Yagyaval Sharma vs D.S.C.S.C. Ltd. & Ors.
2010 Latest Caselaw 2981 Del

*            HIGH COURT OF DELHI : NEW DELHI

+                   W.P.(C) No. 5481/2008

                                  Pronounced on: 07.06.2010
     YAGYAVAL SHARMA                                  ...Petitioner

                      Through:      Mr. K.C. Mittal, Advocate.

                      Versus

     D.S.C.S.C. LTD. & ORS.                             ....Respondents
                    Through:        Mr. Amit Kumar with Mr. Somesh
                                    Chandra Jha and Mr. Ritesh
                                    Ratnam, Advocates for respondent
                                    no.1.
                                    Mr. Amandeep Joshi, proxy counsel
                                    for Ms. Jyoti Singh, Advocate for
                                    respondent nos. 2 to 4.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                       No
2. To be referred to Reporter or not?                    Yes
3. Whether the judgment should be reported               Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The petitioner has filed the present writ petition under Article

226 of the Constitution of India inter alia praying that non grant of

enhanced age of superannuation as 60 years is illegal, arbitrary and

violative of Article 14 and 16 of the Constitution of India. The

petitioner has also sought a direction to consider and grant enhanced age

of superannuation up to 60 years to the petitioner and set aside the order

dated 08.05.2008 superannuating the petitioner at the age of 58 years.

2. Brief facts of the case are that in the year 1981, the petitioner

was appointed in Delhi State Civil Supplies Corporation. In 1985, the

Recruitment Rules of the Corporation were framed on the lines of the

Central and Delhi Government Pay Scales which are governed on the

lines of the Central Pay Pattern. In May, 1998, on the recommendations

of the 5th Central Pay Commission it was decided that the age of

superannuation of every government servant shall be increased from 58

to 60 years. The decision was also extended to the employees of the

Autonomous Organizations / Corporations, whose service conditions

were at par or identical with that of the Central Government employees.

However, the said benefit was not extended to the employees of the

respondent which according to the petitioner is whimsical and arbitrary.

In May, 2007, the petitioner made the representation. The other

employees also made similar representations in September, 2007. The

case of the petitioner is that the said agenda was placed before the Board

of Directors. However, the decision was deferred in a highly arbitrary

manner without realizing that the employees are superannuating. On

08.05.2008, the respondent no.1 issued the order to the petitioner

intimating that he would stand superannuated with effect from

31.07.2008 after completing 58 years of age in terms of Service Rules

prevailing in DSCSC at that point of time.

3. The present writ petition has been filed by the petitioner inter

alia seeking direction to the respondent no.1 to enhance the age of

superannuation up to 60 years by quashing the order dated 08.05.2008.

The writ petition came up before the court along with the interim

application on 30.07.2008 when notice was issued to the respondents for

07.08.2008 and no interim order was passed. In the meanwhile the

petitioner on 31.07.2008 retired. The other connected writ petitions

bearing nos. 9623/2008, 2618/2008 & 7369/2008 involving the same

question of law are also pending. Due to early hearing application in the

present petition by the petitioner, the petition has been heard with the

consent of the parties. The main contention of the petitioner is that in

1996, the Fifth Central Pay Commission recommended that the age of

superannuation of all the government employees be increased from 58

years to 60 years. The Government of India accepted the

recommendation of the Fifth Central Pay Commission and vide order

dated 29.05.1998 issued by the Department of Personnel and Training,

Government of India, FR 56 (a) was amended by the Gazette

notification, which provided that every government servant shall retire

from the service on attaining the age of 60 years.

4. Vide order dated 30.05.1998 passed by the Government of

India directing to implement the said recommendation in respect of the

employees of the autonomous bodies / organizations, the said decision

was communicated to the bodies and organizations about the increase of

the age of retirement. Despite of various representations made by the

petitioner and other employees before the respondent no.1 and the

agenda placed before the Board of Directors, the decision was deferred

from time to time inspite of the fact that :

(a) Respondent no.1 corporation has earned net profit during

the last three years, i.e. 2004-05, 2005-06 and 2006-07;

(b) the respondent no. 1 has not made any recruitment in the

last ten years rather the respondent no.1 abolished more

than 250 posts from the organization; and

(c) hundred employees have also retired on attaining the age of

superannuation or voluntarily, expired, dismissed or left the

Respondent Corporation during the last five years from the

date of filing of the writ petition.

5. According to the petitioner, earlier on 05.09.2008, the Board

of Respondent no.1 decided to continue the age of retirement of its

employees at 58 years only.

