Delhi High Court
Dharam Singh Dabas vs Union Of India & Others on 29 July, 1999
Equivalent citations: 1999VAD(DELHI)189, 80(1999)DLT825, 1999(50)DRJ703
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. This order disposes of CMs. 11568/98 and 1119/99 in CWP. No. 6152/98.
2. The application CM. 11568/98 has been filed by the petitioner against Respondent No. 3-The Delhi State Cooperative Bank Ltd. (hereinafter to be called as "Bank"), of which petitioner is an employee. He was appointed as Supervisor in the said Bank w.e.f. 1.6.67 and was confirmed w.e.f. 1.1.70. He was promoted to the post of Field Supervisor (A.O.II) on 21.12.90 and was again promoted to the post of Manager on 18.9.97. The age of retirement of the petitioner is 58 years. However, what led the petitioner to file the present application was issuance of Office Memorandum No. 25012/2/97-Estt (A) dated 13.5.98 of Department of Personnel, Public Grievances & Pensions, Department of Personnel & Training regarding increase of retirement age of Government servants from service from 58 years to 60 years. Petitioner claims that the said notification is applicable to the employees of bank also and, therefore, the retirement age of petitioner stands extended to 60 years. The petitioner states that the Reserve Bank of India, NABARD, UCO Bank and Canara Bank have enhanced the age of retirement of their employees from 58 to 60 years in June, 1998 following the aforesaid Office Memorandum dated 13.5.98. Even District Cooperative Central Bank in Madhya Pradesh has also enhanced the age of retirement of its employees from 58 to 60 years in July, 1998. However, Respondent-Bank has not done so far and in stead petitioner received a letter dated 31.10.98 from the Bank informing him that he would attain the age of retirement i.e.58 years on 7.11.98 and consequently he would stand retired w.e.f. 30.11.98. Petitioner made representation against the same. However, the Bank did not concede. Petitioner accordingly filed present writ petition on 27.11.98. Show cause notice was issued in the writ petition and in CM.11568/98 vide order dated 30.11.98. Ex-parte order was passed directing that respondents shall not give effect to the impugned order dated 31.10.98 retiring the petitioner after comple-
tition of 58 years of age till the next date of hearing. This order was extended from time to time. The respondents filed counter-affidavit to the petition and also reply to the CM.11568/98. Respondent-Bank has also filed CM.1119/99 for vacation of interim order dated 30.11.98. Both these applications were heard together. As mentioned above, the case of the petitioner is that he is entitled to work till he attains the age of 60 years.
3. Mr. Mukul Rohtagi, Sr. Advocate for the petitioner argued that the said Office Memorandum was applicable in the case of Respondent-Bank also and it was incumbent upon the Respondent-Bank to make amendment in the Recruitment Rules by increasing the retirement age from 58 years to 60 years. In this connection, he referred to communication No. F. 2/64/98/S-I. dated 27.5.98 from Govt. of NCT of Delhi addressed to All Private Secretaries/Secretaries/ Spl. Secretaries/Head of Department/ Local Bodies/Public Undertakings/ Autonomous Organisations/ Govt. of NCT of Delhi/ Delhi/ New Delhi and along with the said communication Office Memorandum dated 13.5.98 is forwarded for compliance and further necessary action in the matter. Subject of the said letter deals with Amendment in Fundamental Rule -56 regarding increase in the retirement age of Govt. Servant from service from 58 years to 60 years. It is submitted by learned senior counsel that since the letter is addressed to all Local Bodies/Public Undertakings/Autonomous Organisations, Respondent-Bank is also covered. If Respondent -Bank does not amend its rules relating to retirement age by increasing the same from 58 years to 60 years, Respondent Bank cannot take advantage of its own wrong. Mr.Rohtagi also referred to and produced the copy of the judgment dated 11.8.98 of the Calcutta High Court in CWP. No. 11531/98 in the case entitled Ravi Prasad Chaurasia Vs. M/s. National Project Construction Corporation Ltd. wherein direction was given by the Calcutta High Court to the Respondent-Corporation to take immediate steps to comply with the directions contained in Office Memorandum dated 13.5.98 regarding amendment of its rule for the purpose of enhancement of the age of retirement of its employees. In the said case Union of India had supported the writ petitioner's case. However, RespondentCorporation had argued that Office Memorandum dated 13.5.98 gave discretion to the Public Sector Enterprises to amend their rules as per the decision of Central Government in the manner they thought best and particularly in case where concerned Public Sector Enterprises had its own rules and regulations which were specific to its employees. This contention of the Respondent-Corporation was not accepted and the High Court gave the mandate, as noticed above, by making following observations:
"On a careful consideration of the submissions made on behalf of the respective parties, I cannot but come to the conclusion that since the Central Government has taken a specific decision to enhance the age of retirement of below board level employees in Central Government Public Enterprises from 50 years to 60 years, it was incumbent on the part of the respondent corporation to act according to such decision and to amend its rules in accordance with the directions contained in the office memorandum in question. The decision has been taken by the Department of Public Enterprises, Ministry of Industry, Government of India, which controls the functioning of the respondent No.1 Corporation and in my view, no discretion has been left to the respondent No.1 Corporation, as has been urged by Mr.Sen, regarding the implementation of the aforesaid decision of the Central Government.
