Gujarat High Court
I.H. Otha vs Gujarat State Seeds Corporation Ltd. ... on 10 May, 1999
Equivalent citations: (1999)3GLR2699
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. The petitioner, P.S. to Managing Director of Gujarat State Seeds Corporation Ltd., filed this petition under Art. 226 of the Constitution of India challenging thereunder the circular dated 25th September, 1998 of the Corporation and the communication dated 12th March, 1999 of the Corporation, Annexures "C" and "E" respectively on the record of this petition. Prayer has also been made for quashing and setting aside of this circular and the communication.
2. The facts of this case are that on 31 st May, 1995, the petitioner was appointed as Stenographer Gr. I (English) by the respondent-Corporation. It is the case of the petitioner that as per the terms of the appointment, his retirement age is of 60 years (emphasis provided). On 2-12-1975, the petitioner was appointed as P.A.-cum-Stenographer Gr. I (English) with the same service conditions. The designation of P.A.-cum-Stenographer Gr. I (English) was changed subsequently and it is known as P.S. to Managing Director. The petitioner admits that the pay scale of the employees of the respondent-Corporation has been revised in line with the pay revision of the Government employees from time to time on each occasion without any change in the service conditions of the Corporation. In March, 1998, the petitioner submits that the employees of the Corporation inclusive himself were given the revised pay scale without any condition or without any change in the service rules. On 25th September, 1998, the respondent-Corporation issued impugned circular whereby the employees were intimated that the retirement age of theirs is now to be 58 years. On 15th January, 1999, the petitioner made representation to the authorities inter alia requesting them to clarity that the said amendment would be prospectively, i.e., to apply to the new appointees as is done in other organisations of the Government. The representation aforesaid of the petitioner came to be rejected on 12th March, 1999 by the respondents. As a consequence thereof, what the petitioner contends that he will he made to retire on 31st May, 1999 at the age of 58 years instead of 31st May, 2001. Hence, this petition before this Court.
3. Learned Counsel for the petitioner contended that the decision of the Corporation to retire the petitioner at the age of 58 years is illegal and arbitrary. It is a service condition of the petitioner when he was appointed that his age of superannuation shall be 60 years and this service condition is not subject to any unilateral change by the Corporation. The Corporation, what the learned Counsel for the petitioner contended, has all the powers to amend the service rules but the amended rules will be prospective in nature, i.e., the same will apply to the persons who have been appointed thereafter and will not apply to the existing employees as it amounts to the change of the service condition. Lastly, it is contended that on the basis of the Government direction otherwise also the Corporation could not have unilaterally changed the service condition of the petitioner. In support of his contention, learned Counsel for the petitioner placed reliance on the two decisions of the Apex Court in the case of State of Punjab v. Kailashnath, reported in AIR 1989 SC 558 and in the case of H. L. Trehan v. Union of India, reported in AIR 1989 SC 568.
4. I have given my thoughtful consideration to the submissions made by the learned Counsel for the petitioner.
5. On the record of this Special Civil Application, I find that the petitioner produced a copy of the office order dated 31st May, 1975 of the Corporation under which the petitioner has been given the appointment as Stenographer Gr. I (English). The conditions of his appointment are stated to be as per the annexure attached therewith. Those conditions are also there on the record of this Special Civil Application. A copy of the order dated 2-12-1975 of the Corporation is also produced by the petitioner on the record of this Special Civil Application. Under this order, the petitioner was appointed as P.A.-cum-Stenographer Gr. I (English). It is further mentioned in this order, "conditions of his appointment shall be as per the annexure attached herewith." The petitioner has not produced on the record of this Special Civil Application the conditions of his appointment dated 2-12-1975. It is not correct to state and contend by the learned Counsel for the petitioner that his appointment as P.A.-cum-Stenographer Gr. I (English) was on the same terms and conditions on which his appointment has been made on the post of Stenographer Gr. I (English). The appointment of the petitioner on the post of Stenographer Gr. I (English) has no legal force whatsoever as he has been given fresh appointment, which is apparent from the order itself of appointment on the post of P.A.-cum-Stenographer Gr. I under office order dated 2-12-1975 of the Corporation on the conditions as per annexure attached therewith. In the absence of those conditions, it is very difficult for this Court to accept what the learned Counsel for the petitioner contended that as per the service conditions, he could have only been retired at the age of 60 years.