6. The contention of the petitioner is that the issue of the age of

retirement was deferred by the Corporation for future. Since the

petitioner received the letter dated 08.05.2008 whereby he has been

informed that he would stand retired from the services of the

Respondent Corporation on attaining the age of 58 years i.e. 31.07.2008,

the present writ petition has been filed by the petitioner on compelling

circumstances.

7. Main grounds for filing the writ petition raised by the

petitioner are that the proposal of enhancement of age has not been

considered by the Board of Directors on one ground or the other and the

decision was referred time and again. Secondly, the Central

Government and Government of NCT took a decision to enhance the

age of superannuation in respect of its employees and the employees of

Public Sector Enterprises and Autonomous Bodies under it, non

extension of enhanced retirement age in respect of the petitioner and his

co-employees is violative of Articles 14 and 16 of the constitution of

India. Thirdly, it is stated that some employees working with the

respondent no.1 are allowed to be superannuated at the age of 60 years

and others at the age of 58 years. As the action of the respondent is

malafide and motivated therefore, the present writ petition has been

filed.

8. The main contention of the respondent no.1 is that the

respondent no.1 has taken the decision in its 143 rd meeting to enhance

the age of retirement from 58 to 60 years w.e.f. 26.03.2010 and amended

the Service Rules w.e.f. 26.03.2010. It is further contended by

respondent no.1 that the Board has also decided that the employees who

had already retired prior to 26.03.2010 shall not be having any claim of

enhanced age of 60 years. The respondent has also denied the allegation

of discrimination of the enhanced age of Sh. Satvir Singh raised by the

petitioner as the same is without any basis. It is contended by the

respondent that Sh. Satvir Singh was retired on 31.03.2010 on attaining

the age of 58 years. By virtue of Resolution of Board dated 26.03.2010,

the Service Rules governing employees have been amended on

26.03.2010 increasing the age of superannuation from 58 to 60 years.

Thus, the date of retirement was 31.03.2010, the Service Rules provided

the retirement at the age of 60 years, therefore, his case cannot be

equated with the case of the petitioner.

9. After hearing the rival submissions of the learned counsel for

the parties let me examine the contention of the petitioner. Along with

the writ petition the petitioner has placed copy of the order dated

30.05.1998 as annexure P-3 thereby the Government of India directed to

implement the said recommendation in respect of the employees of

Autonomous Bodies / Organizations. The said order reads as under:

"The undersigned is directed to say that the Fifth Central Pay Commission in para 128.16 of its report recommended for increase in age of retirement of Central Government employees from 58 years to 60 years. The recommendation of the Fifth Central Pay Commission has been accepted by the Government Central Government employees from 58 to 60 years. Accordingly, F R 56 has been amended vide this Department's Notification No. 25012/2/97-Estt (A) dated the 13.05.1998 and 27.5.1998. The amended F.R. 56 (a) reads as under:

"(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 sixty years.

Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the Last day of the preceding month on attaining the age of sixty years.

"Provided further that a Government servant who has attained the age of fifty eight years on or after the first day of May, 1998 and is on extension in service, shall retire from service on expiry of his extended period of service."

2.Consequent upon revision of scale of pay of the Central Government employees, the question of extending the same benefits to the employees of the autonomous bodies/organizations was also under consideration of the Government. It has been decided to extend the benefit of extension in age of retirement from 58 years to 60 years in the following cases:-

(a) In cases where the autonomous bodies/organizations are following the rules as applicable to Central Government employees and where the pay scales and conditions of service are identical to Central government employees, the age of retirement shall be extended by two years with prospective effect through appropriate Notification amending the Rules in consultation with the administrative Ministry concerned subject to condition that the age of retirement shall not exceed 60 years. There shall be a complete ban on grant of extension in service beyond the age of superannuation except in the case of medical and scientific specialist, who can be granted extension in service, on a case basis, upto the age of 62 years and the orders relating to increase in age of retirement shall not be applicable to the persons on extension in service on 1.6.1998.

(b) In case where the existing rules of the relevant autonomous bodies/organizations provide either that the age of retirement of specified categories of personnel working in these organizations shall be (illegible) in the Central govt. or where the existing rules provide that all the conditions service shall be identical to corresponding category of personnel in the Central Govt., the age of retirement may be increased by two years from prospective effect subject to a maximum of 60 years, in consultation with the concerned Administrative Ministry except in cases where the age of retirement in these organizations is already more compared to their counterparts in the Central Govt. There shall be a complete ban on extension in service beyond the age of superannuation except in the case of medical and scientific specialists who can be granted

extension in service, on a case to case basis, upto the age of 62 years and the orders relating to increase in age of retirement shall not be applicable to the persons on extension in service on 1.5.1998.