As to the question of being governed by specific rules, it is obvious that by specific rules what was meant was the rules which were specially applicable to a particular group of employees and not to the rules which had general application to all employees. As was submitted by Mr. Banerjee Chowdhary, certain classes of employees may be governed by certain rules and in their cases the decision to enhance the age from 58 years to 60 years would not possibly apply, but this is not so in the instant case, since the rules referred to by Mr. Sen in the affidavit-in-opposition appears to be of general application to all the employees of the Corporation.
It is no doubt true that the rules of the corporation have not yet been amended and in term of paragraph 2 of the office memorandum the decision of the Central Government would not come into effect till the rules are amended. But, in my view, the Corporation was not entitled to keep the decision of the Central Government in abeyance by not amending its rules, although, the office memorandum had been received: by the respondent No.1 Corporation on 10th June, 1998, so as to deprive the petitioner of the benefits thereof, I am, therefore, inclined to agree with Mr.Guha that having regard to the decision taken by the Central Government at a time when the petitioner was still in service, the petitioner should not be deprived of the benefit of the said decision of the Corporation merely because it had chosen to amend its rules as per the directions contained in the office memorandum in question.
In that view of the matter, this writ petition is disposed of with a direction upon the respondent No.1 Corporation to take immediate steps to comply with the directions contained in the office Memorandum regarding amendment of its rules for the purpose of enhancement of the age of retirement of its employees in keeping with the decision of the Central Government within a month from date and to extend to the petitioner the benefit of such amended rules. The petitioner will be deemed to have continued in service between the period from 30th June, 1998 and the date on which the rules are amended by the Corporation so that there is no break of service as far as the petitioner is concerned."
4. Mr. Anand Yadav who appeared on behalf of Respondent-Bank relied upon the averments made in the counter-affidavit on the basis of which he made the following submissions:
A. Respondent Bank was cooperative society deemed to be registered under Delhi Cooperative Societies Act, 1972 and was not "State" or "Another Authority" within the meaning of Article 12 of the Constitution of India and, therefore, writ petition was not maintainable.
B. Condition of service between petitioner and Respondent Bank was a matter of contract and, therefore, writ was not maintainable even on this ground.
C. Office Memorandum dated 13.5.98 issued by Govt. Indian and Circular dated 27.5.98 issued by Govt. of NCT of Delhi were not applicable and binding on the Respondent-Bank as Respondent-Bank was neither local body nor a Government Department.
D. Bank had received representations from Delhi State Cooperative Bank Officers Association requesting for increase of retirement age from 58 years to 60 years. After considering all the aspects, it was decided by the Respondent-Bank that it will not be in the interest of bank and the employees of the Bank that age of retirement is increased from 58 years to 60 years. Thus bank had taken conscious decision not to increase the retirement age of its employees from 58 years to 60 years.
5. I have considered the respective submissions of both the parties. A great deal of arguments related to the question as to whether Respondent Bank is "Another Authority" within the meaning of Article 12 of the Constitution of India and/whether writ petition was maintainable against Respondent-Bank or not. Both the parties have even filed their written submissions on this aspect and have relied upon various judgments*.
Respondent-Bank has also argued that in any case, it was not maintainable in respect of service conditions and relied upon various judgments** in support of its submissions also.
6. However, for disposal of these applications, it is not necessary to decide this issue as the same can be decided at the time of final arguments on the main writ petition itself.
