Delhi High Court
Mahesh Chand Tyagi vs Delhi Jal Board on 23 July, 2009
Author: Ajit Prakash Shah
* IN THE HIGH COURT OF DELHI AT NEW DELHI
#3
+ LPA 255/2009
MAHESH CHAND TYAGI ..... Appellant
Through Ms. Deepali Gupta, Adv.
versus
DELHI JAL BOARD ..... Respondent
Through Mr. Suresh Tripathy and
Mr. Ghanshyam Yadav,
Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
ORDER
% 23.07.2009
Admit. By consent of the parties the appeal is taken up for
hearing.
2. The appellant herein challenges the impugned judgment and
order dated 08.04.2009 passed in WP (C) No. 8183/2005 by the
learned single Judge.
3. The appellant is an ex-serviceman and has served the army for
15 years. He was discharged from the army in 1980. On 30.10.1984,
he was appointed as Security Guard by the 'Delhi Water Supply and
Sewage Disposal Undertaking' which was then a unit of Delhi Municipal
Corporation and is now an independent Board called 'Delhi Jal Board'.
4. The conditions of service of the employees of the Delhi Jal Board
are governed by the Delhi Municipal Service Regulations, 1959. By
virtue the Regulations, the provisions of Fundamental Rules,
Supplementary Rules, Govt. of India instructions, orders & directions
are applicable to the employees of Delhi Jal Board.
5. As stated above, the appellant was appointed on the post of
Security Guard (Chowkidar) on 30.10.1984 on temporary basis and his
services were regularized w.e.f. 19.3.1985. The post of Security Guard
(Chowkidar) is a class IV post and falls in the unskilled manual
category. The case of the appellant is that, as per the Rules
applicable, he was to retire at the age of 60 years. Hence, he was
entitled to continue in service till 30.9.1997. However, vide letter
dated 5.9.1995, he was made to retire w.e.f. 30.9.1995.
6. The appellant raised an industrial dispute under the provisions of
the Industrial Disputes Act, 1947 which came to be referred to the
Labour Court for adjudication. The terms of reference were as follows :
"Whether the termination of the services of Sh.
Mahesh Chand Tyagi by way of retirement is illegal
and unjustified and if so, to what relief, is he entitled
and what directions are necessary in this regard?"
7. The respondent contested the claim of the appellant and filed a
written statement. It was the stand of the respondent that the
appellant was employed as a Security Guard and, therefore, he was
covered by the proviso to FR 56(e) by virtue of which he had rightly
been superannuated on attaining the age of 58 years. The Labour
Court passed an award dated 23.8.2002 dismissing the claim of the
appellant on the ground that the appellant was admittedly engaged as
a Security Guard and accordingly he was covered by the terminology
'Secretariat Security Force' in proviso to FR 56(e) notwithstanding that
he was a class IV employee. The writ petition filed by the appellant
was dismissed by the learned single Judge by the order under appeal.
8. Ms.Deepali Gupta, learned counsel appearing for the appellant,
strenuously contended that the appellant was an employee of the
respondent and not of the Secretariat Security Force which is one of
the para-military forces under the Central Government having different
/ higher pay scales and that the respondent Board is an autonomous
body and there is no such post/force in the respondent. She relied
upon Swamy's Compilation on Re-Employment of Pensioners (Civilians
and Ex-Servicemen). On the other hand, Mr. Suresh Tripathy, learned
counsel appearing for the respondent Board, adopted the
interpretation given by the learned single Judge that the word
'Secretariat Security Force' would mean that a person, who is recruited
as a member of 'Security Force' or a 'Security Guard' to man or guard
the Secretariat of that organization as a separate class.
9. The sole question which falls for our consideration in the instant
case is whether the appellant ought to have been superannuated at
the age of 58 years or at the age of 60 years. For this purpose, we
may refer to the relevant FRs namely FR 56(a), 56(b) and 56(e)
respectively, which read as under :
"56(a) Except as otherwise provided in this rule,
every Government servant shall retire from
service on the afternoon of the last day of the
month in which he attains the age of fifty-
years.
56(b) A workman who is governed by these rules
shall retire from service on the afternoon of the
last day of the month in which he attains the
age of sixty years.
56(e) A Government servant in Class IV service or
post shall retire from service on the afternoon
of the last day of the month in which he attains
the age of sixty years :
Provided that a Class IV employee of the
Secretariat Security Force who initially enters
service on or after the 15th day of September,
1969, shall retire from service on the afternoon
of the last day of the month in which he attains
the age of fifty-eight years."
10. A perusal of the aforesaid FRs would show that insofar as a
workman is concerned, where there exists a relationship of employer
and employee in terms of FR 56(b), he shall attain superannuation on
the last date of the month in which he attains the age of 60 years.
Insofar as FR 56(e) is concerned, it specifically deals with class IV
employees and the Rule extends the age of superannuation of 60 years
to class IV employees also. However, the proviso to the said Rule
provides that persons, who are employed as Secretariat Security Force
though they are class IV and have been recruited on or before 15th day
of September, 1969, shall retire at the age of 58 years. The argument
of the learned counsel for the Delhi Jal Board is that all the security
guards in their establishment should be deemed to be members of
Secretariat Security Force and thus the case would be governed by
proviso to rule 56(e) of the FRs. On the other hand, learned counsel
appearing for the appellant has brought to our notice that the
Secretariat Force is a paramilitary force established by the Central
Government. She referred to the Ex-Servicemen (Re-employment in
Central Civil Services an Posts) Rules, 1979 which are reproduced in
Swamy's Compilation on Re-Employment of Pensioners (Civilians and
Ex-Servicemen). In Section-2 of the said Rules, the term "paramilitary
forces" is defined as follows :
"(d) "paramilitary forces" means the Boarder
Security Force, Central Reserve Police Force,
Indo-Tibetan Border Police, Central Industrial
Security Force, Secretariat Security Force,
Assam Rifles and Railway Protection Force"
11. It is obvious that the Secretariat Security Force has a different
connotation and implies a special paramilitary force created by the
Central Government. An organization, like Delhi Jal Board, has no such
Secretariat Force. The appellant was engaged only as a Security
Guard, which is admittedly a class IV post, and by virtue of FR 56(b)
the appellant is liable to be retired only on attaining the age of 60
years.
12. In the result, the appeal succeeds and the impugned award and
the order of the learned single Judge are set aside. It is declared that
the appellant is entitled to be continued in service till attaining the age
of superannuation i.e. 60 years. The respondent Board is directed to
pay to the appellant backwages for the period from 1.10.1995 till the
date of his retirement i.e. 30.9.1997. The respondent shall pay cost to
the appellant, quantified at Rs.25,000/-.
CHIEF JUSTICE
MANMOHAN, J
JULY 23, 2009
dk
