularization of service, petitioner also seeks quashing of resolution No. 5 of the Board of Directors of the Corporation dated 17.03.2008 in so far it excludes Work Charged employees from continuation of service till 60 years of age.
14. Since facts and reliefs sought for are identical, detailed reference to the facts of this case may not be necessary.
15. Mr. C. Deka, learned counsel for the petitioners in WP(C) No. 3161/2012 submits that for all intent and purpose Corporation is a Government entity as it is entirely dependent on Government finance for its functioning. Not only that, it has no service rules of its own and follows that of the Government. Service rules applicable to Government servants would be equally applicable to the employees of the Corporation. In so far Govt. of Assam is concerned, by amending the provisions of FR 56 A from time to time, retirement age of the employees was initially raised from 55 years to 58 years, then from 58 years to 59 years and finally from 59 to 60 years. In so far State Government is concerned, the retirement age is made uniformly applicable to all categories of employees without any distinction. If that be the case, he submits, when such decision is followed by the Corporation, it cannot make any distinction between various categories of WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 6 of 13 employees. In such circumstances, impugned resolution of the Board of Directors of the Corporation excluding Work Charged employees from the benefit of continuance of service upto 60 years of age would be wholly arbitrary and discriminatory. It should accordingly be interfered with by this Court. He further submits that when the petitioners had rendered service for periods ranging between 25 to 30 years, they are to be treated like regular employees and all benefits due to regular employees should be extended to them. Therefore, premature retirement of the petitioners on completion of 58 years of age is not justified and the same is required to be interfered with. He however admits that both the petitioners would have also retired from service by now even if they had continued in service beyond 58 years as in the meanwhile they had completed 60 years of age.
16. Mr. A. M. Borbhuiya, learned counsel for the petitioner in WP(C) No. 4699/2014 while generally adopting the submissions advanced by Mr. C. Deka, learned counsel for the petitioners in WP(C) No. 3161/2012, additionally submits that in view of the clear order of this Court dated 09.03.2006 passed in Review Petition No. 105/2003, petitioners cannot be treated as Work Charged employee. They are required to be treated as regular employees for all intent and purpose. In such a case, the impugned resolution of the Board of Directors would not be applicable to them as legally speaking petitioners are no longer Work Charged employee.
17. On the other hand, Mr. P. S. Deka, learned Govt. Advocate has referred to the affidavits filed by respondent Nos. 3 & 6 and submits that there is no infirmity in the decisions taken by the Corporation. Corporation is an autonomous body and therefore WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 7 of 13 it is not bound to follow each and every decision of the Government. It takes its own administrative decision based on its requirement and financial position. He, however, fairly admits that decision of the Corporation to exclude Work Charged employees from the benefit of continuance of service upto 60 years of age can certainly be judicially scrutinized by the Court. He further submits that following the orders dated 29.02.2012 and 31.05.2012, both the petitioners had gone on superannuation and had not rendered any service in the Corporation thereafter.
18. Submissions made by learned counsel for the parties have received the due consideration of the Court.
19. It is not in dispute that the two petitioners in WP(C) No. 3161/2012 were engaged as Work Charged Chowkidar and Section Assistant respectively on 18.04.1985 and 12.11.1984 respectively. Likewise, petitioner in WP(C) No. 4699/2014 was appointed as Work Charged Section Assistant on 17.01.1983. While the two petitioners of WP(C) No. 3161/2012 had rendered 27 and 28 years of service prior to issuance of the impugned orders, petitioner in WP(C) No. 4699/2014 is still working after rendering 32 years of service as Work Charged Section Assistant.
20. At this stage, affidavit filed by respondent No. 3 may be referred to as the said affidavit would be of considerable assistance in the resolution of the dispute raised in the writ petitions. Respondent No. 3 has himself stated in the affidavit that termination notice was issued on 02.02.2001 for terminating the services of the Work Charged employees. This came to be challenged before this Court in WP(C) No. 1990/2001. Initially an interim order was passed on 21.03.2001, suspending the WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 8 of 13 termination order. It is admitted by respondent No. 3 that pursuant to the said order passed by this Court, services of the Work Charged employees were retained in the Corporation. When this Court declined to grant the relief at the time of final hearing, the Work Charged employees filed Review Petition No. 105/2003. During the hearing of the review petition, it was submitted on behalf of the petitioners that at that point of time, the Work Charged employees had rendered more than 20 years of service and therefore a prayer was made to consider their absorption/appointment against existing as well as future vacancies besides giving liberty to those Work Charged employees desirous of availing compensation or voluntary retirement scheme to opt for such option in lieu of continued service. Learned counsel who had appeared on behalf of the Corporation while explaining the difficulty in creation of more posts to accommodate the Work Charged employees, however made a statement before the Court that the Corporation would have no objection to the absorption of the petitioners against vacancies and in this connection, it was submitted that the Corporation would make all attempts to absorb the petitioners against existing vacancies as well as against such vacancies that might arise during the next 5 years. It was on the basis of such submission that review petition was finally disposed of on 09.03.2006 by issuing the following direction:
" i) The notice of termination dated 02.02.2001 (Annexure-
12) is hereby quashed.