7. The undisputed facts are that, as per the existing service conditions/rules, the retirement age of the employees of Respondent-Bank is 58 years. Whether Office *Judgments relied upon by the petitioner:
1. Sanghi Technologies Pvt. Ltd. Vs. Union of India & Ors. (FB).
2. Rohtas Industries Ltd. & Anr. Vs. Rohtas Industries Staff Union & Ors. .
3. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayati Mahotsav Samark Trust & Ors. Vs. V.R. Rudani & Ors.
.
**Judgments relied upon by the Respondents:
1. P. Bhaskaran and others Vs. Additional Secretary, Agricultural (Cooperation) Department, Trivandrum & others (FB).
2. Cooperative Central Bank Ltd. and Others etc. Vs. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad & Others etc. .
3. Babaji Kondaji Garad and Others Vs. Nasik Merchants Cooperative Bank Ltd. Nasik & Ors., .
4. Sri Konasea Co-operative Central Bank Ltd., Amalapuram & Anr. Vs. N. Seetharama Raju, AIR 1990 A.P. 171 FB.
5. Jagjit Singh Sangwan Vs. Union of India & Ors. ,.
Memorandum dated 13.5.98 is applicable or not and whether the Respondent-Bank is bound by this Office Memorandum or not, there is a serious dispute about the same. Unlike the case in Calcutta High Court where Union of India supported the case of the peti-
tioners, in this case neither Union of India nor NCT of Delhi has filed by affidavit supporting the case of the petitioner. The question which is to be decided relates to grant of continuation of interim relief. Even if it is presumed that petitioner has very strong prima facie case, it is necessary to take into consideration other two aspects, namely, balance of convenience and irreparable loss of injury. In Fact, identical issue as to whether such a person should be allowed to continue beyond the normal age of retirement till decision is taken to increase the age of retirement, came up for consideration before the Division Bench of this Court in the case of Union of India Vs. Central Administrative Tribunal & Ors., 78 (1999) Delhi Law Times 356(DB). That was a case relevant to decision taken by Ministry of Human Re source and Development for increasing the age of superannuation of University and other College Teachers from 60 to 62 years. The decision as to whether the benefits of the such Circular is to be extended by Indian Council for Agricultural Research (ICAR) to its scientists or not was pending consideration. The concerned employee in the said case had argued that it was imperative upon ICAR to have implemented the Union Grants Commission (UGC) recom mendation mutates mutandi. The concerned employee in the meantime was sought to retire on attanding the age of 60 years an and he challenged the said action of the ICAR by filing O.A. before Central Administrative Tribunal (CAT) and it had granted the stay of retirement of the employees. Writ petition was filed against the said order of CAT in this Court and the Division Bench of this court in the aforesaid judgment allowed the said writ peti tion and vacated the order passed by the CAT. It would be useful to quote the following observations from the said judgment:
"Having considered submissions made at the Bar, we are of the view that for more than one reason, it was not permissible for the Tribunal to have passed the impugned order by way of interim measures, which has the effect of almost allowing the relief prayed for in the main petition. The case of the respondents is yet to be adjudicated on merits. May be that, as has been contended by learned counsel for the respondents that there is a very strong prima facie case in favour of the respondents, but that alone cannot form the basis to grant such a relief by way of an interim measure, since such a relief will have to be granted to the respondents only on allowing the petition. At this stage when only the question of interim relief was being considered, in addition to a very strong prima facie case, it was also incumbent upon the Tribunal to have taken into consideration two other aspects, namely, balance of convenience and irreprable loss and injury.
In Bank of Maharashtra Vs. Race Shipping and Transport Co. Pvt. Ltd. ad Another, AIR 1975 SC 1368, the Supreme Court deprecated the practice of granting interim orders, which practically give the principal relief sought in the petition for no better reason that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and other relevant factors. Again in Bharat Bhushan Sonaji Kshirsagar (Dr.) Vs. Abdul Khalik Mohd. Musa, 1995(2) SCC 583, it was held that it was not proper to allow interim relief, which has the effect of almost allowing the main relief itself.
