Bombay High Court
Mrs. Mary Stella Fernandes vs Municipal Corporation Of Greater ... on 14 January, 1992
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT P.D. Desai, C.J.
1. The Appellant is an employee of the 1st Respondent Municipal Corporation. She entered service as Staff Nurse on 9th September, 1958 and held various positions during the course of her service career. At the material time, when the impugned order of premature retirement was passed, she was holding the post of Matron, G. T. B. Hospitals.
2. Rule 67 of the Municipal Service Regulations provides inter alia, that every Municipal Officer or servant shall retire at the age of 58 years, provided that the appropriate authority may, if it is of the opinion that it is in the public interest to do so, require any Municipal servant to retire after he has attained the age of 55 years by giving him notice of not less than 3 months in writing or 3 months' pay and allowances which he would have drawn during the notice period, in lieu of such notice. The procedure prescribed by the 1st Respondent-Municipal Corporation for the exercise of power under Rule 67, briefly stated, is that a Committee is constituted for considering the cases of those employees who have attained the age of 54 years and the said Committee considers those cases in light of three factors, namely physical ability, integrity beyond doubt and service record not below "Good" after taking into consideration, inter alia, the confidential record and report of the Head of Department.
3. The Appellant attained the age of 55 years on 26th January, 1991, on 1st February, 1991 the case of the Appellant was referred to the Committee for considering whether or not she should be retained in service beyond the age of 55 years. The recommendation made by the Held of the Department in this Connection was as follows :-
Recommendation of the Head of the Department along with the remarks about physical ability an integrity of the employee.
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Physical Ability Integrity Recommendations]
(1) (2) (3)
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Suffering from "thalamic Satisfactory To be considered to Stroke" resulting into continue for One Physical limitations Year. during acute episodes.
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On the strength of the materials placed before the committee, they made the following recommendation :
"As per M. C.'s recent Circular No. MOM/6977 of 1.2.1991 the Physical ability is one of the criteria for fitness for continuation. Since M. S. G. T. A. Hospital has stated that Smt. Fernandes is physically not able to control over the nursing staff in the different wards, it is therefore recommended to continue her upto 31.10.1991 only. She may be allowed to retire from 1.11.1991 by giving three months notice in advance".
4. Pursuant to the recommendation made by the Committee, notice dated 17th July, 1991 was served upon the Appellant informing that as per the provisions of Rule 67 of the Municipal Service Regulations and as per the recommendation of the Committee, she would superannuate from the Municipal Services on 1st November, 1991 before office hours.
5. The Appellant made representations dated 24th July, 1991 and 16th October, 1991 against the decision regarding her premature retirement. The said representations were rejected and the rejection was communicated to her by the letter dated 19th October, 1991.
6. The Appellant thereupon filed the Writ Petition out of which the present Appeal arises seeking the relief, inter alia, to set aside the impugned order of premature retirement and to direct the Respondents to continue her in service. The writ petition came up for hearing before the learned Single Judge who summarily rejected the same on the ground, inter alia, that the record of medical history and leave applications released that the Appellant had been suffering from a particular ailment and that not that account she was unable to control the Nursing Staff in the different Wards and that the Committee having expressed its view that the Committee having expressed its view on the strength of relevant materials that she should be contented in service till she attained that age of 56 years only, there was no reason to interfere in the exercise of Writ Jurisdiction.
7. Hence the present Appeal.
8. When the Appeal reached preliminary hearing on 16th December, 1991, this Court passed an interim order in the following terms :
(1) The operation and implementation of the impugned order dated 17th July, 1991 (Annexure 'C' to the Writ Petition) is stayed;
(2) The Respondent Municipal Corporation will constitute a Medical Board, one expert on which shall be an eminent neurologist not in the employment of the Respondent - Municipal Corporation, to examine the Writ Petitioner and to opine whether in view of the ailment/disease from which she has suffered and/or is suffering, as the case may be, she is in a position to discharge satisfactorily the functions and duties attached to the post held by her. The writ petitioner will subject herself to the medical examination by the said Board as and when called upon;
(3) The Board will be constituted on or before 26th December, 1991 and is requested to submit its report on or before 4th January, 1992".
The Report of the board was directed to be placed on the record of the case on 8th January, 1992.
9. Pursuant to the order aforesaid, a Medical Board was constituted consisting of Dr. R. P. Bharucha (Neurophysician), Dr. L. S. Bichile (Professor of Medicines, Dr. T. T. Changlani (Professor and Head of Surgery) and Dr. Motwani (Professor and Head of Opthalmology). Dr. R. P. Bharucha was nominated on the Board as an expert. The report of the Board which was submitted to the 1st Respondent Municipal Corporation on 3rd January, 1992 shows that the Medical Board had met and that Dr. E. P. Bharucha had "Scan" the Appellant. Having taken note of the Medical history and the symptoms, the final opinion of the Board under the heading "Clinical Impression" is given in the following terms :
"Hypertension (controlled) with an embolic episode which has cleared up in 4 days as the embolus fragmented and moved on, with normal C. T. Scan with complete neurological recovery. Hence fit for service".
10. The Report submitted by the Medical Board has thus found the Appellant fit for being retained in service.
11. As pointed out earlier, the only ground on which the premature retirement of the Appellant was recommended by the Committee was that she was physically not able to control the nursing staff in the different words. This recommendation was apparently made in light of the report of the head of the Department to the effect that she was suffering from "Thalamic Stroke" resulting into physical limitation during acute episodes". The very basis on which the premature retirement was recommended and ordered stands displaced by the order of the Court. In fact, the Board has opined that she is fit for being retained in the service. To order her premature retirement is thus not within the scope of Municipal Service Regulation No. 67.
12. For the foregoing reasons the Appeal Succeeds and it is allowed. The decision rendered by the learned Single Judge is set aside. Rule is issued on the writ petition and it is made returnable forthwith. The Respondents waive service of the rule. The rule is made absolute by quashing and setting aside the Notice dated 17th July, 1991 and also the orders rejecting the representations made on by the Appellant to the higher authorities. The respondents are directed to continue the Appellant in service until there exists any valid ground to prematurely retire her from service or till she reaches the age of superannuation, whichever is earlier.
13. No order is earlier.
14. Certified copy of this order, if applied for on the payment of requisite charges, to be supplied on expeditious basis.