ii) The Cooperation shall absorb/appoint the petitioners according to their seniority against existing vacancy, if any and shall also do so while filling up the vacancies that may arise in the next five years.
iii) The employees may, in their discretion, like to avail compensation of Rs. One Lakh as ordered earlier in lieu of service or avail the benefits under the Voluntary WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 9 of 13 Retirement Scheme as communicated vide letter dated 14.06.2005 issued by the Chairman-cum-Managing Director, Assam Police Housing Corporation Ltd."
21. Thus from the above, it becomes evident that notice of termination was quashed by this Court. Corporation was directed to absorb/appoint the petitioners against existing vacancies as well as against vacancies that might arise in the next 5 years according to their seniority. Those employees willing to avail compensation or other VRS benefits were permitted to do so in lieu of absorption or appointment.
22. It is the categorical assertion of the petitioners following the aforesaid order of this Court that no option was taken from them by the authorities of the Corporation as to whether they would like to avail the benefit of compensation or other VRS benefits in lieu of absorption/appointment. It is also not disputed by the respondents that the two petitioners in WP(C) No. 3161/2012 as well as the petitioner in WP(C) No. 4699/2014 had continued their services all throughout. As a matter of fact, respondent No. 3, in his affidavit has candidly admitted that none of the employees in the Corporation accepted the offer of compensation and accordingly they were allowed to continue their service till 58 years of age. Respondent No. 3 has also explained that because of non-availability of existing vacancies, the two petitioners in WP(C) No. 3161/2012 could not be absorbed/regularized prior to their retirement.
23. It is also stated at the Bar that the order of this Court dated 09.03.2006 has attained finality as the same was not questioned before any higher forum.
WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 10 of 1324. If that be the position, order dated 09.03.2006 would squally cover the case of the petitioners. Petitioners were required to be absorbed/appointed against existing vacancies as well as future vacancies occurring in the next 5 years. In any view of the matter, engaging an employee in a Work Charged status for 25 to 30 years and thereafter not giving them the status of regular employees would certainly be highly discriminatory, besides being arbitrary, unreasonable and most unfair.
25. This leads to the impugned resolution No. 5 of the Board of Directors of the Corporation dated 17.03.2008. The said resolution is extracted hereunder:-
" The Board noted that the Govt. of Assam vide circular No. FPC.26/2007/12 dtd. 20.11.2007 has raised the retirement age of Govt. employees from 59 years to 60 years on superannuation. The Board accordingly decided to raise the retirement age of the APHC employees from 59 years to 60 years (except w/c employees)."
26. A careful analysis of the said resolution does not disclose any reason as to why the benefit of enhanced superannuation age of 60 years has been denied to the Work Charged employees. While it is understandable that the resolution may not contain any reason, the order of respondent No. 3 dated 29.02.2012 communicated to petitioner No. 1 (Annexure-9) also does not contain any reason why Work Charged employees have been excluded from the benefit of enhanced retirement age. Even the affidavit filed by respondent No. 3 does not indicate any such reason. On the face of it, such decision of the Board of Directors appears to be without any justification besides being arbitrary and discriminatory. This is more so because of the order passed by this Court in the review petition wherein direction for absorption/appointment of the Work Charged employees were WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 11 of 13 issued. If that be so, petitioners cannot be treated as Work Charged employees.
27. There is one more aspect. When the State Government had initially raised the retirement age from 55 to 58 years, the Corporation also followed the same and extended the benefit to its employees including the Work Charged employees. Therefore, departure made now does not appear to be justified.
28. In the light of the above, in so far WP(C) No. 3161/2012 is concerned, impugned orders dated 29.02.2012 and 31.05.2012 cannot be sustained and are hereby set aside and quashed. Since the two petitioners would have retired from service on attaining the age of 60 years on 29.02.2014 and 31.05.2014 respectively, respondents are directed to treat the two petitioners to be in service till 29.02.2014 and 31.05.2014 and grant them all the consequential service benefits by treating their dates of superannuation as 29.02.2012 and 31.05.2012 respectively.
29. In so far petitioner in WP(C) No. 4699/2014 is concerned, since he is still in service he would be entitled to the benefit of enhanced retirement age upto 60 years of age and he would also be entitled to the service benefits in terms of the decision of this Court dated 09.03.2006 passed in Review Petition No. 105/2003.
WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 12 of 1330. Both the writ petitions are accordingly allowed. However, there shall be no order as to cost.
Judge Aparna WP(C) No. 3161/2012 WP(C) No. 4699/2014 Page 13 of 13