Hari Krishan Sharma vs Municipal Corporation Of Delhi
1987 Latest Caselaw 383 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) This application has been placed before the Full Bench in view of the order of reference dated 3/4/1987 passed by the Division Bench. The order dated 3/4/1987 reads as under : "C.W.446/87 Rule D.B. C.M. 736/87 It appears that different Division Benches of this Court have taken divergent views on the question whether the operation of an order retiring a person at a lower age should be stayed after rule has been granted on a petition by him claiming a higher age of retirement. In other words, whether he should be allowed to continue in service and function whilst his petition is pending. In Civil Writ Petitions Nos. 1365 of 1984 and 2798 of 1985 an interim order of stay was granted. On the other hand, in Civil Petitions Nos. 623 of 1986 and 3103 of 1985 such an interim order of stay was refused. The point is one of general importance and arises frequently. It is, therefore, desirable that it should be decided more authoritatively by a larger bench. Consequently, we refer this application for 1987 will continue till this application is finally decided."

(2) The brief facts leading to this reference are these :- THE petitioner was appointed as an Assistant Teacher in the year 1951 ; promoted as Head Master in 1954 and further promoted as School Inspector in 1963 and Senior School Inspector in the year 1981. The petitioner was given Current Duty Charge of the post of Assistant Education Officer with effect from 8/1/1986. By order dated 23/7/1986, the petitioner was given the scale of Rs. 1200-1600 in the post of Assistant Education Officer with effect from the date on which he had taken Current Duty Charge of the said post up to 31/12/1986 or till the regular appointment was made or till further orders.

(3) By office order dated 25/9/1986 passed by the respondent-corporation, the petitioner, who at that time was working as an Assistant Education Officer, was informed that he will stand retired from municipal service on attaining the age of superannuation, i.e. 58 years with effect from 28/2/1987 (AN). On 17/2/1987 the petitioner filed Civil Writ 446/ 87 challenging the legality of the aforesaid order dated 25/9/1986. The petitioner has also sought a declaration that he is entitled to continue in service till the age of 60 years. Along with the writ petition this application (CM 736/86) was filed seeking the stay of the operation of the order dated 25/9/1986 and an order directing the respondent not to retire the petitioner from the service till the decision of the writ petition.

(4) The claim of the petitioner is that even after his promotion as School Inspector, Senior School Inspector and as Assistant Education Officer he continues to remain a teacher and is entitled to continue in service up to the age of 60 years.

(5) The main basis of the claim of the petitioner is a judgment of the Division Bench of this Court delivered on 22/5/1985 in C.W. 1635/84 in Re Smt. Sheila Puri v. Municipal Corporation of Delhi, in which the Division Bench observed that: "IT seems to us that if you are a teacher to start with, you remain a teacher even if you are promoted to post which involves supervision of the schools rather than teaching in the schools."

(6) The Bench in the aforesaid case held that the petitioner before them would continue to be a teacher inspite of being promoted to the post of School Inspector. The Bench further held that even if there is any doubt in the matter, it has to be resolved in favor of the petitioner on the application of Article 14 of the Constitution and the petitioner still would be entitled to continue in service till the age of 60 years. It was held that she cannot have a different retiring age from the other School Inspectors who were transferred to Delhi Administration. The Bench noted that because of wrong fixation of seniority, the petitioner before them had not been transferred to Delhi Administration. The claim of the petitioner in that case about her seniority had been decided in her favor by the Civil Court. The Bench held that had the authorities taken a correct decision in her favor about her seniority she would have been transferred to Delhi Administration and in any case would have retired at the age of 60 years. On account of wrong fixation of seniority, her juniors had been transferred to Delhi Admn. and the said juniors had retired on attaining the age of 60 years.

(7) On the basis of the aforesaid judgment in Sheila Puri's case Mr. M.L. Bhargava, the learned counsel for the petitioner has vehemently urged that the case of petitioner is fully covered by the said judgment and the petitioner is also entitled to continue in service up to the age of 60 years. It has been contended that in view of the said judgment there can be no doubt about the legal position in so far as the age of retirement is concerned and the interim order should be granted staying the operation of the order dated 25/9/1986 and the petitioner should be permitted to continue in service up to the age of 60 years.