Admittedly, the impugned order has been made subject to condition that the respondents will pay back salary, to be drawn by them, in case of dismissal of their petition. It was the case of the respondents before the Tribunal that as per existing Bye-law action was being taken by the petitioners to superannuate them on 30.12.1998. For the reasons stated in the petition they were entitled to continue till the age of 62 and not till the age of 60. In such a case when on the existing Bye-laws of ICAR the respondents would have retired on 30.12.1998 on attaining the age of 60 years, a fresh lease of service life, for the duration of the pendency of their petition before the Tribunal has been granted by the impugned order. The Tribunal failed to consider an important aspect that in the event of success of the respondents in their petition, they can very well be compensated in terms of money. To the contrary in case their petition would fail it will also have the effect of an employee being continued on the rolls of the ICAR, who otherwise would not be entitled to hold that position. In that situation it would amount to usurping the right of others, who would have been in their position, but for the interim order. Thus the balance of convenience did not lie, in such like situation, in granting injunction in favour of the respondents. Moreover on perusal of the relevant files, we find that the Tribunal proceeded contrary to the facts on two basic aspects. Neither the Prime Minister, being the ex-officio President of ICAR, in the capacity of Minister-in-Charge of Agriculture, had given his approval to the recommendations of Chadha Committee, nor there is concurrence to such a proposal by the Department of Personnel and Training. The note for putting up of the report of the Committee before Cabinet alone was approved by the Prime Minister, as Minister-in-Charge of Agriculture. There was a strong objection raised by the Department of Personnel and Training in accepting recommendation of Chadha Committee. Thus on wrong assumption an opinion was formed by the Tribunal that the possibility of Governing Body not agreeing to Cabinet decision is remote.
In the circumstances aforementioned the Tribunal was not at all justified in having allowed the respondents prayer by way of interim measure and thereby permitting them to be continued beyond the age of superannuation, as provided in the Bye-laws and for that reason, we are of the view that the writ petition deserves to be allowed and the impugned order deserves to be quashed and set aside. Ordered accordingly. Needless to add that the observations made herein will not prejudice the case of either parties on merits, nor influence the Tribunal while disposing of the main petition of the respondents.
8. Counsel for the respondent also relied upon the judgment of Punjab and Haryana High Court in the case of Smt. Bharawan Devi Vs. Punjab State Electricity Board & Ors., reported in 1989(4)SLR 691 wherein interim stay allowing the petitioner to continue in service till the age of 60 years was refused and it was observed as under:
"It is state that the petitioner has been retired from the post of Nurse/Dai. The petitioner's claim is that she was recruited as Class IV employee and according to the Electricity Board rules she had a right to continue in service till the age of 60. Be that as it is, there is no balance of convenience in favour of the petitioner. The petitioner is also not likely to suffer any irreparable loss inasmuch as in case her petition is allowed, the petitioner shall get all the financial benefits without working. On the other hand, if she is allowed to work under the orders of this Court upto the age of 60 the Board shall suffer irreprable loss because Board will not be able to recover the salary paid for the job done during the period she is allowed to work during the pendency of the writ under the orders of the Court.
In view of the above observations of mine stay is declined."
9. Counsel for the Respondent-Bank also relied upon the judgment of Hon'ble Supreme Court in the cases of Bank of Maharashtra Vs. Race Shipping and Transport Company Pvt. Ltd. and Another AIR 1975 SC 1368 and Assistant Collector of Central Excise., Chandan Nagar Vs. Dunlop India Ltd., to contend that interim relief should not be given to the petitioner.
10. In view of the aforesaid discussion and following aforesaid judgments, particularly, the judgment of DB of this court in Union of India, ICAR (supra) which is almost on some facts, I hold that the petitioner is not entitled to interim relief. As far as judgment of Calcutta High Court in the case of Ravi Prasad Chaurasia (supra) is concerned, it would be sufficient to state at this stage that it was a case where it was not disputed that Office Memorandum dated 13.5.98 was applicable to Respondent Corporation, namely, National Project Construction Corporation Ltd. What was argued was that as per the said Memorandum it was the discretion of the Public Enterprises to amend its rules for enhancing the age of retirement or not which was not accepted, more particularly when Union of India had taken the stand that Respondent Corporation was born by Office Memorandum dated 13.5.98. These aspects in respect of Respondent-Bank in the instant case are disputed and yet to be decided, which can be decided only in the main writ petition.
For the aforesaid reasons, CM.11568/98 is dismissed and CM.1119/99 filed by Respondent-Bank is allowed. Interim order dated 30.9.98 is vacated.
No order as to costs.