(c) In respect of autonomous bodies/organizations not covered by (a) & (b) above, the Administrative Ministry concerned may examine the matter on merits and thereafter approach the Department of Personnel, if it proposed to extend the age of retirement in these autonomous bodies/organizations. The usual conditions that the maximum age of retirement shall not exceed 60 years and there shall be a complete ban on extension in service beyond the age of superannuation except in the case of medical and scientific specialists, who can be granted extension in service, on a case to case basis, upto the age of 62 years and the orders relating to increase in age of retirement shall not be applicable to the persons on extension in service on the date of issue of orders shall apply.

3. Approvals in the cases covered by paras 2

(a) and (b) above will be at the level of the Minister-in-Charge of the Administrative Ministry.

10. It is not denied by the petitioner that the Corporations were

governed by the Service Rules. The petitioner has also not denied about

passing of 143rd Board of Directors meeting and its decision on

26.03.2010.

11. Learned counsel for the respondent has admitted the fact that

in the year 1985 the Recruitment Rules of Corporation were framed on

the lines of the Central and Delhi Government Pay Scales and are

governed on the lines of Central Pay Pattern. It is argued by the learned

counsel for the respondent that the administrative instructions on

recommendations of Fifth Pay Commission enhancing the age are

advisory in nature. A plain reading of the order passed by the

Government of India on 30.05.1998 has put a rider as per paras 2(a) and

(b) referred above.

12. It is undisputed fact that the petitioner has retired on

31.07.2008 and the Board Meeting which was held on 26.03.2010

whereby it has enhanced the retirement age while taking the decision in

pursuance to the recommendation of the Government of India /

Government of NCT Guidelines in the Service Matter. In the said

Board decision it s clearly mentioned that the employees who had

already retired prior to this date will not be having any claim for the

enhanced age of 60 years. Learned counsel for the respondent states

that the petitioner is, therefore, not entitled to the benefit of enhanced

age of retirement on the basis of administrative instruction of the

Government of India or NCT of Delhi.

13. He further states that the Board of Directors vide Resolution

dated 05.09.2008 rejected the recommendation and held that the age of

retirement of employees of respondent would continue to be 58 years.

The instructions are advisory in nature and do not bind the respondent

till the time they are approved by the Board of Directors as appear from

the order dated 30.05.1998.

14. In order to support his aforesaid submissions he has relied

upon the decision of Sureshchandra Singh & Ors. Vs. Fertiliser

Corporation of India Ltd. 2004(1) SCC 592 wherein it was held:

"that the instructions issued by administrative ministries are only advisory, which the board of directors of Public Sector Undertaking concerned in their discretion may or may not apply to the corporation and they ipso facto do not raise the age of superannuation nor any right is created in favour of employee."

15. In case of K.S. Anandram and Ors. Vs. Union of India and

Ors. 2002 (4) DEL 684 it was held:

"The Petitioners were clearly governed by the service rules. Rule 11 thereof stipulates that employees like the petitioners would stand retired on completion of 58 years of age. No amendment was made to the said rules in accordance with law, and therefore, the petitioners cannot claim that they are required to be continued till they attain the age of 60 years."

16. In another case titled as Omprakash and Others Vs. Union

of India and Others, it was held:

"Service conditions of the employees of public sector undertaking are not analogous to the government employees. Hence no parity can be claimed by the Petitioner.

17. In case of Prahalad Sharma Vs. State of U.P. and Ors. 2004

(4) SCC 113 it was held:

"Public Sectors Undertaking are not the departments of Govt. and nor are the servants of it are holding posts under the state. Therefore, reliance on the Government circular of the Petitioner is legally misconceived."

18. In the present case, it is a matter of fact that the petitioner

was superannuated at the of 58 years. The service condition of the

petitioner is governed by the Rules applicable to employees of the

respondent on the date when the petitioner superannuated. The

petitioner admittedly, has not challenged the said Rules and the Board

Meeting which has taken the decision that the employees who had

retired prior to this date will not be having any claim for the enhanced

age of 60 years. Thus, it appears that there is no force in the contention

of the petitioner. In the case of of Ramswaroop Masawan Vs.

Municipal Council and Another 1998 (6) SCC 338, it was held by

Hon'ble Supreme Court that:

"the employee would superannuate in accordance with the rules which were applicable at relevant point of time."

19. In the case of State of Punjab Vs. Buta Singh, (2000) 3 SCC

733 it was held by Hon'ble Supreme court:

"the employees are not entitled to claim benefits which became available at much later date to retiring employees by reason in change in service rules."

20. In view of the aforesaid discussion and following above said

judgments referred by the learned counsel for the respondent, this court

is of the considered view that the petitioner has no case on merit.

21. For the aforesaid reasons the writ petition is dismissed with

no order as to costs.

MANMOHAN SINGH, J.

JUNE 07, 2010 dp