Rajendra Kumar Shukla vs The State Of Madhya Pradesh
2021 Latest Caselaw 979 MP

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           THE HIGH COURT OF MADHYA PRADESH
                      WP-8524-2020
     (RAJENDRA KUMAR SHUKLA vs STATE OP MADHYA PRADESH AND OTHERS )

JABALPUR
DATED : 23.03.2021
       Shri V.C. Rai, learned counsel for the petitioner.
       Shri Dilip Parihar, learned Panel Lawyer for the respondent

No.1/State.

Shri Rahul Diwaker, learned counsel for the respondent No.2 to

6. Heard.

By this writ petition, the petitioner has challenged the order dated 01.07.2019 whereby the petitioner is sought to retire w.e.f. 30 th June, 2020 on completing the age of 58 years.

2. The case of the petitioner is that in terms of the order dated 24.04.2012, the age of retirement was increased to 60 years. The Class-III & Class-IV employees were required to give the option of their choice to avail the benefit of enhanced age of retirement. Further case of the petitioner is that the circular dated 27.07.2012 was issued by Madhya Pradesh MKVVCL giving option to Class-I, II & III employees to continue up to 60 years, but the same was published on the Company's website only and was not circulated. The petitioner had given the option to continue up to 60 years on 26.06.2012 and thereafter no action was taken by the respondents and suddenly the impugned order dated 01.07.2019 was passed seeking to retire the petitioner on completion of 58 years of age whereas he was entitled to continue up to 60 years of age.

3. The respondents have filed the reply taking the stand that since the petitioner had not given the option within the stipulated time, therefore, he has not been given the benefit of the enhanced age.

4. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the issue involved in the present case has already been settled by the Division Bench by order dated 13.07.2017 passed in W.A. No.801/2016 wherein the Division Bench has held that the time limit of one month is not mandatory for giving the option and such a time limit is not a pre-condition for eligibility. The Division Bench has referred and relied upon the earlier Division Bench judgment in W.A. No.150/2015 in the case of M.P. Power Generation Company Limited and another Vs. Amrit Lal Gupta. The Division Bench in W.A. No.801/2016 (supra) has held as under :

"3. It was on 24.04.2012, the Madhya Pradesh Power Generating Company Limited issued a Circular that all those Class-I, Class-II and Class-III employees who are working in the Company are given option to continue up to the age of 60 years. However, in respect of Class-IV employees, the age of retirement was stipulated to continue to be 60 years. In the said Circular, there is no time limit during which the option as sought is required to be submitted. However, in the proforma attached with the said Circular, it was mentioned that option has to be given within one month.

4. A Single Bench of this Court has allowed the Writ Petition No.20902/2012(S) (Amrit Lal Gupta vs. Madhya Pradesh Power Generating Company Limited) and other connected matters vide order dated 20.01.2015 holding that the time limit of 30 days to give option is not mandatory. The writ petitions were allowed with the following directions:-

"14. Consequent upon discussion made hereinabove, all the aforesaid petitions are hereby allowed. The communication made by the respondents Board to not to continue the petitioners on the ground of either submitting the option after the cutoff date or its rejection are hereby

quashed. It is directed that all the petitioners are entitled to continue till the extended age of superannuation, i.e., 60 years, with all other consequential benefits. Some of the petitioners are continuing under the interim order passed by this court, however, they shall continue till the extended age of superannuation and those who are not in employment, they be reinstated in service within one month and be continued to serve till the extended age of superannuation i.e., 60 years. In the case of Amrit Lal Gupta, rejection of the option is not found in accordance with law; therefore, he is also entitled to all consequential benefits for such extended age. The respondent Board is directed to take appropriate action in view of the directions given hereinabove."

5. In appeal against the said order, Writ Appeal No.150/2015 (M.P. Power Generation Company Limited and another vs. Amrit Lal Gupta) was decided on 07.04.2015. It was held that the period mentioned in the note cannot be considered as mandatory and is not a pre-condition for eligibility.

In view of the said finding, the order passed by the learned Single Bench allowing an employee to continue up to the age of 60 years, was not interfered with. The said order has attained finality.

6. In view of the orders passed by this Court, if the time period to submit option is not mandatory, therefore, an employee can opt for extension in age at any time before attaining the age of superannuation of 58 years. Since the appellant has withdrawn his earlier communication not to opt for extension before attaining the age of 58 years, therefore, the appellant would be entitled to continue up to the age of 60 years.

7. In view of the said judgment, wherein it has been held that the time limit of one month is not mandatory, we find that the first option given by the

appellant not to opt for extension and subsequently withdrawing the same, before attaining the age of 58 years, will entitle the appellant to continue in service up to the age of 60 years.

8. Accordingly, the impugned orders passed by the learned Single Bench are set aside. If the appellants have attained the age of 60 years in the meantime, they shall be entitled to all consequential benefits as may be admissible to them up to the age of 60 years.

9. The appellants who have not attained the age of 60 years shall be allowed to resume their duties and allowed to superannuate on attaining the age of 60 years. The said employees shall be entitled to pay and allowances for the intervening period.

The writ appeals are allowed accordingly."

5. The record further reflects that the Review Petition No.684/2015 was filed before the Division Bench, which has also been dismissed by order dated 29.09.2015. The respondents had preferred S.L.P. (Civil) No.25918/2017 against the order passed by the Division Bench in W.A. No.801/2016 (supra), which has been dismissed by the Hon'ble Supreme Court by order dated 18.12.2020.

6. Learned counsel for the respondents has raised the issue that the Division Bench has not considered the circular dated 17.05.2012, but a perusal of the circular dated 17.05.2012 reveals that in the said circular only the condition of the earlier circular dated 24.04.2012 has been reiterated and the circular dated 24.04.2012 has already been considered by the Division Bench while passing the order in W.A. No.801/2016 (supra).

7. Hence, in view of the detailed reasons, which have been assigned by the Division Bench in W.A. No.801/2016 (supra), the impugned order dated 01.07.2019 cannot be sustained and is hereby set aside. The respondents are directed to allow the petitioner to

resume his duties and allow him to continue him till the age of superannuation of 60 years. The petitioner will be entitled to pay and allowances for the intervening period. Let this exercise be completed within a period of 30 days from the date of receipt of certified copy of this order.

8. The writ petition is accordingly allowed.

(PRAKASH SHRIVASTAVA) JUDGE DV

Digitally signed by DINESH VERMA Date: 2021.03.25 17:55:44 +05'30'