Madras High Court
Arulmigu Sivaganga Samasthanam, Rep. ... vs The Commissioner, Hindu Religious & ... on 16 October, 1998
Equivalent citations: 1999(1)CTC60, (1999)IMLJ669
ORDER
1. The writ petitions are for the issue of writ of certiorari to call for the records relating to the proceedings of the first respondent in R.P.Nos.39 & 44 of 1989 respectively dated 18.9.1990 and quash the said proceeding of the first respondent.
2. The case of the petitioner is that the third respondent in each of the writ petition was appointed as Assistant and Clerk respectively in 1953. The petitioner herein has issued notice dated 7.10.1988 and 22.11.1988 respectively intimating that the third respondent in each of the writ petitions would retire from service from the afternoon of 25.11.1988 and 12.12.1988 respectively on their completion of 60th year. It has also been averred that the above order was passed pursuant to the age limit prescribed under the Sivaganga Devasthanam Administrative Staff Service Rules approved by the hereditary trustee. Aggrieved by the above order, the third respondent in each of the writ petitions has chosen to file a revision under Section 21 of the Tamil Nadu HR & CE Act 1959 (Tamil Nadu Act 22 of 1959) before the Deputy Commissioner in R.P.Nos.9 and 7 of 1988 respectively. When the revision petitions were dismissed, the third respondent in each of the writ petitions has filed further revision before the first respondent herein in R.P.Nos.44 of 1989 and 39 of 1989. The first respondent by proceedings dated 18.9.1990 has allowed the revisions and directed reinstatement of the third respondent in each of the writ petitions and the same has been impugned in these writ petitions.
3. Mr. M.Venkatachalapathy, learned Senior Counsel for the petitioners has argued that the powers have been conferred on the Devasthanam with reference to the prescription of age for superannuation by framing of the service rules and the third respondents herein are not entitled to continue on the basis of the rules framed under the old Act, i.e., Act 19 of 1951. He has also argued that the order of the first respondent is not in conformity with the rules. It has also been argued that the retirement age was prescribed by the rules framed by the Hereditary Trustees invoking the powers given to them under the Scheme Decree. It is also stated that the relevant service rules have been framed under the present Act i.e., Act 22 of 1959 fixing uniform age limit for the retirement for all the employees. In view of the above, it has been argued that the third respondent cannot claim extension of service that too relying upon the rules framed under the Act which has been repealed. The first respondent erred in presuming that the service rules cannot apply to the employees who entered service prior to the coming into force of the Service Rules 1971. Basing on the above, it has been argued that the order of the first respondent is not sustainable and is liable to be set aside.
4. A counter has been filed by the third respondents stating that they have the benefit of retirement at the age of 65 years as they were appointed under the Rules called the Sivaganga Devasthanam Administrative Staff Services Rules. Learned counsel appearing on behalf of the respondents has relied upon Rule 22 which deals with the age of retirement and the above rule reads as follows:
"The age of retirement shall be completion of 55 years in case of all categories of the posts, but the appointing authority may at his discretion retain any person in service upto the age of 60 if he is found physically fit and otherwise useful for the service of the Devasthanam. But such superannuated persons shall be reappointed on a temporary basis for a period not exceeding one year at a time terminable without notice. The Hereditary Trustee shall have power to retain an employee even after he attains the age of 60 years for exceptional reasons to be recorded in writing. But no one shall be retained in service after he completes the age of 65 years."
There is a substitution to the above rule by new rule 22 which reads as follows:
"Every person appointed to-a-non-hereditary office in the administration of Sivaganga Devasthanam and Chattram section shall retire from such office on completing 60 years of the age".
It has been argued on behalf of the respondents that as the third respondent in each of the writ petitions was employed prior to the framing of the Rules under Act 22 of the 1959, they are bound to continue till they attain the age of 65 years. It has been argued that Act 22 of 1959 has been framed under the scheme approved by the High Court. Learned counsel appearing on behalf of the respondents has brought to my notice Rule 24 wherein it has been stated that nothing contained in these rules shall adversely affect the members of the staff who are in service of the Devasthanam prior to the date on which these rules come into force. Basing on the above, learned counsel has argued that the third respondent in each of the writ petitions was appointed prior to framing of the new rules and the age of 60 years has no application and hence they are bound to continue till the age of 65 years. Hence he has argued that the order passed by the first respondent is perfectly in conformity with the rules and not vitiated by any error of law.
5. It is not in dispute that the third respondent/employees entered in the service of Devasthanam in 1953 before the introduction of the service rules by the Devasthanam. The scheme was framed by the High Court in A.S.No.158 of 1952 and R.C.No.13 of 1951 by order dated 26.3.1956. The said scheme was modified by the Deputy Commissioner, HR & CE Admn. Department, Madurai by his order dated 29.2.1968 in O.A.No.19 of 1967 in exercise of the powers under Section 64(5) of the Act. In pursuance of the scheme, the Sivaganga Devasthanam Administrative Staff Service Rules 1971 came to be introduced by the hereditary trustee. As the writ petitioner issued notice of retirement at the age of 60, the employees filed revision before the Deputy Commissioner in R.P.Nos.9 and 7 of 1988 and the same has been dismissed. Aggrieved by the dismissal of the revision petitions, the third respondent in each of the writ petitions has again filed R.P.Nos.44 of 1989 and 39 of 1989 before the first respondent and the first respondent by his order dated 18.9.1990 has allowed the Revision Petitions relying upon the old rules and set aside the orders passed by the Deputy Commissioner, and the petitions were directed to be restored. Aggrieved by the above order of the first respondent, the present writ petitions are filed. It is a fact that Rule 22 of the Sivaganga Devasthanam Administrative Staff Service Rules was formulated and later amended by the Hereditary Trustee. The Rules have come into force in view of the scheme settled by the High Court of Madras in A.S.No.158 of 1952, according to which the age of retirement is 60. According to Rule 24 of the Sivaganga Devasthanam Administrative Staff Service Rules, the services of the members of the Staff who are in service of the Devasthanam as on the date of the commencement of the Rules have been saved. In view of the above, it has to be presumed that the employees who were appointed prior to the commencement of the Rules of 1971, their age of retirement is 65 years and not 60 years as their services have been saved by Rule 24. In view of the above, the contention of the petitioner that the third respondent in each of the writ petitions has to retire at the age of 60 as the rules have been repealed, is not sustainable and I see no merit to interfere with the impugned orders in these writ petitions. The writ petitions are dismissed. No costs.