6. However, I have examined the matter with reference to the averments and contentions of the learned Counsel for the petitioner that the second appointment of the petitioner in the Corporation was on the same terms and conditions subject to which his first appointment was made under the order dated 31st May, 1975. The conditions of the first appointment are there on the record of this Special Civil Application and out of which learned Counsel for the petitioner has referred to clause 10 thereof, which reads as under :
"He shall abide by the conditions of service Rules of the Corporation".
7. From this condition, I find that the condition of services of the petitioner shall be those which are being provided under the service rules of the Corporation. I do not find anything on the record of this Special Civil Application that it was a specific service condition made in the order of the appointment that the age of superannuation of the petitioner shall be only 60 years. If what the learned Counsel for the petitioner contended is accepted then what this Court has to do to read in place of "he shall abide by the conditions of service Rules of the Corporation", "his age of superannuation shall be 60 years", which is not permissible to the Court. This Court cannot add to the service conditions or cannot read something in the service condition, which otherwise none of the parties to the document intended. It is understandable where on the specific service condition, the petitioner has been given the appointment and that is not the case here. The service conditions of the petitioner are to be regulated as per the service rules of the Corporation and it is not correct to contend by the learned Counsel for the petitioner that on the day on which the petitioner was appointed for taking in the Corporation services under the rules aforesaid, the age of superannuation of its employees was 60 years. It is a matter where the service conditions are to be regulated by the rules framed by the Corporation and these rules are always subject to the amendment by the Corporation. Power to legislate the rules, which includes the power to frame the rules, power to modify the rules, power to amend the rules, vest with the Corporation and it has all the right to unilaterally change the service condition as provided under the rules. It is not the contention of the learned Counsel for the petitioner that reduction in the age of superannuation has not been made by the Corporation. The decision to reduce the age of superannuation has been taken by the Corporation and it is clearly an amendment in the service rules of the Corporation and which is within its competence and authority. When the service conditions of the petitioner is as per the service rules of the Corporation, it is permissible to the Corporation to amend the rules and this condition has to be read subject to condition of the service rules of the Corporation as it exists and are amended from time to time. Otherwise also, power vests with the employer to regulate the service conditions of its employees or to change or amend the rules including the rule relating to the age of superannuation of its employees. It can reduce the age of superannuation or also can increase the age of superannuation. It is not unknown in this country as well as to this State that from time to time the age of superannuation are being increased or reduced in the Government services as well as the Corporation services. For the employees of the State of Gujarat, it is not in dispute that the age of superannuation is of 58 years except Class IV employees for whom it is 60 years. The employees of the Corporation claim parity in the pay scale with the pay scale prescribed for the employees of the State of Gujarat. Recently 5th Pay Commission's recommendations have been given effect to and the employees of the Corporation, as it is borne out from the record of the Special Civil Application have also been extended with this benefit of 5th Pay Commission. From the record of this Special Civil Application, I also find that the State of Gujarat has control over the Corporation and when the demand of the employees for the benefits of 5th Pay Commission has been accepted by the Corporation may be with the concurrence of the State of Gujarat then naturally the State of Gujarat was within its competence to also expect from the Corporation to bring the age of superannuation of its employees at par with the age of superannuation as prescribed for the State Government employees. That is what precisely it has been done. It is not the case that merely because on the date on which he entered in the Corporation services under the rules his age of superannuation is 60 years and it has to be taken to be frozen for all the years to come till he retired from the services. These rules are subject to amendment by the Corporation and the validity of the amendment and particularly where the age of superannuation is reduced, is not permissible on the ground on which the petitioner is challenging the same. On what grounds, the validity of this rule is permissible, reference may have to the decision of the Apex Court in the case of A. Nagaraj v. State of Andhra Pradesh, reported in 1985 (1) SCC 523. The decisions on which reliance has been placed by the learned Counsel for the petitioner in this case are hardly of any help to the petitioner in the matter. In fact these are the policy decisions and very limited judicial review thereof is permissible. The petitioner has failed to make out any case of interference in the matter by this Court under Art. 226 of the Constitution. It is a just and reasonable decision which has been taken by the Corporation to which no exception can be taken. When the service condition regarding pay scale etc. are at par with the employees of the State Government, the Corporation has correctly brought the age of superannuation also of its employees at par with the age of superannuation as laid down for the Government employees.
8. In the result, this Special Civil Application fails and the same is dismissed.
9. Application dismissed.