(8) The application for staying the operation of the office order dated 25/9/1986 has been strenuously opposed on behalf of the respondent-corporation. Along with its reply, the respondent-corporation has filed an order dated 18/11/1985 passed by the Hon'ble Supreme Court of India while granting the petition for special leave to appeal, against the judgment in Sheila Puri's case. The order dated 18/11/1985 passed in Special Leave to Appeal (Civil) No. 8991/85 reads as under :- "MR.Soli J. Sorabjee, appearing for the petitioner states that irrespective of the result, the Municipal Corporation will extend the benefit of the upper age of the retirement of 60 years to the respondent as directed by the High Court, subject to this reservation we grant special leave. Preparation of record dispensed with. Appeal will be heard on present papers with such additional papers as parties may file within eight weeks from today. Hearing expecited. Short matter, Liberty to mention. There will be stay of operation of judgment save and except that the Municipal Corporation shall implement the judgment of High Court in so far as respondent is concerned."

The Contention is that in view of the aforesaid order of the Supreme Court the corporation is not obliged to implement the said judgment in so far as the other employees of the Municipal Corporation are concerned except Smt. Sheila Puri.

(9) In view of the aforesaid order of the Supreme Court the contention of the petitioner that because of the Division Bench judgment the order of stay of the operation of the order dated 25/9/1986 must follow as a matter of routine, without going into the question of balance of convenience, is ill founded. It may also be mentioned that after the aforesaid order of the Supreme Court dated 18/11/1985 another Assistant Education Officer Smt. Pushpa filed C.W. 3103/85 in this Court and a Division Bench after issuing notice to show cause why the petition should not be admitted, adjourned the writ petition sine die with liberty to have it revived as soon as the Supreme Court has decided Sheila Puri's case. The order adjourning the case sine die was passed by the Division Bench presided over by the then Chief Justice ShriD.K.Kapur who was himself a party to the: decision in Smt. Sheila Puri's case and one of us (N.N. Goswami, J ).

(10) No hard and fast rules can be laid down as to when stay should be granted or refused. However, it is well settled that the main factors to be considered for granting or refusing interim relief arc (1) prima facies case; (2) balance of convenience and (3) irreparable loss. I will assume that the petitioner has a prima facie case in his favor.

(11) The respondents have, however, seriously challenged the correctness of the proposition that even after promotion an employee would carry with him the age of retirement of teacher. They have submitted that another Division Bench, by order dated 27/3/80, dismissed Civil Writ 205/80 Re : B.N. Chaudhary v. Commissioner of Mcd and others, involving similar questions. It was submitted that in Sheila Puri's case, the aforesaid earlier judgment should have been followed and in law it cannot be said that Chaudhary's case is not a precedent simply because the petition was dismissed in liming. The detailed reasoning was given in Chaudhary's case. Mr. Dattar, learned counsel for the respondent-corporation submitted that the learned Bench deciding Sheila Puri's case was itself not certain about the legal position and that is why the Bench observed that even if there is any doubt in the matter, it has to be resolved in favor of Smt. Sheila Puri on application of Article 14 of the Constitution. The submission is that on the peculiar facts of the case the Bench gave relief to Smt, Sheila Puri. The respondents have further contended that according to recruitment regulations the method. of recruitment for the posts of School Inspector is 50 per cent by promotion and 50 percent by direct recruitment. Likewise, according to the recruitment regulations, the method of recruitment for the post of Assistant Education Officer is by promotion failing which by direct recruitment. They say that if the judgment in Sheila Puri's case is correct the startling result would be that the officers appointed to the posts of School Inspectors by method of promotion would retire at the age of 60 years whereas the officers appointed to the same posts of School Inspectors by method of direct recruitment would retire at the age of 58 years. Likewise, an Assistant Education Officer appointed by way of promotion would tire at the age of 60 years while an officer appointed to the post of Assistant Education Officer by method of direct recruitment would retire at the age of 58 years. They further submitted that officers holding equivalent posts in Delhi Administration retire on attaining the age of 58 years. According to the respondents the above illustrations show that a great anomaly would be created, namely, two officers holding the same posts would have different ages of retirement.

(12) However, I would like to comment upon the judgment of the Division Bench in Sheila Puri's case as the matter is pending in the Supreme Court. As stated above I will assume that the petitioner has a prima facie case. But it is extremely unusual for this court to stop the operation of a Government order merely because the writ petition makes out a prima facie case (See : Randhir Singh v. Union of India, I.L.R. Delhi Vol. Ii page 241).

(13) On the question of balance of convenience and irreparable loss, it may be noticed at the outset that the petitioner as also all other employees and officers of the Municipal Corporation of Delhi are governed by the statutory rules and regulations known as "The Delhi Municipal Corporation (Service) Regulations, 1959." Under these regulations the Corporation has adopted amongst others the Fundamental Rules as applicable to Central Government employees. Under Fundamental Rule 56 the retirement age of every government servant is 58 years except a class of employees specifically excluded therein. The petitioner does not fall under the category of the employees carved out by the exception. The petitioner would be entitled to retire at the age of 60 years only if he can be termed as a teacher.

