Delhi High Court
Mr. L.N. Khemka And Ors. vs Ifci Limited And Ors. on 11 March, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.1803/2001
% 11th March, 2015
MR. L.N. KHEMKA AND ORS. ..... Petitioners
Through: None.
versus
IFCI LIMITED AND ORS. ..... Respondents
Through: Mr. Dinkar Singh, Advocate for
respondent No.1.
Mr. Sanjay Bhatt, Advocate with Mr.
Abhishek Anand, Advocate for
respondent No.2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition filed under Article 226 of the Constitution
of India, the petitioners who are employees of the respondent no.1/IFCI
Limited, impugn the action of the respondent no.1 in issuing the impugned
H.R. Circular no.32/2000 dated 14.12.2000 whereby the retirement age was
reduced from 60 years to 58 years. Earlier, the retirement age was enhanced
to 60 years from 58 years in terms of the memorandum no.21/98-99 dated
27.5.1998.
2. The simple issue in this case is whether an employer can reduce
the retirement age from 60 years to 58 years.
3. With respect to the terms and conditions which existed of the
employees of the respondent no.1 in the year 1993 when it ceased to be a
statutory corporation and became a company under the Companies Act,
1956, no doubt under Section 8(1) of the Industrial Finance Corporation
(Transfer of Undertaking and Repeal) Act, 1993 the conditions could not
have been changed i.e on or before 1993 if the retirement age was 60 years,
then, the retirement age thereafter could not have been reduced, however, in
the present case the age of retirement was enhanced not before 1993 but only
from the year 1998 i.e not before the repeal of the statute-the Industrial
Finance Corporation Act, 1948 the erstwhile avtar of the respondent no.1,
but only after the respondent no.1 became a company under the Companies
Act, 1956. Therefore, if the respondent no.1 could through its Board of
Directors in 1998 enhance the age of retirement from 58 years to 60 years,
there is no law by which the respondent no.1 cannot reduce the age from 60
years to 58 years inasmuch as it falls in the exclusive privilege of the
employer to decide the retirement age of the employees.
4. That it is the employer who has the exclusive right to fix the
retirement age of the employee is no longer res integra and has been decided
by many judgments of the Supreme Court as also this Court. One such
judgment of this Court is the judgment in the case of Krishan Gopal Vs.
Union of India and Ors. 2012 (130) DRJ 170. Paras 23 and 24 of this
judgment are relevant and the same read as under:-
"23. We have considered the submissions of learned counsel on both
sides. At the outset, we would like to point out that fixing of
retirement age of an employee is the prerogative of the Government.
Thus, it is for the Government, as employer, to decide what is the
appropriate age of superannuation of different classes of employees.
Since this is the Executive's function in which Courts have no role,
Courts would be loath to interfere with such a decision of the
Executive fixing age of retirement. In State of U.P. & Ors. v.
Hirendra Pal Singh, (2011) 5 SCC 305, Supreme Court had
explained this principle in the following manner:
"8....So far as the issue of reduction of age from 62 to 60 years
is concerned, it has not been brought to the notice of the High
Court that it is within the exclusive domain of the State
Government to reduce the age even in Government services. So
in case of purely professional engagement, the age could validly
be reduced by the State Government unilaterally.
9. A Constitution Bench of this Court in Bishun Narain Misra
v.The State of Uttar Pradesh and Ors., AIR 1965 SC 1567 held
that new rule reducing the age of retirement from 58 to 55 years
could neither be invalid nor could be held to be retrospective as
the said rule was a method adopted to tide over the difficult
situation which could arise in public services if the new rule
was applied at once and also to meet any financial objection
arising in enforcement of the new rule.
10. In Roshan Lal Tandon v. Union of India and Ors., AIR
1967 SC 1889, a similar view has been reiterated by this Court
observing that emoluments of the Government servant and his
terms of service could be altered by the employer unilaterally
for the reason that conditions of service are governed by
statutory rules which can be unilaterally altered by the
Government without the consent of the employee. (See also
B.S. Vadera v. Union of India and Ors., AIR 1969 SC 118; The
State of Jammu and Kashmir v. Triloki Nath Khosa and Ors.,
AIR 1974 SC 1; B.S. Yadav and Ors. v. State of Haryana and
Ors., AIR 1981 SC 561; and State of Jammu and Kashmir v.
Shiv Ram Sharma, AIR 1999 SC 2012.
11. In K. Nagaraj and Ors. v. State of Andhra Pradesh, AIR
1985 SC 551, this Court examined the amended provisions of
Andhra Pradesh Public Employment (Regulation of Conditions
of Service) Ordinance, 1983 by which the age of retirement was
reduced from 58 to 55 years and this Court upheld the amended
provisions being neither arbitrary nor irrational. The court
further rejected the submission of the Appellants therein that
the said amended provisions would have retrospective
application taking away their accrued rights. (See also State of
Andhra Pradesh etc. etc. v. S.K. Mohinuddin, AIR 1994 SC
1474)."
24. As a fortiorari, it also becomes the prerogative of the Government
to enhance the age of superannuation. Furthermore, while doing so, it
is again the prerogative of the Government/employer to increase the
age of superannuation in respect of certain categories of employees
only. However, it would be with one caveat. When age of
superannuation is increased in respect of a particular class of
employees, then it has to be made applicable to all employees falling
in the same category as otherwise it would result in invidious
discrimination. Thus, if certain categories of employees who belong
to same class are left out, they can legitimately make grievance and
question the decision of the Government on the ground that it
amounts to hostile discrimination and is thus violative of
Article 14 of the Constitution."
5. In view of the above, petitioners have no legal entitlement to
raise a grievance to question the fixing of the age of the superannuation by
the employer/respondent no.1. There is therefore no arbitrariness in the
action of the respondent no.1 in reducing the age from 60 years to 58 years,
taking note of the fact that the age of retirement was increased in the year
1998 after repeal of the Industrial Finance Corporation Act, 1948 by the
repealing Act of 1993 and thereby there does not arise any issue of vested
right of existing any term and condition of retirement age being 60 years
even prior to the year 1993.
6. Dismissed.
MARCH 11, 2015 VALMIKI J. MEHTA, J
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