Rajasthan High Court - Jodhpur
V.K. Sharma Inspector (Cipher) vs Union Of India on 23 April, 2019
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5347/2019
V.k. Sharma Inspector (Cipher) S/o Shri Lt. Surendra Bhushan,
Aged About 56 Years, Sector Hq Bsf Jaisalmer, Old Location
Quarter No 68 Type Ii Jaisalmer Raj.
----Petitioner
Versus
1. Union Of India, Through Secretary, Home Ministry Of
India, North Block Central Secretariat, New Delhi.
2. The Director General, Hq, Dg. Bsf, Force Headquarter, Bsf,
New Delhi.
3. The Inspector General, Bsf, Hq Bsf, Jodhpur, Rajasthan.
4. The Director, Accounts, Pao Bsf, Pushpa Bhawan,
Madangir, New Delhi.
5. The Additional Director General, (Bsf Comn And It Dte)
CGO Complex, Fhq, Bsf, Lodhi Road, New Delhi 110003.
6. Director Deputy Inspector General, Shq, Bsf Jaisalmer,
Ramgarh Road, Jaisalmer, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Navneet Singh Birkh
For Respondent(s) : Mr. Nrapen Shanker Acharya for Mr.
Sanjeet Purohit.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 23/04/2019 This writ petition has been filed by the petitioner seeking a direction to the respondents to continue the petitioner in service till he attains the age of 60 years i.e. upto 30.04.2022 as per the Rule 12 of the Rules which provides for power to relax and also in accordance with the verdict / directions of Delhi High Court in case (Downloaded on 28/06/2019 at 12:20:18 AM) (2 of 5) [CW-5347/2019] of Dev Sharma v. Indo Tibetan Border Police & Anr. : W.P. (C) No.1951/2012, decided on 31.1.2019.
The Delhi High Court in the case of Dev Sharma (supra), while holding the provisions of Rule 43 of the CRPF Rules, 1955 as discriminatory and violative of Article 14 of the Constitution of India, directed consideration by the respondents therein regarding the enhancement of the age for the cadres indicated therein. The matter is still pending with the respondents pursuant to the directions issued by the Delhi High Court.
It is, inter-alia, prayed that as the petitioner is due to retire on 30.04.2019 and as the matter is still pending with the respondents, in view of the fact that provisions of Rule 43 have been held to be discriminatory, the respondents be directed not to retire the petitioner in the meanwhile.
Learned counsel appearing for the respondents on caveat has relied on order dated 04.02.2019 passed by Delhi High Court, whereby the order in the case of Dev Sharma (supra) has been clarified.
Learned counsel for the respondents has further referred to a order dated 26.03.2019 passed by this Court in Isub Ali Khan v. UOI : S.B. Civil writ No.4340/2019, wherein a similar prayer was not granted.
Learned counsel for the petitioner with reference to an order dated 28.02.2019 passed by the Division Bench of Madras High Court made submissions that despite passing of the order dated 04.02.2019, interim order has been granted by the said Court and that High Court of Tripura has also on 03.04.2019 passed interim order and therefore, the same be granted by this Court as well. (Downloaded on 28/06/2019 at 12:20:18 AM)
(3 of 5) [CW-5347/2019] I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The Delhi High Court in its judgment dated 31.01.2019, give certain directions. Whereafter, the said Court on 04.02.2019 in Ram Chander Kasania & Anr. v. UOI & Ors.: W.P.(C) No.695/2019 & C M Appl. No.3038/2019, wherein the application was made by an officer, who was similarly situated to the petitioner herein and was due to retire on 28.02.2019, directed as under :-
"4. It is pointed out by Mr. Chibber, learned counsel for the Petitioners, that no Pension Payment Orders (PPOs) are being issued to those like the present Petitioners who have either superannuated during the pendency of the decision in Dev Sharma v. ITBP (supra) stating that it would have to await the consequential steps to be taken pursuant to the said decision. Mr. Chibber points out that one administrative difficulty as a result of the said decision is that no PPO can be issued unless a final decision is taken by the Respondents on the uniform age of superannuation. This means that persons such as the Petitioners would receive no pension and other retiral benefits in the meanwhile.
5. In order to ensure that till such time the Respondents take the consequential steps for implementing the above judgment, no inconvenience is caused to such of those members of the CAPFs who superannuate in terms of the Rules as they existed prior to the judgment in Dev Sharma v. ITBP (supra), it is clarified that the Respondents will continue to issue PPOs in respect of such members of the CAPFs as and when they superannuate on the basis of Rules as they stood prior to the judgment.
However, in the event that the Respondents decide, by way of implementation of the judgment, that the uniform age of superannuation would be 60 years or any age beyond 57 years, then depending on the date from which the change will take effect, the direction of this Court in para 72 of the judgment that it would not have the effect of reinstatement of those who have already retired would not come in the way of the Respondents deciding to reinstate such of those members of the CAPFs who would not have reached the uniform age of superannuation as determined. The Respondents will issue appropriate consequential orders at that stage. 6. With the above clarification, the petition and application are disposed of in terms of the judgement dated 31 st January, 2019 Dev Sharma v. ITBP (supra). This clarification would apply to all those covered by the (Downloaded on 28/06/2019 at 12:20:18 AM) (4 of 5) [CW-5347/2019] judgment of this Court in Dev Sharma v. ITBP (supra)."
The said order passed by the Delhi High Court takes care of a situation in which the petitioner stands wherein if after his impending retirement on 30.04.2019, the age is enhanced whether he would be entitled to the benefits or not ?
So far as the order passed by the Madras High Court on 28.02.2019 is concerned, though the said Court noticed passing of order dated 04.02.2019, ignoring the said order, which is in nature of clarification of order dated 31.01.2019, has simply relied on the order dated 31.01.2019 and by only observing that it was not bound by any order passed by the Delhi High Court, still followed the order in the case of Dev Sharma (supra) for the purpose of grant of interim order. As the clarification order dated 04.02.2019 passed by the Delhi High Court has apparently been ignored by the Division Bench of Madras High Court, while passing the order dated 28.02.2019, this Court is not inclined to follow the interim order granted by the said Court.
So far as the order dated 03.04.2019 passed by the Tripura High Court is concerned, the said order does not take into consideration anything and an order has been passed for continuation of the petitioner therein in the office and as such, the said order also cannot be followed.
This Court in a similar nature matter in the case of Isub Ali Khan (supra), while considering the orders passed by the Delhi High Court, has observed as under :-
"Having considered the submissions made, in view of the clarification by the Division Bench of Delhi High Court in the case of Ram Chander Kasania (supra), for the time being no interim orders are required to be passed as petitioner would also be governed by (Downloaded on 28/06/2019 at 12:20:18 AM) (5 of 5) [CW-5347/2019] the decision taken by the respondents in light of the clarification."
In view thereof, the petitioner would also be governed by the various orders likely to be passed in the light of order dated 04.02.2019 by the Delhi High Court, which has been made the basis for the present petition.
No case for grant of interim order as prayed for is made out. The stay application is, therefore, dismissed.
Reply to the writ petition, if any, be filed within period of four weeks.
(ARUN BHANSALI),J 164-Rmathur/-
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