(14) According to the learned counsel for the respondent-corporation the petitioner has no legal right to serve with the respondent after attaining. the age of superannuation which according to them i.e. 58 years. In the even of the rule being made absolute the respondents would be obliged to pay the petitioner the salary for two years or for such period after the age of 50 for which petitioner was not allowed to serve the Corporation. This would be necessary consequence of the writ petition being allowed and it would also be open to the Bench ultimately deciding the writ petition to even award interest to the petitioner in case such a case is made out and the writ petition is allowed. The petitioner can be duly compensated in the event of the ultimate success of the writ petition whereas, the respondent cannot be compensated in the event of the dismissal of the writ petition. The other employees of the Corporation, who are not before the court but are to be promoted on the retirement of the petitioner at the age of 58 years, would be adversely affected and there would be no way to compensate the said officers awaiting promotion on the retirement of the petitioner and other similarly situated employees. The interim order of stay would seriously affect junior persons in the Education Department who are due for promotion and stay if granted would cause total discontent vi the department. In case the writ petition is ultimately dismissed, restitution will not be possible inasmuch as it would then be contended by the petitioner that he has been paid his salary for the work done by him and, therefore, there can be no question of restitution i.e. returning back the salary to the respondent-corporation.

(15) In my opinion there should ordinarily be no stay of the order retiring a person on attaining the normal age of superannuation. It is only in a most exceptional case that an order staying the order of retirement should bepassed. The reasons are obvious. The fixing of the age of retirement or superannuation is a matter of policy of the government and the petitioner and the employees have no legal right to continue in service after attaining the normal age of superannuation fixed in the Rules. In fundamental Rule 56 the age of retirement is 58 years. The petitioner has enjoyed the benefit of promotion and a couple of days prior to attaining the age of retirement i.e. 58 years, have filed the writ petition challenging the order intimating him as to when he would retire. In substance the stay of the order dated 25/9/1986 would have the effect of staying the operation of F.R. 56 providing the age of superannuation.

(16) It cannot be held that no order of stay should ever be granted in the matters relating to retirement, termination, removal or dismissal of an employee from service. It is not possible to lay down such a broad proposition. I am of the view that ordinarily in such matters no stay should be granted except in a very exceptional case. One such illustration of exceptional case can be when a matter is squarely covered by a decision of the Supreme Court. Another illustration can be when the impugned order is contrary to the clear and unambiguous language of a statute or a rule, for instance, where a rule provides for retirement at the age of 58 years and an employee is sought to be retired on attaining the age of 55 years. There is no purpose in multiplying those illustrations as ultimately each case would depend upon its own facts and circumstances'.)

(17) The continuance in service of a person who has reached the age of superannuation by an interim order of stay would not only result in defeating the object of the rule fixing the age of retirement but it is also likely to' result in blocking the promotion of some and recruitment of the others. The immediate loss to receive salary every month and depreviation of other attending benefits and dislocation cause to the petitioner cannot always be compensated in terms of money but such contingencies are implicit and not a very uncommon incident of service. As against this the order of stay is likely to create unhealthy atmosphere and disharmony in the office which can never be repaired. This is enough to outweigh the effect of such incidental consequences. on the individual. The grant of interim relief would amount to allowing the writ petition itself. The court would be extremely show to grant interim stay in such cases when injury to the respondent is likely to remain uncompensated but injury to the petitioner even, without the interim stay, can be compensated by/award of damagees. (See : Union of India v. M.K. Kutty, 1976 Vol. 78 Bombay Law Reporter 332 and Damodar Valley Corporation v. Haripada Da& and others, ).

(18) It may not be possible to lay down the broad principles that where compensation can be given by way of damages, no order of stay should at all be issued. As stated above it would depend upon the facts and circumstances of each case. However, ordinarily, no order of stay is called for where the relief can be measured in terms of money and, in particular, no interim stay should be granted in the cases of dismissal, removal, termination or on air employee attaining the normal age of superannuation, except of course, in a very exceptional case; The present case does not fall in the category of a very exceptional case.

(19) The principles of re judicator sought to be applied by the learned counsel for the petitioner have no applicability. There is also no force in the plea of discrimination.

(20) For the reasons stated above I would dismiss Cm 736 of 1987 and vacate the interim order made on 25/2/1987. However, in the facts and circumstances of the case there will be no order as to costs.